Fogel v. Emmett.
2021 COA 20. No. 19CA1916. Subpoena—Tender of Mileage Fee—Civil Procedure.
February 18, 2021
Plaintiff’s attorney issued a subpoena requiring Fogel to appear in court to testify, and a process server claimed that he served the subpoena on Fogel at his home. After Fogel failed to appear in court on the date and time specified, the trial court issued a contempt citation and scheduled a contempt hearing. At the hearing, Fogel’s counsel argued, in part, that there was no evidence the process server tendered a check for the required mileage fee, so the subpoena was not properly served. The trial court found Fogel in contempt and sentenced him to 30 days in the county jail.
On appeal, Fogel argued that the trial court erred by ruling that a subpoena can be validly served when the witness is not provided the required mileage fee. CRCP 45(b)(3) states that a witness being served with a subpoena may be tendered the required mileage fee “within a reasonable time after the service of the subpoena, but in any event prior to the appearance date.” Here, the record is unclear as to whether plaintiff tendered the mileage fee to Fogel within a reasonable time after service of the subpoena.
The order was reversed and the case was remanded for a finding of whether plaintiff tendered the required mileage fee in accordance with CRCP 45(b)(3).