YAIR BARAK v. ACS INTERNATIONAL PROJECTS, LTD., etc.

• Court: District Court of Appeal of Florida
• Decided: April 28, 2021
• Docket: 20-1557
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed April 28, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-1557 Lower Tribunal No. 16-6231 ________________

Yair Barak, Appellant,

vs.

ACS International Projects, Ltd., Appellee.

An appeal from a non-final order from the Circuit Court for Miami-Dade County, Veronica Diaz, Judge.

Yair Barak, in proper person.

No appearance for appellee. 1

Before FERNANDEZ, LINDSEY, and MILLER, JJ.

MILLER, J.

1 Appellee was precluded from filing an answer brief. Through this appeal, appellant, Yair Barak challenges a daily monetary

sanction imposed by the trial court to coerce his compliance with certain

outstanding post-judgment discovery orders. It is axiomatic the assessment

of a fine in this context must be predicated upon a finding of contempt. See

Channel Components, Inc. v. Am. II Elecs., Inc., 915 So. 2d 1278, 1283 (Fla.

2d DCA 2005) (“Notably, rule 1.380 does not specifically provide for the

imposition of a monetary sanction or fine unconnected to the expenses (such

as attorneys' fees) caused by the failure to provide discovery. Thus the

assessment of a fine in the discovery context must be predicated upon a

finding of contempt.”) (citations omitted); Stewart v. Jones, 728 So. 2d 1233,

1234 (Fla. 4th DCA 1999) (holding the “assessment of a fine in the discovery

context must be predicated on a finding of contempt”) (citations omitted); Fla.

Physicians Ins. Reciprocal v. Baliton, 436 So. 2d 1110, 1112 (Fla. 4th DCA

1983) (“Although not authorized by the technical wording of the rule, fines

have been held appropriate through the vehicle of contempt in a discovery

context.”) (citation omitted). Further, the amount of sanctions must have

some bearing upon the harm suffered by the injured party. See S. Dade

Farms, Inc. v. Peters, 88 So. 2d 891, 899 (Fla. 1956) (“[I]n the event that the

violation of the decree has resulted in damages to the injured party, there is

adequate authority to support the assessment of a ‘compensatory fine’ to be

2 paid by the wrongdoing party to the party injured.”); H.K. Dev., LLC v. Greer,

32 So. 3d 178, 183 (Fla. 1st DCA 2010) (finding the sanctions order could

not be upheld “because no evidence was adduced . . . to prove what

relationship, if any, the $31,000 sanction b[ore] to ‘reasonable expenses

caused by the failure’” to appear for deposition) (citation omitted); A Aaable

Bail Bonds, Inc. v. Able Bail Bond, Inc., 626 So. 2d 1105, 1106 (Fla. 3d DCA

1993) (“The trial court's order departs from the essential requirements of the

law because it does not comply with Fl[orida] R[ule of] Civ[il] P[rocedure]

1.380(b)(2) which deals with sanctions for violating discovery orders and

provides, ‘the court shall require the party failing to obey the order to pay the

reasonable expenses caused by the failure, which may include attorneys'

fees, unless the court finds that the failure was justified or that other

circumstances make an award of expenses unjust.’”); see also Fla. R. Civ.

P. 1.380(a)(4) (“If the motion is granted and after opportunity for hearing, the

court shall require the party or deponent whose conduct necessitated the

motion or the party or counsel advising the conduct to pay to the moving

party the reasonable expenses incurred in obtaining the order that may

include attorneys' fees, unless the court finds . . . other circumstances make

an award of expenses unjust.”). Here, the record is devoid of any such

findings, thus, we reverse and remand for further proceedings.

3 Reversed and remanded.