Third District Court of Appeal
State of Florida
Opinion filed April 28, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-1557
Lower Tribunal No. 16-6231
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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.
4
