YAIR BARAK
v.
ACS INTERNATIONAL PROJECTS, LTD., ETC.
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# Legal Brief In *People v. Salcido*, the California Court of Appeal affirmed a defendant's conviction for unlawfully engaging as an unregistered immigration consultant and related theft offenses, holding that federal immigration law does not preempt California's Immigration Consultant Act. The court modified the judgment by striking one probation condition while otherwise affirming the conviction and five-year probation sentence.
[1] A monetary sanction imposed to coerce compliance with discovery orders must be predicated upon a finding of contempt.
[2] The amount of sanctions for discovery violations must bear some relationship to the harm suffered by the injured party.
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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.
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 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.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (57 total)
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Levin v. United States Fire Ins. Co., 639 So. 2d 606 (Fla. 1994)…inistration of justice. In particular, a trial court would have the ability to use its contempt powers to vindicate its authority and protect its integrity by imposing a compensatory fine as punishment for contempt. South Dade Farms, Inc. v. Peters, 88 So. 2d 891 (Fla.1956). Accordingly, we answer the certified question in the affirmative and return this ease to the United States Court of Appeals for the Eleventh Circuit. It is so ordered. GRIMES, C.J., KOGAN and HARDING, JJ., and McDONALD, Senior Justice…
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Parisi v. Broward Cnty., 769 So. 2d 359 (Fla. 2000)…tained, “[i]f compensation is intended, the fine must be based on evidence of the injured party’s actual loss.” Johnson, 573 So. 2d at 824 (emphasis supplied); see United Mine Workers, 330 U.S. at 303, 67 S.Ct. 677; South Dade Farms, Inc. v. Peters, 88 So. 2d 891, 899 (Fla.1956); National Exterminators, Inc. v. Truly Nolen, Inc., 86 So. 2d 816, 818 (Fla.1956), receded from on other grounds, Johnson, 573 So. 2d at 825. The bonded fine imposed in this case cannot constitute a valid compensatory sanction becau…
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City OF Jacksonville v. Naegele Outdoor Advertising Co., 634 So. 2d 750 (Fla. 1st DCA 1994)…he parties can be heard on the merits. “A decree cannot be violated in advance of its entry and it cannot be made retroactive so as to establish a violation by the acts of parties committed before the decree was entered.” South Dade Farms v. Peters, 88 So. 2d 891, 900 (Fla.1956). Whether prohibitory or mandatory, an injunction is prospective. “[A]n injunction does not lie to prohibit an act which has already been committed.” Quadomain Condominium Ass’n, Inc. v. Pomerantz, 341 So. 2d 1041,1042 (Fla. 4th DCA…
Previewing 3 of 57 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- S. Dade Farms, Inc. v. Peters, 88 So. 2d 891 (Fla. 1956)
- Fla. Physicians Ins. Reciprocal v. Romeo C. Baliton, M.D., 436 So. 2d 1110 (Fla. 4th DCA 1983)
- Channel Components, Inc. v. Am. II Elecs., Inc., 915 So. 2d 1278 (Fla. 2d DCA 2005)
- H.K. Dev., LLC. v. Greer, 32 So. 3d 178 (Fla. 1st DCA 2010)
- A Aaable Bail Bonds, Inc. v. Able Bail Bond, Inc., 626 So. 2d 1105 (Fla. 3d DCA 1993)
- Stewart v. Jones, 728 So. 2d 1233 (Fla. 4th DCA 1999)