       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

FEDERAL EXPRESS CORPORATION and ROBERTO NICK CHARRIA,
                     Appellants,

                                     v.

                           DAVID ALAN SIMS,
                               Appellee.

                              No. 4D18-1154

                           [February 20, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carlos A. Rodriguez, Judge; L.T. Case No. CACE-17-
016471 (14).

   David P. Herman and Michael G. Shannon of Murray, Morin & Herman,
P.A., Coral Gables, for appellants.

   Diana Santa Maria, Carolyn B. Anderson, and Laura D. Dolin of Law
Offices of Diana Santa Maria, P.A., Fort Lauderdale, for appellee.

GERBER, C.J.

   The defendants’ attorneys appeal from the circuit court’s order
directing them to pay the plaintiff’s attorney’s fees under Florida Rule of
Civil Procedure 1.380(a)(4), as part of the circuit court’s “Order on
Plaintiff’s Motion to Compel Better Answers to Interrogatories and Motion
to Compel Designation of Corporate Representative, and Defendants’
Objections to Plaintiff’s Discovery Requests.” The defendants’ attorneys
argue, among other things, that the circuit court erred in entering the
attorney’s fees order because the defendants’ objections were substantially
justified. We agree with the defendants’ attorneys’ argument. We reverse
that portion of the order directing the defendants’ attorneys to pay the
plaintiff’s attorney’s fees.

   Florida Rule of Civil Procedure 1.380(a)(4) states:

      (4) Award of Expenses of Motion. If the motion [to compel] 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 that the movant failed to certify in the motion
      that a good faith effort was made to obtain the discovery
      without court action, that the opposition to the motion was
      substantially justified, or that other circumstances make an
      award of expenses unjust. If the motion is denied and after
      opportunity for hearing, the court shall require the moving
      party to pay to the party or deponent who opposed the motion
      the reasonable expenses incurred in opposing the motion that
      may include attorneys’ fees, unless the court finds that the
      making of the motion was substantially justified or that other
      circumstances make an award of expenses unjust. If the
      motion is granted in part and denied in part, the court may
      apportion the reasonable expenses incurred as a result of
      making the motion among the parties and persons.

(emphasis added).

    The circuit court, both at the hearing on the plaintiff’s motion to
compel, and in the order resulting from the hearing, incorrectly referred to
rule 1.380(a)(4) as a “prevailing party” rule, even though rule 1.380(a)(4)
uses no such phrase. For example, at the hearing, the circuit court stated:
“[I]t’s pursuant to 1.380, prevailing party gets the expenses of the motion.”
(emphasis added). Later at the hearing, the circuit court stated, “So,
[plaintiff’s counsel is] the prevailing party and she’s going to get her costs
and fees.” (emphasis added). In the order, the circuit court stated: “[T]he
court shall impose fees and costs to the prevailing party pursuant to Rule
1.380.” (emphasis added). Later in the order, the circuit court stated: “The
Court finds that the Plaintiff is a prevailing party for this matter and
pursuant to Rule 1.380[(a)](4) is entitled to fees and costs.” (emphasis
added).

    The circuit court apparently misinterpreted rule 1.380(a)(4) as a
“prevailing party” rule because of the rule’s use of the word “shall” in the
first sentence’s first clause: “If the motion [to compel] 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 . . . .” (emphasis
added). For example, at the hearing on the plaintiff’s motion to compel,
the circuit court sua sponte raised rule 1.380(a)(4) and stated: “The rule
says I shall impose [the expenses of the motion] unless the interests of

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justice indicate otherwise. Everything here was objected to. Some of the
objections were well-founded, but some weren’t.” (emphasis added). Later
in the hearing, the court’s focus on the word “shall” was more narrow:
“[The rule] doesn’t say may get, it says, shall get.” (emphasis added).

   However, the circuit court’s narrow focus on the single word “shall” in
the first sentence’s first clause appears to have minimized, if not
eliminated, the court’s consideration of the first sentence’s second clause:
“unless the court finds that the movant failed to certify in the motion that
a good faith effort was made to obtain the discovery without court action,
that the opposition to the motion was substantially justified, or that other
circumstances make an award of expenses unjust.” (emphasis added).

   The circuit court’s minimization of the first sentence’s second clause is
apparent from the face of its written order, which ultimately ignored that
second clause. That is, the circuit court’s written order made no finding
regarding whether the defendants’ opposition to the motion was
substantially justified. Rather, as we stated above, the circuit court’s
written order appears to have awarded the plaintiff’s attorney’s fees and
costs simply because, in the circuit court’s view, the plaintiff was the
“prevailing party” on the motion. That was error. Cf. Shaw v. State ex rel.
Butterworth, 616 So. 2d 1094 (Fla. 4th DCA 1993) (“If defendants were
correct in their argument that attorney’s fees must be assessed, where a
party denies a request to admit a fact which is the central issue of fact in
the case, prevailing party attorney’s fees would become the rule, rather than
the exception.”) (emphasis added).

    Even if we were to assume that the circuit court implicitly considered
the first sentence’s second clause and found that the defendants’
opposition to the motion was not substantially justified, the record belies
such a finding. As the circuit court itself stated at the hearing, “Some of
the objections were well-founded, but some weren’t.” That finding is
reflected in the written order, which found that certain interrogatories were
overly broad or sought work product obtained in anticipation of litigation,
and that certain requests for production sought documents which may
have been protected as privileged, trade secrets, or confidential business
information. Despite those findings, the circuit court awarded the
plaintiff’s attorney every dollar for every hour spent on the motion, with
the only explanation in the written order being that the plaintiff was the
“prevailing party.” This erroneous view of the law constitutes an abuse of
discretion. See Rush v. Burdge, 141 So. 3d 764, 766 (Fla. 2d DCA 2014)
(“A trial court . . . abuses its discretion if its ruling is based on an erroneous
view of the law or on a clearly erroneous assessment of the evidence.”)
(citation and internal quotation marks omitted omitted).

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   Based on the foregoing, we reverse that portion of the circuit court’s
“Order on Plaintiff’s Motion to Compel Better Answers to Interrogatories
and Motion to Compel Designation of Corporate Representative, and
Defendants’ Objections to Plaintiff’s Discovery Requests” directing the
defendants’ attorneys to pay the plaintiff’s attorney’s fees.

   Reversed.

CIKLIN and KUNTZ, JJ., concur.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




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