ARNOLD P. LEEDS, APPELLANT,
v.
CITY OF HOMESTEAD, A MUNICIPAL CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF FLORIDA, APPELLEE
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In an eminent domain case, the trial court denied Leeds' request to recover engineer expert witness fees as costs. The appellate court affirmed, holding that because the engineer's testimony addressed damages from the faulty construction of a sewerage lift station (a tort claim) rather than severance damages from the taking itself, the expert fees were not properly recoverable in the eminent domain proceeding.
Expert witness fees are not recoverable as costs in eminent domain proceedings when the expert's testimony addresses damages resulting from the manner of construction or operation of a facility (tort damages) rather than damages caused by the taking itself or severance damages. The expenditure must be reasonably and necessarily incurred in relation to a proper issue in the eminent domain case.
[1] Expert witness fees are recoverable as costs in eminent domain proceedings when reasonably and necessarily incurred in relation to a proper issue in the case.
[2] Damages resulting from the manner of construction of a public improvement, rather than from the taking itself, are consequential damages recoverable in tort, not severanc…
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Join FLexlaw to unlock all legal intelligence“Such consequential damages must be sought by a separate claim in tort and are not severance damages recoverable in eminent domain proceedings.”
Establishes the critical distinction that damages from faulty construction are tort damages, not eminent domain damages, and therefore expert fees incurred to prove them are not recoverable as costs.
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Join FLexlaw to unlock all legal intelligenceThe City of Homestead constructed a sewerage lift station on property taken from Leeds through eminent domain. Leeds hired an engineer to testify that…
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DANIEL S. PEARSON, Judge.
The order under review denied Leeds’ motion to tax as costs the fees of an engineer employed by Leeds to give expert testimony. The engineer’s testimony was that the faulty operation of a sewerage lift station constructed by the City of Homestead on that portion of Leeds’ property taken by the City under its power of eminent domain 1 resulted in the emission of noise, noxious odors and effluent and decreased the value of the adjoining property still owned by Leeds.
The damages to Leeds’ property which were sought to be established by the testimony of the engineer were not damages caused by the taking, but instead, damages resulting from the manner in which the lift station was constructed. Such consequential damages must be sought by a separate claim in tort and are not severance damages recoverable in eminent domain proceedings. Kendry v. Division of Administration, Department of Transportation, 366 So. 2d 391 (Fla.1978); Division of Administration, Department of Transportation v. Hillsboro Association, Inc., 286 So. 2d 578 (Fla. 4th DCA 1973). While it is true, as Leeds contends, that (a) a landowner’s expert witness fees are recoverable as costs in eminent domain proceedings, Dade County v. Brigham, 47 So. 2d 602 (Fla.1950); (b) it is not essential to the recovery of such fees that the landowner succeed in recovering the damages which the expert’s testimony establishes, Hodges v. Division of Administration, Department of Transportation, 323 So. 2d 275 (Fla. 2d DCA 1975); City of Miami Beach v. Liflans, 259 So. 2d 515 (Fla. 3d DCA 1972); and (c) where the hiring of the expert is necessary to put the landowner on an equal footing with the condemning authority, the fact that the expert does not actually testify (or, in the present case, the ultimate rejection of his testimony) is not an impediment to the recovery of the expert’s fees,2 Dade County v. Renedo, 147 So. 2d 313 (Fla.1962); Cheshire v. State Road Department, 186 So. 2d 790 (Fla. 4th DCA 1966), it is nonetheless essential that the expenditure of such fees be reasonably and necessarily incurred in relation to a proper issue in the case. See Hodges v. Division of Administration, Department of Transportation, supra; Che shire v. State Road Department, supra. Because the expert’s testimony related to damages predictably not recoverable in the eminent domain proceedings, we find no abuse of discretion in the trial court refusing to tax the expert witness’ fees as costs.3
Affirmed.
. Leeds had ostensibly sold the land to the City, and the City constructed the lift station. Leeds later disputed any sale and brought a complaint alleging trespass and inverse condemnation. The City, pursuant to a court order that no effective sale had occurred, filed a petition in eminent domain proceedings and declaration of taking so as to legally acquire the land.
. Leeds’ contention that he was compelled to hire his expert to combat contrary testimony of the City’s experts is totally without merit. The City’s position throughout the proceedings below was that the damages sought to be proved by Leeds through his expert were not recoverable. While the City was prepared to show that the lift station operated properly and did no damage to Leeds’ property, that was a fall back position for the City, not one it was required to prove and Leeds required to rebut.
Leeds’ alternative contention that his need for an expert was occasioned by the trial court’s initial ruling that it would hear the testimony offered is equally without merit. Leeds did not obtain the expert in reliance on this ruling, and the trial court’s willingness to hear him out, over the City’s continued objection, did not make the expert’s testimony necessary to any real issue and cannot enhance Leeds’ right to recover the cost of the expert.
. There is neither any factual basis, nor any factual finding, that the condition created by the sewerage lift station constituted an appropriation of, as distinguished from damage to, such property. Compare Kendry v. Division of Administration, Department of Transportation, supra. We cannot say that this question was so close that even though determined against Leeds the trial court abused its discretion in not awarding fees. Compare Hodges v. Division of Administration, Department of Transportation, supra.
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Seminole Cnty. v. Faye R. Chandrinos, 816 So. 2d 1241 (Fla. 5th DCA 2002)…e recognized that in a proper case, the landowner may secure a fee for expert witnesses, even though the jury returns a zero verdict. Dep't of Transp. v. Jack’s Quick Cash, Inc., 748 So. 2d 1049, 1052 (Fla. 5th DCA 1999); Leeds v. City of Homestead, 407 So. 2d 920 (Fla. 3d DCA 1981). . Florida Rule of Civil Procedure 1.390(c) provides that "[a]n expert or skilled witness whose deposition is taken shall be allowed a witness fee in such reasonable amount as the court may determine.” See Eppler v. Tarmac Am. In…
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Howard Johnson Co. v. Division of Administration, 450 So. 2d 328 (Fla. 4th DCA 1984)…the statute are predicated upon the effect the taking of an owner’s land for a right of way has upon such a business and not upon the effect the construction ... of a roadway has upon such business. Id. at 819. See also Leeds v. City of Homestead, 407 So. 2d 920 (Fla. 3d DCA 1981), and Division of Admin., State Dep’t of Transp. v. Hillsboro Ass’n, 286 So. 2d 578 (Fla. 4th DCA 1973). Further, an owner sustains no enforceable claim for damages resulting from incidental impairment of rights to ingress and egre…
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Dep't OF Transp. v. Springs Land Invs. Ltd., 695 So. 2d 414 (Fla. 5th DCA 1997)…Fla.1983). Owners are entitled to expert witness fees, which go to the establishment of just compensation. Dade County v. Brigham, 47 So. 2d 602 (Fla.1950); Sarasota County v. Burdette, 524 So. 2d 1064 (Fla. 2d DCA 1988); Leeds v. City of Homestead, 407 So. 2d 920 (Fla. 3d DCA 1981). These costs are recoverable for the purpose of putting the landowner on an equal footing with the condemning authority. However, fees may not be awarded where appraisers or other experts are too numerous, or their charges improp…1 / 2
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hodges v. Division OF Administration, 323 So. 2d 275 (Fla. 2d DCA 1975)
- Cheshire v. State Rd. Dep't of Fla., 186 So. 2d 790 (Fla. 4th DCA 1966)
- Reginald C. Kendry et ux. v. Division OF Administration, 366 So. 2d 391 (Fla. 1978)
- Dade Cnty. v. Renedo, 147 So. 2d 313 (Fla. 1962)
- City OF Miami Beach v. Liflans Corp., 259 So. 2d 515 (Fla. 3d DCA 1972)
- Division OF Administration v. Hillsboro Ass'n, Inc., 286 So. 2d 578 (Fla. 4th DCA 1973)