RICHARD R. JUNKAS, APPELLANT/CROSS-APPELLEE,
v.
UNION SUN HOMES, INC., APPELLEE/CROSS-APPELLANT
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In this appeal, the court reversed a trial court's award of expert witness fees to the defendant when the expert was never qualified, never testified, and was not deposed, holding that Florida law only permits expert witness fees when the expert has actually testified or had their deposition taken.
The court held that expert witness fees are taxable only when the expert has actually testified in the cause or had their deposition taken. Since this witness neither testified nor was deposed, the fee is not a taxable cost under Florida Statutes Section 92.231(2) or Florida Rule of Civil Procedure 1.390(c).
[1] An expert witness fee is not a taxable cost when the expert has not testified at trial or been deposed.
[2] Costs are taxable only when authorized by statute or rule.
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Join FLexlaw to unlock all legal intelligence“an expert or skilled witness 'who shall have testified in any cause'”
Establishes the statutory requirement that expert witness fees are only taxable for experts who actually testified
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Join FLexlaw to unlock all legal intelligenceThe defendant in a jury trial prepared an appraiser to testify as an expert witness on property valuation for one and one-half days. However, the tria…
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COWART, Judge.
The appellee, as defendant below, had a witness attend a jury trial for one and one-half days to prepare to present testimony. Appellee intended to have the witness, an appraiser, qualified in its case as an expert witness to give an opinion as to value, which was in issue in the plaintiff’s case. However, the trial court correctly directed a verdict in defendant’s favor at the close of the plaintiff’s case. Therefore, this witness was never qualified as an “expert” to give his opinion and never testified. Notwithstanding, the trial judge found $650 to be a fair and reasonable fee for the witness and taxed that sum against appellant as costs.
Appellee cites Florida Rule of Civil Procedure 1.420(d) providing for costs in any action dismissed under that rule. That rule is inapplicable because Rule 1.420(b) provides for an involuntary dismissal for insufficiency of proof “after a party seeking affirmative relief in an action tried by the court without a jury has completed the presentation of his evidence ...” and this was a jury trial. In any event, that rule begs the question here, which is whether an expert fee is a taxable cost under the circumstances. Section 92.231(2), Florida Statutes (1981), provides for the allowance of an expert witness fee for any expert or skilled witness “who shall have testified in any cause.” Florida Rule of Civil Procedure 1.390(c) provides that “an expert or skilled witness whose deposition is taken shall be allowed a witness fee.... ” Counsel at oral argument conceded that this witness had never been deposed. Costs are taxable only where authorized by statute or rule. No applicable statute or rule permitting the allowance of an expert witness fee under the circumstances in this case has been directed to our attention.
The cost judgment for an allowance for an expert witness is reversed and the appealed judgment is otherwise affirmed.
AFFIRMED in part; REVERSED in part.
ORFINGER and SHARP, JJ., concur.
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Coastal Petroleum Co. v. Mobil OIL Corp., 583 So. 2d 1022 (Fla. 1991)
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KMS OF Fla. Corp. v. Magna Props., Inc., 464 So. 2d 234 (Fla. 5th DCA 1985)…ey’s fees to appellee, as the prevailing party in an action to foreclose a mechanic’s lien.1 We reverse that portion of the order assessing an expert witness fee because no expert witness testified for appellee. See Junkas v. Union Sun Homes, Inc., 412 So. 2d 52 (Fla. 5th DCA 1982). Appellee’s argument that it is nevertheless entitled to an expert witness fee because the witness was prepared to testify and would have done so but for the directed verdict in appellee’s favor, was considered and rejected in Ju…
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Coastal Petroleum Co. v. Mobil OIL Corp., 550 So. 2d 158 (Fla. 1st DCA 1989)
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