KMS OF FLORIDA CORP., APPELLANT,
v.
MAGNA PROPERTIES, INC., APPELLEE
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KMS of Florida Corp. appeals a cost and attorney's fee award to the prevailing defendant in a mechanic's lien foreclosure action. The court reverses the award of expert witness fees and bond-related costs, finding no legal basis for these items under Florida law.
The court reversed the award of expert witness fees because no expert witness actually testified, as required by Florida Statute § 92.231 and the State-Wide Uniform Guidelines. The court also reversed the assessment of bond premium and letter of credit costs because the prevailing defendant had neither title nor interest in the property, creating no obligation to post a bond. All other portions of the cost award were affirmed.
[1] An expert witness fee is not recoverable when no expert witness testified at trial, even if the witness was prepared to testify and would have done so but for a directed…
[2] To be entitled to an expert witness fee under § 92.231, Florida Statutes, an expert witness must have been called, permitted by the court to qualify and testify, and must…
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Join FLexlaw to unlock all legal intelligence“no expert witness testified for appellee. See Junkas v. Union Sun Homes, Inc., 412 So.2d 52 (Fla. 5th DCA 1982)”
Establishes the primary basis for reversing the expert witness fee award
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Join FLexlaw to unlock all legal intelligenceKMS filed suit against Magna Properties in two counts: to foreclose a mechanic's lien and for breach of contract. At trial, a directed verdict was ent…
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ORFINGER, Judge.
This appeal is from a final order assessing costs and attorney’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 Junkas. The argument overlooks § 92.231, Florida Statutes (1983) which permits the award of an expert witness fee to a witness who has been called in a civil trial as an expert and who “is permitted by the court to qualify and testify as such,” and “who shall have testified” in the cause. Appellee’s reliance on the State-Wide Uniform Guidelines For Taxation of Costs promulgated by the Florida supreme court in an Administrative Order on October 29, 1981 [7 F.L.W. 517] is misplaced, because the administrative order, by its terms, does not purport to alter the substantive law with regard to the entitlement to any item of costs. Moreover, section 2A of the Guidelines clearly requires that the expert witness testify to be entitled to the award of a fee.
We also reverse that portion of the order which assessed the cost of a bond premium ($586.00) and the cost of a letter of credit to induce issuance of the bond ($788.91) because the appellee had neither title nor interest in the property nor an interest in the contract under which the lien was claimed. See § 713.24, Florida Statutes (1983). In fact, its non-ownership was the very basis on which it prevailed in the action. As such, there was no obligation for it to post a bond nor did it have any legal interest to protect by so doing.
In all other respects, the order appealed from is affirmed.
AFFIRMED in part and REVERSED in part.
COWART, J., and POWELL, R.W., Associate Judge, concur. . Appellant, as plaintiff, filed the original action in two counts: one count to foreclose a mechanic’s lien, and the other count seeking damages for breach of the contract involved in the first count. At trial, a directed verdict was entered for appellee because appellee was not the owner of the property nor had it entered into the contract with appellant. The final judgment entered on the directed verdict was affirmed without opinion. KMS of Florida Corp. v. Magna Properties, Inc., 450 So. 2d 507 (Fla. 5th DCA 1984).
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Coastal Petroleum Co. v. Mobil OIL Corp., 583 So. 2d 1022 (Fla. 1991)…propriate when the opposing parties have prevailed by their own initiative, such as by seeking a directed verdict. Coastal Petroleum Co. v. Mobil Oil Corp., 550 So. 2d 158, 160 (Fla. 1st DCA 1989) (citing KMS of Fla. Corp. v. Magna Properties, Inc., 464 So. 2d 234 (Fla. 5th DCA 1985); Junkas v. Union Sun Homes, Inc., 412 So. 2d 52 (Fla. 5th DCA 1982)). . Of course, the trial court should not take into account any expenditures except those actually incurred. . Obviously, overhead and similar costs not direct…
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Jaime M. Caceres, M.D. v. Physicians Protective Tr. Fund, 489 So. 2d 869 (Fla. 3d DCA 1986)…ary judgment, and thus, served no useful purpose in determining the issue before the trial court. Fees and trial subpoenas for a witness who has not attended court to testify may not be taxed as costs. KMS of Florida Corp. v. Magna Properties, Inc., 464 So. 2d 234 (Fla. 5th DCA 1985). For these reasons, we find that the trial court abused its discretion in awarding PPTF costs for depositions, Travis; see Cohn, witness fees, KMS; Cohn, trial subpoenas, KMS; Cohn, and photocopying documents to comply with the r…
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Thellman v. Tropical Acres Steakhouse, Inc., 557 So. 2d 683 (Fla. 4th DCA 1990)…n of the cost judgment awarding expert witness fees which we reverse. It is not appropriate to tax as costs the fees of witnesses who are neither qualified as experts by the court nor testify at trial. KMS of Florida Corp. v. Magna Properties, Inc., 464 So. 2d 234 (Fla. 5th DCA 1985). It is similarly inappropriate to tax as costs fees of expert witnesses for telephone conferences with counsel. See § 92.231, Fla.Stat. (1988); James P. Driscoll, Inc., v. Gould, 521 So. 2d 301 (Fla.3d DCA 1988); and In re: State…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Junkas v. Union SUN Homes, Inc., 412 So. 2d 52 (Fla. 5th DCA 1982)