MARY ROSE SULLIVAN, APPELLANT,
v.
ROSARIO A. MUSELLA, M.D., AND R.A. MUSELLA, M.D., FACS, P.A., APPELLEES

Fla. 2d DCA | 1988-05-13
Nos. 87-716, 87-1986
RYDER, A.C.J., and LEHAN, J., concur.
526 So. 2d 719 Florida District Court of Appeal, Second District (1988) Caution
Cited by 10 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Mary Rose Sullivan appealed a judgment entered against her in a medical malpractice action, challenging both the underlying verdict in favor of Dr. Musella and a subsequent judgment awarding costs. The appellate court affirmed both judgments, holding that Sullivan waived her right to object to the cost taxation procedure by failing to lodge specific written objections before the hearing.


Holding

The trial court did not err in awarding costs without an evidentiary hearing because Sullivan waived her objection to the procedure by failing to lodge specific written objections before the hearing and instead remaining silent for four months after service of the cost motion.


Headnotes

[1] A party waives objections to the taxation of costs by failing to file specific written objections prior to the scheduled hearing, despite receiving the motion and support…

[2] A trial court may set expert witness fees based on its experience, observation of the witness, knowledge of prevailing fees, and review of the record when no specific obj…

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Key Quotes

“In order to avoid the possibility of abuse, we hold that upon the specific objection to the setting of an expert witness fee without an evidentiary hearing, the prevailing party will have to present testimony concerning the necessity and reasonableness of the fee.”

Establishes the rule requiring evidentiary hearing only when specific objections are made to expert witness fees.

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Facts & Procedural History

Sullivan brought a medical malpractice action against Dr. Musella. After prevailing in the underlying case, Musella filed a motion to tax costs and se…

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Opinion of the Court
FRANK, Judge.

FRANK, Judge.

Sullivan, the plaintiff in a medical malpractice action, has appealed from a final judgment in favor of Musella, a physician, and from a subsequent final judgment assessing costs against her. We have considered and rejected Sullivan’s contentions deriving from the cross-examination of Mu-sella’s expert witness and the jury selection procedure. Our discussion focuses solely on the taxation of costs.

After prevailing in the underlying malpractice case, Musella filed a motion to tax costs and, prior to the hearing, provided Sullivan with statements for incurred costs. Sullivan did not respond to the motion and the supporting documentation served upon her on January 22,1987. A hearing did not occur until May 26, 1987. During the four-month interval, Sullivan remained silent and offered no objection, either specific or general, to the costs Musella sought to tax.

It is our view that Sullivan’s failure to lodge specific written objections to the costs prior to the scheduled hearing is of controlling significance. At the commencement of the hearing, Sullivan expressed a general objection to the taxation of costs and then interposed specific objections to various items. The court heard the arguments of counsel concerning the cost statements and then accepted, rejected, or modified the amounts before entering its final judgment. Sullivan challenges this procedure claiming that the court erred in entering the cost judgment absent an evidentiary hearing. In support of her argument she calls to our attention language found in our decision in Lafferty v. Lafferty, 413 So. 2d 170, 171 (Fla.2d DCA 1982):

In order to avoid the possibility of abuse, we hold that upon the specific objection to the setting of an expert witness fee without an evidentiary hearing, the prevailing party will have to present testimony concerning the necessity and reasonableness of the fee.

Of further interest are the following qualifying statements in Lafferty:

If no specific objection is made, as in the instant case, we believe the judge has the authority to set the amount of the expert witness fee based on his experience in these matters together with his observation of the witness’s testimony or his review of the record.

413 So. 2d at 171.

The Lafferty language upon which Sullivan relies is inapplicable in the present setting. She did not object to the conduct of the proceeding without an evidentiary hearing. Furthermore, her objections to certain individual cost items did not surface until the scheduled hearing was well under way, even though she was afforded ample time after service of Musella’s motion to frame and furnish those objections before the hearing. Thus, the trial judge acted well within his discretion in setting expert witness fees based upon his experience, his observation of the witness, his knowledge of the range of fees generally charged in this type of case, and his review of the record. See Lafferty; Baker v. Varela, 416 So. 2d 1190 (Fla. 1st DCA 1982).

We note that the First District has spoken concerning the preferred procedure for the orderly taxation of costs. This includes service of the motion to tax costs, together with supporting statements and affidavits, upon the opposing party “a reasonable time before the court enters the final judgment or decree, so that there will be sufficient time for the latter party to file any objections he may have to all or any part of such itemization and for the court to hear and adjudicate such items by the time it enters the final judgment or decree.” Burnett v. Burnett, 197 So. 2d 854, 857 (Fla. 1st DCA 1967).

Sullivan, having stood mute until the commencement of the hearing, waived her objection to the procedure employed by the trial court. We find no abuse of discretion or error in the awarded costs and we affirm the judgment for costs as well as the final judgment.

RYDER, A.C.J., and LEHAN, J., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Est. OF Conway Brock v. Newman D. Brock, 695 So. 2d 714 (Fla. 1st DCA 1996)
    …be sufficient time for the latter party to file any objections he may have to all or any part of such itemization and for the court to hear and adjudicate such items by the time it enters the final judgment or decree.” See also Sullivan v. Musella, 526 So. 2d 719, 721 (Fla. 2d DCA), review denied, 534 So. 2d 401 (Fla.1988). It appears the taxation of costs in this case was in substantial compliance with the procedure recommended by this court in Burnett. The motion to tax costs included a statement setting…
  • Sullivan v. Rosario A. Musella, M.D., 564 So. 2d 150 (Fla. 2d DCA 1990)
    …waived by the failure to raise a timely objection. In 1987, Dr. Musella obtained a cost judgment against Mrs. Sullivan as a result of his successful defense of her medical malpractice action. We affirmed the judgment on appeal. Sullivan v. Musella, 526 So. 2d 719 (Fla. 2d DCA), review denied, 534 So. 2d 401 (Fla.1988). After the appeal, Dr. Musella attempted to enforce the judgment. He obtained a writ of execution, which was placed on the sheriffs execution docket. Mrs. Sullivan, however, did not own any rea…
  • Betty-Jo Catalano v. Catalano, 802 So. 2d 1146 (Fla. 2d DCA 2001)
    …o the expert’s fee, not the claim for the fee, that triggers the need for an evidentiary hearing. In addition, the Lafferty ruling contemplates that the objection to the expert’s fee will be made before the evidentiary hearing. Sullivan v. Musella, 526 So. 2d 719, 720-21 (Fla. 2d DCA 1988). In the Sullivan case, Musella, the prevailing defendant, filed a motion to tax costs and provided Sullivan with statements for the costs incurred. Id. at 720. The hearing on Musella’s motion was scheduled to take place fo…

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