FRANKLIN BYSTROM, ETC., APPELLANT,
v.
MUTUAL OF OMAHA INSURANCE, APPELLEE
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The Florida District Court of Appeal affirmed a trial court's refusal to award expert witness fees as costs where the expert was a salaried employee of the prevailing party. The court held that section 92.231 does not require taxation of costs for expert services provided by an employee with direct and continuing responsibility for the subject matter.
The trial court did not err in refusing to award expert witness fees for a salaried employee who testified regarding matters for which the employee had direct and continuing responsibility. Section 92.231 merely provides a mechanism to recover fees that have been paid or incurred, and does not mandate an award of costs for expert services provided by a party's full-time employee.
[1] A prevailing party is not entitled to recover expert witness fees as costs for the services of a full-time employee who testifies regarding matters for which the employee…
[2] Statutes providing for the award of expert witness fees as costs are intended to compensate for fees paid or incurred, not for the services of an employee testifying on b…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the statute providing for an award of compensation to expert witnesses who testify in felony cases does not require "a trial judge to award expert witness fees to state employees testifying on state time in reference to matters for which [the employees] bear a direct and continuing responsibility."”
Establishes the foundational principle that expert witness fees need not be awarded for employees testifying on matters within their job responsibilities.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceFranklin Bystrom, the Dade County Property Appraiser, prevailed in a non-jury trial challenging a property tax assessment brought by Mutual of Omaha I…
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GERSTEN, Judge.
Appellant, Franklin Bystrom, the Dade County Property Appraiser, appeals a post-judgment order refusing to tax an expert witness fee as costs, pursuant to section 92.231, Florida Statutes (1989). We affirm.
Appellee, Mutual of Omaha Insurance, challenged a 1985 property tax assessment. After a non-jury trial, the trial court entered a final judgment in favor of appellant. Shortly thereafter, appellant filed a motion to tax costs against appellee. Ap pellant sought an expert witness fee for the services of E. Allen Hathaway, an employee of appellant.
Hathaway had prepared a review appraisal of the assessment on appellee’s property and had testified at trial regarding his review appraisal. The trial court found that appellant’s requested fee for Hathaway was reasonable, but refused to award any expert fees for his services because Hathaway was a salaried employee of appellant. This appeal followed.
The sole issue on appeal is whether the trial court erred in refusing to tax as costs a reasonable expert witness fee where the expert is a full-time employee of the prevailing party. We conclude that there was no error. The Florida case which comes closest to addressing this issue is Florida Department of Health and Rehabilitative Services (HRS) v. State, 380 So. 2d 54 (Fla. 2d DCA 1976). In the HRS case, the state attorney requested expert witness fees for the services of staff members of the state hospital who had testified under subpoena regarding the competency of a defendant. The trial court denied the state attorney’s request. The Second District Court of Appeal agreed with the trial court, stating that the statute providing for an award of compensation to expert witnesses who testify in felony cases does not require “a trial judge to award expert witness fees to state employees testifying on state time in reference to matters for which [the employees] bear a direct and continuing responsibility.” Florida Department of Health and Rehabilitative Services v. State, 330 So. 2d at 55.
Here, appellant’s employee testified about matters for which the employee had a direct and continuing responsibility. Under such circumstances, appellant is not entitled to an award of costs for the employee’s expert witness services.
The decision of the Florida Supreme Court in Aspen v. Bayless, 564 So. 2d 1081 (Fla.1990), does not compel a different conclusion. In Aspen the court ruled a party may recover costs after a judgment, although the costs were paid by a third party without any obligation to repay. In this case, neither appellant nor a third party paid or incurred costs for Hathaway’s expert witness services.
Appellant contends, relying on section 92.231(2), Florida Statutes, that an award of costs to the prevailing party for the services of the party’s expert witness is mandatory, regardless of the expert witness’s employment status with the party. We do not agree. Section 92.231, Florida Statutes, merely provides a mechanism through which a prevailing party may be entitled to recover as costs, fees it has paid or incurred for expert witness services.
The Florida cases appellant cites to this court, concerning attorney’s fees, are inapplicable. Appellant’s eases do not involve an award of costs for the expert witness services of a party’s full-time employee. We note that we are not persuaded by, nor are we bound to follow, the federal cases and cases from other jurisdictions also cited by appellant.
Accordingly, the order appealed is affirmed.
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Carlucci v. Demings, 31 So. 3d 245 (Fla. 5th DCA 2010)…it and mutual agreement that the order constitutes a separate employment contract. Consequently, we are not persuaded by, nor bound to follow Beggs or the other cases from sister jurisdictions cited by Appellants. See Bystrom, v. Mut. of Omaha Ins., 566 So. 2d 351, 352 (Fla. 3d DCA 1990). Finally, the Orange County Board of County Commissioners did not approve, either formally or informally, the health insurance benefit and, therefore, never ratified it by paying the Sheriffs budget. See Frankenmuth Mut. Ins…
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Carroll v. State of Fla. & Ernest T. Strain, 570 So. 2d 1143 (Fla. 4th DCA 1990)…PER CURIAM. We affirm the trial court’s order denying appellant’s motion for payment of an expert witness fee pursuant to section 914.06, Florida Statutes (1985). See generally Bystrom v. Mutual of Omaha Insurance, 566 So. 2d 351 (Fla. 3d DCA 1990); Florida Department of Health and Rehabilitative Services, Division of Mental Health v. State, 330 So. 2d 54 (Fla. 2nd DCA 1976). AFFIRMED. ANSTEAD, DELL and POLEN, JJ., concur.…
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- Aspen v. Bayless, 564 So. 2d 1081 (Fla. 1990)