GEORGE GRAY, APPELLANT,
v.
MICHAEL BRADBURY, APPELLEE
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This case concerns the award of attorney's fees and costs after a jury found no negligence. The appellate court reversed the award of fees and costs because the trial court failed to make express findings supporting the conclusion that the plaintiff's rejection of an offer of judgment was unreasonable. The court also affirmed the disallowance of expert witness costs due to insufficient evidence.
1. Yes, the trial court erred by failing to make express findings supporting the conclusion that the plaintiff's rejection of the offer of judgment was unreasonable. 2. No, the trial court did not err in disallowing expert witness costs because the prevailing party failed to present substantial, competent evidence of the necessity and reasonableness of those costs.
[1] A trial court must make express findings that an offeree's rejection of an offer of judgment was unreasonable before imposing sanctions under section 45.061(2), Florida S…
[2] A presumption of unreasonable rejection of an offer of judgment arises if the final judgment is at least 25 percent less than the offer rejected, but this presumption is…
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Join FLexlaw to unlock all legal intelligence“In this consolidated appeal and cross-appeal taken from a final judgment entered on a jury verdict in a negligence action, and from a subsequent final judgment awarding fees and costs, we find reversible error only as to one issue, to wit: the award of fees and costs in favor of appellee/defendant, Michael Bradbury, was not supported by express findings that appellant/plaintiff, George Gray’s, rejection of Bradbury’s offer of judgment was unreasonable.”
Establishes the primary issue on appeal regarding the award of fees and costs.
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Join FLexlaw to unlock all legal intelligenceGeorge Gray sued Michael Bradbury for negligence. Before trial, Bradbury made an offer of judgment for $10,000, which Gray rejected. The jury returned…
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MICKLE, Judge.
In this consolidated appeal and cross-appeal taken from a final judgment entered on a jury verdict in a negligence action, and from a subsequent final judgment awarding fees and costs, we find reversible error only as to one issue, to wit: the award of fees and costs in favor of appellee/defendant, Michael Bradbury, was not supported by express findings that appellant/plaintiff, George Gray’s, rejection of Bradbury’s offer of judgment was unreasonable.
Prior to trial, Bradbury’s offer of judgment in the amount of $10,000.00 was rejected by Gray. The jury returned a verdict finding no negligence on Bradbury’s part. Bradbury then moved to tax attorney’s fees and costs pursuant to section 45.061(2), Florida Statutes, which provides:
If, upon a motion by the offeror within 30 days after the entry of the judgment, the court determines that an offer was rejected unreasonably, resulting in unnecessary delay and needless increase in the cost of litigation, it may impose an appropriate sanction upon the offeree. In making this determination the court shall consider all of the relevant circumstances at the time of the rejection, including:
(a) Whether, upon specific request by the offeree, the offeror had unreasonably refused to furnish information which was necessary to evaluate the reasonableness of the offer. (b) Whether the suit was in the nature of a “test-case,” presenting the questions of far-reaching importance affecting the nonparties.
[A]n offer shall be presumed to have been unreasonably rejected by a plaintiff if the judgment entered is at least 25 percent less than the offer rejected.
This section creates a presumption that a plaintiff has unreasonably rejected an offer if the judgment rendered is at least 25% less than the offer rejected. O’Neil v. Wal-Mart Stores, Inc., 602 So. 2d 1342 (Fla. 5th DCA 1992). By its terms, however, the presumption is not absolute and the trial court is required by the statute to consider “all of the relevant circumstances at the time of the rejection.” Id.; § 45.061(2), Fla.Stat. A losing plaintiff can overcome the presumption of unreasonable rejection. Id. Express findings supporting the unreasonable rejection conclusion are a prerequisite to meaningful appellate review of such fee awards. Id. In the present case, apparently swayed by Bradbury’s argument that the statute conferred no discretion on the issue of reasonableness where the verdict is 25% below the offer, the trial judge found that the offer was unreasonably rejected by Gray. Be cause the trial court did not support this conclusion with express written or oral findings, we are unable to determine whether the relevant factors were taken into consideration. We therefore reverse the order awarding fees and costs and remand for further proceedings consistent with O’Neil. See also Winn Dixie Stores, Inc. v. Elbert, 590 So. 2d 15 (Fla. 4th DCA 1991) (reversing and remanding with directions to trial court to determine first whether the offer was rejected unreasonably and then, if it finds it was, to determine an appropriate award of fees).
Finding no reversible error as to the remaining two issues raised in the main appeal, we affirm without discussion.
In the cross-appeal, Bradbury challenges that portion of the final judgment awarding fees and costs which disallows as taxable costs the amount of $30,519.67 representing expert witness costs. The prevailing party’s burden, at an evidentiary costs hearing, to recover an expert witness fee is “to present testimony concerning the necessity and reasonableness of the fee”. Powell v. Barnes, 629 So. 2d 185 (Fla. 5th DCA 1993). In Powell, as in the instant case, the prevailing parties sought to meet their burden at the evidentiary hearing by relying solely upon the testimony of “omnibus witnesses,” namely, a trial attorney and an insurance casualty claim manager, who were not shown to have proficiency in the various fields of expertise at issue (ranging from accident reconstruction to neurosurgery). The Powell court found that “[t]he plaintiffs were obligated to support their motion for the taxation of ... costs by substantial, competent evidence of the services performed and the reasonable value of those services,” and that the presentation of an “omnibus witness” was insufficient to meet this burden. Id. at 186. The Powell court explained:
... evidence must come from witnesses qualified in the areas concerned. The individual experts whose charges are at issue obviously would be qualified to provide such evidence; also, another qualified expert in the same field, properly informed from the trial record, could also offer competent proof of reasonableness and necessity sufficient, in and of itself, to establish a prima facie case.
Powell at 186. The rationale and holding in Powell have recently been adopted by the Third District Court of Appeal in Kendall Racquetball Investments, Ltd. v. Green Companies, Inc. of Florida, 657 So. 2d 1187 (Fla. 3d DCA 1995). Sub judice, the testimony of the attorney and the claims manager was insufficient to satisfy the requirement for substantial, competent evidence of the services performed and the reasonable value of those services. We therefore affirm that portion of the final judgment disallowing expert costs in the amount of $30,519.67.
AFFIRMED in part; REVERSED in part; and REMANDED for further proceedings.
JOANOS and LAWRENCE, JJ., concur.
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Chodorow v. Talmadge Moore, 947 So. 2d 577 (Fla. 4th DCA 2007)…he prevailing party and the party seeking the award of costs, it was the Chodorows who bore the burden of presenting competent, substantial evidence that their expert’s rate was reasonable and that the time spent was necessary. See Gray v. Bradbury, 668 So. 2d 296, 298 (Fla. 1st DCA 1996). A trial court’s determination regarding the appropriate amount of a costs award is reviewed on appeal for an abuse of discretion. See Ocean Club Cmty. Ass’n v. Curtis, 935 So. 2d 513, 517 (Fla. 3d DCA 2006). On this record,…
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Mangel v. BOB Dance Dodge, Inc., 739 So. 2d 720 (Fla. 5th DCA 1999)…tigating the amount of his costs, for which he is entitled to fees. However, Mangel had the burden of showing the amount of fees and/or costs he was entitled to recover. See Sullivan v. Sullivan, 677 So. 2d 986 (Fla. 5th DCA 1996); Gray v. Bradbury, 668 So. 2d 296 (Fla. 1st DCA 1996). By failing to separate or apportion the recoverable fees from the nonrecoverable fees, he failed in his burden. Mangel also argues that he has an interest in passing his fee obligations on to defendants, since his fee agreement…
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Golian v. Tom Wollschlager, D.M.D., 893 So. 2d 666 (Fla. 1st DCA 2005)…pert witness fee without an eviden-tiary hearing, the prevailing party [is required] to present testimony concerning the necessity and reasonableness of the fee.” Lafferty v. Lafferty, 413 So. 2d 170, 171 (Fla. 2d DCA 1982). Accord Gray v. Bradbury, 668 So. 2d 296, 298 (Fla. 1st DCA 1996); Thunderbird, Ltd. v. Great Am. Ins. Co., 566 So. 2d 1296, 1303 (Fla. 1st DCA 1990). Such testimony must come from witnesses qualified in the area concerned, such as the experts who did the work or other qualified experts in…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Powell v. Barnes, 629 So. 2d 185 (Fla. 5th DCA 1993)
- Winn Dixie Stores, Inc. v. Elbert, 590 So. 2d 15 (Fla. 4th DCA 1991)
- Kendall Racquetball Invs., Ltd. v. The Green Cos., 657 So. 2d 1187 (Fla. 3d DCA 1995)
- O'Neil v. Wal-Mart Stores, Inc., 602 So. 2d 1342 (Fla. 5th DCA 1992)