LEE COUNTY, FLORIDA, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, APPELLANT,
v.
GALAXY FIREWORKS, INC., A FLORIDA CORPORATION, APPELLEE
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Lee County appealed a trial court's award of costs to Galaxy Fireworks after Galaxy successfully challenged a county ordinance. The appellate court reversed the cost award, holding that expert witness fees and an administrative appeal filing fee were not authorized by statute or rule.
The court held that the expert witness fees were not authorized because none of the witnesses testified at trial or were deposed, and no statute or rule authorized fees based on testimony before an administrative body or preparation for testimony that never occurred. The court also held that the administrative appeal filing fee was not recoverable as a cost because it was incurred in a separate administrative proceeding, not in the civil action itself.
[1] Costs are awardable only as provided by statute or rule.
[2] Expert witness fees are taxable as costs only if the expert testified at the civil trial or was deposed.
Previewing 2 of 6 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“costs are expenses incurred in prosecuting or defending an action. Certain Lands v. City of Alachua, 518 So.2d 386, 389 (Fla. 1st DCA 1987). They are awardable only as provided by statute or rule.”
Establishes the foundational principle that costs must be authorized by statute or rule and are limited to expenses incurred in the action itself.
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Join FLexlaw to unlock all legal intelligenceGalaxy Fireworks challenged a Lee County ordinance in circuit court and prevailed. The trial court awarded Galaxy costs including three expert witness…
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NORTHCUTT, Judge.
Lee County contests certain costs awarded to Galaxy Fireworks, Inc. after Galaxy successfully challenged a county ordinance in circuit court. We agree that the disputed costs were not authorized, and reverse.
The county first complains that Galaxy should not have been awarded three expert witness fees.
We begin with the premise that costs are expenses incurred in prosecuting or defending an action. Certain Lands v. City of Alachua, 518 So. 2d 386, 389 (Fla. 1st DCA 1987). They are awardable only as provided,by statute or rule. Israel v. Lee, 470 So. 2d 861 (Fla. 2d DCA 1985).
Section 92.231(2), Florida Statutes (1995), permits expert witness fees to be taxed as costs. The statute, however, defines an expert witness as one who offers himself or herself as an expert witness in a civil action, and is permitted to testify. § 92.231(1), Fla. Stat. (1995). None of these witnesses testified at the civil trial in this ease. Florida Rule of Civil Procedure 1.390(c) also provides that an expert witness whose deposition is taken shall be allowed a witness fee, but, again, none of these witnesses was deposed.
Galaxy does not contend that either section 92.231 or rule 1.390 authorizes fees for these witnesses. Instead, it claims that fees were properly taxed for two of the experts because they testified before the Lee County Commission when it was considering whether to adopt the ordinance that Galaxy later challenged in the circuit court proceeding, and a transcript of the commission proceeding was introduced in the civil case. Galaxy asserts that fees for the third expert were awardable because it prepared him to testify at a hearing on Lee County’s motion for rehearing, although he never actually testified.
We reject Galaxy’s positions on all three expert witnesses. Galaxy does not re fer us to a rule or statute that would authorize an award of fees under these circumstances, nor have we found any.
The trial court abused its discretion in awarding expert witness fees of $682.00 to Benjamin Withers & Associates, $2,000.00 to Pyrolabs, Inc. and $695.00 to Tom Egan.
Therefore, we reverse that portion of the cost award.
Lee County next challenges the court’s decision to award, as a cost in the civil action, the $700.00 filing fee Galaxy paid to institute an administrative appeal of the county’s denial of its application for a tent permit to sell fireworks. As with the other costs, court costs are taxable only if authorized by statute or rule. Lake Region Paradise Island, Inc. v. Graviss, 323 So. 2d 610, 612 (Fla. 2d DCA 1975).
The Lee County Hearing Examiner dismissed the appeal after determining that she had no jurisdiction to decide the constitutional issues Galaxy raised. Galaxy then filed its declaratory action in circuit court. This was, however, an entirely new proceeding; the circuit court was not acting in an appellate capacity to review the hearing examiner’s determination. The fee paid to pursue the administrative appeal was not an expense incurred in prosecuting the civil action. See Certain Lands, 518 So. 2d at 389. No rule or statute permits recovery of costs incurred in an administrative appeal that was not a part of the civil action. See §§ 57.021, 57.041, Fla. Stat. (1995).
Accordingly, we reverse the trial court’s award of $700.00 for the administrative appeal filing fee.
Reversed and remanded.
DANAHY, A.C.J., and THREADGILL, J., concur.
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Moakley v. Smallwood, 826 So. 2d 221 (Fla. 2002)…des for compensation of expert witnesses. However, the record does not reflect that Smallwood was offered as an expert or permitted by the court to qualify and testify as such, as required by section 92.231. See Lee County v. Galaxy Fireworks, Inc., 698 So. 2d 1371, 1372 (Fla. 2d DCA 1997); Thellman v. Tropical Acres Steakhouse, Inc., 557 So. 2d 683, 684 (Fla. 4th DCA 1990). Thus, the award cannot be upheld on that basis. Smallwood also argues that the amount awarded to her is proper under section 92.151, Flo…
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Stratton v. Sarasota Cnty., 983 So. 2d 51 (Fla. 2d DCA 2008)…ounty’s code. Second, the term “costs” is not generally construed to include the costs of doing business. Instead, “costs” are generally intended to be “expenses incurred in prosecuting or defending an action.” Lee County v. Galaxy Fireworks, Inc., 698 So. 2d 1371, 1372 (Fla. 2d DCA 1997). The costs involved in “running the system” are not usually recoverable as part of a specific action against an individual. Cf. Mickler v. State, 682 So. 2d 607, 609 (Fla. 2d DCA 1996) (affirming the trial court’s denial of…
Authorities Cited
- Israel v. Dayle T. LEE, 470 So. 2d 861 (Fla. 2d DCA 1985)
- Lake Region Paradise Island, Inc. v. Graviss, 323 So. 2d 610 (Fla. 2d DCA 1975)
- Certain Lands upon which special assessments are delinquent v. City OF Alachua, 518 So. 2d 386 (Fla. 1st DCA 1987)