OAK SQUARE JOINT VENTURE, A FLORIDA JOINT VENTURE PARTNERSHIP, APPELLANT,
v.
U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE FOR THE REGISTERED HOLDERS OF BANK OF AMERICA, NATIONAL ASSOCIATION-FIRST UNION NATIONAL BANK, COMMERCIAL MORTGAGE TRUST, COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2001-3, BY C-III ASSET MANAGEMENT LLC, A DELAWARE LIMITED LIABILITY COMPANY, IN ITS CAPACITY AS SPECIAL SERVICER PURSUANT TO THE CERTAIN POOLING AND SERVICING AGREEMENT DATED NOVEMBER 1, 2011, APPELLEES
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Oak Square challenges a foreclosure judgment and an award of attorneys' fees and costs. The court affirms the foreclosure and most of the fees award, but reverses and remands to strike expert witness costs that were awarded without proper evidentiary support.
The trial court erred in awarding expert witness costs because U.S. Bank presented insufficient evidence to support the costs. A prevailing party seeking expert witness costs must present testimony from either the expert whose charges are at issue or another qualified expert in the same field; testimony from an unqualified attorney is insufficient.
[1] A party seeking to recover expert witness fees must present testimony concerning the necessity and reasonableness of the fee.
[2] Testimony regarding the necessity and reasonableness of expert witness fees must come from witnesses qualified in the areas concerned.
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Join FLexlaw to unlock all legal intelligence“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.'”
Establishes the standard for recovering expert witness costs in fee disputes
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Join FLexlaw to unlock all legal intelligenceOak Square Joint Venture appealed a final judgment of foreclosure entered against it in favor of U.S. Bank National Association, as trustee for mortga…
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We have, sua sponte, consolidated these two appeals for dispositional purposes. In these appeals, Oak Square Joint Venture (“Oak Square”) challenges a final judgment of foreclosure and a final order awarding attorneys’ fees and costs. Oak Square raises several issues on appeal, all but one of which we affirm without comment. As to Appellant’s claim that the trial court erred in awarding Appellee, U.S. Bank National Association (“U.S.Bank”), expert witness costs, we agree and order that those costs be stricken from the fees and costs award.
“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.’ ” Gray v. Bradbury, 668 So.2d 296, 298 (Fla. 1st DCA 1996) (quoting Powell v. Barnes, 629 So.2d 185, 185 (Fla. 5th DCA 1993)). Importantly, “[t]hat evidence must come from witnesses qualified in the areas concerned.” Powell v. Barnes, 629 So.2d 185, 186 (Fla. 5th DCA 1993). “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.” Id.
*973Moreover, the movant’s burden to present specific evidence of reasonableness and necessity of expert witness costs arises by virtue of the motion going to an evidentiary hearing. See id. at 186 (“Given the necessity for an evidentiary hearing in regard to the contested costs of $114,026.85, the plaintiffs were obligated to support their motion for the taxation of those costs by substantial, competent evidence of the services performed and the reasonable value of those services.”).
Here, at the evidentiary hearing, U.S. Bank only presented testimony from one person: an attorney hired to testify as to the reasonableness of fees. Not only did this witness fail to present testimony regarding expert costs, he would not have been competent to testify as to expert costs in any event because he was not “a qualified expert in the same field.” See id.; see also Gray, 668 So.2d at 298 (“the testimony of the attorney and the claims manager was insufficient to satisfy the requirement for substantial, competent evidence of the [expert witness] services performed and the reasonable value of those services”).
Because U.S. Bank failed to present evidence supporting its request for expert witness costs, the trial court erred in awarding those costs. Accordingly, we direct the trial court to strike the expert witness costs from the fees and costs award. We affirm the final order awarding fees and costs in all other respects, and we affirm the final judgment of foreclosure in its entirety.
AFFIRMED in part; REVERSED in part; and REMANDED with instructions.
ROWE, MARSTILLER, and SWANSON, JJ., concur.
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The Field Club, Inc. v. Alario, 180 So. 3d 1138 (Fla. 2d DCA 2015)…necessary. “ ‘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.” ’ ” Oak Square Joint Venture v. U.S. Bank Nat’l Ass’n, 143 So. 3d 971, 972 (Fla. 1st DCA 2014) (quoting Gray v. Bradbury, 668 So. 2d 296, 298 (Fla. 1st DCA 1996)). That testimony “must come from witnesses qualified in the areas concerned.” Id. (quoting Powell v. Barnes, 629 So. 2d 185, 186 (Fla. 5th DCA 1993)). The ex…
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Hall v. Clay Cnty. Auto Parts, 192 So. 3d 1292 (Fla. 1st DCA 2016)…ix expert witnesses must be reversed because the only evidence regarding the reasonableness of such costs came from an attorney-witness who was not a qualified expert in the same [*1293] fields. See Oak Square Joint Venture v. U.S. Bank Nat'l Ass’n, 143 So. 3d 971, 972 (Fla. 1st DCA 2014) (explaining that evidence regarding the reasonableness of expert witness fees “must come from witnesses qualified in the areas concerned”). Based on the rule set forth in Oak Square we are compelled to reverse the costs awar…
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Belniak v. McWilliams, 263 So. 3d 262 (Fla. 5th DCA 2019)
Authorities Cited
- Powell v. Barnes, 629 So. 2d 185 (Fla. 5th DCA 1993)
- Gray v. Bradbury, 668 So. 2d 296 (Fla. 1st DCA 1996)