DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
The Estate of ELFRIEDE Z. SWEENEY,
deceased, and STATE FARM MUTUAL
INSURANCE COMPANY,
Appellants,
v.
GLORIA R. WASHINGTON,
Appellee.
Nos. 2D20-1848 & 2D20-2520
CONSOLIDATED
September 3, 2021
Appeal from the Circuit Court for Polk County; John M. Radabaugh
and Gerald P. Hill, II, Judges.
DeeAnn J. McLemore and Charles W. Hall of Banker Lopez Gassler,
P.A., St. Petersburg; and J. Emory Wood of Wood & Wood, P.A., St.
Petersburg, for Appellants.
David F. Anderson of Burnetti, P.A., Lakeland, for Appellee.
SILBERMAN, Judge.
In a negligence action arising from an automobile accident, the
Estate of Elfriede Z. Sweeney, deceased (the Estate), and State Farm
Mutual Insurance Company (State Farm) appeal a final judgment
for attorney's fees and costs in favor of Plaintiff Gloria Washington.1
They contend that the trial court erred in determining that Sweeney
was entitled to recover attorney's fees under section 768.79, Florida
Statutes (2018), because the court miscalculated the "judgment
obtained" by including preoffer costs that were not taxable on the
date Washington's proposal for settlement was served. We agree
and reverse the award of attorney's fees. However, we affirm the
trial court's award of costs to Washington as prevailing party and
remand for entry of a corrected judgment that awards costs.
Washington served her proposal for settlement on the Estate
on March 21, 2019, and the Estate did not accept the proposal.
After receiving a jury verdict and judgment in her favor against the
Estate, Washington filed a motion to tax costs as prevailing party
and a motion for attorney's fees and costs based on her proposal for
settlement. In her fee motion she asserted that she was entitled to
1 The Estate and State Farm filed separate appeals, and this
court consolidated them for all purposes.
2
recover her fees because her "judgment obtained" exceeded the
threshold under section 768.79 when all taxable costs incurred
before service of the proposal were included. At issue are the
prepayment of deposition fees for Dr. Daniel Murphy and Dr.
Davide Rosenbach. Washington prepaid the expert fees prior to
service of her proposal, but both depositions were taken after
service of the proposal. It is undisputed that if those prepaid expert
fees are not included in the calculation, the judgment obtained
would be below the threshold to trigger a fee award under section
768.79.
Before the hearing on Washington's fee motion, the Estate filed
Dr. Rosenbach's fee schedule which expressly provides that
prepayment for his deposition was due seven days in advance and
was only "[n]on-refundable when cancelled within 72 hours." His
"Cancellation Policy" unambiguously states that "72-hour notice of
cancellation required for all appointments, otherwise payment for
services is due for consultations and pre-payment becomes non-
refundable for depositions and trial testimony." The Estate also
filed Dr. Murphy's prepayment invoice which states: "All fees must
be prepaid 72 hours prior to scheduled appointment. Cancelation
3
less than 48 hours or a no show will result in retention of the
prepaid fee."
At the hearing before Judge Radabaugh, the Estate relied on
and referred to the fee schedule and invoice. Washington contends
on appeal that the documents were not formally admitted into
evidence, but she posed no objection at the hearing.2 Washington
presented no evidence on the doctors' cancellation policies.
Washington's counsel just speculated that "maybe they would've
gotten a refund, who knows."
On May 15, 2020, Judge Radabaugh entered an order finding
that because the Estate did not present either doctor's testimony,
"the Court was presented with limited evidence to find that Dr.
Rosenbach and Dr. Murphy's pre-paid deposition fee would have
been refunded." The trial court found that their prepaid deposition
fees were preoffer taxable costs included in the "judgment obtained"
calculation. Based on that decision, the judgment obtained
exceeded the necessary threshold, and the trial court awarded
2Earlier in the hearing, Washington's counsel noted that he
would be filing his exhibit later because "we're doing this over the
phone during the pandemic."
4
attorney's fees to Washington based on her proposal for settlement.
State Farm was subsequently joined as a defendant. On July 27,
2020, Judge Hill entered the final judgment for attorney's fees and
costs against both the Estate and State Farm.
Appellate review of a question of law regarding the entitlement
to a fee award under section 768.79 is de novo. See Saterbo v.
Markuson,
210 So. 3d 135, 138 (Fla. 2d DCA 2016); Matrisciani v.
Garrison Prop. & Cas. Ins. Co.,
298 So. 3d 53, 59 (Fla. 4th DCA
2020), review denied, No. SC20-1196,
2020 WL 6888127 (Fla. Nov.
24, 2020). To the extent that the trial court's ruling is based on
factual findings, our review is for competent, substantial evidence.
See Jarrard v. Jarrard,
157 So. 3d 332, 337 (Fla. 2d DCA 2015)
(explaining that when employing a mixed standard of review "the
appellate court reviews the findings of fact to assure they are
supported by competent, substantial evidence"); R.J. Reynolds
Tobacco Co. v. Lewis,
275 So. 3d 747, 751 (Fla. 5th DCA 2019)
(stating that competent, substantial evidence must support costs
awarded); Webber v. D'Agostino,
251 So. 3d 188, 191 (Fla. 4th DCA
2018) (applying a mixed standard of review to a fee and cost award).
5
Section 768.79(6)(b) provides that when a defendant does not
accept an offer and "the judgment obtained by the plaintiff is at
least 25 percent more than the amount of the offer, the plaintiff" is
entitled to recover her postoffer attorney's fees and costs. Those
amounts are to be "calculated in accordance with the guidelines
promulgated by the Supreme Court." § 768.79(6)(b). Because
section 768.79 is "penal in nature" and because it is "in derogation
of the common law rule that a party is responsible for its own
attorney's fees," the statute "must be strictly construed." Diamond
Aircraft Indus., Inc. v. Horowitch,
107 So. 3d 362, 372 (Fla. 2013).
Washington argues that the trial court must look at all costs
claimed to determine whether each was taxable; then the court
must "draw a line in the sand" as to the service date of the proposal
and add to the verdict all of the taxable costs before that service
date to calculate the judgment obtained. Washington contends that
because the expert fees were prepaid before service of the proposal,
those fees should be included in the calculation.
The Estate contends that there is a distinction between the
determination of which costs are taxable for purposes of triggering a
proposal and which costs are taxable overall for a prevailing party.
6
The Estate argues that if it had accepted the proposal when it was
served, both depositions would have been canceled and the
prepayments would have been fully refunded to Washington based
on each doctor's cancelation policy.
In making their arguments, both parties rely upon White v.
Steak & Ale of Florida., Inc.,
816 So. 2d 546 (Fla. 2002). In White,
the Florida Supreme Court addressed the question of "whether a
prevailing party's pre-offer taxable costs are included for purposes
of calculating the 'judgment obtained.' "
Id. at 549. Washington
relies upon the court's statement that "in calculating the 'judgment
obtained' for purposes of determining whether the party who made
the offer is entitled to attorneys' fees, the court must determine the
total net judgment, which includes the plaintiff's taxable costs up to
the date of the offer."
Id. at 551. However, the Estate points out
that the Florida Supreme Court expressly stated, "[W]e conclude
that the 'judgment obtained' pursuant to section 768.79 includes
the net judgment for damages and any attorneys' fees and taxable
costs that could have been included in a final judgment if such final
judgment was entered on the date of the offer."
Id. (emphasis
added). In reaching this conclusion, the court explained that in
7
considering an offer "the party necessarily must evaluate not only
the amount of the potential jury verdict, but also any taxable costs,
attorneys' fees, and prejudgment interest to which the party would
be entitled if the trial court entered the judgment at the time of the
offer or demand."
Id. at 550 (emphasis added).
Applying White, the Fifth District determined that a trial court
erred in finding that the plaintiff surpassed the threshold for an
attorney's fee award under section 768.79(6)(b). Lewis, 275 So. 3d
at 749-50. The trial court had included costs related to four
experts in order to calculate the judgment obtained. Id. at 749.
The plaintiff had retained the four experts, but they "had not
testified or been deposed at the time the [proposal for settlement]
was served." Id. The court stated that White made it clear that "a
court may only properly consider those costs that were already
taxable" on the date of a proposal. Id.
To determine the judgment obtained under section
768.79(6)(b), the taxable costs must be determined in accordance
with the Florida Supreme Court's Uniform Guidelines for Taxation
of Costs. Lewis, 275 So. 3d at 749. Under those guidelines, "costs
for an expert witness's deposition and/or trial testimony should be
8
taxed, while any expense relating to a consulting but non-testifying
expert should not be taxed." Id. at 749-50 (citing In re Amends. to
Unif. Guidelines for Tax'n of Costs,
915 So. 2d 612, 616–17 (Fla.
2005)). The Lewis court concluded that "costs for non-testifying
experts are nontaxable."
Id. at 750.
Here, we must view the costs as to whether they were taxable
at the time Washington served her proposal on March 21, 2019.
See White,
816 So. 2d at 551. The fact that the experts' deposition
fees were prepaid before that date does not necessarily mean that
they were taxable as costs for purposes of an attorney's fee award
under section 768.79. Washington, as the moving party, had the
burden "to show that all requested costs were reasonably necessary
either to defend or prosecute the case at the time the action
precipitating the cost was taken." In re Amends. to Unif. Guidelines
for Tax'n of Costs,
915 So. 2d at 614; see also Paul N. Howard Co. v.
Camp, Dresser, & McKee, Inc.,
91 So. 3d 252, 253 (Fla. 5th DCA
2012). Washington thus had the burden to establish that the
doctors' deposition fees were reasonably necessary. When the
proposal was served, neither doctor's deposition had been taken.
9
Thus, their fees at the time of the proposal would not have been
taxable under the guidelines. See Lewis, 275 So. 3d at 750.
It would also be Washington's burden to establish an
exception to the guidelines' provision that expenses relating to
nontestifying experts should not be taxed as costs. Arguably,
expert deposition fees could be taxed in the trial court's discretion
if, for example, the moving party established that it was necessary
to prepay the deposition fee in order to get on the expert's schedule
and that the payment was nonrefundable. See In re Amends. to
Unif. Guidelines for Tax'n of Costs,
915 So. 2d at 614 (recognizing
the discretionary nature of the trial court's taxation of costs). But
Washington did not establish that here. She presented no
competent, substantial evidence that the two payments were
nonrefundable.
Rather, the Estate filed a fee schedule and a payment invoice
and relied on them at the hearing, to which Washington lodged no
objection. The language on the fee schedule and invoice is
unambiguous as to when a prepayment becomes nonrefundable.
On March 21, 2019, neither prepayment was nonrefundable. Thus,
10
it follows that the prepayments were refundable if the depositions
had been cancelled on March 21, 2019.
We conclude that the two prepaid expert deposition fees are
not taxable for purposes of a fee award under section 768.79(6)(b).
Thus, the trial court erred by including those expert deposition fees
in the calculation for the judgment obtained. Without those two
deposition fees in the calculation, it is undisputed that the
judgment obtained falls below the statutory threshold to trigger a
fee award under section 768.79(6)(b). Thus, we reverse the trial
court's May 15, 2020, order to the extent that it granted
Washington's motion for attorney's fees and awarded fees, and we
reverse the July 27, 2020, final judgment for attorney's fees and
costs to the extent that it awarded attorney's fees to Washington.
We affirm the May 15 order to the extent that it grants
Washington's motion to tax costs as prevailing party, and we affirm
the July 27 final judgment to the extent that it awards those
prevailing party costs to her. We direct the trial court on remand to
enter a corrected judgment for costs.
Affirmed in part, reversed in part, and remanded.
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KELLY and SLEET, JJ., Concur.
Opinion subject to revision prior to official publication.
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