DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
WOODBRIDGE HOLDINGS, LLC,
Appellant,
v.
PRESCOTT GROUP AGGRESSIVE SMALL CAP MASTER FUND, G.P.,
RAVENSWOOD INVESTMENTS III, L.P., THE RAVENSWOOD
INVESTMENT COMPANY, L.P., and WILLIAM J. MAECK, et al.,
Appellees.
No. 4D13-1262
[August 12, 2015]
Appeal and cross-appeals from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Carol-Lisa Phillips, Judge; L.T. Case No.
09064811CACE25.
Darrell W. Payne, Eugene E. Stearns and Carlos J. Canino of Stearns
Weaver Miller Weissler Alhadeff & Sitterson, P.A., Miami, for appellant/
cross-appellee.
Amy Brigham Boulris, Allison J. Cammack, Raymond V. Miller and
Angel A. Cortiñas of Gunster, Yoakley & Stewart, P.A., Miami, for
appellee/cross-appellant Prescott Group Aggressive Small Cap Master
Fund.
James Sandnes and Tammy Yuen of Skarzynski Black LLC, New York,
NY; and Paul Joseph McMahon of Paul Joseph McMahon, P.A., Miami, for
appellee/cross-appellants Ravenswood Investments III, Ravenswood
Investment Company, and William J. Maeck.
KLINGENSMITH, J.
Woodbridge Holdings, LLC (“Woodbridge”) appeals from the trial court’s
corrected final judgment entered after a statutory valuation appraisal
proceeding arising under Florida’s dissenting shareholder appraisal rights
statute. Thereafter, Prescott Group Aggressive Small Cap Master Fund,
G.P., Ravenswood Investments III, L.P., The Ravenswood Investment
Company, L.P., and William J. Maeck (“Appellees”) cross-appealed from
the trial court’s corrected final judgment. The trial court rendered its
written findings of fact and conclusions of law, determining the fair value
of the dissenters’ shares and making an assessment of fees and costs
against Woodbridge on the grounds that Woodbridge failed to comply with
the fair offer provisions of section 607.1322, Florida Statutes, and/or
acted “arbitrarily” or “not in good faith.” In a subsequent order, the trial
court confirmed its award of interest at the fixed rate of 8%, finding that
this was the statutory interest rate on the date of the 2009 merger of
Woodbridge into a wholly-owned subsidiary of another company. We
affirm on these issues presented on appeal and cross-appeal, respectively.
Because the trial court was confronted with a variety of evidence and
methodologies, and was tasked with weighing the credibility of witnesses
and their valuation techniques following a lengthy bench trial, we find that
the trial judge’s detailed orders, replete with findings of fact, were
supported by sufficient evidence that the fair value of the dissenters’
shares was $1.78 per share. See G&G Fashion Design, Inc. v. Garcia, 870
So. 2d 870, 872 (Fla. 3d DCA 2004) (affirming trial court’s valuation
method because it was supported by competent, substantial evidence).
Further, the court’s determination that Woodbridge did not substantially
comply with the fair value offer provisions of section 607.1322 also was
supported by sufficient evidence that Woodbridge’s initial offer to the
dissenting shareholders was not the product of an analysis using
customary valuation techniques. See § 607.1301(4) (defining “fair value”
as a value “determined . . . [u]sing customary and current valuation
concepts and techniques . . . .”); Hausman v. Rudkin, 268 So. 2d 407, 409-
10 (Fla. 4th DCA 1972) (“Having found competent substantial evidence to
support the factual conclusions necessarily made by the trial court and
having discerned no error as a matter of law, we must affirm the final
judgment.”).
Woodbridge also appeals the trial court’s award of fees for one of
appellee Ravenswood’s real estate experts, John Burns, who did not testify
at trial. Woodbridge argues that under the Statewide Uniform Guidelines
it is not appropriate to tax non-testifying expert fees. We agree. In
Thellman v. Tropical Acres Steakhouse, Inc., this court held: “It is not
appropriate to tax as costs the fees of witnesses who are neither qualified
as experts by the court nor testify at trial.” 557 So. 2d 683, 684 (Fla. 4th
DCA 1990) (citing KMS of Fla. Corp. v. Magna Props., Inc., 464 So. 2d 234,
235 (Fla. 5th DCA 1985)). In KMS, the Fifth District reversed an expert fee
award because the expert did not testify at trial, even though the expert
was prepared to testify if needed. 464 So. 2d at 235. Further, in Delmonico
v. Crespo, we held:
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The Statewide Uniform Guidelines for Taxation of Costs in
Civil Actions advise that expenses for expert witnesses who
testify should be taxed, while expenses related to consulting
but non-testifying experts should not be taxed. In re
Amendments to Uniform Guidelines for Taxation of Costs, 915
So. 2d [612, 616-17 (Fla. 2005)]; see also Broward Cnty. v.
LaPointe, 685 So. 2d 889, 893 (Fla. 4th DCA 1996) (fees
attributable to services as a litigation consultant were not
recoverable under section 73.091, which authorizes an award
of costs in eminent domain cases). Because the accountants
at the CPA firm were consulting experts and not testifying
experts, those expenses should not have been taxed.
127 So. 3d 576, 579 (Fla. 4th DCA 2012).
We disagree with appellee Ravenswood’s assertion that section
607.1331 provides a basis for taxation of such costs regardless of the
Uniform Guidelines. The Uniform Guidelines expressly allow for taxation
of fees and expenses relating to testifying expert witnesses only, and they
exclude any expenses relating to consulting, but non-testifying, experts.
See In re Amendments to Uniform Guidelines for Taxation of Costs, 915 So.
2d at 616-17. Therefore, the trial court’s award of costs for John Burns’
fees should be reversed.
Affirmed in part; Reversed in part.
TAYLOR and MAY, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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