Powell v. Barnes
| Decision Date | 05 November 1993 |
| Docket Number | No. 93-130,93-130 |
| Citation | 629 So.2d 185 |
| Court | Florida District Court of Appeals |
| Parties | 18 Fla. L. Weekly D2351 Thomas POWELL and Jimmy W. Powell, Appellants, v. Bruce Lorenza BARNES and Alice W. Barnes, his wife, Appellees. |
Dudley D. Allen, Jacksonville, for appellants.
Robert J. Link of Pajcic & Pajcic, P.A., Jacksonville, for appellees.
The issue on this appeal is a simple one: What is a prevailing party's burden at an evidentiary cost hearing for recovery of expert witness fees?
In Lafferty v. Lafferty, 413 So.2d 170 (Fla. 2d DCA 1982), it was held that, upon specific objection to the setting of an expert witness fee without an evidentiary hearing (as in the instant case), the prevailing party will have to present testimony concerning the necessity and reasonableness of the fee. See also American Indem. Co. v. Comeau, 419 So.2d 670, 672 (Fla. 5th DCA 1982). Here, the prevailing plaintiffs, Barnes, sought to meet their burden at the evidentiary hearing by relying solely upon one "omnibus" witness, an experienced trial attorney, who was not shown to have expertise (i.e., training or experience) in the various fields of endeavor at issue such as metallurgy, accident reconstruction, forensic economics, rehabilitation, or video graphing. The defendants (Powell) objected to this unique tactic, and the trial judge initially indicated that whereas the trial attorney probably could testify as to the necessity for hiring the various witnesses for this particular litigation, he doubted that he could testify as to the necessity of their various work efforts and the reasonableness of their charges. Unfortunately, the trial judge receded from his initial view and accepted the trial attorney as an "omnibus" expert on everything. This clearly was error.
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. In re Lopez' Estate, 410 So.2d 618 (Fla. 4th DCA 1982). That was not done in this case. That 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.
Accordingly, we reverse that portion of the contested cost judgment of $114,026.85, and remand for entry of a cost judgment for the remaining amounts sought, together with a minimal hourly rate for recognized expert witnesses as provided by section 92.231, Florida Statutes (1991). Having been afforded one evidentiary hearing on costs, the plaintiffs are not entitled to a second bite at the apple. Florida Ventilated Awning Company v. Dickson, 67 So.2d 215 (Fla.1953); Florida Power and Light v. Flichtbeil, 513 So.2d 1078 (Fla. 5th DCA 1987); Wiley v. Wiley, 485 So.2d 2 (Fla. 5th DCA 1986); Van Der Noord v. Katz, 481 So.2d 1228 (Fla. 5th DCA 1985).
REVERSED AND REMANDED FOR...
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