FL Trial Lawyers -The Reality of Recoverable Costs
Ideally, this article will be utilized frequently by our readers in the near future. You have battled the adjuster, the defense attorney, the judge, and the jury and won a victory for your client; and to the victor goes the spoils. Hopefully, you filed a proposal for settlement entitling you to fees, but regardless, as the prevailing party, you are entitled to reimbursement of your reasonable costs.
Pursuant to Florida Statute 57.041, a prevailing party is entitled to reimbursement of costs as follows:
1.The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment; but this section does not apply to executors or administrators and actions when they are not liable for costs.
2.Costs may be collected by execution on the judgment or order assessing costs.
The main guidance we have as far as what is a recoverable cost is provided in the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions, which were originally adopted on October 28, 1981, and set out in full in Reeser v. Boats Unlimited, Inc., 432 So. 2d 1346 (Fla. 4th DCA 1983). Unfortunately, these Guidelines will lead you down an disheartening path, as they generally are very restrictive regarding what qualifies as a recoverable cost. Thankfully, the Guidelines are meant as “guidelines” and the trial court may deviate from them if justice requires under the facts of a particular case. Madison v. Midland National Life Insurance Company, 648 So. 2d 1226, 1228 (Fla. 4th DCA 1995). There are dozens of cases defining what are recoverable costs that are exceedingly more liberal and explanatory than the Guidelines. The items addressed below are far from comprehensive, but certainly addresses a number of scenarios that frequently arise during litigation.
As a general rule, a cost item is taxable where it can be shown to relate to matters that serve a “useful purpose” in the litigation process and is directly related to the trial or the development of a party’s case. See Schumacher v. Wellman, 415 So. 2d 120, 122, (Fla. 4th DCA 1982) and Winn Dixie Stores, Inc. v. Vote, 463 So. 2d 459, 460 (Fla. 2nd DCA 1985). In determining the taxability of the cost item, the Court is to consider the reasonableness of the amount and the necessity of the item. See Keener v. Dunning, 238 So. 2d 113, 114 (Fla. 4th DCA 1970).
As it relates to demonstrative aides, the costs for preparation of such exhibits are taxable if the demonstrative evidence is relevant, presented at trial and assists in the educational process of the jury. See Vogel v. Allen, 443 So. 2d 368, 370 (Fla. 5th DCA 1983), where the Court reimbursed Plaintiff for the demonstrative aide of a city map used in a case contesting the validity of a recorded plat. In Orlando Regional v. Chmielewski, 573 So. 2d 876, 883 (Fla. 5th DCA 1991), the court awarded costs for demonstrative aides in the amount of $5,500.00 as they were “useful at trial because to a certain degree we are in an educational process”.
The cost of depositions may be taxable if the deposition served a useful purpose, even if not offered into evidence. See Otis Elevator Co. v. Bryan, 489 So.2d 1189, 1190 (Fla. 1st DCA 1986); Winn Dixie Stores, Inc. v. Vote, 463 So. 2d 459 (Fla. 2nd DCA 1985); Schumacher v. Wellman, supra at 122 and Willey v. M.K. Roark, Inc., 616 So.2d 1140 (Fla. 4th DCA 1993) (court taxed three depositions even though the appellant did not use two of the depositions and used the third only for impeachment purposes). Moreover, the costs of copies of depositions may be taxable if the copies served a useful purpose. See Schumacher supra at 122 and State Farm v. Sampaio, 374 So. 2d 617 (Fla. 4th DCA 1979). Pursuant to the Guidelines, section seven, copies of documents, aside from depositions, that are filed in the Court file or received into evidence during the course of the trial are taxable.
As it relates to expert witnesses, charges associated with the experts’ research, inspection, and examinations performed in order to enable the expert witness to testify, as well as costs associated with preparation of trial exhibits used by the experts, are allowable costs. See Seabrooks v. Winn Dixie Stores, Inc., 745 So.2d 1039, 1040 (Fla. 1st DCA 1999) and Bystrom v. Florida Rock Industries, Inc., 513 So. 2d 742, 743 (Fla. 3rd DCA 1987) (court held that pursuant to Florida Statute 92.231(2) Defendant was entitled to reimbursement of expert witness time in the amount of 62.5 hours in defending a tax assessment case). Also in Travieso v. Travieso, 474 So. 2d 1184 (Fla. 4th DCA 1985), the Court held that expert fees may be awarded in complex cases when the preparation for testifying is lengthy and burdensome.
Another strategy to remember when seeking to recover taxable costs is the denial of a request for admission. While Florida Statute 57.041 governs costs as the prevailing party, Florida Rule of Civil Procedure 1.380(c) imposes costs and fees for a party’s unwarranted denial of a request to admit. If a party denies the request for admission pursuant to Florida Rule of Civil Procedure 1.370 and the requesting party subsequently proves the truth of the matter, the requesting party may move the court to order the opposing party to pay the reasonable expenses incurred in making the proof, including attorney fees. The court shall issue such an order absent finding the request was held objectionable pursuant to rule 1.370(a), the admission sought was of no substantial importance or that was other good reason to deny the admission. Moreover, in Tripp Construction Inc. v. Verde, 789 So.2d 1171 (Fla 3rd DCA 2001), the court held that the award of attorneys fees was appropriate for the Plaintiff proving matters the defense denied in a request for admissions and approved the imposition of a 2.5 multiplier.
It is important to remember that the Judge will have tremendous discretion in awarding taxable costs, and most are brainwashed by the Guidelines. Always include a memorandum of law to your motion to tax costs citing the above cases and attach your invoices as exhibits to support your argument at the hearing.