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June 9, 2017 by admin

Costs — Trial court erred in including in costs awarded to prevailing party the cost of digital video editing and fees for six experts — Plaintiff failed to show video editing was reasonably necessary to prosecute the action and failed to offer any testimony in support of request for expert witness fees, even in face of opposing party’s objections

42
Fla. L. Weekly D1234a
Top of Form

Costs
— Trial court erred in including in costs awarded to prevailing party the cost
of digital video editing and fees for six experts — Plaintiff failed to show
video editing was reasonably necessary to prosecute the action and failed to
offer any testimony in support of request for expert witness fees, even in face
of opposing party’s objections

BOB GUALTIERI, in his official
capacity as Sheriff of Pinellas County, Appellant, v. TIMMIE LEIGH KEYSER,
Individually, and as Personal Representative of the Estate of RICHARD N.
KEYSER, deceased, Appellee. 2nd District. Case No. 2D15-2112. Opinion filed May
31, 2017. Appeal from the Circuit Court for Pinellas County; Bruce Boyer,
Judge. Counsel: Della M. Connolly, Largo, for Appellant. Joel D. Eaton of
Podhurst Orseck, P.A., Miami, and Brennan, Holden & Kavouklis, P.A., Tampa,
for Appellee.

(KELLY, Judge.) Pinellas County
Sheriff, Bob Gualtieri, appeals from the final judgment awarding costs to
Timmie Leigh Keyser. The Sheriff challenges two aspects of the award — the
cost of digital video editing and the fees awarded to six experts. We agree the
trial court should not have awarded these costs and therefore reverse and
remand with directions to strike those portions of the cost judgment.

After prevailing at trial, Keyser
filed a motion to tax costs. The Sheriff filed a detailed response to the cost
motion listing each individual cost item Keyser sought to recover, the amount
of the item, and the Sheriff’s specific objection, if any, to each item. At the
first hearing on the cost motion, the trial court determined Keyser was
entitled to recover her costs, but it set another hearing to determine which
costs she could recover. Both in his objections and at the initial hearing the
Sheriff advised the trial court and opposing counsel of the need for an
evidentiary hearing regarding reasonableness of the expert witness fees. The
Sheriff also explained in detail why Keyser had not met her burden to show the
video editing costs were reasonably necessary. However, when the parties
appeared for the second cost hearing, Keyser offered no evidence in support of
any of these requests.

The Statewide Uniform Guidelines for
Taxation of Costs requires the party requesting costs to demonstrate the cost
was “reasonably necessary either to defend or prosecute the case at the time
the action precipitating the cost was taken.” In re Amendments to Unif.
Guidelines for Taxation of Costs
, 915 So. 2d 612, 614 (Fla. 2005). The
Sheriff argues Keyser did not meet her burden to show the video editing was
reasonably necessary to prosecute the action. We agree. See Nasser v.
Nasser
, 975 So. 2d 531, 532 (Fla. 4th DCA 2008) (affirming the denial of
costs of depositions where the moving party failed to meet her burden in the
trial court to show that the requested costs were reasonably necessary); cf.
Winter Park Imps., Inc. v. JM Family Enters., Inc., 77 So. 3d 227,
231-32 (Fla. 5th DCA 2011) (affirming costs for certain transcripts and
depositions where lead counsel testified via affidavit and without objection as
to the reasonableness and necessity of the costs). Accordingly, this portion of
the cost award must be stricken.

The Guidelines allow a party to
recover a reasonable fee for expert testimony. “[U]pon the specific objection
to the setting of an expert witness fee without an evidentiary hearing, the
prevailing party will have to present testimony concerning the necessity and
reasonableness of the fee.” Lafferty v. Lafferty, 413 So. 2d 170, 171
(Fla. 2d DCA 1982). In his written response to Keyser’s cost motion and at the
first cost hearing the Sheriff made his objection to Keyser’s expert witness
fees known. He argued repeatedly that Keyser had the burden to prove the
reasonableness and necessity of the six experts’ fees and, citing Lafferty,
he argued she had to do so by offering testimony at an evidentiary hearing. At
every turn the Sheriff made it known that he objected to setting the experts’
fees without an evidentiary hearing. Because Keyser, even in the face of the
Sheriff’s objections, failed to offer any testimony whatsoever in support of
her request for expert witness fees, the fees for those experts must also be
stricken from the cost judgment.

Reversed and remanded for entry of a
cost judgment consistent with this opinion. (CASANUEVA and CRENSHAW, JJ.,
Concur.)

* * *

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