STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. v. GLORIA R. WASHINGTON

• Court: District Court of Appeal of Florida
• Decided: September 3, 2021
• Docket: 20-2520
• Status: Published

Opinion

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.

11 KELLY and SLEET, JJ., Concur.

Opinion subject to revision prior to official publication.