by Theodore C. Miloch, II
This article outlines the substantive and procedural aspects of taxation of costs in civil actions.
On September 23, 1981, the Florida Conference of Circuit Judges adopted the Statewide Uniform Guidelines for the Taxation of Costs in Civil Actions (Guidelines). The Guidelines do not alter the substantive law with regard to the entitlement to any item of costs,1 but were designed to assist the courts and the practitioner in determining the proper taxation of costs where the prevailing party’s right to costs is not dictated by contract or statute.2 The taxation of costs is within the discretion of the trial court and is not related to nor limited by the prevailing party’s degree of fault in the underlying action3 or their financial status.4
As a general rule, a cost item is taxable where it can be shown to relate to matters that serve a “useful purpose”5 in the litigation process and is directly related to the trial or the development of the party’s case.6 In determining the taxability of the cost item, the court is to consider the reasonableness of the amount and the necessity of the expense.7 Furthermore, both attorneys and courts have an obligation to keep costs within reasonable bounds.8 The court’s latitude in granting costs is dictated by the nature of the case.9 The prevailing party is not entitled to pre-judgment interest on taxable cost items.10
Costs may be taxed against a party who voluntarily dismisses an action pursuant to Florida Rule of Civil Procedure 1.420(d), where the defendant has either paid the costs or incurred the liability to do so.11 Costs recoverable following a voluntary dismissal are capped at an amount that reasonably would have been awarded had the case actually gone to trial. The trial court is required to determine which expenses would have reasonably been necessary for the actual trial, including expert-witness preparation costs. In determining the amount of costs which are properly taxable, the trial court is to reconstruct a trial strategy that a reasonable party would have developed in an actual trial and should award costs on the basis of that strategy. The court is not restricted to determining the least expensive strategy, but merely one that is reasonable. Additionally, the trial court may enhance an award where the party acted in bad faith in voluntarily dismissing the suit.12 It is improper for the trial court to deny the taxation of a cost item on the basis that the defendant will be able to use the item in the ongoing litigation,13 or that the costs were reimbursed by a third party.14 Also, where the plaintiff prevails in the trial following the voluntary dismissal, the plaintiff may recover the costs paid to the defendant which were not duplicated by the defendant in preparing for the second trial.15
Following a mistrial, the taxation of costs against the offending party is not a condition precedent to the commencement of the new trial of the matter.16 However, where a new trial was necessitated by the prevailing party in the second trial’s conduct in the first trial, costs associated with first trial are not recoverable by the prevailing party.17 Additionally, costs accruing because of the conduct of the prevailing party, whose conduct necessitated the second trial, can be deducted from the amount awarded in the final judgment.18
After a judgment has been entered or the action has been dismissed pursuant to Rule 1.420, the prevailing party may file a motion pursuant to F.S. §57.041 to tax costs. This motion must be filed with the trial court within a reasonable time after the case has been concluded.19 It should include a list of the items to be taxed together with the corresponding cost, the specific authority which provides for the taxation of the individual item, and supporting affidavits.
In order to properly object to the taxation of a particular cost item, the party may either assert its objection at the hearing on the motion to tax costs20 or file specific written objections prior to the scheduled hearing. In order to be entitled to an evidentiary hearing to determine the reasonableness of certain fees (i.e., expert witness, attorneys’ fees), the party must specifically object to the assessment of the cost item without an evidentiary hearing.21 Once this objection is raised, the prevailing party is required to present testimony22 by an expert with expertise in the area in which the costs are sought23 concerning the necessity and reasonableness of the fee.24 Where the opposing party fails to make the specific objection, the trial judge is free to set the fees based on their experience, observation of the witness, knowledge of the range of fees generally charged in the particular type of case, and review of the record.25
The exercise of the trial court’s discretion in taxing costs is subject to appellate review for an “abuse of discretion.”26 Where an order taxing costs has been entered after a voluntary dismissal, a petition for writ of certiorari is proper to seek review of the court’s order.27 After a voluntary dismissal, the trial court must entertain the motion to tax costs prior to the recom- mencement of the action upon motion of the nondismissing party.28
Specific Cost Items
The cost of depositions is properly taxable against the unsuccessful litigant where it is shown that the deposition was “reasonably necessary”29 and served a “useful purpose in the litigation process.”30 In order for the deposition to be considered “useful in the litigation process,” the deposition must encompass an issue tried by the court.31
The taxation of deposition costs is proper where the prevailing party can show that the deposition was used to prepare for trial,32 read to the jury,33 relied upon on a motion for summary judgment,34 entered into evidence, or used for impeachment purposes,35 except where the case is simple and noncontroversial.36 Limited use of a deposition for discovery purposes37 or in preparation for cross-examination of an expert witness is not sufficient.38
Costs of additional copies of a taxable deposition are generally not taxable39 unless it is shown that the copy served a “useful purpose.”40 Where the original was on file in the clerk’s office and available for examination by the party, taxation of the costs of a photocopy is not proper.41
• Expert Witnesses
Certain costs associated with the retention of an expert witness are properly taxable against the unsuccessful litigant where the expert served a useful purpose in determining an issue before the court.42 The expert served a “useful purpose” where his or her testimony is relied upon in a motion for summary judgment,43 where the expert testifies at trial,44 where the expert’s dep- osition is read at trial in lieu of live testimony,45 or where expert testimony is in the form of a proffer.46 Courts may tax as costs a reasonable expert witness fee even though the witness’ deposition or live testimony is not offered at trial.47 However, taxation of an expert’s fee is not proper where the expert witness is specifically employed merely to determine the merits of the party’s case.48 Where the prevailing party seeks to tax costs associated with an expert witness, the fees must be itemized so that charges not properly allowable can be identified. The request for an expert witness fee may be denied where the party fails to do so.49 Allowable costs include charges associated with the expert’s research, inspection, and examinations performed in order to enable the expert witness to testify,50 as well as costs associated with preparation of trial exhibits used by the expert.51
Expert witness charges for reports or conferences with an attorney prior to trial,52 time spent waiting at trial for convenience of the retaining attorney,53 and overhead, clerical, and/or administrative expenses attributable to expert witness are not properly taxable,54 nor is the expert witness fee charge for a deposition when the deposition is not used in whole or in part at trial.55 Furthermore, while travel expenses for out-of-state experts are taxable, the expert’s hourly rate for travel time is generally not taxable against the unsuccessful litigant.56
• Demonstrative Aids
In order for the costs of preparation of trial exhibits to be taxable, the demonstrative evidence must be relevant,57 presented at trial,58 and assist in the educational process of the jury.59 Furthermore, costs for preparation of demonstrative aids must be shown to be reasonable where a specific objection is made thereto.60
Costs for mediation are not properly taxable by the prevailing party unless the parties were required to submit to mediation pursuant to statute or court rule.61
• Medical Records
The districts are in conflict as to the proper standard under which medical records are taxable by the prevailing party. The First DCA allows costs of procuring medical records to be taxed where the medical records are admitted into evidence or where necessity is demonstrated.62 The Second DCA holds that the costs attendant to the procreation of medical records must be directly related to the trial and the development of the party’s case in order to be taxable.63 The Fourth DCA requires that hospital records must be used at trial or introduced into evidence for the costs to be taxable.64
• Court Reporter Fees/Transcripts
The court reporter’s attendance fee for pre-trial motion hearings and costs of transcription are properly taxable against the unsuccessful litigant where the court reporter and/or transcript serve a “useful and necessary purpose.”65 The court reporter’s attendance fee at trial is properly taxable pursuant to F.S. §57. However, where the daily trial transcript is transcribed, only the cost of those portions which are used for impeachment purposes should be taxed. Portions used for consultation with the client or other expert witnesses are not properly taxable.66
• Subpoena and Witness Fees
Subpoena costs associated with discovery are properly taxable where the subpoena was directly related to the trial and the development of the party’s case.67 In order for costs associated with trial subpoenas to be taxable, the witness must attend court, but need not testify.68
• Travel Expenses of Witnesses
Travel expenses of a nonexpert witness who resides outside of the state are properly taxable. The taxable costs are limited to the statutory mileage allowed for subpoenaed witnesses from the Florida state line to the city where the trial is held and the return, provided that the out-of-state witness testifies at trial.69 Witness fees for in-state and out-of-state nonexpert witnesses are limited to the witness fee provided in F.S. §92.142.
The cost of photocopies which are part of normal office expenses of counsel are not properly taxable against the unsuccessful litigant.70 The costs of photocopies of documents produced in response to discovery are generally not taxable71 except where the facts of the entire case warrant an award of the cost of the copies.72 Where copies of documents are filed with the court or received into evidence during the course of trial,73 or attached as exhibits to appellate briefs,74 taxation of cost by the prevailing party is proper.
• Miscellaneous Expenses
Generally, airfare and other personal or travel expenses of counsel to attend a deposition or document production out of the city or state in which the action is pending are not properly taxable by the prevailing party75 absent an agreement or statute providing recovery. However, courts have held that the guidelines do not provide an absolute bar to the taxation of costs associated with travel expenses for out-of-state depositions where warranted by the facts of the case.76
Surveillance film expenses are not properly taxable.77 Expedited delivery charges for the deposition transcript must be shown to be “useful or necessary” in order for additional cost to be taxable.78 Cost attendant to court reporters’ presence in reporting of an independent medical examination are properly taxed.79
The taxation of costs is ultimately within the discretion of the trial court. Where the party can show that the costs incurred were reasonably necessary and useful in the litigation process or cost item was admitted into evidence, the award of costs will not be reversed on appeal provided that the amount of the cost item was reasonable. Where the party seeking to tax costs cannot show that the item was directly related to the ultimate resolution of the case, the cost item should not be taxed. Additionally, courts and attorneys are reminded to keep costs within reasonable bounds.
1 KMS of Florida Court v. Magna Properties, 464 So. 2d 234, 235 (Fla. 5th D.C.A. 1985).
2 Gordon International Advertising, Inc. v. Charlotte County Land and Title Co., 170 So. 2d 59, 61 (Fla. 3d D.C.A. 1965).
3 Sears, Roebuck & Co. v. Richardson, 343 So. 2d 678, 679 (Fla. 1st D.C.A. 1977); Deleuw Cather & Co. v. Grogis, 655 So. 2d 240 (Fla. 4th D.C.A. 1995).
4 Mettler v. Mettler, 569 So. 2d 496 (Fla. 4th D.C.A. 1990).
5 Schumacher v. Wellman, 415 So. 2d 120, 122 (Fla. 4th D.C.A. 1982).
6 Winn-Dixie Stores, Inc. v. Vote, 463 So. 2d. 459, 460 (Fla. 2d D.C.A. 1985).
7 Keener v. Dunning, 238 So. 2d 113, 114 (Fla. 4th D.C.A. 1970).
8 Caceres v. Physician Protective Trust Fund, 489 So. 2d 869, 870 (Fla. 3d D.C.A. 1986); Loftin v. Anderson, 66 So. 2d 470 (Fla. 1953).
9 Payne v. Payne, 481 So. 2d 551 (Fla. 2d D.C.A. 1986).
10 Kendall Racquetball Investments, Ltd. v. The Green Companies, Inc., 657 So. 2d 1187, 1189 (Fla. 3d D.C.A. 1995).
11 Turner v. D.N.E., Inc., 547 So. 2d 1245 (Fla. 4th D.C.A. 1989).
12 Coastal Petroleum Co. v. Mobil Oil Corp., 583 So. 2d 1022, 1025 (Fla. 1991). Id.
13 Balseca v. Callies Electric, Inc., 566 So. 2d 322, 324 (Fla. 3d D.C.A. 1990).
14 Aspen v. Bayless, 564 So. 2d 1081 (Fla. 1990).
15 McArthur Dairy, Inc. v. Guillen, 470 So. 2d 747, 749 (Fla. 3d D.C.A. 1985).
16 Sears, Roebuck & Co. v. Richardson, 343 So. 2d 678, 679 (Fla. 1st D.C.A. 1977).
17 Otis Elevator Co. v. Bryan, 489 So. 2d 1189 (Fla. 1st D.C.A. 1986).
18 Sears, Roebuck & Co. v. Richardson, 343 So. 2d 678 (Fla. 1st D.C.A. 1977).
19 Roberts v. Askew, 260 So. 2d 492, 494 (Fla. 1972).
20 American Cyanamid Co. v. Roy, 546 So. 2d 1148 (Fla. 4th D.C.A. 1989).
21 Sullivan v. Musella, 526 So. 2d 719, 720 (Fla. 2d D.C.A. 1988).
22 Southeast Florida Cable, Inc. v. Islandia I Condominium Association, Inc., 661 So. 2d 91 (Fla. 4th D.C.A. 1995).
23 Powell v. Barnes, 629 So. 2d 185, 186 (Fla. 5th D.C.A. 1993), and Gray v. Bradbury, ___ So. 2d ___, 21 Fla. L. Weekly D487 (Fla. 1st D.C.A. 1996).
24 American Indemnity Co. v. Comeau, 419 So. 2d 670, 672 (Fla. 5th D.C.A. 1982).
25 Lafferty v. Lafferty, 413 So. 2d 170, 171 (Fla. 2d D.C.A. 1982).
26 Winn-Dixie Stores, Inc. v. Volte, 463 So. 2d 459, 460 (Fla. 2d D.C.A. 1985).
27 Coastal Petroleum Co. v. Mobil Oil Corp., 550 So. 2d 158, 159 (Fla. 1st D.C.A. 1989).
28 Wilson v. Rose Printing Co., Inc., 624 So. 2d 257, 258 (Fla. 1993).
29 Willey v. M.K. Roark, Inc., 616 So. 2d 1140, 1142 (Fla. 4th D.C.A. 1993).
30 Schumacher v. Wellman, 415 So. 2d 120, 123; Southeast Florida Cable, Inc. v. Islandia I Condominium Association, Inc., 661 So. 2d 91, 92 (Fla. 4th D.C.A. 1995); Winn-Dixie Stores, Inc. v. Vote, 463 So. 2d 459, 460 (Fla. 2d D.C.A. 1985).
31 Cohn v. Florida National Bank at Orlando, 223 So. 2d 767, 768 (Fla. 4th D.C.A. 1969).
32 Tremack Co. v. Federal Insurance Co., 600 So. 2d 38 (Fla. 3d D.C.A. 1992).
33 County of St. Lucie v. Browning, 358 So. 2d 253, 255 (Fla. 4th D.C.A. 1978); Guidelines §§1(A) and 1(B).
34 Martin v. Marlin, 528 So. 2d 943, 944 (Fla. 3d D.C.A. 1988); Koehring Co. v. Spanolia, ___ So. 2d ___, 21 Fla. L. Weekly D769 (Fla. 4th D.C.A. 1996); Guidelines §§1(C) and 1(D).
35 Dorner v. Red Top Cab & Baggage, 37 So. 2d 160 (Fla. 1948); Guidelines §1(B); Winn-Dixie Stores, Inc. v. Vote, 463 So. 2d 459, 460, (Fla. 2d D.C.A. 1985).
36 Travis v. Blackmon, 155 So. 2d 699 (Fla. 1st D.C.A. 1963).
37 Crane v. Stulz, 136 So. 2d 238, 242 (Fla. 2d D.C.A. 1961).
38 Otis Elevator Co. v. Bryan, 489 So. 2d 1189 (Fla. 1st D.C.A. 1986).
39 Bolton v. Bolton, 412 So. 2d 72, 73 (Fla. 2d D.C.A. 1982).
40 Guidelines §1 provides that the cost of a taxable deposition and one copy is properly taxable against the unsuccessful litigant; International Patrol and Detective Agency Co., Inc. v. Aetna Casualty & Surety Co., 419 So. 2d 323 (Fla. 1982); State Farm Automobile Insurance Co. v. Sampaio, 374 So. 2d 617, 618 (Fla. 4th D.C.A. 1979). Mobil Oil Corp. v. V.S.H. Realty, Inc., 408 So. 2d 585 (Fla. 5th D.C.A. 1981).
41 County of St. Lucie v. Browning, 358 So. 2d 253, 254 (Fla. 4th D.C.A. 1978); Cohen v. Dennis, 209 So. 2d 465, 466 (Fla. 3d D.C.A. 1968); Mobil Oil Corp v. V.S.H. Realty, Inc., 408 So. 2d 585 (Fla 5th D.C.A. 1981).
42 King v. National Security Fire & Casualty Co., 650 So. 2d 1338 (Fla. 4th D.C.A. 1995); Cohn v. Florida National Bank at Orlando, 223 So. 2d 767 (Fla. 4th D.C.A. 1969).
43 Guidelines §§1(C) and 1(D).
44 Guidelines §2(E).
45 County of St. Lucie v. Browning, 358 So. 2d 253, 254 (Fla. 4th D.C.A. 1978).
46 Avellone v. Mehta, 544 So. 2d 1122 (Fla. 3d D.C.A. 1989).
47 Hyster Co. v. Stephens, 560 So. 2d 1334, 1337 (Fla. 1st D.C.A. 1990); Orlando Regional Medical Center, Inc. v. Chimielewski, 573 So. 2d 876 (Fla. 5th D.C.A. 1990); Coastal Petroleum Co. v. Mobil Oil Corp., 583 So. 2d 1022, 1023 (Fla. 1991); Fla. R. Civ. P. 1.390(c); Fla. Stat. §92.231(2).
48 St. Lucie County v. Federal Construction Co., 584 So. 2d 122, 123 (Fla. 4th D.C.A. 1991).
49 Digital Systems of Florida, Inc. v. Committee, 472 So. 2d 533, 537 (Fla. 1st D.C.A. 1985).
50 Guidelines, §2(A); H & S Corp. v. United States Fidelity & Guarantee Co., ___ So. 2d ___, 21 Fla. L. Weekly D13 (Fla. 1st D.C.A. 1995); Bystrom v. Florida Rock Industries, Inc., 513 So. 2d 742 (Fla. 3d D.C.A. 1987); Chimielewski, 573 So. 2d 876 (Fla. 5th D.C.A. 1990).
51 Otis Elevator Co. v. Bryan, 489 So. 2d 1189 (Fla. 1st D.C.A. 1986); Fla. Stat. §92.231.
52 Guidelines §2(B); James P. Driscoll, Inc. v. Gould, 521 So. 2d 301 (Fla. 3d D.C.A. 1988); Ford Motor Co. v. Garrison, 415 So. 2d 843 (Fla. 1st D.C.A. 1982).
53 Guidelines §2(F); James P. Driscoll, Inc. v. Gould, 521 So. 2d 301 (Fla. 3d D.C.A. 1988); C.B.T. Realty Corp. v. St. Andrews Cove I Condominium Association, Inc., 508 So. 2d 409 (Fla. 2d D.C.A. 1987).
54 Seigler v. General Leisure Corp., 289 So. 2d 429 (Fla. 1st D.C.A. 1974).
55 Guidelines §2(G).
56 Guidelines §2(C); C.B.T. Realty Corp. v. St. Andrews Co. I Condominium Association, Inc., 508 So. 2d 409, 410 (Fla. 2d D.C.A. 1987).
57 Vogel v. Allen, 443 So. 2d 370 (Fla. 5th D.C.A. 1983).
58 Loftin v. Anderson, 66 So. 2d 470, 473 (Fla. 1953).
59 Orlando Regional Medical Center v. Chimielewski, 573 So. 2d 876, 883 (Fla. 5th D.C.A. 1990).
61 Id.; Ledbetter v. Todd, 418 So. 2d 1116 (Fla. 5th D.C.A. 1982).
62 Aetna Life Insurance Co. v. Sievert, 361 So. 2d 747, 748 (Fla. 1st D.C.A. 1978).
63 Winn-Dixie Stores, Inc. v. Vote, 463 So. 2d 459, 460 (Fla. 2d D.C.A. 1985).
64 State Farm Mutual Automobile Insurance Co. v. Sampaio, 374 So. 2d 617, 618 (Fla. 4th D.C.A. 1979); County of St. Lucie v. Browning, 358 So. 2d 253, 254 (Fla. 4th D.C.A. 1978); Cohn v. Florida National Bank of Orlando, 223 So. 2d 767, 768 (Fla. 4th D.C.A. 1969).
65 Wilkins v. SuperX Drugs of Florida, Inc., 232 So. 2d 19, 20 (Fla. 4th D.C.A. 1970); Martin v. Marlin, 528 So. 2d 943 (Fla. 3d D.C.A. 1988).
66 Guidelines §8.
67 Winn-Dixie Stores, Inc. v. Vote, 463 So. 2d 459, 460 (Fla. 2d D.C.A. 1985).
68 Cohn v. Florida National Bank at Orlando, 223 So. 2d 767, 768 (Fla. 4th D.C.A. 1969); Caceres v. Physicians Protective Trust Fund, 489 So. 2d 869, 870 (Fla. 3d D.C.A. 1986).
69 Guidelines §4.
70 Guidelines §7; Vogel v. Allen, 443 So. 2d 368, 370 (Fla. 5th D.C.A. 1983).
71 Caceres v. Physicians Protective Trust Fund, 489 So. 2d 869, 870 (Fla. 3d D.C.A. 1986).
72 Guidelines §7.
73 Guidelines §7.
74 Florida R. App. P. 9.400(a)(2); Hollywood Fireman’s Pension Fund v. Terlizzese, 538 So. 2d 934, 935 (Fla. 4th D.C.A. 1989).
75 Guidelines §3; Dorner v. Red Top Cab & Baggage Co., 37 So. 2d 160 (Fla. 1948).
76 Madison v. Midland National Life Insurance Co., 648 So. 2d 1226, 1228 (Fla. 4th D.C.A. 1995); White v. Cowles Florida Broadcasting, Inc., 361 So. 2d 821 (Fla. 1st D.C.A. 1978).
77 Mitchell v. Osceola Farms Co., 574 So. 2d 1162, 1163 (Fla. 4th D.C.A. 1991).
78 Adamson v. Nathan Putchat Associates, P.A., 528 So. 2d 1259, 1260 (Fla. 4th D.C.A. 1988); Wilkins v. SuperX Drugs of Florida, Inc., 232 So. 2d 19 (Fla. 4th D.C.A. 1970).
79 Williams v. Brochu, 578 So. 2d 491, 494; Adamson v. Nathan Putchat Associates, P.A., 528 So. 2d 1259 (Fla. 4th D.C.A. 1988).
Theodore C. Miloch II, an associate at the law firm of Popham, Haik, Schnobrich & Kaufman, Ltd., practices product liability and insurance defense, as well as bankruptcy law. He graduated with high distinction from the University of Michigan at Dearborn in 1991, with a B.S.A. in marketing, and received his J.D. in 1994 from the University of Detroit-Mercy School of Law, Detroit, Michigan. Mr. Miloch was admitted to The Florida Bar in 1994 and is a member of the Dade County and American Bar Associations.
This column is submitted on behalf of the Trial Lawyers Section, William B. Wilson, chair, and Brett Preston, editor.