OAK SQUARE JOINT VENTURE, IN THE DISTRICT COURT OF APPEAL
a Florida Joint Venture Partnership, FIRST DISTRICT, STATE OF FLORIDA
Appellant, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
v. DISPOSITION THEREOF IF FILED
U. S. BANK NATIONAL
ASSOCIATION AS TRUSTEE FOR CASE NOS. 1D13-4232/1D13-4473
THE REGISTERED HOLDERS OF
BANK OF AMERICA, NATIONAL
ASSOCIATION - FIRST UNION
NATIONAL BANK,
COMMERCIAL MORTGAGE
TRUST, COMMERCIAL
MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2001-3,
BY C-III ASSET MANAGEMENT
LLC, a Delaware limited liability
company, in its capacity as special
servicer pursuant to the certain
Pooling and Servicing Agreement
dated November 1, 2011,
Appellees.
_____________________________/
Opinion filed July 7, 2014.
An appeal from the Circuit Court for Alachua County.
Stanley H. Griffis, III, Judge.
Leonard E. Ireland, Jr. of Clayton-Johnston, P.A., Gainesville, for Appellant.
Michael P. Woodbury and Margaret Brenan Correoso of Woodbury, Santiago &
Correoso, P.A., Miami, for Appellees.
PER CURIAM.
We have, sua sponte, consolidated these two appeals for dispositional
purposes. In these appeals, Oak Square Joint Venture (“Oak Square”) challenges a
final judgment of foreclosure and a final order awarding attorneys’ fees and costs.
Oak Square raises several issues on appeal, all but one of which we affirm without
comment. As to Appellant’s claim that the trial court erred in awarding Appellee,
U.S. Bank National Association (“U.S. Bank”), expert witness costs, we agree and
order that those costs be stricken from the fees and costs award.
“The prevailing party’s burden, at an evidentiary costs hearing, to recover an
expert witness fee is ‘to present testimony concerning the necessity and
reasonableness of the fee.’” Gray v. Bradbury, 668 So. 2d 296, 298 (Fla. 1st DCA
1996) (quoting Powell v. Barnes, 629 So. 2d 185, 185 (Fla. 5th DCA 1993)).
Importantly, “[t]hat evidence must come from witnesses qualified in the areas
concerned.” Powell v. Barnes, 629 So. 2d 185, 186 (Fla. 5th DCA 1993). “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.” Id.
Moreover, the movant’s burden to present specific evidence of
reasonableness and necessity of expert witness costs arises by virtue of the motion
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going to an evidentiary hearing. See id. at 186 (“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.”).
Here, at the evidentiary hearing, U.S. Bank only presented testimony from
one person: an attorney hired to testify as to the reasonableness of fees. Not only
did this witness fail to present testimony regarding expert costs, he would not have
been competent to testify as to expert costs in any event because he was not “a
qualified expert in the same field.” See id.; see also Gray, 668 So. 2d at 298 (“the
testimony of the attorney and the claims manager was insufficient to satisfy the
requirement for substantial, competent evidence of the [expert witness] services
performed and the reasonable value of those services.”).
Because U.S. Bank failed to present evidence supporting its request for
expert witness costs, the trial court erred in awarding those costs. Accordingly, we
direct the trial court to strike the expert witness costs from the fees and costs
award. We affirm the final order awarding fees and costs in all other respects, and
we affirm the final judgment of foreclosure in its entirety.
AFFIRMED in part; REVERSED in part; and REMANDED with
instructions.
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ROWE, MARSTILLER, and SWANSON, JJ., CONCUR.
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