R.J. REYNOLDS TOBACCO COMPANY, Appellant/Cross-Appellee,
JAMES LEWIS, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ROSEMARY LEWIS, Appellee/Cross-Appellant.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Volusia County, Dennis Craig,
Stephanie E. Parker, and Jason T. Burnette, of Jones Day,
Atlanta, Georgia, and Troy A. Fuhrman, and Marie A. Borland,
of Hill Ward Henderson, Tampa, for Appellant/ Cross-Appellee.
R. Gale, of Wiggins Childs Pantazis Fisher Goldfarb, LLC,
DeLand; Philip J. Padovano, Maegen Peek Luka, and Joseph T.
Eagleton, of Brannock & Humphries, Tampa; and William H.
Ogle, of Ogle Law, Daytona Beach, for
Engle-progeny case, Appellant, R.J. Reynolds
Tobacco Company ("Reynolds"), argues that Appellee,
James Lewis, only surpassed the proposal for settlement
threshold entitling him to an award of attorney's fees
because the trial court improperly included costs related to
four non-testifying expert witnesses retained by Lewis. We
agree that was error. Reynolds also correctly asserts that
the trial court allowed recovery for certain costs for which
there was no evidentiary basis. Lewis cross-appeals,
correctly arguing that the court erred by failing to award
prejudgment interest on the costs calculated from the date
each was incurred. We will explain each decision in turn.
decedent, Rosemary Lewis, passed away on March 12, 1998,
after a battle with lung cancer. Her husband, James Lewis,
was named the personal representative of the estate, and
brought a wrongful death and survival action against
Reynolds. After a two-week trial, the jury found in his
favor. The jury awarded Lewis $750,000 in damages, which was
reduced to $187,500 after the decedent's portion of
comparative fault was applied. This court affirmed the final
judgment in R.J. Reynolds Tobacco Co. v. Lewis, 226
So. 3d 852 (Fla. 5th DCA 2017).
TO ATTORNEY'S FEES
14, 2014, Lewis filed a proposal for settlement
("PFS") for $199,000, which Reynolds rejected.
After the final judgment was entered, Lewis sought his
taxable costs and moved for attorney's fees pursuant to
section 768.79(6)(b), Florida Statutes (2014). That section
states that, if a defendant rejects a PFS and the plaintiff
obtains a judgment at least 25% more than the amount of the
proposal, the plaintiff is entitled to reasonable costs and
attorney's fees as calculated by the Florida Supreme
Court's guidelines. In order to cross the statutory 125%
threshold entitling Lewis to attorney's fees, he would
have needed at least $61,250 in taxable costs on the date
that the PFS was served.
several hearings, the trial court determined that on the date
the PFS was served, Lewis would have been entitled to
$65,047.94 in costs; thus, the trial court held he was
entitled to an award of attorney's fees since he
surpassed the threshold by $3797.94. The costs utilized by the
trial court in determining entitlement to fees included the
cost and expenses related to four expert witnesses who had
been retained by Lewis, but who had not testified or been
deposed at the time the PFS was served.
argues that the lower court's inclusion of the costs for
the non-testifying experts was error under White v. Steak
& Ale of Florida, Inc., 816 So. 2d 546');">816 So. 2d 546 (Fla. 2002).
White held 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." 816 So. 2d at 551. Based on this language, it is
clear that under White, a court may only properly
consider those costs that were already taxable on the date
the PFS was filed.
the question is whether the non-testifying experts' costs
were taxable as of July 14, 2014. Section 768.79(6)(b)
provides that an award for attorney's fees and costs must
be "calculated in accordance with the guidelines
promulgated by the Supreme Court." It follows then, for
purposes of the "judgment obtained" within that
statute, that the taxable costs must also comply with those
guidelines. According to In re Amendments to Uniform
Guidelines for Taxation of Costs, costs for an expert
witness's deposition and/or trial testimony should be
taxed, while any expense relating to a consulting but
non-testifying expert should not be taxed. 915 So. 2d 612,
616–17 (Fla. 2005). Based on this language, it is clear
that taxable costs for experts do not include costs for those
experts who do not testify. Therefore, costs for
non-testifying experts are nontaxable.
it is undisputed that the four experts in question were not
deposed and did not testify. Thus, costs related to them are
nontaxable under the guidelines. Therefore, those costs
cannot be included in the calculations for determining
whether Lewis was entitled to attorney's fees, and the
trial court erred by including the non-testifying
experts' costs in its calculations. Accordingly,
Lewis's taxable costs on the date the PFS was served
totaled $44,014.60, meaning he was below the statutory