A practitioner's guide to the taxation of costs in civil actions.

• Author: Miloch, Theodore C., II

This article outlines the substantive and procedural aspects of taxation of costs in civil actions.

Substantive Principles

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 action(3) 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 prejudgment 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)

Procedure

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. [sections] 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 Costs(20) 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 with out an evidentiary hearing.(21) Once this objection is raised, the prevailing party is required to present testimony(22) by an expert with expertise in the area in which the costs are sought(23) 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 recommencement of the action upon motion of the nondismissing party.(28)

Specific Cost Items

* Depositions

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...