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.
2

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. 
3

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 nonrefundable 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 
4

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 

2

 Earlier 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." 
5

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).
6

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. 
7

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 
8

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 
9

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. 
10

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, 
11

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.
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KELLY and SLEET, JJ., Concur. 

Opinion subject to revision prior to official publication.