Amendment To Uniform Guidelines for Taxation of Costs
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Supreme Court of Florida
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No. SC96726
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IN RE: AMENDMENTS TO UNIFORM GUIDELINES FOR
TAXATION OF COSTS.
[November 17, 2005]
CORRECTED OPINION
PER CURIAM.
We have for consideration the report of the Civil Procedure Rules
Committee recommending revisions to the Statewide Uniform Guidelines for
Taxation of Costs in Civil Cases. We have jurisdiction, see art. V, § 2(a), Fla.
Const., and approve the revised guidelines with the modifications discussed below.
BACKGROUND
In October 1981, the Statewide Uniform Guidelines for Taxation of Costs in
Civil Cases were approved for publication and distribution by administrative order
issued by the Chief Justice of the Florida Supreme Court. The administrative order
as well as the full text of the guidelines were set forth in Reeser v. Boats
Unlimited, Inc., 432 So. 2d 1346, 1349 n. 2 (Fla. 4th DCA 1983). In September
1999, the Civil Procedure Rules Committee (Committee) submitted to the Court
proposed revisions to the uniform guidelines. After publishing the proposals for
comments and holding oral argument, the Court declined to approve the proposed
revisions, citing “several serious and overriding concerns.” See Amendments to
Unif. Guidelines for Taxation of Costs, 794 So. 2d 1247, 1247 (Fla. 2001).
The Court’s primary concern was that the proposed guidelines did not
adequately reflect the Court’s stated policy of “reducing the impact of costs upon
parties, with the ultimate aim of decreasing the overall costliness of litigation.” Id.
Because expenses that were either not addressed or not taxed as costs under the
current guidelines were expressly included in the proposed guidelines as items that
should or may be taxed, the Court noted that the proposals may have actually had
the effect of “inordinately expanding the costs incurred by parties and increasing
the overall costliness of litigation.” Id.
The Court also expressed concern that although the proponents of the initial
proposed guidelines themselves acknowledged that in some instances they may be
in conflict with existing case law, the Committee failed to provide adequate
supportive authority or reasoning for the proposed deviations from current law. Id.
at 1248. As a result, the Court required that “any further proposed changes be
developed by reference to current statutory and case law . . . [and] that proposed
deviations from current law be supported by adequate demonstration of an existing
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injustice that [requires] correction, or by a showing that proposed [g]uidelines
would improve the ability of trial judges to administer their responsibilities in
taxing costs.” Id.
Finally, noting that the current guidelines were adopted in 1981 by the
Florida Conference of Circuit Judges and endorsed by the Board of Governors and
the Trial Lawyers Section of The Florida Bar, the Court expressed a desire for
“more participation in connection with this potentially contentious and very
important matter.” Id. at 1248. Therefore, the Court asked the Committee to
procure evaluative comments from a number of entities on (1) perceived problems
with the guidelines, and (2) whether and how the guidelines should be revised.
The Rules Committee was asked to file a report of its findings and conclusions,
along with any proposed revised guidelines. Id. at 1248-49.
The Committee has now filed its report and proposed guidelines. By a
unanimous vote, the Committee recommends replacing the existing guidelines with
the revised guidelines proposed by its Subcommittee on Revised Uniform
Guidelines on Taxation of Costs in Civil Actions. The Board of Governors of The
Florida Bar also unanimously approved the proposed guidelines. Additionally, the
proposed guidelines were published for comment by the Committee before they
were filed with the Court and published by the Court after they were filed. Several
comments were received.
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REVISED GUIDELINES
Upon consideration of the Committee’s report and proposed guidelines and
public comments thereto; and after hearing oral argument, we approve the
Committee’s proposals with some important modifications. First, the Committee’s
proposed guidelines set forth three categories of costs: (1) those that “shall be
taxed”; (2) those that “may be taxed”; and (3) those that “should not be taxed.”
The guidelines, however, are not intended to be mandatory, and the appropriate
assessment of costs in any particular proceeding remains within the discretion of
the trial court. Accordingly, consistent with the current guidelines, we modify the
first category to include those costs that “should,” rather than “shall,” be taxed.
Additionally, in order to clarify the intended role of the guidelines and
provide assistance to trial judges in applying them, we add a preamble to the
guidelines, entitled “Purpose and Application” and “Burden of Proof,” which
provides as follows:
Purpose and Application
These guidelines are advisory only. The taxation of costs in any
particular proceeding is within the broad discretion of the trial court.
The trial court should exercise that discretion in a manner that is
consistent with the policy of reducing the overall costs of litigation
and of keeping such costs as low as justice will permit. With this goal
in mind, the trial court should consider and reward utilization of
innovative technologies by a party which subsequently minimizes
costs and reduce the award when use of innovative technologies that
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were not used would have resulted in lowering costs. In addition,
these guidelines are not intended to (1) limit the amount of costs
recoverable under a contract or statute, or (2) prejudice the rights of
any litigant objecting to an assessment of costs on the basis that the
assessment is contrary to applicable substantive law.
Burden of Proof
Under these guidelines, it is the burden of the moving party 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.
According to the report, the Committee attempted to balance the goal of decreasing
the cost of litigation with the goal of making the prevailing party whole.
Consistent with the Court’s stated policy, the preamble that we have added to the
guidelines emphasizes the goal of decreasing the overall cost of litigation. In
furtherance of that policy, the Committee recommends and the Court agrees that
the trial court should reward utilization of innovative technologies by a party
which minimizes costs and reduce the award when use of innovative technologies
that were not used would have resulted in lowering costs.1 The revised guidelines
also are intended to be easier to apply, which should allow attorneys to better
predict the aggregate costs of litigation and, when incurring costs, to anticipate
1. For example, the availability of technology that allows documents to be
scanned and saved to a disk, thereby decreasing copying costs, should be
considered by the trial court when awarding costs for copies of documents filed
with the court or obtained in discovery.
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which of those costs likely will have to be paid by their clients. This increased
predictability also should result in decreased costs.
Next, as recognized in the preamble, the proposed guidelines revise the
standard utilized by the trial court in reviewing requests for taxation of costs from
costs that are “reasonable” to costs that are “reasonably necessary.” According to
the report, the proposed guidelines would require, in most instances, that the initial
burden of showing that a requested cost is reasonably necessary is on the moving
party. However, with respect to costs for depositions and costs of copies of
documents obtained in discovery, proposed guidelines I(A)2 and I(B)(2) place the
burden upon the objecting party to show that the costs were not reasonably
necessary. We cannot approve shifting the burden in this manner; therefore, we
have modified these guidelines so that the burden remains on the moving party.
We also have modified proposed guideline I(B)(1) allowing costs for copies of
documents “admitted (in lieu of ‘actually cited’) with the court, which assist the
court in reaching a conclusion.” For clarity’s sake, we have changed the term
“admitted” to “filed” and have added language to emphasize that the filed
documents must be “reasonably necessary to assist the court in reaching a
conclusion.”
2. We also have changed the references in proposed guideline I(A) to
“video depositions” and “video conferencing” to “electronic depositions” and
“electronic conferencing” to account for changes in technology.
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In connection with items of costs that shall be taxed, we also have changed
the reference to “special masters” in proposed guideline I(F) to “special
magistrates” to conform to chapter 2004-11, sections 54-58, 63-72, 78-84, 86-87,
93-97, 102, Laws of Florida, which redesignated “special masters” as “special
magistrates.” See Amendments to Fla. Rules of App. Pro., 887 So. 2d 1090 (Fla.
2004) (amending rules of procedure to conform with chapter 2004-11, Laws of
Florida.)
Next, the proposed guidelines classify reasonable travel expenses of an
attorney as an item of costs that may be taxed. We do not approve this
classification because currently attorney travel expenses generally are not taxable.
See Miller v. Hayman, 766 So. 2d 1116 (Fla. 4th DCA 2000) (recognizing that in
the absence of exceptional circumstances, travel expenses for attorney to attend
depositions should not be taxed as costs). Specifically, cost item 3 of the current
guidelines provides that “[t]ravel expenses of prevailing attorney incurred in
connection with the taking of depositions out of the City or State” should not be
taxed. Although case law cited by the Committee recognizes that there is no
absolute bar to an award of costs for attorney travel expenses, see Barnes v. City of
Dunedin, 666 So. 2d 574 (Fla. 2d DCA 1996) (noting that, although generally
taxation of costs for attorney travel expenses incurred is not allowed under
guidelines, such costs have been allowed if provided for by contract or statute);
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Beyel Bros., Inc. v. Lemenze, 720 So. 2d 556 (Fla. 4th DCA 1998) (affirming award
of attorney’s travel expenses in connection with deposition in light of statute), in the
interest of promoting this Court’s policy of decreasing overall litigation costs, we
decline to include such costs in the category of those that “may” be taxed. Rather,
we have modified the proposed guidelines to include such costs in the category of
those that generally “should not” be taxed.
Accordingly, with the modifications discussed above, we approve the
revised Statewide Uniform Guidelines for Taxation of Costs in Civil Actions for
publication and use, as set forth in the appendix to this opinion. The revised
guidelines, which will replace the current guidelines, shall become effective
January 1, 2006, at 12:01 a.m. We further direct that the guidelines be included as
an appendix to the Florida Rules of Civil Procedure and be reviewed periodically
by the Civil Procedure Rules Committee for future revision as needed.
In conclusion, we wish to express our sincere gratitude for the tremendous
efforts of the Civil Procedure Rules Committee in spearheading the arduous task of
revising and improving the cost guidelines. The Committee’s dedication of time
and resources in thoroughly examining the guidelines and relevant case law,
reviewing other state and federal guidelines, and in evaluating the input received
from a broad spectrum of entities, including the Florida Chapter of the American
Board of Trial Advocates and the Trial Lawyers Section of The Florida Bar, has
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been an invaluable service to this Court and ultimately, through the product of
these efforts, to all Floridians.
It is so ordered.
PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and
BELL, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS
Original Proceeding – Amendments to Uniform Guidelines for Taxation of Costs
Adrienne Promoff, Chair, Civil Procedure Rules Committee, Miami, Florida,
Robert N. Clarke, Jr., Past-Chair, Civil Procedure Rules Committee, Tallahassee,
Florida, Daniel K. Bean of Holland and Knight, Jacksonville, Florida, Keith H.
Park, West Palm Beach, Florida, and John F. Harkness, Jr., Executive Director,
The Florida Bar, Tallahassee, Florida,
for Proponent
William E. Hahn of William E. Hahn, P.A., on behalf of The Florida Chapters of
the American Board of Trial Advocates, Tampa, Florida,
for Opponent
James Whitelaw Middleton of Rogers Towers, P.A., Jacksonville, Florida
as Pro se Respondent
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APPENDIX
STATEWIDE UNIFORM GUIDELINES FOR TAXATION OF COSTS IN
CIVIL ACTIONS
Purpose and Application. These guidelines are advisory only. The taxation of
costs in any particular proceeding is within the broad discretion of the trial court.
The trial court should exercise that discretion in a manner that is consistent with
the policy of reducing the overall costs of litigation and of keeping such costs as
low as justice will permit. With this goal in mind, the trial court should consider
and reward utilization of innovative technologies by a party which subsequently
minimizes costs and reduce the award when use of innovative technologies that
were not used would have resulted in lowering costs. In addition, these guidelines
are not intended to (1) limit the amount of costs recoverable under a contract or
statute, or (2) prejudice the rights of any litigant objecting to an assessment of costs
on the basis that the assessment is contrary to applicable substantive law.
Burden of Proof. Under these guidelines, it is the burden of the moving party 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.
I.
Litigation Costs That Should Be Taxed.
A.
Depositions
1.
The original and one copy of the deposition and court reporter's
per diem for all depositions.
2.
The original and/or one copy of the electronic deposition and
the cost of the services of a technician for electronic depositions
used at trial.
3.
Telephone toll and electronic conferencing charges for the
conduct of telephone and electronic depositions.
B.
Documents and Exhibits
1.
The costs of copies of documents filed (in lieu of "actually
cited") with the court, which are reasonably necessary to assist
the court in reaching a conclusion.
2.
The costs of copies obtained in discovery, even if the copies
were not used at trial.
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C.
D.
Witnesses
1.
Costs of subpoena, witness fee, and service of witnesses for
deposition and/or trial.
E.
Court Reporting Costs Other than for Depositions
1.
Reasonable court reporter's per diem for the reporting of
evidentiary hearings, trial and post-trial hearings.
F.
II.
Expert Witnesses
1.
A reasonable fee for deposition and/or trial testimony, and the
costs of preparation of any court ordered report.
Reasonable Charges Incurred for Requiring Special Magistrates,
Guardians Ad Litem, and Attorneys Ad Litem
Litigation Costs That May Be Taxed as Costs.
A.
B.
III.
Mediation Fees and Expenses
1.
Costs and fees of mediator.
Reasonable Travel Expenses
1.
Reasonable travel expenses of expert when traveling in excess
of 100 miles from the expert’s principal place of business (not
to include the expert’s time).
2.
Reasonable travel expenses of witnesses.
Litigation Costs That Should Not Be Taxed as Costs.
A.
The Cost of Long Distance Telephone Calls with Witnesses, both
Expert and Non-Expert (including conferences concerning scheduling
of depositions or requesting witnesses to attend trial)
B.
Any Expenses Relating to Consulting But Non-Testifying Experts
C.
Cost Incurred in Connection with Any Matter Which Was Not
Reasonably Calculated to Lead to the Discovery of Admissible
Evidence
D.
Travel Time
1.
Travel time of attorney(s).
2.
Travel time of expert(s).
E.
Travel Expenses of Attorney(s)
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