SANCTIONS AWARDED PURSUANT TO SECTION 57.105(1) MAY NOT INCLUDE COSTS–THE FEE CHARGED BY A LAWYER TO APPEAR AS AN EXPERT WITNESS IS CONSIDERED A COST NOT AN ATTORNEY’S FEE, AND IS AWARDABLE ONLY WHEN COSTS ARE PROPERLY AWARDED–CONFLICT CERTIFIED.
Lana v. Assimakopoulos-Panuthos, 42 Fla. L. Weekly D2232 (Fla. 2nd DCA October 20, 2017):
A party appealed the court’s order awarding sanctions against her pursuant to section 57.105, as well as two other judgments against her, awarding expert witness fees to the other party’s attorney and the curator of the estate.
Zeroing in on the plain language of section 57.105(1), the court stated that the sanction permits an award of attorney’s fees only.
Instead, costs are only included in section 57.105(2) which provides for a sanction of damages for reasonable expenses incurred in obtaining the order when a court finds that an action taken by the opposing party was done primarily for the purpose of unreasonable delay. The language about costs in subsection (2), is absent from subsection (1), however.
Expert witness fees are taxed as costs pursuant to section 92.231(2), and supreme court law. When an attorney is serving as an expert witness, that is considered a cost, not an attorney’s fee.
Thus, the court concluded that the attorney’s expert witness fee could not be considered part of the sanctions judgment entered against the non-movant under section 57.105(1), and reversed the award to the extent that it included such costs.
The court certified conflict to the extent that the case conflicts with other cases that hold that costs may be properly awarded under section 57.105(1).