County Civil Court: CIVIL PROCEDURE Eminent Domain case-Res Judicata-Expert Witness Fees- The doctrine of res judicata applies to a cause of action when there is a judgment on the merits, rendered in a former suit between the parties, on the same cause of action, by a court of competent jurisdiction-the fact that appellee (or appellee's attorney) did not secure payment from DOT for the appellant's deposition as well as any other costs and fees that may be owed does not in any way effect whether or not appellant is entitled to recover those same costs and fees from appellee under a contract or other theory- Final Judgment reversed. Baccus v. Blanco, (Fla. 6th Cir. App. Ct. December 29, 2005).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

 

SYDNEY T. BACCUS,

Appellant,

v. Case No: 512004AP14WS

Lower No: 032790

 

 

OLGA BLANCO,

Appellee.

__________________________________________/

 

Appeal from Honorable William G. Sestak

 

Sydney T. Baccus, pro se

 

Tara M. O'Connor, Esq.

Attorney for Appellee

 

ORDER AND OPINION

This matter came before the court on appellant's appeal from a judgment entered by the Pasco County Court which essentially determined that appellant was barred from recovering fees and costs associated with expert testimony in an eminent domain case. This Court has jurisdiction. Fla. R. App. P. 9.030(c). The ruling of the trial court is reversed and the cause remanded.

Appellee was a respondent in an eminent domain action. State of Florida, Department of Transportation v. Blanco, 97-2043CA (Pasco County). Appellant, a hydroecology expert, claims that she was placed on the respondent's witness list as an expert. It is undisputed that on or about June 14, 1999, Paul Lehrman, (appellee's attorney at the time) received a subpoena from the Department of Transportation ("DOT ") and required appellant to travel from her home office in Athens, Georgia to Florida's DOT office in Tampa, to provide expert testimony in a deposition for the eminent domain case. Appellant asserts that she repeatedly submitted invoices to appellee directly and appellee's representatives (attorney's representing appellee) for the expert testimony and other expert fees but payment was not forthcoming. The week prior to the condemnation trial, appellant was informed by Lehrman, (appellee's attorney) that the portion of the trial involving appellant's testimony had been settled and that appellant's testimony at the trial would not be necessary. At the conclusion of the eminent domain case, Circuit Court Judge Wayne Cobb entered a final order awarding compensation to appellee. Subsequently, on June 2, 2002, the court entered a Final Order Awarding Fees and Costs. That order stated that appellant was to receive "-0-" (zero) "from petitioner for expert environmental services provided to respondent in the captioned matter." State of Florida, Department of Transportation v. Blanco, 97-2043CA (Pasco County). Appellant did not file a motion for rehearing nor file an appeal of that order. On August 7, 2003, appellant filed an action in the Hillsborough County Court (Bacchus v. Blanco, 0319976CC). That case was eventually transferred to Pasco County Court (Bacchus v. Blanco 51-2003-CC002790WS).[1] There was a final hearing held on October 20, 2004 in which the trial court determined appellee did not owe appellant any fees or costs. The trial court found that ". . . (2)[w]hile defendants acknowledge the services rendered by plaintiff, they have provided the court with a Final Order Awarding Fees and Costs that was entered by the Circuit Court in the eminent domain case. In that Final Order, the Circuit Court considered the expert fees and costs of the Plaintiff and awarded her ZERO. (3)Further, any expert witness fees and costs that Plaintiff claims she is owed for appearing at a deposition in which she was subpoenaed by the State of Florida, Department of Transportation should have been borne by the State of Florida (the Party who subpoenaed her) rather than her client, the Defendants."[2] This Court finds that the trial court erred.

The doctrine of res judicata applies to a cause of action when there is a judgment on the merits, rendered in a former suit between the parties, on the same cause of action, by a court of competent jurisdiction. See Florida Dep't. of Transp. v. Juliano, 801 So.2d 101, 105 (Fla. 2001). Such a judgment is conclusive as to every matter offered to support or defeat the claims, and also to every matter that might have been litigated and determined in that action. Id. In order for the doctrine of res judicata to bar a subsequent suit, four identities must exist: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties; and (4) identity of the quality or capacity of the persons for or against whom the claim is made. Holt v. Brown's Repair Service, Inc.  780 So.2d 180 (Fla. 2d DCA 2001).

As applied to this case, the Circuit Court order at issue is res judicata as to the property owner (appellee) being able to recover appellant's fees and costs from DOT. However, the doctrine does not apply as to the expert (appellant) attempting to recover her fees and costs from the property owner (appellee). Specifically, the determination that appellant's fees were not recoverable was reached in an action between DOT and appellee in State of Florida, Department of Transportation v. Blanco, 97-2043CA; an eminent domain action between the State and appellee to which appellant was not a party. The action at issue here is a contract action between appellant and appellee. Accordingly, whether or not fees for the deposition are recoverable from DOT does not affect any obligations the appellee had under her contract with the appellant.

Thus, the fact that appellee (or appellee's attorney) did not secure payment from DOT for the appellant's deposition as well as any other costs and fees that may be owed does not in any way effect whether or not appellant is entitled to recover those same costs and fees from appellee under a contract or other theory. It is therefore,

ORDERED AND ADJUDGED that the decision of the trial court is REVERSED and this cause remanded to the trial court for further proceedings.

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of December, 2004.

 

___________________

W. Lowell Bray, Circuit Judge

Primary Appellate Judge

 

__________________

Daniel D. Diskey

Circuit Judge

 

______________________

Stanley R. Mills

Circuit Judge

Copies to:

Sydney T. Baccus, Pro Se

Tara M. O'Connor, Esq.




 

 



[1] At some point, she also filed an action against DOT in Hillsborough County (Bacchus v. State of Florida Department of Transportation, 03-16456SC) for costs and fees associated with her appearance at the deposition in the eminent domain action (State of Florida, Department of Transportation v. Blanco, 97-2043CA) in Pasco County, pursuant to Florida Rule of Civil Procedure 1.390. Apparently, the trial court dismissed the action because "the circuit court has exclusive jurisdiction over eminent domain actions and because Florida Rule of Civil Procedure 1.390 has no provision for an independent action to recover expert fees and costs." The circuit court, acting in its appellate capacity, affirmed the dismissal of the lower court. (The order dismissing is not contained in the file; this information is based on the circuit court's order affirming the lower court.)

 

[2] Appellant filed a motion for rehearing which was denied.