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). 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." 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.