CopyCited 17 times | Published | Supreme Court of Florida | 2008 WL 878488
...Thereafter, the trial judge entered a separate judgment for costs in favor of David. See Massey II,
953 So.2d at 601. Massey sought review of that second judgment and alleged, in pertinent part, that the trial court erred when it awarded costs for expert witnesses which he alleged to be contrary to section
57.071(2) of the Florida Statutes. See id. Massey contended that the trial court awarded expert fees to David based on the improper conclusion that section
57.071(2) was unconstitutional....
...elied upon in reaching the opinions. Such report shall be filed at least 5 days prior to the deposition of the expert or at least 20 days prior to discovery cutoff, whichever is sooner, or as otherwise determined by the court. Id. at 601-02 (quoting § 57.071(2), Fla....
...Massey asserted in the trial court that David was not entitled to an award of costs for the experts because he had not timely complied with the written report requirement delineated in the statute. At the same time, Massey conceded that the Fourth District Court of Appeal had previously declared section 57.071(2) to be unconstitutional in Estate of Cort v....
...The First District then stated that "from our review, the Fourth District correctly found the statute an unconstitutional intrusion on `the powers of the judiciary, through the Florida Supreme Court, to determine matters of practice and procedure before the Florida Courts,'" and agreed with the Fourth District that "section
57.071(2) does not create a right to recover expert witness fees, but rather sets forth the procedure for recovering *935 under that right." Id. (emphasis supplied) (quoting Cort,
807 So.2d at 738). Massey seeks review of the decision of the First District Court of Appeal in Massey II in this Court. ANALYSIS In 2002, the Fourth District in Cort expressly held section
57.071(2) to be unconstitutional as a procedural statute that unconstitutionally infringed on the authority of this Court to determine matters of practice and procedure for Florida courts. See
807 So.2d at 738. The analysis in Cort is much more detailed than that provided by the decision below. The Fourth District reasoned: [S]ection
57.071(2) is unconstitutional because, through it, the legislature creates or modifies a procedural rule of court: A rule of procedure prescribes the method or order by which a party enforces substantive rights or obtains redress for their invasion....
...Therefore, in finding the statute unconstitutional, the Knealing court was persuaded by section
44.102(6)'s failure to "create" a substantive right since section
768.79, Florida Statutes, already created the substantive right to attorney's fees based on an offer of judgment. Likewise, here, section
57.071(2) does not create a right to recover expert witness fees, but rather sets forth the procedure for recovering under that right....
...We recognize that the substantive right for recovery of an expert witness fee as a taxable cost finds its basis in statutory law and has existed since at least 1949. See § 90.231, Fla. Stat. (1949); §
92.231, Fla. Stat. (2000). Nevertheless, due to the purely procedural *936 nature of section
57.071(2), we are compelled to find that it intrudes upon the powers of the judiciary, through the Florida Supreme Court, to determine matters of practice and procedure before the Florida courts....
...These uniform guidelines, adopted by the Florida Conference of Circuit Judges and published by the Florida Supreme Court, discuss at length the taxation of costs for expert witness fees and set forth no deadlines or requirements such as those contained in section 57.071(2)....
...experts. There, no mention is made of having to file a report by the expert twenty days prior to the end of discovery or five days prior to the deposition of the expert. We note that the legislature has graciously requested that the requirements of section 57.071(2) be adopted by supreme court rule in the event that any court of competent jurisdiction were to find the provision unconstitutional....
...This opinion holding the statute invalid will give our supreme court jurisdiction to review our decision and consider that request. See Art. V, § 3(b)(1), Fla. Const. Id. at 738-39 (footnote omitted). No party in Cort ever sought review of that decision. As a result, section 57.071(2) has been in the status of having been declared unconstitutional for five years without the issue having come to this Court for approval or rejection after the analysis of the Fourth District. Further, because the Fourth District had been the only appellate court to pass upon the constitutionality of section 57.071(2), all trial courts during that time period were required to follow Cort....
...ired to follow that decision."). It is only now that the First District has agreed with the decision of the Fourth District in Cort, and Massey II has been timely presented to this Court for review, and we now address the constitutional challenge to section 57.071(2)....
...V, § 2(a), Fla. Const. Generally, the Legislature is empowered to enact substantive law while this Court has the authority to enact procedural law. See Allen v. Butterworth,
756 So.2d 52, 59 (Fla.2000). Thus, the issue in the instant case is whether section
57.071(2) is a procedural statute that impermissibly encroaches on this Court's rulemaking authority....
...and the same shall be taxed as costs." As noted by the Fourth District in Cort, this grant of authority to tax expert witness fees as costs has existed since at least 1949. See Cort,
807 So.2d at 738; see also §
92.231, Fla. Stat. (2006). In 1999, section
57.071(2) was enacted to provide: Expert witness fees may not be awarded as taxable costs unless the party retaining the expert witness furnishes each opposing party with a written report signed by the expert witness which summarizes the expe...
...Such report shall be filed at least 5 days prior to the deposition of the expert or at least 20 days prior to discovery cutoff, whichever is sooner, or as otherwise determined by the court. Under the substantive-versus-procedural analysis described by this Court in Kirian, we hold that section
57.071(2) is a procedural statute. As noted by the Fourth District in Cort, the right to tax expert witness fees as costs is not at all delineated in section
57.071(2); rather, the substantive right was created in section
92.231(2)....
...Thus, like the offer-of-judgment statute that we invalidated in Knealing, the statute at issue in this case does not expressly authorize an award of fees, nor does it provide an independent basis for awarding fees. Use of the language "[e]xpert witness fees may not be awarded as taxable costs unless" at the beginning of section
57.071(2) does not actually define a substantive right. Rather, the express right was created in section
92.231(2), and this language in section
57.071(2) is merely a prelude that attempts to introduce additional procedural elements related to the award of such costs. This prefatory language does not fix or declare any primary rights of individuals with regard to their persons and property, *940 see Kirian,
579 So.2d at 732, and section
57.071(2) is not a substantive statute. We conclude that because section
57.071(2) only delineates the steps that a party must fulfill (i.e., the proverbial hoops through which a party must jump) to be entitled to an award of expert witness fees as costs, this statute is unquestionably a procedural one which conveys no substantive right at all. See Raymond,
906 So.2d at 1049. [5] Moreover, our conclusion is supported by the fact that it is impossible to reconcile Massey's assertion that section
57.071(2) is substantive in nature because portions of the statute with regard to the procedures fall completely to the absolute discretion of the courts, even if there has been a failure of compliance....
...the statute and to set a time period of its own. We cannot conclude that a statute establishes or defines a substantive right where it allows courts, by the express terms of the statute, to unilaterally alter those "rights." Second, we conclude that section 57.071(2) is a procedural statute because the requirements of the statute conflict with the procedural mechanisms that have been clearly established by this Court through our rules of procedure. For example, section 57.071(2) contains a written report requirement and a time for filing a report....
...ion is there a requirement that an expert prepare a signed written report that "summarizes the expert witness's opinions and the factual basis of the opinions, including documentary evidence and the authorities relied upon in reaching the opinions." § 57.071(2), Fla....
...port requirement. Rather, the guidelines provide those costs that should be taxed for expert witnesses as: "A reasonable fee for deposition and/or trial testimony, and the costs of preparation of any court ordered report." (Emphasis supplied.) Thus, section
57.071(2) contains procedural requirements that do not exist in, and are in conflict with, the rules of practice and procedure that have been delineated by this Court for the discovery of expert information and for seeking reimbursement of fees for expert witnesses as costs. See Kirian,
579 So.2d at 732. The substantive right to taxation of expert witness fees as costs was created in section
92.231(2), and therefore, we conclude that section
57.071(2), like the offer-of-judgment statute which was addressed in Knealing, is exclusively procedural in nature....
...Regardless of location, these requirements would still impermissibly conflict with the rules of practice and procedure that have been adopted by this Court. See Jackson,
790 So.2d at 384. Although not dispositive to our holding today, we further note that the session law which enacted section
57.071(2) indicates that even the Florida Legislature questioned whether provisions of that law violated the separation of powers: It is the intent of this act and the Legislature to accord the utmost comity and respect to the constitutional...
...If the court were to strike any of these provisions, it would not invalidate the bill as a whole. H.R. Comm. on Judiciary, HB 775 (1999) Staff Analysis 22 (final June 2, 1999) (emphasis supplied). It should be noted that chapter 99-225 impacted a number of statutes; it did not merely create section 57.071(2)....
...Finch,
155 So.2d 790 (Fla.1963). Accordingly, the dissenting view is contrary to longstanding Florida jurisprudence. During both briefing and oral argument, it has been confirmed that all of the information that is required to be in the written report pursuant to section
57.071(2) was actually provided in this case to the parties through expert disclosures, answers to interrogatories, and affidavits and sworn deposition testimony....
...Thus, the spirit of the statute was fulfilled in this case because expert witness information was exchanged. The trial court was bound by the decision in Cort, and therefore, it is logical that the trial court did not condition the award of costs on compliance with section 57.071(2)....
...on to the opposing party, but failed to comply with the discovery requirements of the form of disclosure required by a statute, should be completely denied a reimbursement for expert witness fees on this basis. CONCLUSION In conclusion, we hold that section 57.071(2) impermissibly encroaches on the rulemaking authority of this Court because it imposes procedural requirements with regard to both the discovery of expert witnesses and the taxation of expert witness fees as costs which do not exist under the rules of practice and procedure that have been promulgated by this Court. Accordingly, we affirm the holding of the First District in Massey II that section 57.071(2) of the Florida Statutes is unconstitutional. It is so ordered. ANSTEAD, PARIENTE, and QUINCE, JJ., concur. CANTERO, J., dissents with an opinion, in which BELL, J., concurs. WELLS, J., recused. CANTERO, J., dissenting. I respectfully disagree with the majority's conclusion that section 57.071(2), Florida Statutes (1999), impermissibly intrudes on our rulemaking authority....
...The issue is whether the statute provides for, or conditions, a substantive right (which is within the Legislature's authority) or whether it merely establishes a procedure for enforcing a right (which is within our authority). The fair answer is that it does both. The first sentence of section 57.071(2) conditions the right to taxation of expert witness fees as costs on the filing of a report....
...Because the second sentence is necessary to implement the substantive aspects of the statute, and because it does not conflict with existing rules, I would hold that the procedural aspects of the statute are incidental to the substantive ones, and are therefore constitutional. Below I demonstrate why section 57.071(2) is constitutional by explaining that (I) the first sentence of the statute, *944 which conditions the right to taxation of expert witness fees as costs on filing the expert's report, is no less substantive because it is contained in...
...We have defined substantive law, however, "as that part of the law which creates, defines, and regulates rights, or that part of the law which courts are established to administer." Id. (emphasis added) (quoting Haven Fed. Sav. & Loan Ass'n v. Kirian,
579 So.2d 730, 732 (Fla.1991)). We must therefore decide whether section
57.071(2) "creates, defines, and regulates rights." We have recognized that "the circumstances under which a party is entitled to costs and attorney's fees is substantive." In re Amendments to Fla....
...Such report shall be filed at least 5 days prior to the deposition of the expert or at least 20 days prior to discovery cutoff, whichever is sooner, or as otherwise determined by the court. This subsection does not apply to any action proceeding under the Florida Family Law Rules of Procedure. §
57.071(2), Fla. Stat. (2007); see ch. 99-225, § 5, at 1407, Laws of Fla. [7] While the *945 right to taxation of expert witness fees as costs is created in section
92.231(2), Florida Statutes, the first sentence of section
57.071(2), by conditioning that right, further defines and regulates it....
...2000) (reiterating that "the existence of a right for indigents to proceed without payment of costs is a substantive one and is properly provided for by the Legislature" and that "the right could be properly limited by the Legislature") (emphasis added). Similarly, here, the first sentence of section
57.071(2) conditions the substantive right to taxation of expert witness fees on providing the opposing party a report of the expert. Thus, while section
92.231(2) creates the right to such costs, section
57.071(2) conditions it....
...If it is substantive, then it remains so regardless *946 of whether other statutes also inform the right. The placement of a condition on a right in a different statute from the one creating it does not render it procedural. The two statutessections
57.071(2) and
92.231(2)must be read in pari materia....
...The amendment affected only the timing of the release. Id. In this case, on the other hand, the report requirement conditions the right to taxation of expert witness fees. The statute expressly provides that such fees "may not be awarded as taxable costs unless" the report is provided. § 57.071(2), Fla. Stat. I repeat: a condition on the right to taxation of costs is not procedural merely because it is contained in a different statute than the one creating the right. The majority nevertheless concludes that "this language in section 57.071(2) is merely a prelude that attempts to introduce additional procedural elements related to the award of such costs." Majority op....
...erence to; it is a direct statement by the legislature of its intent." (quoting State v. Webb,
398 So.2d 820, 824-25 (Fla.1981))). [8] *947 II. INCLUDING A TIME LIMIT DOES NOT RENDER THE STATUTE PROCEDURAL Having concluded that the first sentence of section
57.071(2), the expert report requirement, is a constitutional limitation on the substantive right to taxation of expert witness fees, I next explore the second sentence, which states: "Such report shall be filed at least 5 days prior to the d...
...5 (Fla.2004) (Cantero, J., concurring) ("Once a case is filed in a court of law, the decision of when that right may be invoked is quintessentially a matter of procedure, over which this Court has ultimate authority."). Thus, I agree that the time limit for filing the expert's report in section 57.071(2) is procedural....
...Absent some time limitation, the requirement would be meaningless. A party could simply wait to provide a report until it has prevailed and is seeking costs, at which point the report would be useless. Thus, I conclude, as we have in other similar cases, that the suggested deadline in section 57.071(2), while procedural, does not infringe on our rulemaking authority....
...("[W]here there is no substantive right conveyed by the statute, the procedural aspects are not incidental; accordingly, such a statute is unconstitutional." (citing Knealing,
675 So.2d 593)). Unlike the provisions at issue in Knealing and Raymond, section
57.071(2) is not purely proceduralit also contains the substantive report requirement. The procedural deadline for filing is necessary to implement it. The majority concludes that section
57.071(2) cannot be substantive "because portions of the statute with regard to the procedures fall completely to the absolute discretion of the courts, even if there has been a failure of compliance." Majority op. at 940-41. It is certainly true that the second sentence of section
57.071(2), setting deadlines for filing the expert report of five days before the expert's deposition, twenty days before the discovery cutoff, "or as otherwise determined by the court," leaves discretion to the trial court....
...Accordingly, the legislatively enacted statute does not "interfere with," "intrude upon," or "conflict with this Court's own rule." As such, it cannot be said that the statute unconstitutionally violates separation of powers. Similarly, here, the deadline for filing the expert report in section 57.071(2) does not conflict with any rules of procedure....
...at 940 note 5, it cites no authority permitting this Court to override substantive law by procedural rule. Just as we readily assert our authority to adopt court procedure, we must respect the Legislature's constitutional prerogative to enact substantive law. The majority concludes that section 57.071(2) conflicts with Florida Rules of Civil Procedure 1.280(4) and 1.525 and the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions....
...As its title reflects, Rule 1.280, "General Provisions Governing Discovery," is a discovery rule. It details the procedure for obtaining discovery from experts. It has nothing to do with the recovery of costs. [9] I recognize that both rule 1.280(b)(4)(A)(i) and section 57.071(2) require a summary of the expert's opinions and the basis of the opinions; one through responses to interrogatories, the other through a "written report." § 57.071(2), Fla....
...about its experts. Litigants must comply with the statute when seeking to tax their own experts' fees as costs, and with the rule when seeking pretrial discovery or responding to pretrial discovery requests. A litigant can certainly comply with both section 57.071(2) and rule 1.280. Thus, the statute does not conflict with the rule. Simply because the opposition may learn information about an expert from the report provided under section 57.071(2) does not make it a pretrial discovery rule....
...Dictionary 498 (8th ed.2004) (explaining that the "primary discovery devices are interrogatories, depositions, requests for admissions, and requests for production"). As explained above, a party cannot be compelled to disclose any information under section 57.071(2), nor does section 57.072(2) authorize an opposing party to request any information. Thus, by definition, it is not a pretrial discovery rule. I likewise disagree that section 57.071(2) conflicts with Florida Rule of Civil Procedure 1.525....
...Civ. P. 1.525 cmt. ("This rule only establishes time requirements for serving motions for costs, attorneys' fees, or both. . . ."). In other words, the rule governs only the procedure for claiming a cost award to which a party is otherwise entitled. Section 57.071(2) does not conflict with the requirement in rule 1.525 that a party seeking costs or fees file a motion or the time limit for filing that motion. Even if a party timely files an expert witness report pursuant to section 57.071(2), before it can obtain a judgment taxing its expert witness fees as costs, it must still follow the procedure in rule 1.525. Therefore, section 57.071(2) does not conflict with rule 1.525. Finally, section 57.071(2) does not conflict with the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions. Majority op. at 941. The majority essentially concludes that because the guidelines do not contain a report requirement, section 57.071(2) conflicts with the guidelines....
...atory, and the appropriate assessment of costs in any particular proceeding remains within the discretion of the trial court."). Thus, as with conflict with procedural rules, to the extent the majority concludes the substantive report requirement in section 57.071(2) conflicts with the guidelines, the statute controls....
...Like rules 1.280 and 1.525, the guidelines simply do not address the filing of an expert report or the deadlines for doing so. Therefore, because it is necessary to implement the substantive report requirement and is not addressed by existing rule, I would simply adopt the procedural portion of section
57.071(2)the second sentenceas a rule of this Court. See Timmons,
608 So.2d at 3 (adopting procedural portion of statute as a Court rule). CONCLUSION For the reasons explained, I would uphold the constitutionality of section
57.071(2), Florida Statutes....
...e charged with the costs of another. Cost provisions are a creature of statute." Bd. of County Comm'rs v. Sawyer,
620 So.2d 757, 758 (Fla.1993). [5] The dissenting analysis is based entirely upon the initial conclusion that the procedural aspects of section
57.071(2) are incidental because they only implement the alleged substantive right established in the first sentence of the statute (i.e., the report requirement)....
...entrusted to this Court. We decline to endorse an analysis that would effectively authorize one branch of government to subsume the powers of a coequal and independent branch through the use of prefatory words. [6] Although the dissent contends that section 57.071(2) does not conflict with Florida Rule of Civil Procedure 1.280(b)(4) because the statute and the rule "apply in different contexts," see dissenting op....
...pects of the discovery processi.e., the dates of the expert depositions and the discovery cutoff date. Thus, contrary to the dissent's assertion, which imposes artificially rigid distinctions on processes which ultimately accomplish the same goal, section 57.071(2) clearly applies to the discovery process, and this statute constitutes a thinly cloaked attempt to amend the process by tying that which is clearly a procedural report requirement to a long-established substantive right which was created in another statute....
