DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
PENNY COHEN-EMANUEL and DEAN EMANUEL,
Appellants,
v.
COSTCO WHOLESALE CORPORATION,
Appellee.
No. 4D20-185
[April 28, 2021]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Howard K. Coates, Jr., Judge; L.T. Case No. 50-2016-CA-
003968-XXXX-MB.
David J. Zappitell and Gabriel F. Zambrano of Zappitell Law Firm, P.L.,
Delray Beach, for appellants.
David F. Cooney and Warren B. Kwavnick of Cooney Trybus Kwavnick
Peets, PLC, Fort Lauderdale, for appellee.
GERBER, J.
The plaintiff-husband appeals from the trial court’s final costs
judgment against him and in the defendant’s favor after he voluntarily
dismissed his loss of consortium claim on the first day of trial, which then
proceeded to a defense verdict on the plaintiff-wife’s primary liability claim.
The husband argues the trial court erred for four reasons: (1) the costs
awarded against him were merely duplicative of the costs awarded against
the wife and not related to his derivative loss of consortium claim; (2) the
defendant merely relied upon the evidence supporting a prior costs
judgment against the wife and thus failed to re-introduce an evidentiary
predicate for the costs judgment against the husband; (3) the judgment
failed to itemize the costs awarded against the husband and included a
$6,000.36 mathematical error; and (4) the trial court lacked jurisdiction
when it entered the costs judgment against the husband because the trial
court’s prior costs judgment against the wife did not reserve jurisdiction
to award costs against the husband.
We affirm on all arguments, with the exception of the third argument’s
reference to the $6,000.36 mathematical error, which the defendant
properly concedes requires correction of the costs judgment against the
husband.
On the first and second arguments, we recognize “no blanket rule exists
that automatically deems a loss of consortium claim as necessarily
‘inextricably intertwined’ with the primary liability claim for purposes of
awarding attorneys’ fees and costs.” Signal Hill Golf Course, Inc. v.
Womack,
309 So. 3d 707, 708 (Fla. 1st DCA 2020). Instead, “[t]he
prevailing approach is to require the party seeking to recover attorneys’
fees and costs to shoulder the burden to allocate them to [the] consortium
claim or to show that the issues were so intertwined that allocation is not
feasible.”
Id. at 709 (emphasis in original; citation and internal quotation
marks omitted). Here, the defendant presented both argument and
competent substantial evidence, in the form of expert witness testimony,
to support the trial court’s finding that the husband’s loss of consortium
claim was inextricably intertwined with the wife’s primary liability claim.
See Conti v. Auchter,
266 So. 3d 1250, 1252 (Fla. 5th DCA 2019) (reversing
the trial court’s denial of the defendant’s motion for fees where the
defendant presented both argument and evidence establishing that the
loss of consortium claim was inextricably intertwined with the primary
liability claim).
On the third argument, other than the $6,000.36 mathematical error,
the final judgment was accurate and corresponded exactly to the
defendant’s submitted itemized cost schedule. The costs judgment against
the husband did not include any of the trial costs which the defendant
incurred after the husband voluntarily dismissed his loss of consortium
claim, and the judgment provided the husband with the same pre-trial
cost reductions which the trial court had applied in its earlier costs
judgment against the wife. The trial court also properly ordered that the
wife’s payment of any overlapping costs would result in a credit to the
husband, and vice versa.
On the fourth argument, we recognize that, in the trial court’s judgment
in the defendant’s favor on the wife’s primary liability claim, the trial court
stated “[t]he Court reserves jurisdiction to tax fees and costs if and as
appropriate[,]” without referring to the husband’s voluntarily dismissed
loss of consortium claim. We further recognize that, in the trial court’s
later-entered costs judgment against the wife, the trial court stated
“[j]urisdiction of this case is retained to enter further Orders that are
proper to compel the [wife] to [provide discovery in aid of execution],”
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without referring to the husband’s voluntarily dismissed loss of
consortium claim.
However, these two judgments’ lack of reference to the husband’s loss
of consortium claim did not preclude the trial court from exercising
jurisdiction to later enter a costs judgment against the husband. Once the
husband voluntarily dismissed his loss of consortium claim, the defendant
was entitled to seek its costs against the husband pursuant to Florida Rule
of Civil Procedure 1.420(d) (“Costs in any action dismissed under this rule
shall be assessed and judgment for costs entered in that action ....”)
(emphasis added). As our sister court held in Golub v. Golub,
336 So. 2d
693 (Fla. 2d DCA 1976):
Costs are statutory allowances recoverable by the successful
party as an incident to the main adjudication. They are
neither part of the damages claimed nor a penalty and need
not be specially pleaded or claimed. The amount of costs does
not affect the jurisdiction of the court. Unlike the substantive
issues in a lawsuit, we know of no rule which precludes a
court from later entertaining a motion to tax costs even
though it has not reserved jurisdiction to do so.
Id. at 694 (internal citations omitted).
Based on the foregoing, we affirm the trial court’s costs judgment
against the husband, but remand for the trial court’s ministerial correction
of the $6,000.36 mathematical error in the judgment. No further hearing
shall be required for that ministerial correction.
Affirmed but remanded to correct the costs judgment’s mathematical
error.
CIKLIN and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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