FRANK DIGIACOMO and LAW OFFICE OF FRANK DIGIACOMO, ESQUIRE, P.A. v. KOGAN & DISALVO, P.A. and GEICO GENERAL INSURANCE COMPANY ( 2021 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
FRANK DIGIACOMO and LAW OFFICE OF FRANK
DIGIACOMO, ESQUIRE, P.A.,
Appellants,
v.
KOGAN & DISALVO, P.A. et al.,
Appellee.
No. 4D21-215
[June 9, 2021]
Appeal from the County Court for the Fifteenth Judicial Circuit, Palm
Beach County; Reginald Roy Corlew, Judge; L.T. Case Nos. 50-2019-AP-
000148-CA-XXMB and 50-2017-SC-002453-XXXX-SB.
Salvatore DiGiacomo of Law Office of Frank DiGiacomo, P.A., Stuart,
for appellants.
George M. Bakalar of Kogan & DiSalvo, P.A., Boynton Beach,
for appellee.
DAMOORGIAN, J.
Frank DiGiacomo and Law Office of Frank DiGiacomo, Esquire, P.A.
(“Defendants”), the prevailing parties below, appeal the court’s denial of
their request for: (1) attorney’s fees and costs pursuant to section 768.79,
Florida Statutes; (2) attorney’s fees as a sanction pursuant to section
57.105, Florida Statutes; and (3) costs under section 57.041, Florida
Statutes. We affirm the court’s denial of attorney’s fees and costs under
sections 768.79 and 57.105 without further comment. We reverse,
however, the court’s denial of costs under section 57.041.
Section 57.041 provides that “[t]he party recovering judgment shall
recover all his or her legal costs.” § 57.041(1), Fla. Stat. (2019). “Where
costs are sought based on section 57.041(1), a trial court has no discretion
to deny the party obtaining judgment its lawful costs.” Roberts v. Third
Palm, LLC, 300 So. 3d 1216, 1217 (Fla. 4th DCA 2020). As summary
judgment was ultimately entered in Defendants’ favor below, they are
entitled to costs under section 57.041 as a matter of law. 1 See id. at 1218(holding that the defendant was entitled to costs under section 57.041
after summary judgment was entered in the defendant’s favor).
Accordingly, we reverse and remand for the court to award Defendants
costs under section 57.041, Florida Statutes.
Affirmed in part, reversed in part, and remanded.
KUNTZ and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
1 Appellee Kogan & DiSalvo, P.A., the plaintiff below, concedes that Defendants
are technically entitled to costs under section 57.041, but argues that Defendants
waived the issue on appeal. Specifically, appellee argues that Defendants did not
reference the statute in the issue statement portion of their initial brief.
We disagree. Although Defendants did not specifically reference section 57.041
in their issue statement, they sufficiently referenced the motion for costs and
addressed the argument in the body of the initial brief. See Hoskins v. State,
75 So. 3d 250, 257 (Fla. 2011) (recognizing that a party must sufficiently raise
an argument in its initial brief or the argument will not be considered on appeal).
2