THIRD PALM LLC and RIVIERA BEACH INVESTORS, LLC v. KIM- RENEE ROBERTS

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
KIM RENEE ROBERTS,
Appellant,
v.
THIRD PALM, LLC, a Delaware Limited Liability Company; and
RIVIERA BEACH INVESTORS, LLC, a Florida Limited Liability
Company,
Appellees.
Nos. 4D19-989 and 4D19-2023
[July 29, 2020]
Consolidated appeal and cross-appeal from the Circuit Court for the
Fifteenth Judicial Circuit, Palm Beach County; Janis Brustares Keyser,
Judge; L.T. Case No. 50-2017-CA-003547-XXXX-MB.
John R. Whittles and Elizabeth F. Olds of Mathison Whittles, LLP, Palm
Beach Gardens, for appellant.
Kristin M. Ahr of Nelson Mullins Broad and Cassel, West Palm Beach,
for appellees.
PER CURIAM.
This appeal and cross-appeal arise out of a real estate agent’s attempt
to obtain compensation from a developer of a condominium project for
services and advice she alleged she provided to the developer. The trial
court entered summary judgment in favor of the defense based in part on
a statute providing that a sales associate may only sue an employer when
seeking compensation related to a brokerage transaction. The appellant
was employed by the real estate broker retained by the developer. We find
the trial court erred in relying in part on the statute, as the appellant’s
causes of action were not based on activities that are encompassed by the
statute. See generally Schickedanz Bros.-Riviera, Ltd. v. Harris, 800 So. 2d
608, 610-11 (Fla. 2001). But we affirm the summary judgment because
the summary judgment evidence established that there was no genuine
issue of material fact and the appellees were entitled to summary judgment
as a matter of law.
As for the cross-appeal, we find no merit to the appellees’ argument
that the trial court erred in finding the appellees’ offer of judgment was an
impermissible joint offer. However, we reverse the trial court’s summary
denial of the appellees’ request for costs.
After securing a summary judgment in its favor, the appellees filed a
motion to determine entitlement to fees and costs. As to costs, the
appellees filed an affidavit of costs that listed the costs sought to be
reimbursed and asserted the costs were reasonable and necessary. In a
response, the appellant disputed that the costs were “reasonably
necessary to prosecute the claim and were in fact incurred.” A hearing
was held on entitlement to attorney’s fees and costs, but the parties and
trial court focused on the fees issue. Subsequently, the trial court denied
the motion for fees and costs. The written order contains a citation that
is relevant to the fees issue but contains no elaboration as to why the court
found no entitlement to costs.
Section 57.041(1), Florida Statutes (2017), provides in pertinent part
that “[t]he party recovering judgment shall recover all his or her legal costs
and charges which shall be included in the judgment.” 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. Land & Sea Petroleum, Inc.
v. Business Specialists, Inc., 53 So. 3d 348, 356 (Fla. 4th DCA 2011).
However, it does have discretion with respect to the amount and types of
costs appropriate in the action. See Oriental Imports, Inc. v. Alilin, 559 So.
2d 442, 443 (Fla. 5th DCA 1990). Guidelines have been established by the
Florida Supreme Court to assist the trial court in exercising that
discretion. See In re Amendments to Unif. Guidelines for Taxation of Costs,
915 So. 2d 612 (Fla. 2005).
When a party makes an issue of the reasonableness of the costs, the
party seeking the costs has the burden of establishing the reasonableness
of the costs. See Gaultieri v. Keyser, 219 So. 3d 972, 973 (Fla. 2d DCA
2017) (finding that where party opposing motion for costs makes it known
that he objects to reasonableness of costs, trial court erred in awarding
such costs without any testimony regarding reasonableness of costs);
Nasser v. Nasser, 975 So. 2d 531, 532 (Fla. 4th DCA 2008) (“It is the
moving party’s burden to show that the requested costs were reasonably
necessary to defend the case at the time the action precipitating the cost
was taken.” (citing In re Amendments to Unif. Guidelines for Taxation of
Costs, 915 So. 2d at 616)).
Here, the trial court erred in finding no entitlement to costs after the
appellees recovered judgment in their favor. We reverse and remand for
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the trial court to hold an evidentiary hearing on the reasonableness of the
costs sought by the appellees.
Affirmed in part, reversed in part, and remanded with instructions.
CIKLIN, CONNER and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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