Progressive American Insurance Company v. Chiropractic Clinics of South Florida, PL, a/a/o Edward Hall

• Court: District Court of Appeal of Florida
• Decided: May 22, 2024
• Docket: 2022-0857
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed May 22, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-857 Lower Tribunal No. 16-178 SP ________________

Progressive American Insurance Company, Appellant,

vs.

Chiropractic Clinics of South Florida, PL, a/a/o Edward Hall, Appellee.

An Appeal from the County Court for Miami-Dade County, Patricia Marino Pedraza, Judge.

Banker Lopez Gassler P.A., and DeeAnn J. McLemore (St. Petersburg), for appellant.

George A. David, P.A., and George A. David, for appellee.

Before FERNANDEZ, SCALES and GORDO, JJ.

GORDO, J. Progressive American Insurance Company (“Progressive”) appeals an

order denying its motion for entitlement to attorney’s fees and denying its

costs. We have jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). Finding no

abuse of discretion in the trial court’s denial of attorney’s fees, we affirm that

portion of the trial court’s order without further discussion. We reverse the

portion of the trial court’s order denying costs pursuant to section 57.041,

Florida Statutes.

Progressive contends the trial court erred in denying its motion to tax

costs pursuant to section 57.041. “[W]hether a cost requested may be

awarded, at all, is a question of law to be reviewed de novo.” Sherman v.

Sherman, 279 So. 3d 188, 190 (Fla. 4th DCA 2019) (quoting City of Boca

Raton v. Basso, 242 So. 3d 1141, 1144 (Fla. 4th DCA 2018)). Section

57.041(1), Florida Statutes, 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.” § 57.041(1), Fla. Stat. “The statute

expressly demands that the party recovering judgment be awarded

costs.” Hendry Tractor Co. v. Fernandez, 432 So. 2d 1315, 1316 (Fla.

1983). “This unambiguous language need not be construed.” Id.

In this case, it is undisputed that Progressive was the party recovering

judgment. According to the plain language of the statute, we find that costs

2 had to be awarded to Progressive. See Tacher v. Mathews, 845 So. 2d 332,

334 (Fla. 3d DCA 2003) (“Section 57.041 mandates that a party recovering

a judgment is entitled, as a matter of right, to recover lawful court costs. The

award of these costs is not discretionary.”); Roberts v. Third Palm, LLC, 300

So. 3d 1216, 1217 (Fla. 4th DCA 2020) (“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.”); Weitzer Oak Park Est., Ltd. v. Petto, 573 So. 2d

990, 991 (Fla. 3d DCA 1991) (“Under section 57.041, Florida Statutes, every

party who recovers a judgment in a legal proceeding is entitled as a matter

of right to recover lawful court costs, and a trial judge has no discretion to

deny costs to the parties recovering judgment.”); Digiacomo v. Kogan &

Disalvo, P.A., 317 So. 3d 1163, 1164 (Fla. 4th DCA 2021) (“As summary

judgment was ultimately entered in Defendants' favor below, they are entitled

to costs under section 57.041 as a matter of law.”) (footnote omitted).

Affirmed in part; reversed in part and remanded with directions to

award taxable costs to Progressive.