NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING 

MOTION AND, IF FILED, DETERMINED 

IN THE DISTRICT COURT OF APPEAL 

OF FLORIDA 

SECOND DISTRICT 

MEDICAL SPECIALISTS OF TAMPA ) 

BAY, LLC, ) 

 ) 

 Appellant, ) 

 ) 

v. ) Case No. 2D14-1149 

 ) 

DAVID KELLY, ) 

 ) 

 Appellee. ) 

 ) 

Opinion filed April 15, 2015. 

Appeal from the Circuit Court for Pinellas 

County; Anthony Rondolino, Judge.

Bridget Remington of Himes & Hearn, P.A., 

Tampa; and Kenneth G.M. Mather of 

Gunster, Tampa, for Appellant. 

Benjamin Hillard of Hillard Law Group, P.A., 

for Appellee. 

VILLANTI, Chief Judge. 

 Medical Specialists of Tampa Bay, LLC, appeals the final judgment 

entered in favor of David Kelly in his action for breach of contract and unjust 

enrichment. We affirm the final judgment in all respects but one. Because the award of 

costs in the final judgment was entered in violation of Medical Specialists' due process 

rights, we must reverse this portion of the judgment. 
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 Kelly's claims were tried to the court. At the close of the bench trial, the 

court entertained closing arguments, accepted memoranda and case law from the 

parties, and took the matter under advisement. The transcript reflects that Kelly's 

counsel submitted a proposed final judgment to the court just before the parties left the 

courtroom, although no copy of this proposed final judgment is contained in the record. 

At that point in time, Kelly had neither filed a motion seeking costs nor submitted any 

evidence to the court to substantiate any request for an award of costs. Nevertheless, 

the trial court subsequently entered final judgment in favor of Kelly, which judgment 

included awards of damages, prejudgment interest, and costs. As Medical Specialists 

properly points out, the award of costs under these circumstances was improper. 

 Under Florida law, "it is not sufficient for a party to plead entitlement to 

fees or costs only in their pretrial pleadings, such as in a complaint or an answer. A 

timely motion is also required." Barco v. Sch. Bd. of Pinellas Cnty., 975 So. 2d 1116, 

1124 n.4 (Fla. 2008). The motion seeking costs must be filed no later than thirty days 

after the judgment is filed. See Fla. R. Civ. P. 1.525. And "the preferred procedure for 

the orderly taxation of costs would include service of the motion to tax costs, together 

with supporting statements and affidavits." Estate of Brock, 695 So. 2d 714, 717 (Fla. 

1st DCA 1996). Service of the motion for costs should be made 

"a reasonable time before the court enters the final judgment 

or decree, so that there will be sufficient time for the latter

party to file any objections he may have to all or any part of 

such itemization and for the court to hear and adjudicate 

such items by the time it enters the final judgment or 

decree." 

Id. (quoting Burnett v. Burnett, 197 So. 2d 854, 857 (Fla. 1st DCA 1967)); see also 

Sullivan v. Musella, 526 So. 2d 719, 721 (Fla. 2d DCA 1988). To award costs in the 
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absence of a written motion and evidence and without giving the opposing party the 

opportunity to be heard on the issue violates procedural due process. Cf. State v. 

Bennington, 384 So. 2d 42, 43 (Fla. 4th DCA 1980). 

 Here, Kelly does not dispute that he did not file a motion seeking costs, 

nor did he file an affidavit or other evidence of what costs he had incurred. He also 

does not dispute that the trial court did not hold a hearing or provide Medical Specialists 

with any other opportunity to contest the award of costs prior to the court making it. 

Given these undisputed facts, the award of costs in the final judgment violated due 

process, and this award must be stricken. In all other respects, the final judgment is 

affirmed. 

 Affirmed in part and reversed in part. 

CRENSHAW and SLEET, JJ., Concur.