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-CA003968-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.
2

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],”
3

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.