Full Opinion

Third District Court of Appeal State of Florida Opinion filed January 29, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D19-142 Lower Tribunal No. 14-17706 ________________ Mariano Aguilo, Appellant, vs. American Sales and Management Organization LLC D/B/A Eulen America, et al., Appellees. An Appeal from the Circuit Court for Miami-Dade County, William Thomas, Judge. Rasco Klock Perez & Nieto, P.L., and Alfonso J. Perez; Billbrough & Marks, P.A., and Geoffrey B. Marks, for appellant. Holland & Knight LLP, and Joseph Mamounas and Manuel A. Miranda, for appellee American Sales and Management Organization LLC d/b/a Eulen America. Before SALTER, FERNANDEZ and LOBREE, JJ. SALTER, J. Mariano Aguilo appeals a final order denying his “Omnibus Motion for Attorney’s Fees and Costs,” following the voluntary dismissal of a lawsuit brought against him by the appellee, American Sales and Management Organization LLC (“ASMO”). Although Mr. Aguilo was never an employee or officer of ASMO, he was sued individually (with other defendants) in ASMO’s original and second, third, and fourth amended complaints. ASMO’s claims against Aguilo included civil conspiracy (for participation in alleged conspiracies to breach fiduciary duties, commit tortious interference, and misappropriate trade secrets) and aiding and abetting the commission of the acts alleged in the conspiracy counts. Motions to dismiss and pretrial orders whittled these down by eliminating the claims for conspiracy and aiding and abetting any breaches of common law fiduciary duties. After over three years of pretrial motion practice and discovery, and after the case was specially set for trial by jury, ASMO voluntarily dismissed its claims against Aguilo. Twenty-five days later, Aguilo filed a timely “omnibus motion” for attorney’s fees and costs claiming an entitlement under Florida Rules of Civil Procedure 1.525 and 1.442, and under sections 57.105, 688.005, and 768.79, Florida Statutes (2017).1 1 Aguilo’s taxable costs incurred over the three years were enumerated in the attachments filed with his separate motions and the omnibus motion. The claimed and itemized amounts in Exhibit “E” to the omnibus motion (incurred over the three- plus years Aguilo was kept in the case) exceeded $40,000.00 2 Following two hearings on Aguilo’s omnibus motion, the trial court entered an unelaborated order denying his claims for attorney’s fees as well as the claim for costs. In this ensuing appeal, Aguilo seeks reversal and remand only as to the denial of costs. Analysis We review the denial of costs de novo, because the order never reached specific categories of costs. The order sought to be reviewed is simply an unelaborated denial of all of the claimed costs. The question presented involves the interpretation of a rule of civil procedure, such that our review is de novo. Koppel v. Ochoa, 243 So. 3d 886, 889 (Fla. 2018). ASMO suggests that Aguilo’s separate motions for attorney’s fees and costs, as well as the omnibus motion, failed to mention Florida Rule of Civil Procedure 1.420(d)2 explicitly and thereby waived his right to recover them. ASMO’s argument fails for several reasons. First, to the extent that it is based on a theory of lack of notice, Aguilo’s written motions sought taxable costs after ASMO’s notice of dismissal; Aguilo’s written affidavit and attachments particularized the costs incurred and sought to be 2 In this opinion, “Rule 1.420(d).” 3 taxed; Aguilo’s notice of hearing identified the motions for costs; 3 and Aguilo’s motions for costs (as well as those for attorney’s fees) were considered by the trial court and counsel at the two hearings on the motions. Second, the omnibus motion and its itemized schedule of costs was timely— filed in less than thirty days from ASMO’s notice of voluntary dismissal—and in its introduction stated that it was a motion for costs under Florida Rule of Civil Procedure 1.525, among others. That rule expressly refers to motions seeking costs after a notice of voluntary dismissal. Third, Rule 1.420(d) states that “[c]osts in any action dismissed under this rule shall be assessed and judgment for costs entered in that action, once the action is concluded as to the party seeking taxation of costs.” The rule uses the term “shall.” ASMO cannot dispute that its voluntary dismissal was filed, and the case dismissed, “under this rule,” because ASMO began its notice of voluntary dismissal, “[i]n accordance with Florida Rule of Civil Procedure 1.420(a)(1).” Nor does ASMO suggest that its notice of dismissal without prejudice means that the case has not been “concluded” as to Aguilo. Unsurprisingly, given this record, ASMO’s reliance on the absence of a reference by Aguilo to Rule 1.420(d) (as an addition to his reference to Rule 1.525) 3 “The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.” Fla. R. Civ. P. 1.100(b), “Motions.” 4 in the omnibus motion, is unavailing. ASMO itself identified the applicable rule when it noticed and obtained its voluntary dismissal of Aguilo. For these reasons, we reverse the unelaborated order insofar as it denied Aguilo’s motion to tax costs, and we remand for the trial court’s review and taxation of any itemized costs claimed by Aguilo and appropriate under the applicable guidelines.4 Reversed and remanded with directions. 4 Fla. R. Civ. P. App. II, “Statewide Uniform Guidelines for Taxation of Costs in Civil Actions.” 5