ANTONIO FERNANDEZ AND MARTA FERNANDEZ, HIS WIFE, APPELLANTS,
v.
HENDRY TRACTOR COMPANY, ETC., APPELLEE
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The dissenting opinion argues that a defendant who successfully defended against a breach of warranty count should be able to recover their defense costs, citing precedent for apportioning costs based on prevailing party status for each count.
The dissenting judge would affirm the trial court's action in allowing Hendry Tractor to recover the costs expended in successfully defending against the breach of warranty counts.
Plaintiffs filed a multi-count complaint against two defendants, including claims for negligence, breach of warranty, and strict liability. The jury f…
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BASKIN, Judge.
After Antonio Fernandez was injured in a construction accident, he and his wife sued to recover damages under theories of negligence and breach of warranty. They recovered $101,600 under the negligence count but failed to recover under the count alleging breach of warranty.
The trial court awarded each party his costs pursuant to the counts upon which he prevailed. Appellants contend that they alone were entitled to recover costs, citing section 57.041, Florida Statutes (1979). We agree and reverse.
Section 57.041 provides:
(1) The party recovering judgment shall recover all his legal costs ....
Under that section, only a prevailing party is entitled to recover costs: Kendall East Estates, Inc. v. Banks, 386 So. 2d 1245 (Fla.1980). In Marianna Mfg. Co. v. Boone, 55 Fla. 289, 45 So. 754 (1908), the court established the principle that costs should be taxed “as the statutes and rules direct” but reached a different result by virtue of facts which are distinguishable from those presented in the case before us. In Marian-na the prevailing party’s judgment recovered less than the amount sought, and the court perceived the opposing party as having prevailed. In the case before us, however, Antonio and Marta Fernandez clearly prevailed and were thus entitled to recover their costs.
For these reasons, we reverse the costs’ judgment entered in favor of appellee and remand for the entry of a judgment for costs in favor of the prevailing parties, Antonio and Marta Fernandez.
BARKDULL, Judge,
dissenting.
The plaintiffs’ third amended complaint contained four counts. It sought relief against Hendry Tractor and its insurors upon a count of “negligence and a count of breach of warranty and strict liability. Its third count sought recovery against International Harvester and its insurance carriers under a claim for negligence and, in the final count, sought recovery against International Harvester upon a theory of strict liability or implied warranty. Upon a special interrogatory verdict, both International Harvester and Hendry Tractor were exonerated on the breach of warranty counts and, in fact, final judgment was rendered in favor of International Harvester on this verdict. And undoubtedly, if Hendry Tractor had sought a final judgment in accordance with the verdict on the breach of warranty counts it would also have been entitled to a final judgment.
I therefore would affirm the action of the trial judge in permitting Hendry Tractor to, in effect, recover the amount of the cost it expended in successfully defending against the breach of warranty counts. It appears to me that this case is clearly controlled by Marianna Mfg. Co. v. Boone, 55 Fla. 289, 45 So. 754 (1908), wherein the Supreme Court of Florida held that where a jury found in favor of a plaintiff on one count of the complaint without mentioning the other count its silence was an effectual finding in favor of the defendant and therefore ap proved apportioning the cost in accordance with the prevailing party as to each count,
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hendry Tractor Co. v. Fernandez, 432 So. 2d 1315 (Fla. 1983)…ADKINS, Justice. This cause comes before us on petition for discretionary review of a decision by the Florida District Court of Appeal, Third District, reversing the trial court’s cost judgment. Fernandez v. Hendry Tractor Co., 406 So. 2d 1213 (Fla. 3d DCA 1981). Our jurisdiction vests under article V, section 3(b)(4), Florida Constitution (a question of great public importance). Mr. Fernandez, respondent, was injured in an accident involving one of petitioner’s post hole diggers. There…
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State Farm Mut. Auto. Ins. Co. v. Marko, 695 So. 2d 874 (Fla. 2d DCA 1997)…for the recovery of its costs. Rather, State Farm is entitled to recover its costs pursuant to section 57.041(1), Florida Statutes (1993). Under section 57.041 “only a prevailing party is entitled to recover costs.” Fernandez v. Hendry Tractor Co., 406 So. 2d 1213, 1214 (Fla. 3d DCA 1981). State Farm was the prevailing party. The holdings of Mincin v. Short, 662 So. 2d 1323 (Fla. 2d DCA 1995), and Goode v. Udhwani 648 So. 2d 247 (Fla. 4th DCA 1994), do not negate the application of section 57.041 with regard…
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Cheetham v. Brickman, 861 So. 2d 82 (Fla. 3d DCA 2003)…costs. The law is clear that only a prevailing party who recovers a judgment is entitled to recover costs under section 57.041, Florida Statutes (2002). See Arellano v. Bisson, 761 So. 2d 365, 366 (Fla. 3d DCA 2000); Fernandez v. Hendry Tractor Co., 406 So. 2d 1213, 1214 (Fla. 3d DCA 1981). Finally, a fee award to Cheetham was rejected below on the finding that Cheet-ham had failed to pay sales proceeds to Brickman until after suit had been filed, thereby entitling Brickman rather than Cheetham to a fee award…
Authorities Cited
- Marianna Mfg. Co. v. Boone, 55 Fla. 289 (Fla. 1908)
- Weiss v. Turtletaub, 386 So. 2d 1245 (Fla. 3d DCA 1980)
- Kendall E. Ests., Inc. v. David P. Banks & Joan S. Banks, 386 So. 2d 1245 (Fla. 3d DCA 1980)