Opinion
No. 80-2325.
December 1, 1981.
Appeal from the Circuit Court, Dade County, Sam I. Silver, J.
Horton, Perse Ginsberg, Lawrence B. Rodgers, Miami, for appellants.
Peters, Pickle, Flynn, Niemoeller, Stieglitz Downs and Nancy Schleifer, Miami, for appellee.
Before BARKDULL, SCHWARTZ and BASKIN, JJ.
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 Marianna 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.
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 approved apportioning the cost in accordance with the prevailing party as to each count.