Opinion
No. 76-2018.
November 23, 1977. Rehearing Denied December 28, 1977.
Appeal from the Circuit Court, Sarasota County, Harry C. Parham, J.
Leslie Telford and Ronald Alexander Cyril of Nelson, Hesse, Cyril Weber, Sarasota, for appellant/cross-appellee Pan American Bank of Sarasota.
Jeffrey G. Wood of Livingston, Patterson Wood, Sarasota, for appellee/cross-appellant Lee-Bradley Corp.
Johnson S. Savary and Andrew Shaw of Kirk, Pinkerton, McClelland, Savary Carr, Sarasota, for appellees/cross-appellees A.D. Hancock and Amanda Jane Hancock.
Appellees/plaintiffs, A.D. and Amanda Jane Hancock, were awarded damages of $21,577.50 plus interest, plus costs against appellant/defendant, Pan American Bank of Sarasota. The cross-claim filed against Pan American Bank of Sarasota by cross-appellant/defendant, Lee-Bradley Corporation, was denied by the trial court. The court ordered Lee-Bradley Corporation to pay the costs assessed against Pan American Bank
We affirm the final judgment of the trial court except that part ordering Lee-Bradley Corporation to pay the court costs which we reverse and vacate. Costs are not generally awarded against a successful party. See G.M. Dykes Iron Works, Inc. v. Dehenffe, 131 So.2d 760 (Fla. 3d DCA 1961); 8 Fla. Jur. Costs § 7 (1956). Since Lee-Bradley Corporation was not found liable on any cause of action asserted against it, it was a successful party and is not subject to assessment of costs.
The final judgment also included a gratuitous statement that "[d]efendant, PAN AMERICAN BANK OF SARASOTA, reserves its right to file a Cross-Claim against the LEE-BRADLEY CORPORATION for all sums assessed and paid under this Judgment by the Bank to Plaintiffs." Lee-Bradley argues that it was error to
SUA SPONTE, GRANT PAN AMERICAN THE RIGHT TO FILE THE COMPULSORY COUNTER-CLAIM [sic] AFTER THE CLOSE OF THE TRIAL.
We note that the court did not award judgment in favor of Pan American on the trial judge's suggestion made in announcing the final judgment that it file for indemnification from Lee-Bradley. This point is raised prematurely and is not at issue here. We do not then decide whether Pan American may later be estopped from filing against Lee-Bradley Corporation.
AFFIRMED in part; REVERSED in part, and REMANDED for proceedings consistent with this opinion.
HOBSON, J. and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.