Opinion
No. 75-1551.
March 17, 1976.
Appeal from the Dade County Circuit Court, David Goodhart, J.
Stephens, Thornton Schwartz and Jonathan P. Lynn, Miami, for appellant.
High, Stack, Davis Lazenby and Alan R. Dakan, Wicker, Smith, Blomqvist, Davant, McMath, Tutan O'Hara and Richard A. Sherman, Miami, for appellees.
Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
This is an interlocutory appeal from an order denying costs to a defendant who received a judgment in the trial court discharging it from liability. As such, it must be reversed. See Ossinsky v. Nance, Fla.App. 1960, 118 So.2d 47; Jordan v. Reynolds, Fla.App. 1963, 154 So.2d 200; Spicuglia v. Green, Fla.App. 1974, 302 So.2d 772.
The final judgment in this cause was entered on the 27th of May, 1975. Upon defendant United Furniture's motion for costs, the trial court entered a cost judgment in the amount of $4,361.26. The judgment was entered against the plaintiffs and cross-plaintiffs jointly. Upon motion of the cross-plaintiffs, the cost judgment was set aside. On this appeal, the defendant urges (1) that it is entitled to costs and (2) that the trial court erred in setting aside its prior determination of costs. Inasmuch as it appears from the record that the ground upon which the trial court set aside its judgment of costs may have been that the cross-plaintiffs had no notice of the hearing, the order setting aside the cost judgment is affirmed insofar as it set aside the previously-entered order.
The second aspect of the order which denied defendant's motion to tax costs must be reversed on authority of the above cited cases.
Whereupon, the order is affirmed in part, reversed in part and the cause is remanded to the trial court with directions to proceed to determine taxable costs in this matter and to assess said costs against respective parties according to whether the costs to be allowed were incurred upon the defense of the complaint or the cross-complaints respectively.
Affirmed in part, reversed in part and remanded.