Hendry Tractor Co. v. Fernandez

• Decision Date: 21 April 1983
• Docket Number: No. 61527,61527
• Parties: HENDRY TRACTOR COMPANY, A Florida Corporation, Petitioner, v. Antonio FERNANDEZ and Marta Fernandez, his wife, Respondents.
• Court: Florida Supreme Court

Page 1315

432 So.2d 1315

HENDRY TRACTOR COMPANY, A Florida Corporation, Petitioner, v. Antonio FERNANDEZ and Marta Fernandez, his wife, Respondents.

No. 61527.

Supreme Court of Florida.

April 21, 1983.

Rehearing Denied July 8, 1983.

Nancy Schleifer of Peters, Pickle, Flynn, Niemoeller, Stieglitz and Downs, Miami, for petitioner.

Edward A. Perse of Horton, Perse & Ginsberg, and Lawrence Rodgers, P.A., Miami, for respondents.

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. Thereafter Mr. Fernandez along with his wife, Marta, brought a personal injury action against Hendry Tractor. Under Florida's alternative pleading rules the Fernandezes were obliged to frame their cause of action in two counts; one sounding in negligence, the other in breach of warranty/strict liability. The trial jury, by way of special verdict interrogatories found Hendry Tractor Company liable on the negligence count but not liable on the count of strict liability/breach of warranty. The final judgment rendered pursuant to the verdict provided that Antonio and Marta Fernandez recover from Hendry Tractor Co. the sum of $101,600.00. Thereafter the trial judge taxed costs in favor of the Fernandezes in the amount of $3,650.54 and in favor of Hendry in the amount of $10,623.06. [The judge's rationale being that Hendry had prevailed on the breach of warranty/strict liability count and should be awarded costs on that particular portion of the litigation.] The respective costs were then set off with the final cost judgment being entered in favor of Hendry (defendant at trial) for the sum of $6,975.52. Thereupon the Fernandezes appealed the cost judgment.

The Florida Third District Court of Appeal, citing Kendall East Estates, Inc. v. Banks, 386 So.2d 1245 (Fla. 3d DCA 1980), reversed and held that the Fernandezes alone were entitled to costs as they were the prevailing parties.

Hendry Tractor then suggested that the district court's opinion be certified to the Florida Supreme Court as a matter of great public importance. The district court, Schwartz, J., dissenting, heeded this suggestion and the following question was certified:

Whether a party is entitled to recover legal costs pursuant to section 57.041(1), Florida Statutes (1979), which provides that the party recovering judgment shall recover all his legal costs, when that party was awarded a judgment on only one of the counts in his multi-count complaint.

Fernandez v. Hendry Tractor Co., No. 80-2325 (Fla. 3d DCA, Jan. 5, 1982).

For reasons discussed below we find that a plaintiff in a multicount personal injury action who recovers money judgment on at least one but not all counts in the cause of action, is the "party recovering judgment" for purposes of section 57.041(1), Florida Statutes (1979), and therefore is entitled to recover costs. In so deciding, we approve the decision of the district court.

Section 57.041(1), Florida Statutes (1979), entitled "Costs; recovery from losing party", provides:

(1) The party recovering judgment shall recover all his legal costs and charges which shall be included in the judgment; but this section does not apply to executors or administrators in actions when they are not liable for costs.

(Emphasis added.) The statute expressly demands that the party recovering judgment be awarded costs. This unambiguous language need not be construed. Rather, it should be applied as is to the given situation.

At trial, the jury found Hendry Tractor culpably negligent and as a result, the Fernandezes were awarded $101,600.00. Hendry filed no counterclaims, nor were any affirmative claims established against the Fernandezes during the course of litigation. Net judgment was, without doubt, rendered in favor of the plaintiffs/Fernandezes. As a general rule costs follow the outcome of the litigation and we are not here confronted with a situation warranting departure from such principle. Schwartz v. Zaconick, 74 So.2d 108 (Fla.1954); Spicuglia v. Green, 302 So.2d 772 (Fla. 2d DCA 1974), cert. denied, 315 So.2d 193 (Fla.1975); Jordon v. Reynolds, 154 So.2d 200 (Fla. 3d DCA 1963). The Fernandezes are clearly the parties recovering judgment and should be awarded costs.

As we have stated above, section 57.041(1), Florida Statutes (1979), is entitled "Costs; recovery from losing party" (emphasis added). It follows logically that for Hendry Tractor to recover costs under section 57.041 the Fernandezes should be classified as the "losing parties" in the litigation. Here the facts do not support such a classification. It is undisputed that the Fernandezes were granted recovery on their claim of negligence but not on their strict liability/breach of warranty claim. The fact that their recovery could have been more lucrative than it actually was does not, by any stretch of the imagination render their ultimate monetary judgment of $101,600.00 a losing proposition. See Kendall East Estates, Inc. v. Banks.

Petitioner contends that Hendry Tractor prevailed on the breach of warranty/strict liability count and is entitled to costs for that portion of the litigation under the principle enunciated in Marianna Mfg. Co. v. Boone, 55 Fla. 289, 45 So. 754, 755 (1908): "Where the verdict is in effect for the defendant on any one or more of the counts of a declaration, the costs should be taxed as the statute and rules direct." (Emphasis added.) Petitioner further contends that the facts of the instant case are indistinguishable from those in Marianna Mfg. and therefore the Marianna Mfg. interpretation of the cost statute is binding.

We do not agree.

This Court, in Marianna Mfg. applied section 1736, Florida Statutes (1906), which stated in pertinent part: "Recovery of costs from losing party.--In all cases the party recovering the judgment shall recover also all his legal costs and charges which shall be included in the judgment." Although the wording of this provision closely resembles that of the present statute, section 57.041, the meaning and effect of the two statutes should not be equated.

The Court in Marianna Mfg. applied section 1736 long before Florida adopted the modern rules of pleading which permit alternative pleading of causes of action arising, or which could arise, out of the same transaction. In addition Marianna Mfg. was decided prior to Florida's adoption of strict liability. West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976). These factors, when considered together, render the 1908 interpretation of the cost statute outdated. Contrary to petitioner's contentions, the Fernandezes alternative theories of recovery were legitimate. In fact, pleading negligence and strict liability in the alternative was an advisable tactic under the circumstances. This Court, in West, commented on the interdependence of recovery theories arising in the area of products liability, stating:

Products liability deals with recourse for personal injury or property damage resulting from the use of a product and, in the...