Estate of Covington v. Young

District Court of Appeal of Florida

Estate of Covington v. Young

521 So. 2d 360, 13 Fla. L. Weekly 637, 1988 Fla. App. LEXIS 946, 1988 WL 18957

CourtDistrict Court of Appeal of Florida

DecidedMarch 10, 1988

DocketNo. 87-1109

StatusPublished

Cited by2 cases

This text of 521 So. 2d 360 (Estate of Covington v. Young) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Estate of Covington v. Young, 521 So. 2d 360, 13 Fla. L. Weekly 637, 1988 Fla. App. LEXIS 946, 1988 WL 18957 (Fla. Ct. App. 1988).

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Opinion

COBB, Judge.

This cause began as a foreclosure action brought by Leondres Pryon Young and Judith Eloise Young (the Youngs) against the appellees, Wilfred F. Still and Jacqueline H. Still (the Stills). While the suit was pending the Stills filed a third-party complaint for indemnification against appellant, The Estate of James F. Covington, Jr., and Flagship Bank. The trial court granted summary judgment for the Stills on the issue of liability on the indemnity claim prior to any determination that the Stills were liable in the main foreclosure proceeding. The entry of judgment against Covington on the claim of indemnity, prior to any finding of liability in favor of the plaintiff on the main claim, constitutes premature action on the part of the trial court. See Jerome Nagelbush, Inc. v. Frank J. Rooney, Inc., 342 So.2d 121 (Fla. 3d DCA 1977); see also Mitsubishi International Corp. v. Zayre Corp., 479 So.2d 877 (Fla. 3d DCA 1985); Maple Chair Company v. W.S. Badcock Corp., 385 So. 2d 1036 (Fla. 1st DCA 1980).

Accordingly, the order entered below is reversed without prejudice and subject to further proceedings pending the out[361]*361come of the main claim.¹

REVERSED and REMANDED.

SHARP, C.J., and DANIEL, J., concur.

¹

. Covington has filed a notice indicating that the estate has settled the underlying foreclosure action with the Youngs, resulting in a voluntary dismissal with prejudice of the foreclosure action. While the Stills have apparently not suffered any damages in the settlement of the claim, a remand is proper, since they may be able to allege recoverable damages below. Among the damages properly recoverable are attorney’s fees incurred in the defense of the claim indemnified against; however, it should be noted that attorney’s fees incurred in establishing the right to indemnification are not recoverable. United States Automobile Association v. Hartford Insurance Company, 468 So.2d 545, 548 (Fla. 5th DCA), petition for review denied, 476 So.2d 676 (Fla.1985); see also Snider v. Continental Insurance Company, 519 So.2d 12 (Fla. 5th DCA 1987).

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COBB, Judge.

This cause began as a foreclosure action brought by Leondres Pryon Young and Judith Eloise Young (the Youngs) against the appellees, Wilfred F. Still and Jacqueline H. Still (the Stills). While the suit was pending the Stills filed a third-party complaint for indemnification against appellant, The Estate of James F. Covington, Jr., and Flagship Bank. The trial court granted summary judgment for the Stills on the issue of liability on the indemnity claim prior to any determination that the Stills were liable in the main foreclosure proceeding. The entry of judgment against Covington on the claim of indemnity, prior to any finding of liability in favor of the plaintiff on the main claim, constitutes premature action on the part of the trial court. See Jerome Nagelbush, Inc. v. Frank J. Rooney, Inc., 342 So.2d 121 (Fla. 3d DCA 1977); see also Mitsubishi International Corp. v. Zayre Corp., 479 So.2d 877 (Fla. 3d DCA 1985); Maple Chair Company v. W.S. Badcock Corp., 385 So. 2d 1036 (Fla. 1st DCA 1980).

Accordingly, the order entered below is reversed without prejudice and subject to further proceedings pending the out[361]*361come of the main claim.¹

REVERSED and REMANDED.

SHARP, C.J., and DANIEL, J., concur.

¹

. Covington has filed a notice indicating that the estate has settled the underlying foreclosure action with the Youngs, resulting in a voluntary dismissal with prejudice of the foreclosure action. While the Stills have apparently not suffered any damages in the settlement of the claim, a remand is proper, since they may be able to allege recoverable damages below. Among the damages properly recoverable are attorney’s fees incurred in the defense of the claim indemnified against; however, it should be noted that attorney’s fees incurred in establishing the right to indemnification are not recoverable. United States Automobile Association v. Hartford Insurance Company, 468 So.2d 545, 548 (Fla. 5th DCA), petition for review denied, 476 So.2d 676 (Fla.1985); see also Snider v. Continental Insurance Company, 519 So.2d 12 (Fla. 5th DCA 1987).

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521 So. 2d 360, 13 Fla. L. Weekly 637, 1988 Fla. App. LEXIS 946, 1988 WL 18957, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-covington-v-young-fladistctapp-1988.

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