BANKERS FIRE AND CAS. INS. CO. v. Newman , 1976 Fla. App. LEXIS 15071 ( 1976 )

330 So. 2d 760 (1976)

BANKERS FIRE AND CASUALTY INSURANCE COMPANY, Appellant,
v.
James B. NEWMAN et al., Appellees.

No. 75-2111.

District Court of Appeal of Florida, Fourth District.

April 9, 1976. Rehearing Denied May 17, 1976.

Ernest J. Rice, and John F. Lowndes, of Lowndes, Persol, Drosdick & Doster, P.A., Orlando, for appellant.

William B. Wilson, of Maguire, Voorhis & Wells, P.A., Orlando, for appellee Curtis Katz.

PER CURIAM.

Upon examination of the briefs and record on appeal and upon due consideration of oral argument we are of the opinion that the trial court erred in determining that the provisions of a surety bond issued by the plaintiff-appellant to secure payment of a promissory note created a contractual obligation to pay attorney's fees in the event of default on the bond. See United Bonding Insurance Co. v. Inter National Bank of Miami, 221 So. 2d 20 (Fla. App.3d 1969). While the promissory note provides for the payment of attorney's fees on default, the bond itself imposes no such obligation. Moreover, the suit below was neither a suit on the note nor a suit against the surety to enforce the provisions of the surety bond but, rather, was a suit for declaratory judgment filed by plaintiff to determine its rights and obligations under the subject bond which suit was dismissed by the plaintiff prior to any determination resulting in the appealed order taxing costs and awarding attorney's fees. In all other respects the final judgment is affirmed.

AFFIRMED, in part; REVERSED, in part.

CROSS and MAGER, JJ., and TROW-BRIDGE, C. PFEIFFER, Associate Judge, concur.