Coe v. B & D Transp. Services, Inc.

561 So. 2d 469 (1990)

Craig L. COE, Appellant,
v.
B & D TRANSPORTATION SERVICES, INC., a Florida Corporation D/B/a Budget Car Sales of Southwest Florida, Appellee.

Nos. 89-01829, 89-02311.

District Court of Appeal of Florida, Second District.

May 25, 1990.

Andrew J. Rodnite, Jr. and Joseph R. Park of Park and Smith, P.A., Clearwater, for appellant.

Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, for appellee.

THREADGILL, Judge.

Craig L. Coe (Coe), plaintiff below, appeals from a final summary judgment and order of costs and attorney's fees. We affirm the summary judgment which determined that the buyer of an automobile had equitable title when Coe, a passenger, was injured in an accident involving the automobile. The effect of the judgment was to dismiss the seller, B & D Transportation Services, Inc., a Florida corporation d/b/a Budget Car Sales of Southwest Florida (Budget) from the law suit. We also affirm the general award of costs to Budget as the prevailing party. § 57.041, Fla. Stat. (1987).

Before final summary judgment was entered, Budget served Coe with an offer of judgment. The final summary judgment was thereafter entered in favor of the defendant, Budget. There was no judgment entered in favor of Coe. The trial court then entered an order entitling Budget to attorney's fees pursuant to sections 45.061 and 768.79, Florida Statutes (1987) and reserved jurisdiction to set the amount of fees.

This court recently held in Kline v. Publix Supermarkets, Inc., Nos. 89-00345 and 89-01182 (Fla. 2d DCA May 9, 1990), that before a defendant is entitled to an award of attorney's fees and costs pursuant to an offer of judgment, there must be a judgment rendered in favor of plaintiff. Because judgment was not rendered in favor of the plaintiff below, we reverse the order finding Budget entitled to attorney's fees.

Affirmed in part; reversed in part.

RYDER, A.C.J., and PATTERSON, J., concur.