{
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  "name": "NATHANIA T. POOLE, Plaintiff v. GENEANE RENEE MILLER, Defendant",
  "name_abbreviation": "Poole v. Miller",
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    "judges": [
      "Judges ORR and MARTIN concur."
    ],
    "parties": [
      "NATHANIA T. POOLE, Plaintiff v. GENEANE RENEE MILLER, Defendant"
    ],
    "opinions": [
      {
        "text": "COZORT, Judge.\nPlaintiff sued defendant alleging defendant\u2019s negligence damaged plaintiff in an automobile collision. Defendant filed an answer denying negligence. After initial discovery was conducted, defendant tendered an Offer of Judgment of $6,000.00 to plaintiff, pursuant to Rule 68 of the North Carolina Rules of Civil Procedure. Plaintiff refused the offer of judgment, and the case was tried in Durham County-before Judge Henry W. Hight, Jr., on 24 May 1993. The jury rendered a verdict against defendant for $5,721.73. After trial and prior to judgment being entered, plaintiff filed a motion for attorney\u2019s fees and submitted a bill of costs to be paid by defendant, which included in part, attorney\u2019s fees, expert witness fees incurred after the filing of the offer, and interest from the date of the filing of the complaint. Defendant filed a motion to tax costs to plaintiff. Judge Hight granted plaintiff\u2019s motion for attorney\u2019s fees in the amount of $2,000.00 to be taxed against defendant, which sum included a portion of attorney\u2019s fees incurred by plaintiff subsequent to defendant\u2019s Offer of Judgment. The court denied defendant\u2019s motion to tax costs to plaintiff on the grounds that the final judgment obtained by plaintiff was greater than the amount offered by defendant under Rule 68.\nJudge Hight subsequently signed a Judgment on 15 June 1993 assessing $9,058.21 against defendant. That sum included the jury\u2019s verdict of $5,721.73 and the taxing of $3,336.48 in costs and interest against defendant. Defendant appeals from the order granting plaintiff\u2019s motion for attorney\u2019s fees and denying defendant\u2019s motion to tax costs to plaintiff, and from entry of the final judgment and bill of costs entered on 12 July 1993.\nDefendant contends that the trial court erred in (1) entering an order and judgment awarding plaintiff court costs, including attorney\u2019s fees, expert witness fees and interest incurred by plaintiff subsequent to defendant\u2019s offer of judgment; and (2) denying defendant\u2019s motion to tax costs to plaintiff. We agree and reverse.\nRule 68 of the North Carolina Rules of Civil Procedure provides:\nAt any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued.... If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 68(a) (1990) (emphasis added). Defendant argues that \u201cjudgment finally obtained\u201d means the jury verdict, without costs, attorney\u2019s fees, expert fees, and interest incurred after defendant\u2019s offer of judgment. Since the jury verdict of $5,721.75 was less than defendant\u2019s offer of judgment for $6,000.00, defendant contends that the trial court should not have awarded plaintiff any costs incurred after defendant\u2019s offer and that the trial court was required to grant defendant\u2019s motion for costs incurred after the making of the offer. Because we find that \u201cfinal judgment\u201d under Rule 68 means the jury verdict, we reverse that portion of the judgment which awards plaintiff costs incurred after defendant\u2019s offer and the trial court\u2019s denial of defendant\u2019s motion to tax costs to plaintiff.\nThis case is controlled by Purdy v. Brown, 307 N.C. 93, 296 S.E.2d 459 (1982). In Brown, defendant filed an offer of judgment pursuant to Rule 68 to allow judgment to be taken against him for the sum of $5,001.00, including costs accrued, except attorney\u2019s fees. Id. at 97, 296 S.E.2d at 462. Plaintiff received only $3,500.00 from the jury, but the trial court nonetheless ordered defendant to pay $1,200.00 in attorney\u2019s fees and $325.00 in expert witness fees. Id. at 98, 296 S.E.2d at 463. The Supreme Court concluded that plaintiff was required to bear the costs incurred after the offer of judgment was made because the plaintiff\u2019s recovery of $3,500.00 was not more favorable than the offer. The Court thus held that the expert witness fees and attorney\u2019s fees which were incurred after the offer of judgment was made must be borne by the plaintiff. Since \u201cRule 68 sanctions only provide protection against the costs incurred after the offer has been made[,]\u201d the Court further held that it remained within the trial judge\u2019s discretion under Rule 6-21.1 to award an attorney\u2019s fee for that portion of time not excluded under Rule 68. Id.\nThus, pursuant to Rule 68 the \u201cjudgment finally obtained\u201d in the instant case was the jury verdict of $5,721.73. Since this was less than defendant\u2019s offer of judgment, under Rule 68, attorney\u2019s fees, expert fees, and interest incurred after the offer on 13 April 1992 should have been borne by plaintiff. We thus hold that the trial court erred in awarding plaintiff court costs, including attorney\u2019s fees, expert witness fees and interest, all incurred by plaintiff subsequent to defendant\u2019s offer of judgment. Since Rule 68 requires the trial court to tax the costs incurred by defendant after the making of the offer to the plaintiff where the final judgment is less than the offer of judgment, we further hold that the trial court erred in denying defendant\u2019s motion to tax costs incurred after the making of the offer to the plaintiff. In Waters v. Heublein, Inc., 485 F. Supp. 110, 113 (1979), the court held: \u201cIf the offer of judgment exceeds the judgment finally obtained by the offeree\u2019 then the offeree, even if the prevailing party, must pay the offeror\u2019s costs incurred after the offer and is precluded from recovering its own costs for that time.\u201d We find that reasoning persuasive and adopt it.\nPlaintiff argues that prejudgment interest is part of the final judgment and thus the trial court did not err in awarding interest on the jury verdict incurred after defendant\u2019s offer of judgment. Plaintiff cites N.C. Gen. Stat. \u00a7 24-5(b) (1991), and Baxley v. Nationwide Mutual Ins. Co., 334 N.C. 1, 430 S.E.2d 895 (1993), for support. Plaintiff\u2019s argument fails. Under Purdy v. Brown, final judgment is the jury verdict; it does not include costs such as expert witness fees, attorney\u2019s fees, and interest incurred after the offer of judgment. Brown, 307 N.C. at 98, 296 S.E.2d at 463. Moreover, N.C. Gen. Stat. \u00a7 24-5(b), which states \u201c[i]n an action other than contract, the portion of money judgment designated by the fact finder as compensatory damages bears interest from the date the action is instituted until the judgment is satisfied\u201d indicates that interest is separate from, and not part of, the judgment. In Baxley, the Court held that prejudgment interest is an element of damages and thus plaintiff-insured was entitled to recover prejudgment interest on a judgment in a negligence case under a UIM contract that provided coverage to plaintiff insured for all the \u201cdamages\u201d awarded to her. Baxley, 334 N.C. at 7-8, 430 S.E.2d at 899-900. Baxley was not a Rule 68 case, and its holding does not effect the interpretation of \u201cfinal judgment.\u201d\nThe portion of the judgment awarding plaintiff costs incurred after the making of the offer and the trial court\u2019s denial of defendant\u2019s motion to tax costs incurred after the offer to plaintiff is reversed. The case is remanded for entry of judgment consistent with this opinion.\nReversed and remanded.\nJudges ORR and MARTIN concur.",
        "type": "majority",
        "author": "COZORT, Judge."
      }
    ],
    "attorneys": [
      "Michaels Jones Martin & Parris Law Offices, P.A., by E. Spencer Parris, for plaintiff appellee.",
      "Haywood, Denny, Miller, Johnson, Sessoms & Patrick, by John J. Padilla, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "NATHANIA T. POOLE, Plaintiff v. GENEANE RENEE MILLER, Defendant\nNo. 9314SC947\n(Filed 20 September 1994)\nJudgments \u00a7 115 (NCI4th)\u2014 offer of judgment higher than jury verdict \u2014 award of costs to plaintiff error\nWhere defendant tendered an offer of judgment of $6,000.00, and the jury awarded plaintiff $5,721.73, the \u201cjudgment finally obtained\u201d was the jury verdict, not the jury verdict plus prejudgment interest; therefore, the trial court erred in awarding plaintiff court costs, including attorney\u2019s fees, expert witness fees, and ' interest, all incurred by plaintiff subsequent to defendant\u2019s offer of judgment, and the court erred in denying defendant\u2019s motion to tax costs incurred after the making of the offer to the plaintiff.\nAm Jur 2d, Costs \u00a7\u00a7 23, 24.\nAppeal by defendant from order entered 12 July 1993 by Judge Henry W. Hight, Jr., in Durham County Superior Court. Heard in the Court of Appeals 11 May 1994.\nMichaels Jones Martin & Parris Law Offices, P.A., by E. Spencer Parris, for plaintiff appellee.\nHaywood, Denny, Miller, Johnson, Sessoms & Patrick, by John J. Padilla, for defendant appellant."
  },
  "file_name": "0435-01",
  "first_page_order": 465,
  "last_page_order": 469
}