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Stilwell v. Gust12/28/2001
ts second assignment of error, defendant contends that the trial court erred in failing to enter judgment in favor of defendant for pro-rata contribution. Defendant argues that the amount subject to contribution must be the jury verdict plus costs and fees. We are not persuaded.
Defendant relies on Great West Casualty Co. v. Fletcher, 56 N.C. App. 247, 287 S.E.2d 429 (1982) and Roberts v. Swain, 353 N.C. 246, 538 S.E.2d 566 (2000). In Great West Casualty Co., this Court stated that "the pro rata share of each defendant is determined by dividing the amount of the judgment by the number of persons against whom it has been obtained." Great West Casualty Co., 56 N.C. App. at 249, 287 S.E.2d at 431. Roberts provided that a "judgment finally obtained" is the final amount entered by the court as a judgment, including the jury verdict plus any applicable adjustments. Roberts, 353 N.C. at 249, 538 S.E.2d at 568 (quoting Poole v. Miller, 342 N.C. 349, 353, 464 S.E.2d 409, 411 (1995)). Attorneys' fees and court costs are included in determining "judgment finally obtained." Id. at 249, 538 S.E.2d at 568.
Defendant's reliance on these cases is misplaced. In Great West Casualty Co., this Court was interpreting a Tennessee contribution statute, not G.S. §§ 1B-1 to -6, the North Carolina contribution statute. The Roberts court was applying "judgment finally obtained" as used in Rule 68 of the North Carolina Rules of Civil Procedure. "Judgment finally obtained" was defined in Poole, which stated:
Thus, we construe the legislature's choice of the phrase "judgment finally obtained" as indicative of the legislature's intent that it is the amount ultimately and finally obtained by the plaintiff from the court which serves as the measuring stick for purposes of Rule 68. For these reasons, we conclude that, within the confines of Rule 68, "judgment finally obtained" means the amount ultimately entered as representing the final judgment, i.e., the jury's verdict as modified by any applicable adjustments, by the respective court in the particular controversy, not simply the amount of the jury's verdict. Id. at 353, 464 S.E.2d at 411 (emphasis added).
The Court explicitly limited the application of its definition of "judgment finally obtained" to Rule 68.
In its judgment, the trial court ordered "that Defendant and Third Party Plaintiff Amanda Danley Gust shall pay [plaintiff] the amount of $853.75 as part of Court costs" and "that the [plaintiff] shall have and recover from Defendant and Third Party Plaintiff Gust reasonable attorney fees in the amount of $10,000.00, as part of costs . . . ." We discern no abuse of discretion in the trial court's award to plaintiff of fees and costs. Since the fees and costs were taxed explicitly to defendant, the remaining portion of the judgment subject to contribution is the jury verdict for damages. In calculating the pro-rata shares, the trial court properly applied G.S. §§ 1B-1 to -6 to this figure to determine defendant's and third-party defendant's pro-rata share of $2,700.50.
Affirmed.
Judges HUDSON and CAMPBELL concur.
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