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Phillips v. Warren9/3/2002
judgment had been entered and post-judgment interest was involved. It was clearly known whether the amount tendered was for the full amount. (N.C. Gen. Stat. § 1-239 (2001) allows for partial payments - see Webb, 144 N.C. App. 381, 551 S.E.2d 440). In the present case, there was no sum certain when the offer was made. The offer of judgment was the full amount defendant was willing to give, but not necessarily what a jury may have believed plaintiff was entitled. This is the nature of actions that are "other than contract," which are controlled by N.C. Gen. Stat. § 24-5(b).
We believe that prejudgment interest in actions other than contract can be tolled by a lump sum Rule 68 offer of judgment. However, whether the interest was tolled will not be known until a sum certain is available. For purposes of tolling prejudgment interest in actions other than contract, the sum certain to be used for comparison will be the judgment finally obtained, calculated for Rule 68 purposes.
In calculating the judgment finally obtained, prejudgment interest is generally included. See Brown, 349 N.C. at 522, 507 S.E.2d at 896. Thus, in calculating the judgment finally obtained in a case where the plaintiff refused a lump sum offer of judgment, the full amount of prejudgment interest, both pre- and post-offer, shall be included along with the pre-and post-offer costs, the verdict, and any awarded attorneys' fees. See Roberts v. Swain, 353 N.C. 246, 250-51, 538 S.E.2d 566, 568-69 (2000). Only if the lump sum Rule 68 motion prevails, the offer being greater than the judgment finally obtained, will the offer of judgment be effective so as to toll further accrual of interest. Thus, plaintiff would only be awarded the verdict, any attorneys' fees, pre-offer costs and pre-offer interest, rather than the entire amount of interest. As long as a Rule 68 offer of judgment actually offers an amount, which clearly includes interest to date that is greater than the judgment finally obtained by plaintiff, it will toll the accrual of prejudgment interest as of the date of the offer.
Thus, the $613.00 should have been included in the trial court's initial calculation of the judgment finally obtained, and it was error for it to not do so. This assignment of error is sustained.
COSTS
Plaintiff contends that the trial court erred in the calculation of costs in its determination of whether Rule 68 applied in its order. Specifically, plaintiff argues that in Finding of Fact 14 the trial court erred by not including plaintiff's post-offer costs in the judgment finally obtained. We agree.
" he North Carolina Supreme Court stated that `costs incurred after the offer of judgment but prior to the entry of judgment should be included in calculating the "judgment finally obtained[.]"'" Robinson v. Shue, 145 N.C. App. 60, 67, 550 S.E.2d 830, 834-35 (2001) (quoting Roberts, 353 N.C. at 250-51, 538 S.E.2d at 569). It was error for the trial court not to include the full amount of plaintiff's costs in the judgment finally obtained. Plaintiff submits that this figure is $1,835.47, as evidenced by the affidavit of George B. Mast and plaintiff's bill of costs, both in the record.
JUDGMENT FINALLY OBTAINED
In light of the determination that the trial court erred in its analysis of Rule 68, we now turn to the issue of whether defendant's offer of judgment was indeed greater than the judgment finally obtained.
Judgment finally obtained consists of the verdict, costs, fees, interest and any other cost assessed to defendant for plaintiff's benefit, such as attorneys' fees. See Tew v. West, 143 N.C. App. 534, 538, 546 S.E.2d 183, 186 (2001). The verdict in the
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