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Glamann v. Kirk8/17/2001
resulting from injuries tortiously inflicted on the child's parents by a third party, not for wage loss due to services rendered by a spouse.
In this case, Mary Glamann's lost wages claim stemmed from her decision to transport her husband to his medical appointments because he was medicated and could not take himself. In light of Heritage, we decline to find such circumstances to warrant the allowance of a wage loss claim. There is no legal basis to support Mary Glamman's claim for lost wages.
E. The Superior Court's Award of Attorney's Fees to Kirk under Civil Rule 82 Was Harmless Error.
The trial court concluded that Kirk was the prevailing party and awarded her fifty percent of her actual attorney's fees. Glamann argues that he was the prevailing party in this case because he received an affirmative recovery, even if less than asked for, and thus the award to Kirk was erroneous. But Kirk contends that because she made an offer of judgment for $50,000, which Glamann did not accept, and because the verdict was only $10,000, she is entitled to attorney's fees as the prevailing party.
"The trial court has wide discretion in awarding attorney's fees to a prevailing party." When a party receives a substantial recovery, he or she is considered to be, with few exceptions, the prevailing party for purposes of attorney's fees under Rule 82. But in cases where an offer of judgment has been made, there is no need for the court to determine the prevailing party because that status is determined by the provisions of Rule 68, as is the award of attorney's fees.
In this case, the trial court did not rely on Civil Rule 68 for its award of attorney's fees, but instead considered Kirk to be the prevailing party for purposes of an award of enhanced attorney's fees under Rule 82(b)(3). Because of Glamann's failure to better the offer of judgment, the court's reliance on Rule 82 was plain error. But because Kirk was entitled to attorney's fees under Rule 68(b), and because the offer-of-judgment rule requires that she be considered the prevailing party, we conclude that this error was harmless.
"We will interfere with the trial court's determination as to attorney's fees only if the award is manifestly unreasonable." Kirk incurred attorney's fees in excess of $44,000 and was awarded half of those fees. It is possible that Kirk made her offer of judgment early enough in these proceedings to be eligible for more than fifty percent of her attorney's fees. But because Kirk has not cross-appealed the award of attorney's fees, the failure to consider the potentially higher award is harmless. And we conclude that the trial court's award of half of her actual attorney's fees is not manifestly unreasonable. Accordingly, we affirm the award of attorney's fees.
V. CONCLUSION
Because the superior court did not err in admitting evidence of malingering, giving an aggravating-cause instruction, denying the motion for a new trial, and disallowing Mary Glamann's wage loss claim, and because any error with respect to the award of attorney's fees was harmless, we AFFIRM the judgment in all respects.
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