Summary
holding that the trial court erred in requiring the plaintiff-offeree to pay "court cost" under Rule 68 because the plaintiff obtained a judgment more favorable than the defendant's offer of judgment
Summary of this case from Hubbard v. Delta Sanitation of MississippiOpinion
No. 55896.
October 1, 1986.
Appeal from the Circuit Court, Adams County, Edwin E. Benoist, Jr., J.
Forrest A. Johnson, Jr., Johnson Johnson, Natchez, for appellant.
John T. Green, Joseph S. Zuccaro, Natchez, for appellees.
Before WALKER, C.J., and SULLIVAN and ANDERSON, JJ.
This case is appealed from a judgment of the Circuit Court of Adams County granting the Stinsons' motion to strike allegations of the complaint, denying the Stinsons' request for attorney's fees, and awarding judgment to Johnston in the amount of $7,768.46. Johnston appeals, and the Stinsons cross-appeal.
We affirm the judgment of the lower court in all respects, except that part of the judgment requiring Johnston to pay the costs in the lower court incurred after the Stinsons' offer of judgment. Because Johnston obtained a final judgment more favorable than the Stinsons' offer, he should not be required to pay lower court costs incurred after the offer of judgment. Rule 68, Mississippi Rules of Civil Procedure. The judgment is affirmed in all respects except as to costs incurred in the lower court. As to those costs, the judgment is reversed and rendered here with the costs in the court below assessed against the appellee.
RULE 68. OFFER OF JUDGMENT
At any time more than fifteen 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 within ten days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the court shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the cost incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict, order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time, not less than ten days, prior to the commencement of hearing to determine the amount or extent of liability.
AFFIRMED IN PART; REVERSED IN PART AND RENDERED.
ROY NOBLE LEE and HAWKINS, P.JJ., and DAN M. LEE, PRATHER, ROBERTSON, SULLIVAN, ANDERSON and GRIFFIN, JJ., concur.