concluding that attorney-client privilege is waived when client offers testimony concerning the substance of the communication
How later courts described this case
- concluding that attorney-client privilege is waived when client offers testimony concerning the substance of the communication
- “[b]ecause the parties did not stipulate to . . . damages, [this issue was] to be considered by the jury.”
Written by the judges who cited it.
The opinion
Judge Gkeene
dissenting in part.
I believe the trial court failed to exercise its discretion in denying Plaintiffs request for attorney’s fees under N.C. Gen. Stat. § 6-21.1 and therefore that denial must be reversed and remanded for reconsideration. Otherwise, I fully concur with the majority.
The trial court denied Plaintiff’s request for a section 6-21.1 award of attorney’s fees on the explicit grounds that the. “Lj]ury award was substantially less than the offered judgment.” This is an indication the trial court may have believed it was required to deny Plaintiff’s request for attorney’s fees on the ground the jury verdict was less than the offered judgment. This is simply not the law and also reveals the trial court did not exercise its discretion in ruling on Plaintiff’s section 6-21.1 attorney’s fees request. 1 See Calloway v. *143 Motor Co., 281 N.C. 496, 505 , 189 S.E.2d 484, 490-91 (1972) (motion denied as a matter of law when it should have been decided as a matter of discretion must be reversed and remanded); N.C.G.S. § 6-21.1 (1997) (attorney’s fee award in discretion of court).
Rule 68 of our Rules of Civil Procedure does require the trial court to assess plaintiff with “the costs incurred after” the offer, if the plaintiff rejects an offer from the defendant and the “judgment finally obtained” by the plaintiff is “not more favorable than the offer.” N.C.G.S. § 1A-1, Rule 68(a) (1990). The “judgment finally obtained” is the final judgment entered by the trial court, including the amount of the jury verdict and any attorney’s fees assessed pursuant to section 6-21.1. Poole v. Miller, 342 N.C. 349, 354 , 464 S.E.2d 409, 412 (1995). In this case, a denial of attorney’s fees on the basis of Rule 68 would have thus been premature if based simply on the comparison of the $900.00 jury verdict with the $4,100.00 offer. Furthermore, even if the offer is determined to be more favorable than the “judgment finally obtained,” the trial court retained the authority under N.C. Gen. Stat. § 6-21.1 to award attorney’s fees for legal services rendered to Plaintiff prior to the offer. Purdy v. Brown, 307 N.C. 93, 98-99 , 296 S.E.2d 459, 463 (1982).
. The exercise of discretion pursuant to a section 6-21.1 motion requires a consideration of “the entire record,” Washington v. Horton, 132 N.C. App. 347, 351 , 513 S.E.2d 331, 334 (1999), with emphasis on the economical feasibility of plaintiffs claim. See Hicks v. Albertson, 284 N.C. 236, 239 , 200 S.E.2d 40, 42 (1973) (statute must be construed liberally to accomplish purpose).