## Facts

- Kenneth and Fonda Jarrett owned a home in Jackson County, West Virginia, supplied by a domestic water well.
- A contractor, E. L. Harper & Son, Inc., while constructing a public sewer line, conducted blasting or excavation that destroyed the Jarretts’ well.
- The Jarretts lacked water at their residence for about five weeks until a replacement well was completed.
- The replacement well cost $766.82, and the Jarretts incurred $115.30 in related out-of-pocket expenses (including laundromat expenses and supplies).
- The Jarretts sued for $5,000, seeking the replacement-well cost, reimbursement of out-of-pocket expenses, and damages for inconvenience, hardship, annoyance, and discomfort.
- The Jarretts demanded a jury trial; a jury was selected and seated.
- Before evidence was taken, the contractor confessed judgment for $882.12 (the documented out-of-pocket amounts).
- Without notice, motion, hearing, or evidence, and without submitting remaining damages to the jury, the trial court entered judgment for $882.12 plus costs and denied all additional damages for lack of “adequate proof.”

## Issues

1. Whether a trial court may, over a plaintiff’s objection, force acceptance of a defendant’s Rule 68 tender/confession of judgment and thereby terminate a jury-demanded claim for additional damages.
2. Whether entering judgment and denying contested damages without notice, hearing, evidence, or jury determination violates Rule 68’s structure and the plaintiff’s jury-trial rights on disputed damages.

## Decision

- The Supreme Court of Appeals of West Virginia reversed and remanded.
- The trial court erred by forcing acceptance of the confessed amount and disposing of remaining damage claims without a trial.
- Rule 68 contemplates a tender paid into court and affords the claimant options: accept and take judgment, reject, or accept as partial payment and proceed.
- Because the Jarretts objected and had a jury demand on disputed damages, the court could not end the case based solely on the defendant’s tender and counsel’s representations.

## Legal Principles

- A Rule 68 tender/offer does not authorize a court to compel settlement or unilaterally cut off a plaintiff’s claim for additional relief.
- When Rule 68 is invoked, the claimant retains the choice to accept, reject, or accept as partial payment and continue litigating the balance of the claim.
- Disputed factual questions about the existence and amount of damages—particularly non-pecuniary damages—cannot be resolved by judicial fiat without evidence and, where demanded, a jury trial.
- A trial court’s denial of damages for “inadequate proof” is improper when no evidentiary hearing or trial has occurred on those damage elements.

## Conclusion

The court held that a defendant’s Rule 68 tender cannot be imposed on an unwilling plaintiff to terminate a case, and that contested damages must be decided through regular procedures, including a jury trial when properly demanded; the judgment was reversed and the case remanded for further proceedings on the full measure of damages.


Jarrett v. E. L. Harper & Son, Inc., 235 S.E.2d 362 (W. Va. 1977)