Dartez v. Peters

97 F.4th 681

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 26, 2024
• Docket: 22-3155
• Status: Published

Opinion

Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

March 26, 2024 UNITED STATES COURT OF APPEALS Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _______________________________________

SAMUEL LEE DARTEZ, II,

Plaintiff - Appellee/ Cross-Appellant,

v. Nos. 22-3155 & 22-3164

RICK PETERS; ALEX R. TAYLOR; JASON S. BAILEY; CHRISTOPHER BEAS; DANIEL W. DILORETO; CHRISTOPHER P. MAI, COLBY J. MARKHAM; DAVID RUBLE; BRIAN S. HEDGECOCK; HERMAN JONES; PERRY FREY; CHRISTOPHER BOWLING; ROBERT KEENER; JASON DEVORE; ROBERT WARE,

Defendants - Appellants/ Cross-Appellees,

and

MARK FRENCH; BRIAN JOHNSON; ROBERT W. DIERKS; JOSEPH EHRLICH,

Defendants. __________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. No. 5:15-CV-03255-EFM) _________________________________ Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 2

Gregory P. Goheen, McAnany, Van Cleave & Phillips, P.A., Kansas City, Kansas, for the Defendants-Appellants.

David G. Seely (Lyndon W. Vix and Ryan K. Meyer, with him on the briefs) of Fleeson, Gooing, Coulson & Kitch, LLC, Wichita, Kansas, for Appellee/Cross- Appellant.

Before MATHESON, BACHARACH, and EID , Circuit Judges.

BACHARACH, Circuit Judge.

This appeal involves a fee award to the attorneys representing a

prisoner who obtained a favorable judgment. Parties must ordinarily pay

their own attorneys’ fees in the absence of a contrary agreement or statute.

Alyeska Pipeline Serv. Co. v. Wilderness Soc., 421 U.S. 240, 247, 257

(1975). In this case, attorneys’ fees are awardable to the prevailing

plaintiff under both an offer of judgment and a statute. See 42 U.S.C.

§ 1988(b). But because the plaintiff was a prisoner, federal law would

ordinarily limit the amount of attorneys’ fees that can be recouped from

the defendants and require the plaintiff to contribute to any fee award.

42 U.S.C. § 1997e(d).

To resolve the appeal, we must decide how the offer of judgment

affects the applicability of the statutes allowing and limiting a fee award.

The district court assumed that an offer of judgment could trump the

2 Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 3

statutes, and the defendants don’t develop a contrary argument. 1 So the

appeal turns on how a court interprets the offer of judgment.

The offer of judgment included payment of $60,000 to the plaintiff

“plus reasonable attorneys’ fees and costs allowed by law, if any.”

Appellants App’x vol. 3, at 275. This language is ambiguous on whether

the parties waived a potential statutory limit on the amount of a fee award.

Because the district court resolved this ambiguity by using extrinsic

evidence, we defer to the district court’s finding on the parties’ intent.

The parties also disagree on whether the language waived the

plaintiff’s statutory obligation to contribute to his attorneys’ fee award.

Interpretation of this language didn’t involve any extrinsic evidence. So we

conduct de novo review when interpreting this part of the offer of

judgment. Through de novo review, we conclude that the parties agreed to

waive the statutory requirement for the plaintiff to contribute to his

attorneys’ award of fees.

Finally, we consider the plaintiff’s cross-appeal, which addresses a

statutory cap on hourly rates for an award of attorneys’ fees. The parties

agree that the cross-appeal turns on our disposition of the other challenges

1 The defendants point out that the district court didn’t cite a precedent “to suggest that an accepted Rule 68 offer of judgment could modify the mandatory provisions of [the statutory limit on attorneys’ fees] by mere silence.” Appellants’ Opening Br. at 18. But the defendants don’t otherwise question the parties’ ability to avoid the statutory constraints through an offer of judgment. 3 Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 4

to the fee award. Applying our disposition of the other challenges, we

conclude that the statutory cap on hourly rates does not apply.

1. A suit for excessive force leads to an offer of judgment and an acceptance.

Mr. Samuel Lee Dartez, II sued state officers for excessive force,

invoking 42 U.S.C. § 1983. To settle, the state officers made an offer of

judgment; and Mr. Dartez accepted the offer.

2. The district court awards over $570,000 in fees to Mr. Dartez’s attorneys.

Acceptance of the offer resulted in a judgment of $60,000 for

Mr. Dartez “plus reasonable attorneys’ fees.” Id.; see p. 3, above. So the

district court considered submissions on the amount of the attorneys’ fees

to be awarded. Based on these submissions, the district court granted a fee

award of $576,242.28. This appeal followed. 2

3. The defendants haven’t preserved their challenge to the proof of an actual violation.

The defendants argue that federal law prohibited an award of

attorneys’ fees because Mr. Dartez had not proven an actual violation. See

42 U.S.C. § 1997e(d)(1)(A) (establishing this requirement in suits filed by

prisoners). The district court characterized this argument as perfunctory.

The defendants don’t question this characterization, so the argument was

2 The appeal is brought by fifteen employees of the Kansas Highway Patrol who were named as defendants. The other defendants aren’t involved in the appeal. 4 Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 5

forfeited in district court. See Goode v. Carpenter, 922 F.3d 1136, 1149

(10th Cir. 2019) (stating that a party’s “perfunctory presentation” in

district court resulted in forfeiture).

We can ordinarily consider forfeited arguments for plain error. See

EEOC v. Beverage Distribs. Co., 780 F.3d 1018, 1023 n.4 (10th Cir. 2015).

But the defendants don’t argue plain error. So we decline to consider this

argument. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128

(10th Cir. 2011) (Gorsuch, J.).

4. Ambiguity arises from the combination of the offer of judgment and the applicable statutes.

This appeal turns on how two statutes apply to the offer of judgment.

Absent any agreement, attorneys’ fees could be

 allowed under 42 U.S.C. § 1988(b) and

 limited by 42 U.S.C. § 1997e(d).

Under § 1988(b), Mr. Dartez could obtain a reasonable award of attorneys’

fees as the prevailing plaintiff. Under § 1997e, however, three limitations

would arise:

1. The fee award couldn’t exceed $90,000 (150% of the amount awarded to Mr. Dartez).

2. He would need to contribute $15,000 (25% of the judgment) toward the award of attorneys’ fees.

3. The hourly rates for Mr. Dartez’s attorneys couldn’t exceed 150% of the hourly rates for criminal defense attorneys under the Criminal Justice Act, 18 U.S.C. § 3006A.

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42 U.S.C. § 1997e(d)(2)–(3).

The threshold issue is whether the offer of judgment unambiguously

waived the limits in § 1997e(d). The offer of judgment included $60,000

“plus reasonable attorneys’ fees and costs allowed by law, if any.”

Appellants’ App’x vol. 3, at 275; see p. 3, above. Assessing the ambiguity

of this clause is a question of law, triggering de novo review. Bank of

Okla. v. Muscogee (Creek) Nat., 972 F.2d 1166, 1171 (10th Cir. 1992). In

conducting de novo review of potential ambiguity, we consider whether the

offer of judgment is susceptible to two or more reasonable interpretations.

See Fire Ass’n of Phila. v. Taylor, 91 P. 1070, 1072 (Kan. 1907). 3

3 “The . . . application of Rule 68 is a matter of federal law.” Mock v. T.G.&Y. Stores Co., 971 F.2d 522, 527 (10th Cir. 1992). Under federal law, however, we apply the ordinary rules of contract interpretation. See Guerrero v. Cummings, 70 F.3d 1111, 1113 (9th Cir. 1995) (“The ‘usual rules of contract construction’ apply to interpreting the terms of a Rule 68 settlement offer in a § 1983 case.”); Goodheart Clothing Co. v. Laura Goodman Enters., Inc., 962 F.2d 268, 272 (2d Cir. 1992) (“Offers of judgment pursuant to Fed. R. Civ. P. 68 are construed according to ordinary contract principles.”); Whitaker v. Assoc. Credit Servs., Inc., 946 F.2d 1222, 1226 (6th Cir. 1991) (“Courts may apply general contract principles to determine what was intended in an offer of judgment.”). And we generally apply state law when interpreting contracts. Madsen Prud. Fed. Sav. & Loan Ass’n, 635 F.2d 797, 802–03 (10th Cir. 1980). The offer of judgment came in a case litigated in Kansas’s federal district court, so Kansas law would govern interpretation. Wilner v. Univ. of Kansas, 848 F.2d 1020, 1022 (10th Cir. 1988). 6 Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 7

4.1 The offer of judgment could reasonably have waived the cap on the award of attorneys’ fees.

The parties disagree over the effect of the offer of judgment on the

statutory ceiling for a fee award. This disagreement stems from a deeper

dispute over the statutory source for a fee award. Mr. Dartez identifies this

source as 42 U.S.C. § 1988(b), which allows recovery of a reasonable

amount of attorneys’ fees. The defendants identify the statutory source as

42 U.S.C. § 1997e(d)(2), arguing that this section caps the fee award at

$90,000 (150% of the judgment).

The parties’ disagreement stems partly from the phrase allowed by

law in the offer of judgment. What does this phrase modify, and which law

allows the fee award? Again, the parties supply different answers to both

questions. Mr. Dartez says that the phrase allowed by law modifies only

the term costs. The defendants disagree, arguing that the phrase modifies

both terms (reasonable attorneys’ fees and costs).

4.1.1 The offer of judgment is ambiguous as to a cap on the total fee award.

Both interpretations are plausible, and it’s not entirely clear whether

the term allowed by law modifies

 reasonable attorneys’ fees and costs

– or –

 just costs.

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The phrase allowed by law appears right after the term costs, and

there’s a principle (the last-antecedent rule) that would restrict the

modifier to the closest noun (costs). Barnhart v. Thomas, 540 U.S. 20, 26

(2003). 4 With this restriction of the modifier, the parties would have

agreed

 to an award of costs only if such an award had been allowed by law and

 to an award of attorneys’ fees if they were reasonable.

But context may undermine the basis for applying the last-antecedent rule.

Lockhart v. United States, 577 U.S. 347, 354 (2016).

Does context clarify the meaning of the compound noun reasonable

attorneys’ fees and costs? The defendants don’t

 address context or

 question the district court’s reliance on the last-antecedent rule.

The parties might have used the modifier allowed by law to allow costs

only if they are expressly authorized by some statute. This interpretation is

possible because a federal statute restricts assessment of costs to particular

categories of expenses. 28 U.S.C. § 1920. But the phrase allowed by law

4 “Kansas courts apply the last antecedent rule.” State v. Durham, 172 P.3d 88, 91 (Kan. App. 2007).

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might also modify the noun phrase reasonable attorneys’ fees. So the

context doesn’t clearly prevent application of the last-antecedent rule.

The concurrence disagrees, arguing that the phrase allowed by law

unambiguously refers to attorneys’ fees (as well as costs). For this

argument, the concurrence reasons that the last-antecedent rule can’t apply

because (1) attorneys’ fees and costs typically appears as one cohesive

phrase and (2) the Supreme Court doesn’t apply the last-antecedent rule

when the clause “hangs together as a unified whole, referring to a single

thing.” Concurrence at 2 (quoting Cyan, Inc. v. Beaver Cnty. Emps. Ret.

Fund, 138 S. Ct. 1061, 1077 (2018)). This reasoning has two shortcomings.

First, no one else has made this argument, and we are limited to the

arguments presented by the parties. See United States v. Sineneng-Smith,

140 S. Ct. 1575, 1579 (2020) (stating that courts “normally decide only

questions presented by parties” (quoting United States v. Samuels,

808 F.2d 1298, 1301 (8th Cir. 1987) (Arnold, J., concurring in denial of

reh’g en banc)).

Second, the concurrence’s approach begs the question whether the

frequent combination of the terms attorneys’ fees and costs means that

they refer to a unified whole. See Cyan, 138 S. Ct. at 1077. Even though

these terms often appear together, they involve “legally distinct categories

of monetary allowances.” Marx v. Gen. Revenue Corp., 668 F.3d 1174,

1178 (10th Cir. 2011); see Petersen v. Gibson, 372 F.3d 862, 868 (7th Cir.

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2004) (observing that “[t]he Supreme Court . . . has recognized that the

analysis of costs may differ from that of fees”); Flint v. Haynes, 651 F.2d

970, 973 (4th Cir. 1981) (“There is a strong historical basis for applying

different standards to the taxation of costs and the award of attorney’s

fees.”).

The Supreme Court has treated a phrase as a unified whole when

 a single noun phrase is followed by a restrictive clause 5 or

 both terms take the same direct object. 6

5 For example, the Supreme Court considered the applicability of the last-antecedent rule to a statute addressing [a]ny covered class action brought in any State court involving a covered security as set forth in subsection (b) of this section. Cyan, Inc. v. Beaver Cnty. Emps. Ret. Fund, 138 S. Ct. 1061, 1075 (2018) (quoting 15 U.S.C. § 77p(c)). The issue there was whether the ending modifier (as set forth in subsection (b)) applies only to the restrictive modifier involving a covered security. Id. at 1076. The Supreme Court answered no, reasoning that the restrictive modifier is most naturally read together with the preceding noun phrase (any covered class action brought in any state court involving a covered security). Id. at 1077. The Court reasoned that the combination of the restrictive modifier and noun phrase referred to a “single thing”: “a type of class action.” Id. For this reasoning, the Court analogized the statutory phrase to a sentence stating: “The woman dressed to the nines carrying an umbrella, as shown in the picture . . .” Id. The Court asked rhetorically whether anyone could doubt that the restrictive modifier (as shown in the picture) had referred to “the well-attired and rain-ready woman.” Id. (emphasis deleted). 6 An example exists when the Supreme Court addressed the meaning of the phrase capacity . . . to store or produce telephone numbers to be called, using a random or sequential number generator. Facebook, Inc. v. Duguid, 592 U.S. 395, 402 (2021) (quoting 47 U.S.C. § 227(a)(1)). The issue there was whether the ending modifier (using a random or sequential number generator) referred to one or both of the preceding verbs (store and produce). The Court answered that the modifier had referred to both verbs, reasoning that they were connected by the disjunctive or and took 10 Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 11

Neither the Supreme Court nor our court has ever applied this principle to

jettison the last-antecedent rule when two separate noun phrases are

 combined by the conjunctive and

 lack the same direct object.

In the phrase reasonable attorneys’ fees and costs, the conjunction

(and) suggests that the ending modifier could relate to both terms

(reasonable attorneys’ fees and costs). So some other appellate courts have

parsed the modifiers in clauses involving attorneys’ fees and costs,

concluding that the ending modifier applied only to the closest noun

phrase.

For example, the Montana Supreme Court interpreted a contract

clause allowing an award of actual costs and such reasonable attorney fees

as the court or arbitrator shall determine just. Gullett v. Van Dyke Constr.

Co., 111 P.3d 220, 223 (Mont. 2005). The question there was whether the

ending modifier (as the court or arbitrator shall determine just) had

modified costs, reasonable attorney fees, or both. Id. at 223–24.

Under the concurrence’s approach, the court would apply the ending

modifier to both costs and reasonable attorney fees because these terms

the same direct object (telephone numbers to be called). Id. at 403. The Court observed that “[i]t would be odd to apply the modifier (using a random or sequential number generator) to only a portion of this cohesive preceding clause.” Id. 11 Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 12

typically appear together. But the state supreme court didn’t take that

approach; the court instead applied the ending modifier only to the closest

noun phrase (reasonable attorney fees), relying on the conjunctive and as

well as the relative clause serving as the ending modifier:

Here, the main clause of the subject provision indicates two separate awards to which “the prevailing party . . . shall be entitled.” These are “actual costs,” and “such reasonable attorney fees as the court or arbitrator shall determine just.” These awards are separated from one another by the conjunction “and,” and the latter award—“reasonable attorney fees”—is situated within, and governed by, the relative clause, “such . . . as the court . . . shall determine just.” Due to the placement of “reasonable attorney fees” within this relative clause, and the remoteness of the phrase “actual costs” therefrom, we think it clear that the provision empowered the District Court to award fees on the basis of what is reasonable and just, but not costs, to which the prevailing party was entitled to the actual amount.

Id. at 224.

The concurrence argues that this rationale is distinguishable because

the Montana court relied on the

 “remoteness” of the terms fees and costs and

 the pertinence of the relative clause (such . . . as the court . . . shall determine just) to the second term.

Concurrence at 2–3. But both features apply to the relevant language in the

defendants’ offer of judgment.

The Montana Supreme Court didn’t regard the term attorney fees and

costs as remote because they were far apart. The series contained only two

nouns, so they were next to each other. Despite the proximity of the two

nouns, the court reasoned that they had been “separated” “by the 12 Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 13

conjunction ‘and.’” Gullett, 111 P.3d at 224; see p. 12, above (quoting the

pertinent passage in Gullett). The same is true here: The two nouns here

(attorneys’ fees and costs) are also separated by the conjunction and.

As the concurrence emphasizes, the Montana Supreme Court also

reasoned that the second noun (attorney fees) is “situated within, and

governed by, the relative clause, ‘such . . . as the court . . . shall determine

just.’” Gullett, 111 P. 3d at 224; see Concurrence at 2–3. Again, this

rationale applies equally here. In the offer of judgment, the second noun

(costs) is also “situated within, and governed by, the relative clause”

allowed by law. Gullett, 111 P.3d at 224.

The Oregon Court of Appeals also used the last-antecedent rule when

interpreting the phrase an award of reasonable attorney fees and costs and

expenses reasonably incurred. In re Olson & Olson, 480 P.3d 965

(Ore. App. 2021). The issue there was whether the ending modifier

(reasonably incurred) had addressed just the last noun phrase (costs and

expenses) or both noun phrases (reasonable attorney fees and costs and

expenses). Under the concurrence’s approach, the ending modifier would

address each noun phrase. But the court instead applied the ending

modifier only to the last noun phrase (costs and expenses), not to the first

noun phrase (reasonable attorney fees). Id. at 966–67.

The concurrence points out that the Oregon court reasoned that an

arguable redundancy would arise if the ending modifier were to apply to

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the first noun (attorney fees). Concurrence at 3; Olson, 480 P.3d at 967.

The attorney fees would have two modifiers: At the start would be the

adjective reasonable; at the end would be the modifier reasonably

incurred. 480 P.3d at 967. An “arguable redundancy” would arise “by

requiring that ‘reasonable attorney fees’ further be ‘reasonably incurred.’”

Olson, 480 P.3d at 967. So the Oregon court adopted the interpretation that

would avoid the “arguable redundancy.” Id.; see Concurrence at 3. 7

7 The Texas Supreme Court and Kentucky Court of Appeals took a similar approach when addressing the applicability of the last-antecedent rule to combinations of the terms attorneys’ fees and costs.

For example, the Texas Supreme Court interpreted the phrase court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action as justice and equity may require. Sullivan v. Abraham, 488 S.W.3d 294, 297 (Tex. 2016). The issue there was whether the ending modifier had addressed just the last noun phrase (other expenses) or each of the noun phrases (court costs, reasonable attorney’s fees, and other expenses). Id. Under the concurrence’s approach, the court would apply the modifier to all three noun phrases because they typically appear together. But the court instead held that the modifier had addressed only the last noun phrase (other expenses). Id.

The Kentucky Court of Appeals took a similar approach in Tri v. Tri, 2010 WL 3515768 (Ky. App. 2010) (unpublished). There the court interpreted a contract, which stated that the parties would be “responsible for their own attorneys’ fees and the costs of this action already incurred by them.” Id. at *3. Under the concurrence’s approach, the ending modifier (already incurred by them) would unambiguously apply to both reasonable attorneys’ fees and costs because these terms typically appear together. But the court concluded that there were two reasonable interpretations of the contract. For example, the ending modifier (already incurred by them) could apply to both reasonable attorneys’ fees and costs. But the ending modifier could also refer only to the immediately preceding term—costs. Because two plausible interpretations existed, the court regarded the contract as ambiguous. Id. 14 Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 15

But under the concurrence’s view, a similar redundancy would exist

here. As the concurrence argues, attorneys’ fees would ordinarily be

recoverable only as a form of costs. Concurrence at 4 (discussing

42 U.S.C. § 1988(b)). And the phrase allowed by law unquestionably

modifies costs. So under the concurrence’s approach, the term costs

allowed by law would include attorneys’ fees available under § 1988(b).

And § 1988(b) allows attorneys’ fees only if they’re “reasonable.” See

42 U.S.C. § 1988(b) (permitting “a reasonable attorney’s fee as part of the

costs”). So without the last-antecedent rule, the pertinent clause would

state that Mr. Dartez could recover

reasonable attorneys’ fees and costs (including reasonable attorneys’ fees)

That reading of the offer of judgment would create the same arguable

redundancy (reasonable attorneys’ fees) that the Oregon court rejected.

Granted, the cases in Montana and Oregon address different

combinations and sequences of contract terms involving costs and attorney

fees. The uniqueness of the combinations and sequences prevents hard-and-

fast rules on how to interpret ending modifiers involving costs and

attorneys’ fees.

Here, for example, the parties use a modifier (reasonable) before the

series began. The term reasonable obviously modifies the nearby term

(attorneys’ fees). The only question is whether the term attorneys’ fees is

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also modified by the more distant ending modifier (allowed by law). The

concurrence answers yes, but that would mean the term attorneys’ fees is

modified by descriptors on both sides. At the front is the adjective

reasonable; at the end is the relative clause as allowed by law. Why would

the parties separate the modifiers for the same term (attorneys’ fees)?

We have no way of knowing why the parties chose this combination

or sequence of the terms costs and attorneys’ fees. The combination and

sequence undoubtedly vary from those in the opinions by the courts in

Montana and Oregon. Because the potential combinations and sequences

are so varied, we can’t assume that the only conceivable interpretation is

one that none of the parties or the district court embraced. According to

the interpretations of the courts in Montana and Oregon, the last-

antecedent rule would tie the ending modifier to the second term in the

series (costs)—not the more distant term attorneys’ fees. The applicability

of the last-antecedent rule is thus ambiguous even though the terms costs

and attorneys’ fees often appear together.

If the last-antecedent rule does apply, the parties might have

intended to agree to any amount of attorneys’ fees that the district court

were to deem “reasonable.” See Miller v. City of Portland, 868 F.3d 846,

849–51 (9th Cir. 2017) (concluding that an offer of judgment, which

authorized a plaintiff to recover “reasonable attorney’s fees to be

determined by the Court,” did not include “considerations that govern the

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decision to award fees under §§ 1983 and 1988 . . . as those considerations

were not incorporated into the Offer”); Torres v. Walker, 356 F.3d 238,

245–46 (2d Cir. 2004) (rejecting an argument that a stipulation of

dismissal, stating that the defendants would pay the plaintiff’s counsel his

“reasonable attorney’s fees and costs to be determined by the Court upon

the submission of the parties,” meant that the fees would be limited by

42 U.S.C. § 1997e(d)). The parties thus might have agreed that the fee

award could extend beyond the limits in § 1997e.

But let’s assume, for the sake of argument, that the concurrence is

right and the last-antecedent rule doesn’t apply. In that event, we would

apply the ending modifier (allowed by law) to both noun phrases

(reasonable attorneys’ fees and costs). The question then would be which

law is referenced in the relative clause allowed by law: § 1988(b) or

§ 1997e?

Section 1988(b) allows an award of attorneys’ fees, and section

1997e limits those fees. A factfinder could thus reasonably regard the

reference to law as § 1988(b) because

 it allows the award and

 § 1997e instead limits the award.

Of course, this is not the only way to interpret the offer of judgment.

For example, the district court could interpret the offer of judgment to

authorize a fee award only to the extent that the overall amount falls within 17 Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 18

§ 1997e. 8 Under this interpretation, the district court would need to cap the

attorneys’ fees at $90,000 (150% of the amount awarded to Mr. Dartez

himself). 9

We thus have two ways to interpret the term allowed by law. The

term could mean that attorneys’ fees were reasonable if they satisfied

 § 1988

 both § 1988 and § 1997e. 10

Because both interpretations are plausible, the offer of judgment is

ambiguous as to a statutory cap on the fee award.

8 The parties stipulated in district court that the substantive issues would be governed by various provisions, including 42 U.S.C. § 1997e. But the stipulation preceded the offer of judgment, and the issue is whether the later offer of judgment jettisoned the limitations in § 1997e. 9 Mr. Dartez argues that § 1997e doesn’t apply because his claim involved events preceding his incarceration. We rejected this argument in Robbins v. Chronister, 435 F.3d 1238, 1244 (10th Cir. 2006). And we’re bound by Robbins. Haynes v. Williams, 88 F.3d 898, 900 n.4 (10th Cir. 1996). 10 The concurrence assumes that the term allowed by law refers to § 1988, not § 1997e. See p. 15, above. But the concurrence doesn’t say why the defendants’ reliance on § 1997e isn’t at least plausible.

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4.1.2 A canon and extrinsic evidence helped the district court to resolve the ambiguity.

To resolve the ambiguity, the district court used two interpretive

tools:

1. the defendants’ role in drafting the offer of judgment and

2. the existence of extrinsic evidence.

First, the court reasonably interpreted the language against the

defendants because they could have removed the ambiguity when they

drafted the offer of judgment. See Weber v. Tillman, 913 P.2d 84, 97

(Kan. 1996) (stating that ambiguities should be resolved against the party

that drafted the written instrument); see also Kubiak v. Cnty. of Ravalli,

32 F.4th 1182, 1187 (9th Cir. 2022) (stating that ambiguities in an offer of

judgment are construed against the drafter); Vasconcelo v. Miami Auto

Max, Inc., 981 F.3d 934, 943 (11th Cir. 2020) (stating that “an ambiguous

offer of judgment . . . is construed against its drafter”); Sanchez v.

Prudential Pizza, Inc., 709 F.3d 689, 694 (7th Cir. 2013) (construing an

ambiguous offer of judgment against the offeror).

Second, the district court reasonably relied on extrinsic evidence. For

example, the district court pointed to evidence that defense counsel had

expressed their clients’ willingness to pay attorneys’ fees of $100,000 or

more.

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The defendants argue that the district court shouldn’t have

considered this evidence because it involved settlement negotiations for a

Tenth Circuit mediation. But this argument lacks evidentiary support.

Mr. Dartez presented affidavits stating that defense counsel’s statements

had preceded an appeal or involvement by the Tenth Circuit Mediation

Office, and the defendants present no contrary evidence. 11

Because the defendants drafted the ambiguous language and extrinsic

evidence suggested that the defendants were willing to pay attorneys’ fees

of $100,000 or more, the district court interpreted the offer of judgment to

authorize a fee award exceeding the limit in § 1997e (150% of the amount

awarded to Mr. Dartez).

4.1.3 Resolution of this ambiguity lay with the district court as the factfinder.

We thus consider the district court’s role in resolving the ambiguous

language with the aid of extrinsic evidence.

Kansas courts distinguish between ambiguous contracts

 that can be interpreted as “clear question[s] of law” and

 that present questions of fact.

11 The defendants elsewhere say that settlement negotiations “should play no role,” but don’t say why. Appellants’ Opening Br. at 26. In their reply brief, the defendants cite a local rule of the district court. See D. Kan. Loc. R. 16.3(j)(2). But the defendants don’t argue that their counsel’s statement was inadmissible under this rule. 20 Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 21

Snodgrass v. State Farm Mut. Auto. Ins. Co., 804 P.2d 1012, 1016–17

(Kan. App. 1991).

The ambiguity here involved a factual question, and the district court

answered by relying in part on extrinsic evidence (the statement by defense

counsel that his clients were willing to pay attorneys’ fees of $100,000 or

more). The use of extrinsic evidence required a factual determination that

lay within the province of the factfinder. See Slawson Expl. Co. v. Vintage

Petroleum, Inc., 78 F.3d 1479, 1482 (10th Cir. 1996); see also Mobile

Acres, Inc. v. Kurata, 508 P.2d 889, 895 (Kan. 1973) (“Where there is

ambiguity in a written contract and extrinsic evidence is required to

ascertain the intention of the parties, summary judgment should not be

entered in the face of contradictory or conflicting evidence.”); Rettiger v.

Dannely,136 P. 942, 943 (Kan. 1913) (concluding that interpretation of an

ambiguous contract involves a question of fact rather than law). 12

12 The concurrence rejects deference to the district court’s interpretation. Concurrence at 5–6. In rejecting any deference, the concurrence relies in part on precedents in our court and the Kansas Supreme Court, which treat contract construction as a question of law. Id. at 5 & n.1 (quoting Penncro Assocs., Inc. v. Sprint Spectrum, L.P., 499 F.3d 1151, 1155 (10th Cir. 2007) (Gorsuch, J.)), and Born v. Born, 374 P.3d 624, 632 (Kan. 2016)). But these precedents don’t involve consideration of extrinsic evidence. See Penncro Assocs., 499 F.3d at 1158–60; Born, 374 P.3d at 633–39. Under Kansas law, contractual interpretation “becomes a question of fact” when the language is ambiguous and the meaning “depends on extrinsic circumstances.” Slawson Expl. Co. v. Vintage Petroleum, Inc., 78 F.3d 1479, 1482 (10th Cir. 1996) (applying Kansas law and quoting City of Farmington v. Amoco Gas Co., 777 F.2d 554, 560 (10th Cir. 1985)). 21 Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 22

4.2 The district court didn’t err in calculating the fee award.

Under federal law, the amount of the fee award had to be

proportionate to the relief ordered. 42 U.S.C. § 1997e(d)(1)(B)(i). The

defendants argue in part that a fee award of over $570,000 was

disproportionate to Mr. Dartez’s judgment for $60,000.

The district court rejected this argument, reasoning that

 Mr. Dartez needed to fight for every “inch” and

 the time spent by Mr. Dartez’s attorneys was “very likely” necessary for Mr. Dartez to obtain any relief.

Appellants’ App’x vol. 5, at 171. On appeal, the defendants devote only

one sentence to this reasoning: “The District Court is critical of the

number of dispositive motions filed by Defendants, but fails to note that

Plaintiff kept expanding claims and Defendants and refusing to give up

claims that were clearly not supported by the law or facts such as

pre-arrest 5th Amendment claims which the District Court never dismissed

in spite of their lack of viability.” Appellants’ Opening Br. at 29.

This generalized assertion, lacking any authority or citation to the

record, doesn’t provide a meaningful basis for review. Missing are

 any examples of Mr. Dartez’s expansion of claims or parties,

 any support for the invalidity of the “pre-arrest 5th Amendment Claims,”

 any information about the amounts awarded as a result of the expansion of claims or parties, or

22 Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 23

 any authority or explanation challenging the district court’s reasoning.

These shortcomings doom the defendants’ argument. See In re Syngenta AG

MIR 161 Corn Litig., 61 F.4th 1126, 1212–13 (10th Cir. 2023) (concluding

that the appellants’ failure to address the district court’s reasoning for a

fee award was “fatal”). 13

In the body of their argument on proportionality, the defendants also

argue that the district court should have cut the fees to account for the

claims against other parties. The district court explained that

(1) Mr. Dartez had proposed a 10% reduction and (2) the defendants had

failed to present an alternative figure. Without an alternative figure, the

district court addressed the disputed entries.

On appeal, the defendants say that the district court awarded fees for

duplicative time, clerical tasks, and attendance at a criminal proceeding.

But again, the defendants haven’t provided any examples, amounts, record

cites, or authorities. We thus lack a meaningful argument to review. See

Martinez v. Roscoe, 100 F.3d 121, 124 (10th Cir. 1996) (rejecting the

13 Mr. Dartez suggests that the parties agreed to waive all of the restrictions in § 1997e(d). But even if the parties hadn’t waived the proportionality requirement, the district court wouldn’t have erred in finding satisfaction of that requirement. 23 Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 24

defendants’ generalized challenge to a fee award given the lack of any

specificity in the challenge). 14

4.3 The offer of judgment waived Mr. Dartez’s duty to contribute to the fee award.

With no contrary agreement, federal law would require Mr. Dartez to

contribute 25% of the fee award. 42 U.S.C. § 1997e(d)(2). But Mr. Dartez

argues that the offer of judgment waived this requirement. We agree.

4.3.1 The offer of judgment is ambiguous on Mr. Dartez’s duty to contribute to the fee award.

The offer of judgment called for Mr. Dartez to recoup $60,000 plus a

reasonable amount of attorneys’ fees. Appellants’ App’x vol. 3, at 275; see

p. 3, above. The term plus suggests that the fee award is added to the

amount awarded to Mr. Dartez. See Oxford Eng. Ref. Dict. 1115 (Judy

Pearsall & Bill Trumble eds., 2d ed. rev. 2006) (providing a primary

definition of plus as with the addition of). If Mr. Dartez had to contribute

25% of his $60,000 recovery to pay the fee award, the district court could

reasonably conclude that Mr. Dartez had received $60,000 minus 25%, a

smaller amount than the $60,000 promised to him in the offer of judgment.

14 The offer of judgment provided for “reasonable attorney fees.” Appellant’s App’x vol. 3, at 275; see p. 3, above. Determining the reasonableness of the fees would be a question for the district court. See, e.g., White v. Gen. Motors Corp., 977 F.2d 499, 502 (10th Cir. 1992) (deferring to the district court’s conclusions on the reasonableness of attorneys’ fees). 24 Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 25

So the court could reasonably interpret the offer of judgment as a proposal

to waive the statutory requirement for Mr. Dartez to contribute to the fee

award.

But this interpretation is open to debate. The defendants point out

that fee awards are typically awarded to the plaintiffs rather than to their

attorneys. E.g., Astrue v. Ratliff, 560 U.S. 586, 588–89 (2010); Comm’n of

Internal Rev. v. Banks, 543 U.S. 426, 436–37 (2005). Based on this

practice, the defendants suggest that the statutory requirement for

Mr. Dartez to contribute to his attorneys’ fees wouldn’t reduce his

judgment. The judgment would instead reflect the sum of three items:

(1) the base amount of $60,000; (2) the amount awarded in attorneys’ fees;

and (3) the amount awarded in costs. Once these items were awarded to

Mr. Dartez, the defendants continue, federal law would require Mr. Dartez

to pay his attorneys with part of the judgment. But Mr. Dartez would still

have received “$60,000 plus reasonable attorneys’ fees,” as the offer of

judgment provides.

This interpretation of plus is reasonable, but not dispositive. The

district court could reasonably interpret plus to mean that Mr. Dartez

himself would get at least $60,000. The clause was thus ambiguous.

4.3.2 The district court did not err in resolving the ambiguity.

In resolving this ambiguity, the district court relied on the language

of the offer of judgment rather than extrinsic evidence. Given the district

25 Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 26

court’s reliance on the language itself, we assume for the sake of argument

that our review is de novo. 15

To interpret the ambiguous language, we resolve the ambiguity

against the defendants because they had drafted the offer of judgment. See

Part 4.1.2, above. The defendants could have clarified in the offer of

judgment that Mr. Dartez might need to use part of his $60,000 to pay his

attorneys. But the defendants said that Mr. Dartez would receive not only

the $60,000, but also an award of attorneys’ fees. Given the defendants’

language in the offer of judgment, we conclude that the parties waived Mr.

Dartez’s obligation to contribute to his attorneys’ fee award.

5. The district court’s interpretation of the offer of judgment would remove the statutory cap on counsel’s hourly rates.

When the district court calculates a fee award, federal law would

ordinarily cap the attorneys’ hourly rates. 42 U.S.C. § 1997e(d)(3). In

district court, Mr. Dartez argued that the offer of judgment waived the

statutory cap on hourly rates. The district court disagreed and applied the

15 We lack precedent under Kansas law on the standard of review when interpretation of one ambiguous term requires consideration of extrinsic evidence and interpretation of another ambiguous term does not. See, e.g., Slawson v. Expl. Co. v. Vintage Petroleum, Inc., 78 F.3d 1479, 1482 (10th Cir. 1996) (discussing the interpretation of ambiguous contracts under Kansas law but not addressing this question). We assume for the sake of argument that de novo review applies to interpretation of ambiguous terms when no extrinsic evidence is considered. 26 Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 27

statutory cap, and Mr. Dartez cross-appeals to challenge this ruling. We

agree with Mr. Dartez.

The parties agree that they either waived all of the statutory

limitations or none of them, and we’ve already upheld the district court’s

findings that the parties had agreed to avoid the statutory limits on a fee

award. Given our affirmance of those findings, the defendants have

conceded that we would also need to reverse the district court’s application

of the cap on hourly rates. Given this concession, we reverse the district

court’s application of the statutory cap on hourly rates.

6. Disposition

On the defendants’ appeal, we affirm the rulings that

 the parties waived statutory provisions capping the fee award and requiring Mr. Dartez to contribute to that award and

 the fee award was proportionate to the relief ordered.

27 Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 28

On Mr. Dartez’s cross-appeal, we (1) reverse imposition of the cap on

hourly rates and (2) remand for the district court to recalculate the fee

award without the statutory cap on hourly rates. 16

16 Mr. Dartez also argues that § 1997e’s limitations on attorneys’ fees do not apply for two reasons:

1. He obtained non-monetary relief.

2. He received an agreed amount to settle the case, but the court did not award him a monetary judgment under § 1997e(d)(2).

We need not consider these potential grounds for affirmance.

In his cross-appeal, Mr. Dartez also suggests that we might need to suspend our local rule on the confidentiality of settlement negotiations. See 10th Cir. R. 33.1(D). Suspension of the local rule is unnecessary because the district court had enough information to determine the parties’ intent without considering the settlement negotiations. 28 Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 29

Dartez v. Peters, Nos. 22-3155, 22-3164

EID, Circuit Judge, concurring in the judgment.

I agree with the majority that we should affirm the district court’s construction of

the Offer of Judgment. However, I disagree with both the district court and the majority

in their conclusions that the Offer of Judgment is ambiguous. In my view, the only

reasonable construction of the Offer of Judgment would require us to reverse the district

court—but because the Officers waived any such argument on appeal, we must instead

affirm.

The Officers extended an Offer of Judgment “in the total amount of Sixty

Thousand Dollars ($60,000.00) plus reasonable attorneys’ fees and costs allowed by law,

if any, which ha[d] been incurred to date.” App’x Vol. III at 275. Dartez accepted, id.

at 277, and the district court entered judgment accordingly, id. at 278.

In calculating what attorneys’ fees Dartez may be awarded, the district court

construed the Offer of Judgment to contract around the background rules of law that cap

attorneys’ fees in cases such as this. See App’x Vol. V at 158–59. The district court

determined that the phrase “reasonable attorneys’ fees and costs allowed by law” is

ambiguous because “under the grammatical last antecedent rule,” the phrase “allowed by

law” modifies only the word “costs.” Id. at 159. Therefore, the district court reasoned, it

is “far from clear that the ‘allowed by law’ language references the PLRA” or its

limitations on fees. Id. The district court thus construed the purported ambiguity against

the Officers as the drafters of the Offer of Judgment and ruled that “no fee cap under the

PLRA applies in this case.” Id. at 159–60. Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 30

The district court improperly applied the last-antecedent rule. The rule of last

antecedent “is not an absolute and can assuredly be overcome by other indicia of

meaning.” Barnhart v. Thomas, 540 U.S. 20, 26 (2003). For instance, when a term

modifies a clause that “hangs together as a unified whole, referring to a single thing,” the

last-antecedent rule does not produce the most likely meaning of the phrase. Cyan, Inc.

v. Beaver Cnty. Emps. Ret. Fund, 138 S. Ct. 1061, 1077 (2018). In short: the last-

antecedent rule does not dissect phrases that are otherwise intertwined.

The language of the Offer of Judgment does not permit the district court’s

construction. The phrase “fees and costs” is best understood as a unified phrase, not as

two items in a short list. It is so ubiquitous a phrase that it scarcely warrants citation. It

appears in innumerable cases across every jurisdiction in the country, including the Tenth

Circuit. The overwhelming majority of such cases employ the term “fees and costs” as a

unified phrase to refer to a single award of money. See, e.g., In re Samsung Top-Load

Washing Mach. Mktg., Sales Pracs. & Prod. Liab. Litig., 997 F.3d 1077, 1081 (10th Cir.

2021).

The cases cited by the majority reach different conclusions because they interpret

different texts. See Maj. Op. at 11–14. As the majority agrees, those different texts

“address different combinations and sequences of contract terms involving costs and

attorney fees.” Id. at 15. For instance, the Montana Supreme Court interpreted a contract

allowing “actual costs and such reasonable attorney fees as the court or arbitrator shall

determine just” to refer to two separate awards because the terms “fees” and “costs” were

“remote[]” from each other, and because the term “fees” was “situated within, and

2 Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 31

governed by” the distinct, more complex clause “such . . . as the court . . . shall determine

just.” See Gullett v. Van Dyke Constr. Co., 327 Mont. 30, 36 (2005). Those features are

not present here. Contra Maj. Op. at 11–13.

The majority also looks to an Oregon Court of Appeals decision interpreting the

phrase “an award of reasonable attorney fees and costs and expenses reasonably

incurred.” In re Olson and Olson, 308 Or. App. 633, 635(2021) (cited by Maj. Op. at 13–

14). In that case, the Oregon Court of Appeals recognized that the “incurred” language

would normally apply to the entire preceding phrase. Id. at 635–36 (citing Anderson v.

Wheeler, 214 Or. App. 318, 320 (2007)). However, the court reasoned that it was

“unlikely” that the legislature “requir[ed] that ‘reasonable attorney fees’ further be

‘reasonably incurred.’” Id. at 636. The court therefore read the statute to avoid that

“redundancy.” Id. Again, this reasoning simply does not apply to this case.

In truly similar cases, where a contract or statute uses only the unified phrase “fees

and costs,” courts do not typically see fit to drive a wedge in the middle of that phrase.

For example, when construing statutes allowing “reasonable attorney’s fees and costs as

determined by the court,” courts have consistently interpreted such statutes to provide for

“attorney’s fees to be ‘determined by the court.’” Miller v. Mun. Ct. of City of L.A.,

22 Cal. 2d 818, 852 (1943) (construing the Emergency Price Control Act of 1942,

56 Stat. 23 § 205(e)); see also, e.g., Stowe v. Bologna, 415 Mass. 20, 23 (1993) (similar);

Pearce v. Vandagriff, 203 Okla. 450, 453 (1950) (similar). The district court should have

done the same here with the similar language in the Offer of Judgment. It therefore erred

3 Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 32

in applying the last-antecedent rule to split the inextricable “fees and costs” into two

separate items. See Cyan, 138 S. Ct. at 1077.

Nor do background principles of law permit such a construction. Under Kansas

law, like the law of most states, it is appropriate to construe contracts in light of the

external sources of law they reference. See, e.g., CitiMortgage, Inc. v. Dinwiddie,

443 P.3d 365 (Kan. Ct. App. 2019) (construing a contract incorporating external sources

of law). Here, the phrase “reasonable attorneys’ fees and costs” is best understood to

refer to the existing well-developed body of law about what attorneys’ fees and costs may

be awarded in a civil rights case. 42 U.S.C. § 1988; see Gudenkauf v. Stauffer

Commc’ns, Inc., 158 F.3d 1074, 1083 (10th Cir. 1998). Therefore, any construction of

the Offer of Judgment must be consistent with the rules of law it incorporates.

The language of § 1988 forecloses the district court’s conclusion. Under

§ 1988(b), a district court “in its discretion” may allow a prevailing civil rights plaintiff

“a reasonable attorney’s fee as part of the costs” granted to him. 42 U.S.C. § 1988(b). In

other words, attorneys’ fees are allowed by § 1988 only as “part of the costs” allowed by

§ 1988. Id. By statute, such fees are a subset of costs. The “reasonable attorneys’ fees”

provided by the Offer of Judgment are therefore among the “costs” provided by such

offer, and they are likewise limited by the “allowed by law” clause. See Marek v.

Chesny, 473 U.S. 1, 9 (1985) (“[A]bsent congressional expressions to the contrary, where

the underlying statute defines ‘costs’ to include attorney’s fees, we are satisfied such fees

are to be included as costs for purposes of Rule 68.”). In concluding otherwise, the

district court erred.

4 Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 33

Nor is the majority right to defer to the district court’s judgment in this case. The

majority claims that if the offer of judgment is ambiguous, the meaning of the offer of

judgment is a question of fact that requires deference to the district court. Maj. Op. at 3,

21–22. Kansas contract law says otherwise. Because private settlements are contracts,

state contract law applies—here, the law of Kansas. Flying J Inc. v. Comdata Network,

Inc., 405 F.3d 821, 831 (10th Cir. 2005). When a contract is ambiguous, Kansas law asks

first whether it contains a legal ambiguity or a factual ambiguity. See Snodgrass v. State

Farm Mut. Auto. Ins. Co., 15 Kan. App. 2d 153, 161, rev. denied, 248 Kan. 997 (1991).

A factual ambiguity involves a “question of fact,” such as whether the parties acted in a

way that triggered certain conditions in a contract. Id. However, if a term is “susceptible

of more than one meaning,” the resulting ambiguity is a “clear question of law.” Id.

When a contract presents such a legal ambiguity, the “court should construe the

contract.” Id. at 157. Here, the district court did just that—and under Kansas law and

Tenth Circuit precedent, “[t]he proper construction of a contract is a question of law” that

this Court must “review de novo.” Penncro Assocs., Inc. v. Sprint Spectrum, L.P.,

499 F.3d 1151, 1155 (10th Cir. 2007) (Gorsuch, J.) (interpreting a contract under Kansas

law).1 Therefore, I disagree with the majority’s undue deference to the district court’s

construction.

1 Even if other Tenth Circuit decisions have erroneously held that contract interpretation is a question of fact, see Maj. Op. at 21–22 & n.12, the Kansas Supreme Court has superseded those cases. See Wankier v. Crown Equip. Corp., 353 F.3d 862, 866 (10th Cir. 2003). According to the Kansas Supreme Court, contract construction is always a question of law on which a lower court is due no deference. See Born v. Born, 304 Kan. 542, 554 (2016) (“The interpretation of . . . written contracts is a question of law over 5 Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 34

In the end, however, none of that matters to the result in this case for the reason

the majority identifies—“no one else has made this argument.” Maj. Op. at 9. The

Officers failed to make any argument on appeal about the construction of the phrase

“reasonable attorneys’ fees and costs allowed by law.” The Officers’ only argument is

that the Offer of Judgment “means exactly what it says – [Dartez] is able to recover fees

allowed by law, if any, and the only law that allows him to potentially recover any

attorneys’ fees is the PLRA.” Aplt. Br. at 21. But the Officers do not further justify why

we should accept their construction of the Offer of Judgment. They do not attempt to

explain why the district court’s construction was erroneous. Nor do the Officers support

their conclusions with any legal authority, much less precedent upon which we may rely.

Therefore, the Officers’ “mere conclusory allegations with no citations to the record or

any legal authority for support” are “not adequately briefed,” and under the law of our

Circuit we must deem them “waived.” Garrett v. Selby Connor Maddux & Janer,

425 F.3d 836, 841 (10th Cir. 2005). The Officers’ failure to make a construction

argument “disentitle[s] [them] to review” on appeal. Id. I therefore disagree with the

majority’s choice to reach this issue.

I agree with the majority that the Officers waived other of their arguments on

appeal. See Maj. Op. at Part 3 (actual violation of constitutional rights); Part 4.2

(proportionality of fee award). I also agree with the majority’s conclusion that Dartez is

not obligated to contribute a portion of his judgment to his attorneys’ fees. See id. at

which this court exercises unlimited review, unaffected by the lower courts’ interpretations or rulings.”). 6 Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 35

Part 4.3. However, for the reasons I have stated, I disagree with the majority’s

construction of the Offer of Judgment and the majority’s choice to reach that question.

Therefore, I respectfully concur in the judgment.