Jones v. Berezay

815 P.2d 1072, 120 Idaho 332, 1991 Ida. LEXIS 133
CourtIdaho Supreme Court
DecidedAugust 21, 1991
Docket18632
StatusPublished
Cited by10 cases

This text of 815 P.2d 1072 (Jones v. Berezay) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. Berezay, 815 P.2d 1072, 120 Idaho 332, 1991 Ida. LEXIS 133 (Idaho 1991).

Opinions

JOHNSON, Justice.

This case concerns the denial of costs and attorney fees to the defendant when the trial court issued an order allowing the plaintiffs voluntarily to dismiss the action. In deciding the case, we are required to interpret I.R.C.P. 68 and 41(a)(2). We affirm the trial court’s order that each party bear their own attorney fees and costs.

I.

BACKGROUND AND PRIOR PROCEEDINGS.

Bruce and Debbie Jones (the Joneses), doing business as Royal Cleaners, sued Deanne Berezay, now known as Deanne Newbold (Newbold), seeking $136.50 in damages for misrepresentation and fraud, $1,000.00 in punitive damages, and attorney fees. Newbold made an offer of judgment of $36.50 pursuant to I.R.C.P. 68. The Joneses rejected the offer. The trial court struck the claim for punitive damages pursuant to I.C. § 6-1604(2).

On the morning of the day scheduled for trial, the Joneses moved to dismiss the case with each party to pay their own attorney fees and costs. The trial court granted the motion, stating it appeared “that it is not economically feasible to pursue the case, and likely if the case was pursued, each party would be required to pay their own attorney’s fees and costs.”

Newbold appealed to the district court, contending she was the prevailing party and was entitled to attorney fees and costs. The district judge ruled that Newbold was not entitled to attorney fees and costs pursuant to I.R.C.P. 68 and remanded the case to the magistrate judge for a determination whether there was a prevailing party, and if so, appropriate attorney fees.

On remand, the magistrate judge ruled:

This Court can only come to one conclusion; that this case was a stand off. No one won and no one lost. There was no overall prevailing party. It was for this reason that neither party was awarded costs or fees.

Newbold again appealed to the district court. The district judge affirmed, and Newbold appealed to this Court.

II.

NEWBOLD WAS NOT ENTITLED TO COSTS UNDER I.R.C.P. 68.

Newbold asserts that she is entitled to costs under I.R.C.P. 68. We disagree. I.R.C.P. 68 provides:

Rule 68. Offer of judgment. — At any time more than 14 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, which offer of judgment shall be deemed to include all claims recoverable including any attorneys fees allowable by contract or the law and costs then accrued. If within 14 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 ser[334]*334vice thereof and thereupon the judgment shall be entered for the amount of the offer without costs. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment, including attorneys fees and costs, finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs, as allowed under Rule 54(d)(1), 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 or 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 14 days prior to the commencement of hearings to determine the amount or extent of liability.

This rule is essentially the same as Fed. R.Civ.P. 68.

In Delta Air Lines, Inc. v. August, 450 U.S. 346, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981), the Supreme Court defined the scope of Fed.R.Civ.P. 68, its purpose in conjunction with Fed.R.Civ.P. 54(d), and its history:

Under Rule 54(d) of the Federal Rules of Civil Procedure, the party prevailing after judgment recovers costs unless the trial court otherwise directs. Rule 68 could conceivably alter the Rule 54(d) presumption in favor of the prevailing party after three different kinds of judgments are entered: (1) a judgment in favor of the defendant; (2) a judgment in favor of the plaintiff but for an amount less than the defendant’s settlement offer; or (3) a judgment for the plaintiff for an amount greater than the settlement offer. The question presented by this case is which of these three situations is described by the words [in Rule 68] ‘judgment finally obtained by the offeree ... not more favorable than the offer.’
Obviously those words do not encompass the third situation — a judgment in favor of the offeree that is more favorable than the offer. Those words just as clearly do encompass the second, for there can be no doubt that a judgment in favor of the plaintiff has been ‘obtained by the offeree.’ But inasmuch as the words ‘judgment ... obtained by the offeree’ — rather than words like ‘any judgment’ — would not normally be read ... to describe a judgment in favor of the other party, the plain language of Rule 68 confines its effect to the second type of case — one in which the plaintiff has obtained a judgment for an amount less favorable than the defendant’s settlement offer.
... [I]t is clear that [Rule 68] applies . only to offers made by the defendant and only to judgments obtained by the plaintiff. It therefore is simply inapplicable to this case because it was the defendant that obtained the judgment.
... Because prevailing plaintiffs presumptively will obtain costs under Rule 54(d), Rule 68 imposes a special burden on the plaintiff to whom a formal settlement offer is made____

450 U.S. at 351-52, 101 S.Ct. at 1149-50, 67 L.Ed.2d at 292-93 (footnote omitted).

I.R.C.P. 54(d)(1)(A) is essentially the same as the pertinent part of Fed.R.Civ.P. 54(d): “Except when otherwise limited by these rules, costs shall be allowed as a matter of right to the prevailing party or parties, unless otherwise ordered by the court.” I.R.C.P. 54(d)(1)(A). “Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs.” Fed.R.Civ.P. 54(d).

We find the analysis of the Supreme Court in Delta Air Lines to be persuasive. The Joneses did not obtain a judgment. The trial court merely allowed the Joneses to dismiss voluntarily. Because the order of dismissal did not specify otherwise, the [335]

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Jones v. Berezay
815 P.2d 1072 (Idaho Supreme Court, 1991)

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Bluebook (online)
815 P.2d 1072, 120 Idaho 332, 1991 Ida. LEXIS 133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-berezay-idaho-1991.