Rule v. Tobin, 97-316.

Citation719 A.2d 869
Case DateJune 19, 1998
CourtUnited States State Supreme Court of Vermont

719 A.2d 869

William D. and Beverly G. RULE and Danielle Swain
Gary G. TOBIN and City of Rutland

No. 97-316.

Supreme Court of Vermont.

June 19, 1998.

Motion for Reargument Denied July 27, 1998.

719 A.2d 870
Alicia L. Aiken and Herbert G. Ogden, Jr. of Liccardi, Crawford & Ogden, P.C., Rutland, for Plaintiffs-Appellants

Shannon A. Bertrand of Reiber, Kenlan, Schwiebert, Hall & Facey, P.C., Rutland, for Defendants-Appellees.


DOOLEY, Justice.

Plaintiffs, William and Beverly Rule and Danielle Swain, brought a civil rights action under 42 U.S.C. § 1983 against a Rutland police officer, Gary Tobin, and the City of Rutland alleging that Tobin unlawfully entered plaintiffs' apartment and unlawfully arrested Beverly Rule, using excessive force. A Rutland Superior Court jury returned a verdict for defendants, and plaintiffs appeal on a number of grounds, including that the trial court erred in failing to enforce a settlement agreement. We agree that the parties entered into a binding settlement agreement and reverse for entry of judgment consistent with that agreement.

This case was tried twice. On April 10, 1997, between the first and second trials, defendants' attorney sent plaintiffs an offer of judgment which read as follows:

Now comes defendants . . . and in accordance with the provisions of V.R.C.P. 68, and without prejudice to the rights of the defendant to proceed with the defense and its general denial of liability as envisioned by the rules, makes the following offer of judgment:
The defendant offers to allow the plaintiff to take judgment against it in the amount and to the extent of Four Thousand and no/100 ($4,000.00), having thoroughly reviewed the liability and damages aspect of this case.

On April 15, 1997, plaintiffs' attorney answered, purporting to accept the offer of judgment, as follows:

Assuming the defendants' 10 April Offer of Judgment does not include costs and attorney's fees pursuant to 42 U.S.C. § 1988 or any other entitlement, the plaintiffs accept the defendants' $4,000 offer.
The plaintiffs understand that attorney's fees and costs will be determined in a later hearing pursuant to V.R.C.P. 54(d).

719 A.2d 871
Asserting that they intended to include attorney's fees and costs in the offer, defendants objected to plaintiffs' answer and claimed that the offer had not been accepted

The court apparently agreed with defendants' position. Over plaintiffs' objection, the court ordered the parties to start over with a new offer and acceptance, if appropriate. It directed that the new offer explicitly cover "everything, including all attorney's fees." Thereafter, defendants submitted an offer of judgment of $7,000, including "all claims for damages, costs, attorney's fees and every other potential claim." Plaintiffs rejected this offer.

On appeal, plaintiffs argue that (1) defendants' offer cannot be interpreted to include attorney's fees, (2) plaintiffs accepted defendants' offer, and (3) the court had no discretion to set aside the resulting agreement. Defendants respond that their offer must be interpreted to include costs and attorney's fees or, alternatively, it was ambiguous and the court had the discretion to rescind it because there was no meeting of the minds. We agree with plaintiffs' position.

The offer of judgment procedure which defendants invoked by their offer is authorized and governed by Vermont Rule of Civil Procedure 68, which provides in pertinent part:

At any time more than 10 days before the trial begins or within such shorter time as the court may approve, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within 10 days after the service of the offer or within such shorter time as the court may order 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 clerk shall enter judgment.

Refusal of an offer of judgment may have adverse consequences for the plaintiff depending upon the ultimate result of the case. "If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer." Id.

Except for an irrelevant variation, the rule is identical to Federal Rule of Civil Procedure 68. We have applied this rule on only one occasion, and that precedent is not helpful to the question before us. Because our rule is identical to the federal rule, we look to the "Federal cases interpreting the Federal Rules [as] . . . an authoritative source for the interpretation" of our rule. Reporter's Notes to V.R.C.P. 1. It is particularly appropriate to look to federal law in this case because we are defining the interrelationship between Rule 68 and the attorney's fee provision of the federal Civil Rights Act.

We take the component questions in the order plaintiffs have presented them, looking first at defendants' offer. Our starting point is Marek v. Chesny, 473 U.S. 1, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985), the definitive federal case on the interrelationship between Rule 68 and the Civil Rights Attorney's Fees Awards Act, 42 U.S.C. § 1988. In Marek, defendant made an offer of judgment, which was refused, and plaintiff obtained a favorable jury verdict. The issue was whether the offer was greater than the verdict, and, if so, whether plaintiff would lose the right to recover attorney's fees because of the effect of Rule 68. The issue required the Supreme Court to determine whether civil rights attorney's fees were "costs" under Rule 68 and, if so, whether defendants' offer included such fees.

The Supreme Court held that attorney's fees recoverable under 42 U.S.C. § 1988 are "costs" as that term is used in Rule 68.

[T]he most reasonable inference is that the term "costs" in Rule 68 was intended to refer to all costs properly awardable under the relevant substantive statute or other authority.... [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.

Id. at 9, 105 S.Ct. 3012. 42 U.S.C. § 1988 specifically provides that attorney's fees are awarded "as part of the costs." Thus, civil

719 A.2d 872
rights attorney's fees are costs under Rule 68. See V.R.C.P. 68

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  • NCJC, Inc. v. WMG, L.C.
    • United States
    • United States State Supreme Court of Iowa
    • 28 Mayo 2021
    ...rule] includes attorney's fees which are properly recoverable in the action by agreement of the parties."); Rule v. Tobin , 168 Vt. 166, 719 A.2d 869, 871–72 (1998) (following Marek to hold that, under identical Vermont Rule of Civil Procedure 68, civil rights attorney fees are included as ......
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    • United States
    • United States State Supreme Court of Vermont
    • 8 Julio 2005
    ...that no relief pursuant to Rule 60(b) is warranted based on an attorney's stated subjective intent behind an offer. Rule v. Tobin, 168 Vt. 166, 174, 719 A.2d 869, 874 (1998) (citing Webb v. James, 172 F.R.D. 311, 316 (N.D.Ill.1997)). This case is analogous to those in which attorneys have a......
  • Brandt v. Menard
    • United States
    • United States State Supreme Court of Vermont
    • 17 Julio 2020
    ......."). ¶ 5. "The hallmark of Rule 60(b) intervention is the prevention of hardship or injustice." Rule v. Tobin, 168 Vt. 166, 174, 719 A.2d 869, 874 (1998) ; Manosh v. Manosh, 160 Vt. 634, 635, 648 A.2d 833, 835 (1993) (mem.) ("A V.R.C.P. 60(b) motion is invoked to prevent hardship or inju......
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    ...have often looked to federal case law as instructive in developing similar areas of state law. See, e.g., Rule v. Tobin, 168 Vt. 166, 169, 719 A.2d 869, 871 (1998) (looking, in absence of helpful state precedent, to federal cases interpreting federal civil rule of procedure); State v. Austi......
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