Summary 2011 WY 103

Summary of Decision July 6, 2011


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Case Name: Dunham v. Fullerton

Citation: 2011 WY 103

Docket Number: S-10-0242

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=463759

Appeal from the District Court of Natrona County, The Honorable David B. Park, Judge

Representing Appellant (Plaintiff): Todd Hambrick, Casper, Wyoming.

Representing Appellee (Defendant): James D. Bramer, Windsor, Colorado.

Date of Decision: July 6, 2011

Facts: Appellant filed a lawsuit against Appellee for injuries stemming from an automobile wreck. Appellee filed his answer to the complaint but passed away later the same year. Despite Appellee’s death, the parties’ counsel continued to negotiate a settlement. Appellee’s counsel made a Rule 68 offer of settlement of $36,000.00 to Appellant. Appellee’s counsel also filed a motion to dismiss, which alleged a failure to substitute party pursuant to W.R.C.P. 25(a)(i).

In response, Appellant filed a new civil action, this time against Appellee’s estate, but based upon the same accident. On the same date, Appellant also filed her Plaintiff’s Notice of Acceptance Pursuant to Rule 68, with language attempting to reserve the right to litigate the “estate case.” Appellee’s counsel filed the acceptance along with the offer of settlement.

Subsequently, the district court held a hearing on the motion to dismiss, and then entered an Order of Dismissal. As part of the Order of Dismissal, the court ruled that appellant’s acceptance was invalid, observing that one cannot agree to a full settlement and at the same time reserve the right to litigate issues that were “settled.” Appellant challenged the district court’s Order of Dismissal and argued that the court erred in refusing to enter judgment upon her acceptance of a W.R.C.P. 68 offer of settlement,

Issues: 1) Whether the lower court committed plain error in failing to enter Judgment against Appellee pursuant to a W.R.C.P. 68 Offer of Settlement and Acceptance of Offer of Settlement.

Holdings: The purpose of Rule 68 is to encourage settlement. Rule 68 accomplishes its objective of encouraging settlement by providing an expeditious process that forces the parties to weigh the costs and benefits of further litigation. Appellant argued that her formal written acceptance of Appellee’s Rule 68 Offer of Settlement was an unmodified mirror of the offer, but the Court disagreed. The Court found that the modifications changed the original offer, which was in direct opposition to the language of the rule. The Court observed that the district court recognized the legal requirement that a Rule 68 acceptance must mirror the offer.

The Court concluded that because Appellant’s acceptance was not unconditional, and that because it did not mirror the offer of settlement, she did not validly accept the Rule 68 offer of settlement. Furthermore, the court found the dismissal without prejudice was proper. The district court’s order was affirmed.

J. Hill delivered the opinion for the court.