*1 attorney as “costs. The par- rized fees dispute between of the subject is affirmed. ment of the district court proven itself the contract ties and case, the sound it is within exist. In such concurs, LOHR, J., and specially to defer consid- of the trial
discretion fees, KIRSHBAUM, J., joins special in the such of the entitlement eration fees, until the merits concurrence. amount of Roa, at 829. the case are decided. concurring: specially LOHR Justice that, unlike statutori- argues Ferrell also in the of the court I concur fees, con- attorney ly and rule-authorized majority opinion. parts I and II of necessarily arise fees tractually authorized case, this it is unneces- In order to decide validity contract, the existence of a out “separate, independent sary to address trial, and there- proven must of which be county court’s ground upholding for “debt, damage, part of the up make fore ma- part III of the judgment” discussed claimed.” property personal or value opinion. maj. op. at 940. For jority See reason, argues, Glenwood Ferrell For this reason, not find all and because do awarding attor- procedure confuses persuasive, III I do not said in that is demand the substantive ney fees with majority opinion. section of the join in that those fees. right to recover proof of however, groundless argument, This KIRSHBAUM, J., joins special in this was case. There light the facts of this concurrence. the contract between no contention not exist or was and Ferrell did Glenwood applica- only question was the
invalid. is, facts, that of the contract
tion ready, produced had Glenwood
whether Moreover, buyer. it able
willing, and majority in the vast appear that
would attorney cases, only question about COMPANY, a Colora CENTRIC-JONES claimed the amount fees would be whether partnership; Nucon Con limited do “reasonable,” ques- was not in corpora Corp., a Colorado struction case, While, other in some tion here. tion; Com and J.A. Jones Construction contractually autho- whether question of Petitioners, pany, attorney fees should be considered rized they are more di- damages because actual HUFNAGEL, Judge Lynne M. District might properly before rectly at issue Judge, Denver and The Court court, case here. is not the such Court, Respondents. District specific prohibition no Because there is No. 92SA407. contractually authorized against awarding “costs,” attorney attorney fees as Colorado, Supreme Court of clearly “damages,” were not fees awarded En Banc. its discretion county court was within attorney March awarding the fees as “costs.”
IV. county court is jurisdiction the lawsuit is com- at the time
determined
menced, interest or attor- and the fact that does not oust
ney fees continue to accrue county jurisdiction.
that court its
court, its discre- within alternatively, was contractually autho- awarding
tion in
I. Department Colorado Department Highways, since renamed the (CDOT), Transportation pro- undertook involving ject the modification recon- *3 ramps the I-25/6th struction certain on Interchange. hired a pri- Avenue CDOT firm, De engineering vate Leuw Cather & Leuw, Co., Parsons De since renamed Inc. Davidson, Cogswell and D. Durant (De Leuw), prepare design, to the as well Denver, Davidson, petitioners. for plans specifications, as the review Norton, Gen., Raymond Atty. T. A. Gale project. this shop drawings the for Centric Gen., Timo- Deputy Atty. Chief Slaughter, general hired as the contrac- was CDOT Gen., Tymkovich, Maurice thy M. Sol. implement plans tor to the as set forth Eret, Gen., Knaizer, Attys. Dianne E. Asst. De Leuw. Section, Denver, Legal for General Services Leuw in Errors committed the respondents. reviewing shop in design drawings Commander, Epstein, Eugene Alan E. R. project the to fall behind schedule. caused Evans, Denver, Erickson, Hall & T. Scott result, 1989, Fought Company, in As a & Leuw, Parsons De Inc. intervenor Inc., for the manu- Centric’s subcontractor Norton, Gen., Atty. Raymond T. A. Gale components the in facture of steel needed Gen., Slaughter, Deputy Atty. Chief Timo- brought the project, suit and obtained a Gen., thy Tymkovich, Patricia S. M. Sol. judgment against damages Centric for Gen., Atty. L. Deputy Jennifer Bangert, delay. it due to the incurred Gen., Lynn Gimbel, Atty. B. First Asst. Gen., Atty. Natural Re- Obernyer, independent Asst. then filed action Section, Denver, for intervenor Col- sources against grounds in CDOT Dept, Transp. orado conduct, wrongful because of CDOT’s Cen- damages in terms of tric suffered addition- MULLARKEY delivered Justice delay al from the costs incurred Opinion Court. complaint Fought judgment. was Company petitioners, Centric-Jones to include De amended March 1992 Leuw general partners, Nucon Construc- its June, as a De Leuw filed a defendant. Corporation and J.A. Construc- tion Jones summary judgment on the motion for original Company, brought tion have against grounds that claims it Centric’s pursuant this proceeding before were barred the statute of limitations. opinion, purposes 21. For of this C.A.R. jointly by An offer of petitioners refer all we will three September pur- De Leuw and CDOT on compel us Centric asks Centric. 13-17-202(3), 6A suant to section C.R.S. (cid:127) respondent the clerk to trial court (1992 Supp.) part: which states in pursuant accep- its for it enter days than anyAt time more ten before judgment under section of an offer of tance party defending begins, trial (1992 13-17-202(3), Supp.). 6A Of C.R.S. upon the may a claim serve ad- in this case is whether trial concern of settlement verse an offer entry finding that an court was correct offer, specified in his with costs effect summary of one of favor If ten after then accrued. within in a participating joint the two defendants par- the adverse the service offer. voids the We notice the offer is ty written serves cause and now make issued a rule to show file then accepted, party may either absolute, finding trial rule together acceptance, and notice of of law. court erred as a matter thereof, proof with of service and there- case, to the statute. In this ,1 judgment... the clerk shall enter trial court held that the defendants could not revoke the offer ten-day within the The offer of stated: period that entry but of summary judg- hereby 1. CDOT and De Leuw make a ment for one defendant made the offer joint including purposes.” “ineffectual for all agree We plaintiff may interest and costs to which that the offer was during irrevocable law, entitled as a matter of ten-day period reject but the trial court’s total amount of Fifty Seven Hundred conclusion that its of summary judg- ($750,000) Thousand and No/100 Dollars ment voided the offer. which shall be deemed if withdrawn offer is by plaintiffs within (10) days ten from the date hereof. II. *4 2. This offer apply is intended to to the We first preliminary address a matter of any judgment total amount of obtained jurisdiction. respondent The trial court by plaintiffs against one or both of the contends that the jurisdic- exercise of our defendants, regardless of the claims and tion under C.A.R. 21 inappropriate is since theory(ies) by plaintiffs against asserted appeal Centric could the summary judg- defendants, regardless the and ment subsequent order to trial. Both proration liability between the defen- argue CDOT and Centric in favor of this respect dants with thereto. exercising court original jurisdiction its and orally gave Centric a counteroffer for $1.4 making the rule absolute. CDOT now million, rejected. which was judgment wants the offer of enforced and 8, granted On October the trial court the contends that it cannot settle unless De summary judgment motion for in favor of joint Leuw is bound the judg- offer of De Leuw. CDOT and De Leuw immediate- ment. Both argue CDOT and Centric that ly attempted to withdraw the offer of judicial it would be a waste of resources to by telephone day ment call on that go force them to to trial.
formal letter on
Knowing
October 9.
summary judgment,
jurisdiction
Whether to take
over
despite
offer of
De Leuw’s
original proceeding
an
entirely
is
within
attempted
and CDOT’s
withdrawal. Cen-
discretionary
this
authority.
court’s
See
necessary
tric filed the
documents with the Halaby,
Hoffman,
McCrea & Cross v.
District Court on October 9. A motion for
(Colo.1992)
P.2d
{citing
White v.
directing
an
Ct.,
(Colo.
District
Centric,
filed
but was denied
the trial
1984)).
original
An
proceeding is not a
in an oral ruling. Centric then
appeal
for an
in
substitute
this case
brought
original proceeding
before this
important
exercising
there are
reasons for
court.
original jurisdiction.
economy
our
Judicial
favors the resolution of this matter on an
The facts of this case raise two interre-
original
because,
proceeding
if
general question
lated issues. First
the rule is
is the
absolute,
necessary.
no trial is
Fur
whether
defendant which has made an
ther,
ruling
the trial
judgment pursuant
offer of
court’s
raises substan
statute
may
days
proper implementation
withdraw that offer within ten
tial doubt as to the
making the
specific
authorizing
judg
offer. Second is the
the statute
offers of
question
public policy
early
whether
au- ment.
Since
favors
if,
tomatically
ten-day
is revoked within the
disputes
expedi
resolution of
in the most
period,
the trial court
summary
inexpensive
possible,
enters
tious
it
method
is
judgment in
appropriate
favor of one of the two defen-
promptly
to review this case
joint
provide
guidance
dants which made a
and to
suitable
to the trial
provision replaces
many
1. This
C.R.C.P.
which
al
Civil Procedure
Code of
state
virtually
language.
contained
identical
Codes of Civil Procedure as Rule 68.
analogous provision is still set forth in the feder-
Anderson,
Whitney
od.
We find this
to be
In our
contract
do
well-
persuasive. Although
this
established and
this
not control
situation. An offer
13-17-202(3)
judgment pursuant
time we have
this
section
is
first
addressed
issue, prior
simple private
precedent
ap
of the court of
is not a
settlement.
Rather,
peals
adopted
general
special statutory pro
has
rule. The
it invokes a
found
appeals
spelled
unambiguous
court
that
cess
out in clear and
although rejected
judgment,
by
language
the offeree
which
and should
enforced
can
be
made,
day
after the offer
engrafting
remains without
contract
onto
open
ten-day statutory
for
entire
it.
peri
purpose
encourage
The statute’s
is to
jurisdic
by ensuring
2. We are
are a few
aware
there
offerors
not locked
are
judg
338,
Cobb,
tions which have found
an offer
of
Co.,
period
into
In
the offer.
682 P.2d
See,
e.g.,
ment is revocable.
T.M. Cobb
Inc.
thirty
respond
within which the
must
is
offeree
Ct.,
Cal.Rptr.
Superior
v.
36 Cal.3d
204
days. Applying
principles, the Califor-
contract
(1984);
Kapperman,
682 P.2d
Everson v.
338
343
appellate
negotiations,
nia
court
includ-
allowed
(Minn.1984); Sonnenburg
19
N.W.2d
v. Grohsk
offer,
ing
during
revocation of
extended
this
opf, 144
422
Wis.2d
N.W.2d 925
period
effectively
time
in order to most
encour-
however,
distinguishable,
These decisions are
Everson,
age settlement.
In
N.W.2d
grounds.
Sonnenburg,
on various
period
accep-
statute lacked a
time
finite
appellate
N.W.2d
Wisconsin
years
tance and the offer at issue was
old.
two
found
statute similar to the Colorado statute
reasoning
We find the
behind
cases to be
these
ambiguous
prohibit
to be
in that
it did not
unpersuasive
ignore
important
and to
other
right
revocation. Thus it held
contract
that the
considerations,
are
the text.
discussed in
promote
of revocation should be
effective
by
parties.
offers
all
ment.” The use of the word “shall”
reasonable settlement
within
1277;
presumed
a statute is
Mallory,
mandatory.
922 F.2d at
Janicek v.
be
See
Clark,
113, People
(Colo.
Hinnen,
Colo.App.
654 P.2d
1982).
accomplish
(1974). In order to
of an
key
several
characteristics
purpose,
characteristics, unique
These
to a
to section 13-17-
offer made
13-17-202(3) offer,
type
cause this
202(3)
play.
come into
plain
of offer to
statutory
be matter of
First,
the statute creates incentives to interpretation,
question
not a
of contract
Thus,
statute,
Section
contains
in interpreting
settle.
law.
we
states,
cost-shifting
“If the
provision which
find that the statute states that if the offer
finally
accepted
days”
the offeree is
making,
obtained
“within ten
of its
offer,
than the
the of-
must
entered.
not more favorable
We therefore
pay
the costs incurred after
hold that offers of
are not revo
feree shall
statutory peri
cable
the offeror for the
making of the offer.” Both sides are re-
days.
od of ten
If there
carefully any
accep
has been an
quired to assess
time, judgment
tance within that
automati
judgment. An
a rea-
offeree’s refusal of
cally should be entered.
going
offer shifts the cost of
for-
sonable
offeree,
with the lawsuit to the
“who
ward
B.
exposed
prospect
being
becomes
expense
saddled with
substantial
Having
irrevocability
established the
Mallory,
trial.”
They decided to tender concurs. however, statute, ment under VOLLACK, J., concurs respect to costs with acted to bind Centric SCOTT,J., joins in the part, dissents accepted the whether Centric regardless of and dissent. concurrence course, Centric, no control had offer. decision to Leuw’s and CDOT’s over De concurring: Justice ERICKSON timing or make an offer majority’s analysis in agree with the not De Leuw and CDOT should that offer. including respects, its determination most any at risk without put to be able pursuant made that offers Here, De Leuw and themselves. risk to (1992 13-17-202(3), 6A C.R.S. risk that a the calculated CDOT assumed I write Supp.), are at all times irrevocable. pending summary favorable decision however, emphasize that al- separately, need for might negate the judgment motion though the offer of was irrevoca- they gamble. their lost binding acceptance, at the time of ble above, the court has Finally, as noted of- are some circumstances which there play under the statute. very limited role fers proceedings initiate settlement It cannot capable statute are terminated and only it has ministeri- under the statute and view, acceptance. my the trial court had enforcing the stat- perform al duties authority right to enter a sum- if the offer is ute. It enters mary judgment in favor of De Leuw if the amount accepted and it awards costs acceptance of the offer of prior time *7 To is less than the offer. recovered at trial point was the judgment by Centric. At no preempt the trial court’s order allow jurisdiction or the stripped trial court ten-day period would be running of right to determine and enter valid contrary completely to the statute. However, summary judgment. effective lose the definitiveness statute would summary judgment did not entry of it needs to function as predictability which pur- made judgment the offer of invalidate If of settlement. effective method an expira- the statute. Prior to the suant to an summary judgment order served to void offer, free to either of the Centric was tion presumably then other judgment, reject accept or it. (such as an order significant court orders that of- majority properly concludes discovery dispute) could be ar- resolving a pursuant to section judgment fers of made If this were gued have the same effect. 13-17-202(3) Maj. always are irrevocable. true, offer-of-judgment process would However, majority fails op. at 9. seriously impaired. control that contract recognize irrevocability underlying for the an offer under basis We hold that Accordingly, my in judgment.1 13-17-202(3) and of offers of is both irrevocable section Sturn, making 661 primarily of the offer. See Rules judgment are irrevocable Offers of (Alaska 1983) (stating that an 618 they option P.2d are contracts. The offeror because period exchange is an offer for valuable in for receives consideration
949 view, principles relating option majority contract with the judg- that the offer of provide guidance contracts valuable on ment was not terminated when the trial pursu- summary when an offer of tendered court entered judgment in favor ant to is terminated. Leuw and that the offer remained open at the time accepted it. Although option an contract is an irrevo- itself, my view, under certain misinterprets cable the offer the dissent circumstances, may majority’s holding. be terminated. An ir- While the offer of lapse offer is terminated outstanding, revocable remains the trial time, death, person or destruction of a stripped power or court is not of the to issue thing performance summary judgment Leuw, essential for the of the in favor of De contract, proposed supervening legal issuing any or a or from ruling affecting other prohibition relating proposed rights con- parties. of the pro- statute Jorstad, tract. requirement See Matter Estate vides no vehicle or notify- for (N.D.1989); ing 447 N.W.2d John D. the trial judg- court that an offer of Perillo, Joseph & M. ment outstanding, provide Calamari Contracts is nor does it (3rd 1987); power 2-25 124-25 ed. Restate- that the trial court lacks to decide § (Second) relating ment of Contracts issues rights to the substantive parties outstanding. while an offer is present The facts of this case no basis finding Any for the offer of ruling during trial court made jointly by period outstanding CDOT and De Leuw was of time the offer is valid, subject only possi- terminated. The irrevocable offer from effective and to a bility and De Leuw had not ruling CDOT terminated that the will be of no conse- lapse ten-day period provid- quence due to a if the accepted. ed both the offer and the statute.2 Nor If Centric had not the defendants’ the offer judgment, had terminated due to de- offer of the trial court’s sum- subject mary judgment struction of a or the matter in favor of De Leuw would proposed Finally, contract.3 there have been effect. Davidson Chevro- Cf. let, supervening illegality Denver, was no that defeated City County Inc. v. & purpose (1958) for which the offer of Colo. Accordingly, ment made. (stating irregular while an that even and erroneous pursuant judgments irrevocable offer made to section retain their force and have ef- 13-17-202(3) may court, be terminated certain fect until modified the trial or instances, none of those conditions proce- are until vacated to new trial present agree, therefore, dures, appellate this case. or until an reversed comparable summary judgment
time fixed rule of law that is er to reverse the and order Udall, consideration); option Broadway Roofing Morris K. De Leuw to trial. See & Court, Supply, May Judgment Under Rule 68 Be Re Inc. v. District 140 Colo. Offers of (1959). Similarly, Acceptance?, P.2d 1022 either the court of voked (1957) 19 F.R.D. Before (stating could, appeals judgments appeal, or this court reverse that offers of are "like summary judgment you the trial option court’s have for ten based consideration"). return the case for a new trial. a valuable *8 Leuw, interests, acting De in its own best accepted judg- 2. Had Centric not the offer of any point settling could decide at the claims ten-day period, the the ment within preferable running it was the risk a to of judgment lapse have would terminated due to a court, ruling by future adverse trial either the of time. court, appeals, potentially the court of or jury. summary judg- The trial court’s order of summary judgment entered the trial ment did not De the remove Leuw from action. action, Rather, court did not remove De Leuw from the De Leuw remained a to the action destroy object did it the of the irrevocable nor offer, judgment that could enter offer under into an of pending any prior the lawsuit. At time to any ten section 13-17-202 at time within issues, a final resolution of the the trial court’s prior period to the start of the trial. The time grant summary judgment might of in favor of De in which De Leuw enter into an offer of judgment pursuant might Leuw could reversed and De Leuw ordered the to statute even pursuant period to trial. No final order was entered to include a of time after the trial court 54(b), summary judgment pow- the trial C.R.C.P. and court entered in De Leuw's favor. retained 950 denied, 13-17-202(3) days. irrevocable for ten was proceedings), cert. review
court 609, However, subject L.Ed.2d 629 the remained to 926, 3 offer U.S. 79 S.Ct. 359 However, appeal- ordinary no final rules because under contract termination prior to entered judgment had been option able con- applicable to the termination of defendants’ acceptance outstanding, Centric’s While the offer was tracts. open fer, court remained any rulings of the stripped power court of its the trial reconsideration, with modification, and to summary judgment De to decide Leuw’s 54(b); see, Man e.g., C.R.C.P. drawal. See motion, affecting rulings or to other issue 260, 264, P.2d Martin, 614 v. 200 Colo. ka litigation. trial court in not erred 875, (1980)(stating that under C.R.C.P. 878 entering judgment against and De CDOT disposes 54(b), summary judgment when a explicit pursuant to the terms Leuw action, judgment entire of less than the 13-17-202(3). I concur with the section expressly trial final court is not unless majority’s to remand to the trial decision just is no reason that there determines to enter court with directions judgment), entry of final delay and directs the offer judgment. favor of Centric on the 913, denied, 101 S.Ct. 450 U.S. rt. ce 1354, (1981); Broadway 67 L.Ed.2d only dissenting Justice YOLLACK Court, Inc. v. Roofing Supply, & District III: 1022, 342 P.2d 140 Colo. 54(b)expressly (1959)(stating that C.R.C.P. declining apply princi- In fundamental express that in the absence of an provides to offers of ples of contract law entry of the trial court for the direction that, majority pursuant concludes judgment, any or form of final order other (1992 13-17-202(3), 6A section C.R.S. adjudicates than all decision which less Supp.), “an of settlement remains as to shall not terminate the action claims period, ten-day regard- for the open entire or other any of the claims and rejected.” Maj. of whether the offer is less subject of decision is to revision form disagree. conversely I I find op. at 946. adjudi- entry time before statutory con- that well settled canons claims); cating all of see C.R.C.P. also and struction fundamental Whitlow, 59; 60; v. C.R.C.P. Smith law of settle- contract dictate that 1031, (1954) P.2d Colo. 13-17- ment made section (holding has been that where action that, 202(3) I is revocable. also conclude jury, to the without a and tried case, present rejected Centric-Jones filed after motion for trial has been new the defen- the settlement offer trial findings judgment, dants, rejected, once Centric- original power court has the vacate accept subsequently Jones could not itself, and findings judgment, reverse I Alternatively, conclude that offer. opposite in favor of the enter summary granting district court order Eller, party); 127 Colo. Goodwin of De Leuw removed De favor (1953) (same); see destroyed from Cen- Leuw the action al., W. et 6-6A James Moore generally accept joint 59.11, power tric’s 54.28, ¶¶ Federal Practice Moore’s respectfully 1993). settlement. dissent. (2d 59.12 ed. When Centric the trial court was judgment, the offer
required, pursuant explicit terms I. to enter That against CDOT and Leuw. (Centric) en- Centric-Jones Co. *9 ment would the final become into a contract with the Colorado tered nullify prior all the trial court and would (the Department Highways De- State inconsistent orders. agreed to act as partment), wherein Centric for various construc- general contractor given by CDOT projects planned at the intersection pursuant De Leuw to section tion to Centric 8, highway 1992, and interstate 1-25.1 6th Avenue On October the district court Department granted retained Parsons De De Leuw’s motion for summary Leuw, (De Leuw), perform engineer- judgment. Inc. De Leuw turn informed Cen- ing pro- telephone services on the same construction tric via that De Leuw considered jects. prior all negotiations settlement and offers null and void. De additionally Leuw sent a aAs result of its contract with the De- by Centric, letter facsimile to confirming partment, Centric entered into various sub- position. De Leuw’s following day, On the performance contracts for of services relat- 9, October both De Depart- Leuw and the projects. ed to the construction One of the ment upon served Centric a “Withdrawal of subcontractors, Co., Fought & filed an ac- Joint Offer of approxi- Settlement.” At Centric, against seeking damages tion in- mately p.m. 9, 4:00 on October Centric projects curred when the fell behind sched- acceptance served an joint Fought prevailed ule. & Co. its action settlement on De Leuw. Centric also judgment against and obtained a Centric. sought an order from the district court In December Centric commenced an directing the clerk of the court to enter against Department, action alleging judgment upon accepted joint Department that the had breached its con- settlement. tract with Centric. sought Centric to re- damages cover from Department 14, 1992, On October the district court which Centric was liable as a result of the hearing held a on Centric’s motion for an by Fought action commenced & Co. directing entry judgment. During hearing, the district court found that March Centric added De the attempted joint withdrawal of the as a against Leuw defendant to its action preceded settlement acceptance Centric’s Department. alleged Centric that the of the offer. The district court stated delays in projects by were caused er- “that an offer under Subsection 3 of 13-17- rors made in preparing Leuw docu- 202 also operate should be seen to as an design ments as and construc- ‘option for consideration’ and that the at- process. tion On June De Leuw tempted withdrawal pri- Defendants filed a motion for summary judgment, con- expiration or to the of ten after the tending that Centric’s claims it service of the offer is ineffectual.” The were barred the statute of limitations. ultimately concluded, district court howev- September 1992, Centric, On er, that, the De- Leuw, when it dismissed De “the partment, participated and De Leuw in a joint settlement offer could not seen settlement conference during effectual, being Centric since there was not anoth- suggested that the action be settled for er Defendant besides the in- State to be $1,780,000. approximately Depart- volved in the settlement.” ment respond and De Leuw did not subsequently petitioned Centric’s demand at that time. court for a rule to show cause September Department
On
cause,
C.A.R. We issued a rule to show
and De Leuw
joint
served
Centric a
majority
now makes the rule abso-
$750,-
lute,
offer of settlement in the amount of
finding that the district court erred as
000, pursuant
13-17-202(3).
to section
Maj. op.
On a matter of law.
at 944. I dis-
October Centric
agree,
submitted a counterof-
and would hold that both canons of
fer of
approxi-
an amount of
statutory
construction and
$1,438,000.2
mately
joint
contract law render the
offer of settle-
presented
1. The facts
were culled from several
2. Centric did not reference a counteroffer in its
however,
district
petition;
orders and from an affidavit of
both the October 14 district
c.ourt
Commander,
Eugene R.
counsel for Parsons De
court order and the Commander affidavit refer-
Leuw, Inc.,
proceedings
as no record of
ence a counteroffer submitted
Centric on
filed in this case.
October 1.
*10
(1992
(em-
13-17-202(3),
Supp.)
6A C.R.S.
rejected
ineffectual
ment
added).
phasis
acceptance.
attempted
to its
prior
offer
as to whether
is silent
offers
The section
revocable.
In order to
judgment are
II.
issue,
required
we are thus
to
resolve the
A.
See
interpret and construe subsection
Inc.,
Int’l,
F.Supp.
v. Pelican
Watters
notes, the issue we must
majority
As the
Estate
(D.Colo.1989);
Matter of
an offer of
is whether
address
(Colo.1992). The
Roybal, P.2d 1236
13-17-202(3) is
pursuant
to section
made
however,
majority,
conducts a truncated
major-
op. at 946. The
revocable. See
maj.
quot
analysis
portion
of that
of the statute
13-17-202(3) pro-
ity states
that section
opinion.
majority
in its
The
also de
ed
part:
vides
law,
apply principles of contract
clines to
days
ten
any time more than
before
At
Anderson,
Whitney
v.
and relies instead
defending
party
begins,
the trial
(Colo.App.), cert. denied
953 age acceptance of reasonable offers late payments judgments makes the 73, judgment.” Id. at at 116. prices goods higher services than The Janicek concluded that the de- they would be otherwise. general The filed, appeal timely fendant’s was and that assembly that legal sys- finds Colorado’s plaintiff the was entitled to receive costs requires tem changes these in order to under the Whitney rule. Id. Like the improve competitive- Colorado’seconomic court, squarely did Janicek court ness in an global era of markets where address the issue of whether offers of foreign competitors typically have sub- judgment under C.R.C.P. 68 were revoca- stantially legal lower costs in embedded ble. goods they produce. services general assembly
Since neither the
nor
Whitney
the Jani-
finds that
engaged
changes
cek
in statutory
encompassed
courts
in
construc-
act
are de-
tion
signed
of section
in
legal system
order to
make the
more
determine whether offers of settlement are
by
effective and efficient
discouraging
revocable, I
find
do not
that either case
filing
unnecessary litigation,
guidance
provides
for resolution of the is-
encouraging
encour-
presently
sue
before the court.
I find that
aging
timely
more
resolution of dis-
history, including
review of the section’s
putes^]
of procedure, provides
appropri-
rule
approved May
100,
Act
1,
ch.
sec.
interpretation
ate
basis for
of the sec-
1990 Colo.Sess.Laws 848. In
section
Mallory
tion. I also find
supports
act,
Assembly adopted
General
sec-
application
of contract law in
100,
14,
tion 13-17-202. Ch.
sec.
13-17-
§
interpretation
process.
202, 1990 Colo.Sess.Laws 852. The section
currently appears
in
of article
B.
which is
“Attorneys
titled
Fees in Civil
Colorado Rule of Civil Procedure
ti-
13-17-202,
Actions in General.”
6A
Judgment,” provided
tled “Offer of
(1992
C.R.S.
Supp.). Part 2 consists of
means
which courts could assess costs
sections,
three
all of which concern awards
litigant
rejected
who
a reasonable
of attorneys fees and costs in certain cases.
offer of settlement. See C.R.C.P. 68. The
-203,
(1987
13-17-201 to
6A C.R.S.
&
§§
language
literal
of the rule was substan-
Supp.).
Unlike
former rule
(3)
tially similar
to subsection
section 13-
13-17-202,
as enacted in
con-
Janicek,
expressed
pur-
in
17-202. As
pro-
tains two additional subsections which
pose
encourage
68 was to
ac-
C.R.C.P.
vide as follows:
ceptance of reasonable offers of settle-
(l)(a) Notwithstanding any other stat-
Janicek,
Colo.App.
ment.
contrary,
any
ute to the
in
civil action of
repealed
P.2d at 116. C.R.C.P. 68
appealed
nature commenced or
July
any court of record in this state:
31, Í990,
May
Assembly
On
the General
(I)
plaintiff
If the
makes an offer of
90-150,
enacted Senate Bill
titled “Courts
rejected by
which is
the de-
settlement
and Court Procedure.”
section 1
plaintiff
fendant and the
final
recovers a
act,
Assembly declared
the General
in excess
the amount of-
legal system
improved
to be
needs
fered,
plaintiff
then the
shall be awarded
provide justice
order to
for all citizens.
accruing
actual costs
after the offer of
assembly recognizes that li-
general
paid by
settlement to
the defendant.
tigants often encounter an unreasonable
(II) If
an offer of
the defendant makes
delay
amount of
in the resolution of dis-
rejected
plain-
settlement which
putes
obtaining
or a
plaintiff
tiff and the
does not recover a
judicial
legal ac-
determination of their
final
excess of the amount
assembly
general
tions
finds
....
offered,
then the
shall be
delays in
defendant
that the costs associated with
accruing after the
awarded actual costs
the resolution of
from
civil actions and
*12
thereof,
paid by
proof of
and there-
to
with
service
be
of settlement
offer
upon
judgment.
the clerk shall enter
An
plaintiff.
accepted
not
offer
shall be deemed with-
section, “actu-
(b)
of this
purposes
For
thereof is not admis-
drawn and evidence
attorney fees.
include
shall not
al costs”
except
proceeding
sible
a
to determine
of
the amount
(2)
comparing
When
judgment finally
If the
obtained
costs.
of
to the amount
settlement
any offer of
not more
than
the offeree is
favorable
awarded, any
actually
a final
offer,
pay
the offeree shall
the costs
represent-
of the final
amount
making
The
incurred after
of the offer.
subsequent to the date of
ing interest
accept-
fact that an offer is made but not
shall not be consid-
in settlement
preclude
subsequent
ed
not
a
offer.
does
ered.
liability
party to
When the
of one
anoth-
(1992
(2),
Supp.).
13-17-202(1),
6A C.R.S.
§
er has been determined
verdict or
nor this court
appeals
the court of
Neither
judgment,
or
the amount or
but
13-17-202.
section
has construed
liability
de-
of the
remains
extent
construing a statute
task in
primary
Our
proceedings,
par-
termined
further
of
General
give
intent
effect
is
may
an offer of
ty adjudged liable
make
Springs
Assembly. Dunlap v. Colorado
the same
which shall have
Cablevision,
(Colo.1992).
P.2d 1286
829
(ex-
before trial
effect
an offer made
particular
to a
is silent as
“Where a statute
in-
respect
already
with
to costs
cept
issue,
interpretation are illumi
of
questions
curred) if it is served
a reasonable
within
v.
intent.”
by legislative
Watters
nated
days prior
not
ten
time
less than
Inc.,
F.Supp.
1456
Int'l,
706
Pelican
hearings
commencement of
to determine
lan-
(D.Colo.1989).
first
look to the
We
liability.
of extent of
the amount
itself,
give
statute
effect
guage of the
13-17-202(3),
(1992 Supp.).
6A C.R.S.
their
statutory
§
terms in accordance with
expressly
The
does not
address
section
meanings.
commonly accepted
Boulder
are revocable
whether offers of settlement
v.
Equalization
M.D.C.
County Bd. of
period following
ten-day
if
within a
(Colo.1992). made
Co.,
P.2d
830
975
Constr.
upon
party.
service of the offer
adverse
However,
art
technical terms or terms of
provides
party
merely
that a
to have
presumed
a
are
used in
statute
of
more than
meaning.
may
v.
make an offer
Cat-
their technical
Huffman
of
Co.,
days prior
1476
to the commencement
908 F.2d
ten
erpillar Tractor
Cir.1990)
provides that
(citing
Assessment
The section also
(10th
Board
trial.
“[a]n
Club,
accepted
shall be deemed with-
Arlberg
v.
762 P.2d
offer not
Appeals
drawn,”
making
one offer
(Colo.1988)).
and that
a
preclude
party
not
does not
13-17-202(3) provides:
Section
making a second offer.
Id.
from
days
ten
before
At
time more than
“acceptance” are terms
terms “offer” and
defending
begins,
party
a
trial
art;
give
legisla-
in order to
effect to
may
a
serve
the ad-
claim
Legislative
expressed in the
tive intent
party an offer
settlement to
verse
Act,
must
of the
we
turn to
Declaration
offer,
his
costs
specified in
with
effect
principles
contract law.
fundamental
If
ten
after
then accrued.
within
of contracts to
par-
Application
the law
the adverse
the service
this court’s
is consistent with
notice that the offer
settlements
ty
written
serves
regarding settlements
may
previous
file the
decisions
accepted,
either
then
Holdings,
together
generally.3
acceptance,
notice of
See Van Schaack
offer and
(6th
plaintiffs accepted;
defendants
Eyrich,
Mallory
F.2d 1273
Cir.
v.
subsequently
entered
1991),
point. Mallory
moved to have a
in-
is instructive on this
to Fed.R.Civ.P.
interpretation
on the offer set aside
60(b)(6).
of Fed.R.Civ.P. 68 in
volved an
Mallory
challenging
was confronted
by group
court
a
of residents
action filed
60(b) order
municipal
a rule
county-wide
the issue of whether
scheme for election of
with
a
setting
was immediate-
judges.
aside rule
Id. at 1275. The defendants
court
Mallory
ly
plaintiffs,
appealable.
at 1277. The
Id.
of settlement on the
served
Fulenwider,
v. L.
Ltd.
C.
principle
ed....
This
commonly
most
(“A
(Colo.1990)
results from
illustrated
where
counteroffer is
meeting
exchange
and an
operated
minds
offeree.
as a rejection
This
”
consideration.”);
City
v.
Peters,
Trimble
offer.’ Baldwin v.
original
sufficient
Writ
Denver,
Christensen,
er
(Colo.
County
&
It is gives fundamental that an offer an the offer. Re- power accept a offeree Applied language of section 13- (Second) 35(1) 17-202(3), statement Contracts judg- conclude that offers of § of (1981) Restatement Accord- are ment revocable. The common law rule [hereinafter ]. ingly, by provides power contract cannot be created an creating offer a of “[a] acceptance an power offer after the acceptance by rejection is terminated either acceptance has been Restate- terminated.” or a counteroffer. Section 35(2). ment power acceptance may not, A terms, abrogate its does this com- rejection be terminated either language mon-law rule. The of the section counteroffer. Restatement or a stating accepted that “an offer not shall be 36, 38, Thus, we 39. have stated an deemed withdrawn” and that offer §§ “ rejected preclude an has been it ceas- “made but'not does not a ‘[w]hen subsequent es exist and cannot thereafter be accept- appli- offer” with is consistent did not address whether offers settlement whether there has been valid Rather, 68, under rule 68 were revocable. after acceptance purposes for the of Rule courts 60(b)(6) concluding ap- that rule orders were law"); apply contract John pealable, Mallory pro- considered Alabama, College v. son Univ. Univ. of
priety of
in that case. Id.
denied,
(11th Cir.),
706 F.2d
cert.
doing, Mallory court
so
stated:
464 U.S.
104 S.Ct.
in this act are to make reasons, system more effective and foregoing efficient Based on the I con- discouraging filing unnecessary clude accept joint that Centric could not settlement, litigation, encouraging offer of settlement on October Additionally, parties argue, I find alternate basis for this 6. The do not and therefore I do consider, holding impermissi- holding premised accep- not whether this on rule when bly power restricts inherent district availability tance conditioned disputes. Halaby, to resolve courts & Cross v. See McCrea party, unavailability then the of that will Hoffman, (Colo. 831 P.2d power accept. terminate the offeree's 1See ("The 1992) powers pos- which courts inherent 5.1, Witliston on Contracts powers reasonably required all sess consist of Thus, joint as a I find efficiently perform judicial its enable functions.”); court “availability” of all of the defendants in the Jones, v. 157 Colo. Mizar precedent acceptance action to be a condition (1965) (holding that courts joint offer. disputes parties). exist to settle between granting sum- that the district Leuw in favor
mary Accordingly, I find that
appropriate. in its determina- not err court did
district offer could joint settlement “the
tion that being would effectual.” seen show cause.
discharge rule to that Justice say
I am authorized and dis- concurrence joins in this
SCOTT
sent. State
The PEOPLE
Colorado, Petitioner, BUROLA, Respondent.
Jesus
No. 92SC33. Colorado,
Supreme Court of
En Banc. *16 29, 1993.
March