*1
INC.,
MONTANA FAIR HOUSING,
Intervening
Appellant,
Plaintiff and
BARNES,
LAVERN AND DOLORES
d/b/a
COURT,
TARGET RANGE TRAILER
Agent,
TRAVER,
DARRELL
Respondents.
Defendants
No. 02-329.
September
Submitted on Briefs
2002.
Rehearing
February
Entertained
Decided December
For C. at Appellant: Attorney Law, Missoula. Mary Gallagher, Wolfe, Sol, Missoula; Charles Respondents: For Michael Sol and Hail, Attorney General, Rights Special K. Assistant Montana Commission, Helena. Opinion of the Court.
JUSTICE LEAPHART delivered Housing, Appellant, Montana Fair Intervening Plaintiff and one (MFH), three orders of the Fourth Judicial District: appeals denying one its motion to vacate request for M.R.Civ.P., dismissing the and one of MFH’s for case. reverse the District Court’s denial We the matter for a determination of whether and remand affirm the discretionary attorney appropriate. fees is an award of 5(a), Rule provisions ruling regarding District Court’s service appeal. first time on M.R.Civ.P., this issue was raised for the following appeal: two issues on MFH raises judgment, must the defendant making a Rule 68 offer of indicate that fees are included in the offer in order to plaintiffs rights effect a waiver of to recover fees under the Rights Montana Human Act? discrimination intervening 2. Is an or a case relator 49-2-510, MCA,
brought by the State of the Human Rights 5(a), M.R.Civ.P., entitled to notice under Rule final of the terms and conditions of a settlement prior
dismissal between the State and the defendants aof dismissing final order the case?
Background nonprofit corporation MFH is a Montana primary purpose whose protect equal housing opportunities and increase persons throughout the State of Montana. In June MFH filed an complaint administrative with the Montana Human (HRC), agency. Commission a state complaint alleged (the Respondents, Lavern and Dolores Barnes Darrell Trevor Barneses), operators owners and Target Range Trailer Court in Missoula, violating had violated and were Montana’s Human byAct denying equal housing opportunities persons on based status, age, familial and marital status. After an investigation administrative of the complaint, the HRC *3 (1) investigative
issued a final report, finding: allegations that MFH’s (2) by supported evidence, were substantial and that there was reasonable cause to believe the had Barneses violated state fair housing investigative laws. After its finding and an unsuccessful effort conciliation, at the HRC pursuant 49-2-510(4), MCA, issued notice to § that a contested hearing case would held on the MFH complaint, be any party unless elected to have the matter heard in a civil action. The Barneses elected to have the matter heard in district court. The HRC case, then filed the Rights civil action in this Montana Human Commission, Housing ex rel. Montana Fair Campbell and Nicole (DV 99-88288). Lavern and Dolores Barnes Campbell Ms. is a former Target resident of Range Trailer Court who had filed a also housing complaint against discrimination the Barneses. The HRC also complaint by found her discrimination supported was substantial 49-2-510(4)(a), MCA, evidence. Pursuant to the District Court granted Campbell MFH and to party- intervene the case as plaintiffs. September 2000, upon the Barneses served MFH an offer of
judgment pursuant stipulated to Rule M.R.Civ.P. The offer that judgment against “pursuant would be taken the Barneses to Rule 68 ($2,000) together costs Dollars
... in the amount of Two Thousand month, acceptance, MFH filed an only that accrued.” Later that Bameses]... of for advising accepted [the that it “the offer claims in the above against said defendants on its [MFH] favor of Judgment.” pursuant to defendants’ Offer of entitled case against the Bameses 68, judgment entered Pursuant to Rule was judgment, Following the housing on the discrimination claims. party and for an award designation prevailing for moved of the Human shifting provisions the fee pursuant fees for fees and directed Rights The District Court denied motion MFH in the offer of HRC the amount offered to pay the Bameses to the offer of on result, As a MFH moved to vacate judgment. accepted any had not offer which waived grounds that it alternative, or, to amend the attorney fees in the MFH, HRC, paid the sums correctly not the reflect motion to Court denied MFH’s offered, interest. The District however, to amend the vacate; granted it the motion offered. recipient correct of the sums reflect that MFH was the HRC on the claims filed behalf proceeded The case on until, to a settlement Campbell MFH and as relators Barneses, the District the HRC and the stipulated dismissal between Bameses nor the of dismissal. Neither the Court entered a final order MFH, on motion for dismissal HRC served notice of their not served order of dismissal itself was and the District Court’s final later, request. a half months on MFH until two and dismissing the receiving a of the final order day copy after denying the first order appeal notice of MFH filed its motion to vacate fees, order second dismissing the case. and the third order 68 offer of
Discussion ofjudgment, must the defendant InmakingaRule 68 offer in order to effect are included in the offer fees indicate under plaintiffs rights to recover a waiver of Human Act? Montana under the a district court’s denial review the court abused to determine whether
Montana *4 2001 MT County Dept., v.Richland discretion. See Laudert Sheriffs 790, A district court 12, P.3d 12, 403, Mont. 38 287, ¶ 307 ¶ ¶ an inaccurate view denial is based on discretion if its abuses its Laudert, 12; Ihler v. clearly ¶ erroneous. See finding of fact is law or a
413 Chisholm, 37, 24, 254, 24, 2000 MT 298 Mont. 995 P.2d ¶ ¶ ¶ explicitly Whether a Rule 68 offer of must state that attorney fees are in plaintiffs included order to effect a waiver of rights impression fees is matter of first for this argues that, Court. MFH prevailing party, it is entitled to seek discretionary attorney fees under three sections of Human 49-2-505(7), namely 49-2-509(6), 49-2-510(6), MCA, and and §§ right that it did not by accepting waive to seek these fees Court, 68 offer judgment. The District MFH’s motion to attorney fees, seek concluded that the acceptance of the Rule 68 offer “resolved all issues parties,” including between the a claim attorney fees under the MFH maintains that the District concluding Court erred in accepting judgment, the Rule 68 offer of which was silent as to the accepting party’s right waiver of the seek MFH waived its to seek separate a argues award fees. MFH that such a waiver must unambiguously be set out an judgment. offer of The basic purpose of Rule 68 is to encourage settlement and avoid
protracted litigation.
(1981),
See Weston
52, 57, 635
v.Kuntz
Mont.
P.2d
272. As
Weston,
we noted in
attempts
“[t]he rule also
alleviate the
subsequently
burden of
accrued costs to the defendant
placing
plaintiff
them on a
accept good
who refuses to
a
faith offer and
subsequently
greater
receives
which is not
than the offer.”
Mont,
Weston,
MFH
holding
Woodburn,
directs us to the
in Nusom v. COMH
Nusom,
F.3d 830. In
the Ninth Circuit
of Appeals
Court
ruled that “a Rule 68
specific
offer for
together
sum
costs, which is silent as
preclude
does not
seeking
from
underlying
fees when the
statute
does not make
fees a part
Nusom,
of the costs.”
deciphering Bameses, hand, offer, increasing litigation. on the other again Rule 68 and claims argument attempts contend that MFH’s to rewrite that all-encompassing” letter so “broad and acceptance that MFH’s was proscribes request attorney a fees. These acceptance itself any supported by assertions are not case law. of the offeror and the offeree that a It is in the interests both unambiguous, clear and in order to judgment
Rule 68 offer of must be litigation minimizes attorney Today’s ruling effect a waiver of fees. judgment itself. we hold that a waiver over the offer of While clear and attorney fees in a Rule 68 offer of must be “attorney offer itself need not include the words unambiguous, a We look to the decision of the Seventh Circuit fees” to effect waiver. Hocking Packaging Co. 199 F.3d in v. Anchor Nordby, Judge Chief approach. offers this measured In which “ambiguities in Rule 68 offers are to be resolved Posner affirmed that however, rejected “magic-words approach he against offerors;” effect to an offer approach... gives ... in favor of an that Nordby, attorneys explicitly.” if mention fees 199 F.3d even it does not Nordby provided “one total sum as to at 393. The offer of F.3d at 392. complaint.” Nordby, the amended all counts of counts, including a the offer clear that it included all Because was sought, the relief the court specifying part count fees as accepting party’s affirmed the Federal District Court’s denial of right attorney fees. Thousand the Barneses offered MFH “Two this offer on its face ($2,000) together only costs accrued.” The
Dollars costs, attorney fees are included. includes but it is not clear whether See 25- generally allowable.” Attorney § fees are not included as “costs 10-201, paid that the sum to be is MCA. The offer does not state Therefore, it the resolution of all counts. consideration for MFH, by accepting the waived ambiguous whether Bameses’ offer Accordingly, we conclude attorney fees. include a waiver of did not was not clear the Rule 68 offer Because we waiving MFH was to seek unambiguous its discretion hold that the District Court abused Therefore, Rights under the Human request fees for a District Court the matter reverse and remand we discretionary MFH determination of whether award Rights Act. under the Human
II intervening plaintiff Is an or relator a discrimination case brought by 49-2-510, MCA, the State 5(a), M.R.Civ.P., entitled to notice under Rule of the final terms and agreement conditions of a settlement and stipulated dismissal prior between the State and the defendants of a dismissing final order the case? At point some after MFH accepted the Rule 68 offer of Barneses entered into a HRC, settlement
stipulated to the dismissal the case. The final order of dismissal was January 30, 2002; however, entered into on MFH not notified of the settlement between the HRC and the Barneses and the subsequent dismissal of the case until Therefore, two a half months later. argues that it did opportunity not have an oppose to review or *6 the executed settlement between HRC and the Barneses or the dismissal. MFH contends that this lack of notice deified it its fundamental process. to due Consequently, MFH asks this Court to vacate the final order of dismissal and remand it to District Court for the purpose providing notice to MFH in accordance with provisions 5(a), the service of Rule turn, M.R.Civ.P. In requests that it be afforded the opportunity object of a final order of dismissal. MFH received
¶23
notice of the final order
14,
of dismissal on April
filing
2002. Rather than
subsequent
the
appeal
notice of
with this
Court, MFH should
filed
have
a motion with the District Court so that
the court could address the issue of lack
stands, though,
of notice. As it
MFH raised this issue for the
appeal.
first time on
general
rule is
¶24
that this Court will not address an issue raised
for the
appeal.
Industries,
first time on
See
Easley,
Inc. v.
Unified
MT 145, 15,
255,
15,
100,
289 Mont.
15; Day
¶
961 P.2d
Payne
¶
¶
(1996),
273,
Mont.
929 P.2d
866. “The basis for the
general rule is that ‘it
fundamentally
is
unfair to fault the trial court
failing
to rule correctly on an
given
issue it was never
the
opportunity
Industries,
Inc.,
consider.”’
15 (quoting Day,
¶
Unified
866).
276-77,
JUSTICES COTTER and NELSON concur.
JUSTICE specially TRIEWEILER concurs. However, I do not majority Opinion. I the result of the concur with Opinion. in that
agree all that is said nothing inherently beneficial certainty Finding virtue guidance no future provides approach” a “measured about the 9th Circuit Court precedent litigants, would follow (9th Woodbum, 1997), 122 Cir. F.3d v. COMH Appeals in Nusom Nordby v. Anchor approach than the 7th Circuit’s rather 199 F.3d Hocking Packaging Co. Nusom, held that: the 9th Circuit together sum specific Rule 68 offer for
[A] preclude does not costs, is silent as to underlying statute does not seeking fees when the plaintiff from part of costs. make Nusom, 122 F.3d anyone can understand. That a rule that hand, held in that: the 7th Circuit On the other 68 offer be is to insist that the Rule adjustment appropriate
[T]he magic words unambiguous, not it use completely “attorneys’ fees.”
Nordby,
deciding on a basis would ever anyone’s interest. No one unambiguous does not serve ambiguous in the first thought she 68 offer that he or make a Rule Nordby ignores Furthermore, ambiguous rule established place. regarding importance the same case prior admonition in correctly that: That court stated certainty in Rule 68 offers. in an places ambiguous offer add that an knowing the actual value of position. Not uncomfortable *7 it-and there intelligent accept choice make an whether he can’t ordinary of an way. For unlike the case consequences either are legal reject it without offer, offeree cannot contract then doesn’t do better rejects if he it and consequences, since [Citation costs. post-offer pay the defendant’s trial he has omitted.]
Nordby,
attorney of the offeror in the interests I concur that it is claimant and because unambiguous clear and that a Rule 68 offer and offeree majority’s attorney fees, I concur with to effect a waiver of in order attorney fees which claim for did not waive its that MFH conclusion independent statutory costs and its decision to reverse the However, disagree District Court. that a Rule 68 offer of can be clear and regarding independent an claim attorney referring fees without “attorney fees” in the offer. concurring
JUSTICE RICE in part dissenting in part. Concurring 2,1 on Issue holding dissent from the Court’s on Issue agree 1. I holding with the in Nusom that attorney fees must be unambiguously addressed judgments within Rule 68 in order to resolve However, the issue. ambiguity I do not believe existed here. MFH’s acceptance indicated that all of by its claims were resolved necessarily Barneses’ express included its claim for Court, Like the I find reasoning in Nordby persuasive, but,
contrary Court, I would reach the same result as the court Nordby, did. In language similar to that used here was found to encompassed have the plaintiffs claim for fees. I do not find it necessary, for purposes of this to distinguish Nordby on the grounds that language by there was used the party making the offer, while the language similar by here was used party accepting the offer. To the extent that the attorney fee ambiguous issue was within the Barneses’ the issue was clarified acceptance, and confirmed by parties’ subsequent actions in accordance therewith. I find no fault District ruling, Court’s and would affirm.