August 28, 2009
Paul SAYER, Appellant,
Elizabeth BASHAW, Appellee.
Tim Dooley, Law Office of Tim Dooley, Anchorage, for Appellant.
Jeffrey A. Friedman and Richard H. Friedman, Friedman, Rubin & White, Anchorage, for Appellee.
Before : FABE, Chief Justice, EASTAUGH, CARPENETI, and WINFREE, Justices.
This appeal turns on the validity of a defendant's offer of judgment that required dismissal of the lawsuit, but did not provide for entry of judgment. The plaintiff did not accept the defendant's pretrial offer to pay $10,111 in exchange for immediate dismissal with prejudice. The defendant prevailed at trial, but the superior court denied his motion for enhanced attorney's fees under Alaska Civil Rule 68. He argues here that he made a valid offer of judgment. Because a valid offer of judgment in Alaska must allow for entry of judgment, not merely dismissal with prejudice, we affirm the order denying defendant's motion for Rule 68 attorney's fees.
II. FACTS AND PROCEEDINGS
In March 2005 Elizabeth Bashaw sued several defendants, including Dr. Paul Sayer, alleging that she was unlawfully fired from her position at South Peninsula Hospital. On June 10, 2005, Dr. Sayer served a document titled " Offer of Judgment" on Bashaw's attorney. The document stated that the defendant " hereby makes a Rule 68 offer of judgment by which Paul Sayer will pay [$10,111] to plaintiff Elizabeth Bashaw" and that " [t]his offer contemplates that if it is accepted, Elizabeth Bashaw's lawsuit against Paul Sayer will be immediately dismissed with prejudice."  Bashaw did not accept the offer. The case went to trial, and the jury found Dr. Sayer not liable. In May 2007 he filed a motion asking the superior court to enter judgment for him and to award him Rule 68 attorney's fees of $74,925. Superior Court Judge Harold M. Brown denied the motion, holding that " [t]he express language of Rule 68 requires a party to offer to allow judgment to be entered in the case," and that the offer did not meet Rule 68's requirements because it did not " allow judgment to be taken for or against either party." When final judgment was later entered against Bashaw, Superior Court Judge Joel H. Bolger awarded Dr. Sayer $31,498.20 in partial attorney's fees under Alaska Civil Rule 82.
Dr. Sayer appeals the denial of Rule 68 fees.
A. Standard of Review
We use our independent judgment in reviewing questions of law, including the interpretation of Rule 68. We will adopt the rule of law that is " most persuasive in light of precedent, policy, and reason." 
B. Whether the Offer Was a Valid Offer of Judgment Under Rule 68
Rule 68(a) allows either party to " serve upon the adverse party an offer to allow judgment to be entered in complete satisfaction of the claim."  (Emphasis added.) If the offeree does not accept, and the final judgment is at least five percent (if there is a single defendant) or ten percent (if there are multiple defendants) less favorable to the offeree than the offer, the offeree " shall pay [a specified percentage of] all costs [and] reasonable actual attorney's fees incurred by the offeror from the date the offer was made." 
The issue here is whether the offer was a valid offer of judgment under Rule 68. The superior court held that it was not, because " [t]he express language of Rule 68 requires a party to offer to allow judgment to be entered in the case" and the offer " did not offer to allow judgment to be taken for or against either party." Instead, the offer allowed only for dismissal of the lawsuit with prejudice. The superior court therefore denied Dr. Sayer's request for Rule 68 fees, but awarded him partial attorney's fees under Rule 82.
Dr. Sayer argues that the superior court erred in requiring that a Rule 68 offer of judgment must offer to have judgment taken for or against a party. Bashaw responds that the superior court correctly interpreted the rule as revised by us in 1987 to incorporate prior legislative amendments.
In choosing the language " an offer to allow judgment to be entered," the legislature appears to have intended for parties to choose between forgoing the protections of Rule 68 attorney's fees and offering to allow judgment to be entered. Unlike some other states' rules that explicitly allow cost-shifting after the offeror makes an offer of " settlement" or " compromise,"  the rule allows cost-shifting only after the offeror makes an offer of " judgment."  Since Rule 68 was first adopted in 1959, it has presupposed an offer of " judgment."
Dr. Sayer advances policy arguments that favor a broader interpretation of Alaska's rule. He correctly notes that we have stated that " Rule 68 has the purpose of encouraging settlements and avoiding protracted litigation."  He argues that as a physician, his reputation, malpractice insurance rates, and practice would be negatively impacted by having a judgment entered against him on the record. He argues that requiring parties in his position to offer to have judgment entered against themselves in order to be eligible for Rule 68's enhanced cost-shifting might deter them from offering to settle at all. And at least one state, California, considers offers for dismissal with prejudice in lieu of entry of judgment to be valid for the purpose of its offer of judgment rule.
These considerations might be relevant to the legislature if it were considering whether to amend the statute that presently specifies the text of our rule. But we hold that the plain language of the existing statute and rule requires an offeror to make an offer that allows for entry of judgment. We also hold that a dismissal with prejudice is not a judgment for purposes of Rule 68. We will not rewrite textually clear rules of procedure to advance the broad, abstract goals arguably attributed to those rules. Not all offers of settlement satisfy Rule 68. Only offers to allow judgment to be entered can satisfy Rule 68.
Because the offer did not offer to allow judgment to be entered, it was not a valid offer under Rule 68. Dr. Sayer's offer reflected his unwillingness to have judgment entered against him. He was entitled to make that choice, but he is not entitled to reap the benefits of Rule 68 without subjecting himself to its detriments.
In Haberkorn v. Chrysler Corp. (Two Cases), the Michigan Supreme Court similarly interpreted its offer of judgment rule, Michigan Court Rule 2.405.  The court held that an offer of judgment was defective because it " expressed a willingness to settle and to bring an end to the case," but not " to stipulate to the entry of judgment in a sum certain," as required by the rule. The court reasoned that the plain language of Rule 2.405 required entry of judgment, not merely dismissal of the case with prejudice, because dismissal would bring an end to the proceedings but not an adjudication on the merits.
Dr. Sayer makes a number of additional arguments. He first asserts that the superior court erroneously required that a valid offer allow for entry of judgment " for or against either party." Bashaw responds that the superior court did not require any specific phrasing. Because we hold that a valid offer of judgment must allow judgment to be entered, and because the offer called only for dismissal with prejudice and not entry of judgment, the offer was not a valid Rule 68 offer of judgment. We therefore do not need to determine whether a valid offer of judgment must explicitly allow for judgment to be taken for or against a party.
Second, he argues that the superior court incorrectly relied on Alaska case law interpreting an older version of Rule 68, which specified that the offeror must " allow judgment
to be taken against him."  Bashaw responds that the cases on which the superior court relied interpreted the most recent version of the rule. Dr. Sayer's argument is not persuasive because the superior court does not appear to have relied on any cases interpreting an older version of Rule 68.
Third, Dr. Sayer contends that because Federal Rule of Civil Procedure 68 materially differs from Alaska's rule, Bashaw mistakenly relied below on case law and treatises construing the federal rule. Bashaw responds that the federal rule is analogous because it also requires an offer to allow judgment to be entered. We have considered interpretations of the analogous federal rule in interpreting Rule 68. But the federal rule required that an offer of judgment " offer to allow judgment to be taken against the defending party,"  whereas our rule only requires that an offer " allow judgment to be entered."  Federal cases and treatises interpreting the federal rule are therefore not dispositive here. The federal authority can nonetheless be instructive to the extent the federal rule, like Alaska's rule, requires that the offer " offer to allow judgment to be taken."
Fourth, he argues that requiring an offer of judgment to allow judgment to be taken against a party would lead to " silly results" and would serve no useful purpose. For example, a plaintiff or defendant might " offer[ ] to have judgment entered against plaintiff, if defendant will pay $10,000 to plaintiff." (Emphasis added.) Bashaw responds that " [t]he fact that creative attorneys could propose offers that are difficult, if not impossible, to understand does not suggest that the plain meaning of Rule 68 should be ignored." We are unpersuaded that interpreting Rule 68's requirement of an " offer of judgment" to actually require an offer for entry of a judgment would necessarily lead to " silly results."  And we have detailed the useful purposes of such a requirement above.
Fifth, he argues that seeking dismissal with prejudice did not render the offer invalid under Rule 68. Bashaw responds that to be valid the offer must also contain a provision offering judgment. Although the inclusion of nonmonetary terms does not necessarily invalidate an otherwise valid offer of judgment, a valid offer must also include an offer to allow judgment to be entered.
Sixth, he argues that because an offer of judgment may have to be enforced by the
offeree if the offeror does not pay, an offer for dismissal with prejudice is more favorable to the offeree. Bashaw responds that because a judgment can be directly enforced without filing a new proceeding, a judgment is more favorable to the offeree than an accepted offer followed by a dismissal with prejudice. She also argues that this was not a basis for the superior court's ruling, and that there is risk of noncompliance and " cumbersome post-agreement litigation" with both methods. Dr. Sayer's argument is unpersuasive because ease of enforcement is irrelevant to determining an offer's legal validity under Rule 68, although we note that a judgment may be preferable as a policy matter because it is more easily enforced.
Seventh, he argues that because the offer he made would have extinguished all of Bashaw's claims, it was an offer of judgment. Bashaw responds that even though Dr. Sayer's offer would have extinguished all of her claims had she accepted it, it was still not an offer of judgment for purposes of Rule 68. We hold that although extinguishment of all claims is a necessary component of a valid offer of judgment, it is insufficient to render valid an otherwise invalid offer.
Eighth, he argues that " [a] provision that the plaintiff's case will be dismissed with prejudice is routinely found in offers of judgment." Bashaw argues that the cases cited by Dr. Sayer do not support his proposition. The offers in the two cases appear to have contained provisions offering to allow judgment to be entered in addition to the provisions allowing for dismissal with prejudice. They therefore do not support the proposition for which he cites them.
Ninth, he argues that a dismissal with prejudice is a type of judgment.  Bashaw responds that although a dismissal with prejudice may be considered a judgment in other contexts, it is not necessarily a judgment for the purpose of Rule 68. As discussed above, dismissal with prejudice is not a judgment for the purpose of Rule 68; the cases Dr. Sayer cites are not to the contrary.
Finally, he argues that although " [t]here is very little in the legislative record," the legislative history supports a broader interpretation of the rule because legislators referred to the rule as both an " Offer of Settlement" and an " Offer of Judgment" rule. Bashaw responds that " [t]he available legislative history sheds little light" on legislative intent. The legislative history is not sufficiently clear or on-point to contradict the plain meaning of the 1980 statute that was the source of the relevant words in Rule 68.
Bashaw contingently argues that if we hold that the offer was a valid offer of judgment, we should consider her arguments that the offer was unreasonable or made in bad faith. Because we conclude that the offer was not a valid offer of judgment, we do not need to address these contentions.
The superior court's order denying Rule 68 attorney's fees is AFFIRMED.
MATTHEWS, Justice, not participating.