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Sayer v. Bashaw

Supreme Court of Alaska

August 28, 2009

Paul SAYER, Appellant,
v.
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.

OPINION

EASTAUGH, Justice.

I. INTRODUCTION

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.

Page 364

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.[1] 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." [2] 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.[3]

Dr. Sayer appeals the denial of Rule 68 fees.

III. DISCUSSION

A. Standard of Review

We use our independent judgment in reviewing questions of law, including the interpretation of Rule 68.[4] We will adopt the rule of law that is " most persuasive in ...


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