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Failure to explicitly deal with costs, and particularly attorney's fees, in an offer of judgment means that the plaintiff is free to accept the offer and seek attorney's fees and other costs in addition to the amount specified in the offer.
Plaintiffs, William and Beverly Rule and Danielle Swain, brought a civil rights action under 42 U.S.C. § 1983 against defendants, a Rutland police officer, Gary Tobin, and the City of Rutland alleging that Tobin unlawfully entered plaintiffs' apartment and unlawfully arrested Beverly Rule, using excessive force. Two trials were held in the suit. Between the two actions, defendants made an offer of judgment that did not provide for attorney's fees and costs. In plaintiffs' acceptance of the offer, they acknowledged that the amount of attorney's fees would be determined at a later time. Defendants contended that this was not an acceptance but a counteroffer, and the trial court agreed. After the jury in the second trial returned a verdict in favor of defendants, plaintiffs appealed, claiming that the offer of judgment had been accepted and that judgment should be entered on these terms.
The court agreed with the plaintiffs, and held that the offer of judgment had been accepted. Accordingly, the court reversed the trial court judgment in favor of defendants and remanded with direction to enter judgment in accordance with the terms of defendants' offer of judgment. Furthermore, the court held that the civil rights attorney's fees were recoverable as costs under Vt. R. Civ. P. 68 just as they were under Fed. R. Civ. P. 68. If such costs were not provided for in the offer of judgment, then the trial court was obliged to make such an award.