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Kara Dunham v. Robert Fullerton

July 6, 2011

KARA DUNHAM, APPELLANT (PLAINTIFF),
v.
ROBERT FULLERTON, DECEASED, APPELLEE (DEFENDANT).



Appeal from the District Court of Natrona County The Honorable David B. Park, Judge

The opinion of the court was delivered by: Hill, Justice.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] Kara Dunham challenges the district court's Order of Dismissal and argues that the court erred in refusing to enter judgment upon her acceptance of a W.R.C.P. 68 offer of settlement. We affirm.

ISSUE

[¶2] Dunham raises only one issue before this Court:

1. Did the lower court commit plain error in failing to enter Judgment against [Fullerton] pursuant to a W.R.C.P. 68 Offer of Settlement and Acceptance of Offer of Settlement?

FACTS

[¶3] In May of 2009, Kara Dunham filed a lawsuit against Robert Fullerton for injuries stemming from an automobile wreck. Fullerton filed his answer to the complaint on July 13, 2009, and passed away on November 17, 2009.

[¶4] Despite Fullerton's death, the parties' counsel continued to negotiate a settlement. On June 28, 2010, Fullerton's counsel made a Rule 68 offer of settlement of $36,000.00 to Dunham. On July 1, 2010, Fullerton's counsel filed a motion to dismiss, which alleged a failure to substitute party pursuant to W.R.C.P. 25(a)(i). In response, on July 12, 2010, Dunham filed a new civil action, this time against Fullerton's estate, but based upon the same accident.*fn1 Also on July 12, 2010, Dunham filed her Plaintiff's Notice of Acceptance Pursuant to Rule 68. In addition to accepting the settlement offer, the acceptance also stated:

By accepting the offer in this case against Robert Fullerton, [Dunham] in no way, expressly or impliedly, admits that the damages she sustained from the event at the center of this lawsuit are limited to the amount offered. By accepting the offer in THIS case, [Dunham] in no way expressly or impliedly or otherwise waives her rights to continue pursuing her claims for her injuries, and expressly reserves her right to continue pursuing her cause of action against the Estate of Robert Fullerton[.]

Fullerton's counsel filed the acceptance along with the offer of settlement. On August 2, 2010, the district court held a hearing on the motion to dismiss, and then entered an Order of Dismissal on August 17, 2010. As part of the Order of Dismissal, the court ruled that Dunham's acceptance was invalid because she attempted to reserve the right to litigate the "estate case," and said in pertinent part:

7. On June 28, 2010, counsel for the deceased [Fullerton] made an Offer of Settlement pursuant to W.R.C.P. 68 in Civil Action No. 90390, the terms of which were specifically to allow judgment to be taken by [Dunham], against [Fullerton] in the amount of Thirty Six Thousand ($36,000.00) Dollars, inclusive of [Dunham's] costs incurred to the date of the offer. This offer was filed on July 12, 2010.

8. That [Dunham] timely filed an Acceptance of the Offer, but reserved the right to litigate all issues in Civil ...


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