William M. Hart, Christopher J. Schulte, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for Appellant)

Considered and decided by Willis, Presiding Judge, Norton, Judge, and Schumacher, Judge.

Appellant Wanda Rose DeRemer challenges the district court's award of respondent's costs and disbursements and its denial of her costs and disbursements. We reverse and remand.

On July 23, 1996, the parties attended a pretrial conference where appellant's attorney indicated that a settlement offer in the amount of $7,500 remained open. Respondent accepted appellant's offer. After appellant's attorney consulted the insurance claim adjuster handling appellant's file, he informed respondent's attorney that the insurance company never intended to settle with respondent and had withdrawn the offer.

A jury returned a special verdict for $745 in respondent's favor. The district court ordered judgment against appellant and awarded respondent his costs and disbursements. Appellant moved to vacate the court's order, arguing that because respondent did not accept appellant's offer of judgment, and the final judgment was not more favorable to respondent than the $7,500 offer, appellant was entitled to her costs and disbursements pursuant to Minn. R. Civ. P. 68.

The district court denied appellant's motion and stated, in its attached memorandum, that

[g]iven the special circumstances regarding the offer for judgment in this case and its withdrawal, it would be inequitable to designate [appellant] as the prevailing party in this case.

The court ordered judgment for respondent in the amount of $745, plus $3,030.65 in costs and disbursements. Appellant challenges the district court's order and the judgment.[1]

The rules of civil procedure allow parties to make offers of judgment and thereby potentially shift payment of the offeror's costs and disbursements to the offeree. Minn. R. Civ. P. 68. A party may serve an offer of judgment on an adverse party "any time prior to ten days before the trial begins." Id. The offer is irrevocable for ten days after service, and if the offeree does not serve written notice of acceptance within that time, the offer is deemed withdrawn. Id.

Respondent argues that because the document here contains the language "pursuant to Rule 68.01 of the Minnesota Rules of Civil Procedure" and "Attorney for Defendant Dorothy Rivenburg," appellant's offer of judgment is ambiguous and is not a valid offer under rule 68. We disagree.

Typographical errors in court documents are common and often are not fatal. See, e.g., Stein v. Kelly, 173 Minn. 613, 614, 216 N.W. 792, 793 (1927) (stating that an "error in the complaint as to the year the bond was executed [wa]s so clearly a typographical or clerical mistake that it merit[ed] no notice"); see also Hallow v. Filiyaro, 526 N.W.2d 631, 632 (Minn. App. 1995). In Hallow, the Filiyaros sent Hollow's attorney in December 1992 a document entitled: "DEFENDANTS' OFFER OF SETTLEMENT PURSUANT TO MINNESOTA STATUTES, SECTION 549.09, SUBD. 1, AND RULE 68.01 OF THE MINNESOTA RULES OF CIVIL PROCEDURE." Id. (emphasis added). Although the court did not specifically address the fact that the document did not refer to rule 68, but rather to rule "68.01," which has not existed since 1984, the court found that the document was a valid rule 68 offer of judgment. See id. at 634.

The offer of judgment here also expressly and unambiguously states that appellant, Wanda Rose DeRemer, through her attorney, John C. Hughes, makes an offer to have judgment entered against her in the amount of $7,500. The fact that another client's name appears in the signature block is a typographical or clerical mistake that merits no notice.

Respondent further contends that the district court did not err in allocating costs and disbursements because appellant's conduct shows that she did not intend to pay respondent $7,500, in violation of the spirit of rule 68. But appellant's intent is irrelevant to the sufficiency of her offer of judgment because, under rule 68, the offer was irrevocable for ten days. See Minn. R. Civ. P. 68. Respondent did not accept appellant's offer of judgment within that time, so "it [was] deemed withdrawn." See id. Because the final judgment entered was less favorable than appellant's offer of judgment, the district court erred in awarding respondent his costs and disbursements and denying appellant hers.

Respondent supports his further argument that the district court may waive a court rule in the interests of justice by citing Thon v. Erickson, 232 Minn. 323, 324-25, 45 N.W.2d 560, 561 (1950). But Thon refers to local court rules, not to the rules of civil procedure. See id. Because respondent's offer of judgment is sufficient as a matter of law, the district court abused its discretion when it disregarded rule 68. We therefore reverse and remand to the district court for reversal of the award of respondent's costs and disbursements and for the award of appellant's costs and disbursements.

Reversed and remanded.

Dated:

______________________________

Judge Bruce D. Willis

[ ]¹ Respondent argues that this issue is not properly before this court because appellant did not give the district court an opportunity to correct its error by moving for a new trial pursuant to Minn. R. Civ. P. 59.01. But appellant does not assert that the court erred at trial. Appellant argues that the court erred in denying her motion for vacation of its order for judgment and a new order for judgment, a posttrial determination not subject to rule 59.01. This issue is, therefore, properly before us.