Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
March 26, 2024
UNITED STATES COURT OF APPEALS
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_______________________________________
SAMUEL LEE DARTEZ, II,
Plaintiff - Appellee/
Cross-Appellant,
v. Nos. 22-3155 & 22-3164
RICK PETERS; ALEX R. TAYLOR;
JASON S. BAILEY;
CHRISTOPHER BEAS;
DANIEL W. DILORETO;
CHRISTOPHER P. MAI, COLBY J.
MARKHAM; DAVID RUBLE;
BRIAN S. HEDGECOCK; HERMAN
JONES; PERRY FREY;
CHRISTOPHER BOWLING;
ROBERT KEENER; JASON
DEVORE; ROBERT WARE,
Defendants - Appellants/
Cross-Appellees,
and
MARK FRENCH; BRIAN
JOHNSON; ROBERT W. DIERKS;
JOSEPH EHRLICH,
Defendants.
__________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 5:15-CV-03255-EFM)
_________________________________
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 2
Gregory P. Goheen, McAnany, Van Cleave & Phillips, P.A., Kansas City,
Kansas, for the Defendants-Appellants.
David G. Seely (Lyndon W. Vix and Ryan K. Meyer, with him on the briefs) of
Fleeson, Gooing, Coulson & Kitch, LLC, Wichita, Kansas, for Appellee/Cross-Appellant.
Before MATHESON, BACHARACH, and EID , Circuit Judges.
BACHARACH, Circuit Judge.
This appeal involves a fee award to the attorneys representing a
prisoner who obtained a favorable judgment. Parties must ordinarily pay
their own attorneys’ fees in the absence of a contrary agreement or statute.
Alyeska Pipeline Serv. Co. v. Wilderness Soc., 421 U.S. 240, 247, 257
(1975). In this case, attorneys’ fees are awardable to the prevailing
plaintiff under both an offer of judgment and a statute. See
42 U.S.C.
§ 1988(b). But because the plaintiff was a prisoner, federal law would
ordinarily limit the amount of attorneys’ fees that can be recouped from
the defendants and require the plaintiff to contribute to any fee award.
42 U.S.C. § 1997e(d).
To resolve the appeal, we must decide how the offer of judgment
affects the applicability of the statutes allowing and limiting a fee award.
The district court assumed that an offer of judgment could trump the
2
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 3
statutes, and the defendants don’t develop a contrary argument. 1 So the
appeal turns on how a court interprets the offer of judgment.
The offer of judgment included payment of $60,000 to the plaintiff
“plus reasonable attorneys’ fees and costs allowed by law, if any.”
Appellants App’x vol. 3, at 275. This language is ambiguous on whether
the parties waived a potential statutory limit on the amount of a fee award.
Because the district court resolved this ambiguity by using extrinsic
evidence, we defer to the district court’s finding on the parties’ intent.
The parties also disagree on whether the language waived the
plaintiff’s statutory obligation to contribute to his attorneys’ fee award.
Interpretation of this language didn’t involve any extrinsic evidence. So we
conduct de novo review when interpreting this part of the offer of
judgment. Through de novo review, we conclude that the parties agreed to
waive the statutory requirement for the plaintiff to contribute to his
attorneys’ award of fees.
Finally, we consider the plaintiff’s cross-appeal, which addresses a
statutory cap on hourly rates for an award of attorneys’ fees. The parties
agree that the cross-appeal turns on our disposition of the other challenges
1
The defendants point out that the district court didn’t cite a precedent
“to suggest that an accepted Rule 68 offer of judgment could modify the
mandatory provisions of [the statutory limit on attorneys’ fees] by mere
silence.” Appellants’ Opening Br. at 18. But the defendants don’t
otherwise question the parties’ ability to avoid the statutory constraints
through an offer of judgment.
3
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 4
to the fee award. Applying our disposition of the other challenges, we
conclude that the statutory cap on hourly rates does not apply.
1. A suit for excessive force leads to an offer of judgment and an
acceptance.
Mr. Samuel Lee Dartez, II sued state officers for excessive force,
invoking 42 U.S.C. § 1983. To settle, the state officers made an offer of
judgment; and Mr. Dartez accepted the offer.
2. The district court awards over $570,000 in fees to Mr. Dartez’s
attorneys.
Acceptance of the offer resulted in a judgment of $60,000 for
Mr. Dartez “plus reasonable attorneys’ fees.” Id.; see p. 3, above. So the
district court considered submissions on the amount of the attorneys’ fees
to be awarded. Based on these submissions, the district court granted a fee
award of $576,242.28. This appeal followed. 2
3. The defendants haven’t preserved their challenge to the proof of
an actual violation.
The defendants argue that federal law prohibited an award of
attorneys’ fees because Mr. Dartez had not proven an actual violation. See
42 U.S.C. § 1997e(d)(1)(A) (establishing this requirement in suits filed by
prisoners). The district court characterized this argument as perfunctory.
The defendants don’t question this characterization, so the argument was
2
The appeal is brought by fifteen employees of the Kansas Highway
Patrol who were named as defendants. The other defendants aren’t
involved in the appeal.
4
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 5
forfeited in district court. See Goode v. Carpenter, 922 F.3d 1136, 1149
(10th Cir. 2019) (stating that a party’s “perfunctory presentation” in
district court resulted in forfeiture).
We can ordinarily consider forfeited arguments for plain error. See
EEOC v. Beverage Distribs. Co., 780 F.3d 1018, 1023 n.4 (10th Cir. 2015).
But the defendants don’t argue plain error. So we decline to consider this
argument. See Richison v. Ernest Grp., Inc.,
634 F.3d 1123, 1128
(10th Cir. 2011) (Gorsuch, J.).
4. Ambiguity arises from the combination of the offer of judgment
and the applicable statutes.
This appeal turns on how two statutes apply to the offer of judgment.
Absent any agreement, attorneys’ fees could be
allowed under 42 U.S.C. § 1988(b) and
limited by 42 U.S.C. § 1997e(d).
Under § 1988(b), Mr. Dartez could obtain a reasonable award of attorneys’
fees as the prevailing plaintiff. Under § 1997e, however, three limitations
would arise:
1. The fee award couldn’t exceed $90,000 (150% of the amount
awarded to Mr. Dartez).
2. He would need to contribute $15,000 (25% of the judgment)
toward the award of attorneys’ fees.
3. The hourly rates for Mr. Dartez’s attorneys couldn’t exceed
150% of the hourly rates for criminal defense attorneys under
the Criminal Justice Act, 18 U.S.C. § 3006A.
5
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 6
42 U.S.C. § 1997e(d)(2)–(3).
The threshold issue is whether the offer of judgment unambiguously
waived the limits in § 1997e(d). The offer of judgment included $60,000
“plus reasonable attorneys’ fees and costs allowed by law, if any.”
Appellants’ App’x vol. 3, at 275; see p. 3, above. Assessing the ambiguity
of this clause is a question of law, triggering de novo review. Bank of
Okla. v. Muscogee (Creek) Nat., 972 F.2d 1166, 1171 (10th Cir. 1992). In
conducting de novo review of potential ambiguity, we consider whether the
offer of judgment is susceptible to two or more reasonable interpretations.
See Fire Ass’n of Phila. v. Taylor,
91 P. 1070, 1072 (Kan. 1907). 3
3
“The . . . application of Rule 68 is a matter of federal law.” Mock v.
T.G.&Y. Stores Co., 971 F.2d 522, 527 (10th Cir. 1992). Under federal law,
however, we apply the ordinary rules of contract interpretation. See
Guerrero v. Cummings,
70 F.3d 1111, 1113 (9th Cir. 1995) (“The ‘usual
rules of contract construction’ apply to interpreting the terms of a Rule 68
settlement offer in a § 1983 case.”); Goodheart Clothing Co. v. Laura
Goodman Enters., Inc.,
962 F.2d 268, 272 (2d Cir. 1992) (“Offers of
judgment pursuant to Fed. R. Civ. P. 68 are construed according to
ordinary contract principles.”); Whitaker v. Assoc. Credit Servs., Inc.,
946 F.2d 1222, 1226 (6th Cir. 1991) (“Courts may apply general contract
principles to determine what was intended in an offer of judgment.”). And
we generally apply state law when interpreting contracts. Madsen Prud.
Fed. Sav. & Loan Ass’n,
635 F.2d 797, 802–03 (10th Cir. 1980). The offer
of judgment came in a case litigated in Kansas’s federal district court, so
Kansas law would govern interpretation. Wilner v. Univ. of Kansas,
848 F.2d 1020, 1022 (10th Cir. 1988).
6
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 7
4.1 The offer of judgment could reasonably have waived the cap on
the award of attorneys’ fees.
The parties disagree over the effect of the offer of judgment on the
statutory ceiling for a fee award. This disagreement stems from a deeper
dispute over the statutory source for a fee award. Mr. Dartez identifies this
source as 42 U.S.C. § 1988(b), which allows recovery of a reasonable
amount of attorneys’ fees. The defendants identify the statutory source as
42 U.S.C. § 1997e(d)(2), arguing that this section caps the fee award at
$90,000 (150% of the judgment).
The parties’ disagreement stems partly from the phrase allowed by
law in the offer of judgment. What does this phrase modify, and which law
allows the fee award? Again, the parties supply different answers to both
questions. Mr. Dartez says that the phrase allowed by law modifies only
the term costs. The defendants disagree, arguing that the phrase modifies
both terms (reasonable attorneys’ fees and costs).
4.1.1 The offer of judgment is ambiguous as to a cap on the total fee
award.
Both interpretations are plausible, and it’s not entirely clear whether
the term allowed by law modifies
reasonable attorneys’ fees and costs
– or –
just costs.
7
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 8
The phrase allowed by law appears right after the term costs, and
there’s a principle (the last-antecedent rule) that would restrict the
modifier to the closest noun (costs). Barnhart v. Thomas, 540 U.S. 20, 26
(2003). 4 With this restriction of the modifier, the parties would have
agreed
to an award of costs only if such an award had been allowed by
law and
to an award of attorneys’ fees if they were reasonable.
But context may undermine the basis for applying the last-antecedent rule.
Lockhart v. United States, 577 U.S. 347, 354 (2016).
Does context clarify the meaning of the compound noun reasonable
attorneys’ fees and costs? The defendants don’t
address context or
question the district court’s reliance on the last-antecedent
rule.
The parties might have used the modifier allowed by law to allow costs
only if they are expressly authorized by some statute. This interpretation is
possible because a federal statute restricts assessment of costs to particular
categories of expenses. 28 U.S.C. § 1920. But the phrase allowed by law
4
“Kansas courts apply the last antecedent rule.” State v. Durham,
172 P.3d 88, 91 (Kan. App. 2007).
8
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 9
might also modify the noun phrase reasonable attorneys’ fees. So the
context doesn’t clearly prevent application of the last-antecedent rule.
The concurrence disagrees, arguing that the phrase allowed by law
unambiguously refers to attorneys’ fees (as well as costs). For this
argument, the concurrence reasons that the last-antecedent rule can’t apply
because (1) attorneys’ fees and costs typically appears as one cohesive
phrase and (2) the Supreme Court doesn’t apply the last-antecedent rule
when the clause “hangs together as a unified whole, referring to a single
thing.” Concurrence at 2 (quoting Cyan, Inc. v. Beaver Cnty. Emps. Ret.
Fund, 138 S. Ct. 1061, 1077 (2018)). This reasoning has two shortcomings.
First, no one else has made this argument, and we are limited to the
arguments presented by the parties. See United States v. Sineneng-Smith,
140 S. Ct. 1575, 1579 (2020) (stating that courts “normally decide only
questions presented by parties” (quoting United States v. Samuels,
808 F.2d 1298, 1301 (8th Cir. 1987) (Arnold, J., concurring in denial of
reh’g en banc)).
Second, the concurrence’s approach begs the question whether the
frequent combination of the terms attorneys’ fees and costs means that
they refer to a unified whole. See Cyan, 138 S. Ct. at 1077. Even though
these terms often appear together, they involve “legally distinct categories
of monetary allowances.” Marx v. Gen. Revenue Corp.,
668 F.3d 1174,
1178 (10th Cir. 2011); see Petersen v. Gibson,
372 F.3d 862, 868 (7th Cir.
9
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 10
2004) (observing that “[t]he Supreme Court . . . has recognized that the
analysis of costs may differ from that of fees”); Flint v. Haynes, 651 F.2d
970, 973 (4th Cir. 1981) (“There is a strong historical basis for applying
different standards to the taxation of costs and the award of attorney’s
fees.”).
The Supreme Court has treated a phrase as a unified whole when
a single noun phrase is followed by a restrictive clause 5 or
both terms take the same direct object. 6
5
For example, the Supreme Court considered the applicability of the
last-antecedent rule to a statute addressing [a]ny covered class action
brought in any State court involving a covered security as set forth in
subsection (b) of this section. Cyan, Inc. v. Beaver Cnty. Emps. Ret. Fund,
138 S. Ct. 1061, 1075 (2018) (quoting 15 U.S.C. § 77p(c)). The issue there
was whether the ending modifier (as set forth in subsection (b)) applies
only to the restrictive modifier involving a covered security. Id. at 1076.
The Supreme Court answered no, reasoning that the restrictive modifier is
most naturally read together with the preceding noun phrase (any covered
class action brought in any state court involving a covered security). Id. at
1077. The Court reasoned that the combination of the restrictive modifier
and noun phrase referred to a “single thing”: “a type of class action.” Id.
For this reasoning, the Court analogized the statutory phrase to a sentence
stating: “The woman dressed to the nines carrying an umbrella, as shown in
the picture . . .” Id. The Court asked rhetorically whether anyone could
doubt that the restrictive modifier (as shown in the picture) had referred to
“the well-attired and rain-ready woman.” Id. (emphasis deleted).
6
An example exists when the Supreme Court addressed the meaning of
the phrase capacity . . . to store or produce telephone numbers to be
called, using a random or sequential number generator. Facebook, Inc. v.
Duguid, 592 U.S. 395, 402 (2021) (quoting
47 U.S.C. § 227(a)(1)). The
issue there was whether the ending modifier (using a random or sequential
number generator) referred to one or both of the preceding verbs (store
and produce). The Court answered that the modifier had referred to both
verbs, reasoning that they were connected by the disjunctive or and took
10
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 11
Neither the Supreme Court nor our court has ever applied this principle to
jettison the last-antecedent rule when two separate noun phrases are
combined by the conjunctive and
– or –
lack the same direct object.
In the phrase reasonable attorneys’ fees and costs, the conjunction
(and) suggests that the ending modifier could relate to both terms
(reasonable attorneys’ fees and costs). So some other appellate courts have
parsed the modifiers in clauses involving attorneys’ fees and costs,
concluding that the ending modifier applied only to the closest noun
phrase.
For example, the Montana Supreme Court interpreted a contract
clause allowing an award of actual costs and such reasonable attorney fees
as the court or arbitrator shall determine just. Gullett v. Van Dyke Constr.
Co., 111 P.3d 220, 223 (Mont. 2005). The question there was whether the
ending modifier (as the court or arbitrator shall determine just) had
modified costs, reasonable attorney fees, or both.
Id. at 223–24.
Under the concurrence’s approach, the court would apply the ending
modifier to both costs and reasonable attorney fees because these terms
the same direct object (telephone numbers to be called). Id. at 403. The
Court observed that “[i]t would be odd to apply the modifier (using a
random or sequential number generator) to only a portion of this cohesive
preceding clause.” Id.
11
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 12
typically appear together. But the state supreme court didn’t take that
approach; the court instead applied the ending modifier only to the closest
noun phrase (reasonable attorney fees), relying on the conjunctive and as
well as the relative clause serving as the ending modifier:
Here, the main clause of the subject provision indicates two separate
awards to which “the prevailing party . . . shall be entitled.” These are
“actual costs,” and “such reasonable attorney fees as the court or
arbitrator shall determine just.” These awards are separated from one
another by the conjunction “and,” and the latter award—“reasonable
attorney fees”—is situated within, and governed by, the relative
clause, “such . . . as the court . . . shall determine just.” Due to the
placement of “reasonable attorney fees” within this relative clause,
and the remoteness of the phrase “actual costs” therefrom, we think it
clear that the provision empowered the District Court to award fees on
the basis of what is reasonable and just, but not costs, to which the
prevailing party was entitled to the actual amount.
Id. at 224.
The concurrence argues that this rationale is distinguishable because
the Montana court relied on the
“remoteness” of the terms fees and costs and
the pertinence of the relative clause (such . . . as the court . . .
shall determine just) to the second term.
Concurrence at 2–3. But both features apply to the relevant language in the
defendants’ offer of judgment.
The Montana Supreme Court didn’t regard the term attorney fees and
costs as remote because they were far apart. The series contained only two
nouns, so they were next to each other. Despite the proximity of the two
nouns, the court reasoned that they had been “separated” “by the
12
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 13
conjunction ‘and.’” Gullett, 111 P.3d at 224; see p. 12, above (quoting the
pertinent passage in Gullett). The same is true here: The two nouns here
(attorneys’ fees and costs) are also separated by the conjunction and.
As the concurrence emphasizes, the Montana Supreme Court also
reasoned that the second noun (attorney fees) is “situated within, and
governed by, the relative clause, ‘such . . . as the court . . . shall determine
just.’” Gullett, 111 P. 3d at 224; see Concurrence at 2–3. Again, this
rationale applies equally here. In the offer of judgment, the second noun
(costs) is also “situated within, and governed by, the relative clause”
allowed by law. Gullett,
111 P.3d at 224.
The Oregon Court of Appeals also used the last-antecedent rule when
interpreting the phrase an award of reasonable attorney fees and costs and
expenses reasonably incurred. In re Olson & Olson, 480 P.3d 965
(Ore. App. 2021). The issue there was whether the ending modifier
(reasonably incurred) had addressed just the last noun phrase (costs and
expenses) or both noun phrases (reasonable attorney fees and costs and
expenses). Under the concurrence’s approach, the ending modifier would
address each noun phrase. But the court instead applied the ending
modifier only to the last noun phrase (costs and expenses), not to the first
noun phrase (reasonable attorney fees).
Id. at 966–67.
The concurrence points out that the Oregon court reasoned that an
arguable redundancy would arise if the ending modifier were to apply to
13
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 14
the first noun (attorney fees). Concurrence at 3; Olson, 480 P.3d at 967.
The attorney fees would have two modifiers: At the start would be the
adjective reasonable; at the end would be the modifier reasonably
incurred.
480 P.3d at 967. An “arguable redundancy” would arise “by
requiring that ‘reasonable attorney fees’ further be ‘reasonably incurred.’”
Olson,
480 P.3d at 967. So the Oregon court adopted the interpretation that
would avoid the “arguable redundancy.” Id.; see Concurrence at 3. 7
7
The Texas Supreme Court and Kentucky Court of Appeals took a
similar approach when addressing the applicability of the last-antecedent
rule to combinations of the terms attorneys’ fees and costs.
For example, the Texas Supreme Court interpreted the phrase court
costs, reasonable attorney’s fees, and other expenses incurred in defending
against the legal action as justice and equity may require. Sullivan v.
Abraham, 488 S.W.3d 294, 297 (Tex. 2016). The issue there was whether
the ending modifier had addressed just the last noun phrase (other
expenses) or each of the noun phrases (court costs, reasonable attorney’s
fees, and other expenses).
Id. Under the concurrence’s approach, the court
would apply the modifier to all three noun phrases because they typically
appear together. But the court instead held that the modifier had addressed
only the last noun phrase (other expenses).
Id.
The Kentucky Court of Appeals took a similar approach in Tri v. Tri,
2010 WL 3515768 (Ky. App. 2010) (unpublished). There the court
interpreted a contract, which stated that the parties would be “responsible
for their own attorneys’ fees and the costs of this action already incurred
by them.”
Id. at *3. Under the concurrence’s approach, the ending modifier
(already incurred by them) would unambiguously apply to both reasonable
attorneys’ fees and costs because these terms typically appear together. But
the court concluded that there were two reasonable interpretations of the
contract. For example, the ending modifier (already incurred by them)
could apply to both reasonable attorneys’ fees and costs. But the ending
modifier could also refer only to the immediately preceding term—costs.
Because two plausible interpretations existed, the court regarded the
contract as ambiguous.
Id.
14
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 15
But under the concurrence’s view, a similar redundancy would exist
here. As the concurrence argues, attorneys’ fees would ordinarily be
recoverable only as a form of costs. Concurrence at 4 (discussing
42 U.S.C. § 1988(b)). And the phrase allowed by law unquestionably
modifies costs. So under the concurrence’s approach, the term costs
allowed by law would include attorneys’ fees available under § 1988(b).
And § 1988(b) allows attorneys’ fees only if they’re “reasonable.” See
42 U.S.C. § 1988(b) (permitting “a reasonable attorney’s fee as part of the
costs”). So without the last-antecedent rule, the pertinent clause would
state that Mr. Dartez could recover
reasonable attorneys’ fees and costs (including reasonable attorneys’
fees)
That reading of the offer of judgment would create the same arguable
redundancy (reasonable attorneys’ fees) that the Oregon court rejected.
Granted, the cases in Montana and Oregon address different
combinations and sequences of contract terms involving costs and attorney
fees. The uniqueness of the combinations and sequences prevents hard-and-
fast rules on how to interpret ending modifiers involving costs and
attorneys’ fees.
Here, for example, the parties use a modifier (reasonable) before the
series began. The term reasonable obviously modifies the nearby term
(attorneys’ fees). The only question is whether the term attorneys’ fees is
15
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 16
also modified by the more distant ending modifier (allowed by law). The
concurrence answers yes, but that would mean the term attorneys’ fees is
modified by descriptors on both sides. At the front is the adjective
reasonable; at the end is the relative clause as allowed by law. Why would
the parties separate the modifiers for the same term (attorneys’ fees)?
We have no way of knowing why the parties chose this combination
or sequence of the terms costs and attorneys’ fees. The combination and
sequence undoubtedly vary from those in the opinions by the courts in
Montana and Oregon. Because the potential combinations and sequences
are so varied, we can’t assume that the only conceivable interpretation is
one that none of the parties or the district court embraced. According to
the interpretations of the courts in Montana and Oregon, the last-
antecedent rule would tie the ending modifier to the second term in the
series (costs)—not the more distant term attorneys’ fees. The applicability
of the last-antecedent rule is thus ambiguous even though the terms costs
and attorneys’ fees often appear together.
If the last-antecedent rule does apply, the parties might have
intended to agree to any amount of attorneys’ fees that the district court
were to deem “reasonable.” See Miller v. City of Portland, 868 F.3d 846,
849–51 (9th Cir. 2017) (concluding that an offer of judgment, which
authorized a plaintiff to recover “reasonable attorney’s fees to be
determined by the Court,” did not include “considerations that govern the
16
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 17
decision to award fees under §§ 1983 and 1988 . . . as those considerations
were not incorporated into the Offer”); Torres v. Walker, 356 F.3d 238,
245–46 (2d Cir. 2004) (rejecting an argument that a stipulation of
dismissal, stating that the defendants would pay the plaintiff’s counsel his
“reasonable attorney’s fees and costs to be determined by the Court upon
the submission of the parties,” meant that the fees would be limited by
42 U.S.C. § 1997e(d)). The parties thus might have agreed that the fee
award could extend beyond the limits in § 1997e.
But let’s assume, for the sake of argument, that the concurrence is
right and the last-antecedent rule doesn’t apply. In that event, we would
apply the ending modifier (allowed by law) to both noun phrases
(reasonable attorneys’ fees and costs). The question then would be which
law is referenced in the relative clause allowed by law: § 1988(b) or
§ 1997e?
Section 1988(b) allows an award of attorneys’ fees, and section
1997e limits those fees. A factfinder could thus reasonably regard the
reference to law as § 1988(b) because
it allows the award and
§ 1997e instead limits the award.
Of course, this is not the only way to interpret the offer of judgment.
For example, the district court could interpret the offer of judgment to
authorize a fee award only to the extent that the overall amount falls within
17
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 18
§ 1997e. 8 Under this interpretation, the district court would need to cap the
attorneys’ fees at $90,000 (150% of the amount awarded to Mr. Dartez
himself). 9
We thus have two ways to interpret the term allowed by law. The
term could mean that attorneys’ fees were reasonable if they satisfied
§ 1988
– or –
both § 1988 and § 1997e. 10
Because both interpretations are plausible, the offer of judgment is
ambiguous as to a statutory cap on the fee award.
8
The parties stipulated in district court that the substantive issues
would be governed by various provisions, including 42 U.S.C. § 1997e.
But the stipulation preceded the offer of judgment, and the issue is whether
the later offer of judgment jettisoned the limitations in § 1997e.
9
Mr. Dartez argues that § 1997e doesn’t apply because his claim
involved events preceding his incarceration. We rejected this argument in
Robbins v. Chronister, 435 F.3d 1238, 1244 (10th Cir. 2006). And we’re
bound by Robbins. Haynes v. Williams,
88 F.3d 898, 900 n.4 (10th Cir.
1996).
10
The concurrence assumes that the term allowed by law refers to
§ 1988, not § 1997e. See p. 15, above. But the concurrence doesn’t say why
the defendants’ reliance on § 1997e isn’t at least plausible.
18
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 19
4.1.2 A canon and extrinsic evidence helped the district court to resolve
the ambiguity.
To resolve the ambiguity, the district court used two interpretive
tools:
1. the defendants’ role in drafting the offer of judgment and
2. the existence of extrinsic evidence.
First, the court reasonably interpreted the language against the
defendants because they could have removed the ambiguity when they
drafted the offer of judgment. See Weber v. Tillman, 913 P.2d 84, 97
(Kan. 1996) (stating that ambiguities should be resolved against the party
that drafted the written instrument); see also Kubiak v. Cnty. of Ravalli,
32 F.4th 1182, 1187 (9th Cir. 2022) (stating that ambiguities in an offer of
judgment are construed against the drafter); Vasconcelo v. Miami Auto
Max, Inc.,
981 F.3d 934, 943 (11th Cir. 2020) (stating that “an ambiguous
offer of judgment . . . is construed against its drafter”); Sanchez v.
Prudential Pizza, Inc.,
709 F.3d 689, 694 (7th Cir. 2013) (construing an
ambiguous offer of judgment against the offeror).
Second, the district court reasonably relied on extrinsic evidence. For
example, the district court pointed to evidence that defense counsel had
expressed their clients’ willingness to pay attorneys’ fees of $100,000 or
more.
19
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 20
The defendants argue that the district court shouldn’t have
considered this evidence because it involved settlement negotiations for a
Tenth Circuit mediation. But this argument lacks evidentiary support.
Mr. Dartez presented affidavits stating that defense counsel’s statements
had preceded an appeal or involvement by the Tenth Circuit Mediation
Office, and the defendants present no contrary evidence. 11
Because the defendants drafted the ambiguous language and extrinsic
evidence suggested that the defendants were willing to pay attorneys’ fees
of $100,000 or more, the district court interpreted the offer of judgment to
authorize a fee award exceeding the limit in § 1997e (150% of the amount
awarded to Mr. Dartez).
4.1.3 Resolution of this ambiguity lay with the district court as the
factfinder.
We thus consider the district court’s role in resolving the ambiguous
language with the aid of extrinsic evidence.
Kansas courts distinguish between ambiguous contracts
that can be interpreted as “clear question[s] of law” and
that present questions of fact.
11
The defendants elsewhere say that settlement negotiations “should
play no role,” but don’t say why. Appellants’ Opening Br. at 26. In their
reply brief, the defendants cite a local rule of the district court. See
D. Kan. Loc. R. 16.3(j)(2). But the defendants don’t argue that their
counsel’s statement was inadmissible under this rule.
20
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 21
Snodgrass v. State Farm Mut. Auto. Ins. Co., 804 P.2d 1012, 1016–17
(Kan. App. 1991).
The ambiguity here involved a factual question, and the district court
answered by relying in part on extrinsic evidence (the statement by defense
counsel that his clients were willing to pay attorneys’ fees of $100,000 or
more). The use of extrinsic evidence required a factual determination that
lay within the province of the factfinder. See Slawson Expl. Co. v. Vintage
Petroleum, Inc., 78 F.3d 1479, 1482 (10th Cir. 1996); see also Mobile
Acres, Inc. v. Kurata,
508 P.2d 889, 895 (Kan. 1973) (“Where there is
ambiguity in a written contract and extrinsic evidence is required to
ascertain the intention of the parties, summary judgment should not be
entered in the face of contradictory or conflicting evidence.”); Rettiger v.
Dannely,
136 P. 942, 943 (Kan. 1913) (concluding that interpretation of an
ambiguous contract involves a question of fact rather than law). 12
12
The concurrence rejects deference to the district court’s
interpretation. Concurrence at 5–6. In rejecting any deference, the
concurrence relies in part on precedents in our court and the Kansas
Supreme Court, which treat contract construction as a question of law. Id.
at 5 & n.1 (quoting Penncro Assocs., Inc. v. Sprint Spectrum, L.P.,
499 F.3d 1151, 1155 (10th Cir. 2007) (Gorsuch, J.)), and Born v. Born,
374 P.3d 624, 632 (Kan. 2016)). But these precedents don’t involve
consideration of extrinsic evidence. See Penncro Assocs., 499 F.3d
at 1158–60; Born, 374 P.3d at 633–39. Under Kansas law, contractual
interpretation “becomes a question of fact” when the language is
ambiguous and the meaning “depends on extrinsic circumstances.” Slawson
Expl. Co. v. Vintage Petroleum, Inc.,
78 F.3d 1479, 1482 (10th Cir. 1996)
(applying Kansas law and quoting City of Farmington v. Amoco Gas Co.,
777 F.2d 554, 560 (10th Cir. 1985)).
21
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 22
4.2 The district court didn’t err in calculating the fee award.
Under federal law, the amount of the fee award had to be
proportionate to the relief ordered. 42 U.S.C. § 1997e(d)(1)(B)(i). The
defendants argue in part that a fee award of over $570,000 was
disproportionate to Mr. Dartez’s judgment for $60,000.
The district court rejected this argument, reasoning that
Mr. Dartez needed to fight for every “inch” and
the time spent by Mr. Dartez’s attorneys was “very likely”
necessary for Mr. Dartez to obtain any relief.
Appellants’ App’x vol. 5, at 171. On appeal, the defendants devote only
one sentence to this reasoning: “The District Court is critical of the
number of dispositive motions filed by Defendants, but fails to note that
Plaintiff kept expanding claims and Defendants and refusing to give up
claims that were clearly not supported by the law or facts such as
pre-arrest 5th Amendment claims which the District Court never dismissed
in spite of their lack of viability.” Appellants’ Opening Br. at 29.
This generalized assertion, lacking any authority or citation to the
record, doesn’t provide a meaningful basis for review. Missing are
any examples of Mr. Dartez’s expansion of claims or parties,
any support for the invalidity of the “pre-arrest 5th Amendment
Claims,”
any information about the amounts awarded as a result of the
expansion of claims or parties, or
22
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 23
any authority or explanation challenging the district court’s
reasoning.
These shortcomings doom the defendants’ argument. See In re Syngenta AG
MIR 161 Corn Litig., 61 F.4th 1126, 1212–13 (10th Cir. 2023) (concluding
that the appellants’ failure to address the district court’s reasoning for a
fee award was “fatal”). 13
In the body of their argument on proportionality, the defendants also
argue that the district court should have cut the fees to account for the
claims against other parties. The district court explained that
(1) Mr. Dartez had proposed a 10% reduction and (2) the defendants had
failed to present an alternative figure. Without an alternative figure, the
district court addressed the disputed entries.
On appeal, the defendants say that the district court awarded fees for
duplicative time, clerical tasks, and attendance at a criminal proceeding.
But again, the defendants haven’t provided any examples, amounts, record
cites, or authorities. We thus lack a meaningful argument to review. See
Martinez v. Roscoe, 100 F.3d 121, 124 (10th Cir. 1996) (rejecting the
13
Mr. Dartez suggests that the parties agreed to waive all of the
restrictions in § 1997e(d). But even if the parties hadn’t waived the
proportionality requirement, the district court wouldn’t have erred in
finding satisfaction of that requirement.
23
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 24
defendants’ generalized challenge to a fee award given the lack of any
specificity in the challenge). 14
4.3 The offer of judgment waived Mr. Dartez’s duty to contribute to
the fee award.
With no contrary agreement, federal law would require Mr. Dartez to
contribute 25% of the fee award. 42 U.S.C. § 1997e(d)(2). But Mr. Dartez
argues that the offer of judgment waived this requirement. We agree.
4.3.1 The offer of judgment is ambiguous on Mr. Dartez’s duty to
contribute to the fee award.
The offer of judgment called for Mr. Dartez to recoup $60,000 plus a
reasonable amount of attorneys’ fees. Appellants’ App’x vol. 3, at 275; see
p. 3, above. The term plus suggests that the fee award is added to the
amount awarded to Mr. Dartez. See Oxford Eng. Ref. Dict. 1115 (Judy
Pearsall & Bill Trumble eds., 2d ed. rev. 2006) (providing a primary
definition of plus as with the addition of). If Mr. Dartez had to contribute
25% of his $60,000 recovery to pay the fee award, the district court could
reasonably conclude that Mr. Dartez had received $60,000 minus 25%, a
smaller amount than the $60,000 promised to him in the offer of judgment.
14
The offer of judgment provided for “reasonable attorney fees.”
Appellant’s App’x vol. 3, at 275; see p. 3, above. Determining the
reasonableness of the fees would be a question for the district court. See,
e.g., White v. Gen. Motors Corp., 977 F.2d 499, 502 (10th Cir. 1992)
(deferring to the district court’s conclusions on the reasonableness of
attorneys’ fees).
24
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 25
So the court could reasonably interpret the offer of judgment as a proposal
to waive the statutory requirement for Mr. Dartez to contribute to the fee
award.
But this interpretation is open to debate. The defendants point out
that fee awards are typically awarded to the plaintiffs rather than to their
attorneys. E.g., Astrue v. Ratliff, 560 U.S. 586, 588–89 (2010); Comm’n of
Internal Rev. v. Banks,
543 U.S. 426, 436–37 (2005). Based on this
practice, the defendants suggest that the statutory requirement for
Mr. Dartez to contribute to his attorneys’ fees wouldn’t reduce his
judgment. The judgment would instead reflect the sum of three items:
(1) the base amount of $60,000; (2) the amount awarded in attorneys’ fees;
and (3) the amount awarded in costs. Once these items were awarded to
Mr. Dartez, the defendants continue, federal law would require Mr. Dartez
to pay his attorneys with part of the judgment. But Mr. Dartez would still
have received “$60,000 plus reasonable attorneys’ fees,” as the offer of
judgment provides.
This interpretation of plus is reasonable, but not dispositive. The
district court could reasonably interpret plus to mean that Mr. Dartez
himself would get at least $60,000. The clause was thus ambiguous.
4.3.2 The district court did not err in resolving the ambiguity.
In resolving this ambiguity, the district court relied on the language
of the offer of judgment rather than extrinsic evidence. Given the district
25
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 26
court’s reliance on the language itself, we assume for the sake of argument
that our review is de novo. 15
To interpret the ambiguous language, we resolve the ambiguity
against the defendants because they had drafted the offer of judgment. See
Part 4.1.2, above. The defendants could have clarified in the offer of
judgment that Mr. Dartez might need to use part of his $60,000 to pay his
attorneys. But the defendants said that Mr. Dartez would receive not only
the $60,000, but also an award of attorneys’ fees. Given the defendants’
language in the offer of judgment, we conclude that the parties waived Mr.
Dartez’s obligation to contribute to his attorneys’ fee award.
5. The district court’s interpretation of the offer of judgment would
remove the statutory cap on counsel’s hourly rates.
When the district court calculates a fee award, federal law would
ordinarily cap the attorneys’ hourly rates. 42 U.S.C. § 1997e(d)(3). In
district court, Mr. Dartez argued that the offer of judgment waived the
statutory cap on hourly rates. The district court disagreed and applied the
15
We lack precedent under Kansas law on the standard of review when
interpretation of one ambiguous term requires consideration of extrinsic
evidence and interpretation of another ambiguous term does not. See, e.g.,
Slawson v. Expl. Co. v. Vintage Petroleum, Inc., 78 F.3d 1479, 1482 (10th
Cir. 1996) (discussing the interpretation of ambiguous contracts under
Kansas law but not addressing this question). We assume for the sake of
argument that de novo review applies to interpretation of ambiguous terms
when no extrinsic evidence is considered.
26
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 27
statutory cap, and Mr. Dartez cross-appeals to challenge this ruling. We
agree with Mr. Dartez.
The parties agree that they either waived all of the statutory
limitations or none of them, and we’ve already upheld the district court’s
findings that the parties had agreed to avoid the statutory limits on a fee
award. Given our affirmance of those findings, the defendants have
conceded that we would also need to reverse the district court’s application
of the cap on hourly rates. Given this concession, we reverse the district
court’s application of the statutory cap on hourly rates.
6. Disposition
On the defendants’ appeal, we affirm the rulings that
the parties waived statutory provisions capping the fee award
and requiring Mr. Dartez to contribute to that award and
the fee award was proportionate to the relief ordered.
27
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 28
On Mr. Dartez’s cross-appeal, we (1) reverse imposition of the cap on
hourly rates and (2) remand for the district court to recalculate the fee
award without the statutory cap on hourly rates. 16
16
Mr. Dartez also argues that § 1997e’s limitations on attorneys’ fees
do not apply for two reasons:
1. He obtained non-monetary relief.
2. He received an agreed amount to settle the case, but the court
did not award him a monetary judgment under § 1997e(d)(2).
We need not consider these potential grounds for affirmance.
In his cross-appeal, Mr. Dartez also suggests that we might need to
suspend our local rule on the confidentiality of settlement negotiations. See
10th Cir. R. 33.1(D). Suspension of the local rule is unnecessary because
the district court had enough information to determine the parties’ intent
without considering the settlement negotiations.
28
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 29
Dartez v. Peters, Nos. 22-3155, 22-3164
EID, Circuit Judge, concurring in the judgment.
I agree with the majority that we should affirm the district court’s construction of
the Offer of Judgment. However, I disagree with both the district court and the majority
in their conclusions that the Offer of Judgment is ambiguous. In my view, the only
reasonable construction of the Offer of Judgment would require us to reverse the district
court—but because the Officers waived any such argument on appeal, we must instead
affirm.
The Officers extended an Offer of Judgment “in the total amount of Sixty
Thousand Dollars ($60,000.00) plus reasonable attorneys’ fees and costs allowed by law,
if any, which ha[d] been incurred to date.” App’x Vol. III at 275. Dartez accepted, id.
at 277, and the district court entered judgment accordingly, id. at 278.
In calculating what attorneys’ fees Dartez may be awarded, the district court
construed the Offer of Judgment to contract around the background rules of law that cap
attorneys’ fees in cases such as this. See App’x Vol. V at 158–59. The district court
determined that the phrase “reasonable attorneys’ fees and costs allowed by law” is
ambiguous because “under the grammatical last antecedent rule,” the phrase “allowed by
law” modifies only the word “costs.” Id. at 159. Therefore, the district court reasoned, it
is “far from clear that the ‘allowed by law’ language references the PLRA” or its
limitations on fees. Id. The district court thus construed the purported ambiguity against
the Officers as the drafters of the Offer of Judgment and ruled that “no fee cap under the
PLRA applies in this case.” Id. at 159–60.
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 30
The district court improperly applied the last-antecedent rule. The rule of last
antecedent “is not an absolute and can assuredly be overcome by other indicia of
meaning.” Barnhart v. Thomas, 540 U.S. 20, 26 (2003). For instance, when a term
modifies a clause that “hangs together as a unified whole, referring to a single thing,” the
last-antecedent rule does not produce the most likely meaning of the phrase. Cyan, Inc.
v. Beaver Cnty. Emps. Ret. Fund,
138 S. Ct. 1061, 1077 (2018). In short: the last-
antecedent rule does not dissect phrases that are otherwise intertwined.
The language of the Offer of Judgment does not permit the district court’s
construction. The phrase “fees and costs” is best understood as a unified phrase, not as
two items in a short list. It is so ubiquitous a phrase that it scarcely warrants citation. It
appears in innumerable cases across every jurisdiction in the country, including the Tenth
Circuit. The overwhelming majority of such cases employ the term “fees and costs” as a
unified phrase to refer to a single award of money. See, e.g., In re Samsung Top-Load
Washing Mach. Mktg., Sales Pracs. & Prod. Liab. Litig., 997 F.3d 1077, 1081 (10th Cir.
2021).
The cases cited by the majority reach different conclusions because they interpret
different texts. See Maj. Op. at 11–14. As the majority agrees, those different texts
“address different combinations and sequences of contract terms involving costs and
attorney fees.” Id. at 15. For instance, the Montana Supreme Court interpreted a contract
allowing “actual costs and such reasonable attorney fees as the court or arbitrator shall
determine just” to refer to two separate awards because the terms “fees” and “costs” were
“remote[]” from each other, and because the term “fees” was “situated within, and
2
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 31
governed by” the distinct, more complex clause “such . . . as the court . . . shall determine
just.” See Gullett v. Van Dyke Constr. Co., 327 Mont. 30, 36 (2005). Those features are
not present here. Contra Maj. Op. at 11–13.
The majority also looks to an Oregon Court of Appeals decision interpreting the
phrase “an award of reasonable attorney fees and costs and expenses reasonably
incurred.” In re Olson and Olson, 308 Or. App. 633, 635(2021) (cited by Maj. Op. at 13–
14). In that case, the Oregon Court of Appeals recognized that the “incurred” language
would normally apply to the entire preceding phrase.
Id. at 635–36 (citing Anderson v.
Wheeler,
214 Or. App. 318, 320 (2007)). However, the court reasoned that it was
“unlikely” that the legislature “requir[ed] that ‘reasonable attorney fees’ further be
‘reasonably incurred.’” Id. at 636. The court therefore read the statute to avoid that
“redundancy.” Id. Again, this reasoning simply does not apply to this case.
In truly similar cases, where a contract or statute uses only the unified phrase “fees
and costs,” courts do not typically see fit to drive a wedge in the middle of that phrase.
For example, when construing statutes allowing “reasonable attorney’s fees and costs as
determined by the court,” courts have consistently interpreted such statutes to provide for
“attorney’s fees to be ‘determined by the court.’” Miller v. Mun. Ct. of City of L.A.,
22 Cal. 2d 818, 852 (1943) (construing the Emergency Price Control Act of 1942,
56 Stat. 23 § 205(e)); see also, e.g., Stowe v. Bologna,
415 Mass. 20, 23 (1993) (similar);
Pearce v. Vandagriff,
203 Okla. 450, 453 (1950) (similar). The district court should have
done the same here with the similar language in the Offer of Judgment. It therefore erred
3
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 32
in applying the last-antecedent rule to split the inextricable “fees and costs” into two
separate items. See Cyan, 138 S. Ct. at 1077.
Nor do background principles of law permit such a construction. Under Kansas
law, like the law of most states, it is appropriate to construe contracts in light of the
external sources of law they reference. See, e.g., CitiMortgage, Inc. v. Dinwiddie,
443 P.3d 365 (Kan. Ct. App. 2019) (construing a contract incorporating external sources
of law). Here, the phrase “reasonable attorneys’ fees and costs” is best understood to
refer to the existing well-developed body of law about what attorneys’ fees and costs may
be awarded in a civil rights case.
42 U.S.C. § 1988; see Gudenkauf v. Stauffer
Commc’ns, Inc.,
158 F.3d 1074, 1083 (10th Cir. 1998). Therefore, any construction of
the Offer of Judgment must be consistent with the rules of law it incorporates.
The language of § 1988 forecloses the district court’s conclusion. Under
§ 1988(b), a district court “in its discretion” may allow a prevailing civil rights plaintiff
“a reasonable attorney’s fee as part of the costs” granted to him. 42 U.S.C. § 1988(b). In
other words, attorneys’ fees are allowed by § 1988 only as “part of the costs” allowed by
§ 1988. Id. By statute, such fees are a subset of costs. The “reasonable attorneys’ fees”
provided by the Offer of Judgment are therefore among the “costs” provided by such
offer, and they are likewise limited by the “allowed by law” clause. See Marek v.
Chesny,
473 U.S. 1, 9 (1985) (“[A]bsent congressional expressions to the contrary, where
the underlying statute defines ‘costs’ to include attorney’s fees, we are satisfied such fees
are to be included as costs for purposes of Rule 68.”). In concluding otherwise, the
district court erred.
4
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 33
Nor is the majority right to defer to the district court’s judgment in this case. The
majority claims that if the offer of judgment is ambiguous, the meaning of the offer of
judgment is a question of fact that requires deference to the district court. Maj. Op. at 3,
21–22. Kansas contract law says otherwise. Because private settlements are contracts,
state contract law applies—here, the law of Kansas. Flying J Inc. v. Comdata Network,
Inc., 405 F.3d 821, 831 (10th Cir. 2005). When a contract is ambiguous, Kansas law asks
first whether it contains a legal ambiguity or a factual ambiguity. See Snodgrass v. State
Farm Mut. Auto. Ins. Co.,
15 Kan. App. 2d 153, 161, rev. denied,
248 Kan. 997 (1991).
A factual ambiguity involves a “question of fact,” such as whether the parties acted in a
way that triggered certain conditions in a contract.
Id. However, if a term is “susceptible
of more than one meaning,” the resulting ambiguity is a “clear question of law.”
Id.
When a contract presents such a legal ambiguity, the “court should construe the
contract.”
Id. at 157. Here, the district court did just that—and under Kansas law and
Tenth Circuit precedent, “[t]he proper construction of a contract is a question of law” that
this Court must “review de novo.” Penncro Assocs., Inc. v. Sprint Spectrum, L.P.,
499 F.3d 1151, 1155 (10th Cir. 2007) (Gorsuch, J.) (interpreting a contract under Kansas
law).1 Therefore, I disagree with the majority’s undue deference to the district court’s
construction.
1
Even if other Tenth Circuit decisions have erroneously held that contract interpretation
is a question of fact, see Maj. Op. at 21–22 & n.12, the Kansas Supreme Court has
superseded those cases. See Wankier v. Crown Equip. Corp., 353 F.3d 862, 866 (10th
Cir. 2003). According to the Kansas Supreme Court, contract construction is always a
question of law on which a lower court is due no deference. See Born v. Born,
304 Kan.
542, 554 (2016) (“The interpretation of . . . written contracts is a question of law over
5
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 34
In the end, however, none of that matters to the result in this case for the reason
the majority identifies—“no one else has made this argument.” Maj. Op. at 9. The
Officers failed to make any argument on appeal about the construction of the phrase
“reasonable attorneys’ fees and costs allowed by law.” The Officers’ only argument is
that the Offer of Judgment “means exactly what it says – [Dartez] is able to recover fees
allowed by law, if any, and the only law that allows him to potentially recover any
attorneys’ fees is the PLRA.” Aplt. Br. at 21. But the Officers do not further justify why
we should accept their construction of the Offer of Judgment. They do not attempt to
explain why the district court’s construction was erroneous. Nor do the Officers support
their conclusions with any legal authority, much less precedent upon which we may rely.
Therefore, the Officers’ “mere conclusory allegations with no citations to the record or
any legal authority for support” are “not adequately briefed,” and under the law of our
Circuit we must deem them “waived.” Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 841 (10th Cir. 2005). The Officers’ failure to make a construction
argument “disentitle[s] [them] to review” on appeal.
Id. I therefore disagree with the
majority’s choice to reach this issue.
I agree with the majority that the Officers waived other of their arguments on
appeal. See Maj. Op. at Part 3 (actual violation of constitutional rights); Part 4.2
(proportionality of fee award). I also agree with the majority’s conclusion that Dartez is
not obligated to contribute a portion of his judgment to his attorneys’ fees. See id. at
which this court exercises unlimited review, unaffected by the lower courts’
interpretations or rulings.”).
6
Appellate Case: 22-3155 Document: 010111022041 Date Filed: 03/26/2024 Page: 35
Part 4.3. However, for the reasons I have stated, I disagree with the majority’s
construction of the Offer of Judgment and the majority’s choice to reach that question.
Therefore, I respectfully concur in the judgment.
7
