(dissenting).
I respectfully dissent. Merastar waived the 10-day provision of Minn.R.Civ.P. 68 and Stoebe timely accepted the offer of judgment. Rule 68 specifically provides that the offer is irrevocable for a period of 10 days. A party benefitted by a court rule may waive the rule expressly or by conduct. Saylor v. Sass, 258 Minn. 300, 305, 104 N.W.2d 36, 39 (1960). Merastar admits knowing trial was likely to begin in two days when it expressly made an offer of judgment pursuant to rule 68. By making the offer of judgment so *603close to trial, Merastar placed the onus on Stoebe to determine under pressure whether to accept Merastar’s offer or proceed through trial and risk having costs and disbursements assessed against her. Meras-tar’s position in this case is untenable. As the trial judge noted in his memorandum: “[I]t seems to me you can’t make the offer and then take advantage of the fact that it was made in an untimely fashion.”