Tucker v. BENEVOLENT AND PROTECTIVE ORDER OF ELKS LODGE § 417

• Decision Date: 14 April 2000
• Docket Number: No. 92,508.,92,508.
• Citation: 2000 OK CIV APP 51,6 P.3d 1082
• Parties: Dora Carlene TUCKER, Special Personal Representative of the Estate of Marion E. Tucker, Plaintiff/Appellant v. BENEVOLENT AND PROTECTIVE ORDER OF ELKS LODGE # 417, an Oklahoma Non-Profit Corporation, Defendant/Appellee
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

6 P.3d 1082

2000 OK CIV APP 51

Dora Carlene TUCKER, Special Personal Representative of the Estate of Marion E. Tucker, Plaintiff/Appellant v. BENEVOLENT AND PROTECTIVE ORDER OF ELKS LODGE # 417, an Oklahoma Non-Profit Corporation, Defendant/Appellee

No. 92,508.

Court of Civil Appeals of Oklahoma, Division No. 1.

April 14, 2000.

Bradley K. Donnell, Burton J. Johnson, Looney, Nichols & Johnson, Oklahoma City, Oklahoma, For Plaintiff/Appellant.

Hugh A. Baysinger, Rachel K. Jackson, Pierce, Couch, Hendrickson, Baysinger & Green, L.L.P., Oklahoma City, Oklahoma, For Defendant/Appellee.

Released for Publication by order of the Court of Civil Appeals of Oklahoma, Division No. 1.

BUETTNER, J.

¶ 1 Plaintiff/Appellant Dora Carlene Tucker appeals from the trial court's order denying Tucker's Motion to Enforce Offer to Confess Judgment. Tucker's husband, Marion E. Tucker, sued Defendant/Appellee Benevolent and Protective Order of Elks Lodge #417 (Elks Lodge) alleging negligence resulting in a slip and fall accident. After Tucker's husband's death (unrelated to the injuries which were the subject of the instant suit), Tucker succeeded him as plaintiff in her capacity as special personal representative. On Thursday before a Monday trial, Elks Lodge served Tucker an offer to confess judgment.¹ The record indicates Tucker rejected the offer and counter-offered on Friday before the Monday trial. The counteroffer was rejected. Trial proceeded on Monday, and the jury rendered its verdict in favor of Elks Lodge on Wednesday morning. Later that day, and within the statutory five day acceptance period for offers of judgment,² Tucker filed an acceptance of Elks Lodge's offer of judgment. Elks Lodge objected to the acceptance, and the trial court entered judgment on the jury verdict. Tucker then filed her Motion to Enforce Offer to Confess Judgment. The trial court held that the offer of judgment terminated 1 on Tucker's rejection and counteroffer prior to trial; 2) upon commencement of trial; 3) upon submission of the case to the jury; or 4) upon the court's acceptance of the jury verdict. It is from this order which Tucker appeals. We hold that an offer of judgment terminates at the start of trial, and affirm the order.

¶ 2 Trial in the instant case was scheduled for Monday, October 19, 1998. The Thursday evening prior to trial, October 15, 1998, Elks Lodge faxed to counsel for Tucker an offer of judgment in the amount of $25,001. The evidence indicates that Tucker responded with a demand of $50,000. The counteroffer was rejected. Trial began October 19, 1998 and concluded Wednesday, October 21, 1998 with a jury verdict in favor of Elks Lodge. After the jury's verdict was announced, Tucker filed an acceptance of the offer of judgment with the Oklahoma County District Court Clerk. When Elks Lodge rejected the acceptance of the offer of judgment, Tucker filed her Motion to Enforce the Offer to Confess Judgment which was denied by the trial court.

¶ 3 We first note that Elks Lodge seeks to have the instant appeal dismissed as untimely. The journal entry of judgment on the jury verdict was filed October 21, 1998. The order denying the Motion to Enforce Offer to Confess Judgment was filed December 30, 1998. Tucker filed her petition in error January 25, 1999. A petition in error must be filed "within thirty days from the date the judgment, decree, or appealable order" is filed with the clerk of the district court. Rule 1.21(a), Supreme Court Rules, 12 O.S.Supp.1997 Ch. 15, App. Elks Lodge asserts that Tucker filed her petition in error more than thirty days following the entry of judgment on the jury verdict. However, Tucker is appealing not the jury verdict, but the order denying her Motion to Enforce Offer to Confess Judgment. "A final order is an order affecting a substantial right in an action . . . made in a special proceeding or upon a summary application in an action after judgment." Rule 1.20(b), Supreme Court Rules, 12 O.S.Supp.1997 Ch. 15, App. A final order includes an order disposing of a motion to vacate a judgment. In essence, Tucker's Motion to Enforce Offer to Confess Judgment amounted to a motion to vacate the judgment entered on the jury verdict and grant judgment based on the offer of judgment. We therefore hold that the order denying Tucker's motion is a final appealable order and accordingly, this appeal is timely because it was filed within thirty days of the order denying Tucker's motion.

¶ 4 On appeal, Tucker argues that the trial court erred in denying her motion because, she asserts, an offer of judgment made pursuant to 12 O.S.1991 § 1101, is irrevocable and may only be terminated by the expiration of the five day statutory period or by acceptance by the plaintiff. The instant dispute involves a question of law and is therefore subject to de novo review. Hernandez v. United Supermarkets of Oklahoma, Inc., 1994 OK CIV APP 122, 882 P.2d 84.

¶ 5 Section 1101 provides:

The defendant, in an action for the recovery of money only, may, at any time before the trial, serve upon the plaintiff or his attorney an offer, in writing, to allow judgment to be taken against him for the sum specified therein. If the plaintiff accept the offer and give notice thereof to the defendant or his attorney, within five days after the offer was served, the offer, and an affidavit that the notice of acceptance was delivered within the time limited, may be filed by the plaintiff, or the defendant may file the acceptance, with a copy of the offer, verified by affidavit; and in either case, the offer and acceptance shall be noted in the journal, and judgment shall be rendered accordingly. If the notice of acceptance be not given in the period limited, the offer shall be deemed withdrawn, and shall not be given in evidence or mentioned on the trial. If the plaintiff fails to obtain judgment for more than was offered by the defendant, he shall pay the defendant's costs from the time of the offer.

In Allison v. City of El Reno, 1994 OK CIV APP 170, 894 P.2d 1133, the court held as follows: "A § 1101 offer terminates only upon two events: acceptance by the plaintiff, or expiration of five days." However, the court specifically declined to consider the effect of intervening judgments, stating that the single concurring judge disagreed with Hernandez, supra (which held that summary judgment granted during the statutory acceptance period did not terminate an offer of judgment). In Allison, defendant presented plaintiff with a § 1101 offer moments before trial. Plaintiff accepted the offer. Afterward, plaintiff moved for attorneys fees as prevailing party. Defendant objected and requested the trial court for permission to modify the offer to include attorneys fees. The appellate court held that a party could not modify or revoke an accepted offer. In dissent, Judge Taylor foreshadowed the issue before us:

"The interpretation of § 1101 offered by the majority would preclude withdrawal of an offer containing a misplaced decimal point. That interpretation would also allow a party who receives an offer the day before trial, then loses at trial, to nonetheless accept the offer before the expiration of five days. Further, it would allow one who receives an offer two days before trial to accept the offer two days into a trial that is not going as well as expected. Such results clearly could not have been intended by the legislature in drafting § 1101, but the majority's interpretation of the statute in today's opinion would appear to condone just such results. 894 P.2d at 1138.

¶ 6 Thus, the question here is to decide whether a third event, the commencement of trial, operates to terminate or revoke an offer of judgment.³ In support of her contention that an offer to confess judgment is irrevocable during the five day acceptance period, Tucker relies on Hernandez, supra. In Hernandez, the plaintiff filed a negligence action following a slip and fall. The defendant filed a motion for summary judgment and, while the motion was pending, the defendant submitted to the plaintiff an offer of judgment pursuant to § 1101. The trial court issued its order granting summary judgment to the defendant within the five day acceptance period for the offer of judgment. The plaintiff then filed her acceptance of the offer of judgment within the five day period, but after summary judgment had been granted to the defendant. The trial court held that the grant of summary judgment caused the offer of judgment to be withdrawn. The trial court accordingly refused to enter judgment in favor of the plaintiff as provided for in § 1101.

¶ 7 This court reversed, finding that the purpose of §1101 is to encourage pretrial settlement. The Hernandez court further determined that offers of judgment are irrevocable during the statutory period because the statute does not provide for revocation of an offer. The court further held that the statute requires entry of judgment for the plaintiff upon acceptance of the offer within the five day period. In deciding what effect the interviewing grant of summary judgment had, the court, relying primarily on Centric-Jones Co. v. Hufnagel, 848 P.2d 942 (Colo. 1993), held that an interviewing judgment has no effect on a pending offer of judgment. The court quoted the following from a concurring opinion in Centric-Jones:

While the offer of judgment remains outstanding, the trial court is not stripped of the power to issue summary judgment . . . or from issuing any other ruling affecting the rights of the parties. The statute provides no vehicle or requirement for notifying the trial court that an offer of judgment is outstanding, nor does it provide that the trial court lacks power to decide issues relating to the substantive rights of the parties while an offer is outstanding.

Any trial court ruling made during the period of time the offer is outstanding is effective and valid, subject only to a possibility that the ruling will be

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