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SCHOMMER v. COMMUNICATE NOW!, L.P.2014 OK CIV APP 38324 P.3d 433Case Number: 110228Decided: 03/21/2014Mandate Issued: 04/29/2014DIVISION ITHE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION ICite as: 2014 OK CIV APP 38, 324 P.3d 433
WAYNE ALLEN SCHOMMER and DEBORAH ANN SCHOMMER, Husband and Wife, 
Plaintiffs/Appellants,v.COMMUNICATE NOW!, L.P. d/b/a COMMUNICATION 
SOLUTIONS, Defendant/Appellee.

APPEAL FROM THE DISTRICT COURT OFOKLAHOMA COUNTY, 
OKLAHOMA
HONORABLE ROGER H. STUART, TRIAL JUDGE

AFFIRMED

Gary S. Chilton, Gideon A. Lincecum, Holladay & Chilton, PLLC, Oklahoma 
City, Oklahoma, for Plaintiffs/Appellants,Matthew L. Dobson, Kyle Goodwin, 
Edward O. Lee, Edmond, Oklahoma, for Defendant/Appellee.


Wm. C. Hetherington, Jr., Vice-Chief Judge:
¶1 In the underlying personal and/or private rights injury action against 
Defendant Communicate Now!, L.P., d/b/a Communication Solutions (Appellee), 
Plaintiffs Wayne Allen Schommer and Deborah Ann Schommer, husband and wife 
(collectively, the Schommers), appeal from a trial court judgment in their favor 
in accordance with Defendant's modified offers of judgment made pursuant to 12 O.S.Supp. 2002 §1101.1(A).1 The Schommers' 
request for reversal of the confessed judgment is premised solely on whether the 
trial court erroneously invalidated Defendant's original unapportioned offer of 
judgment even though the Schommers had timely accepted it. We AFFIRM.
FACTS
¶2 According to the petition the Schommers filed against Defendant, Mr. 
Schommer went to Defendant's store to purchase a new LG Vu smartphone, during 
which process he authorized Defendant's employee to transfer all data from his 
old mobile phone to the smartphone. After completing the data transfer, the 
employee kept that smartphone and instead gave Mr. Schommer another new LG Vu 
phone, without changing the International Mobile Equipment Identity (IMEI) 
number for the original LG Vu phone which was referenced in the purchase 
agreement. Because the employee had returned the old mobile phone, the Schommers 
were not concerned upon later discovering its data had not been transferred to 
their smartphone.
¶3 Unfortunately, the Schommers later learned Defendant's employee had not 
only "surreptiously" transferred their personal photographs to other employees 
and his supervisor, but also had sold the LG Vu phone with all of the Schommers' 
"private and confidential data" to a third party as a new device.
¶4 Based on the above-described misconduct, the Schommers alleged invasion of 
privacy, violations of the Oklahoma Consumers Protection Act,2 concealment/non-disclosure, 
and negligence/negligent misrepresentation against Defendant. Their prayer for 
relief in the petition sought "actual damages in an amount in excess of 
$10,000,"3 
punitive damages, attorney's fees and costs, and other allowable relief.
¶5 Defendant answered, specifically denying Plaintiffs' allegations. On 
August 22, 2011 Defendant filed a single Offer of Judgment, stating:


COMES NOW, [Defendant], pursuant to 12 [O.S.] §1101.1(A), and hereby 
    offers judgment to be taken against it for the total amount of $10,000.00 
    (Ten Thousand Dollars and Zero Cents) inclusive of prejudgment interest, 
    costs and attorney fees incurred up and including the date of this Offer of 
    Judgment.
On September 6, 2011, the Schommers each filed separate acceptances of 
Defendant's Offer of Judgment.
¶6 On September 14, 2011, the Schommers moved for the court to enter judgment 
on the Offer of Judgment as accepted. That same day, Defendant filed its 
Objection to Entry of Judgment, arguing its Offer of Judgment was for $10,000.00 
total, not $10,000.00 for each plaintiff. It alternatively argued the 
Offer of Judgment was invalid under Haddock v. Woodland Park Homes, Inc., 
2004 OK CIV APP 42, 90 P.3d 594, and Medlock v. 
Admiral Safe Co., Inc., 2005 OK 
CIV APP 72, 122 P.3d 883, 
because it failed to apportion the offer sum between the plaintiffs. Plaintiffs 
responded, arguing entry of judgment was mandatory because they had accepted the 
offer. They also argued the offer was not made to Plaintiffs "collectively" or 
"as a group" like the respective offers of judgment in Haddock and 
Medlock.
¶7 On October 11, 2011, a hearing was held on, inter alia, the 
Schommers' motion to enter judgment and Defendant's objection to such entry. 
That same day and "pursuant to the Court's request at the motion hearing," the 
Schommers filed a Notice with one exhibit attached, i.e., a copy of the 
Offer To Confess Judgment for $50,000.00 filed in Tulsa County District Court. 
Naomi Medlock, et al., v. Admiral Safe Company, Inc., et al., Case No. 
CJ-2003-00732 (Medlock offer). On October 17, 2011, Defendant moved to 
settle journal entry, to which the Schommers filed a response.
¶8 On November 15, 2011, apparently relying on the court's announcement at 
the October 11, 2011 hearing about its potential ruling, Defendant made separate 
§ 1101.1(A) Offers of Judgment to the Schommers, each inclusive of prejudgment 
interest, costs and attorney fees, i.e., $3,000 to Mr. Schommer and 
$7,000 to Mrs. Schommer, respectively. Two days later, Plaintiffs filed separate 
acceptances of Defendant's Offers of Judgment.
¶9 By "Journal Entry" filed November 21, 2011, the trial court ruled on the 
several motions the parties argued at the October 11, 2011 hearing. In relevant 
part, the court found:


Defendant's Offer of Judgment is invalid on the basis of the language of 
    the offer to confess judgment used in Naomi Medlock, et al., v. Admiral 
    Safe Company, Inc., et al., Case No. CJ-2003-00732 (Tulsa County, State 
    of Oklahoma) and the subsequent ruling in Medlock v. Admiral Safe 
    Company, Inc., 2005 OK CIV 
    APP 72, ¶10 & ¶15, 122 
    P.3d 883, and Haddock v. Woodland Park Home, Inc., [2004 OK CIV APP 42, 90 P.3d 594].4
In the same Journal Entry, the court expressly denied the Schommers' motion 
to enter judgment.
¶10 On November 22, 2011, the trial court filed a "Judgment" finding 
Defendant had filed on November 15, 2011 and pursuant to § 1101.1(A),5 "an offer of 
judgment to be taken against it by [Mr. Schommmer] for $3,000.00" and "an offer 
of judgment to be taken against it by [Mrs. Schommer] for $7,000.00," both 
offers inclusive of prejudgment interest, costs and attorney fees. After finding 
each plaintiff had filed a written acceptance on November 17, 2011, the court 
entered judgment in favor of the Schommers in accordance with Defendant's 
November 15, 2011 Offers. Plaintiffs' appeal followed, seeking to reverse both 
the court's pre-judgment order and the November 22, 2011 Judgment.6
ANALYSIS
¶11 The trial court invalidated Defendant's first § 1101.1(A) offer of 
judgment for failure to apportion the offered amount of $10,000 between each 
plaintiff, based on the language in the Medlock offer7 and the holdings in 
Medlock, 2005 OK CIV APP 
72, 122 P.3d 883, and 
Haddock, 2004 OK CIV APP 
42, 90 P.3d 594. The same 
ruling implicitly rejects the Schommers' argument the court had no discretion to 
refuse to enter judgment after their acceptance. Medlock and 
Haddock both hold § 1101.1 offers of judgment made to multiple plaintiffs 
in which the offered amount is not apportioned between the plaintiffs are 
invalid. However, neither case involved a plaintiff's timely-accepted § 
1101.1 offer of judgment,8 as occurred in this case, nor decided the effect of 
such acceptance on a plaintiff's action or claim(s) and a trial court's 
discretion with respect to an accepted § 1101.1 offer of judgment, as the 
Schommers construe Station Operation, LLC v. Circle K Stores, Inc., 2010 OK CIV APP 2, ¶ 13, 229 P.3d 1283. Our analysis begins 
with this preliminary issue.
Is Station Operation dispositive of the issue on 
appeal?
¶12 To support the Schommers' argument on appeal that the trial court was 
required to enter judgment after they accepted Defendant's unapportioned offer 
of judgment, they rely only on the following paragraph from Station 
Operation, LLC v. Circle K Stores, Inc., 2010 OK CIV APP 2, ¶13, 229 P.3d 1283:


The consummation of an offer and its acceptance in a judgment 
    under 12 O.S.Supp. 2008 § 
    1101.1(B) results in a judgment which constitutes 'the final 
    determination of the rights of the parties to an action.' 12 O.S.2001 § 681. Accordingly, 
    "acceptance of a confessed judgment removes all prejudgment issues 
    from the trier's consideration .... [barring] the trial court from 
    entertaining evidence material to that which is no longer within the 
    perimeter of adjudicable controversy." Fleet v. Sanguine, Ltd., 1993 OK 76, ¶ 9, 854 P.2d 892, 898. In other 
    words, "a § 1101 offer's acceptance extinguishes the entire cause of 
    action and substitutes in its place the right to claim the confessed 
    recovery." Id. at ¶ 9, 854 P.2d 898-99. (Parenthetical phrases 
    omitted; emphasis added.)
¶13 Like the trial court, we are not persuaded Station Operation is 
dispositive of the issue on appeal for two reasons. First, we are not here 
considering "prejudgment issues" which the plaintiffs in Fleet and 
Station Operation continued to pursue after acceptance of the offer to 
confess judgment. In Fleet, three mineral owners sued an oil and gas well 
operator for damages under several theories of liability and specifically 
invoked 52 O.S.1981 § 540(B)'s 
penalty provision (12% prejudgment interest for violation of § 540(A)). The 
Supreme Court in Fleet determined the plaintiffs' "acceptance of 
the [defendant's] § 1101 offer of judgment removed from judicial 
inquiry all elements of the mineral owners' damages, including prejudgment 
interest" that was allowed for § 540(A) violations and held "it was error 
for the trial judge to add [such] interest to the amount of the compromised 
recovery." (Emphasis added). 1993 OK 
76, ¶ 13.
¶14 Similarly, in Station Operation, the plaintiff, who had sought 
both monetary damages and injunctive relief under the Oklahoma Unfair Sales Act 
(the Act), unconditionally accepted the corporate defendant's § 1101.1(B) offer 
to confess judgment for $3,000 "without confessing any wrongdoing." The 
plaintiff moved for entry of a confessed judgment and requested inclusion of a 
permanent injunction to prevent further violations under the Act.
¶15 Relying on the Fleet Court's application of § 1101, the Court in 
Station Operation concluded, as relevant here, "[i]n the absence of any 
intent expressed to the contrary, we must conclude the terms of the parties' 
offer and acceptance comprise 'the entire obligation in suit.'" The Court then 
found "Plaintiff's request for a permanent injunction is but another remedy 
sought under the same set of facts, and [his] acceptance of Defendant's offer 
extinguished [his] cause of action seeking redress under the Act. To hold 
otherwise would, in effect, allow the trial court to modify the terms of 
the accepted offer which is prohibited." (Emphasis added.) 2010 OK CIV APP 2, ¶ 19.
¶16 Unlike in Station Operation and Fleet, the trial court in 
this case was not presented any "prejudgment issues" from the Schommers' action 
against Defendant for alleged personal and private rights injuries. By its 
objection to entry of confessed judgment on the first offer, Defendant sought 
revocation of the offer, claiming it was for $10,000 total and the Schommers' 
separate acceptances for $10,000 was a counter-offer, or alternatively, a 
finding the offer was invalid under Haddock and Medlock for lack 
of apportionment between the two plaintiffs. Therefore, the issue for the court 
was interpretation of the terms of Defendant's first offer, not prejudgment 
issues. We find no error with the court's implicit finding the holding in 
Station Operation does not apply to the facts of this case.
The First Offer
¶17 The Schommers argue they are each entitled to a $10,000 judgment 
against Defendant because unlike the offers of judgments in Medlock and 
Haddock, Defendant's first offer of judgment neither expressly requires 
the plaintiffs' joint acceptance nor indicates it was made to Plaintiffs either 
"collectively" or "as a group."9 They contend the first offer was "an open offer to 
any plaintiff in the lawsuit willing to accept judgment against it for a 
sum certain of $10,000." Defendant disagrees, clarifying its first offer of 
judgment "for the total amount of $10,000.00" was made "collectively to 
[the Schommers]" and arguing a single offer of judgment to both plaintiffs is 
invalid based on the holdings in Medlock and Haddock "because of 
[the Schommers'] separate, individual claims."
¶18 We are persuaded by the Defendant's last argument. In Haddock, the 
spouses brought an action against the defendant for the wife's personal injuries 
resulting from a car accident with the defendant and for loss of consortium 
suffered by the husband. Because the defendant's § 1101.1 offer of judgment 
specifically named both plaintiffs in the body of the offer and required 
acceptance from both to be enforceable, the Court in Haddock found such 
lump sum offer "prevents each plaintiff from evaluating the settlement offer 
against the value of his or her claim" and leads to trial court confusion "in 
apportioning the various responsibility for the attorney fees award after a 
judgment for less than the settlement offer." 2004 OK CIV APP 42, ¶17. 
Importantly, the Court found "[e]ven though the loss of consortium claim was 
derivative of [the wife's] claim, it is still unclear from [the defendant's] 
offer of judgment which portion of the offer was directed to [the wife] and 
which portion to her husband." Id. In Medlock, the four plaintiffs 
brought a negligence action for damages allegedly caused by two defendants (a 
safe company and its individual owner), who raised contributory negligence as a 
defense against all four plaintiffs. Because of the potential reduction in value 
of each plaintiff's claim for negligence damages in the event of a contributory 
negligence verdict against any one or more of the plaintiffs, the same reasons 
for invalidating the offer of judgment in Haddock apply to the 
un-apportioned § 1101.1 offer of judgment in Medlock.
¶19 In this case, Defendant's first offer of judgment similarly failed to 
consider the Schommers' individual actions, claims and damages when making a 
lump sum offer. Under such circumstances, we find no error with the trial 
court's pre-judgment ruling Defendant's first offer of judgment was invalid 
based on the holdings in Haddock and Medlock. The court's November 
22, 2011 final judgment is AFFIRMED.

JOPLIN, P.J., and BUETTNER, J., concur.

FOOTNOTES

1 Section 
1101.1(A) applies "to civil actions for the recovery of money in regard to a 
claim for personal injury, wrongful death, certain discrimination-type cases and 
workers' compensation employee retaliation-type cases," in which the plaintiff 
demands in a pleading or in trial proceedings more than $100,000.00 or the 
defendant's offer of judgments is for more than $100,000.00. Boston Avenue 
Management, Inc. v. Associated Resources, Inc., 2007 OK 5, n. 5, 152 P.3d 880.

2
See 15 O.S. § 751 et 
seq. Only "Mr. Schommer" alleged injury from Defendant's alleged violations 
of the Oklahoma Consumer Protection Act, in contrast to the remaining three 
theories of recovery under which "the Schommers" alleged they had suffered 
damages by Defendant acts or omissions.

3 As 
explained in footnote one, § 1101.1(A) is made subject to § 1101(A)(5), which 
states "[t]he provisions of this subsection shall apply only where the 
plaintiff demands in a pleading or in trial proceedings more than One Hundred 
Thousand Dollars ($100,000.00), or where the defendant makes an offer of 
judgment more than One Hundred Thousand Dollars ($100,000.00)." (Emphasis 
added.) The Schommers' demand in their petition does not demonstrate the 
applicability of this section and there is no pre-trial conference order since 
the scheduled conference was stricken after Defendant filed the first offer of 
judgment. However, for the purposes of this appeal, we presume, as do the 
parties, that § 1101.1(A) is applicable for lack of a record showing otherwise. 
According to the certified appearance docket, there are two separate entries 
filed October 12, 2011, and titled "Stipulation As to Damages." The Schommers 
did not designate their Stipulations for inclusion in the appellate record, and 
neither are attached to Defendant's "Motion To Strike Plaintiffs' Stipulations 
As To Damages" ("filed under seal" on November 15, 2011,) or the Schommers' 
response to that motion filed November 18, 2011, which Defendant 
counter-designated. The latter instruments indicate a conflict between the 
Schommers' pre-"offer of judgment" demands for more than $100,000 and their 
post-offer of judgment demands of less than $100,000 allegedly made in the 
Stipulations. Such conflict was never resolved, because according to the 
appearance docket, a court minute was filed January 20, 2012, stating 
"Defendant's Motion to Strike [Plaintiffs'] Stipulations as to Damages - 
Stricken." (Emphasis added.)

4 We note 
for the record the latter case citation was hand-written between the lines of 
the otherwise typed judgment and is initialed by the trial court.

5 In 
relevant part, § 1101.1(A)(1)(a)-(b) provides:
any defendant may file with the court, at any time more than ten (10) days 
prior to trial, an offer of judgment for a sum certain to any plaintiff with 
respect to the action or any claim or claims asserted in the action. An offer of 
judgment shall be deemed to include any costs or attorney fees otherwise 
recoverable unless it expressly provides otherwise. If an offer of judgment is 
filed, each plaintiff to whom an offer of judgment is made shall, within ten 
(10) days, file:
a. a written acceptance or rejection of such offer, or
b. a counteroffer of judgment, as described in paragraph 2 of this 
subsection.

6 
Defendant re-asserted in its Answer Brief the same arguments made in its 
pre-assignment motion to dismiss the appeal. The Supreme Court denied that 
motion by order filed February 27, 2012, finding "under the facts and 
circumstances of this case" the Schommers' appeal "was not inconsistent with 
their acceptance of the second offer to confess judgment," which exception to 
the general rule applies when "it is possible to obtain a more favorable 
judgment without the risk of a less favorable judgment. Teel v. Public 
Service Company of Oklahoma, 1985 
OK 112, 767 P.2d 391." Because 
the Supreme Court's order "is silent" with respect to its effect on the 
renewability of Defendant's dismissal arguments, the Supreme Court's order may 
not be re-examined by the Court of Civil Appeals. Whitehall Homeowners 
Association, Inc., v. Appletree Enterprise, Inc., 2012 OK 34, ¶ 11, 277 P.3d 1266; L.C.R., Inc. v. 
Linwood Properties, 1996 OK 
73, ¶¶ 5-6, 918 P.2d 1388.
In contrast, the same Supreme Court order expressly defers consideration of 
both "parties' requests for appeal-related attorney fees and costs" to this 
stage of the appeal "to be considered upon proper motion complying with R. 1.14 
of the Oklahoma Supreme Court Rules. No post-assignment motions for such fees 
have been filed, and neither of the parties' briefs comply with R. 
1.14.

7 The 
offer to confess judgment filed in Case No. CJ-2003-00732, which was addressed 
in Medlock, is attached as Exhibit A of the Notice in the record on 
appeal and states:
Come Now the Defendants and offer to confess judgment in the sum of FIFTY 
THOUSAND AND NO/100 ($50,000.00), pursuant to the terms and conditions of OKLA. 
STAT. tit. 12 § 1101, et seq. (Emphasis in original.)
As the post-October 12, 2011 hearing motions demonstrate, the parties 
disagreed whether the above offer was made pursuant to § 1101, as the Schommers 
argued, or § 1101.1, as analyzed in Haddock and Medlock. We 
disagree with the Schommers' position, first, because "et seq." is an 
abbreviation referring to consecutive statutory sections usually within an act. 
Therefore, use of "§ 1101, et seq." in the offer identifies it was made 
according to § 1101 or one of its consecutive sections, which includes § 1101.1 
and the remaining offer of judgment §§ 1102-1106. Further, when enacting § 
1101.1, the Legislature mandated "[t]his section shall apply to all civil 
actions filed after the effective date of this act," see 12 O.S.Supp. 1995 § 1101.1(D), which 
language has remained unchanged despite legislative additions to the section 
changing the subsection from (D) to (F) in 1999 and from (F) to (G) in 2002. 
Because the misconduct resulting in the filing of the plaintiffs' civil action 
in Medlock occurred in 1999, § 1101.1 was the applicable statute, as a 
matter of law, not § 1101.

8
Medlock and Haddock are distinguishable from this case in several 
ways. First, the appeals by the multiple plaintiffs in both Medlock and 
Haddock were brought from orders granting and denying requests for 
attorney fees and costs under § 1101.1, respectively. Second, the multiple 
plaintiffs in Medlock had rejected the defendants' offer of judgment by 
failing to respond and then failed to obtain a judgment greater than the offered 
amount. In Haddock, the two plaintiffs had responded to defendant's offer 
of judgment with a counter-offer which was deemed rejected by the defendant's 
timely failure to respond, there was a defense judgment against one plaintiff, 
and the other plaintiff's verdict was $3,000 less than the counter-offer she had 
made to the defendant.

9 The 
Schommers did not raise below the "separate powers of acceptance" argument they 
raise in their Brief in Chief and their Reply Brief. We do not address arguments 
made for the first time on appeal. Jones v. Alpine Inv., Inc., 1987 OK 113, ¶ 11, 764 P.2d 513.


Citationizer© Summary of Documents Citing This DocumentCite
Name
Level
None Found.Citationizer: Table of AuthorityCite
Name
Level
Oklahoma Court of Civil Appeals Cases CiteNameLevel 2004 OK CIV APP 42, 90 P.3d 594, HADDOCK v. WOODLAND PARK HOME, INC.Discussed at Length 2005 OK CIV APP 72, 122 P.3d 883, MEDLOCK v. ADMIRAL SAFE COMPANY, INC.Discussed at Length 2010 OK CIV APP 2, 229 P.3d 1283, STATION OPERATION, LLC v. CIRCLE K STORES, INC.Discussed at LengthOklahoma Supreme Court Cases CiteNameLevel 1987 OK 113, 764 P.2d 513, 58 OBJ        3151, Jones v. Alpine Investments, Inc.Discussed 1993 OK 76, 854 P.2d 892, 64 OBJ        1847, Fleet v. Sanguine, Ltd.Discussed at Length 2007 OK 5, 152 P.3d 880, BOSTON AVENUE MANAGEMENT, INC. v. ASSOCIATED RESOURCES, INC.Discussed 1996 OK 73, 918 P.2d 1388, 67 OBJ        2060, LCR, Inc. v. Linwood PropertiesDiscussed 2012 OK 34, 277 P.3d 1266, WHITEHALL HOMEOWNERS, ASSOCIATION, INC. v. APPLETREE ENTERPRISE, INC.Discussed 1985 OK 112, 767 P.2d 391, Teel v. Public Service Co. of OklahomaDiscussedTitle 12. Civil Procedure CiteNameLevel 12 O.S. 681, Definition of JudgmentCited 12 O.S. 1101.1, Actions for Personal Injury, Wrongful Death and Certain Specified Actions - Other Actions - Evidence - Applicability - SeverabilityDiscussed at LengthTitle 15. Contracts CiteNameLevel 15 O.S. 751, Short TitleCitedTitle 52. Oil and Gas CiteNameLevel 52 O.S. 540, Renumbered as 52 O.S. § 570.10 by Laws 1992, SB 168, c. 190, § 28Cited










