In Allison v. City of El Reno, 1994 OK CIV APP 170, 894 P.2d 1133, the city made an oral offer to settle the case for $ 25,000, inclusive of attorney fees and costs. The plaintiffs rejected the offer based on their contention that the $ 25,000 should be exclusive of attorney fees and costs.
On the day of trial, the city submitted a written offer of judgment for $ 15,000, with no mention of attorney fees.
The plaintiffs accepted the offer and trial was not held. The plaintiffs then sought prevailing party attorney fees and the city objected to the acceptance of the offer, contending that it included attorney fees. The trial court refused to allow the city to withdraw or modify the offer of judgment and the city appealed. The Court held that an offer of judgment made pursuant to § 1101 is irrevocable during the five day acceptance period and during that time may not be withdrawn, modified or revoked by a party or the court.
The Court noted that traditional contract principles of offer, counteroffer and revocation are inapplicable to § 1101 offers of judgment, so that the plaintiff's counteroffer did not affect the city's offer during the five day acceptance period.
The Court affirmed the trial court's decision based in part on the holding in Hernandez, that offers of judgment are irrevocable during the statutory five day period.
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 v. United Supermarkets of Oklahoma, Inc (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:
"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.