Rogers v. Dell Computer Corp.

2005 OK 51

Dоnna J. and Paul Palmer ROGERS Liners, Industrial Fab Seal

d/b/a Inc., Plaintiffs/Appellees, CORPORATION, DELL COMPUTER Defendant/Appellant. 99,991.

No. Supreme Court of Oklahoma.

June 2005. Rehearing Denied Nov. As Corrected Nov. 16 and Kincaid, Jackson, L. Gerald L.

James OK, City, Dunlevy, Oklahoma Crowe Ap- the defendant before the Court Civil for Writ of Certio- peals and on the Petition rari.

TAYLOR, J. (1)

¶ 1 in this case are: The issues the district jurisdiction of this and of Court (2) court, proper procedures the dis- application compel arbitra- trict court on tion, of an the existence and force provision allegedly sent with an arbitration acknowledgment and with the invoice and purchased computer. find this Court We jurisdiction appeal over this and the district jurisdiction of issues below as court had plaintiffs. proper framed Because in the district procedures were not followed court, say we cannot whether the distriсt compel application denial of the court’s arbi- proper and whether the application tration attached to the plaintiffs. There- against enforceable fore, we remand the case with instructions opinion. in this procedures follow the set out AND I. BACKGROUND PROCEDURAL

ISSUES

¶2 Palmer, doing Paul business Fab Liners, Inc., Rog- Donna Seal Industrial (collectively plaintiffs) filed suit ers Corporation, later renamed Computer (Dell) Dell, as a asking for certification alleging violations class- action Act, 15 O.S. Protection Oklahoma Consumer negligence, and breach filed a motion to dismiss contract. Dell jurisdiction failure to state lack of or, alternatively, arbitration. claim West, Cawthon, Terry Bradley David C. J. motion. Dell court denied Dell’s The district Firm, Shawnee, OK, West, Law The West W. denying the appealed of thе order plaintiffs. for the invoking ap- application 817(A) jurisdiction pursuant to section pellate Taft, Hermes, McAfee & Okla- John N. Act, 15 Uniform Arbitration of the Oklahoma OK, on the City, for the defendant homa (OUAA).1 O.S.2001, The Court'of § 801-18 Support of the Petition for Writ Reply court’s Appeals affirmed the district Civil Certiorari. Laws, (to session, ch. 364 Okla. Sess. During OUAA.2005 recent the Oklahoma its most 1851-81). O.S.Supp.2002, §§ replaced codified at 12 Legislature 2001 version of the denial of FAA applicable. Because the applicable here, tion.2 OUAA is denying the order Dell’s ap- arbitration is II. JURISDICTION pealable by Thus, right under rule 1.60. jurisdiction Court has appeal. of the A. Oklahoma Arbitration Uniform Act ¶ duty 3 It is this Court to B. Oklahoma Uniform Tax Act Procedures inquire jurisdiction juris into its own jurisdiction, 5 As to the district court’s City diction of the court below. Lawton v. the district court denied Dell’s motion to Ass’n, International Union Police jurisdiction. dismiss lack of The crux of 1, ¶ 10, OK 376. Oklahoma plaintiffs’ Dell’s motion was that the claims 1.60(i), Supreme O.S.2001, Court Rule ch. transparent are a attempt generate a class (OSCR), app. provides appeals reality action suit plaintiffs made under the of section 817 of seeking a tax refund which must first be appealable by right. the OUAA are Section addressed the Oklahoma Tax Commission. appeals denying allows from an order Dell submitted that the district court should application pur arbitration made have petition dismissed the because the suant to section 803 of the OUAA. With plaintiffs failed to exhaust their administra- exceptions, limited applies OUAA to a tive remedies. written or a in a written contract to 6 Section 227 of submit controversies between title 68 of the Oklahoma 802(A) parties provides Statutes to arbitration. of the mechanism for a refund application erroneously paid. OUAA. of taxes pro- Because Dell’s Section 225 alleged vides the appeals a written means for denial of a it, arbitrate claims refund. Section 202 dispute taxpayer defines a before any person pay any this Court comes within liable to purview the OUAA’s state tax. If the plaintiffs’ Act, as well as the Federal claims are for a Arbitration refund of the sales (1994 (FAA), fact, U.S.C. tax Supp.2001) 1-16 collected either mistake of error computation misinterpretation law, discussed in IY below. The plaintiffs OUAA and FAA would have mutually are not to first seek relief exclusive. with the pursu- See Volt v. Board Oklahoma Tax Trustees Commission Univ., ant to Leland these sections. Stallings Jr. See U.S. Okla- Stanford Comm’n, (1989). homa Tаx S.Ct. L.Ed.2d 488 OK ¶ 4 The OUAA apply does not to “collective

bargaining agreements or contracts ref- plaintiffs protested 7 The Dell’s charac- except erence to insurance for those con- plaintiffs terization of their claims. The em- companies.” tracts between phasized insurance position their was Dell of the OUAA. The FAA except does not “charges and collects from Oklahoma resi- these two application. contracts from its falsely dents monies characterized as a sales types Therefore these two tax purchase on the of optional service con- come under FAA tracts, (i.e but not the OUAA. The transportation on charges and/or denial of an shipping handling charges) for the deliv- type under these ery contracts would not computers computer products.” appealable by right. to this Court See rule We confine our review to the issues based 1.60(i) of the OSCR. Here both plaintiffs the OUAA characterization of the claims. style er, appeal of documents petition filed in this the amended is not included ‍‌‌‌​​‌​​‌​​​‌​​‌‌​‌‌​‌‌‌‌‌​​​​​‌​​‌​​‌​​‌​​‌​​‌‌‍in the Dell, Catalog name appellate Dell petition Sales Limited Partner- record. The filed in the dis- ship, serv, Marketing Partnership, Qualx- Dell only Limited trict court names Dell as a defendant. The Banctec, petition LLC and Inc. as defendants petition in error and the for certiorari appellants. The only district court Nothing docket sheets are filed Dell. in the record petition show an amended Catalog was filed and name shows that Dell Sales Limited Partner- only Dell as the ship, serv, defendant. The Marketing Partnership, Qualx- have Dell Limited petition Banctec, stated orig- that the amended altered the parties LLC and Inc. are petition only by adding inal appeal. defendants. Howev- case below or to this binding Thus, against Dell or were re- its affiliates arbi- that the “sales taxes” proof tration. Tax Commission as to the Oklahoma mitted plain- a defense to the alleges would be limited

tiffs’ as the claims IV. APPLICABLE LAW them. applies 11 The to contracts affect- FAA (2000); § 1 ing interstate commerce. U.S.C. FACTS

III. Dobson, Allied-Bruce Terminix Co. 130 L.Ed.2d S.Ct. below, discussed our state- 8 For reasons FAA, Under 2 of the a writ- section facts are those to which the ten an issue to to submit in the district court or in admit either “valid, irrevocable, enforceable, tion is Dell, company, appeal. Texas-based upon grounds such as exist at law or in save through marketing. direсt computers sells any equity for of contract.” the revocation directly Dell. place orders Customers brought falling within upon Suits issues sec- computers from ships purchased Dell the stayed 2 must until after “arbitration In to the Tennessee. addition Texas and been had in with the terms of accordance computers, markets contracts. Dell service (2000). § agreement.” 9 3 A U.S.C. it alleges 9 attached what are the Dell OUAA, stay 15 required by is also O.S. Rogers acknowledg- invoice and the Fab Seal 803(D).4 2001, § to dismiss or to its motion ¶ 12 preempt FAA does not also attached a document arbitration. Dell state law the state law frustrates the unless pages taken one of its internet and from objectives Congressional purposes and em and Conditions of Sale.”3 entitled “Terms 477, 109 Volt, in at bodied the FAA. 489 U.S. accuracy attest to the did not “to FAA was enacted over S.Ct. alleged attachments or to the fact these judiciary’s long-standing rule the refusal to plaintiffs. were sent these documents arbitrate”, agreements to Dean enforce Wit Further, in nothing the record about there is 213, Reynolds, Byrd, 470 U.S. ter 219- computers, how ordered the plaintiffs 158, 105 L.Ed.2d S.Ct. 84 internet, mail, whether over the equal put agreements on an foot arbitration Likewise, phone. nothing there is Volt, ing with other contracts. 489 U.S. at processes and conversations record about 478, 109 S.Ct. 1248. plaintiffs they Dell and the when between placed or whether their orders affecting in a contract Where to the required to consent “Terms and terstate contains an arbitration commerce placing the orders. Conditions of Sale” otherwise, provide provision does not requires question FAA of the contract’s purposes 10 We assume discussion validity only represen- as a whole to be submitted arbi received the Corp. v. Flood docu- tration. Prima Paint & tative “Terms and Conditions Sale” Mfg. Co., acknowledg- invoice and Conklin 388 U.S. S.Ct. ment either with the 1801, 18 ment, But shipment computer, of the L.Ed.2d 1270 with the cf. Shaf ¶47, 26, Jeffery, 915 P.2d in v. provision included OK both. The arbitration fer (under OUAA, of fraud in 917-18 issues the “Terms and Conditions Sale” docu- enforceable, ment, underlying contract if and if would the inducement of the received arbitration are for the require plaintiffs to submit their claims court’s beginning shrinkwrap agreements wrap appears at the 3. Unlike which are in- purchased package prod- requires with the cluded in installation the user to of software purchaser only uct to the after continuing. and available Id. consent to the terms before Assoc., opening package, & v. Davidson Inc. F.Supp.2d Gateway, 334 Internet requires Act also 4. Texas Uniform Arbitration (E.D.Mo.2004), "Terms and Conditions proceedings stayed. Tex.Rev.Civ. that court allegedly in this case were in- Sale” document Prac. & Ann. 171.021 171.025 Rem.Code acknowledgments cluded with the invoices 2005). (West product package. A as well as with the click- determination).5 (If FAA., 803; § making issues re see 9 Under U.S.C. validity lating only issue, arbitration arbitration court at “the subject judicial provision generally to a proceed summarily shall to the trial there- Paint, of.”); determination. Prima U.S. Prac. Tex. Civ. <& Ann. Rem.Code considering (If (West 2005) 87 S.Ct. 1801. 171.021 existence binding whether an arbitration issue, is at to arbitrate “the parties, from the it is severed rest of issue.”). summarily shall determine that Royal the contract. AT. v. Cross Selan ¶ 16 provides Section 815 OUAA PTE, Ltd., F.Supp.2d gor(S) that an (D.R.I.2002). making “shall ... be hеard the manner ¶ 14 role is to The court’s deter hearing of motions actions.” Proceed- valid, mine whether there is enforceable ings on motions are 4 of addressed rule dispute. agreement to arbitrate Wilkin Oklahoma, the Rules for District Courts of Inc., Reynolds, v. Dean son Witter OK (ORDC). O.S.Supp.2002, app. ch. Under ¶ 9, (citing Mitsubishi ORDC, party seeking rule 4 of the Corp. Chrysler-Plymouth, Motors Soler must a statement S.Ct. showing of the law and facts an enforceable (1985)); City L.Ed.2d 444 Gannon Circuit agreement to presented arbitrate the issues (8th Stores, Inc., 677, Cir.2001). 262 680 F.3d 4(c). petition. appli- Id. at rule The agreement The existence an arbitration cation sup- arbitration must be governed principles of state law. Wilkin affidavits, ported by pleadings, stipulations, ¶ son, 9, 1997 20 at 933 OK P.2d at 880. evidentiary and other materials which are FAA Because under the this court cannot person having verified a knowledge validity examine the of the contract as a accuracy. their Alternatively, Id. counsel whole, Paint, 404, Prima at 388 U.S. 87 S.Ct. may submit a verified statement of what we 1801 must treat the contract as valid proof will then proof ‍‌‌‌​​‌​​‌​​​‌​​‌‌​‌‌​‌‌‌‌‌​​​​​‌​​‌​​‌​​‌​​‌​​‌‌‍show and at analyzing provision. an arbitration hearing. moving party Id. The also must submit a including concise brief a list of V. THE PROCEEDINGS ON authorities on which it relies. See id. With- TO APPLICATION COMPEL served, days application in fifteen after the ARBITRATION party opposing ¶ courts, 15 In Oklahoma state file a brief must or list of authori- proceedings determines OUAA how on an and, verify ties if appropriate, sup- the facts shall be con porting position. its Id. long so ducted as the OUAA does not frus ¶ purposes underlying may trate the the FAA. party request hearing. See 17 Either Volt, (“There 476, 489 U.S. at 109 S.Ct. 1248 grant hearing decision to will policy favoring is no federal arbitration un discretion of the district court. See id. at 4(d). However, ”); a certain procedural der set of rules.... rule if the existence of 1, 10, Corp. Keating, controverted, v. Southland 465 U.S. n. to arbitrate then 852, (1984); 1 104 S.Ct. 79 L.Ed.2d B. procedure Jack the better is for the district court Co., Anglin Tipps, evidentiary hearing S.W.2d conduct an en- before (Tex.1992). tering making decision, When there is a written an order. its controversy to submit a to arbi district court should mindful of the FAA’s party arbitration; tration and one policies favoring denies existence of and the OUAA’s agreement, proceed ambiguity the court shall sum side of falls on the the existence marily O.S.2001, in deciding the issue. 15 to arbitrate. H. Moses Cone (1) newly provisions apply agreements 5. Under the enacted OUAA to arbi- OUAA, 1, 2006, (2) January agree- "[a]n arbitrator shall decide whether a tratе made on or after precedent arbitrability January condition has been ful- ments to arbitrate before if on containing parties agree, starting filled whether a contract so valid 1, 2006, January enforceable.” on arbitrate is to arbitrate Laws, 7(C). Sess. Olcla. ch. whenever made. Id. at 4. new goods, Mercury Corp., primarily with sale of Hosp. v. Constr. deal Memorial 24-26, applies here. 74 L.Ed.2d U.C.C. 103 S.Ct. (1983); Reyn- Dean v. Witter Wilkinson ¶ and, apparently, 21 Oklahoma Texas 878, 879; olds, Inc., 1997 OK have not addressed substantive issue be- ¶ 23, 47 at Jeffery, 1996 OK v. Shaffer However, courts have fore this Court.7 two at P.2d nearly addressing applied Texas law iden- arguments presented in

tical claims and OF REVIEW VI. STANDARD this case and have reached different conclu- Dell, Inc., 37,ME sions. Stenzel v. govern proceedings 18 Under (Me.2005); Dell A.2d 133 Com- Defontes arbitration, ing applicatiоns Corp., puters No. C.A. PC 2004 WL agreement to arbitrate is a existence of an 2004) (R.I.Super.Jan.29, cited in Questions re of laws are question of law. Stenzel, at A.2d 2005 ME 37 Blevins, Hill 2005 OK viewed de novo. (under Supreme Island Court Rule Rhode 334; Cummings v. Fedex effect). 16Q), precedential no order System, Package 404 F.3d Ground Both the courts Stenzel Defontes (10th Cir.2005). found the facts to be follows. Dell sold plaintiffs. computers It also marketed OF EXISTENCE VII. third-party contracts on behalf of ser- service AN ARBITRATION providers. charged vice Dell what listed AGREEMENT as a sales tax on the service contracts and shipping charges. remitted amount determining step initial Under the sales to either where the tax the state agree- whether have a written computer shipped or turned over to arbitrate, apply state ment to courts should provider who third-party service remit- Options Chicago, Inc. contract law. First an order 938, 943-44, ted the tax to the state. After was Kaplan, U.S. 115 S.Ct. plaintiff an placed, Dell sent each acknowl- stage, At this 131 L.Ed.2d 985 the or edgment or an invoice. invoice With may of law a court need conduct choice However, acknowledgment, and Dell included “Terms analysis. and Tex- both Oklahoma which is sub- Conditions Sale” document adopted as have the Uniform Commercial stantially as the attached to its O.S.2001, the one (U.C.C.), §§ 11- 12A 1-101 to Code same (Oklahoma pres- in the arbitration U.C.C.); Tex. & Com. Bus. also (West case. document was included Ann., ent The 1994 & 1.101-11.108 Code shipments. comput- (Texas U.C.C.),6 which, computer the The as Supp.2004-05) through commerce. were sold interstate below, Although ers applicable here. shown applies, Dell asserts Texas law neither ¶ 22 cоurt that the concluded Defontes plaintiffs nor the have maintained that there consent the knowingly did not plaintiffs applicable in law of difference the terms in Dell’s “Terms Condi- additional any perceived Thus Texas and Oklahoma. Agreement” document. WL tions issue is contrived. choice-of-law Therefore, pro- at arbitration *7. the contracts, parties’ applies to “transactions vision not the The U.C.C. the com- “all and the court denied goods.” 2-102. “Goods” are U.C.C. implicitly ap- Id. The things (including pel arbitration. court specially manufactured section 2.207 of the Texas U.C.C. when plied at time of goods) which are moveable the by plaintiffs bound contract-” U.C.C. it found identification the agreement. Id. ease the contracts in this the 2-105. Because indicated, Ap- publication by of Civil the Oklahoma Court rеferences to the 6. Unless otherwise U.C.C, O.S.2001, provisions app., parallel peals, include ch. rule see 12 1.200(c)(2)), U.C.C. and the Texas U.C.C. juris- Oklahoma a "consent to determined that part of did not bind diction” sent as an invoice We IV of the Oklahoma note that Division purchaser. Inc., IJAM, Appeals Lively v. Court of Civil (ordered for APP 2005 OK CIV ¶23 court, citing pntes opinion The Stenzel Carnival better find reasoned but Shute, Lines, Cruise Inc. v. analysis complete more is needed. (1991); 113 L.Ed.2d 622 S.Ct. 25 There no doubt that in the Inc., Gateway Hill v. 105 F.3d 1147 case, present con entered into (7th ProCD, Cir.1997); Zeiden ‍‌‌‌​​‌​​‌​​​‌​​‌‌​‌‌​‌‌‌‌‌​​​​​‌​​‌​​‌​​‌​​‌​​‌‌‍ purchase computers. tracts for (7th Cir.1996), berg, 86 F.3d 1447 found that question then when were con becomes “expressly purchasers had manifested tracts what formed and terms were included by the their assent to be bound” Generally in the 2- contracts. subsection delivery provision by accepting failing of and 206(1) of ques the U.C.C answers the first provided computers to return the 2-206(1) provides: tion. Stenzel, Subsection “Unless ME 37 at agreement. unambiguously by otherwise at indicated citing A.2d 140. The court continued 2.204(a) language the Texas circumstances ... an order or section U.C.C.8 and goods buy prompt concluded that the contract was formed when other offer to cur plaintiffs delivery shipment failed “to refuse rent inviting shall be construed as computers” “to right and failed exercise their acceptance prompt promise ... return computers.” Id. Based on its ship....” language, analysis the court assumed without 2-206(1) U.C.C., 26 Under section ¶¶ that Dell was at the offerer. Id. 10- buyer offeror, is the and a contract is rejected plaintiffs’ 12. The court claims placed formed when an order is illusory, that the аrbitration id. agrees ship seller language unless the ¶¶ 140-43, unconscionable, 15-23 and id. at circumstances involved un- transaction ¶¶ 143-45, judgment and affirmed the case, ambiguously show otherwise. dismissing the lower complaint court the time of formation of the contracts 145^16, in favor of arbitration. Id. at depend their terms on the conversations and ¶ 24 Stenzel and are indicative of Defontes circumstances Dell and between split authority on whether documents placed. at the time the orders were If the such the “Terms and Conditions of Sale” language and circumstances were such submitted Dell in case are placed, when the orders were the contracts binding. The cases most often cited as indic- were not formed until after the ProCD, ative of disparate outcome are received the “Terms аnd Conditions of Sale” (7th Cir.1996) (the 86 F.3d 1447 document, the arbitration would applied the a shrinkwrap U.C.C. to license abe term of the contracts. The arbitration agreement agreement and the found to be provision would also be a term of the con- binding), Step-Saver Sys., and Data incorporated tracts if it were into them at the (3rd Tech., Cir.1991) Wyse (ap- F.2d 91 plaintiffs placed time the the orders. U.C.C., plying box-top agree- the the license ¶27 If the contracts were formed at the binding). was not The difference in time that placed the orders were the and generally outcome is attributable to a court’s “Terms and Conditions Sale” document determination of the contract was incorporated contracts, was not into the formed. The cases on which the Stenzel question second becomes relevant distinguish- court based its cоnclusion are Further, analysis. question able. generally the Stenzel court The second is did not recognize applying section 2-207 of answered section 2-207 of 2-207(1) (2) the U.C.C. to the facts. We find provide: the De- U.C.C.9 and Subsections (b) 8. Section 2.204 of the Texas Business and Com- An sufficient to constitute Code, may comparable though mercial contract for sale be found even as does the making Statutes, moment of its is undetermined. pro- of the U.C.C. and the Oklahoma (c) though Even one or more left terms are vides: open a contract sale does not for fail for indefi- (a)A goods may contract for sale of be made parties have niteness if the intended to make agreement, manner sufficient show reasonably contract and is a there certain basis including parties recog- conduct both whiсh giving appropriate remedy. for nizes the existence a contract. of such 9. Section 2-207 of U.C.C. was amended (1) provision, expression of would an additional and seasonable tration A definite of the contracts under section 2-207. or confirmation which term acceptance a written provision part not be operates time The arbitration would is within a reasonable sent proposals but add it acceptance though states of the contracts as a even 207(l)-(2). Id. at from those term the contracts. additional to or different terms necessary application of agreed upon, acceptance The facts for the offered or unless analysis presented are not for expressly is made conditional assent Thus, this appellate reviеw. Court cannot or different terms. additional determine whether the arbitration con- additional terms are part of the contract and enforceable for proposals addition strued plaintiffs, to decide whether so merchants such terms contract. Between arbitration was become of the contract unless: properly denied. (a) acceptance limits expressly the offer offer; the terms of the ¶29 We are not unmindful of two recent (b) it; they materially or Dell, alter Appeals’ Texas Court of decisions: Inc. Muniz, 04-04-00722-CV, (c) Nos. 04-04- objection to them notification 00752-CV, (Tex.Ct.App. 2005 WL already given given or is within been 23, 2005) (not publication” Mar. “released is time after notice them reasonable withdrawal”), “subject to revision or and received. Gateway, No. 03-01-00589- Smith provides that 2-207 is Comment section CV, (Tex.Ct.App. July WL typical deal situation intended to (not 2002) designated publication parties an oral where the reach value). precedential These two cases without one of send- which is followed helpful primarily not here for the follow ing including agreed terms document Muniz, parties agreed In ing reasons. adding terms not discussed. binding, the arbitration ¶ 28 There is no statement in the “Terms *3, at 163 S.W.3d WL upon of Sale” document Conditions only the claim fell within contested whether “acceptance expressly condi- made agreement’s exceptions. the arbitration terms.” tional on assent additional Smith, “Gateway that an arbitra established plaintiffs’ accepting computers and parties.” existed between returning with a con- not them is consistent n However, WL Smith being tract at the time the or- formed give underlying does not us the facts placed be construed as ders were and cannot this conclusion. acquiescing in the “Terms and Conditions analysis 30 Our limited to whether included with the Sale” document fall 2 of This acknowledgment with com- which under article the U.C.C. invoice agree- analysis include opinion’s If the were does puter packaging. contracts 2 of to which article the U.C.C. placed, ments formed at time orders 2-206(1), inapplicable, which are and Con- such see “Terms U.C.C. document, goods.10 It also does not including arbi- not for the sale of Sale” ditions (c)terms supplied incorporated under provide: or 2003 to any provision of Act. this (I) by Subject to section if conduct Comm.Code, 1 U.L.A. 397-99 Nei- Unif. parties recognizes a con- both the existence of adopted the nor ther Oklahoma Texas although not tract their records do otherwise Thus, 2-207. we do amended version section contract, (ii) by is formed establish contract apply the 2003 amendment to section 2-207 (iii) acceptance, or contract offer in this case. a rec- formed in manner confirmed to terms additional or differ- ord that contains applied article 2 10. We realize that courts being con- those in the contract ent from firmed, ques- agreements. to The of the U.C.C. license are: the terms of the contract applies 2 of the UCC to tion of whether article (a) appear of both terms that in the records Court. licenses is not before this parties; terms, not, (b) or In the National Conference Commis- in a record to whether Laws the Uni- parties agree; Uniform State drafted both sioners of which C.J., WATT, clickwrap agreements party- WINCHESTER, V.C.J., include where a LAVENDER, OPALA, EDMONDSON, continuing must assent to the terms before JJ., TAYLOR, purchase or soft- on-line installation of concur. ware. JJ., COLBERT, HARGRAVE and dissent. having I would withdraw certiorari as been

VIII. PROSPECTIVE APPLICATION granted. improvidently we 31 Because have not before addressed J., KAUGER, dissents. to in procedures employed proceed- arbitration, ings applications on to we J., KAUGER, dissenting to the denial of only impose procedures prospectively these rehearing. applications to to arbitration filed ¶ 1 I originally concurred in the Court’s appeal. after issues in this mandate See 28, 2005, opinion of which June reversed and Dodge, Lynn Hickey McDaneld v. remanded the cause to the trial court. ¶30, 12, OK Because There, jurisdiction the Court held that procedures, par- the failure to use these proper, “proper procedures” but because the provide ties failed to with the district court court, were not followed in the district to sufficient facts determine there whether regarding issues application anwas which en- enforceability Therefore, plaintiffs. forceable provisions were I undeterminable. now the matter is remanded to district court vote, my concurring withdraw and dissent. proceedings conforming for further opinion The June in painfully has become clear what . exactly COURT OF CIVIL missing APPEALS’ OPINION anything which VACATED; DISTRICT COURT’S ORDER legally compe- would allow a court to make a REVERSED; CAUSE REMANDED. tent determination as to whether there was Act, Computer gap

form regarding Information Transactions 7- afill in the UCC software licenses. Id.; (2002 Supp.2004), Maryland II U.L.A. 195 Only see UCC 2A-102. http://www.law.upenn.edu/bU/ulc/uci- Virginia adopted and the Id. at 6 UCITA. (last 2005), May (Supp.2005). аccessed to talucita200.htm arbitrate, years the and a two after first invoice let whether ed agreement to alone an year after the second invoice. After ac- was enforceable. an necessary information knowledging that assumptions Although makes the Court majority its on bases conclusion missing, the agree- to of an arbitration the existence opinion in 10: The states assumptions. ment, always plaintiffs have denied its the assert, discussion purposes plaintiffs response of assume The in “We existence. repre- the only plaintiffs petition received Dell’s the to motion to dismiss and/or arbitration, and Conditions Sale’ sentative ‘Terms that: the invoice and ac- document either with “In its zeal to Plaintiff’s into knowledgment, shipment with the the arbitration, skips the past Dell threshold provi- The arbitration computer, or both. i.e., an question; whether enforceable and Conditions sion included in ‘Terms agreement to arbitrate exists between Dell document, if and if en- received Sale’ and Plaintiffs.... forceable, to require would moving party, Dell has .. .As its affil- submit their claims Dell establishing the existence an burden binding to arbitration.” iates sure, agreement to arbitrate.. .To be Dell in highlights an clause found a ¶4 record includes Dell’s motion The published on its Internet document web- petition dismiss and/or site, www.dell.com, as of June tion, generalities it how which offers 2003.... But Dell fails to this typically operates when customers order any signed by document either Court with provides nothing specific to computers. Dell agree- purporting of Plaintiffs and quotes The motion dismiss cause. arbitrate, any nor Dell offer ment to does and conditions of sale and terms unsigned, that stan- attesting affidavit alleges which arbitrate to its motion dard form document attached the motion are: agreed on. Attached to way presented E in as Exhibit was 1) Ad- copies portions Oklahoma in Plaintiffs accepted and either of Code; ministrative they pur- respectively when 2) ruling; copy of a tax commission computers.”2 chased the 3) plaintiff, to the Fab copies of an invoice reply plaintiffs response its Industries, 9/13/02, and an in- Seal dated petition motion to dismiss the Dell’s and/or plaintiff, Rogers, dated voice arbitration, argues Dell that 10/10/01; finally, opportunities to review plaintiffs had three 4) of sale copies of a terms and conditions contract, including arbitration clause: printed from internet 6/4/03 2) 1) website; the invoice at Dell’s provision.1 inсlude an arbitration received; acknowledgment of the order was 3) shipment of the order. Dell and with the language is contained in each Identical decide to that should Plaintiffs “PLEASE also noted invoices which state: SEE issue, prepared Dell was sub- contest the & CONDITIONS IMPORTANT TERMS notification of mit affidavits to confirm that IN- THE REVERSE SIDE OF THIS ON of the sale were terms and conditions reverse side of the invoices VOICE.” purchasers. Although fully communicated to terms and conditions are blank.and contested, no affidavits were print- the matter provided are expand- governing regarding has been Texas law the terms and It noted that the bottom of ed. copyright for 1999- conditions document states Corporation. Comparing quoted to Dell portions of terms and conditions mentioned plaintiff presented its addendum to mo- 1) suggests copy involved in caselaw those opposition which includes: February provided are privacy policy cases the one other dated effective Dell's 2000; substantially 2) least to the extent that Bureau's on-line similar—at the Better Business dispute quoted. requirements reliability program current res- The most documents standards; 3) copy of the National online differs from the one sub- olution version available Code of Procedure. by formatting changes Arbitration Forum's mitted notes, record, opinion agreement majority opinion As submitted. any accuracy goes lengths “prop- to forth “Dell did not attest to exhaustive to set alleged procedures” for the use. or to the fact that er trial to these attachments plaintiffs.” sent to these documents were ¶ recognizing After existence peti- party initial is on the burden agreement question to a an arbitrate is compel Af- tioning the court to arbitration.3 law, admitting that are insufficient compel to been ter the motion arbitration has facts to determine whether supported, is on the made burden arbitrate, agreed to the Court holds that “the party non-moving to that evidence support record is insufficient to order supported agreement arbitration denying compel to apply dispute it to valid or that does not sup- tion.” If the record were insufficient to question.4 arbitrate, finding agreement a port of an to is, which it how could also be insufficient to compel 9 A is analo- motion arbitration support an application an order which denies summary gous judgment.5 to a motion for compel It arbitration? can’t. The order summаry judgment a for mov- On motion denying arbitration ant must attach to its written concise state- Here, been should have denied. copies acceptable evidentiary of the regarding validity decision issued of an upon support materials relied the motion.6 based assumed arbitration, Similarly, on a motion advisory opinion. facts and results an agree- least present the movant must at garner hearing ment to arbitrate to a on the July petition On Dell filed a presented issue. Had this sum- been rehearing seeking reconsideration of mary judgment moving party motion and the opinion, YII concerns the exis- disputed agreement could not that a show agreement. tence an arbitration existed, it would have been dismissed. Ac- urges change opinion the Court to cordingly, properly the trial court denied trial denying overrule the court’s order Dell’s to compel Dell’s motion arbitration. argues motion to arbitration. Dell advisory policies The Court neither that opinion issues undermines the hypothetical Code, opinions questions.7 nor answers the Uniform 12A Commercial O.S.2001 Nevertheless, seq. by disregarding 1-101 et recognizing after that it could established concerning not make determination practices ignoring wheth- commercial and by weight er the decision to arbitration was of the law case established under properly § denied because there is no arbitra- 2-207 Uniform Commercial Code.8 Bruno, Enterprises, petition 3. Fleetwood Inc. v. So.2d mined that arbitrate should 277, (Ala.2000); party Rosenthal v. Great Western been denied on the sole basis that 413, Corp., Fin. Securities Cal.4th seeking arbitration offered no evidence at all in Cal.Rptr.2d [Applying 926 P.2d 1061 support petition, utterly of their failed procedures summary California determina- establish, evidence, preponderance considering petition tion to court when com- existed. pel arbitration.]. The Uniform Arbitration Act 15 provides part: pertinent O.S.2001 Bruno, Enterprises, 5. Fleetwood Inc. v. see note opposing party . .A... .If the exis- denies the supra. arbitrate, tence of the the court proceed summarily shall to the determination Associates, 6. Evers v. F.S.F. Overtake 2003 OK ... issue 9,¶ 581; Courts, 77 P.3d Rules for the District application, may stay B. On the court arbi- 2, App. 12 O.S.2001 Ch. ‍‌‌‌​​‌​​‌​​​‌​​‌‌​‌‌​‌‌‌‌‌​​​​​‌​​‌​​‌​​‌​​‌​​‌‌‍1 Rule 13. proceeding tration commenced or threatened showing on a valid there is no County Budget County 7. Tulsa Board Tulsa summarily to arbitrate. Such an issue shall be Board, n. Excise 2003 OK tried....” Benson, 662; 40, ¶ 7, Dank 2000 OK Bruno, Enterprises, 4. Fleetwood seе note supra; Rosenthal v. Fin. Great Western Securities Corp., case, supra. see note In a recent California provides: 8. Title O.S.2001 2-207 12A Molinari, Cal.App.4th Villacreses v. "(1) Cal.Rptr.3d expression WL A definite and seasonable (2005), Appeals acceptance the California Court of deter- or a written confirmation which

837 insufficient, totally is in retro- inapplicable acceptance of 2-207 is Section minority argument spect, are Dell’s product when the terms conditions opinion is impractica- in the product is view9 embraced packaging included today’s and not based on commercial agree I cannot with ble While returned. However, may merit. because realities because would have us reach result that Dell 253560, Corp., (R.I.Super.2004); operates WL 6 time as an 2004 Klo within a sent reasonable 1332, Inc., though F.Supp.2d acceptance Gateway, terms addi- even states cek v. 104 1338- Orris, (D.Kan.2000); or to or different from those offered Surgical Corp. tional 41 v. acceptance expressly upon, agreed 1201, (D.Kan.1998); unless F.Supp.2d Inc. 5 1206 Ari or to the additional Inc., made conditional assent Link, Sys. v. Retail Inc. 831 zona Software different terms. 759, (D.Ariz.1993); F.Supp. Step-Saver 765 Data (2) are to construed as The additional terms 91, Systems, Wyse Technology, v. F.2d Inc. 939 proposals Be- addition contract. (3rd Cir.1991). 104 part of such terms become tween merchants Some Dell relies on involve on-line cases the contract unless: licensing click-wrap agreements agreements (a) acceptance or expressly limits the offer offer; party where it was clear that assented the terms of the it; (b) they materially continuing purchase alter or terms before or installa (c) objection Associates, them has al- notification & software. Davidson given ready given a reason- 1164, been or is within Gateway, F.Supp.2d 334 1176 Internet is received. time after notice them able (E.D.Mo.2004) agree [Software end user license (3) recognizes parties Conduct both which enforceable.]; Corp. v. ment was DeJohn The.TV existence of a contract is sufficient estab- Int'l, 913, (N.D.Ill.2003) F.Supp.2d 918 245 although writings of a contract for sale lish agreement [Click-wrap which user had to assent con- do not otherwise establish a product could obtained to terms before the particular In case the terms of the tract. such McMenamon, F.Supp.2d upheld.]; Hughes v. 204 of those terms on which contract consist 178, (D.Mass.2002) agreement [Click-wraр 181 any writings parties agree, together valid.]; containing I. forum selection clause Lan incorporated any supplementary under terms Corp., Systems, Inc. v. Netscout Service Level 183 provisions of this act.” other 328, (D.Mass.2002) F.Supp.2d [Licensing 337 contract.]; recognizes majority approach agreement con that the v. Veri 9. The enforceable Forrest Inc., 1007, purchaser Communications, fails re tract is formed when the 805 A.2d 1009 zon product, assumption under the turn (D.C.App.2002) [Notice of forum selection clause offer, pur sufficient.]; of the and holds the seller master click-wrap v. Bischoff pack chaser bound terms included Inc., 1097, DirecTV, F.Supp.2d 1104 180 Dell, Inc., aging product. v. 2005 Stenzel (C.D.Cal.2002) [Arbitration clause in customer 37, (2005); 870 Rosenbaum v. ME A.2d 133 agreement which did not involve the sale service Inc., (N.Y. Supp. Gateway, 2004 WL 1462568 enforceable.]; goods Equip 1-A valid and 2004) [Unpublished App. opinion.]; Falbe Term Icode, Inc., 549913, WL 1-2 ment v. 2003 Co. Inc., (N.D.Ill.2004) WL v. Dell 2004 1588243 agree (Mass.App.Div.2003) [End user software Corp., [Unpublished opinion.]; & T Ramette v. AT valid.]; Corp., v. 293 Moore Microsoft 73, 684, Ill.App.3d 285 Ill.Dec. 812 N.E.2d 351 504, 91, 587, (2002) [End- 741 92 A.D.2d N.Y.S.2d Wireless, (2004); O'Quin v. 256 513 Verizon software contained in user license 512, (M.D.La.2003); F.Supp.2d v. AT 517 Lozano valid.]; Solutions, program v. Network Barnett Wireless, (C.D.Cal. F.Supp.2d & 2002); 216 1071 T Inc., 200, (Tex.App.2001)[Forum 203 38 S.W.3d Payton, v. Nat'l. Bank U.S.A. Beneficial click-wrap up selection clause in 679, (S.D.2001); F.Supp.2d 214 687 Westendorf held.]; Co., Inc. v. M.A. Mortenson Timberline 307369, 2000, Inc., Gateway v. WL 568, 305, Corp., 140 Wash.2d Software (Del.Ch.2000)[Unpublished opinion]; Peerless shrink-wrap [Terms of license Synchronies, Coverings, Inc. v. Wall & Window RealNetworks, contract".]; "layered Re Inc., (W.D.Penn.2000); F.Supp.2d 519 Hill v. 631341, Inc., (N.D.Ill.2000) [Licens WL Inc., (7th Gateway Cir.1997), 105 F.3d required up ing which denied, 522 U.S. 118 S.Ct. cert. Network, L.L.C., held.]; Caspi v. Microsoft ProCD, (1997); Incorporated 139 L.Ed.2d (1999) [On N.J.Super. 732 A.2d Cir.1996); (7th Zeidenberg, v. 86 F.3d generally, subscription Kevin W. valid.]. See line Inc., Gateway 246 A.D.2d Brower Grierson, Annot., Enforceability "Clickwrap” (1998); Providence & 676 N.Y.S.2d "Shrinkwrap” Agreements Common in Com Greenleaf, Sargent Co. v. Worcester Railroad Hardware, Software, Transac puter and Internet (D.R.I.1992). F.Supp. 685-86 tions, opinion in 106 A.L.R.5th minority approach looks to the circumstances question the valid paragraph 30 notes surrounding product; deter the order clickwrap licensing agreements formed; ity of such and then mines when the contract analy agreements court and the is not before the applies § if the of the U.C.C. determine 2-207 fall under integrated sis limited to packaging included in terms Computers article 2 of the U.C.C. into the contract. Defontes record, agreement in is no I see there no the trial court

reason advise procedures” “proper under these facts.

2006 OK CIV APP SOUTHERN MATERIAL HANDLING

CO., Casualty and Fire & Insurance Connеcticut, Company Petitioners, ‍‌‌‌​​‌​​‌​​​‌​​‌‌​‌‌​‌‌‌‌‌​​​​​‌​​‌​​‌​​‌​​‌​​‌‌‍Steve FALLING and the Workers’ Court,

Compensation Respondents. 102,091.

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

March 2006. Rehearing April Denied Certiorari Denied June notes procedures opinion. set out this that: “... our statement of the facts are those to IX. CONCLUSION which the admit in the either dis- conclusion, applications com- ” appeal.... trict court or pel arbitration, the district should fol- opinion The also determines 9 that: summary procedures low the set out in this “... nothing there is in the record about opinion. previ- Because this Court has not how computers, ordered the ously procedures articulated the fol- internet, mail, whether over the or arbitration, on applications lowed Likewise, phone. nothing there is about they apply only applications to those filed processes and conversations between аppeal. after mandate of this Section 2-207 they placed apply other of the U.C.C. their or they orders whether were re- apply the contracts here terms quired to consent to the ‘Terms and Condi- invoice, Dell can show were enclosed with the ” tions of when placing Sale’ the orders.... acknowledgment, package containing purchased product. deOn opinion also discerns that the facts nec- review, novo the record is insufficient essary application analysis for the support denying the order whether the arbitration is inte- compel arbitration. We reverse the district grated into the Terms and Conditions of Sale denying court’s order com- is a proposal whether it to add terms to pel arbitration and remand with instructions. the contract are not in presented Appeal’s opinion Court Civil is vacat- for review. ed. ¶3 It

Case Details

Case Name: Rogers v. Dell Computer Corp.

Court Name: Supreme Court of Oklahoma

Date Published: Jun 28, 2005

Citation: 138 P.3d 826

Docket Number: 99,991

Court Abbreviation: Okla.