TIBBETTS v. SIGHT 'n SOUND APPLIANCE CENTERS, INC.

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TIBBETTS v. SIGHT 'n SOUND APPLIANCE CENTERS, INC.
2003 OK 72
77 P.3d 1042
Case Number: 96079
Decided: 09/16/2003
Modified: 09/30/2003

THE SUPREME COURT OF THE STATE OF OKLAHOMA

PAUL TIBBETTS, ERWIN OLDS, MARY DITTEMEYER, MARY PITTMAN, on behalf of themselves and all others similarly situated, Plaintiffs/Appellees,
v.
SIGHT 'n SOUND APPLIANCE CENTERS, INC., an Oklahoma Corporation, d/b/a SIGHT 'n SOUND & COST WAREHOUSE, Defendant/Appellant.

CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I
DISTRICT COURT OF GARFIELD COUNTY, STATE OF OKLAHOMA

HONORABLE RONALD G. FRANKLIN, TRIAL JUDGE

¶0 Plaintiffs brought a class action suit against defendant under the Oklahoma Consumer Protection Act (OCPA),

CERTIORARI PREVIOUSLY GRANTED;
COURT OF CIVIL APPEALS' OPINION VACATED;
TRIAL COURT JUDGMENT FOR $375,000.00 ATTORNEY FEES REVERSED.

David Humphreys and Luke Wallace of Humphreys Wallace Humphreys, Tulsa, Oklahoma, and Justin LaMunyon of Faulkner & LaMunyon, P.L.L.C., Enid, Oklahoma for Plaintiffs/Appellees.
Craig L. Box and Julia C. Rieman of Gungoll, Jackson, Collins, Box & Devoll, P.C., Enid, Oklahoma for Defendant/Appellant.

LAVENDER, J.:

¶1 We decide here if the trial judge erred in awarding $375,000.00 in attorney fees to plaintiffs/appellees in their class action suit brought against defendant/appellant, Sight 'n Sound Appliance Centers, Inc., d/b/a Sight 'n Sound & Cost Warehouse under the Oklahoma Consumer Protection Act (OCPA),

¶2 This Court's decision in Walls v. American Tobacco Co.,

PART I. STANDARD OF REVIEW.

¶3 What constitutes a reasonable attorney fee is a matter addressed to the sound discretion of the trial court to be decided based on various factors and a judgment awarding attorney fees will not be reversed absent an abuse of discretion. Continental Natural Gas, Inc. v. Midcoast Natural Gas, Inc. ,

¶4 Further, when an assigned error is one of law a de novo review standard applies [Christian v. Gray, supra,

PART II. PROCEDURAL AND FACTUAL BACKGROUND.

¶5 The Pre-Trial Conference Order (PTO)

¶6 After the case was tried, the jury was instructed on the law and provided three verdict forms: a defendant's verdict form which generally allowed the jury to find the issues in favor of defendant; a plaintiffs' verdict form generally allowing the jury to find in favor of the plaintiffs and to fix the amount of damages to the class as a whole; and a punitive damage verdict form. Nine members of the jury signed the plaintiffs' verdict form, but it unequivocally fixed the amount of damages at zero. The same nine jurors signed the punitive damage verdict form and it fixed the amount of punitive damages at zero. Based on these verdicts we must assume the jury found defendant did engage in some violation of the OCPA, but that plaintiffs failed to carry their burden to show any damages.

¶7 Both sides, plaintiffs and defendant, moved for attorney fees and the trial judge denied both requests. Each side appealed the denials and the COCA, Division IV in Tibbetts I, in effect, decided that language employed in § 761.1(A) of the OCPA allowed plaintiffs to recover attorney fees merely by showing a violation of the OCPA without an attendant showing of damages or actual injury. Tibbetts I remanded for the trial judge to determine the amount of attorney fees. This Court denied defendant's quest for certiorari to review Tibbetts I, the matter returned to the trial court, and after various written submissions of the parties concerning the attorney fee issue and an evidentiary hearing, the trial judge entered the award of $375,00.00 in favor of plaintiffs now before us.

¶8 The $375,000.00 fee was arrived at by the trial judge upon a determination that the reasonable amount of plaintiffs' attorneys' time was 3000 hours and that a reasonable hourly rate for the lawyers involved was an average of $125.00 per hour.

¶9 Defendant appealed the award and the COCA, Division I affirmed, though it appeared to recognize that Tibbetts I's holding that plaintiffs were entitled to attorney fees merely because they had shown a violation of the OCPA was no longer good law in light of this Court's decision in Walls, supra, to the effect that an essential element of a private OCPA claim is actual damages. Division I's opinion determined it was powerless to reverse Tibbetts I, essentially in deference to the law of the case doctrine, and decided the amount awarded did not manifest an abuse of discretion.

PART III. THE ONLY REASONABLE ATTORNEY FEE IN THIS CASE, WHERE PLAINTIFFS SOUGHT SOLELY MONEY DAMAGES AND RECOVERED NOTHING, IS NO FEE.

¶10 We first note that our review of the reasonableness of the fee awarded requires no exception to the law of the case doctrine because Tibbetts I did not decide the reasonableness issue. Generally, as applicable here, the law of the case doctrine provides that an appellate court's decision on an issue of law becomes the law of the case once the decision is final, in all subsequent stages of the litigation. Matter of Estate of Severns ,

¶11 This Court has foreshadowed the proper decision in this case for we have recognized the importance of the relationship between the amount sued for in a case seeking only money damages and the results obtained. Southwestern Bell Telephone Co. v. Parker Pest Control, Inc.,

¶12 The United States Supreme Court in Farrar v. Hobby,

¶13 In so doing, the Supreme Court recognized that the most critical factor in deciding the reasonableness of a fee award is the degree of success obtained. Farrar, supra,

¶14 Although plaintiffs, in effect, argued in the trial court and try to convince us here that they succeeded in this case by achieving the goals of uncovering violation of the OCPA (in fact, obtaining a jury verdict that defendant in some way violated the OCPA) and defendant may have stopped the violative conduct because of the lawsuit, such arguments simply cannot sustain the attorney fee award before us. Plaintiffs' arguments in such regard are a means to assert the OCPA was legislatively intended as a private attorney general statutory scheme and that their suit was a "catalyst" for defendant's voluntary change of conduct. We deal with these arguments more fully in PART IV, infra, because they do point out the stark reality we are faced with in this case that plaintiffs did not prevail and they were not the successful parties in this case. However, a few comments are in order here.

¶15 First off, the record in this appeal is not at all clear that defendant stopped any offending conduct by virtue of this lawsuit. Surely, nothing we glean from the record mandates defendant's future conduct one way or the other.

PART IV. AN EXCEPTION TO THE LAW OF THE CASE DOCTRINE IS APPLICABLE HERE AND WE OVERRULE TIBBETTS I AS INCONSISTENT WITH WALLS AND PATTERSON, SUPRA.

¶16 Even when the law of the case doctrine is applicable, it will not be applied, i.e., there is an exception, if the prior decision is palpably erroneous and this Court is convinced that failure to reverse it will result in a gross or manifest injustice. Cinco Enterprises, Inc. v. Benso,

¶17 The ultimate reality is that plaintiffs did not prevail and they were not the successful parties in this case because they failed to show an essential element of their claim, i.e., damages. Walls, supra, primarily based on the meaning of the term "aggrieved consumer" contained in § 761.1(A), the plain import of the words "damages" and "actual damages" also contained therein, and a historical analysis of amendment to § 761.1(A) after our decision in Holbert v. Echeverria,

¶18 Where a plaintiff fails to show an essential element of a claim in a suit for damages it cannot reasonably be asserted that the plaintiff has been successful. We so ruled in Sloan v. Owen,

¶19 In essence, the plaintiffs contend that the OCPA is a "private attorney general" statutory scheme that allows the recovery of attorney fees merely upon a showing of a violation of the Act (even though no damages are shown) and that the Legislature sanctioned such recovery of attorney fees in favor of private litigants who implement the public policy behind the OCPA and thereby encourage private litigation to benefit a legislatively recognized public interest.

¶20 Plaintiffs' contention that the OCPA is a private attorney general statutory scheme and that they should be allowed to recover attorney fees here because they somehow vindicated a public right, is simply wrong. Again it is Walls, supra, that reveals the fallacy of plaintiffs' contention. For a private action to succeed the plaintiff must prove damages. Nowhere in § 761.1(A) is it indicated that attorneys are entitled to be compensated for merely showing some violation of the OCPA that caused no damages to their clients. This is particularly true where the clients owe the attorneys nothing because the attorney/client fee agreement is contingency-based [i.e., a percentage of any recovery], and the recovery is zero.

¶21 Further, under the OCPA it is the Oklahoma Attorney General or a district attorney that may seek coercive relief, such as an injunction [§ 756.1], to vindicate public rights to see to it that companies do not violate the provisions of the OCPA.

¶22 Were we to allow this attorney fee award to stand based on plaintiffs' private attorney general theory, such a ruling would be completely at odds with Walls, supra, where we made it clear the OCPA requires actual damages be shown as an essential element of a private OCPA claim in order to transform a consumer into an "aggrieved consumer". Our ruling in Walls, if not expressly, necessarily implies that the OCPA is not a statutory scheme that envisions or embodies a private attorney general theory.

¶23 Plaintiffs also argue entitlement to attorney fees based on the argument that defendant might have changed its conduct because of this lawsuit. In effect, plaintiffs are arguing a "catalyst" theory in support of recovery of attorney fees, without obtaining any enforceable judgment against defendant that changes the legal relationship of the parties. The United States Supreme Court recently rejected the catalyst theory of attorney fee recovery in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources,

¶24 Very simply, were we to accept plaintiffs' arguments in support of the affirmance of the fee award, we would be transforming the OCPA into something it is not and would be allowing an attorney fee award not authorized by any law. This is something the OCPA nowhere requires and we decline to rewrite the Act to do so.

PART V. SUMMARY.

¶25 Plaintiffs sought solely money damages in their class action lawsuit brought against defendant under the OCPA. Although the jury returned a verdict which indicates some violation(s) of that Act were shown, the jury verdict found zero damages. The only reasonable attorney fee in this case, where plaintiffs' attorney fee agreement with their counsel was contingency-based, i.e., plaintiffs owe their attorneys no fees because there was no recovery, is no fee at all.

¶26 Tibbetts I, in effect, held that plaintiffs were entitled to recover attorney fees merely by showing defendant violated the OCPA in some way, even though they recovered zero damages and showed themselves entitled to no other relief. Walls, supra and Patterson, supra make clear that Tibbetts I was wrong in such regard because to be an aggrieved consumer and to have a viable claim under the OCPA, actual damages must be shown. Plaintiffs showed no actual damages to the satisfaction of the jury. To the extent Tibbetts I is claimed by plaintiffs to be the law of the case such that the propriety of at least some attorney fee award may not now be challenged as they have been determined to be the prevailing or successful parties by that decision, we hold an exception to the law of the case doctrine applies as Tibbetts I is a palpably erroneous decision and a gross or manifest injustice would be done were we to allow the award for fees to stand when such is clearly not authorized by law and plaintiffs cannot be deemed to have prevailed because they recovered nothing. Tibbetts I is overruled.

¶27 Accordingly, the opinion of the Court of Civil Appeals is VACATED and the trial court judgment awarding plaintiffs attorney fees of $375,000.00 is REVERSED.

¶28 WATT, C.J., HODGES, LAVENDER, SUMMERS, BOUDREAU and WINCHESTER, JJ., concur.

¶29 HARGRAVE and KAUGER, JJ., concur in result.

¶30 OPALA, V.C.J., dissents in part.

FOOTNOTES

1 The current version of the Oklahoma Consumer Protection Act (OCPA), of course, may be found at 15 O.S.2001, § 751 et seq., as amended.

2 Rule 5(I) of the Rules for District Courts of Oklahoma, 12 O.S.2001, Ch.2, App., Rules 1 et seq., as amended, provides:

I. Pretrial Orders.

The pretrial order shall include the results of the conference and advice to the court regarding the factual and legal issues, including details of material evidence to be presented. The order shall also present all questions of law in the case. All exhibits must be marked, listed and identified in the pretrial order. If there is objection to the admission of any exhibits, the grounds for the objection must be specifically stated. Absent proper objection, the listed exhibit is admitted when offered at trial or other proceeding. Attorneys for all parties will approve the order. The order shall be presented to the District Court for signature. The contents of the pretrial order shall supersede the pleadings and govern the trial of the case unless departure therefrom is permitted by the Court to prevent manifest injustice. Proposed pretrial order shall not be filed. (Emphasis added to body.)

The identical provision existed in August 1997 when the Pre-Trial Conference Order (PTO) noted in the text was filed in the trial court. 12 O.S.1991, Ch.2, App., Rule 5(I).

3 Title 15 O.S.Supp.2002, § 753(8)(9) and (12) provide:

A person engages in a practice which is declared to be unlawful under the [OCPA] . . . when, in the course of the person's business, the person:

* * *

8. Advertises, knowingly or with reason to know, the subject of a consumer transaction with intent not to sell it as advertised;
9. Advertises, knowingly or with reason to know, the subject of a consumer transaction with intent not to supply reasonably expected public demand, unless the advertisement discloses a limitation of quantity;

* * *

12. Employs "bait and switch" advertising, which consists of an offer to sell the subject of a consumer transaction which the seller does not intend to sell, which advertising is accompanied by one or more of the following practices:
a. refusal to show the subject of a consumer transaction advertised,
b. disparagement of the advertised subject of a consumer transaction or the terms of sale,
c. requiring undisclosed tie-in sales or other undisclosed conditions to be met prior to selling the advertised subject of a consumer transaction,
d. refusal to take orders for the subject of a consumer transaction advertised for delivery within a reasonable time,
e. showing or demonstrating defective subject of a consumer transaction which the seller knows is unusable or impracticable for the purpose set forth in the advertisement,
f. accepting a deposit for the subject of a consumer transaction and subsequently charging the buyer for a higher priced item, or
g. willful failure to make deliveries of the subject of a consumer transaction within a reasonable time or to make a refund therefor upon the request of the purchaser[.]

The August 1997 PTO, Plaintiff's [sic] Contentions, cites to § 752(8), (9) and (12) of the OCPA. Section 752 is the definition section of the OCPA. Obviously, the PTO contains a typographical error, as the bait and switch (or related) provisions sued under are found in § 753(8), (9) and (12) of the OCPA. The part of the PTO setting out defendant's Grounds For Defense correctly refers to § 753. Section 753 was the subject of amendment after the filing of plaintiffs' initial trial court petition in October 1994 and after the jury trial was held in early 1998. We quote from the 2002 Oklahoma Statutes as the pertinent subsections remain the same as in 1994. See 1996 Okla. Sess. Laws, Ch. 8, § 3; 1999 Okla. Sess. Laws, Ch. 175, § 3; 2001 Okla. Sess. Laws, Ch. 260, § 1; 2002 Okla. Sess. Laws, Ch. 296, § 3.

4 The PTO identifies the class certified as all those that purchased 19" or 25" Goldstar Televisions from defendant between January 1, 1993 through December 31, 1994.

5 Nothing in the jury's verdict definitively reveals the extent to which it found defendant to have violated the OCPA nor does the decision in Tibbetts v. Sight 'n Sound Appliance Centers, Inc. (Tibbetts I), 2000 OK CIV APP 47, 6 P.3d 1064 (cert. denied 3-30-00).

6 The trial court's March 7, 2001 "Judgement", in addition to awarding plaintiffs $375,000.00 in attorney fees against defendant, awarded them $39,910.95 in costs. As we read its appeal and certiorari submissions, neither on appeal nor certiorari does defendant seek reversal of costs awarded. Further, the trial judge's Findings of Fact and Conclusions of Law (FF/CL)(that accompanied the "Judgement") set out that the parties stipulated that reasonable appellate attorney fees and costs associated with the prior appeal in Tibbetts I, supra, note 5, were $3,108.75 and $558.00, respectively, and same were affixed at said amounts. In this Court's March 30, 2000 Order denying certiorari in Tibbetts I this Court also granted plaintiffs' motion for appeal- and certiorari-related attorney fees and remanded to the trial court for hearing as to the proper amount. Defendant does not challenge said Order here and, as we read its appeal merit briefs and certiorari submissions, it does not seek reversal of the $3,108.75 representing appellate attorney fees associated with Tibbetts I. Also, as we view the record, the appellate attorney fees specified in the FF/CL are not included in the $375,000.00, the latter figure being separately specified in both the FF/CL and "Judgement".

7 The trial judge's FF/CL also make it clear he considered the applicability of other factors delineated in Oliver's Sports Center, Inc. v. National Standard Ins. Co., 1980 OK 120, 615 P.2d 291 and State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659.

8 The opinion of the Court of Civil Appeals also cited 20 O.S.1991, § 30.14(B) for its lack of authority to reexamine Tibbetts I, supra, note 5. Title 20 O.S.2001, § 30.14(B) - as the 1991 version did - provides in pertinent part:

Each division of the Court of Civil Appeals convened under the authority of this act shall have jurisdiction to determine or otherwise dispose of any case assigned to it by the Supreme Court, and its decisions, when final, shall be neither appealable to the Supreme Court nor be subject to reexamination by another division of the Court of Civil Appeals or by the Judges of that Court sitting en banc.

9 The initial plaintiff in Farrar v. Hobby, 506 U.S. 103, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992), having died prior to trial, the co-administrators of his estate were substituted as plaintiffs. 506 U.S. at 106. One of the co-administrators was also a plaintiff in the case in his personal capacity. 506 U.S. at 106 and n. 1.

10 Even if we assume plaintiffs are correct [citing and relying on Brashears v. Sight 'N Sound Appliance Centers, Inc., 1999 OK CIV APP 52, ¶ 16, 981 P.2d 1270, 1274] that monetary damages may be awarded in a private OCPA case for things such as loss of time, inconvenience, and travel and telephone expenses, no such damages were awarded by the now unassailable jury verdict that assessed plaintiffs' damages at zero. The bottom line in this case is that the plaintiffs were unsuccessful on the only legally viable claim they tried before the jury, a claim asserting they were entitled to recover monetary damages. No attorney fees are warranted in such a situation.

11 The record simply does not reveal that defendant changed any conduct in response to the instant suit nor have we been presented with a trial court finding in such regard. Although one of plaintiffs' attorneys testified at the hearing on attorney fees that defendant changed part of its advertising scheme at some point after this lawsuit was instituted, it would be pure speculation on our part, given the state of the record presented in this appeal, to determine what prompted such change. In fact, another of plaintiffs' attorneys seemed to testify at the attorney fee hearing that he did not know if the lawsuit brought about any change at defendant company.

12 Title 15 O.S.2001, § 761.1(A) provides:

A. The commission of any act or practice declared to be a violation of the Consumer Protection Act shall render the violator liable to the aggrieved consumer for the payment of actual damages sustained by the customer and costs of litigation including reasonable attorney's fees, and the aggrieved consumer shall have a private right of action for damages, including but not limited to, costs and attorney's fees. In any private action for damages for a violation of the Consumer Protection Act the court shall, subsequent to adjudication on the merits and upon motion of the prevailing party, determine whether a claim or defense asserted in the action by a nonprevailing party was asserted in bad faith, was not well grounded in fact, or was unwarranted by existing law or a good faith argument for the extension, modification, or reversal of existing law. Upon so finding, the court shall enter a judgment ordering such nonprevailing party to reimburse the prevailing party an amount not to exceed Ten Thousand Dollars ($10,000.00) for reasonable costs, including attorney's fees, incurred with respect to such claim or defense. (Emphasis added.)

The non-bolded portion of § 761.1(A) is not involved in the present situation, although even that portion of the subsection seems to point in the direction that for a private individual to have a viable claim under the OCPA damages must be shown as the first sentence thereof begins "[i]n any private action for damages for a violation of the Consumer Protection Act . . . ." (Emphasis added.) We also note that no relevant changes have been made to § 761.1(A) since this lawsuit was filed in 1994, although non-pertinent amendments have been made generally to § 761.1. See 1997 Okla.Sess.Laws, Ch. 133, § 134; 1999 Okla.Sess.Laws, 1st Ex.Sess., Ch. 5, § 61.

13 The United States Supreme Court rejected judicial authorization of a "private attorney general" encroachment on the American Rule concerning the propriety of the recovery of attorney fees against one's opponent in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975). We generally stated the contours of the American Rule in State ex rel. Moshe Tal v. City of Oklahoma City, 2002 OK 97, ¶ 16, 61 P.3d 234, 243, as follows:

Oklahoma follows the American Rule as to the recovery of attorney fees. The Rule is generally that each litigant pays for their own legal representation and our courts are without authority to assess attorney fees in the absence of a specific statute or contract allowing for their recovery. Kay v. Venezuelan Sun Oil Co., 1991 OK 16, 806 P.2d 648, 650. Exceptions to the Rule are narrowly defined [id.] and carved out with great caution [Beard v. Richards, 1991 OK 117, 820 P.2d 812, 816] because it is understood liberality of attorney fee awards against the non-prevailing party has a chilling effect on our open access to courts guarantee. Id.

This Court stands firmly committed to the American Rule. Holbert v. Echeverria, 1987 OK 99, 744 P.2d 960, 965.

14 In that the record in this matter conclusively shows the fee agreement between plaintiffs and their counsel was contingency-based and plaintiffs owe no attorney fees to their counsel because nothing was recovered, we need not definitively decide in this case if attorney fees, in some amount, would be allowable under § 761.1(A)'s language in a similar situation to that here (i.e., a violation is shown, but no actual damages found) and the attorney fee agreement was something other than contingency-based.

15 Title 15 O.S.2001, § 756.1, providing the same as when this lawsuit was brought by plaintiffs in 1994, provides:

A. The Attorney General or a district attorney may bring an action:
1. To obtain a declaratory judgment that an act or practice violates the Consumer Protection Act;
2. To enjoin, or to obtain a restraining order against a person who has violated, is violating, or is likely to violate the Consumer Protection Act;
3. To recover actual damages and, in the case of unconscionable conduct, penalties as provided by this act, on behalf of an aggrieved consumer, in an individual action only, for violation of the Consumer Protection Act; or
4. To recover reasonable expenses and investigation fees.

B. In lieu of instigating or continuing an action or proceeding, the Attorney General or a district attorney may accept a consent judgment with respect to any act or practice declared to be a violation of the Consumer Protection Act. Such a consent judgment shall provide for the discontinuance by the person entering the same of any act or practice declared to be a violation of the Consumer Protection Act, and it may include a stipulation for the payment by such person of reasonable expenses and investigation fees incurred by the Attorney General or a district attorney. The consent judgment also may include a stipulation for restitution to be made by such person to consumers of money, property or other things received from such consumers in connection with a violation of this act and also may include a stipulation for specific performance. Any consent judgment entered into pursuant to this section shall not be deemed to admit the violation, unless it does so by its terms. Before any consent judgment entered into pursuant to this section shall be effective, it must be approved by the district court and an entry made thereof in the manner required for making an entry of judgment. Once such approval is received, any breach of the conditions of such consent judgment shall be treated as a violation of a court order, and shall be subject to all the penalties provided by law therefor.

C. In any action brought by the Attorney General or a district attorney, the court may:
1. Make such orders or judgments as may be necessary to prevent the use or employment by a person of any practice declared to be a violation of the Consumer Protection Act;
2. Make such orders or judgments as may be necessary to compensate any person for damages sustained;
3. Make such orders or judgments as may be necessary to carry out a transaction in accordance with consumers' reasonable expectations;
4. Appoint a master or receiver or order sequestration of assets to prevent the use or enjoyment of proceeds derived through illegal means and assess the expenses of a master or receiver against the defendant;
5. Revoke any license or certificate authorizing that person to engage in business in this state;
6. Enjoin any person from engaging in business in this state; or
7. Grant other appropriate relief.

D. When an action is filed under the Consumer Protection Act by a district attorney or the Attorney General, no action seeking an injunction or declaratory judgment shall be filed in any other county or district in this state based upon the same transaction or occurrence, series of transactions or occurrences, or allegations which form the basis of the first action filed.

16 The dissenting in part opinion errs in postulating that plaintiffs have an accrued or vested right to recover attorney fees as an element of their recovery, even though plaintiffs owe no attorney fees. In other words, the dissenting in part opinion seems to fail to realize that the plaintiffs here, because of their contingency-based attorney fee agreement with their counsel, owe no attorney fees to their counsel for either bringing or litigating the case because nothing (i.e., zero damages) was recovered. We fail to understand how parties to litigation can have an accrued or vested right to obtain money as an element of recovery from a defendant, the money to be used to pay the parties' attorney fees, when the parties owe no attorney fees to their attorneys. In short, plaintiffs are being deprived of nothing. Further, the dissenting in part opinion's view, in effect, that we have retroactively abolished a claim of these plaintiffs to which a substantive right to counsel-fee recovery stood attached is also mistaken. Such an argument fails for the same reason the similar or identical accrued or vested right argument does, to wit: plaintiffs owe no attorney fees to anybody in regard to the litigation of this case on their behalf. The dissenting in part opinion seems to urge protection of something that does not exist. Neither logic, nor adherence to common law or constitutional principles, nor any other plea to purportedly established legal thought requires or warrants such protection. To protect something that has no existence would be enigmatic at best and, we believe, a valueless gesture, devoid of meaning and reason.

The dissenting in part opinion acknowledges that the exception to the law of the case doctrine applied by the Court in PART IV of this majority opinion is not of recently discovered-vintage. In its footnote 29 the dissenting in part opinion cites cases dating back to shortly after statehood that recognize the existence of the exception. Although we agree with the dissenting in part opinion's general tenor that any exception to the law of the case doctrine should be tightly circumscribed, recognition of an exception essentially based on the palpably erroneous and gross or manifest injustice standard (as set out in ¶ 16 of this majority opinion) is of long-standing jurisprudential cognizance.

Contrary to the dissenting in part opinion's belief, the majority opinion does not measure legal rights by personal predilection based on an empty or shapeless yardstick; instead, the majority opinion has as its foundation sound law that is applied in light of the record presented to this Court. The dissenting in part opinion would have us gauge legal rights based on theoretical concepts divorced from the real case that is before this Court. This we will not do.

17 Prior to our granting certiorari on July 1, 2002, plaintiffs filed a motion for appeal-related attorney fees for work associated with this appeal, citing § 761.1(A) of the OCPA and 20 O.S.2001, § 15.1. Obviously, in light of our disposition it is plain § 761.1(A) provides no basis to award plaintiffs such fees. Section 15.1 allows this Court to award attorney fees to the opposing side when an appeal is patently frivolous. TRW/Reda Pump v. Brewington, 1992 OK 31, 829 P.2d 15. Again, our disposition makes clear defendant's appeal in this case is not patently frivolous. Plaintiffs' motion for appeal-related attorney fees filed May 3, 2002 is denied.

OPALA, V.C.J.

¶1 The court reverses today the trial court's counsel-fee award to the plaintiffs and expressly overrules the statutory-law norm announced for this litigation in the earlier appeal of this cause (Tibbetts I).1 The overruled norm, which initially received a green light by this court's previous denial of certiorari, upheld the unharmed plaintiffs' right to press a private claim for the Oklahoma Consumer Protection Act's [Act]2 violation and to receive a counsel-fee award as an additional element of their recovery. By today's opinion the counsel fee is now declared both contrary to this court's after-crafted jurisprudence3 in Walls v. American Tobacco Co.4 and Patterson v. Beall5 and unreasonable (in light of a zero-damage jury finding for the plaintiffs' actual damages, which stands affirmed by Tibbetts I). Upon substituting its after-promulgated statutory norm (of Walls and Patterson) for that which was earlier declared in Tibbetts I, the court opines that the plaintiffs did not have an actionable private claim and hence could not be regarded as successful litigants in the case. They had failed to show the now-required element of harm to their interests. It is the Walls and Patterson norm that the court applies to this claim today, even though the contrary holding announced in the earlier published, controlling and undisturbed COCA decision (a) bears unquestionable attributes of finality, (b) stands unrepudiated in the reports and (c) has never been directly challenged.6

¶2 My dissent addresses itself solely to the aftermath of today's departure from the course charted by Tibbetts I. It deals not with the new trail we blaze but rather with the havoc we wreak by abandoning the time-honored teachings of Anglo-American orthodoxy in appellate judicature.

I

CRITICAL LITIGATION HISTORY

A.

COCA's Tibbetts I

¶3 In a class action brought under the Act,

COCA's Tibbetts II

¶4 Upon a postremand evidentiary hearing on the counsel-fee issue (that occurred after COCA's Tibbetts I promulgation and this court's issuance of its mandate following certiorari's denial), the trial court entered an award of $375,000 for the plaintiffs' legal fee. COCA affirmed (in Tibbetts II)

B.

After-Crafted Statutory Jurisprudence

¶5 Walls

II

FOR ITS REJECTION OF SETTLED LAW OF THE CASE THE
COURT INVOKES TODAY A STANDARDLESS TESTING FORMULA

A.

The Settled-Law-of-the-Case

¶6 The court refuses to be bound here by the settled law of the case. It rejects the doctrine as unjust for application to this litigation. "Justice" is interposed as the sine qua non of an adjudication's qualification for settled-law effect.

¶7 The settled-law-of-the-case doctrine operates to bar relitigation in the same case of issues that were finally decided through an appellate process.17 The earlier decision on review becomes binding in all subsequent stages of the case. The doctrine not only ensures absolute consistency of later with former issue resolutions, it also guards against abuse of judicial process by preventing relitigation of issues settled in the course of an earlier appellate stage of the case.18

¶8 I would not loosen one iota the firm grip of control the reviewing process of correction now wields over postremand proceedings whose course stands charted by an appellate disposition; I would firmly and loudly condemn every unauthorized departure from settled law, either in postremand proceedings at nisi prius or in any other review stages that may follow. I would sanction departures from settled law solely for those issues which are determined not to have been fully and fairly litigated.

B.

"Injustice" - The Open-ended Judicial Escape Hatch From Settled Law

¶9 Today's pronouncement offers an open-ended judicial escape hatch from the established restraints that the settled-law doctrine imposes. The formula by which the court justifies its departure from settled law - a manifest "injustice" from its application - is patently overbroad and amorphous.20 Justice is a vacuous and shapeless legal norm21 that has been dubbed an antonym of due process.22 Its yardstick is much like that of an empty vat into which one may pour contents at will. It has been defined as a standardless product of the natural-law reasoning process.23 Subjecting settled law to repeated scrutiny by afterthought based on a vacuous gauge will most surely undermine, if not indeed destroy, interinstitutional deference within the judicial service and the internal discipline among the courts. In short, I join many generations of judges and scholars in rejecting "justice" as an acceptable standard for departure from settled law. As a legal gauge, justice is as deceiving as the shifting sands upon which it is founded.

C.

Justice is Gauged by One's Individual Predilection

¶10 Is injustice (as a pretense for rejecting settled law) to be measured by an enormity of the mistake in shaping a flawed norm or by the severity of philosophical differences between an earlier-adopted and the later-rejected norm? No matter what measuring tape one will use, justice is but an empty and shapeless legal yardstick whose contours are circumscribed by nothing more than one's individual predilection. I must hence condemn rather than embrace justice as a legal norm. It is not concrete enough. If invoked, it becomes putty in the hands of the shaping applicator. Any authorized departure from settled law should instead be rested on the U.S. Supreme Court's well-established gauge (for applying issue preclusion) by which we must first answer whether the issue whose resolution is to be accepted as binding was fully and fairly explored in advance of its settlement.24 If so, settled law must govern; if not, it may be rejected. To hold otherwise injects whim into the legal system. Moreover, I would be loath to invite this State's courthouse and statehouse judges to regard themselves freed from obedience to any settled rulings which they may be tempted to condemn as offensive to their sense of justice.

¶11 The outer reach of a private right of action that is invocable under any legislative enactment does not present a unique controversy.25 Whenever a disagreement arises between two appellate courts over the proper legislative intent that must guide the construction to be placed upon the statute's text, it does not follow as a matter of law that the ultimately rejected view may also be rejected out-of-hand as unjust. The focus of inquiry to be conducted in order to resolve the question we answer today is whether the law settled by the earlier disposition is vulnerable to departure because the issue now to be accepted as settled had not been fully and fairly litigated. The integrity of judicial process is gravely offended when a higher court deems itself free to relegate to the rubric of "injustice" an inferior court's final pronouncement for nothing more than a simple disagreement on a matter of statutory intent.

¶12 Because, on the record before us, there is absolutely no showing that the actionable character of the plaintiffs' private claim under the Act had not been fully and fairly litigated, I must consider myself bound here by COCA's pronouncement in Tibbetts I.

D.

The "Injustice" Done Here Consists of This Court's Retroactive
Departure From Settled Law

¶13 The "injustice" done here lies not in COCA's now-rejected jurisprudence of Tibbetts I but in this court's shift of its judicature: in its voting pattern's change from yesterday's denial of certiorari - with a green signal given for the commanded postremand proceedings - to today's attack upon the mandate of Tibbetts I left intact by this court's election not to grant certiorari. The guilt from our own failure to act may not be shifted from ourselves to COCA. Nor may we, with a clear conscience, leave utterly helpless those litigants who were harmed by relying on that inaction. They too, like all others, deserve fairness. To them fairness lies in consistent adherence to the effective norms of yore.26 Because it is this court's own failure to stay the course (charted by Tibbetts I) which has produced today's dilemma, it behooves it to apply here a solution fully consistent with the orthodoxy of the Anglo-American judicature and with the State's constitutional restrictions on retrospective lawmaking.

E.

The Court's Pronouncement Impermissibly Recasts Oklahoma's Appellate
Regime Into A Cassation-like Model of Post-Revolutionary France

¶14 The court's endorsement of open-ended freedom to repudiate settled law at will is utterly incompatible with the basic teachings of appellate judicature in the Anglo-American legal tradition. Today's opinion introduces to the State a post-appeal decisionmaking regime long associated with Franco-Roman cassation27 - an institution never followed in any jurisdiction within the Anglo-American legal heritage. By overturning the law settled in Tibbetts I, the court has refashioned the State's institutional design for appellate judicature into a veritable cassation process. Cassation absolutely confines the appellate court's authority to quashing the judgment. It does not authorize the judgment-quashing tribunal to direct either the course or the complexion of post-remand proceedings. The Oklahoma Court of Civil Appeals is not established on a Franco-Roman model of cassation. It functions as an intermediate tribunal of review in the State's Anglo-American tradition.

¶15 Today's reshaping of Oklahoma's appellate judicature into a Franco-Roman cassation model will generate interminable post-appeal litigation. No courthouse judge will ever again feel bound by an undisturbed COCA pronouncement. The new design will leave valuable rights in limbo over a long stretch of post-appeal forensic battles at nisi prius and elsewhere.28 In sum, the court's retroactive change of an effective and settled statutory norm deals lasting and grave harm to the symmetry of Oklahoma's system of appellate judicature.

¶16 COCA's Tibbetts I settled for this case the legal principle that the unharmed plaintiffs had a private claim under the Act with an ancillary entitlement to an attorney's fee. The court renounces its obedience to this norm of settled law upon a purely vacuous and shapeless legal standard. I am compelled to stand bound by the settled law of this case.29

III

THE CLAIM ABOLISHED TODAY IS PROTECTED FROM
BELATED JUDICIAL DESTRUCTION BY THE DOCTRINE OF
ISSUE PRECLUSION

¶17 When certiorari was denied (and finality of COCA's decision came to be reached), the unharmed plaintiffs' entitlement to prosecute a private claim for a mere violation of the Act (to which counsel-fee recovery stood attached in favor of one declared to have emerged as prevailing party) became protected by the doctrine of issue preclusion.

¶18 Issue preclusion prevents relitigation of facts and other issues actually litigated and necessarily determined in an earlier proceeding between the same parties or their privies.

¶19 Actionability of the plaintiffs' private claim was finally resolved in their favor in Tibbetts I

¶20 Under the terms of today's opinion, no mandate of this court could ever again attain the status of unassailable finality for the pronounced rulings in a case.

IV

STATE CONSTITUTIONAL RESTRICTIONS UPON RETROSPECTIVE LEGISLATION APPLY WITH EQUAL FORCE TO AFTER-PROMULGATED SUBSTANTIVE-LAW JURISPRUDENCE THAT ADVERSELY AFFECTS (1) PROCEEDINGS BEGUN AND (2) ACCRUED RIGHTS

A.

Judicial Promulgation of Statutory Jurisprudence - i.e., Caselaw That Imparts Meaning to the Legislative Text According to the Found Intent of the Lawmaking Assembly - Is a Long-recognized Legitimate Form of "Interstitial Lawmaking" by Adjudication

¶21 Lawmaking is not the monopoly of the Legislature. A judge engages in lawmaking through adjudication when interstitially filling a gap in the law by formulating a common-law rule,

B.

All Forms of Non-legislative Lawmaking must Conform to the
Constitution's Restrictions on Retroactive Enactments

¶22 Legitimate judicial lawmaking by adjudication is not exempt from constitutional testing. Like legislation itself, it must pass the fundamental law's muster.

¶23 Today's opinion sanctions a particularly reprehensible form of retroactive judicial lawmaking - one that wipes out adjudged rights by a mid-stream change in a legislative text's meaning. The court abolishes the unharmed plaintiffs' finally declared right of private action, which also entitles the prevailing party to a counsel-fee award as an additional element of its recovery. Both of the issues in contest here - the actionable character of the private action and the plaintiffs' entitlement to a counsel-fee award in post-remand proceedings - were finally settled by Tibbetts I in favor of the plaintiffs. Their actionable claim, abrogated today, arose before the court's statutory norm change. Tibbetts I remains the only effective law for this case. This is so because it stands undisturbed as well as final by certiorari's denial.

¶24 Every retrospective change in the law produces "injustice" - losers become winners and vice versa; nay, after-crafted statutory jurisprudence, when retrospectively applied, may be perceived by some as an instrument of injustice.

V

THE COURT IGNORES AND VIOLATES THE PROVISIONS OF OKLAHOMA'S CONSTITUTION WHICH REQUIRE THAT THE SUBSTANTIVE LAW TO BE APPLIED IN LITIGATION PROCESS MUST BE THAT WHICH WAS IN FORCE WHEN THE PROCEEDINGS WERE BEGUN

¶25 Retrospective overruling of the settled law of the case by after-enacted legislative changes (or those effected through the process of judicature) offends the explicit constitutional barrier to changing the applicable norms of substantive law for a proceeding begun earlier than the effected change. Art. 5 § 54, Okl.Const.

¶26 One cannot deny that for application to the Tibbetts claim the statutory law to govern the case has been changed; whether the change was effected by an appellate pronouncement or by a legislative enactment is immaterial. It is the change - jurisprudential or legislative, by enactment or adjudication - that falls clearly under the axe of constitutional condemnation for after-the-fact lawmaking. Today's retroactive application of substantive-law changes in the controlling statutory norm that stood declared for this claim in Tibbetts I offends the constitution's expressed solicitude for continued and evenhanded application of the law in force when the proceeding was begun.

¶27 This proceeding was begun when the unharmed plaintiffs still enjoyed a private right of action for the Act's violation and the fruits of their judicially declared status as prevailing parties in the case. Today's opinion destroys the rights declared in their behalf by COCA's Tibbetts I.

VI

THE COURT IGNORES AND VIOLATES THE PROVISIONS OF THE OKLAHOMA CONSTITUTION WHICH REQUIRE THAT "ACCRUED RIGHTS" NOT BE DISTURBED BY AFTER-ENACTED LAW

¶28 When the Tibbetts I phase of this litigation came to an end by this court's denial of certiorari (and by the issuance of its mandate), the applicable and effective statutory norm of Oklahoma's substantive law unquestionably gave the unharmed plaintiffs a private cause of action for a mere (harmless) violation of the Act. Their status as prevailing party, which entitled them to a counsel-fee award, stands pronounced by COCA's Tibbetts I.

¶29 All these principles are rejected by today's pronouncement. The private claim is now abolished and gone with the winds is also the plaintiffs' declared entitlement to an attorney's fee. Responsible for the private claim's surprising and sudden demise is this court's after-promulgated pronouncement that construes the Act in two unrelated lawsuits,

¶30 When this action was brought the unharmed plaintiffs had a right to bring a private claim for a violation of the Act. That right, together with all of its declared ancillary incidents, is destroyed by today's opinion.

VII

SUBSTANTIVE CHANGES IN LAW CANNOT BE
RETROACTIVE IN EFFECT

¶31 Substantive rights may not be changed mid-stream for application to a claim or defense in a pending judicial proceeding. Art. 5 § 52, Okl.Const.

¶32 Today's pronouncement does more than destroy the plaintiffs' right to a counsel fee by force of an after-enacted law; it affects the plaintiffs' locus standi by entirely abolishing their claim. That includes not just one but all the elements of recovery. In short, a substantive norm of statutory law underwent a change by after-promulgated jurisprudence. It is that changed norm which the court applies to this claim today.

¶33 The retrospective repudiation of Tibbetts I clearly violates the constitutionally anchored restrictions on the government's power retroactively to change substantive law either by judicature or by legislative enactment. I cannot accede to the court's act of attempting to right its self-perceived error by extra-legal means.

¶34 When this action was brought the unharmed plaintiffs had standing to bring a private action for a violation of the Act and to receive a counsel-fee award as a declared prevailing party. Their claim is declared actionable by Tibbetts I. Their entitlement to a counsel-fee award is also pronounced by that final authority. It is a substantive right that is abolished by today's retroactive application of after-crafted jurisprudential change in the statutory text's meaning.

VIII

REPLY TO THE COURT'S CRITIQUE OF THE DISSENT

¶35 The court chooses to ignore the undeniable fact that its post-Tibbetts I abolition of an unharmed plaintiff's private right of action makes today's pronouncement a retroactive destruction of an accrued right. A substantive right conferred by a judicial act that is recognized as bearing the attributes of finality constitutes an accrued right. No amount of rhetoric can sidetrack this verity. It is the plaintiffs' private claim, not the attorney's fee, that is here at stake.

¶36 The court's reference to the defendant's liability-defeating defenses against the fee quest is equally inapposite.

¶37 There are two parallel rules that stand in contradiction of one another which have co-existed since early statehood: one that is absolutely obedient to the settled law of the case without any exceptions

¶38 For support of its reliance on the open-ended escape hatch from settled law the court invokes the longevity of the authority for today's departure. Suffice it to say that "'[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.'"

¶39 The court attempts to justify its abandonment of settled law by invoking the "palpably erroneous" test. The latter is as vacuous and standardless as "manifest injustice."

¶40 If a decision is indeed palpably erroneous, the time to correct it is not after relitigation is barred by the command of issue preclusion, but rather when a petition for certiorari is still under timely review.

¶41 The court has impermissibly overextended its power to grant corrective relief upon timely-brought certiorari quest. The second bite it gives the loser today lies clearly on a collision course with constitutional restraints on retroactive lawmaking either by legislation or adjudication. It brazenly contravenes the standards of issue preclusion which stand incorporated into the body of Oklahoma law from the norms of Restatement of Judgments (Second) § 27 and from the Restatement's recent exposition in the U.S. Supreme Court jurisprudence.

IX

SUMMARY

¶42 Any departure from settled law or from the doctrine of issue preclusion may be authorized solely upon a court's determination that, before its settlement, the issue was not fully and fairly litigated. When one invokes the empty and shapeless yardstick of "justice," one measures legal rights by personal predilection rather than by a fixed gauge of the law.

¶43 The "injustice" from which the court saves the defendant was occasioned by this court's (a) failure to provide relief to the defendant when certiorari was sought in Tibbetts I and (b) retroactive destruction of the settled law of the case through applying to this claim after-crafted norms of substantive-law change in the meaning of a controlling statutory text.

¶44 Because this case deals with an issue of substantive law, the court's changed course for the intended meaning of the statute in question must conform to the constitution's expressed command that calls for continued and evenhanded application of the law in force when a proceeding was begun and for the protection of accrued rights. The efficacy of the substantive norm of statutory law pronounced for this case in Tibbetts I cannot be altered or impaired by after-promulgated jurisprudence that infuses a contrary or different meaning.

¶45 Today's rejection of a jurisprudential norm declared for the statute's meaning at the time the claim accrued and the retrospective application of the changed norm to this case destroy rights protected by Art. 5 §§ 52 and 54, Okl.Const. I would not apply to this claim the court's changed meaning of the Act.

¶46 In today's pronouncement I would go no further than reiterate, as the court does, our continued commitment to the reconcretized norm of the Act's meaning that was crafted in Walls and Patterson, but, contrary to the court's holding, I would leave undisturbed the law finally settled for this case by COCA's Tibbetts I and now shielded from retroactive rule change by both legislative and judicial after-the-fact tinkering. The defendant's proposal for a justice-invoking resolution of this certiorari proceeding, which so plainly violates the state constitution's protection against applying after-crafted substantive-law changes, cannot escape judicial condemnation. It is positively destructive and illegal. I hence recede from that part of today's opinion which retroactively thrusts into this case norms re-engineered after COCA's Tibbetts I settlement of the law that was to govern on remand.

FOOTNOTES

1 Tibbetts v. Sight 'n Sound Appliance Centers, Inc., 2000 OK CIV APP 47, 6 P.3d 1064 (promulgated 30 November 1999, certiorari denied 30 March 2000, mandate issued 15 May 2000) [Tibbetts I].

2 15 O.S.1991 §751 et seq.

3 As a term of art "jurisprudence" has two different core meanings - caselaw and legal philosophy. Black's Law Dictionary 858-59 (7th ed. 1999). When this dissent is referring to after-crafted jurisprudence, it uses the legal term in its former sense.

4 2000 OK 66, 11 P.3d 626 (a federal certified question)(promulgated 19 September 2000).

5 2000 OK 92, 19 P.3d 839 (promulgated 14 November 2000, mandate issued 2 February 2001).

6 Defendant's challenge here is collateral and based solely on the standard of manifest injustice.

7 The term "judicature" means judicial decisionmaking. Black's Law Dictionary 850 (7th ed. 1999).

8 By "rule change" I mean the change in the statutory text's construction for application to this case by today's pronouncement. The change is effected by the court's after-crafted ascription of a different meaning to the critical text of the Act and by retroactively amending the substantive law finally declared in Tibbetts I.

9 Oklahoma Consumer Protection Act, supra note 2.

10 Tibbetts I, supra note 1.

11 The 30 March 2000 order denying certiorari bears the following vote: Concur: Hargrave, V.C.J., Hodges, Opala, Kauger, Watt, Boudreau, JJ. Dissent: Summers, C.J., Lavender, Winchester, JJ. Mandate issued 15 May 2000.

12 COCA'S Tibbetts II pronouncement was by an unpublished opinion of 26 April 2002, which stands vacated by today's disposition.

According to COCA's Tibbetts II opinion (1) settled law of the case bars relitigation of plaintiffs' entitlement to an attorney's fee, (2) the record does not support defendant's argument that the quantum of awarded counsel fee demonstrates an abuse of discretion, and (3) the reviewing COCA panel was powerless to depart from the earlier settled-law command by another COCA panel's opinion.

13 Supra note 4.

14 Supra note 5.

15 Walls and Patterson clearly came to be promulgated after certiorari was denied and mandate issued in Tibbetts I, supra note 1.

16 For constitutional restraints upon legislative enactments with retroactive effect see Parts IV-VII infra.

17 Nichols v. Mid-Continent Pipe Line Co., 1996 OK 118, ¶24, 933 P.2d 272, 281; Morrow Development Corp. v. American Bank and Trust Co., 1994 OK 26, ¶2, 875 P.2d 411, 413; Panama Processes, S.A. v. Cities Service Co., 1990 OK 66, ¶11 n.27, 796 P.2d 276, 283 n.27; Mobbs v. City of Lehigh, 1982 OK 149, ¶6 n.5, 655 P.2d 547, 549 n.5.

18 The settled-law-of-the-case doctrine operates to bar relitigation of issues that are finally settled by an appellate opinion and of those that the aggrieved party has failed timely to raise in the course of appellate contest. Nealis v. Baird, 1999 OK 98, ¶61, 996 P.2d 438, 462; Barnett v. Barnett, 1996 OK 60, ¶13, 917 P.2d 473, 477; Jackson v. Jones, 1995 OK 131, ¶12 n. 37, 907 P.2d 1067, 1074 n. 37; Morrow Dev. Corp., supra note 17, at ¶2 n.2, at 413 n.2; Handy v. City of Lawton, 1992 OK 111, ¶13, 835 P.2d 870, 873.

19 See Parts II(C) and III, infra.

20 State ex rel. Oklahoma Bar Ass'n v. Minter, 2001 OK 69, ¶24 n.55, 37 P.3d 763, 774 n.55.

21 Many commentators have recognized our inability to agree upon a single concept of justice. In What Is Justice?: Justice, Law, and Politics in the Mirror of Science 1, 1, 4 (1957), Hans Kelsen, the twentieth-century legal philosopher, writes: " No other question has been discussed so passionately; no other question has caused so much precious blood and so many bitter tears to be shed; no other question has been the object of so much intensive thinking by the most illustrious thinkers from Plato to Kant; and yet, this question is today as unanswered as it ever was. .... [It relates to] which human interests are worthy of being satisfied and, especially, what is their proper order of rank?... The problem of values is in the first place the problem of conflicts of values, and this problem cannot be solved by means of rational cognition. The answer to these questions is a judgment of value, determined by emotional factors, and, therefore, subjective in character - valid only for the judging subject, and therefore relative only." See also Alasdair MacIntyre, Whose Justice? Which Rationality? 1 (1988) ("... underlying this wide diversity of judgments upon particular types of issue are a set of conflicting conceptions of justice, conceptions which are strikingly at odds with one another in a number of ways"). A similar point is made by Knut Wicksell, A New Principle of Just Taxation, in Classics in the Theory of Public Finance 72, 74 (Richard A. Musgrave & Alan T. Peacock eds., 1958) ("Each attempted solution of our problem will necessarily be coloured more or less by the general social and political philosophy of the writer, by his station in life, and by his personal sympathies and antipathies.... Justice from above to below always smacks of condescension or contempt. Justice from below to above has only too often been synonymous with revenge.").

22 At least one justice of the U.S. Supreme Court counseled more than once that the term "justice" is incompatible with the standard of due process. Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 350-351, 89 S. Ct. 1820, 1827, 23 L. Ed. 2d 349 (1969) (Black, J., dissenting). Justice Black opines in Sniadach that the "notions of justice of English-speaking peoples" or "the shock-of-the-conscience test" "represent nothing more or less than an implicit adoption of a Natural Law concept which under our system leaves to judges alone the power to decide what the Natural Law means. These so-called standards do not bind judges within any boundaries that can be precisely marked or defined by words for holding laws unconstitutional. On the contrary, these tests leave them [judges] wholly free to decide what they are convinced is right and fair." Id. In Matter of Winship, 397 U.S. 358, 377-78, 90 S. Ct. 1068, 1079-80, 25 L. Ed. 2d 368 (1970), referring to the "shock the conscience" test, Justice Black states that he would "prefer to put [his] faith in the words of the written Constitution itself, rather than to rely on the shifting, day-to-day fairness standards of individual judges." (Black, J., dissenting).

Like the term "justice"itself, conduct prejudicial to the "administration of justice," when used as a basis of prosecution for the commission of a disciplinary offense, has also met with wide criticism by scholars and judges alike for its sheer overbreadth. Oklahoma caselaw wisely requires that each act or omission charged under the rubric of "conduct prejudicial to the administration of justice" be sufficient to stand alone as a breach of professional responsibility. Minter, supra note 20, at ¶24 at 774; State ex rel. Oklahoma Bar Association v. Bourne, 1994 OK 78, ¶6, 880 P.2d 360, 361; Martha E. Johnson, Comment, ABA Code of Professional Responsibility: Void for Vagueness?, 57 N.C.L. Rev. 671, 684-85 (1979); Donald T. Weckstein, Maintaining The Integrity And Competence Of The Legal Profession, 48 Tex.L.Rev. 267, 275-76 (1970).

23 In his treatise, General Theory of Law and State (Harvard University Press, 1945), Hans Kelsen posits that justice - the ideal of a just social order - is a subjective, socially constructed judgment of value, which varies from place to place and time to time. It is not determined by means of rational cognition. "Since humanity is divided into many nations, classes, religions, professions and so on, often at variance with one another, there are a great many very different ideas of justice; too many for one to be able to speak simply of 'justice.'" Id. at 8. The doctrine of natural law claims to establish the content of justice on a rational basis, but Kelsen argues that its notion is illusory. "[N]one of the numerous natural law theories has so far succeeded in defining the content of this just order in a way even approaching the exactness and objectivity with which natural science can determine the content of the laws of nature, or legal science the content of a positive legal order." Id. at 9. See also Sniadach , supra note 22, at 395 U.S. at 350-51; (Black, J., dissenting); Calder v. Bull, 3 U.S. (3 Dall.) 386, 398-399, 1 L Ed. 648 (1798) (Iradell, J., concurring) ("The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject"). Rather than seeking "justice," Kelsen maintains that the best a society can do is establish a positive legal order that minimizes the frictions among different interests and, in doing so, establishes a framework for social peace.

24 For the U.S. Supreme Court's "fully-and-fairly-litigated" standard, see infra note 34.

25 The outer reach of a private right of action under a regulatory statute is not an infrequent subject of controversy. The U.S. Supreme Court has recently granted certiorari in a case from the Fourth Circuit which concludes that a plaintiff, if unharmed, has no private right of action. The Fifth, Ninth, Tenth, Eleventh and D.C. Circuits all held that an unharmed plaintiff may, under the Privacy Act, recover $1,000 without any proof of actual damages. Doe v. Chao, ___ U.S.___, 123 S. Ct. 2640, 156 L. Ed. 2d 656 (Mem) (2003). No matter what the Court will ultimately hold, can it be said that the circuits which espoused a contrary view reached an "unjust" conclusion?

26 As Kenneth Culp Davis notes in his Administrative Law Text at 135 (3d. ed 1972), "retroactive clarification of uncertain law ordinarily involves no unfairness. It is retroactive change of settled law, not retroactive settling of unsettled law, which may produce unjust results." Id. (emphasis added).

27 The Franco-Roman cassation model is vastly different from the Anglo-American regime. In its original post-revolutionary form, the highest French court (Cour de Cassation) lacked the power to render binding decisions. Its authority was narrowly limited to quashing the judgment and remanding the case to a lower court for reconsideration de novo. The latter court was not bound by the cassation decision's view of the law. Rudolf B. Schlesinger, Comparative Law 332-333 (1970). The original cassation model has been somewhat relaxed. Rupert Cross and J. W. Harris, Precedent in English Law 10-14. Black's Law Dictionary (7th ed. 1999) tersely defines "cassation" as "a quashing" (invalidation of judgment). Id. at 209.

28 The Franco-Roman cassation model is antithetical to the common-law maxim interesse rei publicae ut sit finis litium. The maxim means that "it is in the interest of the state that there be a limit to litigation." Black's Law Dictionary 1647 (7th ed. 1999). It is the paramount concern of the state that there be an end to litigation. Today's opinion offends this nearly 900-year-old policy of the common law. Instead of assisting in bringing about an end to litigation, the court extends the life of a forensic battle by sanctioning a retroactive change in an effective statutory norm that attained finality by the court's own failure to act in due time and course of this case's progress.

29 As a basis for departure from settled law "justice" was introduced to Oklahoma reports by early post-statehood jurisprudence. Oklahoma City Elec., Gas & Power Co. v. Baumhoff, 1908 OK 134, ¶9, 96 P. 758, 760-61, 21 Okl. 503; Metropolitan Ry. Co. v. Fonville, 1912 OK 389, ¶1, 125 P. 1125, 1126, 36 Okl. 76; Wade v. Hope & Killingsworth, 1923 OK 108, ¶14, 213 P. 549, 551, 89 Okl. 64. Because of its detrimental and distortive impact on appellate judicature as well as on the state constitutional constraints upon retrospective lawmaking, it should now be relegated to antiquarian lore.

30 The term "issue preclusion," formerly known as collateral estoppel, has been adopted by the Restatement of Judgments (Second) § 27, Comment b (1982). The use of the more descriptive term - issue preclusion - was originally advanced in the works of Professor Allan D. Vestal, Res Judicata/Preclusion, Personal Injury Annual (1969); Res Judicata/Preclusion: Expansion, 47 S. Cal. L. Rev. 357 (1974); State Court Judgment as Preclusive in Section 1983 Litigation in a Federal Court, 27 Okla. L. Rev. 185 (1974). See Underside v. Lathrop, 1982 OK 57, ¶6 n.8, 645 P.2d 514, 517 n.8; Veiser v. Armstrong, 1984 OK 61, ¶8 n.7, 688 P.2d 796, 799 n.7.

31 The purpose of issue preclusion is to "'relieve the parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and by preventing inconsistent decisions, encourage reliance on adjudication. '" Miller v. Miller, 1998 OK 24, ¶25, 956 P.2d 887, 897 (quoting Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 418, 66 L. Ed. 2d 308 (1980)); Feightner v. Bank of Oklahoma, N.A., 2003 OK 20, ¶15, 65 P.3d 624, 629-30; State ex rel. Tal v. City of Oklahoma City, 2002 OK 97, ¶20, 61 P.3d 234, 244; Veiser supra note 30, at ¶8 n.9, at 800. The issue (collateral estoppel) and claim (res judicata) preclusion doctrines are often used interchangeably because they are closely related and both promote the same general public policy concerns. Miller, supra, at ¶22, at 896.

32 "Collateral estoppel, like the related doctrine of res judicata, has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation." Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326, 99 S. Ct. 645, 649, 58 L. Ed. 2d 552 (1979). In furtherance of those policies, the U.S. Supreme Court has, in recent years, broadened the scope of the doctrine of collateral estoppel beyond its common-law limits. It has done so by abandoning the requirement of mutuality of parties (Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S. Ct. 1434, 28 L. Ed. 2d 788 (1971)) and by conditionally approving the "offensive" use of collateral estoppel by a nonparty to a prior lawsuit. Parklane Hosiery, supra.

33 Finality of adjudication process is a core concept in the Anglo-American legal system. "A fundamental precept of common-law adjudication, embodied in the related doctrines of collateral estoppel and res judicata, is that a 'right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction . . . cannot be disputed in a subsequent suit between the same parties or their privies . . ..'" Montana v. United States, 440 U.S. 147, 153, 99 S. Ct. 970, 973, 59 L. Ed. 2d 210 (1979)(quoting Southern Pacific R.R. v. United States, 168 U.S. 1, 48-49, 18 S. Ct. 18, 27, 42 L. Ed. 355 (1897)); Feightner, supra note 31, at ¶15, at 630; Daniel v. Daniel, 2001 P.2d 117 ¶14, 42 P.3d 863, 869; Fent v. ONG, 1994 OK 108 ,¶11, 898 P.2d 126, 132. Issue preclusion is invocable to bar relitigation of both issues of law and issues of fact. United States v. Stauffer Chemical Company, 464 U.S. 165, 170-71, 104 S. Ct. 575, 578, 78 L. Ed. 2d 388 (1984).

34 Parklane, supra note 32, 439 U.S. at 332, 99 S. Ct. at 652; Miller, supra note 31, at ¶28, at 898; Fent, supra note 33, at ¶15, at 133; Veiser, supra note 30, at ¶16 n.21, at 802. In Standefer v. United States, 447 U.S. 10, 24, 100 S. Ct. 1999, 2008, 64 L. Ed. 2d 689 (1980), the Court noted that in cases like Blonder-Tongue, supra note 32, and Parklane, supra, which dealt with disputes over private rights between private litigants, "no significant harm flows from enforcing a rule that affords a litigant only one full and fair opportunity to litigate an issue, and [that] there is no sound reason for burdening the courts with repetitive litigation." (emphasis added).

35 National Diversified Business Services, Inc. v. Corporate Financial Opportunities, Inc., 1997 OK 36, ¶11, 946 P.2d 662, 666-67 (issue preclusion operates to bar from relitigation both correct and erroneous resolutions of jurisdictional and nonjurisdictional challenges); Fent, supra note 33, at ¶15, at 133; Veiser, supra, note 30, at ¶18, at 802; 18 Wright, Miller & Cooper, Federal Practice and Procedure § 4403 at 17 (2d ed. 2002).

36 See supra note 1.

37 The terms of Rule 1.16 (Mandate), Oklahoma Supreme Court Rules, as amended 16 June 2003 (2003 OK 62), 12 O.S. Supp.2003, Ch. 15, App. 1, provide in pertinent part:

In every appeal or petition to review any order of a district court or other tribunal, a mandate will be issued to the lower court or tribunal on order of the Chief Justice upon conclusion of the matter on appeal. The mandate may be issued seven (7) days after the filing of an order denying certiorari or rehearing in the Supreme Court, or immediately upon expiration of time to file a petition for writ of certiorari or petition for rehearing, and disposition of any timely filed post-decisional motion. No mandate is issued upon conclusion of original actions, questions certified by federal courts, bar disciplinary matters, or original proceedings on initiative or referendum petitions.

The terms of Rule 1.181 (Denial of Petition for Writ), Oklahoma Supreme Court Rules, 12 O.S. Supp.1997, Ch. 15, App. 1, provide:

When a petition for writ of certiorari is denied an order shall be entered to that effect and the mandate shall issue. If writ of certiorari is denied, no petition for rehearing may be filed in the Supreme Court. See Rule 1.13.
(emphasis added).

Fent, supra

The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma . . . .

Judicial actions may fall under three rubrics - adjudicative, legislative and executive. The U.S. Supreme Court applies a functional test to immunity questions. When judges adjudicate they have absolute immunity; when they legislate they have legislative immunity and when they act as executives, they have only executive immunity. In Supreme Court of Virginia v. Consumers Union of the United States,

The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute.
(emphasis added).

A proceeding begun under applicable norms of substantive statutory law (or common law) then in force remains unaffected by after-enacted legislative changes (or those effected through the process of judicature). In First Nat. Bank of Pauls Valley v. Crudup,

The Legislature shall have no power to revive any right or remedy which may have become barred by lapse of time, or by any statute of this State. After suit has been commenced on any cause of action, the Legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit.
(emphasis added).

Neither the legislature nor the courts can impair a substantive right by retrospective legislation or by after-promulgated judicature. Hedges v. Hedges,