Tibbetts v. Sight 'N Sound Appliance Centers, Inc.

matter of defendant acted disagreement. without bona fide Judgment on that claimwas hence defendant's due. an honest and wages sincere belief that owed, contrary claimed were not but on the 127 THE COURT OF APPEALS CIVIL legally summary adjudica sufficient for VACATED; OPINION IS THE TRIAL favor, tion of this issue defendant's The COURTS JUDGMENT IS AFFIRMED. retirement bank clause and the reimburse Agreement

ment clause of the per could be WATT,C.J., LAVENDER, 1 28 ceived as in conflict if viewed within the HARGRAVE,KAUGER, SUMMERS, previous context of contracts and the sick BOUDREAU, WINCHESTER, JJ., policy.25 leave reimbursement The school concur. single

district did plaintiff deny out leave, payment HODGES, him J., for sick but tendered dissents. evidentiary indicating material consis

tently calculated sick payments leave in con

formity policy with the board and its inter

pretation Agreement. of the We hence

agree with judgment the trial court that liquidated damages issue was defendant's due. 2003 OK 72 TIBBETTS, Olds, Mary Paul Erwin Dit

y temeyer, Mary Pittman, on behalf of similarly themselves and all others situ SUMMARY ated, Plaintiffs/Appellees, ' employment 26 The contract between de- fendant and its teachers for the 2000-2001 'N SIGHT SOUND APPLIANCE CEN year school governing contains two clauses TERS, INC., Corporation, an Oklahoma accumulated, disposition unused sick Sight 'n Warehouse, Sound & Cost d/b/a applicable leave. The clause plaintiff pro- Defendant/Appellant. (10) vides that teachers with at least ten 96,079. No. years of consecutive service in Okmulgee Public Schools shall be upon reimbursed re- Supreme Court of Oklahoma. per tirement at their diem rate for Sept. days accumulated, all unused sick leave in (120) twenty excess of one days. hundred As Sept. Corrected Plaintiff worked for the school district for at (10) years least ten consecutive and accumu- sixty-five

lated one hundred and one-half

(165%) days of unused sick leave. He is

hence entitled to forty- reimbursement (45%)days.

five and one-half Defendant has

paid (18) plaintiff eighteen days. We today affirm the trial judgment court's plaintiff

defendant owes monetary value remaining twenty-seven and one-half (27%)days per rate, diem

$5,614.68. plaintiff's As liquidated claim for

damages, we hold that defendant's refusal to plaintiff

reimburse for all the sick leave the

latter claimed he was owed was based on a Conceding today's that the two holding clauses in the contract litiga- that in the context of this perceived as in conflict does not discredit tion should not be so viewed. and Luke Wallace Humphreys

David OK, Tulsa, Humphreys, Humphreys Wallace LaMu- LaMunyon of Faulkner & and Justin OK, Plaintiffg/Ap- P.L.L.C., Enid, for nyon, pellees. Rieman of Gun- C.

Craig L. Box and Julia Devoll, P.C,, Jackson, &Box goll, Collins, OK, Defendant/Appellant. Enid, J.; LAVENDER, judge erred if the trial here 1 1 We decide $375,000.00 attorney fees to awarding suit in their class action plaintiffs/appellees Sight 'n defendant/appellant, brought against Centers, Inc., Sight 'n Appliance Sound d/b/a the Okla- under Warehouse & Cost Sound (OCPA), 15 Act Protection homa Consumer amended.1 We ©.S.1991, seq., § as 751 et erred, and the Court judge the trial hold mistakenly (COCA), I Division Appeals Civil attor- only reasonable affirmed, because fee, plaintiffs seek- is no ney in this case recovering solely money damages, but ing (ie., nothing) jury ver- via a damages zero Sight 'n Tibbetts also overrule dict. We (Tibbetts 1), Centers, Inc. Appliance Sound (cert. 6 P.3d APP 2000 OK CIV COCA, 3-30-00), Division IV prior denied case, wrong- it as involving the same opinion may recover private ly these held merely by case in this OCPA attorney fees without OCPA showing a violation et as amended. Consum- 0.$.2001, of the Oklahoma at 15 version seq., found 1. The current (OCPA), course, may Act er Protection showing damages inju- attendant or actual tion of both fact and [Christian law issues ry. 10, ¶ 43, Gray, 2008 OK 65 P.3d ruling 608] and abuse occurs when the be T2 This Court's decision in Walls v. Amer- ing reviewed is based on an erroneous le Co., ican Tobacco 2000 OK 11 P.3d gal conclusion or there is no rational basis Beall, shortly by followed Patterson v. in the evidence for the decision. Fent v. 19 P.3d held for a Gas, Co., plaintiff to have a Oklahoma Natural claim viable under the 2001 OK ¶ 12, 477, 481; Tisdale, 27 P.3d Abel v. plaintiff OCPA the must show as an essential (reversal claim, ie., element damages, of the actual injury proper abuse of discretion plaintiffs argue judge fact. To the if trial extent clearly I is the makes case such that the erroneous conclusion and propriety evidence). attorney judgment, of at against least some fee award reason and challenged not now be have Further, assigned when an er been prevailing/sue- determined to be the ror is one of law a de novo review standard I, parties by cessful Tibbetts we hold an applies Gray, supra, [Christian v. exception to the law of the case doctrine ¶ 608], non-deferential, 65 P.3d at applies palpably erroneous plenary independent review of the trial gross injustice and a or manifest would be legal ruling. court's Samman v. Multiple done were we to allow the award for fees to ¶ 8 Fund, Injury Trust 2001 OK and n. clearly stand when it not authorized 33 P.3d Though normally 305 and n. 5. plaintiffs and pre- cannot be deemed to have reviewing when the reasonableness of an at vailed nothing. because recovered torney appellate fee award an court affords PART I. STANDARDOF REVIEW. judge's the finding(s) trial much deference 13 What a constitutes reasonable because of the inquiry nature of the factual attorney fee is a matter addressed to the into the factors delineated in State ex rel. sound discretion of the trial court to be Burk City City, supra, Oklahoma in of decided based on various factors and a that here overriding the and critical factor of judgment awarding attorney fees will not the undisputed results obtained is and leads be reversed absent an abuse of discretion. only to one rational conclusion as to what a Gas, Continental Natural Inc. v. Midcoast (ie., fee), reasonable fee should be the Gas, Inc., Natural APP CIV ultimate decision this case turns on a 1185, 1188; 985 P.2d see also State ex rel. question of law. Burk v. City City, Oklahoma (review standard is PART II. PROCEDURAL AND FACTU- abuse discretion when reasonableness of AL BACKGROUND. attorney fees appeal). awarded is issue on general matter, As a an abuse of discretion 15 The Pre-Trial Conference Order (PTO)2 appellate review standard includes examina- filed in August the lower court 5(I) issues, 2. Rule ing of the Rules for legal District Courts of including the factual and de- Oklahoma, 0.$.2001, Ch.2, App., Rules 1 et presented. tails of material evidence to be The amended, seq., provides: present questions order shall also all of law in marked, any I. Pretrial-Orders. After the case. All conference exhibits must be listed rule, pursuant held pretrial to this and identified order shall be order. If there is reciting entered the action This taken. order objection to the admission exhibits, the subsequent shall control grounds objection course of the action for the specifically must be subsequent unless modified a order. proper objection, The stated. Absent the listed ex- following pretrial order a final conference hibit is admitted when offered at trial or other only prevent shall be modified proceeding. to Attorneys parties manifest ap- for all will injustice. adopted by The form prove the Oklahoma presented the order. The order shall be Supreme pretrial Court for conference signature. orders to the District Court for The con- shall be used the District pretrial Court. If the supersede tents of the order shall the form, judge deviates pleadings from the he govern or she shall in the trial of the case writing show to the departure Court the rea- permitted by unless therefrom is the sons for such deviation. injustice. to manifest prevent Proposed pretrial order shall pretrial include the results of (Emphasis order shall not be filed. the regard- body.) conference and advice to the court added to relief-i.e., compensato damages-both tary defen contended plaintiffs indicates attorneys, plaintiffs' ry punitive. Two of 758(8), OCPA, § violated conduct dant's attorney effect, at the their view voiced (12). prohibited (9) 12 details Subsection I, remand from hearing held after advertising, ac switch bait and conduct injunctive permit not does that the OCPA con of behavior forms various companied action and the private consumer in a relief product selling supplying cerning not injunctive relief was abandoned. request 9, respective 8 and Subsections advertised. knowingly or advertising, unlawful ly, tried, jury declare case was T6 After the know, intent product three with provided law and on the reason to instructed not intent verdict form or with a defendant's it as advertised verdict forms: to sell public de jury reasonably expected to find the allowed the generally supply the defendant; plaintiffs' limitation of in favor the ad discloses issues unless mand case, pre Basically, plaintiffs' allowing jury quality.3 generally form verdict fix the plaintiffs and to the advertis jury, in favor of the find centered sented sets, whole; then but Magnavox television ing damages to the class as amount brand damage to another Nine steering the customer verdict form. punitive and a jury I, 2000 OK signed television, ie., members Goldstar. 1066-1067.4 6 P.3d at form, APP unequivocally CIV fixed but verdiet peti initial October Although plaintiffs' nine The same damages at zero. amount of prohib damage verdict injunctive jurors signed punitive relief to requested had tion punitive amount of it fixed the form and continuing violate from it defendant verdicts Based on these damages the subse at zero. OCPA, controlled PTO-which defendant jury found must assume action-unequivocally we course of quent OCPA, violation of the engage in some did solely mone sought forth sets subject take orders for August d. refusal to provision existed The identical delivery (PTO) for transaction advertised consumer not- Order Trial Conference the Pre when time, a reasonable within court. in the trial text was filed ed in the demonstrating sub- showing defective or 5(D). e. 0.$.1991, Ch.2, App., Rule the seller transaction which ject a consumer of impracticable the for unusable or knows is (12) 753(8)(9) § and O.S.8upp.2002, 3. Title 15 advertisement, in the purpose set forth provide: subject deposit of a accepting a the f. practice which is engages a person in A charg- subsequently and transaction consumer ... item, [OCPA] under the to be unlawful declared higher priced or buyer ing the business, of the course of the g. to deliveries failure make when, person's willful person: the within subject transaction of a consumer otk work therefor a refund time or to make reasonable Advertises, knowingly to or with reason purchaser|{.] 8. request of the upon the know, subject PTO, transaction of a consumer the Conten- August [sic] Plaintiff's advertised; (12) tions, 752(8), (9) it as not to sell OCPA. with intent of the § cites to Advertises, to knowingly with reason or of the OCPA. 9. definition section 752 is the Section know, subject transaction typographical of a consumer er- Obviously, the PTO contains the related) reasonably expected (or supply provisions ror, intent not to switch with bait and as the (12) demand, (9) 753(8), dis- § advertisement public unless the in are found sued under setting quantity; out defen- part PTO limitation of of the closes a the OCPA. The correctly to # ok k refers Defense Grounds For dant's advertising, subject of amend- Employs and switch" 753 was the § "bait Section 12. 753. trial subject filing initial to sell the the of an offer ment after which consists jury and after petition the seller does October 1994 which in transaction court a consumer quote sell, advertising early We from accom- in trial was held to not intend pertinent subsec- following prac- as the Statutes 2002 Oklahoma panied by or more of one See 1996 in 1994. same as tions remain tices: Laws, 3; Sess. § Okla. Ch. subject Sess. of a consum- Okla. a. refusal show advertised, Laws, Ch. Sess. § 2001 Okla. 3; er transaction Laws, Ch. Laws, § 1; Ch. Sess. subject 2002 Okla. advertised disparagement of the b. sale, the terms transaction a consumer as all class certified PTO identifies oth- 4. The tie-in sales or requiring undisclosed c. Televi- 25" Goldstar purchased 19" or that prior to those met to be conditions er undisclosed January between defendant sions from subject a consumer selling advertised through December transaction, plaintiffs carry but that failed to their burden on the case. We also note the record is any damages.5 Judgment to show was en undisputed plaintiffs' agreement that judge, awarding plaintiffs tered the trial attorney their counsel as to fees ais contin- nothing. attorney The issue of fees was geney-based agreement, i.e., plaintiffs have proper application. reserved for responsibility pay their counsel attor ney Further, nothing fees as was recovered. sides, plaintiffs defendant, T7 Both Findings of Fact and Conclusions of attorney judge moved for Law fees and the trial (FF/CL) requests. accompanied denied appealed both Each side the trial court COCA, "Judgement" awarding the denials and the Division in IV fees under re I, effect, view, language decided that indicates that the amount in controver 761.1(A) employed §in OCPA allowed sy clearly established, in this case was never plaintiffs attorney merely by to recover but would not fees per have exceeded $25.00 class showing a violation of the OCPA without an member, a sum that would not have exceeded showing damages inju attendant or actual $500,000.00for the class as whole. Evi ry. judge Tibbetts I remanded for the trial presented attorney dence at the hearing, fee attorney determine the amount of fees. however, seems plaintiffs sought to reveal This quest Court denied defendant's for cer- about 1 million in compensatory dollars dam I, tiorari to review Tibbetts re matter ages i.e., jury, from the apparently about court, turned to the trial and after various per class member. $50.00 parties written concerning submissions of the attorney appealed Defendant evidentiary issue and an the award and the hearing, COCA, judge affirmed, the trial entered the though ap award of Division $375,00.00 plaintiffs peared favor of recognize now before holding Tibbetts I's us.6 plaintiffs attorney were entitled to fees merely because bad shown a violation of $375,000.00 18 The fee was arrived at longer good light OCPA was no judge upon the trial a determination that the Walls, this Court's supra, decision amount of attorneys' reasonable effect that an essential element of time was 3000 hours and that a reasonable hourly damages. OCPA claim is actual lawyers Division rate for the I's involved was an average per hour.7 $125.00 opinion Plaintiffs at powerless determined it to re torneys I, initially sought essentially had verse Tibbetts over million in deference to attorney dollars in doctrine, fees and the record con law of the case and decided the attorneys may tains evidence that said actu amount awarded did not manifest an abuse of ally spent have attorney's 7000 hours in time previously granted discretion.8 We certiora- Nothing jury's 5. definitively in the verdict attorney reveals certiorari-related fees and remanded to the extent to hearing found defendant to have the trial court proper as to the challenge violated the OCPA nor amount. does the decision in Defendant does not Tib said Or- and, Centers, Sight der Appliance appeal betts v. here as we read 'n Sound its merit Inc. briefs submissions, and certiorari (Tibbetts I), it does not seek re- 2000 OK CIV 47, APP 6 P.3d 1064 $3,108.75 (cert. 3-30-00). versal of representing appellate the denied attorney Also, fees associated with Tibbetts I. record, we view appellate attorney the the fees 7, "Judgement", 6. The trial court's March 2001 specified in the are not included in the FF/CL $375,000.00 awarding plaintiffs in addition to in $375,000.00, figure being separately the latter defendant, attorney against fees awarded them specified "Judgement". in both the and FF/CL $39,910.95 in costs. As we read its and appeal submissions, appeal certiorari neither on nor judge's 7. The trial also make it clear he FF/CL certiorari does defendant seek reversal of costs applicability considered the of other factors de- Further, judge's Findings awarded. the trial of Center, Sports lineated in Oliver's Inc. v. National (FF/CL)(that Fact and Conclusions of Law ac- Co., 120, Standard Ins. 1980 OK 615 P.2d companied "Judgement") set out City City, and State ex rel. v. Burk Oklahoma of parties stipulated appellate that reasonable attor- 115, 1979 OK 598 P.2d 659. ney fees and prior ap- costs associated with the I, 5, peal $3,108.75 supra, in Tibbetts note were opinion 8. Appeals of the Court of Civil also $558.00, respectively, 0.$.1991, and same 30.14(B) and were affixed § cited 20 for its lack of at said amounts. In this 30, Court's March to reexamine I, Tibbetts note 5. authority supra, denying 0.$.2001, 30.14(B)-as Order certiorari in Tibbetts I this Court § Title 20 the 1991 ver- granted plaintiffs' appeal-and also did-provides motion for pertinent part: sion in consider We now nothing recovered. opinion, was the COCA's vacate we now ri and judgment issue. the reasonableness court trial reverse plaintiffs attorney in $375,000.00 fees favor $11 has foreshadowed This Court I. Tibbetts overrule have in case for we proper decision REASONABLE III THE ONLY PART relationship importance of the recognized the CASE, IN THIS FEE ATTORNEY in a sued for case seek- amount between the SOLE- SOUGHT PLAINTIFFS WHERE damages results only money and the ing AND RECOYV- DAMAGES LY MONEY Telephone Co. Bell Southwestern obtained. NOTHING, FEE. IS NO ERED Inc., Control, 16, 787 1987 OK Parker Pest review that our first note 110 We 1188-1189; see also Arkoma Gas P.2d awarded the fee reasonableness of the Engineering Corp., v. Otis Co. case of the exception to the law requires no (what is a reasonable P.2d 394-395 decide I did not because doctrine must be considered attorney in each case fee Generally, applica issue. reasonableness pre- plaintiff to which light in of the extent pro here, case doctrine law of the ble vailed). course, is no Although, of there decision on appellate court's vides applied can be formula which mathematical case onee the law of the of law becomes issue reason- gauging every situation as final, stages subsequent in all the decision considering the rela- a fee when ableness Estate Se litigation. Matter amount sued for tionship between To verns, view, recovered, in our no ration- the amount doctrine of the case apply the law properly $375,000.00 can be made that argument al must appeal in the second court appellate when coun- attorney is reasonable fee award appellate deci exactly the first what decide monetary absolutely relief sel recovers impliedly. expressly determined sion approxi- the suit seeks for the client where Freeman, 1998 OK Estate Shoemaker only monetary dollars, and mately 1 million ¶ I decid only reasonable sought. The relief is 761.1(A) language that certain ed law, all. here, no fee at matter of as a their recover allowed OCPA in a showing involvement attorney fees Supreme Court States The United some with defendant transaction covered 103, 113 S.Ct. Hobby, 506 U.S. Farrar v. part on defendant's of the OCPA violation (1992), faced with 121 L.Ed.2d showing of without regard thereto In Farrar analogous situation. somewhat I, CIV damages. Tibbetts actual dollars, but sought 17 million plaintiff 119-10, 1066-1067. 6 P.3d at at APP one amount of only the nominal was awarded impliedly expressly nor neither Tibbetts I 106-108, 566.9 118 S.Ct. 506 U.S. dollar. attorney fee would a reasonable what decided $280,000.00 were awarded Attorney fees case, the trial it direct nor did in this court, federal Circuit trial but what way as to any particular judge in 118 S.Ct. Id. at reversed. factors in reach give appropriate weight review, although the Su Upon certiorari on remand. reasonableness issue ing the plain rights that a civil preme decided Court it Furthermore, kept in mind that it must be the party" under "prevailing tiff was attorney plaintiffs' undisputed here that is attorney [42 fee statute federal applicable was contin- their counsel agreement with a one he obtained because 1988] U.S.C. ie., plaintiffs their counsel owe geney-based, award, reversal damages nominal case as dollar bringing this attorney fees for Hobby, U.S. plaintiff Farrar v. in Appeals 9. The initial Civil of the Court of Each division (1992), authority act shall 121 L.Ed.2d of this 113 S.Ct under the convened jurisdiction determine or otherwise have co-administrators having trial, died prior any assigned Su- to it dispose plaintiffs. case substituted as estate were of his final, when the co- decisions, its 566. One of Court, and 113 S.Ct. U.S. at preme Supreme appealable to the shall be neither plaintiff the case in in was also administrators subject an- to reexamination nor be Court n. at 106 and capacity. 506 U.S. personal his Appeals Civil or of the Court of other division 113 S.Ct. sitting bane. Judges Court en of that of the fee arguments fully award was affirmed the Su- with these more in PART preme IV, Court. infra, they point because do out the stark reality we are faced with in this that case doing, Supreme 18 In recog so plaintiffs prevail they did not and were not nized that in deciding the most critical factor However, parties the successful in this case. the reasonableness of a fee award is the Farrar, a few comments are in order here. degree supra, of success obtained. [quoting at 506 U.S. 118 S.Ct. 566 Hens off, appeal 15 First the record in this is Eckerhart, ley v. 461 U.S. 108 S.Ct. any not at all that stopped clear defendant (1983)]. Although 76 L.Ed.2d 40 not offending conduct virtue of this lawsuit. adopting the view that fees would never be Surely, nothing glean we from the record appropriate plaintiff only when a recovers mandates defendant's future conduct one damages, nominal Court made way Second, merely or the other.11 showing that, plaintiff only it clear "[when recovers some violation of the OCPA cannot be damages nominal because of his failure to deemed success in conventional sense prove an essential element of his claim for only sought money when the relief was and monetary only ... relief reasonable fee is recovered, nothing ie., merely showing usually Farrar, supra, no fee at all." was, view, damages violation without in our Considering U.S. 118 S.Ct. 566. nothing hollow, victory more than a technical degree present in success arguments at best. regard Plaintiffs' in such case makes it that obvious no fee is warrant justify attorney do not fee award or ed, they were awarded none of the relief transform it into a i.e., Again, reasonable award. they sought, solely they sought money, only plain reasonable award in view of damages. but were awarded A zero more lack poignant tiffs' of success is no fee. example of a lack of success would imagine.10 be hard to PART AN IV. EXCEPTION TO THE effect, Although plaintiffs, argued in THE LAW OF CASE DOCTRINE IS AP- try the trial court and to convince us here PLICABLE HERE AND WE OVERRULE that by achieving succeeded in this case TIBBETTS AS INCONSISTENT WITH goals uncovering violation of the PATTERSON, AND WALLS SUPRA. (in fact, obtaining jury OCPA verdict that 116 Even when the law of the case OCPA) way defendant in some violated the applicable, doctrine applied, it will stopped and defendant have the viola- i.e., exception, prior there is an if the decision lawsuit, tive conduct because of the such palpably erroneous this Court is con arguments simply cannot sustain the attor- vinced failure to ney reverse will fee award before argu- us. Plaintiffs' result gross injustice. regard manifest ments such are a Cinco Enter means to assert Benso, prises, legislatively ¶ 11, Inc. v. OCPA was intended as a private 1080, 1085; attorney general Roberts, scheme Severson v. "catalyst" and that their suit Further, was a for defen- OK excep voluntary change dant's of conduct. We deal application tion to of the law of the case 10. Even if simply we assume [cit correct 11. The record does not reveal that defen- ing relying Sight on Brashears v. 'n Sound changed any response dant conduct Centers, Inc., 1999 OK CIV APP Appliance presented instant suit nor have we been with a ¶ 16, 981 P.2d 1270, 1274] dam monetary finding regard. Although trial court in such one ages may be awarded in a OCPA case for plaintiffs' attorneys hearing testified at the things such as loss of time, inconvenience, attorney changed part fees defendant of its telephone expenses, damages travel and no such advertising point scheme at some after this law- jury were awarded the now unassailable ver suit instituted, it would be pure speculation plaintiffs' damages dict that assessed at zero. part, given present- on our the state of the record plaintiffs The bottom line in this case is that the appeal, ed in prompted to determine what only legally were unsuccessful on the viable fact, change. plaintiffs' such In another of attor- they jury, claim asserting tried before the a claim neys testify attorney hearing seemed to at the they fee monetary damages. were entitled to recover attorney brought that No fees he did not know if the lawsuit are warranted in such a situa about any change tion. company. at defendant

1051 Act; in thing than a violation more injustice gross or manifest on doctrine based private claim under the a stead for viable of attor award where may be warranted must show dam consumer actual by any law. OCPA clearly not authorized ney fees is the necessary element of a claim. 2000 ages as a Band Inc. v. Citizen Enterprises, L C & 629-630; 119-18, at see Oklahoma, P.3d 2002 OK at Tribe Potawatomi of Patterson, supra, 2000 OK at 11 30- also ¶¶ 20-21, believe P.3d We (third plain a element of 19 P.3d at 846 gross or manifest and a erroneous palpably under the OCPA is that private tiffs action to use the were we injustice be done would fact; injury private consumer suffered uphold this attor to case doctrine law of the only aggrieved "an right granted action to of I. on Tibbetts ney award based consumer", thus, aggrieved a to consumer be reality 117 The ultimate damages defen as a result of must sustain they not prevail and were plaintiffs did jury verdict practice). dant's unlawful in this case because parties the successful conclusively plain a failure of manifests here element an essential they failed to show tiffs on such front. Walls, pri claim, ie., damages. supra, their plaintiff a fails to show 118 Where meaning term marily based of a claim a suit for in an essential element contained consumer" "aggrieved reasonably be asserted damages cannot words T61.1(A), plain import of the § it so plaintiff has been successful. We con that the damages" also "actual "damages" and Owen, 1977 OK ruled in Sloan v. therein, analysis of a historical tained action, 761.1(A) negligence where we held § after our decision to amendment jury verdict similar to that Echeverria, that based on a in Holbert here-i.e., fixing finding but for (that the then rejected the notion P.2d 960 pri recovery at allowed zero OCPA the amount of existent version under the to re of action were not entitled damages-plaintiffs cause vate individual 0.S.1971, § 928 as Le., their costs under monetary damages, cover Act), that actual held par element of the they essential deemed the successful injury, was an could not be actual necessarily they failed to claim as ties on the the OCPA. action under private right of ¶¶ 10-13, at Walls, negligence because establish actionable abundantly clear element of made show an essential Walls did not 629-630.12 claim, resulting from de injury proximately 761.1(A), using § language Owen, duty. Sloan v. person fendant's breach "aggrieved consumer" as term present In our supra, 579 P.2d at 818-814. right bring pri given the having been case, put form over substance it would damages under the for right of action vate prevail- OCPA, actually plaintiffs to be the to show some requires the consumer consider nonprevailing party to re- ordering 0.$.2001, 761.1(A) such ment provides: § 12. Title party not to prevailing an amount imburse practice act or The commission A. ($10,000.00) for Dollars Ten Thousand of the Consumer exceed to be a violation declared liable render the violator including Act shall Protection fees, in- costs, reasonable attorney's payment of aggrieved for the consumer respect or defense. to such claim curred with added.) damages the customer sustained actual (Emphasis including litigation attor- reasonable costs of 761.1(A) § portion is not in- The non-bolded fees, aggrieved shall ney's consumer although even situation, volved present damages, right private action for have point in seems to portion the subsection to, including costs and attor- not limited but to have individual that for a the direction damages ney's any private action for fees. damages must under the OCPA a viable claim Act the Consumer Protection a violation of for begins "[in thereof first sentence shown as the shall, subsequent adjudication on the court damages a violation of any private action prevailing upon motion of the merits and (Emphasis Act...." Consumer Protection defense a claim or determine whether party, changes added.) that no relevant We also note nonprevailing party by a in the action asserted 761.1(A) § since this lawsuit been made to have ground- well faith, was not was asserted in bad 1994, although non-pertinent amend- was filed in fact, existing or was unwarranted ed in generally § See 761.1. made extension, have been ments argument good for the faith or a modification, 134; Okla.Sess.Laws, § Ch. existing law. reversal Ex.Sess., Okla.Sess.Laws, Ch. 1st judg- finding, Upon the court shall enter so TI 20 Plaintiffs' contention that the OCPAis ing parties they or successful as recovered nothing from defendant. private attorney general a statutory scheme they and that should be to recover allowed essence, plaintiffs In the con attorney fees here because somehow "private attorney tend that is a OCPA public right, simply vindicated a wrong. general" statutory scheme that allows the Walls, recovery attorney merely upon Again fees a it is supra, that reveals the (even showing of a violation of the Act fallacy plaintiffs' pri contention. For a shown) though damages no and that the plaintiff vate action to succeed the must Legislature recovery sanctioned such of at T61.1(A) prove damages. §in Nowhere is it torney private litigants fees in favor of who attorneys indicated are entitled to be implement public policy behind the compensated merely showing for some viola thereby encourage private litiga OCPA and tion of the damages OCPA that caused no to legislatively recognized public tion to benefit a particularly their clients. This is true where words, in plaintiffs terest.13 other con attorneys nothing clients owe the because 761.1(A) Legislature § tend the authorized attorney/client agreement fee is contin- attorney fees, the award of without the show [i.e., geney-based percentage any recov ing any damages any or the award of ery], recovery relief, and is zero.14 tangible other based on the view a private litigant by bringing light conduct Further, under it OCPA is the provides general violative of the OCPA Attorney Oklahoma General or a district at public large. benefit to the We do not torney relief, seek coercive such as way read the statute in such and injunction 756.1], public [§ to vindicate theory regard in such is inconsistent with our rights Walls, companies to see to it pronouncements do not in both Patterson, supra. provisions violate the of the OCPA.15 Plain rejected 13. The United States nothing cause was recovered, we need not defini- fees, "private attorney gen tively authorization of a attorney decide in this case if in some eral" encroachment on the American Rule con amount, 761.1(A)'s § would be allowable under cerning propriety recovery attorney language (Le., in a similar situation to that here shown, against opponent Alyeska Pipeline found) fees one's damages violation is but no actual attorney agreement something and the Service Co. v. Wilderness U.S. Society, (1975). gen 95 S.Ct. 44 L.Ed.2d 141 contingency-based. We other than erally stated the contours of the American Rule City in State ex rel. Moshe Tal v. Oklahoma 0.$.2001, 756.1, 15. providing Title 15 ¶ 16, City, 2002 OK 61 P.3d brought by plain- same as when this lawsuit was follows: 1994, provides: tiffs in Oklahoma follows the American Rule as Attorney A. The General or a district attor- recovery attorney fees. The Rule is ney may bring an action: generally litigant pays that each for their own declaratory judgment 1. To obtain a that an legal representation and our courts are without practice act or violates the Consumer Protec- authority attorney to assess fees in the absence tion Act; specific allowing aof statute or contract enjoin, restraining 2. To or to obtain a or- Co., recovery. Kay their v. Sun Oil violated, Venezuelan against person der who has is vio- Exceptions 806 P.2d lating, likely or is to violate the Consumer narrowly the Rule are [id.] defined and carved Act; Protection great out with [Beard Richards, caution damages 3. To recover actual and, conduct, penalties because case of unconscionable 816] liberality attorney act, understood fee awards provided by aggrieved behalf of an against non-prevailing party chilling consumer, has a only, in an individual action open guarantee. effect Act; on our access to courts violation of the Consumer Protection or Id. expenses 4. To recover reasonable and in- firmly This Court stands vestigation committed to the Ameri- fees. instigating continuing B. In lieu of can Rule. Echeverria, Holbert proceeding, Attorney action or General or attorney may accept judg- a district a consent conclusively In that the respect record in this matter practice ment with act or de- agreement shows the fee between clared to be a violation of the Consumer Pro- contingency-based plain- their counsel was judgment tection Act. Such a consent shall attorney tiffs owe provide fees to their person counsel be- for the discontinuance (2001). that Supreme There the Court held effect, conceded attorneys, in tiffs voluntary induced party not a whose lawsuit hearing the OCPA does attorney that fee change in conduct was not the defendant's private action. in a injunctive relief permit attorney pro prevailing party under the attorney fee this we to allow 122 Were Housing Amendments Act visions of the Fair private plaintiffs' based on to stand award (42 § seq.) 8601 et or the of 1988 U.S.C. ruling theory, a would such attorney general (42 Act with of 1990 Americans Disabilities Walls, supra, completely at odds be seq.), no 12101 et because there was U.S.C. requires the OCPA made it clear where we judgment on the merits or court- enforceable an essential damages shown as be actual decree that somehow ordered consent claim in order to private OCPA element of changed relationship parties between "aggrieved into an a consumer transform actually way that defendant was such Walls, if ruling in not ex- Our consumer". by judicial required something sanc to do A is necessarily implies that OCP pressly, course, re Although, of we are not tion. em- that envisions or scheme not a deci quired to follow the Court's theory. attorney general bodies a OCPA, in this law case under the sion State argue entitlement also 123 Plaintiffs judgment or we hold that here without some argument that attorney fees based on changed judicial decree that has the relation changed its conduct might have defendant is ship parties between the so defendant effect, plaintiffs In this lawsuit. because of i.e., judicially required something, some to do theory support "catalyst" arguing a judgment, plaintiffs cannot be enforceable fees, obtaining attorney without recovery of prevailing parties be the successful or said to against defendant judgment any enforceable attorney fees. There to an entitled award legal relationship of the changes the judgment in this case is no such enforceable Supreme Court parties. The United States anything. requiring defendant to do theory rejected catalyst of attor recently accept Very simply, were we to recovery in Buckhannon Board and ney fee affir- arguments support Home, Virginia Depart Inc. v. West Care Resources, award, Human trans Health and the fee we would be ment of mance of something it forming into 149 L.Ed.2d 855 the OCPA U.S. S.Ct. by person any practice declared to be a any practice entering de- the same of act or Act; Protection violation of the Consumer of the Consumer Pro- clared to be a violation judgments may Act, as stipulation 2. such orders or may for Make include a

tection compensate any person necessary for by be person of reasonable ex- payment such investigation penses damages fees incurred sustained; judgments may attorney. Make such orders or Attorney 3. a district General or necessary carry ac- stipula- out a transaction in judgment may be also include consent expecta- person with consumers' reasonable cordance to be made such tion for restitution money, property or other to consumers tions; Appoint order or receiver or things in con- master received from such consumers prevent and also sequestration with a violation of this act the use or nection of assets to through illegal proceeds enjoyment derived specific perform- may stipulation include a expenses of a master or pur- and assess the Any judgment means consent entered into ance. not be deemed to suant to this section shall against defendant; receiver violation, any or autho- Revoke license certificate its unless it does so admit engage rizing person to in business in any judgment entered terms. Before consent state; effective, pursuant be into to this section shall any engaging Enjoin person from approved by be the district court it must required entry manner made thereof in the an state; in this or business appropriate entry judgment. 7. Grant other relief. making Once such received, Con- is filed under the any D. When an action approval of the condi- breach attorney or a district judgment sumer Protection Act shall be treated tions of such consent seeking action General, be order, of a court and shall Attorney as a violation declaratory judgment injunction shall be provided or subject penalties to all the any county in this state or district therefor. filed in other upon or occur- Attorney the same transaction brought by Gen- based C. action occurrences, rence, or may: of transactions attorney, series the court eral or a district of the first allegations the basis judgments which form such orders or 1. Make necessary employment action filed. prevent use or allowing attorney fee and would award regard aggrieved be in such because to be an consumer and to have a viable claim under by any not authorized law. This is some thing requires and we the OCPA nowhere .OCPA, damages actual the must be shown. to the Act to do so.16 decline rewrite damages Plaintiffs no actual to the showed jury. the To extent Tib- satisfaction of the PART V. SUMMARY. by plaintiffs I to the betts is claimed propriety the case such that the of at least solely money sought Plaintiffs dam- attorney some fee award not now be ages brought in their class action lawsuit they against challenged Al- have determined to defendant under the OCPA. been though jury prevailing parties by the returned a verdict which be the or successful violation(s) decision, indicates some of that Act were exception we hold an to the law applies shown, of the case doctrine as Tibbetts is a jury damages. I the found zero verdict case, only attorney fee in this The reasonable palpably gross erroneous decision and a or attorney agreement injustice where fee manifest would be done were we to i.e., contingency-based, their counsel was allow the award for fees to stand when such attorneys plaintiffs their no fees owe because clearly plaintiffs is authorized law and recovery, there was no is no fee at all. prevailed cannot be deemed to have because nothing. recovered over- is I, effect, plaintiffs in held that 26 Tibbetts ruled. attorney merely were entitled to recover fees

by showing in defendant violated the OCPA Accordingly, opinion the way, though they the

some even recovered zero Appeals damages Court of Civil is VACATED and the and showed themselves entitled to Walls, Patterson, judgment awarding plaintiffs no other relief. trial court at $875,000.00 torney fees of is REVERSED.17 wrong supra make clear that Tibbetts I was dissenting part opinion postu- dissenting part opinion acknowledges 16. The in errs in in exception lating plaintiffs to an accrued or that the the law of the case doctrine have vested applied majority right attorney the Court in PART IV of this to recover as an element fees recently discovered-vintage. opinion is not of recovery, though plaintiffs In their even owe no dissenting part words, opinion footnote 29 the its in attorney dissenting fees. In other in dating shortly cites cases back to after statehood part opinion seems to fail to realize that recognize exception. the existence of here, plaintiffs contingency because of their Although agree dissenting part we with the in counsel, attorney agreement based with their general opinion's any exception tenor that to the attorney owe no to fees their counsel for either tightly law of the case doctrine should be circum- bringing litigating nothing the case because or scribed, recognition exception essentially of an (Le., damages) We zero was recovered. fail to palpably gross based erroneous and or parties litigation understand can have how (as injustice manifest standard set out in 116 of right money accrued or vested to obtain as an majority opinion) long-standing juris- is of defendant, recovery money element from cognizance. prudential fees, pay parties' attorney to be used to when Contrary dissenting part opinion's in parties attorney owe no fees to their attor- belief, majority opinion does not measure short, neys. plaintiffs being deprived legal rights by personal predilection based on an Further, nothing. dissenting part opin- in instead, empty shapeless yardstick; major- or view, effect, retroactively ion's in that we have ity opinion has as its foundation sound law that plaintiffs abolished a claim of these applied light presented is in of the record to this right recovery substantive to counsel-fee stood dissenting part opinion Court. The in would argument attached is also mistaken. Such an gauge legal rights have us based on theoretical fails for the same reason the similar or identical concepts divorced from the real case that does, right argument accrued vested or to wit: before this Court. This we will not do. plaintiffs attorney anybody owe no fees to regard litigation case of this on their granting July 17. Prior to our certiorari on dissenting 2002, plaintiffs part opinion behalf. The seems to appeal-related filed motion for urge something protection of that does not exist. attorney ap- fees for work with this associated logic, Neither nor adherence to common law or 761.1(A) citing peal, § of the OCPA and 20 O.S. principles, plea constitutional nor other Obviously, light disposi- § 15.1. of our purportedly legal thought requires 761.1(A) established plain provides tion it is basis to protection. protect something warrants such To award such fees. allows Section 15.1 enigmatic attorney opposing that has no existence would be at best this Court to award fees to the appeal patently side when an frivolous. TRW/ gesture, and, believe, we devoid of valueless meaning and reason. Brewington, Reda Pump SUMMERS, HODGES, WATT, C.J., required harm to their interests. element of WINCHESTER, JJ., It is the and Patterson norm that the Walls BOUDREAU today, claim even applies court to this concur. contrary holding though announced JJ., KAUGER, 29 HARGRAVE controlling published, earlier and un result. concur in (a) unques decision bears disturbed COCA (b) finality, tionable attributes stands OPALA,V.C.J., part. in dissents 'I 30 (c) reports unrepudiated in and has directly challenged.6 never been OPALA, V.C.J., dissenting part. in My solely addresses dissent itself today the trial reverses T1 The court today's departure from the aftermath plaintiffs and award to the court's counsel-fee I. It deals not course charted Tibbelts statutory-law expressly norm overrules but rather with with the new trail we blaze in the litigation this earlier announced for abandoning the time- the havoc we wreak I).1 (Tibbetts over The appeal of this cause teachings Anglo-American ortho honored norm, initially green received ruled which judicature.7 I doxy appellate in would of cer- previous denial light by this court's repronounce court's apply to this case the plaintiff's tiorari, upheld the unharmed change in and Pat ment of its rule Walls press right claim for the Okla patently application offen That is terson. 2 vio [Act] Protection Act's homa Consumer only long-established sive not a counsel-fee award and to receive lation Anglo-American legal teachings recovery. By of their element an additional below, system but also to the discussed de counsel fee is now today's opinion the expressed command state constitution's contrary to this court's after-crafted both clared (a) applica continued and evenhanded for juris prudence3 in v. American Walls of the substantive norms of law tion and and Patterson v. Beall5 Tobacco Co.4 "proceeding begun" force when (in jury light zero-damage aof unreasonable (b) mandated fundamental- well as for the damages, actual finding rights". protection of "accrued ). Upon I affirmed Tibbetts which stands statutory after-promulgated substituting its I Patterson) (of norm Walls HISTORY CRITICAL LITIGATION I, in Tibbetts was earlier declared plaintiffs did not have opines that court A. could private claim and hence an actionable COCA's litigants in the regarded as not be successful brought action under T3 In a class They failed to show the now- case. had (a federal certified OK 11 P.3d 626 4. 2000 Again, defen- makes clear our disposition 2000). September question)(promuilgated 19 patently appeal case is not frivo- dant's in this appeal-related attor- Plaintiffs' motion for lous. (promulgated 14 19 P.3d 839 5. 2000 3,May ney 2002 is denied. fees filed February mandate issued November 2001). Centers, Sight Appliance 'n Sound 1. Tibbetts v. challenge here is collateral and 6. Defendant's Inc., (promul- CIVAPP 6 P.3d 1064 injus- solely the standard of manifest based gated certiorari denied 30 November tice. 2000) May [Tib- issued 15 March mandate I]. betts "judicature" means decision- 7. The term Dictionary (7th making. Brack's Law seq. ed.1999). § 751 et 2. 15 change By change" I mean "rule "jurisprudence" differ- has two 3. As a term of art application to statutory text's construction for meanings-caselaw legal philoso- ent core by today's pronouncement. case Dictionary (7th phy. Law 858-59 Buack's change court's after-crafted is effected ed.1999). referring meaning to after- When this dissent the critical ascription of a different amending legal by retroactively jurisprudence, in its it uses the term of the Act and crafted text finally Tibbetts I. declared in former sense. substantive law Although depart view. Walls and Patterson Act,9 jury returned a verdict for the statutory plaintiffs, but awarded them no actual dam ed from a substantive norm of jurisprudence I, ages. postjudgment hearing, At a the trial announced parties' quest expressly gave court denied for an attor both neither overruled nor even ney's separate appeals persuasive authority fee. Two were then mention to the denial, published opinion. then-extant Tibbetts I published brought from counsel-fee opin Appeals the Court of The latter Civil survives fact and the law ion10 prius ruling unrejected judicially [COCA] reversed nisi books as norm of litigation directed the trial court to conduct a hear declared law for this ing for determination reasonable at at the time this cause returned to the trial torney's plaintiffs. postremand proceed fee for the This court court for the directed ings. Today's pronouncement quest abolishes ret denied the defendant's for certiorari chose not to withdraw but from roactively plaintiffs' private these unharmed review11 (Tib- publication opinion COCA's in the case pre together claim under the Act with their ). viously pronounced I betts entitiement to an attor By retroactively ney's repudiating fee. - I,

COCA's Tibbetts II escape Tibbetts the court can neither consequences of the settled-law-of-the- Upon postremand evidentiary T4 hear (and issue-preclusion case doctrine of the (that ing on the counsel-fee issue occurred bar) nor of Oklahoma's constitutional re promulgation after COCA's Tibbetts I and lawmaking, straints on after-crafted following this court's issuance of its mandate which extend restraints to substantive-law denial), certiorari's the trial court entered an changes by jurisprudence no less than $375,000 plaintiffs' legal award of for the fee. by legislative do to those effected enactme (in II)12 COCA affirmed Tibbeits and we expresses nt.16 This assessment granted opin certiorari for review of that my crux of dissent. ion, which now here for stands decision. II B. FOR ITS REJECTION OF SETTLED Statutory Jurisprudence After-Crafted LAW OF THE THE CASE COURT 15 Walls13and Patterson14 constitute af INVOKES TODAY A STANDARD-

ter-promulgated changes controlling LESS TESTING FORMULA statutory-law pronounced by norm and for I.15 Both post-Tibbetts of these I A. cases declare harm to be an essential ele The Settled-Law-of-the-Case Doctrine ment of a consumer's claim for the explicitly Act's violation. Tibbetts I and I 6 The court to be bound here refuses unequivocally pronounces opposite rejects the settled law of the case. It quantum of awarded counsel fee demonstrates 9. Oklahoma Consumer Act, Protection supra discretion, (3) reviewing an abuse of note 2. panel powerless depart COCA was from the I, 10. Tibbetts note 1. supra earlier settled-law command another COCA panel's opinion. denying 11. The 30 March 2000 order certiorari following Hargrave, bears the vote: Concur: Supra note 4. v.C.J., Watt, Hodges, Boudreau, Opala, Kauger, JJ. Summers, C.J., Lavender, Dissent: Winches- Supra note 5. ter, JJ. Mandate issued 15 May clearly pro- 15. Walls and pronouncement Patterson came to be 12. COCA'S Tibbetts II mulgated unpublished opinion April certiorari was denied and man- of 26 which after by today's disposition. , stands vacated date issued I, in Tibbetts note 1. (1) According opinion to COCA's II set- relitigation upon legislative tled law of the case bars 16. For constitutional restraints fee, (2) attorney's to an entitlement the record enactments with retroactive effect see Parts IV- support argument does not defendant's that the VII infra. law, pos- departure either from settled to this unjust application doctrine as prius proceedings nisi the sine interposed tremand litigation. "Justice" adjudication's qualification stages of an gua non other review follow. effect. departures settled-law I would sanction from settled solely are deter for those issues which op doctrine The settled-law-of-the-case T7 fully fairly" mined not to have been same case of relitigation erates to bar litigated.19 through an finally decided that were issues The earlier decision appellate process.17 subsequent binding in all B.

review becomes only stages the case. The doctrine "Injustice"-The Open-ended Judicial consistency of later with ensures absolute Escape From Law Hatch Settled resolutions, guards it also issue former by prevent open- process Today's pronouncement offers an against abuse of T9 ing relitigation of issues settled judicial escape hatch from the ended estab stage appellate of an earlier course doctrine lished restraints that settled-law case.18 imposes. the court The formula justifies departure its from settled law-a the firm not loosen one iota T8 would "injustice" application-is manifest from its reviewing process of grip of control amorphous.20 patently Jus overbroad postremand over correction now wields shapeless legal tice is a vacuous and norm proceedings course stands charted whose firmly antonym disposition; that has been dubbed an of due by appellate I would an yardstick much like that of process.22 Its is every loudly unauthorized and condemn worthy are of relates which human interests to] Co., Line 1996 v. Mid-Continent 17. Nichols Pipe and, being especially, prop- what is their satisfied 281; Morrow Devel ¶ 24, 272, 933 P.2d 118, OK _... problem of values is er order of rank? Co., Bank and Trust v. American Corp. opment 411, 413; 26, ¶ 2, place problem 875 P.2d Panama of 1994 OK of conflicts in the first values, by problem be solved and this cannot 66, OK. Co., S.A. v. Cities Service 1990 Processes, ¶ 11 cognition. The answer v. to 276, 27; 796 P.2d 283 n. Mobbs means of rational 27, n. 149, 5, ¶ 6 P.2d City Lehigh, OK n. 655 1982 of value, judgment questions deter- is a of these 547, n. 5. and, therefore, 549 factors, by sub- mined emotional only judging jective for the in character-valid operates doctrine The settled-law-of-the-case 18. subject, also relative See and therefore only." finally relitigation set issues that to bar Macintyre, of Weose Ration- Alasdair Justice» opinion by appellate and those that the tled an Autry? ("... (1988) underlying diversi- this wide 1 timely aggrieved party to raise in the has failed upon particular types ty judgments of issue are Baird, appellate contest. Nealis v. course of justice, conflicting conceptions of con- a set of ¶ 61, 438, 462; 98, Barnett v. 996 P.2d 1999 OK strikingly ceptions at odds with one which are 477; 60, ¶ 13, 473, Barnett, 917 P.2d ways"). point A a number of similar another in ¶ 12 131, 37, OK n. Jones, Jackson Wicksell, by or Just A New Prinorete is made Knut 37; 1067, Corp., supra 1074 n. Morrow Dev. Tarory Taxation, tee or Pusiic Finance in Crassics in ¶ 2 2; at 413 n. note n. Handy City of (Richard Musgrave Peacock A. & Alan T. ¶ 13, Lawton, 835 P.2d eds., 1958) ("Each attempted of our solution necessarily be more or problem will coloured III, NI(C)and 19. See Parts infra. philosophy general political social and less life, writer, and his his station Minter, Ass'n v. 20. State ex rel. Oklahoma Bar antipathies.... Justice personal sympathies and ¶ 24 n. 55. n. always smacks of condes- above to below from contempt. to Justice from below cension recognized ina- Many have our commentators synonymous with only been has too often above single concept justice. bility agree upon revenge."). anp Justice, Law, tHE Pourrics in In Waar Is Justice»: Kelsen, (1957), Hans Mirzor or Science justice Supreme Court of the U.S. 22. At least one twentieth-century legal philosopher, writes: "No "justice" that the term counseled more than once passionate- question so has been discussed other process. incompatible the standard of due pre- ly; question caused so much no other has View, Corp. Bay Family Finance Sniadach v. shed; tears to be blood and so bitter cious many 350-351, 89 S.Ct. 395 U.S. object question of so much has been the no other J., (1969) (Black, dissenting). Jus- L.Ed.2d 349 thinking by thinkers the most illustrious intensive the "notions Kant; opines in Sniadach that tice Black yet, question and from Plato peoples" justice English-speaking or "the today [It as ever was. .... as unanswered it later-rejected empty may pour vat into which one con norm? No matter what use, tents at will. It has been defined as a stan- measuring tape justice one will is but an product reasoning shapeless legal yardstick empty and dardless of the natural-law whose by nothing contours are circumscribed more process.23 Subjecting repeated settled law predilection. than one's individual I must serutiny by afterthought based on a vacuous jus hence rather than embrace condemn undermine, *&auge surely if will most legal tice It as norm. is not concrete destroy, indeed interinstitutional deference invoked, enough. putty If it becomes within the service and internal Any shaping applicator. hands of the author short, discipline among join the courts. in departure ized from settled law should many generations judges and scholars stead rested on the U.S. Court's be rejecting "justice" acceptable stan (for applying gauge well-established issue departure dard for from settled law. As a preclusion) by which we must first answer justice legal gauge, deceiving is as as the whether the issue whose resolution is to be shifting upon sands which it is founded. fully fairly accepted binding explored in If advance of its settlement.24 C. so, not, govern; must if settled law be Gauged by Justice is One's Individual rejected. injects To hold otherwise whim Predilection Moreover, legal system. into the I would be (as injustice reject pretense 1 10 Is invite loath to this State's courthouse law) ing settled to be measured an enor judges regard statehouse themselves mity shaping of the mistake in flawed rulings freed from obedience to settled severity philosophical they may norm or tempted to condemn as earlier-adopted justice. differences between an offensive to their sense of "represent nothing shock-of-the-conscience test" Terory anp In his treatise, Generar or Law State (Harvard Press, 1945), implicit adoption University more or less than an of a Hans Kelsen concept system justice-the posits just Natural Law which under our ideal of a social or- judges power subjective, socially judg- leaves to alone the to decide what der-is constructed value, the Natural Law place place means. These so-called stan- ment of which varies to from judges dards do not bind within boundaries and time to time. It is not determined means precisely that can be marked or defined cognition. words humanity of rational "Since is divid- holding nations, classes, for laws unconstitutional. theOn con- many religions, profes- ed into trary, [judges] wholly these on, tests leave them free sions at and so often variance with one right another, to decide what are convinced is great many very there are a different Winship, fair." Id. In Matter 397 U.S. justice; many ideas of too for one to be able to 377-18, 1068, 1079-80, S.Ct. 25 L.Ed.2d 368 speak 'justice.'" simply of Id. at 8. The doctrine (1970), referring to the "shock the conscience" of natural law claims to establish the content of test, "prefer Justice Black states he would to basis, justice argues on a rational but Kelsen put faith in [his] the words of the written Consti- illusory. "[Nlone its notion is of the numerous itself, rely shifting, tution rather than to on the natural law theories so far succeeded has day-to-day fairness standards individual defining just way the content of this in a order J., (Black, judges." dissenting). approaching objectivity even the exactness and with which natural science can determine the itself, "justice" prejudicial Like the term conduct legal nature, content of the laws of science the justice," to the "administration when used as positive legal content of a order." Id. at 9. See prosecution a basis of for commission of a Sniadach, also note at at 395 U.S. 350- offense, disciplinary has also met with wide criti 1820; (Black,J., dissenting); 89 S.Ct. Calder judges cism scholars and alike for its sheer Bull, (3 Dall.) 398-399, 3 U.S. L.Ed. wisely requires overbreadth. Oklahoma caselaw (1798) (Iradell, J., ("The concurring) ideas charged that each act or omission under justice regulated by natural no fixed stan- prejudicial rubric of "conduct to the administra purest dard: the ablest and the men have dif- justice" tion of be sufficient to a stand alone as upon subject"). seeking fered than Rather Minter, professional responsibility. breach of su "justice," Kelsen maintains that the a soci- best note at 124 at 774; State ex rel. Okla pra ety positive legal can do a is establish order that homa Bourne, Bar Association among minimizes the frictions different interests ¶ 6, 880 360, 361; Johnson, Martha E. and, so, doing a establishes framework for Comment, ABA Code Responsibili Professional peace. social ty: Vagueness?, Void 57 N.C.L.Rev. 684- (1979); Maintaining Weckstein, Donald T. Integrity Competence Legal "fully-and-fair- The And The Pro 24. For the U.S. Court's Of (1970). standard, fession, ly-litigated" 275-76 Tex.L.Rev. see note 34. infra change voting pattern's from right {11 ture: its reach of The outer yesterday's of certiorari-with any legislative denial under that is invocable action given pos- green signal unique for the commanded present a controve enactment does today's arises disagreement proceedings-to attack rsy.25 Whenever tremand upon I left intact proper the mandate of Tibbetts courts over appellate two between grant certio- guide the con this court's election not that must legislative intent text, guilt our to act rari. The from own failure upon the statute's placed to be struction may that the not be shifted from ourselves COCA. a matter of law followas it does not we, conscience, rejected may with a clear leave rejected also be Nor ultimately view unjust. inquiry utterly helpless The focus of litigants out-of-hand those who were They ques by relying harmed on that inaction. resolve the order to to be conducted others, too, fairness. To today whether the law like all deserve tion we answer disposition is vulnera by the earlier settled lies in adherence them fairness consistent yore.26 norms of Because to the effective the issue now to be departure because ble to fully stay and it is this court's had not been accepted as settled own failure to I) (charted by fairly litigated. integrity of The has course today's dilemma, higher produced it behooves it gravely offended when process is fully apply consistent relegate to the here a solution free to deems itself court orthodoxy Anglo-American of the "injustice" court's final an inferior with rubric of judicature constitu nothing more than sim and with State's pronouncement retrospective law on a matter of tional restrictions ple disagreement on making. intent. us,

{12 Because, the record before absolutely showing that there is E. plaintiffs' pri- character actionable Impermissibly Pronouncement Act had not been The Court's under vate claim Regime Appellate fully fairly litigated, Recasts Oklahoma's I must consider pronounce- of Post- myself A Cassation-like Model here COCA's Into bound Revolutionary France I. ment in Tibbetts {14 open- court's endorsement The D. repudiate settled law ended freedom "Injustice" Done Here Consists utterly incompatible the basic will Departure This Court's Retroactive judicature An appellate teachings of Law From Settled Today's opin legal glo-American tradition. post-appeal [13 a "injustice" in introduces to State here lies not ion done The now-rejected T4b- jurisprudence of long decisionmaking regime associated COCA's cassation 27-an institution judica Franco-Roman in court's shift of its I but betts ordinarily involves private right of uncertain of action clarification outer reach of a The change settled infrequent It is retroactive regulatory no unfairness. statute not an under a is of controversy. settling subject The U.S. law, of of unsettled law, retroactive (empha- may produce unjust results." Id. recently granted in a case from the certiorari has added). plaintiff, if sis which concludes that Fourth Circuit unharmed, right private action. The of has Ninth, Tenth, Fifth, vastly Eleventh and D.C. Circuits Franco-Roman cassation model 27. The may, plaintiff regime. under Anglo-American an unharmed all held that different from the Act, $1,000 form, Privacy highest recover without original post-revolutionary its - (Cour Cassation) damages. de lacked French court Chao, U.S. of actual Doe proof authority (Mem) binding power decisions. Its to render 156 L.Ed.2d 654 123 S.Ct. -, judgment narrowly quashing (2003). to was limited Court will No matter what ultimately remanding court for case to a lower which es the circuits hold, can be said "unjust" contrary con poused view reached The latter court de novo. reconsideration ? view of the clusion the cassation decision's not bound Comparative Schlesinger, Law law. Rudolf B. (1970). original cassation model Culp AbmtnistRa- 332-333 Davis notes in his 26. As Kenneth Rupert (3d 1972), Cross relaxed. "retroactive has been somewhat at 135 ed. tive Law Textr any jurisdiction symmetry system never followed in within the of Oklahoma's judicature. Anglo-American legal heritage. By over appellate I, turning the law settled 116 COCA's Tibbetts I settled for this has refashioned the institutional court State's legal principle that case the the unharmed judicature private design appellate into a verita had a claim under ancillary absolutely Act with an entitlement to process. Cassation ble cassation attorney's fee. The court renounces its appellate authority court's confines upon obedience to this norm of settled law quashing judgment. It author does not purely shapeless legal vacuous and stan judgment-quashing ize tribunal direct compelled dard. am to stand bound complexion post- either the course or the the settled law of this case.29 proceedings. remand The Oklahoma Court Appeals Civil is mot established on a III Franco-Roman model cassation. It func review THE CLAIM ABOLISHED TODAY IS tions as an intermediate tribunal PROTECTED FROM BELATED JU Anglo-American in the State's tradition. BY THE DICIAL DESTRUCTION Today's reshaping ap of Oklahoma's DOCTRINE OF ISSUE PRECLUSI judicature pellate into a Franco-Roman cas- ON30 generate post- sation model will interminable { (and certiorari was final When denied appeal litigation. judge No courthouse will ity reached), of COCA's decision came to be again ever feel bound an undisturbed the unharmed entitlement pronouncement. design COCA The new will prosecute claim for a mere viola rights long leave valuable in limbo over a (to tion the Act which counsel-fee recov post-appeal stretch of forensic battles at nisi ery stood attached in favor of one declared to sum, prius and elsewhere.28 In the court's emerged prevailing party) have became change retroactive of an effective and protected by settled preclusi the doctrine of issue harm on.31 statutory lasting grave norm deals retrospective lawmaking, PrzcepoENt it should now be rele- Harris, JW. In Encusa Law 10-14. Dictronary (7th ed.1999) tersely gated antiquarian Brack's Law de- lore. (invalidation quashing" fines "cassation" as "a judgment). Id. at 209. preclusion," formerly 30. The term "issue known estoppel, adopted as collateral has been 28. The Franco-Roman cassation model anti- JupemEnts (SEconp)§ Restatement or Comment thetical to the common-law maxim interesse rei (1982). descriptive b The use of the more teerm- publicae ut sit litium. The maxim means finis preclusion-was originally issue advanced in the that "it is in the interest the state that there be Jupica- works of Vestal, Professor Allan D. Res Dictronary litigation." a limit to Brack's Law Inrury TafPrectuston, (1969); Personar Annuar Res (7th ed.1999). It is the paramount concern 47 S. Cal. L.Rev. Judicata/Preclusion: Expansion, litigation. the state that there be an end to To- (1974); Judgment State Court as Preclusive in day's opinion nearly 900-year-old offends this Court, Litigation Section 1983 Federal policy assisting of the common law. Instead of (1974). Okla. L.Rev. 185 See Underside La litigation, bringing about an end to the court 6 n. 517 n. throp, by sanctioning extends the life of a forensic battle ¶ 8 Armstrong, 8; Veiser v. n. change a retroactive in an effective P.2d 799 n. 7. 796, finality by norm that attained the court's own to act failure in due time and course of this purpose preclusion 31. The issue of is to 'relieve progress. case's parties multiple of the cost and vexation of lawsuits, resources, departure

29. by pre As a basis for from settled law conserve and decisions, "justice" reports by venting encourage was introduced to Oklahoma inconsistent reli Miller, early post-statehood jurisprudence. adjudication.'" Oklahoma ance on Miller v. 1998 24, 125, 887, (quoting OK 956 P.2d 897 Allen v. Elec., Gas & Power Co. v. 1908 City Baumhoff, 90, 94, 411, 418, McCurry, 449 U.S. 101 S.Ct. 66 19, 758, 760-61, OK 96 P. 134, 503; 21 Okl. (1980)); Feightner L.Ed.2d 308 v. Bank Okla Co. v. Fonville, 389, 1912 OK Metropolitan Ry. of homa, N.A., 20, ¶ 15, 624, 2003 OK 65 P.3d 629- ¶ 1, 1126, 125 P. 36 Okl. Wade v. 1125, 76; Hope 108, ¶ 14, 549, 30; Killingsworth, City City, & 1923 OK 213 P. Tal v. State ex rel. Oklahoma of 551, 89 Okl. 64. Because of its 97, 120, 234, detrimental and 2002 OK 61 P.3d Veiser 244; supra 30, 9, (collateral impact judicature appellate distortive as well note at 18 n. at 800. The issue (res estoppel) judicata) preclusion and claim doc- as on the state constitutional constraints upon

1061 relitigation fully fairly litigated.34 preclusion preclusion prevents 18 Issue and applicable doctrine is whether the contest actually litigated issues facts and other of it is invoked pro ed issues the case which necessarily in an earlier determined and wrongly rightly or decided.35 were parties or their ceeding the same between (both preclusion doctrine privies.32 The {19 Actionability plaintiffs' private applications) claim and issue respect finally to its in their favor in claim was resolved affordingfinality important goal of Tibbetts I36 this court's denial of certiorari fosters law, issues, subsequent of its mandate.37 and issuance of fact or were to all 33 enforcing significant interchangeably harm flows from a rule that because trines are often used litigant only opportu- one and closely promote affords and both related full fair issue, Miller, nity litigate and there is no [that] policy general public concerns. same burdening the with re- sound reason for courts 22, at I at 896. supra, added). petitive litigation." (emphasis estoppel, like the related doctrine 32. "Collateral Services, 35. National Business Inc. v. Diversified purpose protect judicata, the dual of of res has Inc., Corporate Opportunities, Financial relitigating ing litigants the burden of from (issue 666-67 36, 111, 662, 946 P.2d preclusion party privy or his issue with the same identical relitigation operates to bar both correct from economy by preventing promoting judicial and jurisdictional resolutions and erroneous Co., Hosiery litigation." Inc. v. Parklane needless Fent, nonjurisdictional challenges); supra note 645, 649, Shore, 322, 326, S.Ct. 58 439 U.S. 99 ¶ Veiser, 18, at note at 33, 115, 133; 30, at supra, (1979). Feperar of those 552 In furtherance L.Ed.2d 802; Wright, Cooper, Miller & at 18 has, anp Supreme in recent policies, the U.S. Court (2d ed.2002). 17 Practice Proceoure 4403 at years, scope the doctrine of broadened supra See note 1. 36. beyond estoppel common-law lim collateral its by abandoning require has done so its. It (Mandate), terms of Rule 1.16 Oklahoma 37. The (Blonder-Tongue mutuality parties ment of Rules, as amended 16 June 2003 Court Supreme Laboratories, University Illinois Founda Inc. v. 15, 1, (2003 62), Supp.2003, App. OK 0.8. Ch. 12 313, 1434, tion, 91 S.Ct. 28 L.Ed.2d 788 402 U.S. provide pertinent part: (1971)) by conditionally approving the "of every appeal petition or to review order nonparty estoppel of collateral fensive" use tribunal, or other a mandate district court Hosiery, supra. prior to a lawsuit. Parklane the lower court or tribunal on will be issued to upon Justice conclusion of order of the Chief Finality adjudication process con is core appeal. be the matter on The mandate Anglo-American legal system. "A cept in the (7) filing days after the of an issued seven adjudica precept fundamental of common-law rehearing denying certiorari or in the order tion, doctrines of collat embodied in the related Court, expira- Supreme immediately upon or judicata, 'right, estoppel that a and res eral petition for writ of certio- tion of time to file distinctly put question and direct or fact issue rehearing, disposition petition rari or jurisdic ly competent a court of determined any timely post-decisional No filed motion. disputed subsequent ... in a suit tion cannot original upon issued conclusion of mandate is parties privies....'" or their between the same courts, certified federal actions, questions States, 147, 153, v. United 440 U.S. 99 Montana matters, original proceed- disciplinary bar 970, 973, (1979)(quoting 210 59 L.Ed.2d S.Ct. petitions. ings on initiative or referendum States, 1, v. United 168 U.S. Southern R.R. (Denial Pacific of Petition for of Rule 1.181 The terms 48-49, 18, 27, (1897)); 42 18 S.Ct. L.Ed. 355 Rules, Writ), O.S. Oklahoma 630; ¶ 15, supra Feightner, at at Daniel note 1, provide: Supp.1997, App. Ch. 869; Daniel, ¶ 14, 42 P.3d 2001 OK 117 v. petition for writ of certiorari is denied When a ONG, 108, ¶11, Fent v. to that effect and the an order shall be entered preclusion to bar relit- Issue is invocable If writ of certiorari mandate shall issue. igation fact. both issues of law and issues of denied, rehearing may petition be filed Company, Chemical United States Stauffer Supreme Court. See Rule 1.13.. 165, 170-71, S.Ct. 78 L.Ed.2d U.S. added). {emphasis (1984). ¶ 11, 132; at at Cox Fent, note supra 122, ¶ 4, Co., City Ins. Kansas Life (the judgment, trial court's 332, 99 note 439 U.S. at Parklane, supra COCA, became final when mandate modified at at 652; Miller, at note S.Ct. supra issued); Cole, Fund v. 133; Veiser, Indemnity at Fent, note 898; Special 959, ¶ 104, 11, When a man 834 P.2d 962. OK In 30, 21, note at T 16 n. at 802. supra Standefer issued, duty the trial court has date is 1999, S.Ct. States, 10, 24, v. 447 U.S. 100 United Brown, (1980), comply Hurst v. 1954 with its terms. the Court noted 64 L.Ed.2d 689 Stith, 438, 440; 25, ¶ 7, Grayson v. Blonder-Tongue, supra note that in cases like 530, 533, 150, ¶ 20, Okl. 192 138 dealt with Parklane, disputes supra, private litigants, private rights "no 340. between over 1062 A. judicial put an end to all

The latter act direct remedies available for correction of pronouncement, even if it were Promulgation Statutory flawed Judicial of Juris- by ascribing wrong meaning to the Imparts prudence-i.e., Caselaw That tamper text of the Act. would neither Meaning Legislative to the Text Ac- repudiate nor the command of issue- cording to the Found Intent by retroactively preclusion apply doctrine Lawmaking Assembly-Is Long-rec- finally ing changes after-crafted to a once ognized Legitimate Form of "Intersti- statutory shaped controlling norm of law.38 Lawmaking" by Adjudication tial today's opinion, 20 Under terms Laowmaking monopoly 121 is not again no mandate of this court could ever Legislature. judge engages A in law finality attain the of unassailable status making through adjudication when intersti pronounced rulings for the case. tially filling by formulating gap the law IV rule,39construing a common-law or statute rule, agency by framing a constitutional STATE CONSTITUTIONAL RESTRIC- UPON TIONS RETROSPECTIVE process developing norm.40 Both the APPLY LEGISLATION WITH EQUAL FORCE TO AFTER-PRO- MULGATED SUBSTANTIVE-LAW THAT AD- JURISPRUDENCE (1) VERSELY AFFECTS PROCEED- (2) AND INGS BEGUN ACCRUED

RIGHTS preclusion Ascribing lawmaking consequences ju- 40. While issue is an affirmative de to some pleaded proved, appel revolutionary analysis. fense that must be dicial work is not a new or Nealis, may sponte. late Judges court raise sua development; make law common-law note at n. at See v. 151 also by judicial Jackson administrative tribunals make law (5th Towing Corp., N. Bank 213 F.3d 889 rulemaking. development The common-law is a Cir.2000) (the permitted court to raise the law-generating process legal new creates judicata sponte issue of res sua affirm Culp norms. Kenneth Davis and Richard J. court); district Doe 148 F.3d Pfrommer, § Pierce, Jr., Abmmustrative Law Treatise 10.6, (2d Cir.1998); S.D., Indep. 283 v. Sch. Dist. No. (3d Davis, ed.1994); Culp Kenneth Judicial (8th Cir.1996) ("Preclusion 88 F.3d 562 n. 5 Notice, (1955) 55 Colum. L.Rev. may be raised the court because 'benefits of ("When agency develops policy, a court or law or precluding relitigation finally of issues decided acting legislatively; it is the courts have created only litigants, run not but also to the through judicial legisla- common ""); judicial system.' Studio Art Theatre Evans tion...."). ville, Evansville, Inc. 76 F.3d 128, City of Judicial actions fall under three rubrics- Fep- (7th €Cir.1996); Wright, Cooper, Miller & adjudicative, legislative and executive. The U.S. anp Procepure (2d 2002) § ERALPractice ed. Supreme applies Court a functional test to im ("It increasingly has become common to raise munity questions. adjudicate they When judges question preclusion the motion."). court's own immunity; they legislate have absolute when appellate "Allowing court raise legislative immunity they have and when act judicata sponte] poli res [sua is consistent with executives, they only immunity. have executive avoiding unnecessary judicial cies of waste ... Supreme Virginia Court v. Consumers Union fostering judicial reliance on decisions the United States, 719, 731, 446 U.S. 100 S.Ct. Treasurer, precluding relitigation." Merrilees v. 1967, 1974, (1980), 64 L.Ed.2d (1992). 618 A.2d 159 Vt. 623 pointed liability protection out that from Rights under Judges the Civil Act is extended to one legislative have a license continue performed whose under attack is crafting found the norms of common law. Oklahoma's function to be immunized rather than on the basis of upon judicial It stands conferred service 0.$.2001 provisions place functionary § of 12 2. The one's official as a in an as terms of 2 are: signed government category service. law, The common as modified constitution- "[i]t that, Court observed that is evident in enact rules, law, ing disciplinary Court Vir al and decisions and the ginia legislature." (emphasis people, is constituted a Id. condition and wants of the re- shall White, general supplied). main in force in aid of the statutes of Forrester v. 484 U.S. Cf. (1988). 108S.Ct. 98 L.Ed.2d 555 Oklahoma....

1063 concretizing the pronounce that of law and to the view that these common accede may applied ments be to this cause. statutory and constitu meaning of textual interstitial lawmak is known as tional law particu- Today's opinion 123 sanctions a Today's change in ing by adjudication.41 larly reprehensible ju- form of retroactive statutory jurisprudence consti the extant lawmaking-one wipes out ad- dicial lawmaking court's act tutes change judged rights by a mid-stream in a (concre- by refining adjudication through meaning. The legislative text's court abol- meaning placed on the tizing) to be finally plaintiffs' de- ishes the unharmed legislative en content of a substantive-law action, right which also clared actment. prevailing party to a counsel- entitles element of its fee award as an additional B. recovery. in contest Both of the issues pri- Lawmaking character of the Non-legislative here-the actionable Forms of All entitlement vate action and Re- Conform to the Constitution's must post-remand pro- to a counsel-fee award Enactments on Retroactive strictions by ceedings-were finally settled lawmaking by judicial ad Legitimate 22 plaintiffs. Their action- I in favor of the exempt from constitutional judication is not claim, abrogated today, arose before the able itself, pass legislation it must testing. Like statutory change. Tibbetts I court's norm muster.42 Walls and the fundamental law's only effective law for remains judi legitimate are both acts of Patterson43 because it stands undis- case. This is so lawmaking that fall under the constitu cial by as final certiorari's deni- turbed as well on the effect of after-enacted tional restraints al. pronouncements amend legislation. These manner, Every retrospective change in the law case, T 24 in a for this substantive of, meaning produces "injustice"-losers become winners and conse earlier-declared versa; statutory from, They nay, after-crafted flowing Act. and vice quences applied, finally jurisprudence, retrospectively statutory law when contrary the extant Although perceived by some as instrument I. do not be proclaimed process injustice.44 -It violates the that is commit the court's current recede from Patterson, join the court's everyone's due. I cannot I cannot ment Walls legisla- with the recognizes lawmaker when contrasted some fac as a U.S. 41. The lawmaking. consequential law which has because he cannot unmake ets of ture fudicature 623-24, statute, or, Walker, effectively 85 381 U.S. declared Linkletter been 1731, 1734, (1965), statute, pre spheres 14 L.Ed.2d decisions S.Ct. in which there is no exclusionary question subject binding upon whether sented He is which are him. Ohio, Mapp v. 367 U.S. S.Ci. only rule of greater that he can restriction the even (1961), be held to L.Ed.2d 1081 should specific happen to issues as make law on such by including operate retrospectively Cross, within its Rupert note litigated before him." sweep Mapp deci final convictions before the necessary only to observe that "[IJt 27 at 34. Mapp retroactively, declining apply sion. judges can and do make law is that our the fact ap explicitly repudiated universal the Court recognized by universally writers on the Brit- now that courts plicability of the Blackstonian view Id., (emphasis supplied). at 30 ish Constitution." and, instead, only preexisting declare adopted positivist approach counseled against retro- restraints 42. For the constitutional something judges in fact do John Austin "that do VII, through lawmaking IV active see Parts infra. law; they make it interstifial more than discover interpretation ly by filling in with Supra notes 4 and 5. generic vague, or com indefinite, empty are but terms that alone mon-law According legal philosophy of Professor 623-24, Id., U.S. at of the law." crevices catalogue added). recognize to isolate (emphasis "I Fuller, who strove Lon S.Ct. at 1734 qua universally accepted sine non val- hesitation," the law's Justice Holmes in without wrote ues, provide a mecha- of law is to the function legislate, judges but "that do and must " eliminating play blind of chance' 'the nism interstitially." only S. Pac. Co. v. can do so previously de- rules clear and understandable 524, 531, 37 S.Ct. Jensen, U.S. Fuller, consistently applied." L. J., Lon (1917)(Holmes, dissenting)(em clared and L.Ed. Morarity ed.1969). (2d He main- added). Or Law 9 THs phasis Rupert observes that Sir Cross truly law is a monstrosi- disadvantage that "a retroactive English judge tains is at a [tlhe modern y plaintiffs protections to afford the refusal by upon conferred them the Oklahoma Constitution THE COURT AND IGNORES VIOLATES against application of 45 retroactive THE OF OKLA- PROVISIONS after-promulgated changes statutory juris HOMAS CONSTITUTION WHICH prudence. retrospective Inasmuch as the ef- REQUIRE THAT THE SUBSTAN- given today's pronouncement destroys feet TIVE LAW TO BE APPLIED IN LIT- 54, rights by §§ protected Art. 5 52 and Ok Const.,46 BE I IGATION PROCESS MUST after-promul would hold that the THAT IN WHICH WAS FORCE gated jurisprudential change in substantive THE WHEN PROCEEDINGS WERE statutory applied norms cannot this claim "pro which had "accrued" and which BEGUN ceedings begun" before the rule [stood] Retrospective overruling 1 25 of the settled fundamentally change. It is unfair to de by legislative law of the case after-enacted prive constitutionally of their (or through changes pro those effected protected rights,48 by accrued declared judicature) explicit cess of offends con I and COCA Tibbetts left undisturbed to changing applicable stitutional barrier by become final this court's election not to proceeding norms of substantive law for a disturb them on certiorari review.49 In begun change. earlier than the effected Art. short, application I make would §5 Okl. Const.50 today's statutory change meaning deny text conform to the application constitution's mandate 26 One cannot that for against lawmaking. statutory retroactive claim law to ty. governance period unconstitutionally infringe upon Law has to do with the of haman can Id., speak governing right.'" citing conduct rules. To Corp. or 'vested Chase Securities directing conduct rules that be enacted will v. Donaldson, 325 U.S. n. and 315- prose." (1945). tomorrow is to talk in blank Id. at 53. 65 S.Ct. 89 L.Ed. 1628 equates legislation Fuller retroactive with the absurdity commanding today brutal a man law, English per In incuriam decision is one something yesterday." argues do Id. at 59. He given ignorance forgetfulness or of a statute or morality" that laws must have an "internal having English aof rule the force of law. The eight which is reflected in constitutive elements Appeal Court of is not bound its decisions (i.e. legality. Prospectivity nonretroactivity) Cross, given per Rupert incuriam. note 27 legal eight rules is one elements. He of urges at 121, 148-51, 163; Police Authori Huddersfield system applies that no after-enacted Watson, (1947); ty Young v. 2 All E.R. retrospectively aspire just law can to be under Ltd., Bristol Co. K.B. Aeroplane proposes the standards he natural law. (Eng.C.A.1944). Assuming English doctrine law, part ais of Oklahoma Tibbetts I is not pertinent §§ 45. See the terms of Art. 5 52 and per vulnerable to a declaration that it is a incu- Const., Ok. notes 56 and 50. infra pronouncement. riam No one asked on remand incuriam; per that Tibbetts I be declared but pertinent §§ 46. For the terms of Art. 5 52 and invoked, even if the doctrine had been the fact Const., Okl. see notes 56 and 50. infra pursue this court has later chosen to ground different course of construction is not a legislation presents problems "Retroactive pronouncing opinion per unfairness that are more serious than those incuriam. More posed by prospective legislation, over, since because can is COCA pronouncement approved precedential by legitimate has been deprive expectations citizens of Court, Supreme subject per it is not to a settled reason, '[tlhe transactions. For this upset aspects legislation, incuriam condemnation. retroactive [economic] prospective aspects, well as the must meet the process': legitimate legislative pur- test due Const., 50. The terms of Art. 5 OKI. are: pose furthered rational means." General Mo- repeal of a statute shall not revive a statute Romein, tors 181, 191, U.S. 112 S.Ct. Corp. statute, previously repealed by such nor shall 1105, 1112, (1992). 117 L.Ed.2d 328 repeal right, penalty such affect accrued or incurred, proceedings begun by acknowledges virtue of 48. The U.S. repealed such statute. protec- existence of some federal constitutional interest,. added). {(emphasis Stogner tion for a vested v. Califor- -- nia, , --, proceeding begun applicable U.S. S.Ct. A under norms of (2003), (or law) opines 156 L.Ed.2d 544 the Court "that substantive common then expired leg- an extension of even an civil limitations in force remains unaffected after-enacted (and by the issuance of its changed; denial of certiorari whether has been govern the case mandate), applicable appellate pro- and effective statu by an change effected by legislative enactment a nouncement tory law un norm of Oklahoma's substantive change-jurispruden- It is the immaterial. gave plaintiffs a questionably the unharmed adjudi- by legislative, enactment or tial or (harmless) private of action for a mere cause clearly under the axe of falls cation-that prevail the Act. Their status as violation of for after-the- condemnation constitutional ing party, to a counsel- which entitled them lawmaking. appli- Today's retroactive fact award, pronounced by stands COCA's changes in the con- of substantive-law cation declaration, final, I.51That when Tibbetts that stood declared trolling norm constitutionally pro plaintiffs' became the I offends the consti- claim Tibbetts for this holding right.52 accrued COCA's tected expressed for continued solicitude tution's by in Tibbetts application of and evenhanded I retroactive effect force of has begun. proceeding was force when the and this court chose not common law on certiorari. After- disturb its terms begun proceeding when This T27 (or enjoyed pri- after-pro passed legislative enactments unharmed still right caselaw) for the Act's violation vate of action mulgated destroy nor can neither judicially their declared and the fruits of rights.53 alter these To hold otherwise would prevailing parties in the case. as status constitutionally con undermine the shielded destroys rights Today's opinion de- adjudicated right in an cept of an "accrued" by in their behalf COCA's clared claim. rejected by principles €29 All these

VI today's private claim is pronouncement. gone the winds is now abolished and AND THE IGNORES VIOLATES COURT entitiement to an also the declared THE OF OKLA- THE PROVISIONS RE- WHICH attorney's Responsible CONSTITUTION HOMA fee.

QUIRE RIGHTS" THAT "ACCRUED this surprising and sudden demise is claim's BY AFTER- BE NOT DISTURBED after-promulgated pronouncement court's ENACTED LAW Act in unrelated law- that construes the two phase I this the Tibbetts 128 When court's came to an end litigation Inc., 135, 16, ¶ (or Supply, through 1971 OK 490 changes Co. v. P & H those effected islative 1361; 1358, County Barry Com v. Board judicature). P.2d process In First Nat. Bank 132, Valley Crudup, 1982 OK P.2d 173 Pauls missioners, 701, OK Dictionary (7th 914, Law oper- 645. Bmack's Okl. the court dealt with an enactment ed.1999) right" a "ma governing an "accrued as abridge period defines a limitation ated to right right; ripe for enforcement." tured or material- of certain mechanic's foreclosure right power do certain ac timely (pursu- "A is the filed 'vested A lien statement men's liens. things lawfully, statute) and is possess certain then-existing tions or was held to consti- ant to a right. may substantially property It be created begun" "proceeding whose limitation tute law, or contract. Once either common statute an after-enacted stat- not be shortened could absolute, created, protected and is it becomes offending provisions of Art. 5 ute without § Ok. Const. legislative Secs. 52 and invasion Art. from Water Re Oklahoma our Constitution." Con Oklahoma Master as sources Board v. Central to a counsel-fee award

51. One's entitlement litigant party brings an added prevailing to a 123, 464 P.2d District, 1968 OK servancy added). which, recovery, (emphasis postjudgment on its element of attachment, right" that becomes "an accrued protected by § OK1.Const. Art. 5 Inc., stands America, Volkswagen Lee 80, ¶ 3, (one's to an entitlement 743 P.2d 1067 adjudicated right in an right, § award of costs is a vested used in Art. 5 OK. 52. Accrued Const., by legislation obligation may cannot be altered a matured cause be defined as of in Royal judgment); change Timmons v. enacted after the that arose before there was action § Bomgardner, 111 n. re 13, 713 P.2d law. -In Co., Globe Insurance 589, 594. 22; 96 n. Mid-Continent Casualty suits,54 VII by opinions disposed of that do not earlier-published authority even note IN SUBSTANTIVE CHANGES LAW having relegated been BE CANNOT RETROACTIVE If status of ineffective caselaw. the solution IN EFFECT today embraced the court is not a consti rights 131 Substantive not be tutionally impermissible death sentence for changed application mid-stream for to a right," one's "accrued no vested interest will pending pro claim or defense in a ever be safe from after-the-fact destruction ceeding. Art. 5 Plaintiffs' OKI.Const.56 by judicial through jurisprudence fiat dealt of (loeus )57 standing press pri standi to their pure afterthought.55 Act, claim a vate for harmless violation of the I, right. accorded Tibbetts is a substantive brought T30 When this action was pre Their entitlement to a counsel fee as a plaintiffs right bring unharmed had a vailing party explicitly stands attached to private claim for a violation the Act. of declaration) (by I that as an claim right, together That all of its de- recovery.58 element additional of Claims destroyed by ancillary incidents, clared have accrued before law is changed protected legisla are from both today's opinion. judicial extinguishment.59 tive and The clearly entitled in this case application pre-existing,

to an of that con- 16, ¶ 24, 438, Corp., troleum 1986 OK 732 P.2d Patterson, 54. See Walls and notes 4 and 5. supra 449; Timmons v. Globe Ins. Co., 1985 Royal Qualls 55. The court's v. Farm- pronouncement ¶ 13 n. 713 76, 18, 589, 18; 594 n. Mayhue Co., Inc., 61, ers Ins. 1981 OK 629 P.2d 1258 is 68, ¶ 6, 890, 894; Mayhue, v. 1985 OK 706 P.2d analysis not inconsistent with the dissent's Ewing, Company American-First Title & Trust Qualls in this case we deal with substantive law. 98, ¶ 40, 488, 1965 OK 403 P.2d only dealt with an after-enacted statute that add- pending ed a counsel-fee award to a Here, claim. right 57. The term "locus standi" means "the dealing just we are not with one's entitle- bring given an action or to be heard in forum." ment to counsel-fee award an after-enacted (7th Dictronary ed.1999). Brack's Law at 952 statute, but with the survival of a claim that upon prevailing party confers a declared damages changes, 58. When the measure short, right recovery. Qualls to a counsel-fee In of changed. substantive law the claim is The pronounced the basis of the statute's of right attorney's prevailing to recover an fee as procedural purely impact. In this case we deal party is no less a matter of substantive law pronounced actionability than with the of a claim (declared ), recovery damages of presents viable in I harm occasioned which victor, issue of law. substantive another. An award counsel fee recovery, additional element when stat Const., § 56. The terms Art. 5 Okl. are: authorized, utorily enlarges "creates and sub Legislature power shall have no to revive rights" Today's change stantive in an action. any right remedy or which have become plaintiffs' right counsel recover violates fee time, by lapse by any barred or statute of this constitutional mandate. Thomas v. Cumber this State. suit has been commenced on After Co., 164, ¶ 10, Operating land 1977 OK 569 P.2d action, Legislature cause have shall 974, 976. action, power away to take such cause or destroy any existing to such suit. defense 59. The of Art. 5 Const., Okl. provisions added). {emphasis supra Rights note 50. are established in the legislature impair Neither the nor the courts can states their constitution, statutes or the com right by retrospective legislation a substantive mon law. Oklahoma Bd., Water Res. note by after-promulgated judicature. Hedges v. ¶ 52 at 755; Smith, Smith v. n. 1, 1 (the Hedges, 2002 OK 66 P.3d 374 J., (Opala, concurring). 652 P.2d n. 1 validity, meaning, judgment and effect of a must emanating "A action, vested cause of whether always assayed by the law in force at the time principles, may from contract or common-law entered; judicial testing it was of these elements property beyond power leg constitute adjudged obligation kept in an must be free from away islature to ...." take de v. United impairment by legislation after-enacted Rodulfa Nantz, caselaw); after-promulgated (D.C.Cir.1972), States, 461 F.2d 1257 n. 96 Nantz J., (Opala, denied, cert. 409 U.S. S.Ct. dissenting); Harry R. Carlile Trust v. Cotton Pe- (1972). L.Ed.2d 220 VHI trolling norm of substan and undisturbed statutory declared for which was law tive CRITIQUE REPLY TO THE COURTS in Tibbetts 1.60 their claim THE OF DISSENT does more Today's pronouncement ignore The court the unde chooses right to a counsel destroy plaintiffs' than post-Tibbetts niable fact that its abolition of plaintiff's private right an unharmed of action law; after-enacted af- by force of an today's pronouncement by entirely a retroac plaintiffs' locus standi makes fects the right,. tive of an accrued A destruction not abolishing their claim. That includes right by judicial substantive conferred act recovery. just one but all the elements recognized bearing the attributes short, norm of a substantive finality right. constitutes an acerued No change by after-promulgated underwent verity. amount of rhetoric can sidetrack this changed norm It is that jurisprudence. claim, It is the today. applies claim the court to this attorney's fee, that is here at stake.62 Had today's opinion, plaintiffs' the claim survived retrospective repudiation T33 The might to a fee have contin entitlement award clearly violates the constitution Tibbetts with,. It ued as an issue to be dealt is the govern ally restrictions anchored extinguishes private claim that demise of retroactively change power to sub ment's and removes from the case all other issues. by by judicature or law either stantive The court's reference to the defen €36 to legislative enactment. I cannot accede Hability-defeating against defenses dant's attempting right its act of to the court's quest equally inapposite.63 is Because by extra-legal self-perceived means.61 error plaintiffs' private claim is dead under the brought action was 34 When this Walls, Patterson and of this court's axe of standing bring plaintiffs had to unharmed II, nothing quest can make the fee private of the Act again. There can no counsel-fee action for a violation viable be It must be attached to award in abstracto. award as a and to receive a counsel-fee adjudicated prevailing party. Their claim is claim that is still exis declared question The fee died with the de tence. by I. Their declared actionable plaintiffs' private cause of action. mise of the is also to a counsel-fee award entitlement by authority. pronounced that It is a final parallel that There are two rules right abolished to- is substantive of one another which stand contradiction day's application early of after-craft- retroactive statehood: one have co-existed since change jurisprudential absolutely the settled law ed is obedient any exceptions64 meaning. case of the without text's right By of counsel-fee 62. its reference that a statuto- Thomas, note teaches supra siding building a railroad award the court is quantum damages ry recovera- increase in the escape 16 of from the main track. See note action fashions "a new element ble in a contract destroyed by opinion. to- What the court's {creating] damages distinguished as from day's jurisprudence is the retroactive issue in ..." Id. at 1 at 976. The new remedy. plaintiff. right of action an unharmed statutory increase in Thomas was whether may applied wrongful retroac- death benefits be contingency- critique on a 63. The court's focuses "[s]tatutory tively. increases This court held that theory been raised That could have fee defense. changes damage in substantive limitations are by the settled law in Tibbetts I. It is now barred changes." rights Id. For and not mere remedial Nealis, at at note of the case. Jimmy progeny D. Enter- Thomas' see Roach v. (the 462; Handy, supra at 873 note Majors v. 852; 1996 OK Ltd., prises, operates doctrine to bar settled-law-of-the-case Good, (statutory in- 832 P.2d 420 finally relitigation of issues that are settled quantum of recov- or restrictions on the creases appellate opinion those that as well changes rights damages are in substantive erable timely aggrieved party to raise in the has failed only). applied prospectively that must be ). appellate contest course of Extra-legal are those which are not means e.g., Co., Ins. See, Dixon v. State Mut. ("It sought. 60 Ok. 237 is the 159 P. prescribed the relief law for timely for certiorari is still under review.68 open-ended escape which allows an the other parallel rules is hatch.65 Obedience to these punished The should not be for solely by dictated the court's unrestrained this court's earlier inaction. latter choice. That alone condemns the rule {41 impermissibly The court has overex- for the court's whimsical choos vehicle power grant relief tended its corrective

ing application than rather for its reasoned quest. upon timely-brought certiorari the law. gives today second bite it the loser lies clear- support For of its reliance on the ly on a collision course with constitutional open-ended escape hatch from settled law the lawmaking restraints on retroactive either longevity authority court invokes the legislation adjudication. brazenly It con- today's say departure. it to Suffice preclusion travenes standards of issue " revolting to have no better reason 'it incorporated body which stand into the a rule of law than that so it was laid down in Oklahoma law from the norms of Restate- Henry It the time of IV. is still more revolt (Second) § Judgments ment of 27 and from grounds upon ing if the which it was laid exposition in the Restatement's recent since, long down have vanished rule jurisprudence. U.S. simply persists from blind imitation of the past."" legal reasoning not sus Sound will IX tain a rule time of usefulness has whose passed. SUMMARY justify attempts The court its {42 Any departure from settled law or by invoking abandonment of settled law from preclusion the doctrine of issue "palpably erroneous" test. The latter is as solely upon authorized a court's determina- injustice." vacuous and standardless as "manifest that, settlement, tion before its the issue was says nothing degree 67 It about the of fully fairly litigated. not and one When error that must be exceeded before it can be empty shapeless yardstick invokes the and of applying invoked. this test the court is "justice," legal rights by per- one measures utterly palpably free to find error erro predilection sonal rather than a fixed neous. The test-a mere verbal camou gauge of the law. flage-serves as a carte blanche for total judicial prece freedom from norms of {43 "injustice" The from which the court dent. saves defendant was occasioned (a) provide palpably If a court's to the decision is indeed erro failure relief in sought defendant when certiorari was T4ib- neous, the time to correct is not after (b) relitigation is barred the command of betts retroactive destruction of through applying settled law the case preclusion, petition rather issue but when a of general upon general (1971) rule that a decision de- (Burger, 1999, 2016, S.Ct. 29 L.Ed.2d 619 petition, party C.J., Holmes, murrer to a when the elects to dissenting) (quoting Oliver Wendell ruling upon petition, upon stand is a The Law, Path 10 Harv.L.Rev. of adjudicata par- merits and is res as between the facts, (1897)). upon ties the same state of but in a case Supreme where the Court sustains the trial court Employment legal of vacuous standards solely upon ground petition that was counterproductive developing body of rea- filed, binding prematurely holding upon such soned with and consistent decisions concretized court, the trial and it is immaterial precedential of value norms which so neces- Supreme Court has since held that the same sary judicature everyone for a that assures of good state of facts constitutes a cause of ac- even-handed fairness. tion."). Id., added). (emphasis T0 The com- unqualified mand of Dixon's obedience to settled consistently law has been and often followed. It 68. The court fails to address itself to the dissent's unrepudiated. remains preclusive view that Tibbetts I raises an issue bar open-ended escape hatch Elec., See, eg., City Oklahoma Gas & Power application changes retroactive of after-crafted ¶ note at Co., 760-61. controlling finally shaped a once norm statuto- ry sought justified. law is to be Agents 66. Bivens v. Six Unknown Named Feder- al Narcotics, Bureau 403 U.S. substan- norms this claim OK 75 after-crafted meaning a control- change in the tive-law HEFFRON, C. William ling statutory text. Plaintiff/Petitioner, an issue case « 44 Because this deals law, changed court's of substantive OF OKLA THE DISTRICT COURT meaning of the stat- the intended course for COUNTY, The Honorable HOMA constitu- must conform to the question ute Gurich, Respondent, Noma D. that calls for con- expressed command tion's application evenhanded tinued and Company, Illinois Emcasco Insurance begun was proceeding when law force Party in Interest Defendant/Real rights. protection accrued and for the Respondent, of statu- efficacy the substantive norm this case in tory pronounced for impaired after- altered or

I cannot be Party Dallas, Real Scott jurisprudence infuses promulgated Respondent. Interest meaning. contrary or different 98,881. No. jurispruden- Today's rejection of a T45 meaning the statute's norm declared for tial of Oklahoma. and the retro- the claim accrued at the time Sept. changed application norm spective by Art. destroy rights protected case to this 18, 2008. As Corrected Oct. I would §§ Ok. Const. changed

apply the court's to this claim

meaning Act.

] go pronouncement I would today's 46 In does, reiterate, as the court

no further than to the reconere- commitment

our continued meaning Act's norm of the

tized Patterson, but, contrary

crafted Walls I leave undis- holding, would

to the court's finally case settled for this

turbed the law shielded from and now

COCA's legislative change rule both

retroactive tinkering. The de- judicial after-the-fact justice-invoking res- proposal for a

fendant's so proceeding, which of this certiorari

olution pro-

plainly violates the state constitution's applying sub- against after-crafted

tection escape changes, cannot

stantive-law positively destructive It

condemnation. part illegal. from that I hence recede retroactively thrusts today's opinionwhich re-engineered after norms

into this case the law that I settlement of

COCA's remand. govern

Case Details

Case Name: Tibbetts v. Sight 'N Sound Appliance Centers, Inc.

Court Name: Supreme Court of Oklahoma

Date Published: Sep 16, 2003

Citation: 77 P.3d 1042

Docket Number: 96,079

Court Abbreviation: Okla.