Patterson v. Beall

2000 OK 92, 19 P.3d 839, 71 O.B.A.J. 3016, 2000 Okla. LEXIS 94, 2000 WL 1707795

• Court: Supreme Court of Oklahoma
• Decided: November 14, 2000
• Docket: 92,399
• Status: Published

Opinions

BOUDREAU, Justice:

11 We are presented with two issues on certiorari. First, are summary judgment motions under Rule 18 of the Rules for District Courts of Oklahoma, 12 0.8. (1991), ch. 2, app. (Rule 13), inconsistent with the purpose of the Small Claims Procedure Act, 12 O.S. § 1751 et seq.-namely, the efficient and prompt disposition of small claims?¹ We may review claims which relate to alleged deprivations of due process of law despite a failure to preserve error. Bottles v. State ex rel. Oklahoma State Bd. of Medical Licensure and Supervision, 1996 OK 59, ¶4, 917 P.2d 471, 472; Pettit v. American Nat'l Bank, 649 P.2d 525, 529 (Okla.1982). Second, does the appraiser's alleged conduct, if proven, constitute a deceptive trade practice or an unfair trade practice under the Oklahoma Consumer Protection Act, 15 O.S8. (1991), § T51 et seq.?

{2 We hold that summary judgment motions are inconsistent with the purpose of the Small Claims Procedure Act and that the real estate appraiser's alleged conduct, if proven, constitutes an unfair trade practice. We reverse and remand for further proceedings consistent with this opinion.

I

FACTS

13 Jerry Patterson, dba Patterson Pest and Weed Control (Mr. Patterson), performed a termite inspection for Lonnie and Bernice Beall (collectively, Mrs. Beall). Mr. Patterson billed Mrs. Beall $105.00. She refused to pay the bill because, according to her, she had not asked him to perform a termite inspection but rather had requested merely a free estimate. The dispute escalated. He filed a $105.00 lien against her property. She then asserted she had performed a real estate appraisal for him, demanded payment of $115.00 for the appraisal and attempted to file a $115.00 lien against his property. He denied having requested an appraisal and denied she had performed an appraisal for him. He complained about her to the Oklahoma Real Estate Commission. She complained about him to the Oklahoma Department of Agriculture. Both entities declined to pursue the complaints. He then sued her for $4,500.00 in the small claims division-for breach of contract ($105.00) and for alleged violations of the Oklahoma Consumer Protection Act. She filed counterclaims against him for $4,500.00-for breach of contract ($115.00), for alleged violations of the Oklahoma Consumer Protection Act, for specific performance and to quiet title.

4 Mrs. Beall eventually paid Mr. Patterson $105.00 and both parties released their respective liens,. Mrs. Beall also eventually voluntarily dismissed her Oklahoma Consumer Protection Act counterclaim against Mr. Patterson.

[ 5 The trial court permitted the parties to file summary judgment motions. In a written order the trial court addressed all remaining claims and counterclaims. With respect to Mrs. Beall's counterclaims, the trial court concluded that the remedies of specific performance and quiet title are outside the seope of the Small Claims Procedure Act. The trial court then granted summary judgment against Mrs. Beall on her counterclaim for breach of contract. Mrs. Beall did not appeal from these adverse rulings.

6 With respect to Mr. Patterson's claims, the trial court found the parties settled Mr. Patterson's breach of contract claim when Mrs. Beall paid Mr. Patterson $105.00. The trial court then granted summary judgment against Mr. Patterson on his claim that Mrs. Beall violated the Oklahoma Consumer Protection Act. The trial court found that Mrs. Beall's alleged conduct was not deceptive and did not constitute a trade practice under the Oklahoma Consumer Protection Act. Mr. Patterson appealed.²

II

STANDARD OF REVIEW

¶7 We review the trial court's legal rulings de novo. Manley v. Brown, 1999 OK 79, 989 P.2d 448. De novo review requires an independent, non-deferential re-examination of another tribunal's record and findings.

III

SUMMARY JUDGMENT MOTIONS UNDER RULE 183 ARE INCONSISTENT WITH THE PURPOSE OF THE SMALL CLAIMS PROCEDURE ACT-THE EFFICIENT AND PROMPT DISPOSITION OF SMALL CLAIMS.

A

The Small Claims Procedure Act

¶8 The Small Claims Procedure Act, 12 0.8. (1991), § 1751 et seq. (the Act), provides a special procedure for certain actions where the amount of money sought to be recovered does not exceed four thousand five hundred dollars ($4,500.00).³ It provides an informal procedure "to facilitate the access of parties to simple, inexpensive and speedy justice." Johnson v. Scott, 1985 OK 50, 702 P.2d 56, 59. The unmistakable public policy goal of the Act is to provide small claims forums as "people's courts, uncomplicated by the formal demands of superior courts." Thayer v. Phillips Petroleum Co., 1980 OK 95, 613 P.2d 1041, 1044.⁴

T9 In the interest of promoting the prompt and efficient disposition of small claims actions, the Act allows no formal pleadings other than a small claims affidavit and in some cireumstances an answer. 12 0.8. (1991), § 1758.⁵ The Act requires that the trial be set not more than sixty days nor less than ten days from the commencement of the action. 12 0.8. (2000), § 1756.⁶ If the defendant desires to assert a counterclaim or setoff by verified answer, the Act requires the defendant to file the answer with the court clerk not later than seventy-two hours prior to the trial so as not to delay the trial. 12 0.8. (1991), § 1758.

¶ 10 The Act prohibits all depositions, interrogatories and all other discovery procedures except after judgment in aid of execution. 12 0.8. (1991), § 1760.

111 The Act mentions one pretrial motion only. 12 O.S. (1991), § 1757. It allows the defendant to file a motion to transfer the small claims action to the regular civil docket. Lee Wayne Co., Inc. v. Pruitt, 1976 OK CIV APP 23, 550 P.2d 1374. The Act requires that the motion to transfer be filed and defendant be given notice of the motion at least forty-eight hours prior to the trial. 12 0.8. (1991), § 1757. The granting of the motion is discretionary with the trial court. Id.

[ 12 The Act does not allow new parties to be joined and it prohibits other parties from intervening in the action. 12 O.S8. (1991), § 1760.

¶13 The Act requires that if either party desires a jury the party must notify the court clerk in writing at least two working days before the trial so as not to delay the trial 12 0.8. (1991), § 1761. Regardless of the whether the trial is jury or non-jury, the "rules of evidence are relaxed." Prudential Mgmt. Co., Inc. v. Allen, 1976 OK 122, 554 P.2d 1365, 1366; Black v. Littleton, 1975 OK CIV APP 1, 532 P.2d 486, 487. The hearing and disposition of a small claims action is "informal with the sole object of dispensing speedy justice between the parties." 12 O.S. (1991), § 1761.

B

Motions for Summary Judgment under Rule 18

¶14 Motions for summary judgment are governed by Rule 18 of the Rules for District Courts of Oklahoma, 12 O.S. (1991), ch. 2, app. The standard for a summary judgment specified in Rule 18 is that there is no substantial controversy as to any material fact as shown by the affidavits and discovery materials attached to the motion. Hamilton v. Allen, 1998 OK 46, 852 P.2d 697.⁷

115 Rule 13(a) allows a party to serve a motion for summary judgment anytime after the filing of the action, except that if the action has been set for trial the motion must be served at least twenty days before the trial date. The motion must be accompanied by a concise written statement of the material facts as to which the movant contends no genuine issue exists and must explain why the movant believes summary judgment should be granted. The statement must refer to evidentiary materials upon which the movant relies and copies of these materials must be attached to the statement. Rule 13(a). With the exception of affidavits, these materials almost always take the form of discovery responses such as excerpts of depositions, answers to interrogatories and to requests for admissions, and documents that have been produced in response to discovery requests. Id.

116 Rule 18(b) allows the opposing party an opportunity, within fifteen days after service of the motion, to serve upon the moving party and file with the court clerk a written statement in response to the motion. The response must include a concise written statement of the material facts as to which the opposing party contends there is a genuine issue and the reasons for denying the motion. Id. The written statement must set forth and number each specific material fact that is claimed to be in controversy and must include references to the specific pages and paragraphs or lines in the attached affidavits and discovery materials upon which the opposing party relies. Id.

a. A party may move for judgment in his favor on the ground that the depositions, admissions in the pleadings, stipulations, answers to interrogatories and to requests for admissions, affidavits, and exhibits on file, filed with his motion or subsequently with leave of court show that there is no substantial controversy as to any material fact.

The motion shall be accompanied by a concise written statement of the material facts as to which the movant contends no genuine issue exists and the reasons why summary judgment should be granted.

Reference shall be made in the statement to the pages, paragraphs and/or lines of the depositions, admissions, answers to interrogatories and to requests for admissions, affidavits, exhibits and other materials whether filed by the moving party or by the adverse party, and a copy of the material relied on shall be attached to the statement.

The motion may be served at any time after the filing of the action, except that, if the action has been set for trial, the motion shall be served at least twenty days before the trial date. The motion shall be served on the adverse party or parties and filed with the court clerk.

b. If the adverse party or parties wish to oppose the granting of the motion, they shall serve on the moving party and file with the court clerk within fifteen days after service of the motion a concise written statement of the material facts as to which he or they contend a genuine issue exists and the reasons for denying the motion. The adverse party shall attach to the statement affidavits and other materials containing facts that would be admissible in evidence, but the adverse party cannot rely on the allegations or denials in his pleading. In the statement, the adverse party or parties shall set forth and number each specific material fact which is claimed to be in controversy and reference shall be made to the pages, paragraphs, and/or lines of the depositions, admissions, answers to interrogatories and to requests for admissions, affidavits, exhibits and other materials whether filed by the moving party or by the adverse party, and he shall attach to the statement the portions relied upon. All material facts set forth in the statement of the movant which are supported by admissible evidence shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the adverse party which is supported by admissible evidence. If the motion for judgment is granted, the party or parties opposing the motion cannot on appeal rely on any fact or material that is not referred to or included in the statement in order to show that a substantial controversy exists.

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d. Should it appear from an affidavit of a party opposing the motion that he cannot for reasons stated present facts essential to justify his opposition, the court may deny the motion for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

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Rule 13 of the Rules for District Courts of OkKla-homa, 12 O.S. (1991), ch. 2, app.

117 Further, Rule 18(d) allows a party opposing a motion for summary judgment to seek a continuance by submitting an affidavit explaining why he or she cannot present facts essential to justify opposition to the motion. The trial court may order a continuance to permit the opposing party to obtain affidavits or to conduct additional discovery.

C

Analysis

{18 "The primary goal of statutory construction is to determine legislative intent. That intent is to be ascertained from the statute in light of its general purpose and object. It is presumed that the Legislature has expressed its intent in a statute and that it intended what is so expressed." TXO Production Corp. v. Oklahoma Corp. Comm'n, 1992 OK 39, 829 P.2d 964, 968-69.

{19 In our view motions for summary judgment under Rule 13 are inconsistent with the intent and purpose of the Small Claims Procedure Act-the efficient and prompt disposition of claims.

120 First, the application of Rule 18's timing requirements to small claims actions would encumber the very purpose of the act. The Act's timing requirements are designed with speed and efficiency in mind. The Act allows a small claims trial to be set as early as ten days after commencement of the action. Any trial setting between 10-20 days after commencement of the action would either preclude Rule 183 motions (since a Rule 13 motion must be filed at least 20 days prior to trial) or would require a continuance of the trial. Any trial setting within thirty days after commencement of the action would undoubtedly, in most instances, also require a continuance.

121 Second, the purpose of the Act is to create a simple, uncomplicated "people's court" in which the procedures are informal and the litigants do not need to hire lawyers. In contrast, the procedures of Rule 18 are more technical and complex. Few non-lawyer litigants embroiled in a dispute within the jurisdictional limitations of the small claims division are likely to be aware of Rule 13. It is even less likely that they would understand its timing requirements, its suffi-clency requirements with respect to motions and responses, or the effect of not filing a response at all. A non-lawyer litigant faced with a motion for summary judgment is far more likely to need the services of an attorney.

122 Third, the Small Claims Procedure Act expressly prohibits discovery. In contrast, summary judgment motions almost always require the use of discovery materials.⁸

128 Fourth, the Act relaxes the rules of evidence. In contrast, Rule 13 does not allow the rules of evidence to be relaxed. In order for material facts that are not controverted by the adverse party to be deemed admitted for the purpose of summary judgment, those material facts must be supported by admissible evidence. Rule 13(b).

124 Fifth, the maxim "expressio uni-us est exelusio alterius," that the mention of one thing in a statute impliedly excludes another thing, is used to determine legislative intent. PSO v. State ex rel. Corporation Commission, 1992 OK 153, 842 P.2d 750, 753. The Legislature expressly allowed one pretrial motion in the Small Claims Procedure Act-a motion to transfer the small claims action to another docket of the district court. The Legislature declined to allow for the filing of any other pretrial motions. From the Legislature's provision for one and only one pretrial motion we conclude the Legislature did not intend to allow motions for summary judgment in small claims actions.

1 25 Sixth, either party who desires access to the full panoply of pretrial motions has a method to avoid the limited procedures in the small claims division. A plaintiff may simply choose not to sue under the Act in the first instance. A defendant sued under the Act may move, pursuant to 12 O.S. (1991), § 1757, to transfer the action to the regular civil docket.

126 In conclusion, we hold that motions for summary judgment under Rule 18 are inconsistent with the purpose of the Small Claims Procedure Act-the efficient and prompt disposition of claims-and are not applicable in small claims actions.

IV

THE OKLAHOMA CONSUMER PROTECTION ACT

Introduction

1127 In the 1960's, individual states began to enact consumer protection laws designed to parallel and supplement Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1), which Congress adopted to protect citizens against unfair trade practices. Bee Leaffer and Lipson, Consumer Actions Against Unfair or Deceptive Acts or Practices The Private Uses of Federal Trade Commission Jurisprudence, 48 Geo. Wash. L.Rev. 521 (1980). These state laws, generally referred to as consumer protection acts or as unfair and deceptive trade practices acts, derived from various forms suggested to the states by the Federal Trade Commission (FTC) and the Commissioners on Uniform State Laws.⁹

%28 Oklahoma's Consumer Protection Act (OCPA) is codified at 15 0.8. (1991), § 751 et seq. Because the OCPA is remedial in nature it is to be liberally construed to effectuate its underlying purpose. See, eg., Holmes v. LG Marion Corp., 258 Va. 473, 521 S.E.2d 528 (1999).

129 Mr. Patterson contends the following conduct by Mrs. Beall violated the OCPA: (a) demanding payment for a real estate appraisal that he never requested and that she never performed and (b) filing a false, retaliatory lien against his property.

Private Right of Action under the Oklahoma Consumer Protection Act

180 The Federal Trade Commission Act does not provide for a private right of action. Nevertheless, most of the state consumer protection acts, including Oklahoma's, do. See National Consumer Law Center, Unfair and Deceptive Acts and Practices, app. A (dth ed.1997) (includes citations to and summaries of the states' consumer protection acts). The private right of action in the OCPA is found at 15 O.S. (1991), § 761.1.¹⁰ Based on the statutory language, the four elements of a consumer's private action under the OCPA are: (1) that the defendant engaged in an unlawful practice as defined at 15 0.8. (1991), § 758; (2) that the challenged practice occurred in the course of defendant's business; (8) that the plaintiff, as a consumer, suffered an injury in fact; and (4) that the challenged practice caused the plaintiff's injury.

1 31 The first element to be proved is that the defendant engaged in an unlawful practice under the OCPA. Unlawful practices are identified in § 758. Subsections (1)-(15) of § 753 declare a number of specific acts to be unlawful practices. Subsections (16)-(19) and (21)-(23) of § 753 refer to other Oklahoma statutes and declare violations of these statutes to be unlawful practices. Finally, pertinent to the instant case, subsection (20) is a catchall provision that declares unlawful the commission of any "unfair or deceptive trade practice as defined in section 752." The second element derives from the introductory phrase of § 758. It requires that the challenged practice must occur "in the course of the person's business." The third element, that the plaintiff as a consumer suffered an injury in fact, derives from § T61.1(A). This subsection gives a private right of action only to "an aggrieved consumer." It requires that an aggrieved consumer sustain damages as a result of the defendant's unlawful practice. The fourth element, causation, also derives from § T6L1(A). This subsection requires plaintiff to prove that his or her damages were caused by the defendant's unlawful practice.

132 A minority of states have adopted a fifth element-that the alleged unlawful practice affects the public interest. See, e .g. Hall v. Walter, 969 P.2d 224, 285 (Colo.1998); Nelson v. Lusterstone Surfacing Co., 258 Neb. 678, 605 N.W.2d 186, 141 (Neb.2000); Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wash.2d 778, 719 P.2d 581, 585 (1986). These states inferred the public interest element from certain language used in their respective consumer protection acts that is not used in the OCPA. Thus, we decline to require as an element of a private OCPA claim that the challenged conduct affect the public interest.¹¹

Does Mrs. Beall's Conduct, if Proven, Constitute an Unfair Trade Practice?

1383 The trial court determined Mr. Patterson failed to establish the first element of his private right of action under the OCPA-an unlawful practice. The trial court concluded that Mrs. Beall's conduct, even if proven, did not violate the OCPA because the conduct did not constitute an unfair trade practice under the OCPA. We disagree.¹² |

134 The OCPA defines an unfair trade practice as follows:

(12) "Unfair trade practice" means any practice which offends established public policy or if the practice is immoral, unethical, oppressive, unserupulous or substantially injurious to consumers.

15 0.8. (1991), § 752 (12). While this statutory definition of "unlawful trade practice" is broad it is not unique. Many state consumer protection statutes do not specifically define what constitutes an unfair trade practice but instead provide broad protection and leave it to the courts to determine whether specific conduct qualifies. See generally, Donald M. Zupanee, Annotation, Practices Forbidden by State Deceptive Trade Practices and Consumer Protection Acts, 89 ALRB3d 449 (1979 & Supp.2000).

135 Whether alleged conduct constitutes an unfair trade practice under the OCPA is a fact question that the trial court must determine on a case by case basis. Under the unique cireumstances of this case, we have no difficulty concluding that if Mrs. Beall demanded payment from Mr. Patterson for a real estate appraisal that was neither requested nor performed, and filed or attempted to file a false lien against Mr. Patterson's property, her conduct constituted an unfair trade practice as that phrase is defined in the OCPA.

$36 Accordingly, we vacate the Court of Civil Appeals opinion, reverse the trial court's summary judgment against Mr. Patterson on his OCPA claim, and remand the case for further proceedings consistent with this opinion.¹³

V

VACATION OF THE AWARD OF APPELLATE ATTORNEY'S FEES AND COSTS TO MRS. BEALL

{37 The Court of Civil Appeals awarded Mrs. Beall her appeal-related attorney's fees and costs. Since we vacate the Court of Civil Appeals' decision and reverse the trial éourt's judgment, we also vacate the award of appeal-related attorney's fees and costs. Thompson v. Independent School Dist. No. 94, 1994 OK 189, 886 P.2d 996.

VI

SUMMARY

{38 We hold that motions for summary judgment are inconsistent with the intent and purpose of the Oklahoma Small Claims Procedure Act and, therefore, summary judgment motions cannot be filed or considered in the small claims division of the district court. We further hold that if Mr. Patterson's OCPA claim is not otherwise precluded and if he proves Mrs. Beall's conduct as alleged, then Mrs. Beall's conduct constituted an unfair trade practice under the OCPA.

THE OPINION OF THE COURT OF CIVIL APPEALS IS VACATED; THE AWARD OF APPEAL RELATED ATTOR-NEYVS FEES AND COSTS IS VACATED; THE TRIAL COURTS JUDGMENT IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

89 HODGES, LAVENDER, KAUGER, WATT, WINCHESTER, JJ., concur; SUMMERS, C.J., HARGRAVE, V.C.J., concur in part and dissent in part; OPALA, J., dissents from the Court's opinion.

1 . Appellant first raised this issue in the trial court on May 19, 1998, in his brief in opposition to Defendants' renewed motion for summary judgment. He contended he was being deprived of procedural due process by being subject to Rule 13 without the availability of discovery. Accordingly, he argued, the trial court should not be allowed to determine questions of fact. In his Petition in Error, he alleged the trial court erred in finding the Appellees were entitled to summary judgment. The Court of Civil Appeals addressed his contention in the opinion under review, and held that summary judgment motions are not available in small claims actions. While Appellant did not expressly raise the issue in his Petition for Certiorari, he raised it in Proposition VI of his Supplemental Brief on certiorari. He asserted that the trial court erred in granting summary judgment to Appellees. He argued that the trial court deprived him of the opportunity to prove his case when the trial court used "the aberration of summary judgment in small claims cases" without the benefit of discovery.

We may review claims which relate to alleged derivations of due process of law despite a failure to preserve error. Bottles v. State ex rel. Oklahoma State Bd. of Medical Licensure and Supervision, 1996 OK 59 ¶4 917 P.2d 471, 472; Pettit v. American Nat'l Bank, 1982 OK 85, 649 P.2d 525, 529 (1982).

2 . This is the second appeal arising from this action. Earlier in the proceedings the trial court dismissed the action for lack of subject matter jurisdiction. The Court of Civil Appeals, Division 1, reversed. Patterson v. Beall, 1997 OK CIV APP 64, 947 P.2d 617.

3 . Because the Small Claims Procedure Act specifies a particular procedure for small claims actions, the Oklahoma Pleading Code does not govern such actions. 12 O.S. (1991), § 2001.

The small claims division has power to hear claims for $4,500.00 or less, exclusive of costs and attorney's fees, in the following actions: (1) actions for the recovery of money based on contract or tort, including subrogation claims, but excluding libel and slander; (2) actions for re-plevin of personal property; and (3) interpleader actions. 12 O.S. (1991), § 1751(A). Small claims actions may not be brought by a collection agency or an assignee of a claim, except that a health care provider may bring an assigned claim against an insurer or third-party administrator. 12 O.S. (1991), § 1751(B).

4 . One of the reasons for the simplified procedure is to eliminate the necessity for a lawyer. Thayer v. Phillips Petroleum Co., 1980 OK 95, 613 P.2d 1041, 1042.

5 . An answer is necessary only when a defendant wishes to state new mater that constitutes a counterclaim or setoff. 12 O.S. (1991), § 1758.

6 . At the time of the dispute in this case, the small claims trial was required to be set within thirty days after commencement of the action. This time was enlarged to sixty days by amendment effective June 7, 2000. See 2000 Okla. Sess. Laws ch. 380 § 3 ("The date for the appearance of the defendant as provided in the order addressed on the affidavit shall not be more than sixty (60) days nor less than ten (10) days from the date of the order.").

7 . Rule 13 provides in pertinent part:

8 . We recognize that occasionally a summary judgment motion and response may rely only on competing affidavits.

9 . In 1970 the FTC offered alternative drafts of an Unfair Trade Practices and Consumer Protection Law. See Council of State Governments, Suggested State Legislation C4-C5 (1970). Two of the uniform model acts that have been adopted in a variety of forms are The Uniform Deceptive Trade Practices Act, 7A U.L.A. 35 (1978), and the Uniform Consumer Sales Practices Act, 7A U.L.A. 1 (1978).

10 . The Oklahoma Legislature enacted the OCPA in 1972 and amended it in 1988 to expressly provide a private right of action to aggrieved consumers. 1988 Okla.Sess.Laws, ch. 161, § 2.

11 . In contrast, the Attorney General is not allowed to proceed under the OCPA unless he or she believes that an investigation of a challenged practice would be in the public interest. 15 O.S. (1991), § 757.

12 . The trial court also found that Mrs. Beall's conduct did not constitute a deceptive trade practice. We agree with this part of the trial court's ruling. Section 752 defines a deceptive trade practice as follows: " Deceptive trade practice' means a misrepresentation, omission or other practice that has deceived or could reasonably be expected to deceive or mislead a person to the detriment of that person. Such a practice may occur before, during or after a consumer transaction is entered into and may be written or oral." 15 0.8. (1991), § 752 (11). The statutory definition does not speak to the necessity of an intent to deceive, but it does require that the alleged deceptive actions have the capacity to deceive the consumer. Under the unique circumstances of this case, since Mr. Patterson clearly knew he had not requested a real estate appraisal from Mrs. Beall, the trial court correct ly determined Mrs. Beall's actions did not have the capacity to deceive Mr. Patterson.

13 . The analysis under this section addresses only the first element of Mr. Patterson's claim. On remand, the trial court will determine whether Mr. Patterson can establish the second, third and fourth elements of his private cause of action under the OCPA. Further, there are two first impression issues raised by the parties which the trial court did not address. Since we will not act on any untried issue as a tribunal of first instance, Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906, 913, we defer to the trial court to determine the following issues on remand: (a) whether Mrs. Beall's alleged conduct is exempt from the OCPA under 15 O.S. (1991), § 754(2), which provides that the OCPA shall not apply to "actions or transactions regulated under laws administered by ... any ... regulatory body or officer acting under authority of this State;" and (b) whether Mr. Paiterson's claim is barred by the statute of frauds.