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

2003 OK 72, 77 P.3d 1042, 74 O.B.A.J. 2538, 2003 Okla. LEXIS 88, 2003 WL 22136138

• Court: Supreme Court of Oklahoma
• Decided: September 16, 2003
• Docket: 96,079
• Status: Published

Opinions

LAVENDER, J.;

1 1 We decide here if the trial judge erred in awarding $375,000.00 in attorney fees to plaintiffs/appellees in their class action suit brought against defendant/appellant, Sight 'n Sound Appliance Centers, Inc., d/b/a Sight 'n Sound & Cost Warehouse under the Oklahoma Consumer Protection Act (OCPA), 15 ©.S.1991, § 751 et seq., as amended.¹ We hold the trial judge erred, and the Court of Civil Appeals (COCA), Division I mistakenly affirmed, because the only reasonable attorney fee in this case is no fee, plaintiffs seeking solely money damages, but recovering zero damages (ie., nothing) via a jury verdict. We also overrule Tibbetts v. Sight 'n Sound Appliance Centers, Inc. (Tibbetts 1), 2000 OK CIV APP 47, 6 P.3d 1064 (cert. denied 3-30-00), a prior COCA, Division IV opinion involving the same case, as it wrongly held these private plaintiffs may recover attorney fees in this OCPA case merely by showing a violation of the OCPA without an attendant showing of damages or actual injury.

T2 This Court's decision in Walls v. American Tobacco Co., 2000 OK 66, 11 P.3d 626, followed shortly by Patterson v. Beall, 2000 OK 92, 19 P.3d 889, held that for a private plaintiff to have a viable claim under the OCPA the plaintiff must show as an essential element of the claim, actual damages, ie., injury in fact. To the extent plaintiffs argue Tibbetts I is the law of the case such that the propriety of at least some attorney fee award may not now be challenged as they have been determined to be the prevailing/sue-cessful parties by Tibbetts I, we hold an exception to the law of the case doctrine applies as Tibbetts I is palpably erroneous and a gross or manifest injustice would be done were we to allow the award for fees to stand when it is clearly not authorized by law and plaintiffs cannot be deemed to have prevailed because they recovered nothing.

PART I. STANDARD OF REVIEW.

13 What constitutes a reasonable attorney fee is a matter addressed to the sound discretion of the trial court to be decided based on various factors and a judgment awarding attorney fees will not be reversed absent an abuse of discretion. Continental Natural Gas, Inc. v. Midcoast Natural Gas, Inc., 1996 OK CIV APP 157, 985 P.2d 1185, 1188; see also State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659, 668 (review standard is abuse of discretion when reasonableness of attorney fees awarded is issue on appeal). As a general matter, an abuse of discretion review standard includes appellate examination of both fact and law issues [Christian v. Gray, 2008 OK 10, ¶ 43, 65 P.3d 591, 608] and abuse occurs when the ruling being reviewed is based on an erroneous legal conclusion or there is no rational basis in the evidence for the decision. Fent v. Oklahoma Natural Gas, Co., 2001 OK 35, ¶ 12, 27 P.3d 477, 481; Abel v. Tisdale, 1980 OK 161, 619 P.2d 608, 612 (reversal for abuse of discretion proper if trial judge makes clearly erroneous conclusion and judgment, against reason and evidence).

14 Further, when an assigned error is one of law a de novo review standard applies [Christian v. Gray, supra, 2003 OK 10, at ¶ 43, 65 P.3d at 608], a non-deferential, plenary and independent review of the trial court's legal ruling. Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 8 and n. 5, 33 P.3d 302, 305 and n. 5. Though normally when reviewing the reasonableness of an attorney fee award an appellate court affords the trial judge's finding(s) much deference because of the nature of the factual inquiry into the factors delineated in State ex rel. Burk v. City of Oklahoma City, supra, in that here the overriding and critical factor of the results obtained is undisputed and leads to only one rational conclusion as to what a reasonable fee should be (ie., no fee), the ultimate decision in this case turns on a question of law.

PART II. PROCEDURAL AND FACTUAL BACKGROUND.

15 The Pre-Trial Conference Order (PTO)² filed in the lower court in August 1997 indicates plaintiffs contended defendant's conduct violated the OCPA, § 758(8), (9) and (12). Subsection 12 details prohibited conduct of bait and switch advertising, accompanied by various forms of behavior concerning not selling or supplying the product advertised. Subsections 8 and 9, respectively, declare unlawful advertising, knowingly or with reason to know, a product with intent not to sell it as advertised or with intent not to supply the reasonably expected public demand unless the ad discloses a limitation of quality.³ Basically, plaintiffs' case, as presented to the jury, centered on the advertising of Magnavox television sets, but then steering the customer to another brand of television, ie., Goldstar. Tibbetts I, 2000 OK CIV APP 47, at 13, 6 P.3d at 1066-1067.⁴ Although plaintiffs' initial October 1994 petition had requested injunctive relief to prohibit defendant from continuing to violate the OCPA, the PTO-which controlled the subsequent course of the action-unequivocally sets forth that plaintiffs sought solely monetary relief-i.e., damages-both compensatory and punitive. Two of plaintiffs' attorneys, in effect, voiced their view at the attorney fee hearing held after remand from Tibbetts I, that the OCPA does not permit injunctive relief in a private consumer action and the request for injunctive relief was abandoned.

T6 After the case was tried, the jury was instructed on the law and provided three verdict forms: a defendant's verdict form which generally allowed the jury to find the issues in favor of defendant; a plaintiffs' verdict form generally allowing the jury to find in favor of the plaintiffs and to fix the amount of damages to the class as a whole; and a punitive damage verdict form. Nine members of the jury signed the plaintiffs' verdiet form, but it unequivocally fixed the amount of damages at zero. The same nine jurors signed the punitive damage verdict form and it fixed the amount of punitive damages at zero. Based on these verdicts we must assume the jury found defendant did engage in some violation of the OCPA, but that plaintiffs failed to carry their burden to show any damages.⁵ Judgment was entered by the trial judge, awarding plaintiffs nothing. The issue of attorney fees was reserved for proper application.

T7 Both sides, plaintiffs and defendant, moved for attorney fees and the trial judge denied both requests. Each side appealed the denials and the COCA, Division IV in Tibbetts I, in effect, decided that language employed in § 761.1(A) of the OCPA allowed plaintiffs to recover attorney fees merely by showing a violation of the OCPA without an attendant showing of damages or actual injury. Tibbetts I remanded for the trial judge to determine the amount of attorney fees. This Court denied defendant's quest for cer-tiorari to review Tibbetts I, the matter returned to the trial court, and after various written submissions of the parties concerning the attorney fee issue and an evidentiary hearing, the trial judge entered the award of $375,00.00 in favor of plaintiffs now before us.⁶

18 The $375,000.00 fee was arrived at by the trial judge upon a determination that the reasonable amount of plaintiffs attorneys' time was 3000 hours and that a reasonable hourly rate for the lawyers involved was an average of $125.00 per hour.⁷ Plaintiffs attorneys had initially sought over 1 million dollars in attorney fees and the record contains evidence that said attorneys may actually have spent 7000 hours in attorney's time on the case. We also note the record is undisputed that plaintiffs' agreement with their counsel as to attorney fees is a contin-geney-based agreement, i.e., plaintiffs have no responsibility to pay their counsel attorney fees as nothing was recovered. Further, the Findings of Fact and Conclusions of Law (FF/CL) that accompanied the trial court "Judgement" awarding the fees under review, indicates that the amount in controversy in this case was never clearly established, but would not have exceeded $25.00 per class member, a sum that would not have exceeded $500,000.00 for the class as a whole. Evidence presented at the attorney fee hearing, however, seems to reveal plaintiffs sought about 1 million dollars in compensatory damages from the jury, i.e., apparently about $50.00 per class member.

9 Defendant appealed the award and the COCA, Division I affirmed, though it appeared to recognize that Tibbetts I's holding that plaintiffs were entitled to attorney fees merely because they bad shown a violation of the OCPA was no longer good law in light of this Court's decision in Walls, supra, to the effect that an essential element of a private OCPA claim is actual damages. Division I's opinion determined it was powerless to reverse Tibbetts I, essentially in deference to the law of the case doctrine, and decided the amount awarded did not manifest an abuse of discretion.⁸ We previously granted certiora-ri and we now vacate the COCA's opinion, reverse the trial court judgment of $375,000.00 attorney fees in favor of plaintiffs and overrule Tibbetts I.

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

110 We first note that our review of the reasonableness of the fee awarded requires no exception to the law of the case doctrine because Tibbetts I did not decide the reasonableness issue. Generally, as applicable here, the law of the case doctrine provides that an appellate court's decision on an issue of law becomes the law of the case onee the decision is final, in all subsequent stages of the litigation. Matter of Estate of Severns, 1982 OK 64, 650 P.2d 854, 856. To properly apply the law of the case doctrine the appellate court in the second appeal must decide exactly what the first appellate decision determined expressly or impliedly. Shoemaker v. Estate of Freeman, 1998 OK 17, ¶ 15, 967 P.2d 871, 875. Tibbetts I decided that certain language in § 761.1(A) of the OCPA allowed plaintiffs to recover their attorney fees by showing involvement in a covered transaction with defendant and some violation of the OCPA on defendant's part in regard thereto without a showing of any actual damages. Tibbetts I, 2000 OK CIV APP 47, at 119-10, 6 P.3d at 1066-1067. Tibbetts I neither expressly nor impliedly decided what a reasonable attorney fee would be in this case, nor did it direct the trial judge in any particular way as to what weight to give appropriate factors in reaching the reasonableness issue on remand. Furthermore, it must be kept in mind that it is undisputed here that plaintiffs' attorney fee agreement with their counsel was contin-geney-based, ie., plaintiffs owe their counsel no attorney fees for bringing this case as nothing was recovered. We now consider the reasonableness issue.

$11 This Court has foreshadowed the proper decision in this case for we have recognized the importance of the relationship between the amount sued for in a case seeking only money damages and the results obtained. Southwestern Bell Telephone Co. v. Parker Pest Control, Inc., 1987 OK 16, 787 P.2d 1186, 1188-1189; see also Arkoma Gas Co. v. Otis Engineering Corp., 1993 OK 27, 849 P.2d 392, 394-395 (what is a reasonable attorney fee in each case must be considered in light of the extent to which plaintiff prevailed). Although, of course, there is no mathematical formula which can be applied in every situation as to gauging the reasonableness of a fee when considering the relationship between the amount sued for and the amount recovered, in our view, no rational argument can be made that a $375,000.00 attorney fee award is reasonable when counsel recovers absolutely no monetary relief for the client where the suit seeks approximately 1 million dollars, and only monetary relief is sought. The only reasonable fee here, as a matter of law, is no fee at all.

112 The United States Supreme Court in Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992), was faced with a somewhat analogous situation. In Farrar the plaintiff sought 17 million dollars, but was awarded only the nominal amount of one dollar. 506 U.S. at 106-108, 118 S.Ct. 566.⁹ Attorney fees of $280,000.00 were awarded by the trial court, but the federal Circuit Court reversed. Id. at 107, 118 S.Ct. 566. Upon certiorari review, although the Supreme Court decided that a civil rights plaintiff was the "prevailing party" under the applicable federal attorney fee statute [42 U.S.C. § 1988] because he obtained a one dollar nominal damages award, the reversal of the fee award was affirmed by the Supreme Court.

18 In so doing, the Supreme Court recognized that the most critical factor in deciding the reasonableness of a fee award is the degree of success obtained. Farrar, supra, 506 U.S. at 114, 118 S.Ct. 566 [quoting Hensley v. Eckerhart, 461 U.S. 424, 436, 108 S.Ct. 1983, 76 L.Ed.2d 40 (1983)]. Although not adopting the view that fees would never be appropriate when a plaintiff recovers only nominal damages, the Supreme Court made it clear that, "[when a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief ... the only reasonable fee is usually no fee at all." Farrar, supra, 506 U.S. at 115, 118 S.Ct. 566. Considering the degree of plaintiffs' success in the present case makes it obvious that no fee is warranted, as they were awarded none of the relief they sought, i.e., they sought solely money, but were awarded zero damages. A more poignant example of a lack of success would be hard to imagine.¹⁰

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

15 First off, the record in this appeal is not at all clear that defendant stopped any offending conduct by virtue of this lawsuit. Surely, nothing we glean from the record mandates defendant's future conduct one way or the other.¹¹ Second, merely showing some violation of the OCPA cannot be deemed success in any conventional sense when the only relief sought was money and nothing was recovered, ie., merely showing violation without damages was, in our view, nothing more than a hollow, technical victory at best. Plaintiffs' arguments in such regard do not justify this attorney fee award or transform it into a reasonable award. Again, the only reasonable award in view of plaintiffs' lack of success is no fee.

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

116 Even when the law of the case doctrine is applicable, it will not be applied, i.e., there is an exception, if the prior decision is palpably erroneous and this Court is convinced that failure to reverse it will result in a gross or manifest injustice. Cinco Enterprises, Inc. v. Benso, 1999 OK 80, ¶ 11, 995 P.2d 1080, 1085; Severson v. Roberts, 1946 OK 94, 168 P.2d 615, 617. Further, exception to application of the law of the case doctrine based on gross or manifest injustice may be warranted where an award of attorney fees is clearly not authorized by any law. C & L Enterprises, Inc. v. Citizen Band Potawatomi Tribe of Oklahoma, 2002 OK 99, ¶¶ 20-21, 72 P.3d 1, 6. We believe Tibbetts I is palpably erroneous and a gross or manifest injustice would be done were we to use the law of the case doctrine to uphold this attorney fee award based on Tibbetts I.

117 The ultimate reality is that plaintiffs did not prevail and they were not the successful parties in this case because they failed to show an essential element of their claim, ie., damages. Walls, supra, primarily based on the meaning of the term "aggrieved consumer" contained in § T61.1(A), the plain import of the words "damages" and "actual damages" also contained therein, and a historical analysis of amendment to § 761.1(A) after our decision in Holbert v. Echeverria, 1987 OK 99, 744 P.2d 960 (that rejected the notion the then existent version of the OCPA allowed a private individual cause of action under the Act), held that actual monetary damages, Le., actual injury, was an essential element of the private right of action under the OCPA. Walls, 2000 OK 66, at ¶¶ 10-13, 11 P.3d at 629-630.¹² Walls made it abundantly clear that the language in § 761.1(A), using the term "aggrieved consumer" as the person having been given the right to bring a private right of action for damages under the OCPA, requires the consumer to show something more than a violation of the Act; instead for a viable private claim under the OCPA the consumer must show actual damages as a necessary element of a claim. 2000 OK 66, at 119-18, 11 P.3d at 629-630; see also Patterson, supra, 2000 OK 92, at 11 30-31, 19 P.3d at 846 (third element of a plaintiffs private action under the OCPA is that consumer suffered an injury in fact; private right of action granted only to "an aggrieved consumer", thus, to be aggrieved a consumer must sustain damages as a result of defendant's unlawful practice). The jury verdict here conclusively manifests a failure of plaintiffs on such front.

118 Where a plaintiff fails to show an essential element of a claim in a suit for damages it cannot reasonably be asserted that the plaintiff has been successful. We so ruled in Sloan v. Owen, 1977 OK 289, 579 P.2d 812, a negligence action, where we held that based on a jury verdict similar to that here-i.e., finding for the plaintiffs but fixing the amount of plaintiffs' recovery at zero damages-plaintiffs were not entitled to recover their costs under 12 0.S.1971, § 928 as they could not be deemed the successful parties on the claim as they necessarily failed to establish actionable negligence because they did not show an essential element of the claim, injury proximately resulting from defendant's breach of duty. Sloan v. Owen, supra, 579 P.2d at 818-814. In our present case, it would put form over substance to actually consider plaintiffs to be the prevailing or successful parties as they recovered nothing from defendant.

119 In essence, the plaintiffs contend that the OCPA is a "private attorney general" statutory scheme that allows the recovery of attorney fees merely upon a showing of a violation of the Act (even though no damages are shown) and that the Legislature sanctioned such recovery of attorney fees in favor of private litigants who implement the public policy behind the OCPA and thereby encourage private litigation to benefit a legislatively recognized public interest.¹³ In other words, plaintiffs contend the Legislature in § 761.1(A) authorized the award of attorney fees, without the showing of any damages or the award of any other tangible relief, based on the view a private litigant by bringing to light conduct violative of the OCPA provides a general benefit to the public at large. We do not read the statute in such a way and plaintiffs' theory in such regard is inconsistent with our pronouncements in both Walls, supra and Patterson, supra.

TI 20 Plaintiffs' contention that the OCPA is a private attorney general statutory scheme and that they should be allowed to recover attorney fees here because they somehow vindicated a public right, is simply wrong. Again it is Walls, supra, that reveals the fallacy of plaintiffs' contention. For a private action to succeed the plaintiff must prove damages. Nowhere in § T61.1(A) is it indicated that attorneys are entitled to be compensated for merely showing some violation of the OCPA that caused no damages to their clients. This is particularly true where the clients owe the attorneys nothing because the attorney/client fee agreement is contin-geney-based [i.e., a percentage of any recovery], and the recovery is zero.¹⁴

121 Further, under the OCPA it is the Oklahoma Attorney General or a district attorney that may seek coercive relief, such as an injunction [§ 756.1], to vindicate public rights to see to it that companies do not violate the provisions of the OCPA.¹⁵ Plaintiffs attorneys, in effect, conceded at the attorney fee hearing that the OCPA does not permit injunctive relief in a private action.

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

123 Plaintiffs also argue entitlement to attorney fees based on the argument that defendant might have changed its conduct because of this lawsuit. In effect, plaintiffs are arguing a "catalyst" theory in support of recovery of attorney fees, without obtaining any enforceable judgment against defendant that changes the legal relationship of the parties. The United States Supreme Court recently rejected the catalyst theory of attorney fee recovery in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 582 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). There the Supreme Court held that a party whose lawsuit induced voluntary change in defendant's conduct was not the prevailing party under the attorney fee provisions of the Fair Housing Amendments Act of 1988 (42 U.S.C. § 8601 et seq.) or the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), because there was no enforceable judgment on the merits or court-ordered consent decree that somehow changed the relationship between the parties in such a way that defendant was actually required to do something by judicial sanction. Although, of course, we are not required to follow the Supreme Court's decision in this State law case under the OCPA, we hold that here without some judgment or judicial decree that has changed the relationship between the parties so that defendant is judicially required to do something, i.e., some enforceable judgment, plaintiffs cannot be said to be the successful or prevailing parties entitled to an award of attorney fees. There is no such enforceable judgment in this case requiring defendant to do anything.

124 Very simply, were we to accept plaintiffs' arguments in support of the affir-mance of the fee award, we would be transforming the OCPA into something it is not and would be allowing an attorney fee award not authorized by any law. This is something the OCPA nowhere requires and we decline to rewrite the Act to do so.¹⁶

PART V. SUMMARY.

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

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

127 Accordingly, the opinion of the Court of Civil Appeals is VACATED and the trial court judgment awarding plaintiffs attorney fees of $875,000.00 is REVERSED.¹⁷

128 WATT, C.J., HODGES, SUMMERS, BOUDREAU and WINCHESTER, JJ., concur. 29 HARGRAVE and KAUGER, JJ., concur in result. 'I 30 OPALA, V.C.J., dissents in part.

1 . The current version of the Oklahoma Consumer Protection Act (OCPA), of course, may be found at 15 0.$.2001, § 751 et seq., as amended.

2 . Rule 5(I) of the Rules for District Courts of Oklahoma, 12 0.$.2001, Ch.2, App., Rules 1 et seq., as amended, provides:

I. Pretrial-Orders. After any conference held pursuant to this rule, an order shall be entered reciting the action taken. This order shall control subsequent course of the action unless modified by a subsequent order. The order following a final pretrial conference shall be modified only to prevent manifest injustice. The form adopted by the Oklahoma Supreme Court for pretrial conference orders shall be used by the District Court. If the judge deviates from the form, he or she shall in writing show to the Supreme Court the reasons for such deviation.

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

The identical provision existed in August 1997 when the Pre Trial Conference Order (PTO) noted in the text was filed in the trial court. 12 0.$.1991, Ch.2, App., Rule 5(D).

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

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

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8. Advertises, knowingly or with reason to know, the subject of a consumer transaction with intent not to sell it as advertised;

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

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12. Employs "bait and switch" advertising, which consists of an offer to sell the subject of a consumer transaction which the seller does not intend to sell, which advertising is accompanied by one or more of the following practices:

a. refusal to show the subject of a consumer transaction advertised,

b. disparagement of the advertised subject of a consumer transaction or the terms of sale,

c. requiring undisclosed tie-in sales or other undisclosed conditions to be met prior to selling the advertised subject of a consumer transaction,

d. refusal to take orders for the subject of a consumer transaction advertised for delivery within a reasonable time,

e. showing or demonstrating defective subject of a consumer transaction which the seller knows is unusable or impracticable for the purpose set forth in the advertisement,

f. accepting a deposit for the subject of a consumer transaction and subsequently charging the buyer for a higher priced item, or

g. willful failure to make deliveries of the subject of a consumer transaction within a reasonable time or to make a refund therefor upon the request of the purchaser|{.]

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

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

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

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

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

8 . The opinion of the Court of Civil Appeals also cited 20 0.$.1991, § 30.14(B) for its lack of authority to reexamine Tibbetts I, supra, note 5. Title 20 0.$.2001, § 30.14(B)-as the 1991 version did-provides in pertinent part:

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

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

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

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

12 . Title 15 0.$.2001, § 761.1(A) provides:

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

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

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

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

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

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

15 . Title 15 0.$.2001, § 756.1, providing the same as when this lawsuit was brought by plaintiffs in 1994, provides:

A. The Attorney General or a district attorney may bring an action:

1. To obtain a declaratory judgment that an act or practice violates the Consumer Protection Act;

2. To enjoin, or to obtain a restraining order against a person who has violated, is violating, or is likely to violate the Consumer Protection Act;

3. To recover actual damages and, in the case of unconscionable conduct, penalties as provided by this act, on behalf of an aggrieved consumer, in an individual action only, for violation of the Consumer Protection Act; or

4. To recover reasonable expenses and investigation fees.

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

C. In any action brought by the Attorney General or a district attorney, the court may:

1. Make such orders or judgments as may be necessary to prevent the use or employment

by a person of any practice declared to be a violation of the Consumer Protection Act;

2. Make such orders or judgments as may be necessary to compensate any person for damages sustained;

3. Make such orders or judgments as may be necessary to carry out a transaction in accordance with consumers' reasonable expectations;

4. Appoint a master or receiver or order sequestration of assets to prevent the use or enjoyment of proceeds derived through illegal means and assess the expenses of a master or receiver against the defendant;

5. Revoke any license or certificate authorizing that person to engage in business in this state;

6. Enjoin any person from engaging in business in this state; or

7. Grant other appropriate relief.

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

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

The dissenting in part opinion acknowledges that the exception to the law of the case doctrine applied by the Court in PART IV of this majority opinion is not of recently discovered-vintage. In its footnote 29 the dissenting in part opinion cites cases dating back to shortly after statehood that recognize the existence of the exception. Although we agree with the dissenting in part opinion's general tenor that any exception to the law of the case doctrine should be tightly circumscribed, recognition of an exception essentially based on the palpably erroneous and gross or manifest injustice standard (as set out in 116 of this majority opinion) is of long-standing jurisprudential cognizance.

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

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