Tibbetts v. SIGHTN SOUND APPLIANCE

• Decision Date: 30 November 1999
• Docket Number: No. 91,714.,91,714.
• Citation: 2000 OK CIV APP 47,6 P.3d 1064
• Parties: Paul TIBBETTS, Erwin Olds, Mary Dittmeyer and Mary Pittman, on behalf of themselves and all others similarly situated, Appellants/Counter-Appellees, v. SIGHT `N SOUND APPLIANCE CENTERS, INC., an Oklahoma Corporation, d/b/a Sight `N Sound & Cost Warehouse, Appellee/Counter-Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

6 P.3d 1064

2000 OK CIV APP 47

Paul TIBBETTS, Erwin Olds, Mary Dittmeyer and Mary Pittman, on behalf of themselves and all others similarly situated, Appellants/Counter-Appellees, v. SIGHT `N SOUND APPLIANCE CENTERS, INC., an Oklahoma Corporation, d/b/a Sight `N Sound & Cost Warehouse, Appellee/Counter-Appellant.

No. 91,714.

Court of Civil Appeals of Oklahoma, Division No. 4.

November 30, 1999.

Certiorari Denied March 30, 2000.

Justin LaMunyon, R.L. Faulkner, Enid, Faulkner Law Firm, Enid, Oklahoma, David Humphreys, Luke J. Wallace, Tanya Humphreys, Humphreys, Wallace, Humphreys Tulsa, Oklahoma, for Appellants/Counter-Appellees.

Craig L. Box, Julia C. Rieman, Enid, Gungoll, Jackson, Collins, & Box, P.C. Enid, Oklahoma, for Appellee/Counter-Appellant.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 4.

OPINION

TAYLOR, J.

¶ 1 Plaintiffs, Paul Tibbetts, Erwin Olds, Mary Dittmeyer, and Mary Pittman, and Defendant, Sight `n Sound Appliance Centers, Inc., appeal the trial court's order denying attorney's fees and costs in this class action lawsuit brought under the Oklahoma Consumer Protection Act, where a violation of the Act was shown but no damages were awarded. After a review of the record and applicable law, we reverse and remand with instructions.

¶ 2 Plaintiffs are representatives of a class of consumers who purchased Defendant's products. In doing so, Plaintiffs allegedly relied on Defendant's unlawful practices of advertising merchandise with the intent of not supplying reasonably expected public demand; falsely representing that certain products were new when the products were reconditioned, reclaimed, used, or second-hand; engaging in bait-and-switch advertising and sales schemes; and willfully deceiving customers with the intent of inducing them to alter their positions to their injury. Plaintiffs brought this action against Defendants under the Oklahoma Consumer Protection Act.

¶ 3 On application to certify a class, the trial court ruled that Plaintiffs had met their burden of establishing a class action as it related to the purchase of certain televisions from Defendant between January 1, 1993, and December 31, 1994. The class action was tried before a jury. In general, Plaintiffs testified they saw Defendant's advertisement for a Magnavox television, but when they went to purchase it, Defendant represented they were out of Magnavox televisions or only had a floor sample. Defendant then persuaded Plaintiffs to purchase a Goldstar by representing the Goldstar as being a better deal. Plaintiffs further testified they had no problems with the Goldstar and did not suffer any monetary damage.

¶ 4 The jury returned a verdict in favor of Plaintiffs, but awarded zero actual and zero punitive damages. Plaintiffs and Defendant moved for costs and attorney's fees. The court denied both motions, finding that neither side was a prevailing party. Both Plaintiffs and Defendant appeal the denial of their motions for costs and attorney's fees. Plaintiffs argue that the jury's verdict in favor of Plaintiffs rendered them the prevailing parties. Defendant asserts that the jury verdict in the amount of zero dollars rendered it the prevailing party.

¶ 5 According to 15 O.S. Supp. 1998 § 761.1, entitled "Liability Under Consumer Protection Act":

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. (Footnotes omitted.)

The term "aggrieved consumer" is not defined in the Act. However, Defendant asserts that in order for Plaintiffs to be aggrieved, and therefore entitled to recover attorney's fees, they must prove that they sustained actual damages. Since Plaintiffs recovered zero actual and punitive damages, Defendants argue that Plaintiffs are not entitled to recover attorney's fees.

¶ 6 Oklahoma continues to stand firmly committed to the American Rule, under which a prevailing party may not recover a counsel-fee award absent an authorizing statute or contract. Morgan v. Galilean Health Enterprises, Inc., 1998 OK 130, 977 P.2d 357. The interpretation of statutory language is a question of law, and the appellate court reviews a determination of statutory language under a de novo standard. Oklahoma Employment Sec. Comm'n v. Oklahoma Merit Protection Comm'n, 1995 OK CIV APP 76, 900 P.2d 470; Weeks v. Cessna Aircraft Co., 1994 OK CIV APP 171, 895 P.2d 731. Under this standard, the appellate court conducts a plenary, independent, and nondeferential re-examination of the lower court's legal rulings. Kluver v. Weatherford Hosp. Auth., 1993 OK 85, 859 P.2d 1081.

¶ 7 In construing a statute, the reviewing court begins with the statutory language itself, with the ultimate goal of determining legislative intent; however, it is unnecessary to apply rules of construction...