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 *1046attendant 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 *10471997 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, *1048but 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-*1049ri 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 *1050of 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 *1051doctrine 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 prevail*1052ing 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 Plain*1053tiffs 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 *1054and 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

dissenting in part.

T1 The court reverses today the trial court's counsel-fee award to the plaintiffs and expressly overrules the statutory-law norm announced for this litigation in the earlier appeal of this cause (Tibbetts I).1 The overruled norm, which initially received a green light by this court's previous denial of cer-tiorari, upheld the unharmed plaintiff's right to press a private claim for the Oklahoma Consumer Protection Act's [Act] 2 violation and to receive a counsel-fee award as an additional element of their recovery. By today's opinion the counsel fee is now declared both contrary to this court's after-crafted jurisprudence3 in Walls v. American Tobacco Co.4 and Patterson v. Beall5 and unreasonable (in light of a zero-damage jury finding for the plaintiffs actual damages, which stands affirmed by Tibbetts I ). Upon substituting its after-promulgated statutory norm (of Walls and Patterson) for that which was earlier declared in Tibbetts I, the court opines that the plaintiffs did not have an actionable private claim and hence could not be regarded as successful litigants in the case. They had failed to show the now-required element of harm to their interests. It is the Walls and Patterson norm that the court applies to this claim today, even though the contrary holding announced in the earlier published, controlling and undisturbed COCA decision (a) bears unquestionable attributes of finality, (b) stands unrepudiated in the reports and (c) has never been directly challenged.6

12 My dissent addresses itself solely to the aftermath of today's departure from the course charted by Tibbelts I. It deals not with the new trail we blaze but rather with the havoc we wreak by abandoning the time-honored teachings of Anglo-American orthodoxy in appellate judicature.7 I would not apply to this case the court's repronouncement of its rule change 8 in Walls and Patterson. That application is patently offensive not only to the long-established teachings of the Anglo-American legal system discussed below, but also to the state constitution's expressed command (a) for continued and evenhanded application of the substantive norms of law in force when a "proceeding is begun" as well as (b) for the mandated fundamental-law protection of "accrued rights".

I

CRITICAL LITIGATION HISTORY

A.

COCA's Tibbetts I

T3 In a class action brought under the *1056Act,9 the jury returned a verdict for the plaintiffs, but awarded them no actual damages. At a postjudgment hearing, the trial court denied both parties' quest for an attorney's fee. Two separate appeals were then brought from counsel-fee denial, In a published opinion10 the Court of Civil Appeals [COCA] reversed the nisi prius ruling and directed the trial court to conduct a hearing for determination of a reasonable attorney's fee for the plaintiffs. This court denied the defendant's quest for certiorari review11 but chose not to withdraw from publication COCA's opinion in the case (Tib-betts I ).

COCA's Tibbetts II -

T4 Upon a postremand evidentiary hearing on the counsel-fee issue (that occurred after COCA's Tibbetts I promulgation and this court's issuance of its mandate following certiorari's denial), the trial court entered an award of $375,000 for the plaintiffs' legal fee. COCA affirmed (in Tibbeits II)12 and we granted certiorari for review of that opinion, which now stands here for decision.

B.

After-Crafted Statutory Jurisprudence

15 Walls13 and Patterson14 constitute after-promulgated changes in the controlling statutory-law norm pronounced by and for Tibbetts I.15 Both of these post-Tibbetts I cases declare harm to be an essential element of a consumer's private claim for the Act's violation. Tibbetts I explicitly and unequivocally pronounces the opposite view. Although Walls and Patterson departed from a substantive norm of statutory jurisprudence announced in Tibbetts I, they neither expressly overruled nor even gave mention to the persuasive authority of the then-extant Tibbetts I published opinion. The latter survives in fact and in the law books as an unrejected norm of judicially declared statutory law for this litigation at the time this cause returned to the trial court for the directed postremand proceedings. Today's pronouncement abolishes retroactively these unharmed plaintiffs' private claim under the Act together with their previously pronounced entitiement to an attorney's fee. By retroactively repudiating Tibbetts I, the court can escape neither the consequences of the settled-law-of-the-case doctrine (and of the issue-preclusion bar) nor of Oklahoma's constitutional restraints on after-crafted lawmaking, which restraints extend to substantive-law changes by jurisprudence no less than they do to those effected by legislative enactment.16 This assessment expresses the crux of my dissent.

II

FOR ITS REJECTION OF SETTLED LAW OF THE CASE THE COURT INVOKES TODAY A STANDARD-LESS TESTING FORMULA

A.

The Settled-Law-of-the-Case Doctrine

I 6 The court refuses to be bound here by the settled law of the case. It rejects the *1057doctrine as unjust for application to this litigation. "Justice" is interposed as the sine gua non of an adjudication's qualification for settled-law effect.

T7 The settled-law-of-the-case doctrine operates to bar relitigation in the same case of issues that were finally decided through an appellate process.17 The earlier decision on review becomes binding in all subsequent stages of the case. The doctrine not only ensures absolute consistency of later with former issue resolutions, it also guards against abuse of judicial process by preventing relitigation of issues settled in the course of an earlier appellate stage of the case.18

T8 I would not loosen one iota the firm grip of control the reviewing process of correction now wields over postremand proceedings whose course stands charted by an appellate disposition; I would firmly and loudly condemn every unauthorized departure from settled law, either in pos-tremand proceedings at nisi prius or in any other review stages that may follow. I would sanction departures from settled law solely for those issues which are determined not to have been fully and fairly" litigated.19

B.

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

T9 Today's pronouncement offers an open-ended judicial escape hatch from the established restraints that the settled-law doctrine imposes. The formula by which the court justifies its departure from settled law-a manifest "injustice" from its application-is patently overbroad and amorphous.20 Justice is a vacuous and shapeless legal norm 21 that has been dubbed an antonym of due process.22 Its yardstick is much like that of *1058an empty vat into which one may pour contents at will. It has been defined as a stan-dardless product of the natural-law reasoning process.23 Subjecting settled law to repeated serutiny by afterthought based on a vacuous *&auge will most surely undermine, if not indeed destroy, interinstitutional deference within the judicial service and the internal discipline among the courts. In short, I join many generations of judges and scholars in rejecting "justice" as an acceptable standard for departure from settled law. As a legal gauge, justice is as deceiving as the shifting sands upon which it is founded.

C.

Justice is Gauged by One's Individual Predilection

1 10 Is injustice (as a pretense for rejecting settled law) to be measured by an enormity of the mistake in shaping a flawed norm or by the severity of philosophical differences between an earlier-adopted and the later-rejected norm? No matter what measuring tape one will use, justice is but an empty and shapeless legal yardstick whose contours are circumscribed by nothing more than one's individual predilection. I must hence condemn rather than embrace justice as a legal norm. It is not concrete enough. If invoked, it becomes putty in the hands of the shaping applicator. Any authorized departure from settled law should instead be rested on the U.S. Supreme Court's well-established gauge (for applying issue preclusion) by which we must first answer whether the issue whose resolution is to be accepted as binding was fully and fairly explored in advance of its settlement.24 If so, settled law must govern; if not, it may be rejected. To hold otherwise injects whim into the legal system. Moreover, I would be loath to invite this State's courthouse and statehouse judges to regard themselves freed from obedience to any settled rulings which they may be tempted to condemn as offensive to their sense of justice.

*1059{11 The outer reach of a private right of action that is invocable under any legislative enactment does not present a unique controversy.25 Whenever a disagreement arises between two appellate courts over the proper legislative intent that must guide the construction to be placed upon the statute's text, it does not follow as a matter of law that the ultimately rejected view may also be rejected out-of-hand as unjust. The focus of inquiry to be conducted in order to resolve the question we answer today is whether the law settled by the earlier disposition is vulnerable to departure because the issue now to be accepted as settled had not been fully and fairly litigated. The integrity of judicial process is gravely offended when a higher court deems itself free to relegate to the rubric of "injustice" an inferior court's final pronouncement for nothing more than a simple disagreement on a matter of statutory intent.

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

D.

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

[13 The "injustice" done here lies not in COCA's now-rejected jurisprudence of T4b-betts I but in this court's shift of its judicature: in its voting pattern's change from yesterday's denial of certiorari-with a green signal given for the commanded pos-tremand proceedings-to today's attack upon the mandate of Tibbetts I left intact by this court's election not to grant certio-rari. The guilt from our own failure to act may not be shifted from ourselves to COCA. Nor may we, with a clear conscience, leave utterly helpless those litigants who were harmed by relying on that inaction. They too, like all others, deserve fairness. To them fairness lies in consistent adherence to the effective norms of yore.26 Because it is this court's own failure to stay the course (charted by Tibbetts I) which has produced today's dilemma, it behooves it to apply here a solution fully consistent with the orthodoxy of the Anglo-American judicature and with the State's constitutional restrictions on retrospective lawmaking.

E.

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

{14 The court's endorsement of open-ended freedom to repudiate settled law at will is utterly incompatible with the basic teachings of appellate judicature in the Anglo-American legal tradition. Today's opinion introduces to the State a post-appeal decisionmaking regime long associated with Franco-Roman cassation 27-an institution *1060never followed in any jurisdiction within the Anglo-American legal heritage. By overturning the law settled in Tibbetts I, the court has refashioned the State's institutional design for appellate judicature into a veritable cassation process. Cassation absolutely confines the appellate court's authority to quashing the judgment. It does not authorize the judgment-quashing tribunal to direct either the course or the complexion of post-remand proceedings. The Oklahoma Court of Civil Appeals is mot established on a Franco-Roman model of cassation. It functions as an intermediate tribunal of review in the State's Anglo-American tradition.

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

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

III

THE CLAIM ABOLISHED TODAY IS PROTECTED FROM BELATED JUDICIAL DESTRUCTION BY THE DOCTRINE OF ISSUE PRECLUSION30

{ 17 When certiorari was denied (and finality of COCA's decision came to be reached), the unharmed plaintiffs' entitlement to prosecute a private claim for a mere violation of the Act (to which counsel-fee recovery stood attached in favor of one declared to have emerged as prevailing party) became protected by the doctrine of issue preclusion.31

*106118 Issue preclusion prevents relitigation of facts and other issues actually litigated and necessarily determined in an earlier proceeding between the same parties or their privies.32 The preclusion doctrine (both with respect to its claim and issue applications) fosters the important goal of affording finality33 to all issues, of fact or law, which were fully and fairly litigated.34 The preclusion doctrine is applicable whether the contested issues in the case in which it is invoked were rightly or wrongly decided.35

{19 Actionability of the plaintiffs' private claim was finally resolved in their favor in Tibbetts I36 by this court's denial of certiorari and subsequent issuance of its mandate.37 *1062The latter judicial act put an end to all direct remedies available for correction of that pronouncement, even if it were flawed by ascribing the wrong meaning to the text of the Act. I would neither tamper with nor repudiate the command of issue-preclusion doctrine by retroactively applying after-crafted changes to a once finally shaped norm of controlling statutory law.38

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

IV

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

A.

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

121 Laowmaking is not the monopoly of the Legislature. A judge engages in lawmaking through adjudication when interstitially filling a gap in the law by formulating a common-law rule,39 construing a statute or agency rule, or by framing a constitutional norm.40 Both the process of developing the *1063common law and that of concretizing the textual meaning of statutory and constitutional law is known as interstitial lawmaking by adjudication.41 Today's change in the extant statutory jurisprudence constitutes the court's act of lawmaking through adjudication by refining (concre-tizing) the meaning to be placed on the substantive-law content of a legislative enactment.

B.

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

22 Legitimate judicial lawmaking by adjudication is not exempt from constitutional testing. Like legislation itself, it must pass the fundamental law's muster.42 Walls and Patterson43 are both acts of legitimate judicial lawmaking that fall under the constitutional restraints on the effect of after-enacted legislation. These pronouncements amend for this case, in a substantive manner, the earlier-declared meaning of, and consequences flowing from, the Act. They are contrary to the extant statutory law finally proclaimed by Tibbetts I. Although I do not recede from the court's current commitment to Walls and Patterson, I cannot accede to the view that these pronouncements may be applied to this cause.

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

T 24 Every retrospective change in the law produces "injustice"-losers become winners and vice versa; nay, after-crafted statutory jurisprudence, when retrospectively applied, may be perceived by some as an instrument of injustice.44 -It violates the process that is everyone's due. I cannot join the court's *1064refusal to afford the plaintiffs the protections conferred upon them by the Oklahoma Constitution 45 against retroactive application of after-promulgated changes in statutory jurisprudence. Inasmuch as the retrospective ef-feet given today's pronouncement destroys rights protected by Art. 5 §§ 52 and 54, Ok Const.,46 I would hold that the after-promulgated jurisprudential change in substantive statutory norms cannot be applied to this claim which had "accrued" and in which "proceedings [stood] begun" before the rule change. It is fundamentally unfair 47 to deprive the plaintiffs of their constitutionally protected accrued rights,48 declared by COCA in Tibbetts I and left undisturbed to become final by this court's election not to disturb them on certiorari review.49 In short, I would make the application of today's change in the meaning of statutory text conform to the constitution's mandate against retroactive lawmaking.

y

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

1 25 Retrospective overruling of the settled law of the case by after-enacted legislative changes (or those effected through the process of judicature) offends the explicit constitutional barrier to changing the applicable norms of substantive law for a proceeding begun earlier than the effected change. Art. 5 § 54, Okl. Const.50

26 One cannot deny that for application to the Tibbetts claim the statutory law to *1065govern the case has been changed; whether the change was effected by an appellate pronouncement or by a legislative enactment is immaterial. It is the change-jurisprudential or legislative, by enactment or adjudication-that falls clearly under the axe of constitutional condemnation for after-the-fact lawmaking. Today's retroactive application of substantive-law changes in the controlling statutory norm that stood declared for this claim in Tibbetts I offends the constitution's expressed solicitude for continued and evenhanded application of the law in force when the proceeding was begun.

T27 This proceeding was begun when the unharmed plaintiffs still enjoyed a private right of action for the Act's violation and the fruits of their judicially declared status as prevailing parties in the case. Today's opinion destroys the rights declared in their behalf by COCA's Tibbetts 1.

VI

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

128 When the Tibbetts I phase of this litigation came to an end by this court's denial of certiorari (and by the issuance of its mandate), the applicable and effective statutory norm of Oklahoma's substantive law unquestionably gave the unharmed plaintiffs a private cause of action for a mere (harmless) violation of the Act. Their status as prevailing party, which entitled them to a counsel-fee award, stands pronounced by COCA's Tibbetts I.51 That declaration, when final, became the plaintiffs' constitutionally protected accrued right.52 COCA's holding in Tibbetts I has retroactive effect by force of common law and this court chose not to disturb its terms on certiorari. After-passed legislative enactments (or after-promulgated caselaw) can neither destroy nor alter these rights.53 To hold otherwise would undermine the constitutionally shielded concept of an "accrued" right in an adjudicated claim.

€29 All these principles are rejected by today's pronouncement. The private claim is now abolished and gone with the winds is also the plaintiffs' declared entitiement to an attorney's fee. Responsible for the private claim's surprising and sudden demise is this court's after-promulgated pronouncement that construes the Act in two unrelated lawsuits,*106654 disposed of by opinions that do not even note the earlier-published authority of Tibbetts I as having been relegated to the status of ineffective caselaw. If the solution embraced by the court today is not a constitutionally impermissible death sentence for one's "accrued right," no vested interest will ever be safe from after-the-fact destruction by judicial fiat dealt through jurisprudence of pure afterthought.55

T30 When this action was brought the unharmed plaintiffs had a right to bring a private claim for a violation of the Act. That right, together with all of its declared ancillary incidents, is destroyed by today's opinion.

VII

SUBSTANTIVE CHANGES IN LAW CANNOT BE RETROACTIVE IN EFFECT

131 Substantive rights may not be changed mid-stream for application to a claim or defense in a pending judicial proceeding. Art. 5 § 52, OKI. Const.56 Plaintiffs' standing (loeus standi )57 to press their private claim for a harmless violation of the Act, accorded by Tibbetts I, is a substantive right. Their entitlement to a counsel fee as a prevailing party explicitly stands attached to that claim (by Tibbetts I declaration) as an additional element of recovery.58 Claims that have accrued before the law is changed are protected from both legislative and judicial extinguishment.59 The plaintiffs are clearly entitled in this case to an application of that pre-existing, con*1067trolling and undisturbed norm of substantive statutory law which was declared for their claim in Tibbetts 1.60

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

T33 The retrospective repudiation of Tibbetts I clearly violates the constitutionally anchored restrictions on the government's power retroactively to change substantive law either by judicature or by legislative enactment. I cannot accede to the court's act of attempting to right its self-perceived error by extra-legal means.61

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

VHI

REPLY TO THE COURTS CRITIQUE OF THE DISSENT

1 35 The court chooses to ignore the undeniable fact that its post-Tibbetts I abolition of an unharmed plaintiff's private right of action makes today's pronouncement a retroactive destruction of an accrued right,. A substantive right conferred by a judicial act that is recognized as bearing the attributes of finality constitutes an acerued right. No amount of rhetoric can sidetrack this verity. It is the plaintiffs' private claim, not the attorney's fee, that is here at stake.62 Had the claim survived today's opinion, plaintiffs' entitlement to a fee award might have continued as an issue to be dealt with,. It is the demise of the private claim that extinguishes and removes from the case all other issues.

€36 The court's reference to the defendant's Hability-defeating defenses against the fee quest is equally inapposite.63 Because the plaintiffs' private claim is dead under the axe of Walls, Patterson and of this court's Tibbetts II, nothing can make the fee quest viable again. There can be no counsel-fee award in abstracto. It must be attached to an adjudicated claim that is still in existence. The fee question died with the demise of the plaintiffs' private cause of action.

137 There are two parallel rules that stand in contradiction of one another which have co-existed since early statehood: one that is absolutely obedient to the settled law of the case without any exceptions64 and *1068the other which allows an open-ended escape hatch.65 Obedience to these parallel rules is dictated solely by the court's unrestrained choice. That alone condemns the latter rule as a vehicle for the court's whimsical choosing rather than for its reasoned application of the law.

138 For support of its reliance on the open-ended escape hatch from settled law the court invokes the longevity of the authority for today's departure. Suffice it to say that " 'it is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past."" 66 Sound legal reasoning will not sustain a rule whose time of usefulness has passed.

139 The court attempts to justify its abandonment of settled law by invoking the "palpably erroneous" test. The latter is as vacuous and standardless as "manifest injustice." 67 It says nothing about the degree of error that must be exceeded before it can be invoked. In applying this test the court is utterly free to find any error palpably erroneous. The test-a mere verbal camouflage-serves as a carte blanche for total judicial freedom from the norms of precedent.

1 40 If a decision is indeed palpably erroneous, the time to correct it is not after relitigation is barred by the command of issue preclusion, but rather when a petition for certiorari is still under timely review.68 The plaintiffs should not be punished for this court's earlier inaction.

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

IX

SUMMARY

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

{43 The "injustice" from which the court saves the defendant was occasioned by this court's (a) failure to provide relief to the defendant when certiorari was sought in T4ib-betts I and (b) retroactive destruction of the settled law of the case through applying to *1069this claim after-crafted norms of substantive-law change in the meaning of a controlling statutory text.

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

T45 Today's rejection of a jurisprudential norm declared for the statute's meaning at the time the claim accrued and the retrospective application of the changed norm to this case destroy rights protected by Art. 5 §§ 52 and 54, Ok. Const. I would not apply to this claim the court's changed meaning of the Act.

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