WATT, Justice:
¶ 1 We granted the petition for writ of certiorari of Plaintiff/Appellee Lumber 2, Inc. (Lumber 2) to consider an issue of first impression in this Court: whether Lumber 2, as a retailer and purchaser of merchandise intended for resale in its business, is a "consumer" for purposes of the Oklahoma Consumer Protection Act, (OCPA), 15 O.S.2003 §§ 751-764.1.
¶ 2 Lumber 2 sued Defendant/Appellant Illinois Tool Works, Inc., d/b/a Hobart Welders and Miller Electric Mfg. Co. (ITW) and Don Massie Company, Inc., d/b/a Premier Sales,
¶ 4 J.P. Fox is co-owner and general manager of Lumber 2, which is a retail home and ranch supply store. He and his father Jim Fox also own Fox Building Supply stores. Altogether, there are stores in five locations in the Oklahoma City, Oklahoma area. J.P. Fox and some company employees attended the Handy Hardware Show, a trade show in Houston, Texas, on September 5, 2003. They stopped at the "Hobart" booth of Defendant ITW where they found Scott Massie, a sales representative of ITW, and Dave Evans from the home office in Wisconsin. Fox had previously met Massie through his business. Massie and Evans showed Fox some new Hobart Champion 10,000 welder/generators ("Champ 10,000's") in which Fox had no interest because of the price. Massie and Evans asked if he would be interested in reconditioned units and handed him a list of items on a yellow legal pad. The list showed that ITW/ Hobart had eleven reconditioned Champ 10,000's for sale. He told them he would buy all eleven of the reconditioned Champ 10,000's. The parties agreed orally that Fox would buy them for $1600.00 each. Fox testified he knew he could sell them for $2000.00 each. Fox called his store from Houston and advised his staff he had contracted to buy the reconditioned product referred to as "recons" and told his staff to prepare an advertisement for publication in the trade magazines and newspapers familiar to his farm and ranch customers.
¶ 5 Upon returning to Oklahoma City, however, Fox received a telephone call from Massie who told him he could not deliver the eleven recons to him because Hobart would not agree to sell them to Fox and Lumber 2. Massie told him the sales manager at Hobart refused to complete the sale because it would "screw up the whole territory" for its existing customers in the area. Fox immediately stopped the ad from running and advised his staff that Lumber 2 would not receive the product. Thereafter, ITW/Hobart sold the recons to Atwood's, a much larger competitor of Lumber 2 which then sold them for $1800.00 each.
¶ 6 Subsequently, Fox bought new welder/generators at retail price through Ace Hardware, also an ITW customer in the area. He advertised them at $1999.00 each, which was approximately the same price at which he had intended to sell the recons. Fox received telephone calls a few minutes apart from Dennis Gerrits, Regional Manager of Miller Electric at factory headquarters on the commercial side of ITW, and from David Anderson of Hobart Welders, on the retail side of ITW, asking him to consider raising his prices for the new product. They explained that some of their retailers had complained and inquired "why you're selling things so cheaply." Fox refused to raise prices, explaining he was forced to buy new Champ 10,000's because ITW had breached its contract with him and Lumber 2 on the "recons". Eventually, Lumber 2 did raise its prices but lost money because it could not compete with the larger stores. Fox alleged ITW sold new product and recons to Lumber 2's competitors at better prices than it sold to Lumber 2 and did so in retaliation for his refusal to raise prices on the new Champ 10,000's.
¶ 7 The OCPA does not define the term "consumer." COCA defined "consumer" as "one that consumes; specifically, one that utilizes economic goods," citing Webster's Third New International Dictionary 490 (1986). COCA found Lumber 2 is not a "consumer" under the OCPA because it did not "consume" or utilize the product it purchased under the facts of this case. The court held that although Lumber 2 was a potential customer of ITW, it "sought to
¶ 8 This case presents issues of statutory construction which are questions of law to be reviewed de novo; in such cases we exercise plenary, independent, and non-deferential authority. Welch v. Crow, 2009 OK 20, 206 P.3d 599. In cases requiring statutory construction, the cardinal rule is to ascertain and give effect to the intent of the Legislature. Id., Naylor v. Petuskey, 1992 OK 88, 834 P.2d 439, 440, citing Humphrey v. Denney, 1988 OK 69, 757 P.2d 833. The words of a statute will be given a plain and ordinary meaning, unless it is contrary to the purpose and intent of the statute considered as a whole. Naylor, supra, at 441, citing Keck v. Oklahoma Tax Commission, 188 Okl. 257, 108 P.2d 162 (1940). Legislative purpose and intent may be ascertained from the language in the title to a legislative enactment. Naylor, supra.
¶ 9 The title of the OCPA is found at 15 O.S. Supp.2003 § 751. It provides, in part:
¶ 10 As the title provides, the subject of the Act is consumer protection. The Act's protection to
¶ 11 Lumber 2 claims that COCA ignored common sense definitions of "consumer," including "buyer" and "purchaser," which plainly would be applicable to it. As noted in the language used in the title of the OCPA above,
¶ 12 Lumber 2 also argues that it is the unique language of the OCPA that distinguishes it from the language of other acts showing that Lumber 2 should be included. It refers to the term "consumer transaction." When the Act was enacted in 1972, "consumer transaction" related entirely to "personal, household and family purposes."
¶ 13 Lumber 2 also contends it is a "person" involved in a "consumer transaction" for the "business oriented purpose" of "stocking its retail store."
¶ 14 The current statute, 15 O.S. Supp.2003 § 752(1), is identical except for the 1983 amendment changing "and" to "or" followed by "any other legal entity;".
¶ 15 COCA correctly considered the plain and ordinary meaning of the term "consumer" which we are required to do with an undefined statutory term. See Naylor v. Petuskey, supra. In considering the "plain and ordinary" meaning of "consume" or "consumer,"
¶ 16 Lumber 2 also contends the OCPA does not exempt businesses from recovering under the Act and that COCA improperly created an exception to recovery which does not exist. It contends that COCA violated
¶ 17 ITW argues that the issue is
¶ 18 In its petition for certiorari, Lumber 2 cited cases from other jurisdictions which held that businesses were "consumers." However, we find the reasoning in those cases, Big H Auto Auction, Inc. v. Saenz Motors, 665 S.W.2d 756 (Tex.1984), (reh. denied) (retailers who purchased goods for resale were "consumers" under the Texas Act); and Dreier Co., Inc. v. Unitronix Corp., 527 A.2d 875, 882, 218 N.J.Super. 260, 273 (1986) (a merchant who bought a computer for its business use was a "consumer" under the New Jersey Act) give more support to ITW's arguments and to COCA's holding in this case than to Lumber 2's position.
¶ 19 COCA relied on Guyana Telephone & Telegraph Co., Ltd. v. Melbourne International Communications, Ltd., 329 F.3d 1241 (11th Cir.2003), in deciding Lumber 2 is not a consumer for purposes of the OCPA. The Eleventh Circuit court construed the Florida Deceptive and Unfair Trade Practices Act (Florida Act). "Consumer" was defined in the Florida Act which included "corporations." The Act had been amended to include an intent to protect the "consuming public at large and legitimate business enterprises" from unfair practices. The plaintiff argued it was a corporation and that the Act was intended to protect legitimate business enterprises and should protect it, despite the fact it was a supplier. The appellate court noted that the Act at that time still required
¶ 20 In Oklahoma, as well, "aggrieved consumers" have claims against violators of the OCPA for monetary damages. See 15 O.S. Supp.1999 § 761.1(A). Similar to the Florida Act, the OCPA gives a "consumer" the right to bring a claim for violation of its rights under the Act. Thus, under the plain and ordinary meaning of "consumer," i.e., one who consumes or uses economic goods, Lumber 2 has no claim under the OCPA. The fact Lumber 2, a "person," purchased the welders for a "business oriented" purpose does not make the transaction a "consumer transaction" for purposes of the OCPA. In this case, Lumber 2 purchased the welder/generators for the "business oriented" purpose of selling them to their retail customers. Lumber 2 is not a consumer in this case.
¶ 21 Our holding does not mean that Lumber 2, as a corporate entity, could never be a consumer under different facts. However, the purchase would have to involve goods which Lumber 2 bought to use in its own business, not to resell to its customers. In describing the importance to Lumber 2's business of obtaining the "recons," J.P. Fox testified:
¶ 22 Lumber 2's intent under the current facts was to buy the new and reconditioned Champ 10,000's to sell to their farm and ranch customers, despite its contention on certiorari that it purchased the product to "stock" or "supply" their retail store. Lumber 2 clearly described its intent not only to stock their stores, but also to resell the product to its customers, the intended "ultimate consumers." Just as we would not imply legislative intent to provide a private right of action for OCPA violations before 15 O.S. § 761.1 was amended to allow for such action, see Holdbert v. Echeveria, 1987 OK 99, 744 P.2d 960, Walls v. American Tobacco Company, 2000 OK 66, 11 P.3d 626, we will not imply legislative intent to allow a plaintiff who purchases goods for resale to its customers to seek relief as a "consumer" under the OCPA. Such direction must come from the Legislature.
¶ 23 Lumber 2 was not a consumer for purposes of the OCPA under the factual circumstances of this case. The trial court's judgment entered for Lumber 2 on its breach of contract claim will remain undisturbed. The judgment on the remaining claims is reversed.
¶ 24
TAYLOR, C.J., COLBERT, V.C.J., KAUGER, WATT, WINCHESTER, EDMONDSON, REIF, GURICH, JJ., concur.
COMBS, J., dissents.
773 So.2d at 1148.
....
In Dreier, a merchant in a sporting goods company purchased a computer system for use in his business for customer billings, inventory control and accounts receivable and accounts payable. The purchaser had no knowledge or expertise in computer systems and relied on the defendants to design a system which would be useful in the business. The merchant brought a claim for treble damages under the New Jersey Consumer Fraud Act (NJCFA). While the initial issue was whether the plaintiff brought its action within the applicable statute of limitations for its various claims, it became necessary to determine whether the plaintiff was a "consumer" for purposes of the NJCFA. Similar to the OCPA, "consumer" is not defined under the New Jersey act. The defendant argued that as a merchant, the plaintiff was not a "consumer" and therefore had no claim under the act. The New Jersey appellate court disagreed, setting out the definition of "person" under the act, noting that it included partnerships, corporations, companies or business entities. However, the court further explained its reasoning:
527 A.2d 875, 882, 218 N.J.Super. 260. 273.