Sliwinski v. Capital Properties Mgt. Ltd.
2012 Ohio 1822
Ohio Ct. App.2012Background
- Sliwinski, a former Hunt Club tenant, sues Hunt Club for charging water/sewer after 2004 when meters were installed.
- Plaintiffs alleged class action against all residents who paid water/sewer charges post-2004.
- Motion for class certification was filed and later withdrawn; class certifications were challenged.
- Trial court granted a Civ.R. 23(D)(4) motion to strike the class allegations for failure to plead Civ.R. 23 requirements.
- The court found deficiencies in class ascertainability, typicality, adequacy, and commonality, and struck the class allegations.
- On appeal, the court affirmed the trial court’s decision to strike the class action allegations and held the assignment of error was overruled.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly struck class action allegations before certification. | Sliwinski argues the court erred in striking class allegations. | Hunt Club contends the pleadings failed Civ.R. 23 prerequisites; pre-certification strike is appropriate. | Yes, the court did not abuse discretion by striking the class allegations. |
| Whether Civ.R. 23(D)(4) authorizes striking class allegations pre-certification. | Sliwinski cites federal practice; argues the court lacked authority to strike. | Ohio law allows Civ.R. 23(D)(4) strikes when pleadings fail to plead operative facts. | Yes, Civ.R. 23(D)(4) permits striking when required facts are not properly pled. |
Key Cases Cited
- Knapp v. Edwards Laboratories, 61 Ohio St.2d 197 (Ohio 1980) (appellate review presumes regularity without transcript when omitted by appellant)
- Cubberly v. Chrysler Corp., 70 Ohio App.2d 263 (Cuyahoga 1981) (pleading can be subject to Civ.R. 23(D)(4) strike for failure to plead operative facts)
- Ogan v. Teater, 54 Ohio St.2d 235 (Ohio 1978) (seven Civ.R. 23 prerequisites govern class certification; burden on plaintiff)
- In re Consol. Mtge. Satisfaction Cases, 97 Ohio St.3d 465 (Ohio 2002) (establishes prerequisites for class treatment; abuse of discretion standard)
- Warner v. Waste Mgmt., 36 Ohio St.3d 91 (Ohio 1988) (failure to meet Civ.R. 23 prerequisites requires denial of certification)