JEFFREY FELIX, ET AL. v. GANLEY CHEVROLET, INC., ET AL.
No. 98985
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 15, 2013
[Cite as Felix v. Ganey Chevrolet, Inc., 2013-Ohio-3523.]
BEFORE: Kilbane, J., Jones, P.J., and Rocco, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case Nos. CV-442143 and CV-454238
David D. Yeagley
Elizabeth M. Hill
Ulmer & Berne L.L.P.
Skylight Office Tower
1660 West 2nd Street, Suite 1100
Cleveland, Ohio 44113
A. Steven Dever
A. Steven Dever Co., L.P.A.
13363 Madison Avenue
Lakewood, Ohio 44107
ATTORNEYS FOR APPELLEES
Lewis A. Zipkin
Zipkin Whiting Co., L.P.A.
3637 South Green Road
Beachwood, Ohio 44122
Mark Schlachet
3515 Severn Road
Cleveland Heights, Ohio 44118
MARY EILEEN KILBANE, J.:
{2} The facts giving rise to the instant appeal were set forth by this court in Ganley‘s previous appeal, Felix v. Ganley Chevrolet, Inc., 8th Dist. Cuyahoga Nos. 86990 and 86991, 2006-Ohio-4500, discretionary appeal not allowed, 112 Ohio St.3d 1470, 2007-Ohio-388, 861 N.E.2d 144.
[The Felixes] brought two actions against Ganley.1 In both actions, the appellees filed class action complaints alleging consumer sales practices violations and seeking declaratory and injunctive relief.
The Felixes allege in the first action that on March 24, 2001, they went to Ganley to purchase a 2000 Chevy Blazer. The Felixes claim that as an incentive to sign the contract to purchase the vehicle, Ganley informed them that they were approved for 0.0% financing but that the offer would expire that evening. The purchase contract contained an arbitration clause that required “any dispute between you and dealer (seller) will be resolved by binding arbitration.”2
Jeffrey Felix signed under the arbitration clause and at the foot of the purchase contract, relying on Ganley‘s representation of 0.0% financing. The purchase contract provided that it was “not binding unless accepted by seller and credit is approved, if applicable, by financial institution.” Jeffrey Felix also signed a conditional delivery agreement that specified that “the agreement for the sale/lease of the vehicle described above is not complete pending financing approval * * * and that the consummation of the transaction is specifically contingent on my credit worthiness and ability to be financed.”
The Felixes traded in their van as part of the purchase. They allege Ganley insisted the Felixes take the Chevy Blazer home for the weekend. The Felixes claim that when they returned the following Monday to sign the promissory note and security agreement, they were told that GMAC (the financing institution) would only approve their financing at 1.9%, not at the 0.0% that was originally represented. The Felixes agreed to the 1.9% rate and signed the promissory note. More than a month later, the Felixes were informed that GMAC decided not to approve the 1.9% financing. Ganley then informed the Felixes that they could obtain 9.44% financing with Huntington Bank. The Felixes refused to execute a new agreement at the higher interest rate. The Felixes retained the vehicle and have been placing money into escrow for the purchase of the vehicle.
In the first action, under the fourth amended complaint, [the Felixes claim] that the arbitration clause utilized by Ganley was unconscionable and that various practices of Ganley pertaining to the clause violated the Ohio Consumer Sales Practices Act (“the Ohio CSPA“). The first three causes of action were raised as to the representative class. Count one alleges unconscionability of the arbitration clause; counts two and three allege unfair and deceptive consumer sales practices.
Counts four through six were the Felixes’ individual claims. Counts four and five allege unfair and deceptive consumer sales practices concerning Ganley‘s “bait and switch tactics.” Under count four, the Felixes claim that Ganley misrepresented to the Felixes that they were approved for financing, when no such approval was given, in order to get the Felixes to agree to purchase the vehicle later at higher interest rates. They further claim Ganley submitted a credit application to Huntington without authorization from the Felixes and in complete disregard of their privacy. Under count five, the Felixes allege that Ganley deceived Jeffrey Felix with respect to the conditional delivery agreement, and failed to incorporate into the security agreement that the Felixes were not, in fact, approved for financing with GMAC. Count six is a claim for intentional infliction of emotional distress with respect to the alleged misrepresentations Ganley made to the Felixes regarding the financing of the vehicle.
In the second action, the second amended complaint focuses entirely on the arbitration clause itself. Count one is a claim that the clause is unconscionable. Counts two through four claim unfair and deceptive consumer sales practices by Ganley with respect to the arbitration clause. Count five claims Ganley made false statements, representations, and disclosures of fact and defrauded customers as to the arbitration clause. In the second action, there are no direct allegations pertaining to the interest-rate representations made to the Felixes as were alleged in the first action.
In both cases, Ganley filed a motion for stay of proceedings, requesting that the matters be stayed pending arbitration in accordance with the arbitration agreement contained within the parties’ purchase contract.
Following a consolidated hearing on the motions, the trial court denied the motions without opinion.
Id. at ¶ 2-10.
{3} Ganley appealed the trial court‘s denial of its motion to stay pending arbitration, arguing the trial court had erred in determining that the arbitration provision was unenforceable. The issue before us at that time was “whether the dispute between the parties is governed by a valid, enforceable agreement to arbitrate.” Id. at ¶ 13. We
{4} Following our decision, the Felixes filed a “Supplemental Motion for an Order of Class Certification and for Judgment on the Merits” at the trial court, requesting that the trial court certify a class under both
{5} Ganley filed a brief in opposition, arguing the Felixes could not maintain a class action under
All consumers of Vehicles from any of the 25 Ganley Companies (see Plaintiff‘s Chart, Exhibit A, filed August 18, 2003) within the two-year period preceding commencement through the present date (the Class Period), who signed a purchase agreement containing the arbitration clause at suit or one substantially similar thereto.
{6} In addition to certifying the class, the trial court held that Ganley‘s inclusion of the subject arbitration provision in its purchase agreements with consumers violated the CSPA and established a basis for classwide relief under
The Court finds that the Ganley defendants have acted on grounds applicable to the class as a whole, thereby making appropriate final injunctive relief and corresponding declaratory relief. * * * [I]t is the use and enforcement of the arbitration clause which is at issue in this matter. The use of the said clause constitutes a threatened harm to class members as evidenced in the instant case by the litigation of the Defendant[s‘] Motion to Stay and Motion to Compel Arbitration. The class is cohesive in that each class member executed the same or substantially same Purchase Agreement which failed to satisfy the requirements of the [CSPA], by failing to provide certain material information at the time it was due; and the Court will issue relief to protect those class members from prejudice thereby.
* * *
Specifically, it was Defendants’ common course of conduct under the direction of defendant Ganley Management Co. and its General Counsel * * * which brought forth and regulated the use of the arbitration clause. The use of the arbitration clause, i.e., the Defendants’ conduct, is itself the basis for relief. Re-litigating a class member‘s right to relief over and over again would be a drain on the judiciary and serve no valid purpose. Few if any class members would likely be able to effectively challenge the Defendants due to the cost of litigation. If they could challenge Defendants, those costs would be improvident, since the illegality of the
clause has been decided and affirmed by the Court of Appeals, and the cost of further litigation would be wasteful of judicial and party resources.
{7} The trial court also ruled that, based on Ganley‘s conduct, a classwide award of damages was warranted under the CSPA:
The Court finds that CSPA permits, if it does not require, the Court to award monetary damages to consumers victimized by Defendants’ violation of law. To allow Defendants to emerge from this seven-year legal battle, during which time they continued to use the offending clause, without sanction, would defeat the policies underlying CSPA and the rule of law. It would reward lawlessness aimed primarily at consumers.
Concluding that the case “presents a significant violation of law,” the court “exercise[d] its discretion” and awarded $200 in damages per transaction to each class member.
{8} It is from this order that Ganley now appeals, raising the following single assignment of error for review.
Assignment of Error
[T]he trial court erred as a matter of law and abused its discretion in certifying, for purposes of a claim under the [CSPA], a class of customers who signed purchase agreements that included an arbitration provision.
Standard of Review
{9} A trial court has broad discretion in determining whether to certify a class action, and an appellate court should not disturb that determination absent an abuse of discretion. Marks v. C.P. Chem. Co., 31 Ohio St.3d 200, 509 N.E.2d 1249 (1987), syllabus. “The term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” (Citations omitted.) Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144
{10} The Hamilton court further noted that the trial court‘s discretion in deciding whether to certify a class must be exercised within the framework of
Requirements for Class Action Certification
{11} In determining whether a class action is properly certified, the first step is to ascertain whether the threshold requirements of
Application of Class Action Requirements
{12} Ganley argues that the trial court erred in certifying the class because the class definition and time period are overbroad and ambiguous. Ganley further argues that the commonality, predominance, and typicality prerequisites to class certification under
{13} As an initial matter, we note that a recurring theme in Ganley‘s argument is the notion that, due to the public policy favoring arbitration of disputes, “there is and can be no [CSPA] violation based upon the inclusion of an arbitration provision in a contract.” Ganley, however, misconstrues the Felixes’ theory of liability under the CSPA. The Felixes do not contend that Ganley‘s inclusion of any arbitration clause in a consumer sales contract violates the CSPA. Rather, they contend that Ganley‘s inclusion of this particular arbitration provision, which this court found to be misleading, confusing, and substantively unconscionable, or a substantially similar provision, in its
{14} Ganley further argues that the individualized assessment necessary for a determination of procedural unconscionability must, in and of itself, preclude any form of classwide relief. However, there is a difference between the proof required to establish an unfair and deceptive practice under the CSPA and the proof required to establish the contractual defense of unconscionability. The fact that an arbitration provision is generally “presumed valid” or that the contractual defense of unconscionability requires both substantive unconscionability and an individualized, case-by-case assessment of procedural unconscionability before a contract provision is determined to be unenforceable does not preclude a finding that inclusion of a misleading, confusing, and substantively unconscionable arbitration provision in a consumer sales contract constitutes an unfair and deceptive practice under the CSPA. As it relates to the claims of the putative class, the issue in the instant case is not whether the arbitration provision was substantively and procedurally unconscionable, and thus unenforceable, under contract law principles, but rather, whether the provision violated the CSPA for reasons that apply classwide, irrespective of procedural unconscionability.
{16} We now review the detailed findings made by the trial court.
(1) Identifiable Class
{17}
{18} In the instant case, the trial court found that the Felixes’ proposed class was identifiable, consisting of:
All consumers of Vehicles from any of the 25 Ganley Companies (see plaintiff‘s chart, Exhibit A, filed August 18, 2003) within the two-year period preceding commencement through the present date (the Class Period), who signed a purchase agreement containing the arbitration clause at suit or one substantially similar thereto.
We are mindful that “[t]he focus at this stage is on how the class is defined. The test is whether the means is specified at the time of certification to determine whether a particular individual is a member of the class.” (Citation omitted.) Hamilton at 73.
(2) Class Membership
{20} The class membership prerequisite requires only that “the representative have proper standing. In order to have standing to sue as a class representative, the plaintiff must possess the same interest and suffer the same injury shared by all members of the class that he or she seeks to represent.” (Citation omitted.) Hamilton, 82 Ohio St.3d at 74, 694 N.E.2d 442.
{21} Here, the trial court found that Ganley
instituted the arbitration clause on or about 1998 and the Court need only look at the pre-printed form agreements which Ganley utilized and executed to identify the class and determine whether a given individual is a class member. Plaintiff is a member of the class so defined, having purchased a vehicle from Ganley Chevrolet, Inc., and signed a Purchase Agreement on or about March 2000, containing the subject arbitration clause.
The Felixes and the class members possess the same interest and suffer the same injury — individuals who purchased a vehicle from Ganley Chevrolet, Inc., and signed a purchase
(3) Numerosity
{22}
(4) Commonality
{23}
this matter concerns a common nucleus of operative facts such that there are questions of fact and law common to all members of the class. These
questions include 1) whether a given individual purchased a vehicle from a Ganley dealership during the Class Period, 2) whether she signed a Purchase Agreement identical or substantially identical to that at issue, 3) whether the arbitration clause is violative of the [CSPA], 4) and is so, whether the Court should award a classwide damage remedy predicated upon such violation(s) of law.
{24} Ganley‘s alleged violation of the CSPA, based on inclusion of the incomplete and misleading arbitration provision in its consumer sales agreements creates such a common, class-wide contention. Accordingly, the commonality prerequisite is satisfied.
(5) Typicality
{25} “The requirement for typicality is met where there is no express conflict between the class representatives and the class.” Hamilton at 77. Here, the trial court found that:
the claims of the representative parties are typical of the claims of the class. There is no express conflict between the representatives and the absent class members. The same unlawful conduct, i.e., the use of the arbitration clause, was directed at the representatives and the class members; and that conduct is the crux of class member claims.
{26} This same conduct gives rise to the claims of the other putative class members, and the claims are governed by the same legal theory — that Ganley‘s inclusion of such a provision in their sales agreements violated the CSPA. Thus, the typicality prerequisite is satisfied.
(6) Adequate Representation
{27} A class representative is “deemed adequate so long as his or her interest is not antagonistic to that of other class members.” (Citations omitted.) Id. at 78. In the
(7) Civ.R. 23(B) Requirements
{28} Having determined that the requirements of
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (a) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (b) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (c) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (d) the difficulties likely to be encountered in the management of a class action.
{29} Ganley argues that the trial court‘s class certification under
{30} In the instant case, the trial court determined that Ganley “acted on grounds applicable to the class as a whole, thereby making appropriate final injunctive relief and corresponding declaratory relief.” The court reasoned that the use and enforcement of the arbitration clause “constitutes a threatened harm to class members as evidenced * * * by the litigation of the Defendants’ Motion to Stay and Motion to Compel Arbitration.” The court further stated that
[t]he class is cohesive in that each class member executed the same or substantially same Purchase Agreement which failed to satisfy the requirements of the [CSPA], by failing to provide certain material information at the time it was due; and the Court will issue relief to protect those class members from prejudice thereby.
{31} Under
{32} As discussed above, the use of the arbitration clause is at issue, not procedural unconscionability as Ganley contends. The use of the arbitration clause constitutes a threat to the class as a whole. The Ohio Supreme Court has stated:
“Disputes over whether the action is primarily for injunctive or declaratory relief rather than a monetary award neither promote the disposition of the case on the merits nor represent a useful expenditure of energy. Therefore, they should be avoided. If [
Civ.R. 23(A) ] prerequisites have been met and injunctive or declaratory relief has been requested, the action usually should be allowed to proceed under [Civ.R. 23(B)(2) ].”
Hamilton, 82 Ohio St.3d at 87, 694 N.E.2d 442, quoting Wright, Miller & Kane, Federal Practice and Procedure, Section 1775, at 470 (2d Ed.1986). Accordingly, the class is maintainable under
{33} With respect to
{34}
questions of law and fact common to the class predominate over any questions affecting efficient adjudication of this controversy.
Specifically, it was Defendants’ common course of conduct under the direction of defendant Ganley Management Co. and its General Counsel * * * which brought forth and regulated the use of the arbitration clause. The use of the arbitration clause, i.e., the Defendants’ conduct, is itself the basis for relief. Re-litigating a class member‘s right to relief over and over again would be a drain on the judiciary and serve no valid purpose. Few if any class members would likely be able to effectively challenge the Defendants due to the cost of litigation. If they could challenge Defendants, those costs would be improvident, since the illegality of the
clause has been decided and affirmed by the Court of Appeals, and the cost of further litigation would be wasteful of judicial and party resources.
{35} The Ohio Supreme Court has stated that:
the common questions must represent a significant aspect of the case and they must be able to be resolved for all members of the class in a single adjudication. And, in determining whether a class action is a superior method of adjudication, the court must make a comparative evaluation of the other procedures available to determine whether a class action is sufficiently effective to justify the expenditure of judicial time and energy involved therein.
Schmidt v. Avco Corp., 15 Ohio St.3d 310, 313, 473 N.E.2d 822 (1984), citing Wright & Miller, Federal Practice and Procedure, Section 1779, at 59 (1972).
{36} Here, as the trial court found, the common questions of law and fact arise from Ganley‘s common course of conduct, which brought forth and regulated the use of the arbitration clause. Furthermore, the claims of the putative class members arise from the arbitration clause. The trial court noted that the costs of individual litigation would be improvident, since the illegality of the clause has been affirmed by this court, and the cost of further litigation would be wasteful of judicial and party resources. The Ohio Supreme Court has found that
the trial court is in the best position to consider the feasibility of gathering and analyzing class-wide evidence. Since the trial court‘s ruling did not exceed the bounds of reasonableness, we find that it acted within its discretion in resolving that there are common questions of fact among class members that can be presented in an efficient fashion.
In re Consol. Mtge. Satisfaction Cases, 97 Ohio St.3d 465, 2002-Ohio-6720, 780 N.E.2d 556, ¶ 12. Likewise, we find that the trial court in the instant case properly concluded that the Felixes satisfied
{37} Although the Felixes have satisfied the
{38} ”
[p]rior notice may * * * be in the form of “an act or practice declared to be deceptive or unconscionable by rule adopted under [
R.C. 1345.05(B)(2) ].”R.C. 1345.09(B) .R.C. 1345.05(B)(2) authorizes the Attorney General to “[a]dopt, amend, and repeal substantive rules defining with reasonable specificity acts or practices that violate sections [R.C. 1345.02 and1345.03 ].”
{39} Ganley argues that the trial court abused its discretion in certifying the class because the prior notice requirement in
{40} In the instant case, the trial court held that the prior notice requirement set forth in
{41}
It shall be a deceptive and unfair act or practice for a dealer, manufacturer, advertising association, or advertising group, in connection with the advertisement or sale of a motor vehicle, to: * * * [f]ail to integrate into any written sales contract, all material statements, representations or promises, oral or written, made prior to obtaining the consumer‘s signature on the written contract with the dealer[.]3 (Emphasis added.)
{42} The trial court held that Ganley “fail[ed] to integrate all material statements upon [its] use of the arbitration clause” and “violated [
{43} The trial court also found that two decisions in the public inspection file, Smith v. Discount Auto Sales, Lorain C.P. No. 97 CV 120022 (Mar. 19, 1998), PIF No. 10001735, and Renner v. Derin Acquisition Corp., 111 Ohio App.3d 326, 676 N.E.2d 151 (8th Dist.1996), PIF No. 10001587, gave the required notice under
Notice Requirements for a Civ.R. 23(B)(3) Class & Damages Award under the CSPA
{44} Lastly, Ganley argues the trial court‘s class certification order was procedurally deficient because the trial court proceeded to grant judgment in favor of the class without complying with any of the prejudgment notice requirements set forth in
{45} Appellate courts have jurisdiction to review the final orders or judgments of lower courts within their appellate districts.
{46} “An order of a court is a final appealable order only if the requirements of both
{47}
- The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.
- The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.
{48}
{49} The trial court‘s order giving rise to the instant appeal was both a ruling on class certification and an entry of partial judgment on the merits. Because the partial judgment does not dispose of all claims of all parties to this litigation, we agree with the Felixes’ contention that the judgment is not a final appealable order under
Conclusion
[a]t the certification stage in a class-action lawsuit, a trial court must undertake a rigorous analysis, which may include probing the underlying merits of the plaintiff‘s claim, but only for the purpose of determining whether the plaintiff has satisfied the prerequisites of
Civ.R. 23 .
The court presided over the instant case for over eleven years, heard witness testimony and extensive oral argument, and concluded that the Felixes established the requirements to maintain a class action under
{51} Based on the foregoing, we find that the trial court did not abuse its discretion in certifying the class in this case.
{52} Accordingly, the sole assignment of error is overruled.
{53} Judgment is affirmed.
It is ordered that appellees recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
LARRY A. JONES, SR., P.J., CONCURS;
KENNETH A. ROCCO, J., DISSENTS (WITH SEPARATE DISSENTING OPINION ATTACHED)
KENNETH A. ROCCO, J., DISSENTING:
{54} I respectfully dissent from the majority‘s disposition of this appeal. Although I agree that Ganley‘s inclusion of the subject arbitration provision in its consumer automobile sales agreements could constitute an unfair or deceptive practice giving rise to an individual claim on behalf of the Felixes under the CSPA, in my view, the Felixes failed to establish certain threshold requirements under
Ambiguous Class Definition
[a]ll consumers of Vehicles from any of the 25 Ganley Companies (see Plaintiff‘s Chart, Exhibit A, filed August 18, 2003) within the two-year period preceding commencement through the present date (the Class Period), who signed a purchase agreement containing the arbitration clause at suit or one substantially similar thereto.
The majority‘s opinion summarily concludes, based on what it represents to be “[a] plain reading” of the class definition, that “it would be administratively feasible to determine whether a particular person is a member of the class,” and that, “[t]herefore, the identifiable class requirement is satisfied.”
{56} I disagree. To satisfy
CSPA‘s “Meaningful Notice” Requirement
{57} I also take issue with the majority‘s determination that
{58}
It shall be a deceptive and unfair act or practice for a dealer, manufacturer, advertising association, or advertising group, in connection with the advertisement or sale of a motor vehicle, to: * * * [f]ail to integrate into any written sales contract, all material statements, representations or promises, oral or written, made prior to
obtaining the consumer‘s signature on the written contract with the dealer[.]6
{59} There has been no claim in this case that arbitration was ever the subject of any “statements, representations[,] or promises * * * made prior to obtaining the customer‘s signature on the written contract with the dealer,” other than, of course, the arbitration provision itself. To the contrary, the Felixes complained that “no part of the arbitration clause was explained” and that Jeffrey Felix “wasn‘t told anything” regarding arbitration before he signed the sales agreement. In other words, the Felixes’ CSPA claim is not premised on allegations that Ganley failed to properly integrate prior “statements, representations[,] or promises” made to induce the Felixes and other class members to purchase vehicles — the conduct regulated by
{61} Smith involved a defendant‘s failure to honor an express oral warranty that the plaintiff could obtain an unconditional refund if the vehicle at issue did not pass an E-Check or if other mechanical problems arose with the vehicle. Notwithstanding the defendant‘s statements to the plaintiff regarding the existence of an express warranty, the defendant marked the contract that the vehicle had been sold “as is” and ultimately refused to honor the warranty in full.
{62} In Renner, the plaintiff had purchased a vehicle using a GM employee discount certificate she had obtained from her son, a former GM employee. Renner, 111 Ohio App.3d at 328-329, 676 N.E.2d 151. At the time she signed the purchase agreement, no one at the dealership told the plaintiff about the requirements for the GM employee discount certificate program, and the dealership had taken no action to determine the validity of the certificate, which it was required to do. Id. at 330. After the plaintiff drove away with the vehicle, the dealer learned that the plaintiff‘s certificate
{63} The dealer argued that the validity of the certificate was a condition precedent to the plaintiff obtaining a discounted price on the vehicle. Id. at 333. The purchase agreement, however, made no reference to the GM employee discount and did not state that the vehicle sales price was contingent upon meeting requirements for the GM discount. Id. at 330, 333. Having failed to reference the plaintiff‘s redemption of the employee discount certificate in the written sales contract, the court held that the dealer was estopped to assert an oral condition precedent as an excuse for withholding the certificate of title it was otherwise required to deliver. Id. at 336.
{64} While certain aspects of the conduct in Smith or Renner may bear some similarity to the conduct at issue in this case, in my view, the defendants’ actions in Smith and Renner are not “substantially similar” to Ganley‘s alleged unfair and deceptive conduct in this case, i.e., the inclusion of an incomplete and misleading arbitration provision in its sales agreements.
{65} “Substantial similarity” requires a level of “specificity as to the wrongful conduct.” Gascho v. Global Fitness Holdings, LLC, 863 F.Supp.2d 677, 695-696 (S.D.Ohio 2012) (applying substantial similarity requirement to various decisions). It
{66} Although Smith, Renner, and this case all arguably involved, in very general terms, a dealer‘s omission of information from an automobile sales agreement, the type of information omitted, the way in which the information was omitted, and the surrounding circumstances are very different. Both Smith and Renner involved (along with other conduct that is not applicable here), the failure to integrate specific, material terms to
{67} Further, although in Renner, there is some discussion of the dealer‘s obligation “to integrate in[to] the final contract ‘all material statements, representations, or promises,‘” including any agreed terms relating to the redemption of the employee discount certificate, the CSPA violations at issue centered primarily on the dealer‘s attempt to increase the purchase price and failure to deliver the certificate of title for the vehicle after the plaintiff had refused to pay the increased price demanded by the dealer. In Smith, the CSPA violations centered around the defendant‘s failure to honor the terms of the express warranty that had been given to the plaintiff. Because, in my view, Smith and Renner do not “share the essential characteristics or conditions” alleged in this case, I do not agree with the majority‘s conclusion that they provided “meaningful notice” to Ganley that its actions constituted a deceptive act or practice under
CSPA Limitation of Damages
{68} Further, even if Smith, Renner, or
{69} Where classwide relief is sought for a violation of the CSPA, the recoverable damages are limited to actual damages.
{70} Although I can certainly envision scenarios in which customers may have sustained actual damages as a result of Ganley‘s inclusion of the arbitration provision in their sales agreements, e.g., attorney fees incurred in opposing efforts to enforce the arbitration provision (as the Felixes have incurred in this case), damages resulting from a customer‘s decision to forgo recourse it might otherwise have pursued due to confusion regarding what arbitration of the dispute under the sales agreement entailed, I can also envision scenarios in which customers sustained no actual damages at all, such as where a customer had no dispute with Ganley. There is certainly nothing in the record that
{71} The majority does not address this issue. Instead, the majority concludes that because the trial court‘s “partial judgment on the merits” is not a final appealable order and “not subject to review at this time,” the court need not consider the CSPA‘s limitation on damages or whether the trial court erred in “exercis[ing] its discretion” and awarding each class member $200 in damages for violations of the CSPA.
{72} However, the CSPA‘s damages limitation impacts not only the damages that may ultimately be recovered by a properly certified class but whether a putative class may be properly certified as a
Prejudgment Notice Requirement for Civ.R. 23(B)(3) Class Actions
{73} In my view, the trial court‘s class certification order is also procedurally deficient. I believe that the trial court, in purporting to adjudicate the merits and to award damages as part of its class certification order — without providing the prejudgment notice required under
{74}
In any class action maintained under subdivision (B)(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (a) the court will exclude him from the class if he so requests by a specified date; (b) the judgment, whether favorable or not, will include all members who do not request exclusion; and (c) any member who does not request exclusion may, if he desires, enter an appearance through his counsel.
It is clear from the language of the rule that the notice required by
{75}
Conclusion
{77} “‘A determination by a trial court regarding class certification that is clearly outside the boundaries established by