Harvell v. Goodyear Tire and Rubber Co.

OK HARVELL, Individually Lori and on be

half of herself and all others similar

ly situated, Plaintiff/Appellee, TIRE GOODYEAR & RUBBER

COMPANY, Defendant/Appellant. 102,128.

No.

Supreme Court of Oklahoma.

April25,2006. 9,May

As July Corrected 2006 and Scoufos,

Harry Condit, Thomas W. Salli- saw, OK, Appellee. for Orendorff, Sallisaw, OK, William K. and P. Ballew, Jefferson Adrienne E. Dominguez, Dallas, TX, Appellant. KAUGER, J. only presented

T1 The issue is whether trial the court abused certify its discretion in ing pursuant to 12 O.S.2001 2023.2 We hold that it did. 1. On joinder 1. The class is so numerous that 7, 2005, October the Court entered an order all directing appellant, Goodyear Tire and members is impracticable; Company, why Rubber appendix to show to 2. There are of law or fact common 6, 2005, class; its brief in chief filed on October should to the not be stricken in violation of Oklahoma Su- representa- The claims or defenses of the parties typical tive Court 1.11, Rule 12 0.$.2001 claims or defens- preme Ch. App. provides pertinent part: class; 1. which es of the representative parties 4. The fairly will Appendix may "... An to a brief be filed as an adequately protect the interests of the class. separate attachment to the brief or as a docu- B. CLASS ACTIONS MAINTAINABLE. An Appendix appeal ment. An may to a brief on may action be maintained as a class action if (1) only copy include: of the decision from prerequisites of subsection A are satisfied taken; (2) appeal copies which the of au- and in addition: Report- thorities not contained in the National prosecution separate 1. The actions or System; copies er of statutes or rules not against individual members of the class would Oklahoma; promulgated in ..." create a risk of: On 18, 2005, October the Court deferred consid- varying a. adjudications inconsistent or eration stage. of the issue to the decisional Be- respect with to individual members appendix cause the copies contains of authorities incompatible class which would establish Reporter System contained in the National party opposing standards of conduct for the copies promulgated of statutes or rules not class, or Oklahoma, compliance it is in with the rule adjudications respect b. to individual and will not be stricken. prac- members of the class which would as a dispositive tical matter be of the interests of 0.$.2001 provides

2. Title 12 pertinent parties adjudi- the other members not to the part: substantially impair cations impede or or PREREQUISITES "A. TO A CLASS ACTION. their to their interests; ability protect One or more members of a party sue or be opposing 2. The the class has acted or representative parties sued as grounds behalf of all generally applicable refused to act on only class, if: thereby making appropriate final whether she asked of the bill. She part

FACTS pay if she failed get her car back would 28, 2004, plaintiff/appellee, July T2 On had was told that she charge, and the $2.56 (Harvell/eustomer) that noticed Lori Harvell paid the invoice. it. Harvell pay car was on. light in her engine check Cen- Auto Service spotting a After 26, 2004, filed the customer August 5 On center) away, she (service blocks a few ter against the defen action lawsuit a class car get her center the service pulled into Tire Goodyear Rubber & dant/appellant, diagnostic performing After checked. seeking certification (Goodyear), Company vehicle, center rec- service on the check who, in consumers class action of a national spark plugs replace she ommended states, Goodyear a paid had approximately were worn. that her brakes and told her alleged She supply fee since 1998.4 shop spark plugs or than have Rather shop illegally charging Goodyear was time, drove she replaced brakes charge, of the labor on 7% supply fee based home. shop supplies were whether regardless for claims breach the cus presented She asserted used. center T3 The service invoice. One copies enrichment, of an contract, with two and a violation unjust tomer invoice, Practices Act was an Sales the other the Ohio Consumer an estimate was Act).5 (the performed. services for the Ohio invoice actual giv typically invoice Although an estimate was certification hearing A for class T6 done, it any work is before to customers en stipulation On March 2005. held on the service Harvell before given to was not deposi court admitted parties, the trial the invoice The actual her car. checked center affidavits, into testimony, and exhibits tion labor, for charges as $86.50 the itemized show, evidentiary materials The evidence. shop supplies for a parts, for $2.56 $0.00 shop supply fee things, that the among other for taxes included $.22 which total $39.28 Goodyear's from and tracked initiated was shop The charge. shop supply on the $2.56 Ohio, stores in but because corporate offices on the estimate appeared supply charge also brand, sup supplies, the own purchased their explana contained Both invoices invoice.3 from supplies of the varied plier, and cost the bottom of shop supply fee at tion of to store. store SUPPLY provided: "SHOP page which USED MATERIALS MISC FEES COVER court issued the trial April T7 On THAT YOUR VEHICLE IN SERVICING motion for the customer's granting an order ON ELSEWHERE APPEAR DO NOT court found that The trial certification. AND FOR PROFIT." INVOICE THIS § 2023 12 0.8.2001 requirements of the four (A): commonality, typicality, and numerosity, questioned customer T4 When It also deter- satisfied. fee, were representation, supply she was shop about cashier requirements two of the it, just mined that it was worry about not to told likely to be encountered declaratory d. the difficulties corresponding injunctive or relief management a class action...." in whole; or to the class as relief respect questions of law or finds that the The court 3. shop supplies Goodyear, in- According 3. pre- of the to the members fact common steer- things covers, seat and as floor clude such only affecting in- any questions over dominate covers, rags, of brake ing small amounts wheel action is that a class members, dividual fluid, lubricating grease and other or cleaner fair methods for the superior available to other per-vehi- immeasurable as which are solutions controversy. adjudication of the and efficient cle cost. findings include: pertinent matters in of the class of members a. the interest oc- class were transactions from the 4. Excluded controlling prosecution or individually Washington, curring York, California actions, in New separate defense of D.C. litigation and nature of b. the extent already controversy concerning com- seq. § et class, 1345.01 Rev.Code Ann. 5. Ohio against of the members menced or undesirability desirability of con- or c. shop initially fee Goodyear instituted 2% litigation claims in the centrating of the parts with a maximum and labor forum, costs for particular 2023(B) § applicable were because there was 19 A trial court's class certification common of law order is reviewed for abuse of discretion.9 fact, adjudica superiority of class action An abuse of discretion occurs when a court tion, injunctive appropriate. relief was bases its decision on an erroneous conclusion ap It also found that substantive law Ohio of law or where there is no rational basis in plied appeal to all three claims.7 ruling.10 evidence for the If the record does ed, and we retained the cause on June requisites demonstrate for class briefing cyele completed 2005. The was met, action have been the trial court has October abused it's discretion.11 THE TRIAL COURT ABUSED ITS party 110 The who certifica seeks IN DISCRETION CERTIFYING proving tion has the burden of each of the THE CLASS. requisite elements for class action.12 We requires § T8 Title 12 0.98.2001 2028 allegations take as true all uncontroverted prerequisites four for class certification un the instruments in the record and the unde- 2023(A) der and one of the three additional nied statements of counsel the briefs.13 A 2028(B) requirements contained in must be trial flexibility court is allowed and discretion certify met order to a class.8 Subsections aside, modify, or even set its order of 2028(A), through respectively, 4 of re if developments certification later demon 1) 2) members; quire: numerosity of class strate a need do Consequently, to so.14 3) fact; commonality questions of of law or certification, question face of a close as to typicality of claims or defenses of the class the Court held that pragmatic has action 4) class; representatives with the ade is to sustain certification.15 quacy representative parties protect of through interests. Subsection 3 of prereq To resolve whether the 2023(B) 1) § requires either: a risk of incon met, uisites for class-certification are we adjudications by separate sistent actions or need not reach the merits of the claim.16 impairment non-parties pro substantial of Nevertheless, determining whether the trial 2) interests; appropriateness tect their applied court the correct relief; 3) standards injunctive declaratory final or or § requirements when it assessed predominance 2028's questions of common or law superiority fact to class members and of class certification necessitates identification adjudication. action liability and review of the core issues assert- charge $2.00 and over time has increased the Leasing, 12. KMC Inc. v. Rockwell-Standard Corp, 10, charge supra. $20.00. fee to with a 7% maximum see note 2023, 2, supra. § 7. Title 12 O.S.2001 see note 13. Fent v. Oklahoma Natural Co., Gas see note ¶ 13; supra City Corp., at Shores v. First Bank see Co., 8. Id. Fent v. Oklahoma Natural Gas 2001 OK ¶ 6; note at Mattoon v. Norman, supra City of 35, ¶ 12, 477; 27 P.3d Black Hawk Oil Co. v. 92, ¶ 11, 1981 OK 633 P.2d 735. Exxon 1998 OK 70, ¶ 12, 969 P.2d 337. Corp., 0.$.2001 (C)(1) provides: § 14. Title 12 DaimlerChrysler Corp., 9. Ysbrand v. 2003 OK practicable "As soon as after the commence- ¶ 5, 81 P.3d 618 cert. denied DaimlerChrysler brought ment of an action action, as a class v. Ysbrand, 124 S.Ct. 2907, Corp. court shall determine order whether it is to (2004); 159 L.E.2d 812 v. State Farm Scoufos be so maintained. An order under this subsec- Co., Fire & Cas. 113, ¶ 1, 366; 2001 OK conditional, may tion be be altered or Co., Corp., Black Hawk Oil v. Exxon see note amended before the decision on merits." ¶ 10; supra City Corp., Shores v. First Bank ¶ Corp., 15. Black Hawk Oil Co. v. Exxon see note 1984 OK. P.2d 299. Meek, 1980 OK 151, ¶ 19, 618 supra; Perry Co., 10. Fent v. Oklahoma Natural Gas see note P.2d 934. supra; Leasing, KMC Inc. v. Rockwell-Standard Inquiry inap- 16. into the merits of the action is 51, ¶ 9, 9 P.3d 683. Corp., propriate deciding when the court is whether a Co., DaimlerChrysler Corp., 11. Ysbrand v. see note class should be certified. Black Hawk Oil supra. supra see note at I 18. heavily in by the class.17 weighing A factor this case ed dispersion of the class geographic is the that because she argues € 12 The customer consequent, potential appli members and required pur- four elements proved that the jurisdictions. cability multiple law of (A) [numerosity, § O.S8. suant important we have This factor is because representation] commonality, typicality, that where the substantive previously held standards of the three and that two multiple jurisdictions may apply, com law of 2023(B) injunctive appropriateness [the generally or fact do not mon issues of law of com- declaratory predominance relief or or required by 12 predominate as 0.8.2001 superi- law or fact and questions mon (B)(3) should and class certification met, adjudication] ority action were of class be defeated.19 must be certification order the trial court's Goodyear's primary The focus of affirmed. i. Breach of Contract Claim trial court's certification challenge to the Harvell must fail because analyzed ap that certification trial court The jurisdictions multiple law of plicability of the satisfy requirements of either did significant relationship injunctive declaratory in terms of the most appropriateness (Second) questions test of the Restatement Conflicts of common relief or (1971).20 However, §§ affecting only Law 6 and 188 law or fact over Oklahoma,21 of law the established choice argues Goodyear also individual members. as lex loci rule in contract actions known inapplicable to the claims. that Ohio law is challenges. that, unless the contract Goodyear's agree with terms We contractus is "(1) See, rights parties and duties of the Fire & Cas. v. State Farm 17. Scoufos respect are determined to an issue in contract Leasing, Inc. v. Rockwell- note KMC supra; which, by the local law of the state with re- supra. Standard note issue, significant spect has the most to that parties relationship to the transaction and the (B), § 2023 see note Title 12 O.S.2001 principles state in under the supra. (2) law In the absence of an effective choice of parties, the contracts to be taken into the Leasing, 19. KMC Inc. v. Rockwell-Standard Corp., applying principles the of 6 to account in also, Ysbrand v. at 120. See see note supra applicable issue in- the law to an determine 9, supra [Analyzing DaimlerChrysler Corp, note clude: to determine common issue choice of law issues (a) contracting, place the of law.]. of contract, (b) place negotiation of of the the (c) place performance, the of (Second) Conflict (d) subject of the matter of the of Laws the location 20. The Restatement (1971) provides: contract, § 6 and domicile, residence, (e) nationality, place the court, "(1) subject restric- A to constitutional incorporation place the and of business of of directive of its tions, will follow statutory parties. of law. own state on choice according are to be evaluated These contracts directive, (2) the factors When there is no such respect importance relative with to their applicable rule of relevant to the choice of particular issue. law include (3) place negotiating of the contract If the (a) and internation- the needs of the interstate state, place performance are in the same of al systems, usually ap- be law of this state will the local (b) forum, of the the relevant policies provided §§ except 189- plied, as otherwise in (c) policies the other interested the relevant of 99 and 203." interests of those states states and the relative Oklahoma; brought there was issue, 21. This suit in the determination of particular (d) justified expectations, protection of be choice of law must fore, Oklahoma principles DaimlerChrysler (e) applied. underlying see Ysbrand v. the basic particular policies law, ¶ 11. field of Bridge also, See In re note supra (f) uniformity certainty, predictability (7th of stone/[Firestone, Inc., result, Cir.2002) Bridge v. cert. denied Gustafson application (g) ease in the determination and S.Ct. stone/[Firestone, (2003)[Because plaintiffs' law rule for the L.Ed.2d 774 of the established choice of relationship' 'significant test." more modern rules law, the choice-of-law claims on state rest (Second) court in which the federal Laws come the state Conflict of from The Restatement pertinent part: provides sits.]. otherwise, nature, provide validity, cluding applicable divergent defenses and interpretation governed by of a contract are statutes of limitation.27 the law where the contract was made.22 Al Goodyear's T16 procedure standard re- though variations from this rule have been quires that each customer sign receive and applied unique in the context of motor vehi estimate, notifying an each customer policies cle insurance with contract terms contrary public shop to law or the some or all policy of the supply of the fee is for state where enforcement sought,23 profit. and con ordinarily The customer signs involving goods any tracts of estimate sale under the before work is Appar- done. Uniform Commercial Code 24-neither of the ently, typical Harvell is not customer exceptions are involvedhere.25 alleges because given she that she was not estimate until after the work completed. was place T performance 15 The of The existence of a contract determina- alleged contract person charged each tion of what the material terms of the con- supply fee for the service of vehicles is the tract were differ with each class member's state which the vehicle was serviced.26 interaction with each service center. These Consequently, the law of each of the 87 determinations, coupled individualized governs states involved the breach of con application states, of the law of pre- tract claims. While the elements for breach finding cludes a substantially contract be and defeats similar in state, purpose each the trial court required certifying would be a class. The trial apply regime, each state's contracts in court would be overwhelmed with the burden County Hosp. rant 22. Bohannan Dist. v. GE Automotive Ser v. Allstate Co., Ins. 1991 OK ¶ 30, 787; Hamilton, vices, Inc., Corp. Telex v. (Tx.App.2005); 156 S.W.3d. Wagner, Md.App. 1978 OK 32, ¶ 8, 576 P.2d Lohman v. 862 A.2d 767; Paclawski Laboratories, Inc., 21, ¶ 5, Bristol 1967 OK (2004); 1042, 1046 Co., Motor Hensley Ray's 452; Hartford, P.2d Aetna Cas. & Sur. Co. N.C.App. (2003); 580 S.E.2d Conn. v. 1942 OK 366, ¶ 32, 132 P.2d Coach, Dodge, Heart Gentry, Texas Inc. v. Star 326; Marseilles, Clark v. First National Bank Ga.App. (2002). Here, 567 S.E.2d 61 1916 OK 404, 59 Okla 157 P. 96. Title 15 predominate purpose alleged of the customer's provides: O.S.2001 contract with the repair service center was for interpreted "A according contract is to be her vehicle of services, rather than provision also, usage place goods. the law and sale of Equip where it See is to be McCool v. Hoover or, Co., performed, ¶ 9, place if it does not indicate a ment 415 P.2d 954 [Where performance, according usage predominates, to the law and service contract is for work or place where it is made." labor and materials and not sales.]. 23. Bohannan v. Allstate Ins. see note apply significant 26. Even if we were to a rela- supra [The choice of law rule for vehi- motor tionship weigh through test and the factors of the cle insurance conflicting cases which involve (Second) §§ Restatement of Conflicts 6 and state law is that the law of the state in which see note 20, we are not convinced that supra, applies the contract was made unless those significant relationship Ohio has more between provisions contrary public policy to the contracting parties the than the state where the Oklahoma, or unless the facts demonstrate performed services were and the contract was jurisdiction significant another has the most re- allegedly formed and breached. lationship subject par- with the matter of the ties.]. 15-1-49(1) § 27. See Miss.Code Ann. [Default year unpres- three statute of DaimlerChrysler limitations for all Corp., Ysbrand v. see note offenses, ¶¶ contract.]; supra including cribed breach of 12-13. § Tex. Civ. Prac. & Rem.Code Ann. 16.051 [Four year statute of limitations for primarily When a transaction breach of con- relates to ser- (a) § tract.]; 12 0.S.2001 vices, [Five an incidental sale of merchandise limita- does not year contracts; year tion for goods governed make it a written three contract for the sale of limitation contracts.]; 0.$.2001 express implied the for or Uniform Commercial Code. oral 12A Ga.Code § [Recognizing application 2-102 to transactions § [Six Ann. 9-3-24 statute of limitations for year goods.]. apply in Other states or § written contracts.]; Mont.Code Ann. 27-2-202 dominance test to determine whether the [Eight trans- statute of limitations for written con- year tracts; primarily action year is for services or the sale of three statute of limitations for oral goods 614.1(5)[Ten applicability to determine the § of the Uni- year contracts.] Iowa Code Ann. form See, Commercial Code. Tar- statute of limitations for written example, contracts.]. Consequently, class.28 in which a unmanageable by the law of each state of an erned performed.32 was service certifying in discretion its trial court abused claim. of contract the breach $18 Unjust is a con enrichment from the failure of a dition which results Unjust Enrichment Claim ii. in cireumstances party to make restitution gov state's law determine which 117 To party the has inequitable; it is i.e. where significant erns, that the most argues Harvell that, equity good in money in its hands (Second) of test of Restatement relationship conscience, to it should not be allowed ret (1971),29 previ which we have § 148 Conflicts adequate plaintiff the has an ain.33 Where representations ously applied to fraud/false law, ordinarily remedy at the court will not claims,"" applies also misrepresentation jurisdiction grant equitable its to exercise insists unjust claims.30She to the enrichment unjust relief for enrichment.34 significant has the most that because Ohio case, present regardless In all of the the transactions of relationship to members, clearly controls.31 of whether we relationship law apply significant Ohio analysis principle whether of lex loci gov- or Goodyear this cause is contends (Second) § 221 of the Restatement Con- (B)(3), See also see note 0.S.2001 28. Title 12 (1971), according Law which to flicts of see Ysbrand DaimlerChrysler Corp., supra; comments, applies unjust to enrichment claims Leasing, generally, Inc. See KMC note supra. supra. are based neither on contract nor on tort. note which v. Rockwell-Standard applies present party argues to the Neither it cause. (Second) of Law Conflict 29. The Restatement (1971) provides: § 148 DaimlerChrysler Corp., note 30. Ysbrand v. see "(1) pecuniary plaintiff suffered When the has supra. on the defen- on account of his reliance harm representations and when the dant's false govern 31. Harvell contends that Ohio law should place plaintiff's in reliance took in action unjust claims for the same reason enrichment representations were state where the false argues that she the breach of contracts claims state received, the local law of this made governed by Ohio Iaw-because Ohio should be par- rights and liabilities of the determines the significant relationship. Even if we has the most issue, unless, with ties respect particular significant relationship apply test and were to significant rela- state has a more some other weigh through the factors of the Restatement principles tionship te stated in 6 to the under (Second) §§ 148 or see note of Conflicts event and the in which occurrence parties, 1) supra, only that: connection Ohio has is applied. state will be local law of the other Ohio; 2) headquartered in the deci- is (2) plaintiff's took action in reliance When the originated charge question the fee in sion to part place a state other than in whole or in 3) for each store Ohio; the computer system representations false were that where the 4) or all of the fee was Ohio; stems part made, will consider such of forum ultimately con- to Ohio. We are not transmitted contacts, others, among following be enough point these factors are vinced determining particular present case in in the away the law of the state where the service from which, respect particular the state provided. was significant issue, has the most relationship parties: the occurrence and (First) party relies on the Restatement 32. Neither (a) places, plaintiff place, where provides: Law 453 which of Conflicts of repre- upon the defendant's acted in reliance unjust- person alleged to have been "When sentations, enriched, place ly enrichment (b) the law of the of plaintiff place where the received the duty repay he is under a determines whether representations, by enriched." (c) amount which he has been place where the defendant made the representations, Energy, OK domicile, residence, Alexander, v. 1991 (d) 33. French Inc. nationality, place unjustly not ¶ 11, 818 P.2d 1234. One is 106, incorporation place and of business of the however, enriched, by retaining benefits involun parties, equity give tarily acquired and him which law (e) tangible thing place which is where a obligation part absolutely any without on his subject par- transaction between the Bridges, OK time, and v. 1950 make restitution. McBride ties was situated at the 8, 25, ¶ 215 P.2d 830. (f) place plaintiff to render where the is performance under a contract which he has representa- induced to enter the false ¶ 7, 166 been 59, v. 34. Robertson Maney, tions of the defendant." P.2d 106. 1036

contractus, Any rep- the result is the same. Additionally, member, 121 for each class a unjust decision as to whether enrichment resentations which customer relied applicable depend heavily will on the services enrichment received occurred in the rendered, supply charged, the amount of fee state where the services were rendered. (if supplies any), used the cost of the unjust sought by The enrichment Harvell is shop supplies, and whether a customer equitable remedy recovering an aimed at un- cost, agreed pay if might even it have specified money amounts of which purely profit. been for success of claim received, shop sup- unrelated to the actual unjust depends partic enrichment on the plies used. ular facts and cireumstances of each case and hinges on whether a actually customer re Any 120 enrichment related to the ser ceived few or no supplies. miscellaneous by Goodyear vices rendered occurred particularities These factual make class certi alleged state in which the contract for service imprudent fication because the claims and Therefore, signed performed. was spe defenses of each class member involve law of each state where the services were cost, finding profit, cific equitable governs any unjust rendered claim for en necessarily which requires unfairness individ unjust richment. The elements of enrich findings ualized of fact for each member markedly ment claims differ from state to reasons, the class. all of For these there is a state.35 In addition to the differences predominance lack of of common criteria, these basic state considerations factual issues and the trial court abused its such claims differ over issues of miscondu in certifying unjust discretion the claim for ct,36 availability adequate remedies at enrichment which fails to statutory meet the law,37 and the effect of the existence of an requirement under 12 0.8. (B)@).39 2001 2023 express governing contract the transaction.38 Mart, Elnicki, Ray Reilly's 35. 1034, Tire Christy, Inc. v. F.P. F.Supp.2d Adelman v. 90 1045 37, 994, (1987) 149 Vt. (D.Ariz.2000)[The 537 A.2d 995 govern existence of contract (R.I.1997) Bouchard v. Price, 670, 694 A.2d 673 ing dispute is not sufficient to invalidate an benefit]; [Requiring inequitable retention aof unjust theory recovery.]; enrichment Williams Seoulbank, v. 91 881, 77 Lectrodryer Co., Cal.Rptr.2d 37, supra [Unjust v. Bear Stearns & see note 723, (2000) Cal.App.4th [Requiring 726 the un express enrichment claim fails if an contract just expense retention of a benefit at the of an exists.]; Lasala, already v. de 666 P.2d Mitford other.]; Amoco Co., Production v. EM Nominee 1000, 1006, (Alaska 1983) [Unjust n. 1 enrich Co., Partnership (Wyo.2000) 2 P.3d 541-42 precluded by ment is the existence of an actual [Requiring constructive notice of intent to be contract.]; Benavides, Cole v. 561 paid.]. (5th Cir.1973) express [Proof of an contract cov ering precludes unjust the services relief in en 36. DCB Co., Construction Inc. v. Central City richment.]; Mateo, Lemoge County (Colo.1998) Development San 965 P.2d (1956)[Formal [Holding unjust requires Cal.2d 297 P.2d enrichment show deceitful, contract, ing improper, misleading meaning con of which is understood duct]; Nash, (Del. Schock v. 732 A.2d relief.]; parties, precludes equitable both Keneal 1999) restitution, [Allowing for even when defen Orgain, Mont. ly wrongdoer.]; dant is not a Anderson v. Delisle, (1980) allege implied [Plaintiffs an con (Minn.App.1984)[Unjust 352 N.W.2d proving tract while contract.]; Polver express enrichment claim allowable in situations where Peatt, Conn.App. ari v. 614 A.2d morally wrong.]. enrichment was unjust [Awards for enrichment are allow express able when not inconsistent with con Hamlin, Community Guardian Bank v. tracts.]. 1005, 1008 Ariz. P.2d (Ariz.App.1995)[Holding unjust enrichment (B)(3), law.]; 39. Title 12 requires O.S.2001 see remedy provided by note absence of a Independent supra. recognized Voters At least one court has Illinois v. Illinois Com unjust specif because enrichment claims are fact merce Com'n, Ill.2d 109 Ill.Dec. 782, 510 case, they (1987)[Holding ic to each N.E.2d 850, 854 are unsuitable for class thai restitution predicated unjust "usually" enrichment re altogether. action treatment Avis Rent A Car exist.]; quires adequate legal remedy that no Inc., Heilman, v. 876 So.2d 1111, 1123 Systems, Williams v. Bear Stearns & Co., (Ala.2003). 397, 725 So.2d (Fla.App.1998) 400 remedy [An available is not sufficient to bar claims.]. restitution

1037 cordingly, inapplicable Act is Consumer Sales Ohio to iii. Ohio occurring Act in than Practices Claims transactions states other Ohio. alleges 122 The consumer Consumer Sales violated Ohio Appropriateness Injunctive iv. of Final (the Act)40 Goodyear argues Act

Practices Declaratory or Relief. certifying in a class that the trial court erred finding predomi alleged 125 In addition to on the violation of the action based inapplicable to the nance, Act the Act is because the trial court determined that § class should be certified under 12 O.S. 2023 class. (B)(2). (B)(2) Section allows certification $23 unfair, generally prohibits Act representative when the class can show that unconscionable, deceptive sales.41 Sec party opposing the class has acted or only imposes liability Act tion 1845.04 of the generally grounds applica refused to act on practice place offending act or takes when class, thereby making appropriate ble to the gener have within the state of Ohio.42Courts injunctive corresponding declaratory final or ally inquiry that the focus of the determined respect relief with to the class as a whole.44 concerning application of such an Act to out- section, argues this the customer Under offending of-state consumers is whether injunctive declaratory appro or relief is an occurred with the consumer transaction priate certifying basis the class. Good state.43 year all insists because asserted Goodyear may developed 24 have While predominately monetary claims seek dam corporate of- shop supply fees from its (B)(2) ages, inapplicable. subsection unfair, Ohio, any decep- in our view fices a tive or unconscionable conduct toward previously have not addressed a We 2028(B)(2). § class certification under How occurred where the transaction consumer ever, closely Oklahoma's class action scheme brought an au- occurred-when customer 23, parallels in for service to a service center Rule of the Federal Rules of tomobile find it illustrative.45 Civil Procedure we charged shop supply Ac- and was fee. spective seq. § Rev.Code 1345.01 et of the locus of the manufacturer or 40. Ohio supplier, activity it is the that is determinative. generally, 41. See Ohio Rev.Code 1345.01 et 195, S.W.2d see, Oveisi, But Steed v. Realty seq. (Tenn.App.1991) [Consumer Protection Act long applies any to consumer as as defendant provides: 42. Ohio Rev.Code 1345.04 the state.]. transacts business within pleas, municipal ''The court of common or respective monetary county courts within their (B)(2), see note Title 12 jurisdiction jurisdiction any supplier have over supra. respect any practice act or in this state with covered sections 1345.01 to 1345.13 of Procedure, 23(b) Rule 45. Federal Rules of Civil Code, respect or with claim Revised provides pertinent part: subject arising from a consumer transaction such sections." "... An action be maintained as (a) prerequisites action if the of subdivision Products, 43. Clark v. TAP Pharmaceutical satisfied, addition: 278 Ill.Dec. 798 N.E.2d Ill. App.3d (2003) [Out-of-state consumer may pursue (2) party opposing acted or the class has deceptive an action for consumer fraud if acts grounds generally appli- state.]; refused to act on the place practices within the Oce took class, USA, thereby making appropriate cable to the Printing Systems Inc. v. Mailers Data Ser injunctive corresponding declar- final relief or (Fla.Dist.Ct. vices, Inc., 760 So.2d atory respect to the class as App.2000) im relief [Certification of Nationwide class » Deceptive proper Act because and Unfair Trade .. whole; consumers.]; Cyto previously the federal rule applies v. We have considered to in-state Delahunt Dewey interpreting when our similar statute. Technologies, F.SupP.2d dyne (S.D.Ohio 2003); Firefighters Champion rel. Oklahoma Pension & Shorter v. Home State ex (N.D.Ohio F.Supp. Builders 338-39 ¶ 18, 28 P.3d Retirement System, 1991). Bearings, Norman, see note also, 539; See Pacamor Inc. v. Mine Mattoon City of Co., Ltd., (D.N.H. ¶ 8; supra Leasing, F.Supp. at KMC Inc. v. Rockwell- bea 1996); Brown v. Market Dev. 41 Ohio Misc. Hawk Standard see note Black supra; Corp., ¶ 11; supra noting Co. v. Exxon see note 322 N.E.2d that irre- Oil 1038 28(b)(2) claim turn on the defen Rules of the merits of the the Federal Rule

Under 46 injunctive or declarato dealings plainti Procedure individual with each Civil dant's generally reserved for ff.51 is Certification remedy primary re be the ry relief must broad, members,47 injunctive or in which class-wide and the defen cases quested for declaratory necessary to address a applicable relief is generally must be dant's behavior award of some whole.48 The group-wide injury such as in discrimination to the class as a suits, by rights though even some dam precluded or civil monetary damages is not ages also be awarded.52 monetary relief is requirement, provided primary in- secondary or incidental present action is not similar to 128 The sought.49 junctive declaratory relief though types actions. Even Harvell those injunction against the contin also seeks an certification €27 To determine fees, crux of practice charging ued (2), considers not the court under subsection compensation sought for her class action is by plaintiffs, but merely sought the relief monetary supply allegedly fraudulently charged shop for crux of the action is whether the improper if ages.50 Certification squarely focuses on a es.53 This case dam fe damages.]; was on In re School Asbestos 9, Bank see note Shores v. First supra money City Corp., 47, [Despite plaintiff's inge- ¶ Litigation supra note at 5. damages.]. claims are nuity, essentially Procedure, Civil Rule 46. Federal Rules of 45, 23(b)(2), supra. see note Co., 48, & see note Sears, 51. Bolin v. Roebuck supra. Procedure, Civil Rule 47. Federal Rules of 45, 23(b)(2), supra; In St. Jude Medi see note re 47, Gleich, supra; note Robinson 52. Molski v. see 1116, (8th Cir.2005); cal, Inc., F.3d 1121 425 Co., Metro-North Commuter Railroad 267 F.3d v. Gleich, 937, (9th Cir. v. 318 F.3d 947 Molski 147, (2nd Cir.2001) denied 535 U.S. 162 cent. 2003); Acceptance, v. Motors Coleman General (2002); S.Ct. 152 L.Ed.2d 251 951, 1349, 122 (6th Cir.2002); v. 443, 446 Stewart 296 F.3d Abraham, 47, supra; In re Stewart v. see note 220, Abraham, (3rd Cir.2001) 228 cert. 275 F.3d Liability Methyl Tertiary Butyl Ether Products Lit 153 L.Ed.2d 958, 2661, denied 536 U.S. igation, note Kleiner v. First Na 48, see supra; (2002); Litiga In re Antitrust 836 Mercedes-Benz 683, Atlanta, F.R.D. 691 tional Bank 97 (D.N.J.2003); 180, 186 United tion, 213 F.R.D. Co., (N.D.Ga.1983); McCray 76 v. Standard Oil Trucking Inc., 682, 75 F.R.D. States v. Employers, (N.D.Ill.1977). 490, See, F.R.D. Amchem See, (D.D.C.1977). In re Asbestos School Products, Windsor, 591, 614, Inc. v. 521 U.S. (3rd Cir.1986) Litigation, 996, 789 F.2d (1997) 2231, 2245, [Not L.Ed.2d 689 S.Ct. Lancaster, cert. denied Celotex v. School Dist. of against parties charged ing rights civil cases 852, 182, S.Ct. 93 L.Ed.2d unlawful, prime class-based discrimination are money damages may not be [An action for certifications.]; 23(b)(2) examples Rule In re 23(b)(2) action.]. maintained as a Rule [Recog Medical, St. Jude see note supra (b)(2) through nizing injuries remedied actions Procedure, 48. Federal Rules of Civil Rule really group opposed injuries to individual 23(b)(2), Sears, see note Bolin v. Roe- supra; generally together bound and class members are (5th Cir.2000); 970, 975 In Co., buck & 231 F.3d significant common trait such as race or Butyl Liability Methyl Tertiary re Ether Products Oper gender.]; Lemon v. International Union of (S.D.N.Y.2002). Litigation, 323, 341 209 F.R.D. (7th Cir.2000) ating Engineers, 216 F.3d [23(b)(2) presumption operates under Cooper v. Souther of the class members are cohesive the interests (11th Cir.2004) cert. denied 546 U.S. homogenous, individual differences (2005); v. S.Ct. 163 L.Ed.2d 363 Molski members.]; among Dept. Marcus v. Kansas Coleman v. General Gleich, see note supra; Revenue, (D.Kan.2002) [Cer 206 F.R.D. 47, supra; Acceptance, In re Motors see note comprised purchasers tification met for class Litigation, note Antitrust see Mercedes-Benz alleged Depart parking of disabled cards who Cross-Disability supra; Colorado Coalition the Americans ment of Motor Vehicles violated (D.Colo. Taco Bell 184 F.R.D. Corp., charging fees.]. with Disabilities Act 1999); Communications, Heartland Inc. v. Sprint (D.Kan.1995). Corp., 161 F.R.D. example, 53. For of Harvell's three asserted claims, only one which even mentions Communications, Inc. 50. Heartland Sprint injunction of the Ohio Consumer is the violation See, Gleich, Molski v. see note supra. also seeks Act, is on the intent of Sales Practices but she [Focus compensa- note supra plaintiffs statutory damages tory it. The cus- under bringing Anti- suit.]; In re Mercedes-Benz compensatory damages Litigation, supra [Assessing under note tomer seeks trust equal theory litigation", contract in an amount the focus of the cause breach of "realities of compensatory money damages. inapplicable. Accordingly, A the Ohio Act is claim for damages require certify- would determination of the the trial court abused its discretion ing for each class determinations the class action. individualized charged compared with member of the fees REVERSED; TRIAL COURT CAUSE rendered, whether the services to determine REMANDED. supplies the fees did fact correlate Accordingly, pursuant used. certification WATT, C.J., WINCHESTER, V.C.J., 2023(B)(2) an abuse of discretion. is also LAVENDER, HARGRAVE,OPALA,

KAUGER, TAYLOR, and JJ.-Coneur. CONCLUSION [32 EDMONDSON, J., COLBERT, and A129 trial court's class certification order J., in Part and Dissent in Part. Concur An is reviewed for abuse of discretion.54 EDMONDSON, V.C.J., Concurring in Part a abuse of discretion occurs when court bases joined Dissenting and in Part and of law its decision on erroneous conclusion COLBERT, J. rational in evi or where there is no basis ruling.55 If dence for the the record does not T1 I dissent to some extent from the requisites demonstrate that the for class ac opinion for Court's three reasons. met, tion have been the trial court has misapplies require- Court class action abused it's discretion.56 typicality predominance. ments and Sec- ondly, the Court states contract law of {30 The trial court certified a class action jurisdictions thirty-seven applies, but then claim, on a common of contract law breach through apply fails to follow the law of unjust common law claim of enrichment and thirty-seven jurisdictions determine a violation of the Ohio Consumer Prac- Sales appropriate. action whether Final- Act, finding requirements tices ly, plaintiff right a Due has Process to an numerosity, commonality, typicality, rep- opportunity to show the facts and law from re- resentation well as two alternative thirty-seven jurisdictions sup- that would injunctive quirements appropriateness action, port the creation of a class and the declaratory or relief or of com- impermissibly opportu- Court forecloses this superiority mon of law or fact and nity. adjudication of class action had met. been pre- We have determined that neither of the 12 Under Title 12 of the Oklahoma Stat utes, requirements may dominance or the alternative a class be certified when it satis 2023(A) requirements fies the four requirements appropriateness injunctive § 2023(B).1 declaratory requirements relief were satisfied and that one of the Bur- shop supplies paid, fees and refund of the 54. Ysbrand v. see note DaimlerChrysler Corp., Co., illegal profits wrongful supra; fees to the class un- State Farm Fire & Cas. see Scoufos Here, unjustment theory. der her enrichment note Black Hawk Oil Co. v. Exxon supra; damages require determination of would individ- see note Shores v. First Bank supra; City Corp., shop ualized determinations of whether the fees see note Corp., supra. supplies did in fact correlate to the used. In Co., 55. Fent v. Oklahoma Natural Gas see note injunctive class action in which both and mone- Leasing, Inc., KMC v. Rockwell-Standard sought, supra; relief are where the determination tary damages inherently and individualized na- see note Corp., supra. ture, inappropriate. class action status is Robin- 56. Ysbrand v. see note DaimlerChrysler Co., son v. Metro-North Commuter Railroad see supra. See, Sears, note Bolin v. Roebuck & supra. Co., supra improper note if [Certification is 0.$.2001 provides pertinent 1. Title 12 the merits of the claims turn on the defendant's part: dealings plaintiff.]; individual with each Hoff- PREREQUISITES Mfg., Inc., man v. Honda America 191 F.R.D. "A. TO A CLASS ACTION. (S.D.Ohio 1999) One or more members of a class sue or be 530, 533 for incidental [Liability parties damages require hearings representative all should not additional sued as on behalf of disparate only to resolve the merits of each individu- if: case, joinder al's nor it entail individualized de- 1. The class is so numerous that of all should terminations.]. members is impracticable; center must be de- service OK Ins. gess v. Farmers 2023(A) showing the re ¶ 10, purpose of Section P.3d for the termined numerosity contract, de- such are: terms of each quirements disagree. I typicality of the class. (2) stroys the commonality questions members, and (8) of claims or law, typicality of fact or explained that the courts have 14 Federal class, within the representatives defenses 23,2 of Federal Rule typicality requirement (4) to parties representative adequacy 2023(A)(8), rep the "class means our members. Section fairly protect putative the class members resentative and (1) 2023(B) are: requirements alternate and suffer the 'possess the same interest by separate adjudications 3 risk of inconsistent defendant's injury." The focus is on same of non- impairment actions or substantial arises plaintiff's claim and whether behavior (2) interests, ap or protect to their parties or course of practice event or from the same injunctive or declarato final propriateness claims of the gives rise to the conduct of common relief, ry or not Typicality "does other class members.4 to class members law or fact questions of putative class members share require that all adjudication. action superiority of class Indeed, long so as 'the claims. identical putative plaintiffs and allegation claims of the named Harvell's Goodyear points to by conduct involve the same class members with an estimate. provided was not that she defendant, re typicality is established allegation shows the argues that this If the gardless of factual differences'"5 interaction putative class member's that each any litigation con- b. the extent and nature questions or fact common of law 2. There are already controversy cerning commenced the class; the representative against the class, members of the claims or defenses of or 3. The undesirability desirability or of concen- c. typical defenses of parties the claims or litigation particu- trating claims in the of the class; and forum, and lar fairly parties will and ade- representative 4. The likely in the the difficulties to be encountered d. quately protect of the class. the interests management of a class action. ..." ac-An CLASS ACTIONS MAINTAINABLE. B. may a class action if the be maintained as tion statute, Oklahoma's class action 2. Since prerequisites A are satisfied and in of subsection parallels closely Rule 23 of the Federal Rules of addition: Court look to federal Procedure, Civil separate prosecution actions or 1. The regarding authority guidance the rationale of against the class would individual members of Leasing, comparable provisions KMC 2023. of: create risk ¶ 9, Inc. v. Rockwell-Standard varying adjudications with re- a. inconsistent or spect of the class which to individual members Queen, Inc., Dairy 3. Collins v. International incompatible of con- standards would establish 668, 674, (M.D.Ga.1996), modified class, F.R.D. opposing party or duct for the (M.D.Ga.1997), grounds, 169 F.R.D. 690 other respect adjudications to individual b. with Telephone quoting, Co. Southwest General practical would as a of the class which members 147, 156, Falcon, 457 U.S. v. dispositive of the other of the interests matter be (1982). 72 L.Ed.2d adjudications parties or sub- to the members ability pro- stantially impair impede or their Queen, Inc., Dairy v. International Collins interests; or tect their (the (M.D.Ga.1996), is on focus F.R.D. party opposing the class has acted or 2. The conduct), quoting, Zin defendant's behavior or generally applicable grounds act on refused to Inc., Washington Bancorp, F.R.D. berg class, thereby making appropriate final in- (D.N.J.1990). declaratory corresponding relief junctive relief or Inc., whole; class as a or to the Management, 5. Johnston v. HBO Film respect questions of law 3. The court finds that 178, 184, Cir.2001) (3rd quoting Newton v. F.3d pre- of the class fact common to the members Inc., 259 Pierce, Smith, Fenner & Merrill Lynch, only questions affecting indi- (3rd Cir.2001). dominate over See also Zeno F.3d 183-184 members, superi- action is and that a class vidual F.R.D. Motor v. Ford ("Commentators (W.D.Pa.2006) methods for the fair or to other available have noted controversy. adjudication challenging efficient unlawful conduct the same cases findings plaintiffs pertinent include: and the matters both the named which affects satisfy typicality usually re putative of the class in indi- a. the interest of members varying pat irrespective fact controlling prosecution quirement of the vidually or defense of claims"); Collins underlying individual terns actions, separate pay claims arise from a similar course of conduct ment to a fee for the miscellaneous mate- legal theory, and share the same factual dif servicing rials used when a vehicle Har- distinguishes former, vell's claim typicality. between the not defeat ferences will Stirman (5th Corp., 280 v. Exxon F.3d Cir. says where she deceptive "there would be no Bowen, 2002); Adamson practice and no breach of contract" and the (10th Cir.1988). way, "Factu Stated another jurisdictions latter where itemization did not al differences the claims of the class mem putative occur. The upon class is based bers should not result a denial of class alleged misrepresentation same to all mem- certification where common of law bers of the class. Harvell's claim based exist" because such differences do not defeat the written orders does not estimates/work sufficiency typicality and common require the trial court to make individualized ality presented by common the agreements determinations of the between possessed by law or fact the class. Milonas Goodyear and each of its customers. Williams, (10th 931, 691 F.2d 938 Cir. Goodyear T7 appears argue also 1982). alleged misrepresentations the did not occur representative 15 A possess must the putative to all class members as a matter of injury same interest and suffer the same law, and that atypical. Harvell's claim is thus Telp putative the class members. General Goodyear's argument The essence of is that Falcon, Co. Southwest v. 457 U.S. hone upon application of the various states' laws to 147, 156, 2364, 102 S.Ct. 72 L.Ed.2d 740 putative the claims of the various class mem- (1982). Harvell claims that made a bers, may no claim exist as a matter of misrepresentation contractual to all members words, substantive contract law. In other putative of the class. Where the claims of provided those customers who were with a plaintiff putative the and the class members have, pre-work estimate do not as a matter alleged misrepresen all arise from the same law, action; but, do, they cause of if it is defendant, by tations the the claims of the possessed different by from that Harvell. plaintiff typical those the class.6 T8 A court does determine the merits factual Different cireumstances exists plaintiff's of a deciding claim when whether members, among putative class but such dif proceed the claim should aas class action.7 typicality ferences do not defeat when the In Jacquelin, Eisen v. Carlisle & 417 U.S. representative claims of the class and the 156, 2140, (1974), 94 S.Ct. 40 L.Ed.2d 732 the putative class upon members are based High Court stated: legal theory. same or remedial Adamson v. Bowen, 676; Milonas short, 855 F.2d at 38 . In agree Judge we Wisdom's Williams, 691 F.2d at 9 in Mackey conclusion Miller v. Interna tional, (5th Cir.1971), 424 452 F.2d where distinguishes 16 Harvell's claim between rejected preliminary inquiry the court Goodyear's alleged practice itemizing proposed into the merits of a class action: shop in fee orders used estimates/work California, York, Washington New D.C. determining 'In propriety of a class action, question practice jurisdictions and its in other where is not whether plaintiff plaintiffs agree- orders show an have stated a estimates/work Inc., Queen, 2006) Dairy (typicality alleged misrepresenta- v. International 168 F.R.D. where class). putative (M.D.Ga.1996) tions were made to members of (varying 668, 674, fact patterns typicality) quoting do not defeat In re Domestic Co., Inc., See also Zeno v. Motor Ford 238 F.R.D. 173, (W.D.Pa.2006) ("Commentators Litigation, have Air Antitrust Transportation 677, (N.D.Ga.1991) quoting challenging F.R.D. 7A noted that cases the same unlawful plaintiffs Wright, conduct which affects both the named Kane, Miller & Federal Practice and Pro putative usually satisfy typicali- (1986) citing and the Kornberg cedure v. Carnival Lines, Inc., (11th ty requirement irrespective varying Cruise of the fact claims"). patterns underlying Cir.1984), the individual denied, cert. 470 U.S. 105 S.Ct. (1985). 1357, 84 L.Ed.2d 379 7. Eisen v. Carlisle & U.S. Jacquelin, Management, 6. Johnston v. HBO Film (1974); 177-78, 94 S.Ct. 40 L.Ed.2d 178, 185, (3rd Cir.2001); F.3d In re Polaroid Black Hawk Oil Co. v. Exxon 1998 OK ¶ (S.D.N.Y. Litigation, Erisa 240 F.R.D. prevail be overwhelmed with the burden of action or will cause of merits, require- unmanageable rather whether class. but at 427. of Rule 28 are met' Id. ments at 164 P.3d 1028 note Eisen, 2140, 40 at 94 S.Ct. U.S. omitted. added). (emphasis L.Ed.2d 732 upon Typicality is not based identical certifica Goodyear attempts to make class legal Typicality is a conclusion facts. depend upon tion O.S.2001 materiality con- assesses the of facts (B)(6)8 contending claim analysis, Harvell's cause(s) particular of action raised text of the legally pre- a claim from atypical because the conclu- putative class. To reach fails to state a service estimate customers sion that Harvell's cause of action is not A granted. relief can be claim which identify typical, the Court must the elements con generally involves class determination particular cause of action at issue factual that are enmeshed siderations applicable applying the substantive law plaintiff's comprising issues not do so in its contract. Court does Telephone of action. Co. cause General opinion. Falcon, Southwest However, 2364, 72 L.Ed.2d 740. says T 10 The Court that Harvell's claim or that class certification does Eisen indicates cause of action is different because some depend upon analysis a not an of whether pre-work a customers received estimate. plaintiff's claim states a cause of action.9 jurisdiction's Why? substantive law of What Additionally, usually this Court does not making applying contract is the Court this disput of make first-instance determinations legal conclusion? The Court is clear that it appeal.10 To the ed law thirty-seven juris- applying not the law of is Goodyear's typicality extent that attack on is juris- thirty-seven But if the law of dictions. an attack on the merits Harvell's cause applied, not can the dictions is how Court action, improper for review of a class such is pre-work fact conclude that the estimates certification order. by action is material to the cause of opinion T9 The Court's states the follow- putative residing members of the out- ing, analysis: crucial to its claims, side Oklahoma? Their as the Court ordinarily signs The customer the estimate holds, by are to be measured the substantive Apparently, work is done. before in, jurisdictions they law of the reside law the typical Harvell is not the customer because steadfastly apply. Court refuses to alleges given she not she was conclusion, support typicality 11 In of its complet- estimate until after the work was statute, cites action 12 the Court the class ed. The existence of a contract and a (B)(3), v. Daimiler O.S.2001 2023 Ysbrand determination of what the material terms 17, Chrysler Corp., 2003 81 P.3d 618 cert. OK of the contract were differ with each class denied, 937, 2907, 542 U.S. S.Ct. member's interaction with each service (2004), Leasing, L.E.2d 812 and KMC Inc. v. center. These individualized determina- 51, tions, Rockwell-Standard 2000 OK coupled application of the states, support precludes finding P.3d 683. None of these the Court's law of 37 statutory purpose conclusion. The cite refers to the predominance and defeats the certifying requirements typicality. trial court would Here the issue is class. The (B) 0.$.2001 provide County, v. El 386 F.3d 8. The terms of 12 9. See also Shook Paso (10th Cir.2004), denied, cert. defense, fact, in law or "Every pertinent part: (2005); 161 L.Ed.2d any pleading, to a claim for relief in whether a Anderson v. City Albuquerque, claim, cross-claim, counterclaim, third-party (10th Cir.1982). claim, shall be asserted in the plead- responsive ing required, except if one is thereto Employees Ass'n Okla 10. Oklahoma Public following option at of the defenses Services, Central 2002 OK n. homa Dept. of * * * pleader by be made motion: 6. Failure to Johnson, Martin v. 55 P.3d upon granted;" which can be state claim relief 897; Melson, 975 P.2d YWCA v. 127, ¶ 34, n. OK meaning statutory require of the trial development. Instead, not court for further ments, application requirements. but adopts Goodyear's the Court legal conclu- sions of Harvell's claims. But where in the {12 Leasing In we noted that KMC there opinion analysis Court's is the of the "essen- single by appellees was "no course of conduct tial elements" of claim Harvell's that is called alleged injury impos- have caused it is Leasing KMC to determine whether upon sible for claims to be based one Harvell's claim typical? at ¶ theory appellees." Leasing, as to all KMC additionally 9 P.3d at 689. We noted 115 In Ysbrand the Court declined to lability that "facts that bear on will not be apply fifty-one jurisdictions the law of to a at ¶28, typical." Id. at P.3d 692. We misrepresentation fraud claim. Ys quoted authority stating that it "is often nee- brand, ¶ 18, at 81 P.3d at 627. In Ysbrand essary analyze the substantive claims and any request there is no indication of in the parties defenses of the and the essential ele trial court to create subclasses. Harvell ments of those claims and defense...." Id. specifically requested in the trial court that ¶ 30, 692, quoting 9 P.3d at Davoll v. subclasses be created if the trial court deter Webb, (D.Colo.1995), 160 F.R.D. mined that thirty-seven jurisdic the law of (10th Cir.1999). 'd,194F.3d 1116 aff applies. tion But the trial court did not 13 The case before us is based request reach that because it determined alleged misrepresentation same to all mem thirty-seven jurisdictions the law of did arguing bers of the class. Harvell is that a apply. "single course conduct" injury. question caused common to the opinion The Court's remains silent on class, Harvell, alleged by as is whether Good opportunity issue Harvell's to seek year misrepresented the true nature of the However, class certification with subclasses. Harvell, Liability, alleged by fee.11 does it concludes that class action involving thir depend upon agreements, not individualized ty-seven jurisdictions may proceed. Goodyear but misrepresented whether the trial court has not determined whether sub true nature of the fee to the class as a whole. classes would manageable. be Even when T this Court exercises its broad Goodyear alleges reviewing pow that customers who equitable in an pre-work have, proceeding, ers viewed the estimates do not it does not law, fact; a make findings as matter of substantive first-instance of contract a and the words, parties opportunity cause of action. In other Court allows the an pre- to viewing legally work support constitutes material create record of facts to their theories.12 Class may certification issues de and different course of conduct. Whose side adopt stage, pend upon findings should the Court ? At this nei- of fact made the trial judge court.13 A trial considers the evidence ther. The matter should be remanded to the See, Services, e.g., Allapattah Inc. v. Exxon cognizance court cannot exercise first-instance (11th Cir.2003) (Exx Corp., fact."). 333 F.3d by making original findings of argument on's that each breach of contract claim raised an individual issue was without merit be eg., 13. See, v. Fibreboard 527 U.S. Ortiz agreements cause all of dealer were material 715(1999) (in 119 S.Ct. 144 L.Ed.2d ly purported similar and Exxon to reduce the settling parties pres certain circumstances must dealers, price gas of wholesale for all and the agreement, ent not their but evidence on only duty good obligation of faith was an that it owed may rely support which the district court to dealers as whole. Whether it breached required findings of fact where certification is obligation question that was a common to the sought purposes of limited fund class action for class.). settlement); of Walsh v. Ford Motor F.2d 1017-1018 U.S.App.D.C. e.g., See, Nelson v. Pollay, (D.C.Cir.1986), (generally, appellate P.2d denied, cert. 482 U.S. an court (1987) (class S.Ct. 96 L.Ed.2d 677 action will not make first-instance determinations of proponents may upon prove not be called to their law or fact since that is the trial court's function certification, law, they every case in order to obtain equity ap but case-whether on peal body); Hedges from an administrative to tender some basis, creditable some required evidence, proponents subject were to Hedges, 92, ¶ 23, OK 364, 373 ("When case, reviewing equity appellate defendant). an similar treatment that a making a certification have stated when Federal courts sides T18 from both within a often arises certification choice of law issue ruling for class and a ruling, analysis rule for the when a court exam court to Rule 23 the trial does not bind Federal 23(b)(@) ultimate mer adjudicating requirement plaintiff when ines the alternate Initial Public In re questions of that issue. of law common predominance its Offer 471 F.3d Litigation, ing Securities of the common Satisfaction class members. Cir.2006). (2d evidentiary po Harvell's (b)(8) n. 9 not decide the ality requirement will Goodyear's invoices show sition is that puta because a requirement predominance contracts, those custom even terms of the commonality re may satisfy the tive prior to service the estimates ers who viewed 23(a) satisfy the yet fail to quirement of appeal In this vehicles. to their 28(b)8). Am requirement of predominance 14in the of discretion an abuse must show Windsor, Prods., Inc. v. chem ruling, certification judge's trial 623-24, 138 L.Ed.2d 689 evidence showing must be based Potter, (1997); Monreal its cus contracts with Goodyear's record that Cir.2004). (10th ordinarily A court than its in something other tomers were whether will determine pro Goodyear should be voices. Harvell outweighs the set of law common satisfy their opportunity with an vided class.16 separate of issues proof. persuasion and respective burdens four nonexhaustive 2023 lists 19 Section involving actions choice of law for 1 17 The weighing or balane-i pertinent to this matters legislatively determined been contracts has have counterparts of which ng,17 the federal "A contract is to be jurisdiction. for this variety ways by federal regarded in a been usage of according to the law and interpreted balancing or the The calculus of this courts. or, performed, if it it to be place where factors is values to the various assignment of place performance, does not indicate controversy because of the unique for each place usage according to the law nature of the court's determina fact-specific § 162. See- 15 0.8.2001 it is made." where example, For there predominance. tion well-known choice incorporates two tion 162 controversy in class resolu which be a place the law of principles: lawof them group or a small tion of one issue ) (lex and, when loci solutionis performance they may litigation that will so advance place per- contractual silence there is Although predominate.18 fairly be said to formance, place where the law of readily (lex met cer predominance test is applies loci con- created contract was cases,19 of law choice types tain of consumer Processes, ). v. S.A. Cities tractus Panama application of 66, 276, requiring the considerations 796 P.2d 287. 1990 OK Service (''Rather, a find- test demands 67, 1984 OK predominance v. First Bank 14. Shores City proposed supercommonality ing in the of the context of class 299, P.2d 300. In ¶ 1, 689 that an abuse of requires we have stated of the certification careful assessment action. It support action, if record fails to discretion occurs weighing of the class overall character statutory prerequisites for that the conclusion against the class the set the issues common to v. Daimler are met. Ysbrand class certification class."). separate issues 618, 17, ¶ 5, Chrysler Corp., 2907, S.Ct. denied, 937, 542 U.S. 124 623, cert. inclusive, (B)(3)(a)-(d), supra, § 12 O.S. 2023 17. (2004). 812 159 L.Ed.2d at n. 1. balancing predo determination 15. Whether always appropriate for a class action minance is Litigation, 996, 789 F.2d Asbestos 18. In re School controversy. in this But we not determine need Cir.), (3d Celotex cert. denied sub nom. 1010 see, e.g., Romberg, is Predominant Half Loaf S.Ct. District, 852, 479 U.S. 107 v. School Corp. Par Superior Class to None: Certification of v. and National Co. 182, 117, 93 L.Ed.2d Gypsum 23(c)(4)(A), 2002 Utah Under Rule ticular Issues S.Ct. 479 U.S. 107 Lancaster, Dist. School (2002) ("the landscape for meas L.Rev. 280 (1986). L.Ed.2d 291 318, 93 superiority uring predominance Rule under 23(b)(3) fundamentally Rule altered is U.S. Windsor, Inc. v. 521 Products, Amchem 23(c)(4)(a)"). 19. 689 138 L.Ed.2d 117 S.Ct (1997). See, Hines, Dangerous e.g., Allure 16. Action, 594 79 Ind. L.J. Issue Class standards, varying legal such as the laws of make first instance disput determinations on states, may eclipse several the common is ed predomi fact or law.23 The controversy putative in a sues and the nance superiority requirements of Rule thus fail the test.20 28(b)(8), 2028(B)(8), § our adopted "were cover cases which a class action would controversy, 1 20 The choice of law in this time, effort, place 15 0.8.2001 the law of the achieve economies and ex pense, promote performance, requires uniformity ... the trial court to ex of deci putative amine the persons similarly situated, laws all states of the sion as to without multistate class where the contracts were sacrificing procedural bringing fairness or performed.21 may not We conclude an a about other undesirable results ... [which] manner, law, priori every as matter of ... invite[ ] a close look at the case before it putative jurisdic brought class action in this accepted as a class action...." Newton v. tion based necessarily contract law will Pierce, Lynch, Smith, Inc., Merrill Fenner & incapable be of class certification when vari (3rd Cir.2001), 259 F.3d quoting laws, ous states' contract via the lex loci Products, Windsor, Amchem Inc. v. law, ap choice of solutionis/contractus 591, 615, 117 S.Ct. 138 L.Ed.2d 689 plied controversy. to the The fact that laws (1997) (internal quotations and citations omit applicable of various states are would not ted). The trial court has not made this necessarily preclude a class action based using determination appropriate upon principles of contract law. As one © standard. observed, application court "The of various state laws would not be a [to bar class certifi argued Harvell in the trial court that where, here, general policies cation] Ohio applied pursuant law should be underlying common law rules of contract in significant relationship most test from the terpretation tend to be uniform." (Second) Restatement of Conflict of Laws. rejected We application have apply ap- The trial court did not Restate propriate argued lex loct ment. Harvell also if Ohio law solutionis/contractus required by choice of law O.S. 162. was not applied to the class as a whole then Generally, appeal on an this Court does not subclasses could be created.24 Harvell ar- See, Inc., e.g., Holding 20. validity In re 242 F.3d of the release could be determined LifeUSA (3d Cir.2001) (the district court failed to law). application individual of state analy consider how individualized choice of law forty-eight jurisdictions sis of the different would alternative, In the if the contracts are silent impact predominance requirement); on Rule 23's places performance on the the trial court Georgine v. Products, Inc., Amchem F.3d would examine where the contracts were creat- (3d Cir.1996) (predominance requirement ed. 15 0.8.2001 23(b) Rule could not be met because the choice eclipsed of law considerations common issues in Queen, Dairy 22. Collins v. International case), Amchem Products, Inc. v. affirmed, (M.D.Ga.1996), 668, 676, F.R.D. modified Windsor, 521 U.S. 591, (1997); Glock, Spence grounds, (M.D.Ga.1997), L.Ed.2d Ges. other F.R.D. 690 Bank, quoting (5th Cir.2000) Kleiner First National m.b.H., 309-310 (because the district court erred in its choice of (N.D.Ga.1983). F.R.D. 683, 694 analysis law it abused its discretion on the issue 23(b)(3) predominance of under Rule and the Employees 23. Oklahoma Public Ass'n Okla reversed); order of certification was Castano v. Services, Dept. supra, homa Central Martin v. of Co., 734, (5th American Tobacco Johnson, and YWCA v. Melson, at n. supra, supra, Cir.1996) (the analysis district court erred in its 10. when it failed to consider how in variations state law superiority); affect and In re O.R., 24. Support Plaintiff's in Submissions of Litigation, Tri-State F.R.D. Crematory Certification, II, Class Vol. "D" Part Plaintiff's (N.D.Ga.2003); 695 n. 24 Patrick Phair, Ryan (Feb. Analysis, pg. Choice of Law Comment, Resolving the Prob "Choice-of-Law 2005). See also Plaintiff's Motion 23(b)(3) for Class Certi- Actions, lem" in Rule Nationwide Class Brief, ("Any problems see, fication and O.R. (2000). 67 U. CHI. L. REV. 835 But Jen by created the need to address individual issues nings Oil Inc. v. Mobil Oil 80 F.R.D. (S.D.N.Y.1978) (in may by certifying be resolved issue classes under national class 2023(C)(4)(a) should uniform release clause in Section contracts subclasses under Sec- 2023(C)(4)(b)."). pursuant need to be resolved to state law the tion differently class members in certain statutes the differences gued that different affect requiring a denial per se rule to a 4s no not barriers there were states the various in example, Waste For briefed, class can be "Differences action: certification. class Mowbray, the Holdings, ac Inc. v. Management subclasses into grouped class members following. state law." of their court stated cording to the elements differences, if ma "these that argued Harvell necessity individualized Although uniform, easy allowing for terial, are few invar- determinations statute-of-limitations grouping." un- against class certification iably weighs in her subclasses mentions 123 Harvell 28(b)(8), rule reject per se we der Rule determines The Court appeal.27 brief on issues as presence of such treats the that applica that instance appeal words, In other disqualifier. an automatic first not administra laws is varying states' tion may arise concerns fact that such the mere § using the available manageable tively members may affect different that determines silentio and sub procedures, finding that compel a differently does not appropriate 2023(C)(d4) are not subclasses com- over predominate issues individual by adopt so controversy.28 It does for this long a sufficient constel- As as mon ones. ele of the Goodyear's characterization ing mem- binds class of common issues lation con action and cause of Harvell's ments of in the sources variations together, bers pre-work who viewed customers cluding that limitations application of statutes legal claim than a different have estimates automatically class certi foreclose will cannot be claim that Harvell's Harvell such 23(b)(3). See 5 James under Rule fication a class action. part of al., Prac Moore's Federal Moore et Wm. (8d 23.46[3], to -211 {24 Goodyear's argu at 23-210 tice utilizes The Court ed.1999). under Rule of limitations Predominance different statutes ment that jurisdic mechanical, various 28(b)(8) in the law exists to a be reduced cannot rejected an attack have courts tions. Some single-issue test. upon statutes class based upon putative Holdings, Inc. v. Mow Management Waste application reason that for the limitations (note omitted). bray, F.3d at the cause of merits of goes to the the defense varying trial court consider hand, have some courts Should other action.29On the cer deciding class limitation when statutes of be should of limitation that statutes stated Yes, varying stat Do it should. tification? a class certi makes a court considered when themselves, require, limitation utes of Management Hold fication decision. Waste law, deny court, a matter of trial 295-296 Mowbray, 208 F.3d ings, Inc. v. No, they not.30 Whether do certification? Cir.2000). (1st limitations When statutes Geraghty, 445 O.R., Parole Comm'n Support United States Submissions Plaintiff's 25. Id. II, 63 L.Ed.2d Certification, S.Ct. supra, U.S. "D" note Vol. Part Class 24, (1980), the burden is on pg. 586. the Court at explained constructing sub- subclasses and plaintiff for Id., mitting proposals trial court. Submissions O.R., 26. Plaintiffs Support note "D", 1202. Certification, II, Vol. Part at supra, Class pg. 586. e.g., Inc. v. 144 F.R.D. See, Reit, CV Levy, 29. 2023(C) subclasses in her mentions Harvell (S.D.Fla.1992) argument (rejecting varia- of factual appellate for circumstances brief atypical stat plaintiffs' based claims were subject plaintiffs to the same con- tions between limitations, argument reasoning that the ute of predo- and on the issue the defendant duct certification); Gruber inappropriate for class was Appellee's Brief at 9 Answer minance. 78-79 Waterhouse, 117 F.R.D. v. Price ("'the (E.D.Pa.1987) defense limitations statute of may be putative class members 28. Whether complaint plaintiffs' and goes merits of the according contract grouped the various states' to scope for beyond of motion therefore is purpose subclasses is of various laws for the certification"). class instance made in the first determination that is sponte court has no sua by court. A trial a trial by questions raised potential individual to 30. The subclassify; plaintiff's burden it is a to burden varying of limitations application of statutes v. Trust appropriate class. Heaven designate an Cir.1997). Bank, (11th In the conclusion law, a matter of as 118 F.3d do not require, Co. varying statutes of destroy limitation Goodyear's dominance. burden is to show not, predominance or or are administratively that Goodyear those laws are says they not, manageable appropriate or are for accomplish are and Goodyear result not, subclasses or are decisions for the trial says they do. provided Harvell should be an court to make the first instance after the opportunity to show that requirements parties present respective positions their § 2028 are applicable law, satisfied with that the context of the loci lex solutionis/contrac- Goodyear and should have the opportunity to tus choice of yet law. This has not occurred challenge those claims. in the trial court parties and the should be opportunity afforded an present to posi- their 126 A district court in Oklahoma shall tions. judicial take law, notice of the common con stitutions, public and statutes of other states. action,

125 In Harvell's class argued she (A)31 (Second) § 12 0.8.2001 2201 for a significant-rela- That section "re Restatement tionship quires judicial produced test and that citations to vari- notice be taken of the opinions ous statutes and from other states. law, constitutions, common public and stat Harvell failed to show that exception an to state, utes in every force in territory, and lex loci choice of law of solutionis/contractus jurisdiction of the United States." 2 L. § applies, 15 0.8. putative and her Evidence, Whinery, Oklahoma Commentary requires application of the laws of various Evidence, 5.03, (2d on the ed., § Law states. given Harvell should be an opportu- 2000). procedure taking judicial no nity to show how those statutes and cases provided by tice is § 12 0.8.2001 2203.32 support argument her for a appro- class or may The court any consult and use source of priate upon subclasses based applicable pertinent information, whether or not fur requirements § eg., commonality, party. Processes, nished Panama S.A. and, typicality necessary, predominance. if Co., Cities Service 796 P.2d Harvell identify has the burden to appli- judicial 294. While may dispense notice states, cable law of the including various its with a proof, certain form of it does not variations, upon which she bases her multi- dispense with the allocation of the burdens state claims. Walsh v. Ford Motor upon party argue each to applicable law. U.S.App.D.C. 85, Lewis v. Sac and Fox Tribe Oklahoma (D.C.Cir.1986), denied, cert. 482 U.S. Housing Authority, 1994 OK (1987). S.Ct. 96 L.Ed.2d 677 Goodyear 503, 512-513, denied, cert. already has met its showing burden of that (1995). S.Ct. 133 L.Ed.2d 405 We do jurisdictions laws of other apply, but not have a showing record before additionally argues us that the laws of jurisdictions litigants various opportunity conflict with had an satisfy each other their destroy and commonality, typicality, pre- respective and burdens. 0.$.2001 pre- common issues of fact and § law do not 32. 12 2203: Instead, dominate. such should be Determining Propriety Taking Ju- addressed in the context of subclasses within the dicial Notice authority discussing class action. One the issue determining propriety taking A. In ju- varying statutes of limitations states that: "If dicial notice aof matter: appropriate, the court finds that a class is may 1. The court consult and use source the conflict resolved, be it should do so by subclasses, information, whether or not establishing fur- upon appropriate pertinent based by party; nished characterizations, description protect exclusionary except 2. No rule a valid claim members' management interests and to facilitate privilege apply. Conte, Alba, shall of the Newberg, action." Her- B., party Actions, 7.31, timely request B. A is entitled Newberg bert pg. on Class (4th ed.2002). opportunity propriety to be heard as to the taking judicial scope notice and the of the matter 0.$.2001 (A):

31. 12 noticed. notification, prior A. request Judicial notice In the absence of shall be taken court may judicial be made after notice has been taken. of the common law, constitutions public state, every statutes in territory force in any stage C. Judicial notice be taken at jurisdiction of the proceeding. United States. 1048 and trial court Center, parties Legislature, and Medical v. OMH 127 In Patel opin- this Court P.2d of this Court's 987 have the benefit OK did not statute, has re- the Court necessary finding of facts new or the ion "When that stated absent, trial court for the case to the the matter of law manded and conclusions they law. that rule of directions correct with application remanded

must be at n. Id. trial court." by the Ins. be made Bureau Mut. Farm v. Oklahoma Barnes 162, 182; ¶ 56, Co., request P.3d for a OK made a Harvell at 1201. P.2d Self with sub- class certification Group v. YWCA Management determinations Insurers' that court determined if the trial classes 954 P.2d City, 1997 OK Oklahoma trial applied. law multi-jurisdiction present their opportunity to The lack of findings fact and con- not make court did due, this part, in to was respective positions request because Harvell's law on clusions of Remand- previous announcements. Court's jurisdic- several the law of it determined their litigants to make matter for the ing gives plain- apply. not Section tions did is legal standard with the correct arguments a class with to show opportunity tiffs an providing in of fairness simply question subclasses. present their opportunity an to litigants with case. correctly determines Today, the Court € 28 jurisdictions applies, of several the law relief I Finally, note that I must request for sub- Harvell's but it short-cireuits controversy has proper for this suggest as by concluding District Court classes in the In by Supreme Court. given U.S. been may not be main- action that Harvell's Shutts, 472 Company v. Phillips Petroleum opinion accomplishes The Court's tained. 86 L.Ed.2d U.S. upon plaintiffs to a burden by placing this petitioner's (1985), the Court sustained exempting for reason public-policy provide the lower court based reversed claim and rule lex loci out of the solutionis/contractus applicable improper selection upon its concluding that this burden then of law and 822-823, law, Id. 472 U.S. choice of plaintiff agree that I not satisfied. was 2965; law did on choice of but reversal S.Ct. showing that lex satisfy the burden must by the lower foreclose a determination apply. does not loci solutionis/contractus a class action remand whether court parties and the However, case both in this appropriate pursuant proceed could prior case-law as our court construed trial fol opinion here should law. Our choice of lex loct abrogating solutionis/contractus Supreme example of both the U.S. low the trial court rule, party nor and neither prior opinions, and this Court's Court plaintiff's burden. the nature of understood action issue deciding the class refrain from understanding incorrect Their op provided with has been until Harvell nature of some given the reasonable issue is support in and law present facts portunity this issue. prior statements on of this Court's sub certification with quest for class of her Ins. v. Allstate example, Bohannan For in accordance with upon remand classes the Court P.2d OK standard.33 lex loci solutionis/contractus in Brick stated that "The reasons stated (Okl.1974)] Gooden, nerf[v. loci delictus rejecting the lex

abandoning and compelling for equally law are

rule tort rejecting lex loci contrac-

abandoning and P.2d at law." Id. 820 in contract

tus rule in the changes emphasis added. When occur, this Court whether

law appropriate designate an plaintiff's burden to be putative members 33. Whether F.3d according varying for deter- Bank, 118 grouped methods v. Trust Co. class. Heaven Cir.1997). (11th States Parole In United subclasses, mining damages the creation 388, 100 S.Ct. Geraghty, 445 U.S. groups Comm'n within opposed to administrative (1980), 1202, 1215, the Court L.Ed.2d 479 is made a determination class, particular plaintiff for is on the explained that the burden A trial court a trial court. the first instance submitting proposals constructing subclasses subclassify; it is sponte burden has no sua

2007 OK 35 KERBY,

Jennifer Ann

Plaintiff/Appellant/Counter Appellee, KERBY, Christopher

Robert

Defendant/Appellee/Counter

Appellant. 99,970.

No.

Supreme Court of Oklahoma.

May Crosthwait, Jr.,

M. Joe and Traci L. So- derstrom, Firm, The Crosthwait Law Mid- City, McConnell, west OK and Haag Laura Hartzog, Conger, Neville, Cason & Oklahoma to the trial court. Id. 445 U.S. at

Case Details

Case Name: Harvell v. Goodyear Tire and Rubber Co.

Court Name: Supreme Court of Oklahoma

Date Published: Jul 3, 2007

Citation: 164 P.3d 1028

Docket Number: 102,128

Court Abbreviation: Okla.