MARY SLIWINSKI, et al. v. CAPITAL PROPERTIES MANAGEMENT, LTD., et al.
C.A. No. 25867
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
April 25, 2012
[Cite as Sliwinski v. Capital Properties Mgt. Ltd., 2012-Ohio-1822.]
MOORE, Presiding Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 06 02 0884
Dated: April 25, 2012
MOORE, Presiding Judge.
{1} Appellant, Mary Sliwinski, appeals from the judgment of the Summit County Court of Common Pleas. This Court affirms.
I.
{2} Appellant, Mary Sliwinski, is a former tenant of the Hunt Club Apartments located in Copley Township, Ohio. Appellees, Capital Properties Management, Ltd. and Hunt Club Limited Partnership (collectively “Hunt Club“), manage and own the apartments. In 2003, Hunt Club notified its residents that it intended to install new plumbing with meters so that it could begin separately charging for water and sewer services in 2004. Prior to that date, the tenants were not charged for water.
{3} On February 8, 2006, Sliwinski filed suit against Hunt Club, alleging that it was illegally charging the tenants for water at a mark-up rate. On July 18, 2006, Sliwinski filed an amended complaint containing class-action allegations. On April 20, 2007, she filed a motion
{4} On October 9, 2008, Hunt Club filed a motion to strike the class-action allegations from the amended complaint pursuant to
{5} On March 6, 2009, Sliwinski filed a notice of appeal from the trial court‘s order. This Court dismissed the appeal on July 8, 2009, based on the trial court‘s failure to resolve each of Sliwinski‘s objections. On March 4, 2011, after conducting a de novo review of the amended complaint and concluding that Sliwinski‘s pleadings failed to comply with
{6} Sliwinski timely filed a notice of appeal. She raises one assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN ORDERING THE CLASS ACTION ALLEGATIONS STRICKEN FROM THE PLEADINGS.
{7} Sliwinski‘s sole assignment of error contends that the trial court erred in ordering the class action allegations stricken from the pleadings. We do not agree.
{8} In the present case, Sliwinski filed objections to the decision of the magistrate ordering the class action allegations stricken from the amended complaint. The trial court overruled those objections and adopted and approved the magistrate‘s decision. Sliwinski now argues that the trial court erred in overruling her objections to the magistrate‘s decision and in granting the motion to strike the class action allegations from the pleadings. However, Sliwinski did not provide the trial court with any evidence from the record to support her objections to the magistrate‘s decision.
{9}
The duty to provide a transcript for appellate review falls upon the appellant. This is necessarily so because an appellant bears the burden of showing error by reference to matters in the record. See State v. Skaggs, 53 Ohio St.2d 162 (1978). This principle is recognized in
App.R. 9(B) , which provides, in part, that “the appellant shall in writing order from the reporter a complete transcript or a transcript of such parts of the proceedings not already on file as he deems necessary for inclusion in the record * * *. When portions of the transcriptnecessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume the validity of the lower court‘s proceedings, and affirm.”
Id. at 199.
{10} In its order below, the trial court acknowledged that Sliwinski failed to provide a copy of the transcript from the magistrate hearing, and thus, it was required to accept the magistrate‘s findings of fact as true. See Crislip v. Crislip, 9th Dist. No. 03CA0112-M, 2004-Ohio-3254, ¶ 6. The trial court‘s analysis was confined to the magistrate‘s application of law to those findings of fact. On appeal, we must determine whether the trial court abused its discretion in its decision to adopt the magistrate‘s decision. Barlow v. Barlow, 9th Dist. No. 08CA0055, 2009-Ohio-3788, ¶ 5. In doing so, our focus “must be on the trial court‘s actions and not the decisions of the magistrate.” Solomon v. Solomon, 157 Ohio App.3d 807, 2004-Ohio-2486, ¶ 17 (7th Dist.).
{11} “A trial court has broad discretion in determining whether a class action may be maintained and such determination will not be disturbed absent a showing of abuse of discretion.” Southern Health Facilities, Inc. v. Somani, 10th Dist. No. 95APE06-826, 1995 WL 765161 (Dec. 29, 1995), citing Marks v. C.P. Chemical Co., 31 Ohio St.3d 200, 201 (1987).
{12} Under
(1) an identifiable class must exist and the definition of the class must be unambiguous; (2) the named representatives must be members of the class; (3) the class must be so numerous that joinder of all members is impractical; (4) there must be questions of law or fact common to the class; (5) the claims or defenses of the representative parties must be typical of the claims or defenses of the class; (6) the representative parties must fairly and adequately protect the interests of the class; and (7) one of the three
Civ.R. 23(B) requirements must be satisfied.
{13} The trial court here concluded that the allegations in Sliwinski‘s complaint fell under three of these seven requirements: potential identity of the class, plaintiff‘s membership in the class, and a singular question of fact to members of the class. However, it further concluded that there were no allegations establishing the number of members in the purported class, how Sliwinski‘s claims were typical of those held by other members of the purported class, whether Sliwinski would fairly and adequately protect the interest of the class, and whether questions of law or fact common to members of the class predominated over questions affecting only individual members. It further found that Sliwinski would not be an adequate class representative because she had terminated her relationship with Hunt Club, and would therefore have a clear conflict with the class members who were current tenants with valid leases for the premises. It concluded that these deficiencies were fatal and granted the motion to strike the class action claims from the amended complaint.
{14} Initially, Sliwinski challenges the court‘s ability to strike the class action claims from the pleadings prior to the filing of a motion to certify. In support of this argument, she references several federal cases. However, Ohio courts have acknowledged that a
{15} The majority of Sliwinski‘s remaining arguments center around the trial court‘s finding that her amended complaint sought to void the leases, as opposed to voiding an alleged separate contract concerning the sale of water and sewer. In addition, she argues that the trial court “erred as a matter of fact in ruling whether the lease contains a severability clause.” However, these were findings of fact made by the magistrate and adopted by the trial court. As discussed above, because Sliwinski did not offer a transcript or affidavit to support her objection to the magistrate‘s decision, the trial court would have abused its discretion had it not adopted the magistrate‘s findings of facts as true. Crislip at ¶ 6. Accordingly, she cannot demonstrate an abuse of discretion on the part of the trial court in adopting these facts.
{16} Next, Sliwinski argues that the trial court erred as a matter of law in concluding that it had no authority to sever the water and sewer portions of the contract. Arguably, this argument could relate to the issues of voiding or rescinding the entire lease agreements, and would thus support the trial court‘s concerns regarding a potential conflict with the current tenants and Sliwinski‘s ability to adequately represent the class. However, this is not the only
{17} The remainder of Sliwinski‘s arguments center around the magistrate‘s findings pertaining to a private anti-trust action, and the need to identify a human being when pleading corporate fraud. Again, these arguments fail to address the fatal deficiencies the trial court found in her pleadings with regard to the
{18} Sliwinski‘s sole assignment of error is overruled.
III.
{19} Sliwinski‘s assignment of error is overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
CARR, J.
CONCURS.
DICKINSON, J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
JOHN WOOD, Attorney at Law, for Appellant.
MARK A. PHILLIPS, Attorney at Law, for Appellees.