LYNN A. STRICKLER, et al., Appellees v. FIRST OHIO BANC & LENDING, INC., et al., Appellants
C.A. No. 12CA010178
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF LORAIN
March 29, 2013
[Cite as Strickler v. First Ohio Banc & Lending, Inc., 2013-Ohio-1221.]
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE Nо. 07-CV-151964
Dated: March 29, 2013
WHITMORE, Judge.
{¶1} Defendant-Appellants, First Ohio Banc & Lending, Inc. (“First Ohio“), Western Surety Company, and Capitol Indemnity Corporation (Western and Capitol, collectively, “the Sureties“), appeal from the judgment of the Lorain County Court of Common Pleas, granting Plaintiff-Appellees, Lynn Strickler and Keith Krese‘s, motion for class certification. This Court affirms.
I
{¶2} Both Strickler and Krese used First Ohio as their mortgage broker when they obtained residential mortgage loans from lenders who аre not a part of this action. Strickler obtained a home loan in 2006, and Krese obtained a home loan and home equity loan in 2005. As a part of the loan application process, First Ohio provided Strickler and Krese with residential mortgage loan origination disclosure statements. Subsequently, both Strickler and Krese became dissatisfied with the loans they received. Specifically, each fеlt that one or more aspects of the
{¶3} Strickler and Krese brought suit against First Ohio, the Sureties (the issuers of First Ohio‘s mortgage broker bonds), and the individual agents from First Ohio with whom they had dealt during the loan application process. Relevant to this appeal, Strickler and Krese sought to bring the first two counts of their complaint as a class action. The first count was directed at First Ohio and alleged that First Ohio had failed to provide buyers with disclosure statements that complied with
{¶4} Before Strickler and Krese filed their motion for class certification, the parties filed a stipulation with the trial court, asking it to rule upon certain substantive issues before considering the merits of class certification. Specifically, the parties asked the court to decide: (1) whether the disclosure statements that First Ohio provided its buyers from May 2, 2002, to present complied with
{¶5} After the trial court‘s partial summary judgment ruling, Strickler and Krese filed their motion for class certification, and First Ohio and the Sureties filed a brief in opposition. The trial court granted Strickler and Krese‘s motion and certified the following class: “all persons who purchased services from First Ohio related to a mortgage loan on Ohio realty during the period of May 2, 2002 to the present.” In doing so, the court named Strickler and Krese as the class representatives.
{¶6} First Ohio and the Sureties now appeal from the trial court‘s decision to grant Stickler and Krese‘s motion for class certification and rаise eight assignments of error for our review. For ease of analysis, we combine several of the assignments of error.
II
Assignment of Error Number One
THE TRIAL COURT ERRED IN CERTIFYING THE CLASS UNDER CIV.R. 23(A) FOR THE REASON THAT THE PROPOSED CLASS REPRESENTATIVES AND PROPOSED CLASS MEMBERS MUST, FOR PURPOSES OF STANDING, FIRST ESTABLISH THAT AN INJURY IN FACT WAS CAUSED BY A VIOLATION OF
R.C. 1322.062 .
THE TRIAL COURT ERRED, CONTRARY TO LAW, IN FINDING THAT THE PRINTED FEE CALCULATION STATEMENT IN FIRST OHIO‘S DISCLOSURE FORMS WAS DEFICIENT UNDER
R.C. 1322.11(A)(1)(f) .
Assignment of Error Number Three
THE TRIAL COURT ERRED IN CONCLUDING, CONTRARY TO LAW, THAT THE CLASS REPRESENTATIVES ARE MEMBERS OF THE PROPOSED CLASS.
{¶7} In their first and second assignments of error, First Ohio and the Sureties argue that the trial court erred in certifying a class because Strickler and Krese failed to demonstrate that there were questions of law or fact common to the class. In the first assignment, they argue that the common question of injury was not proven for purposes of standing because a violation of
{¶8} For an action to be certified as a class action, there must be questions of law or fact common to the class.
{¶9} In reviewing a motion to certify, a trial court is “confined solely to the question of the appropriateness of class certification” and may not make any findings regarding the merits of the plaintiff‘s cause(s) of action. Hill v. Moneytree of Ohio, Inc., 9th Dist. No. 08CA009410, 2009-Ohio-4614, ¶ 13. “Class action certification does not go to the merits of the action.” (Emphasis sic.) Ojalvo v. Bd. of Trustees of Ohio State University, 12 Ohio St.3d 230, 233 (1984). “When a trial court considers a motion to certify a class, it accepts as true the allegations in the complaint, without considering the merits of those allegations and claims.” Hill at ¶ 8.
{¶10} Upon our review of the first and second assignments of error, it is apparent that First Ohio and the Sureties have attempted to cast merits-based arguments as arguments sounding in commonality or standing. Their arguments address (1) whether a violation of
{¶11} To the extent that First Ohio and the Sureties refer to standing in their first assignment of error, standing relates to the class membership prerequisite of clаss certification, not the commonality prerequisite. See Mozingo, 2012-Ohio-5157, at ¶ 14, quoting Hamilton, 82 Ohio St.3d at 74. Moreover, to establish standing for purposes of class certification, a plaintiff need only show that he or she shares the same interest and the same injury as other members of the class. Hamilton at 74, quoting 5 Moore at Paragraph 23.21[1]. Strickler and Krese‘s complaint set forth: (1) that they both received disclosure statements from First Ohio during the class periоd, as did the other members of the class; (2) that First Ohio‘s disclosure statements violated
Assignment of Error Number Four
THE TRIAL COURT ERRED IN CONCLUDING, CONTRARY TO LAW, THAT THE PROSECUTION OF SEPARATE ACTIONS BY INDIVIDUAL MEMBERS OF THE CLASS WOULD CREATE A RISK OF INCONSISTENT OR VARYING ADJUDICATIONS UNDER
CIV.R. 23(B)(1)(a) .
Assignment of Error Number Five
THE TRIAL COURT ERRED IN CONCLUDING, CONTRARY TO LAW, THAT THE CLASS IS ENTITLED TO FINAL INJUNCTIVE RELIEF UNDER
CIV.R. 23(B)(2) .
Assignment of Error Number Six
THE TRIAL COURT ERRED IN CONCLUDING, CONTRARY TO LAW THAT QUESTIONS OF LAW OR FACT COMMON TO THE MEMBERS OF THE CLASS PREDOMINATE OVER ANY QUESTIONS AFFECTING ONLY INDIVIDUAL MEMBERS OF THE CLASS.
Assignment of Error Number Seven
THE TRIAL COURT ERRED IN CONCLUDING, CONTRARY TO LAW, THAT A CLASS ACTION IS THE SUPERIOR METHOD OF ADJUDICATION.
Assignment of Error Number Eight
THE TRIAL COURT ERRED BY FAILING TO PERFORM A RIGOROUS ANALYSIS OF THE REQUIREMENTS OF
CIV.R. 23 PRIOR TO GRANTING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION.
{¶12} In each of the foregoing assignments of error, First Ohio and the Sureties argue that the trial court erred in certifying a class action against them for various reasons. We do not agree that the cоurt erred by granting certification.
{¶13}
(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.
In re Consol. Mtge. Satisfaction Cases, 97 Ohio St.3d 465, 2002-Ohio-6720, at ¶ 6. The plaintiff seeking to certify an action as a class action bears the burden of establishing that all of the prerequisites for certification havе been met. Sliwinski v. Capital Properties Mgt. Ltd., 9th Dist. No. 25867, 2012-Ohio-1822, ¶ 12.
{¶14} “A trial judge has broad discretion in determining whether a class action may be maintained and that determination will not be disturbed absent a showing of an abuse of discretion.” Rimedio v. SummaCare, Inc., 9th Dist. No. 25068, 2010-Ohio-5555, ¶ 33, quoting Marks v. C.P. Chem. Co., Inc., 31 Ohio St.3d 200 (1987), syllabus. An abuse of discretion implies that the trial court‘s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). “A determination by a trial court regarding class certification that is clearly outside the boundaries established by
{¶15} In the foregoing assignments of error, First Ohio and the Sureties do not challenge any of the first six prerequisites for class certification. See In re Consol. Mtge. Satisfaction Cases at ¶ 6. Their arguments are limited to the requirements contained within
{¶16} Although the class action counts against First Ohio and the Sureties also requested injunctive and declaratory relief, the counts primarily sought money damages from the entities. As such, we first determine whether Strickler and Krese satisfied the provisions of
{¶17}
may be maintained as a class action if * * * the court finds thаt 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.
“The purpose of
{¶18} In challenging the predominance requirement of
{¶19} We believe that Hamilton answers the foregoing concerns. In Hamilton, the Supreme Court held that “a trial court should not dispose of a class certification solely on the basis of disparate damages.” Hamilton at 81, quoting Ojalvo, 12 Ohio St.3d at 232. The parties stipulated to the sixteen different versions of the disclosure statements that First Ohio used from May 2, 2002, forward. By and large, “class action trеatment is appropriate where the claims arise from standardized forms or routinized procedures.” Hamilton at 84. While some differences in the completion of the forms might exist, the fact remains that the class action only would involve a finite number of forms, some of which were alleged to contain deficiencies with their standardized portions. “It is conceivable that a significant amount of time may be spеnt in this case litigating questions affecting only individual members of the classes. However, clockwatching is neither helpful nor desirable in determining the propriety of class certification.”
{¶20} In challenging the superiority requirement of
{¶21} Finally, First Ohio and the Sureties аrgue that this Court should reverse the trial court‘s decision because the court failed to perform a rigorous analysis of the class action requirements. This Court has held that a trial court commits reversible error when it fails to conduct a rigorous analysis of the class action requirements before granting certification. See Mozingo, 2012-Ohio-5157, at ¶ 16-17. Nevertheless, “there is no explicit requirement in
{¶22} Because Strickler and Krese satisfied the predominance and superiority requirements for class certification, the trial court properly certified their class action under
III
{¶23} First Ohio and the Sureties’ first, second, third, sixth, seventh, and eighth assignments of error are overruled. Their fourth and fifth assignments of error are moot. The judgment of the Lorain 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 Lorain, 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 Appеals at which time the period for review shall begin to run.
Costs taxed to Appellants.
BETH WHITMORE
FOR THE COURT
CARR, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
CLIFFORD C. MASCH and ANTHONY CATANZARITE, Attorneys at Law, for Appellants.
LEE M. BREWER and JUSTIN D. OWEN, Attorneys at Law, for Appellant.
THOMAS R. THEADO, Attorney at Law, for Appellees.
JACK MALICKI, Attorney at Law, for Appellees.