JOHN VUYANCIH, ET AL. v. JONES & ASSOCIATES LAW GROUP, L.L.C., ET AL.
No. 105727
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
February 22, 2018
2018-Ohio-685
BEFORE: Jones, J., Boyle, P.J., and S. Gallagher, J.
ATTORNEYS FOR APPELLANTS
Marc E. Dann
William C. Behrens
Brian D. Flick
Emily White
The Dann Law Firm Co., L.P.A.
P.O. Box 6031040
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEES
For Jones & Associates Law Group, L.L.C.
David H. Boehm
Lavin Boehm, L.L.C.
3091 Mayfield Road, Suite 212
Cleveland, Ohio 44118
William A. Peseski
46 Public Square, Suite 230
Medina, Ohio 44256
For Ken Jones
Sean T. Lavin
Lavin Boehm, L.L.C.
3091 Mayfield Road, Suite 212
Cleveland, Ohio 44118
LARRY A. JONES, SR., J.:
{¶1} Plaintiffs-appellants, John Vuyancih, Rachel Vuyancih, Jacklyn Pavlinic, Charles Finley, and Catherine Finley (collectively “the proposed class“), appeal the trial court‘s decision denying their amended motion to certify a class action. For the reasons that follow, we affirm.
{¶2} In 2016, the proposed class filed suit against defendants-appellees Jones and Associates Law Group and Ken Jones (collectively “Jones Group“) alleging violations of the Ohio Consumer Sales Practices Act (“CSPA“). The proposed class alleged that the Jones Group sent solicitation letters to homeowners who were named defendants in foreclosure actions in Ohio courts and made false and deceptive statements related to their foreclosures.
{¶3} The proposed class subsequently filed a motion for default judgment, a motion to certify a class action, and then an amended motion to certify a class action. The Jones Group answered the complaint
{¶4} The proposed class filed a timely notice of appeal and has raised one assignment for our review: “The trial court erred by denying the appellants’ amended motion to certify class action.”
{¶5} Class actions are authorized for violations of the CSPA under
{¶6} The trial court in this case found that the proposed class did not give the Jones Group sufficient notice for purposes of
{¶7} The proposed class argued that consent judgments could provide evidence of prior notice for the purposes of
{¶8} The leading case in this area is Philip Morris, 110 Ohio St.3d 5, 2006-Ohio-2869, 850 N.E.2d 31. In Philip Morris, the plaintiffs filed a class-action complaint against Philip Morris alleging violations of the CSPA. Plaintiffs moved for class certification pursuant to
{¶10} The Jones Group distinguishes Philip Morris, noting that Philip Morris did not involve plaintiffs who relied on cases involving consent judgments to satisfy the prior notice requirement. Instead, the plaintiffs in Philip Morris relied on cases involving court determinations based on the merits of the case. The Ohio Supreme Court, however, sided with Philip Morris for a different reason, which was that the relied upon cases did not involve conduct that was “substantially similar” to Philip Morris’ alleged conduct. In the case at bar, the Jones Group contends, the proposed class is citing cases involving parties using consent judgments to put a party on notice that its conduct violated the CSPA; the proposed class does not argue that the firm‘s conduct was substantially similar to that of the defendants in the cited cases.
{¶11} The proposed class contends that Philip Morris supports its position and stands for “a large proposition of law that
{¶12} In further support of their argument, the proposed class cites Charvat v. Telelytics, L.L.C., 10th Dist. Franklin No. 05AP-1279, 2006-Ohio-4623. In Charvat, the plaintiff received an unsolicited, pre-recorded telephone call from a for-profit broadcast service on behalf of a nonprofit credit corporation. The plaintiff filed suit alleging multiple violations of the CSPA. The trial court granted summary judgment on the plaintiff‘s CSPA claims, reasoning that as consent judgments are not a judgment determined by a court or rendered on the merits of a case; rather they are an agreement between the parties that the court sanctions. Id. at ¶ 42. The Tenth Appellate District disagreed, holding that “within a consent judgment, ‘an act or practice determined by a court“’ to violate the CSPA is actionable under
{¶13} Ohio federal courts, however, have routinely held that consent judgments are not determinations by a court for purposes of the CSPA and therefore do not constitute sufficient notice that a particular practice is unfair or deceptive for purposes of the CSPA. In Pattie v. Coach, Inc., 29 F.Supp.3d 1051, 1056 (N.D.Ohio 2014), the court expressly disagreed with Charvat, finding that when interpreting the statutes governing the CSPA together, it is clear that consent decrees and default judgments cannot serve as the basis of prior notice. The Pattie court noted that under
{¶14} Consent judgments do not support notice because they are not the court‘s reasoning but instead represent the reasoning of the parties themselves. Ice v. Hobby Lobby Stores, Inc., N.D.Ohio No. 1:14CV744, 2015 U.S. Dist. LEXIS 131336, 9 (Sept. 29, 2015); see also Gascho; Robins v. Global Fitness Holdings, L.L.C., 838 F.Supp.2d 631, 649 (N.D.Ohio 2012) (rejecting a party‘s reliance on consent judgments meeting the requirement for prior notice); Kline v. Mtge. Elec. Sec. Sys., S.D.Ohio No. 3:08CV408, 2010 U.S. Dist. LEXIS 143391 (Dec. 30, 2010).
{¶15} As mentioned, the cases cited by the proposed class that purport to show notice were decided by consent judgment, default judgment, and a decision on a motion for summary judgment alleging violations of federal law. We agree with the sound reasoning of the federal court in Pattie and Ice that consent or default judgments do not suffice as notice under
{¶16} We further find that the decision in Stiltner, Mansfield M.C. No. 07-CVH-3952, does not provide notice under
{¶17} We recognize that
“various violations of the FDCPA constitute a violation of the CSPA. * * * [T]he purpose of both acts is to prohibit both unfair and deceptive acts and this court holds that any violation of any one of the enumerated sections of the FDCPA is necessarily an unfair and deceptive act or practice in violation of
R.C. 1345.02 and/or1345.03 .”
Taylor v. First Resolution Invest. Corp., 148 Ohio St.3d 627, 2016-Ohio-3444, 72 N.E.3d 573, ¶ 90, quoting Kelly v. Montgomery Lynch & Assocs., Inc., N.D.Ohio No. 1:07-CV-919, 2008 U.S. Dist. LEXIS 30917, 11 (Apr. 15, 2008). That being said, in Slorp v. Lerner, Sampson & Rothfuss, 587 Fed.Appx. 249, 260-261 (6th Cir.2014), the court stated that concluding that a violation of the FDCPA necessarily means a violation of the CSPA
overlooks substantial disparities in the language of the two statutes * * *. Although conduct that violates the FDCPA often will violate the CSPA as well, neither the courts nor the parties should simply assume that the two statutes are coterminous without examining whether the alleged conduct is expressly prohibited under each statute.
{¶18} We need not determine whether a violation of the FDCPA is sufficient to put an entity on notice of the prohibition against a specific act or practice under the CSPA, although we are doubtful that it suffices. In this case, there is simply not enough information provided in the record to determine that the same violation occurred. In Stiltner, the plaintiff received a letter from a non-lawyer advising the plaintiff that foreclosure was imminent and listed a bank that was not a party to the foreclosure. The plaintiff filed a complaint
{¶19} Finally, we note that the proposed class does not set forth any evidence that the conduct in the three cases they cite for notice are “substantially similar” to the conduct complained of in this case. Again, for a consumer to maintain a class action against the defendant under
{¶20} The sole assignment of error is overruled.
{¶21} Judgment affirmed.
It is ordered that appellees recover of appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR