[Cite as Black v. Girard, 2020-Ohio-1562.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
MILES BLACK, INDIVIDUALLY : OPINION AND ON BEHALF OF THOSE SIMILARLY SITUATED, et al., : CASE NO. 2019-T-0050 Plaintiffs-Appellees, :
- vs - :
CITY OF GIRARD, OHIO, et al., :
Defendant-Appellant. :
Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2018 CV 01256.
Judgment: Affirmed.
Thomas A. Zimmerman, Zimmerman Law Offices, P.C., 77 West Washington Street, Suite 1220, Chicago, IL 60602, and Marc E. Dann, Brian Daniel Flick, and Michael Andrew Smith, The Dann Law Firm, 2728 Euclid Avenue, Suite 300, P.O. Box 6031040, Cleveland, OH 44103 (For Plaintiffs-Appellees).
James M. Popson and Robert E. Cahill, Sutter O’Connell Co., 1301 East Ninth Street, 3600 Erieview Tower, Cleveland, OH 44114 (For Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, the City of Girard, appeals the July 12, 2019
Judgment Entry of the Trumbull County Court of Common Pleas, granting plaintiffs-
appellees’ Amended Motion for Class Certification. For the following reasons, we affirm
the decision of the court below.
{¶2} On July 16, 2018, plaintiffs, Miles Black, Melissa Black aka Melissa Hyde, Lorraine Morris, John Perfette, Samuel Rotz, and John Beal, filed a Class Action
Complaint for Violation of the Ohio Constitution, Declaratory Judgment, Equitable
Restitution, Violation of the Ohio Consumer Sales Protection Act, and Negligent
Misrepresentation against defendants, the city of Girard, Ohio, and Blue Line Solutions,
LLC.
{¶3} The Complaint identified Girard as an Ohio municipality authorized to
ticket persons who exceed the speed limits along Interstate 80 within its boundaries.
Blue Line operates an automatic traffic enforcement system on behalf of Girard.
{¶4} On July 18, 2018, the plaintiffs filed a Motion for Class Certification.
{¶5} On August 15, 2018, Girard filed a Motion to Dismiss, pursuant to Civil
Rule 12(B)(6), for failure to state a claim upon which relief can be granted. The plaintiffs
responded on August 30, 2018. Girard filed a Reply in Support of the Motion to Dismiss
on September 10, 2018.
{¶6} On September 17, 2018, Blue Line filed a Motion to Dismiss, pursuant to
Civil Rule 12(B)(6), for failure to state a claim upon which relief can be granted. The
plaintiffs responded on October 18, 2018. Blue Line filed a Reply Brief to the Plaintiffs’
Response on October 24, 2018.
{¶7} On November 21, 2018, the trial court ruled on the Motions to Dismiss.
The court noted:
According to the complaint, each Plaintiff was issued a citation for speeding in the City of Girard between the time frame of December 7, 2017 to January 7, 2018. During this time frame, the posted speed limit on the subject area of Interstate 80 was 55 mph. According to the Plaintiffs, the speed limit in the subject area should have been 65 mph since the Ohio Department of Transportation had completed construction in the subject area on December 7, 2017. The citations were issued by the City of Girard, however,
2 Blue Line operates the traffic enforcement system according to the complaint.
{¶8} The court dismissed the plaintiffs’ claims for violations of the Ohio
Consumer Sales Practices Act and negligent misrepresentation. The court ruled that
“the motions are denied as to the remaining claims for due process violations,
declaratory judgment, equitable restitution, and civil conspiracy.”
{¶9} On December 5, 2018, Blue Line filed its Answer to Plaintiffs’ Class Action
Complaint. On December 17, 2018, Girard filed its Answer.
{¶10} On May 2, 2019, the plaintiffs filed an Amended Motion for Class
Certification. On May 31, 2019, Girard and Blue Line filed individual Briefs in
Opposition to the Amended Motion for Class Certification. The plaintiffs filed a Reply on
June 14, 2019. With leave of court, Girard and Blue Line jointly filed a Surreply in
Opposition to the Amended Motion for Class Certification.
{¶11} On July 12, 2019, the trial court issued its ruling on the Amended Motion
for Class Certification. The court granted the following “General Class”:
All persons and entities who were issued a citation for allegedly traveling in excess of 55 m.p.h. in violation of Girard City Ordinance 333.03 and/or Traffic Code Ordinance 8069-16, between December 7, 2017 and January 7, 2018, in the westbound lane of Interstate 80 within the municipal limits of the City of Girard.
The court defined a “Subclass 1 of this general class definition” as follows:
All persons and entities who were issued a citation for allegedly traveling in excess of 55 m.p.h. in violation of Girard City Ordinance 333.03 and/or Traffic Code Ordinance 8069-16, between December 7, 2017 and January 7, 2018, in the westbound lane of Interstate 80 within the municipal limits of the City of Girard, and who paid any fines, penalties or fees related to the citation.
The court defined a “Subclass 2 of the general class definition” as follows:
3 All persons and entities who were issued a citation for allegedly traveling in excess of 55 m.p.h. in violation of Girard City Ordinance 333.03 and/or Traffic Code Ordinance 8069-16, between December 7, 2017 and January 7, 2018, in the westbound lane of Interstate 80 within the municipal limits of the City of Girard, and who have not paid any fines, penalties or fees related to the citation, and whose citation was not found not liable at a hearing.
{¶12} On August 9, 2019, Girard filed a Notice of Appeal. On appeal, Girard
raises the following assignments of error:
{¶13} “[1.] The trial court erred by failing to undertake the required rigorous
analysis, which includes probing the underlying merits of the Appellees’ claims, for the
purpose of determining whether Appellees have satisfied the prerequisites of Civ.R. 23.”
{¶14} “[2.] The trial court erred by certifying a class action because the certified
class is overly broad and Appellees failed to establish by a preponderance of the
evidence the requirements of Civ.R. 23(A).”
{¶15} An action may be maintained as a class action “if (1) the class is so
numerous that joinder of all members is impracticable, (2) there are questions of law or
fact common to the class, (3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class, and (4) the representative parties will fairly
and adequately protect the interests of the class.” Civ.R. 23(A).
{¶16} In addition to these prerequisites, “[a] class action may be maintained if * *
* the court finds that the questions of law or fact common to the members of the class
predominate over any questions affecting only individual members, and that a class
action is superior to other available methods for fairly and efficiently adjudicating the
controversy.” Civ.R. 23(B)(3); In re Consol. Mtge. Satisfaction Cases, 97 Ohio St.3d
465, 2002-Ohio-6720, 780 N.E.2d 556, ¶ 7.
4 {¶17} Finally, there are “[t]wo prerequisites * * * implicitly required by Civ.R. 23”:
the class must be identifiable and unambiguous, and the class representatives must be
members of the class. Warner v. Waste Mgt., Inc., 36 Ohio St.3d 91, 521 N.E.2d 1091
(1988), paragraphs one and two of the syllabus, 96; Hamilton v. Ohio Savings Bank, 82
Ohio St.3d 67, 71, 694 N.E.2d 442 (1998).1
{¶18} “A trial court must conduct a rigorous analysis when determining whether
to certify a class pursuant to Civ.R. 23 and may grant certification only after finding that
all of the requirements of the rule are satisfied; the analysis requires the court to resolve
factual disputes relative to each requirement and to find, based upon those
determinations, other relevant facts, and the applicable legal standard, that the
requirement is met.” Cullen v. State Farm Mut. Auto. Ins. Co., 137 Ohio St.3d 373,
2013-Ohio-4733, 999 N.E.2d 614, paragraph one of the syllabus.
{¶19} “A party seeking certification pursuant to Civ.R. 23 bears the burden of
demonstrating by a preponderance of the evidence that the proposed class meets each
of the requirements set forth in the rule.” Id. at paragraph three of the syllabus.
{¶20} “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.” Marks v. C.P. Chem. Co., Inc., 31 Ohio St.3d 200, 509 N.E.2d
1249 (1987), syllabus; Vinci v. American Can Co., 9 Ohio St.3d 98, 459 N.E.2d 507
(1984), paragraph one of the syllabus. The abuse of discretion standard “applies to the
1. The Ohio Supreme Court in Hamilton identified the seven necessary requirements before an action could be maintained as a class action as follows: “(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 impracticable; (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 met.” Id. at 71.
5 ultimate decision of the trial court, * * * as well as to its determination regarding each
requirement of the rule.” Cullen at ¶ 19. Nevertheless, as in civil cases generally where
“the burden of persuasion is only by a preponderance of the evidence, * * * evidence
must still exist on each element (sufficiency) and the evidence on each element must
satisfy the burden of persuasion (weight).” Id. at ¶ 20, citing Eastley v. Volkman, 132
Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19.
{¶21} With respect to the mandate for the trial court to “conduct a rigorous
analysis” as to whether class certification is appropriate, this court has held: “Where the
trial court’s written decision granting class certification provides an articulated rationale
sufficient to support an appellate inquiry into whether the relevant factors were properly
applied, the trial court does not abuse its discretion in conducting its rigorous analysis.”
Unifund CCR Partners v. Piaser, 2019-Ohio-183, 131 N.E.3d 233 (11th Dist.), ¶17,
citing Baughman v. State Farm Mut. Auto. Ins. Co., 88 Ohio St.3d 480, 483, 727 N.E.2d
1265 (2000).
{¶22} The arguments in Girard’s assignments of error overlap to a certain
extent. In the first assignment, Girard broadly argues that the trial court failed to
conduct a “rigorous analysis” as to whether class certification is appropriate. Arguments
that the court failed to conduct a rigorous analysis with respect to particular findings are
made under both assignments but will be considered by this court under the second
assignment of error.
{¶23} Under the first assignment of error, Girard asserts that the “trial court’s
complete failure to perform the rigorous analysis that is required of it in order to certify a
class suggests that the trial court erroneously interpreted the law” so that this court
6 “should review [its] decision using a de novo standard, rather than an abuse of
discretion standard.” Appellant’s brief at 11. Girard relies on the following proposition
of law: “At the certification stage in a class-action lawsuit, a trial court must undertake a
rigorous analysis, which may include probing the underlying merits of the plaintiff’s
claim, but only for the purpose of determining whether the plaintiff has satisfied the
prerequisites of Civ.R. 23.” Stammco, L.L.C. v. United Tel. Co. of Ohio, 136 Ohio St.3d
231, 2013-Ohio-3019, 994 N.E.2d 408, syllabus.
{¶24} Girard’s assertion that the trial court completely failed to conduct a
rigorous analysis stems from the trial court’s failure to address arguments it raised
which probed the underlying merits of the plaintiffs’ claims. For example, Girard notes
that, between December 7, 2017 and January 7, 2018, 7,733 motorists were issued
citations on I-80 in Girard. Of this number, only 157 motorists contested their citations
by requesting a review hearing pursuant to R.C. 4511.098(A)(5). Of the motorists who
contested their citations, “66 were found liable and paid some of the amount in
response to their violation.” Yet the court failed “to analyze whether the failure of the
vast majority of the proposed class to contest their citations via an administrative
hearing constitutes a waiver of their claims,” thereby limiting the proposed class to 66
members. Appellant’s brief at 8. The court likewise failed “to analyze whether
Appellees’ sought-after remedy of equitable restitution is limited to the 66 motorists who
did not receive complete relief from an administrative appeal.” Id. at 9.
{¶25} Alternatively, the trial court failed to consider the argument that members
of the proposed class who were cited for traveling at speeds in excess of 75 m.p.h.
would nonetheless have violated the speed limit if the allegedly proper limit of 65 m.p.h.
7 had been posted. Id. at 7. Again, the court failed to consider “whether the failure of two
thirds of the [named plaintiffs] to contest their citations via an administrative hearing
would create a fatal division in the proposed class.” Id. at 10.
{¶26} We reject Girard’s argument that the trial court so completely failed to
conduct a rigorous analysis that its judgment must be reversed as a matter of law. The
arguments which Girard claims the trial court failed to consider go far beyond the limited
probing of the underlying merits for the purposes of determining whether the
prerequisites of Civil Rule 23 have been satisfied sanctioned by Stammco. Rather,
these arguments concerning the exhaustion of administrative remedies and/or the
validity of the citations issued directly address the merits of the plaintiffs’ claims and
only tangentially affect the prerequisites for certification. Binder v. Cuyahoga Cty, 2019-
Ohio-1236, 134 N.E.3d 807, ¶ 81 (8th Dist.) (“the affirmative defense of failure to
exhaust administrative remedies * * * is an issue regarding the merits that must be
proven”) and 147 (the existence of an injury-in-fact “is a merit issue and is not
something typically addressed in determining whether a class should have been
certified”).
{¶27} The plaintiffs note that similar arguments were raised in Girard’s Motion to
Dismiss and rejected by the trial court. Neither that rejection nor the court’s failure to
address the arguments in ruling on the Motion for Class Certification are determinative
of their merit. The Ohio Supreme Court has recognized that such arguments may be
properly addressed at trial or in a summary-judgment motion. Stammco, 136 Ohio
St.3d 231, 2013-Ohio-3019, 994 N.E.2d 408, at ¶ 39. Assuming, arguendo, that there
are only 66 viable members in the proposed class, the Ohio Supreme Court has held
8 that such a number is sufficient for certification. Warner, 36 Ohio St.3d at 97, 521
N.E.2d 1091 (“[i]f the class has more than forty people in it, numerosity is satisfied”)
(citation omitted).
{¶28} Finally, we rely on this court’s holding in Piaser that, where the trial court’s
decision articulates a rationale sufficient to permit appellate review of the particular
findings necessary for certification, the court does not abuse its discretion with respect
to conducting a rigorous analysis. Piaser, 2019-Ohio-183, at ¶ 17. The lower court’s
Entry granting certification is sufficient to support appellate review. The validity of its
analysis with respect to specific factors will be considered under the second assignment
of error.
{¶29} The first assignment of error is without merit.
{¶30} Under the second assignment of error, Girard contends that the certified
class is overly broad and fails to satisfy the requirements of Civil Rule 23(A).
{¶31} Girard’s initial argument is that the certified class is overly broad. Girard
relies on the following: “If * * * a class is defined so broadly as to include a great number
of members who for some reason could not have been harmed by the defendant’s
allegedly unlawful conduct, the class is defined too broadly to permit certification.”
(Citation omitted.) Stammco, 136 Ohio St.3d 231, 2013-Ohio-3019, 994 N.E.2d 408, at
¶ 53. Here, “those traveling in excess of 75 m.p.h. and the 949 class members who
have not paid their citations were not damaged by Girard’s enforcement of the posted
speed limit.” Therefore, “the trial court certified a class that is overly broad by including
a great number of motorists who were not damaged.” Appellant’s brief at 15.
{¶32} We reject the proposition that the certified class is overly broad for two
9 reasons. First, the plaintiffs’ position is that all the issued citations were invalid
regardless of the actual speeds traveled by the motorists. See Class Action Complaint
at ¶ 73 (“Plaintiffs * * * are entitled to a declaration that the Citations issued on the I-80
Non-Construction Zone * * * are invalid and unenforceable”). The validity of the
citations is one of the underlying issues in this case and does not properly bear on the
preliminary issue of class certification. Ojalvo v. Bd. of Trustees of Ohio State Univ., 12
Ohio St.3d 230, 233, 466 N.E.2d 875 (1984) (“[c]lass action certification does not go to
the merits of the action”). Likewise, it is the plaintiffs’ contention that class members
who have not paid their citations may nonetheless suffer injury inasmuch as their
citations remain subject to collection as well as late charges and penalties. Class
Action Complaint at ¶ 52. The lower court recognized the issue by defining two
subclasses, one including persons who have paid their fines and the other including
those who have not paid them.
{¶33} Second, the overbreadth of the certified class in Stammco was not simply
a matter of the defined class including persons who could not have been injured, but of
being able to determine which unnamed class members had been injured. The certified
class in Stammco was defined as persons who were billed for unauthorized telephone
service charges. The definition was found to be “too broad” because the defendant had
“no records regarding which charges are authorized and which are not”: “every person
who was billed a third-party charge for which [the defendant] had no prior authorization
is now a class member even if the third-party charge was proper.” Stammco, 136 Ohio
St.3d 231, 2013-Ohio-3019, 994 N.E.2d 408, at ¶ 56. In the present case, by contrast,
it is the plaintiffs’ contention that none of the citations were proper. Moreover, even if
10 the actual speed of the class members should prove to be material, that information is in
the parties’ possession and is readily determinable.
{¶34} Girard next argues that “the certified class is not readily identifiable and is
ambiguously defined” as evidenced by the “numerous attempts to define a class and the
fact that it took over a year to arrive at the final version.” Appellant’s brief at 15-16. The
amount of time between the filing of the Complaint and class certification has no bearing
on whether the class is readily identifiable or ambiguously defined. As a practical
matter, the class defined by the trial court is essentially the same as the class proposed
in the Complaint. Moreover, Girard’s own appellate brief readily identifies the class as
comprising 7,733 motorists of whom 6,784 have paid their citations (subclass 1) and
949 have not paid them (subclass 2).
{¶35} Girard next argues that the numerosity requirement of Civil Rule 23(A)(1)
was not satisfied in light of the fact that only 66 class members have a potentially viable
claim. Girard’s argument proceeds as follows: The plaintiffs’ declaratory judgment claim
is not viable because a special statutory proceeding to contest the citations exists
pursuant to R.C. 4511.099 and, as a matter of law, the remedy of declaratory judgment
is precluded. See State ex rel. Iris Sales Co. v. Voinovich, 43 Ohio App.2d 18, 19, 332
N.E.2d 79 (1975) (“[a] general rule regarding declaratory judgments is that where a
special statutory method for the determination of a particular type of case has been
provided, it is not proper to by-pass this statutory procedure by means of a declaratory
judgment action”).
{¶36} Girard’s argument continues: Of the three remaining causes of action for
due process, civil conspiracy, and equitable restitution, the claims for civil conspiracy
11 and equitable restitution are wholly dependent on the due process claim establishing a
basis for liability. However, only 66 members of the certified class have a viable due
process claim “because all other class members either successfully challenged their
citations through an administrative hearing or waived their right to contest the citations
by failing to timely contest the citations in an administrative hearing.” Appellant’s brief at
19; R.C. 4511.098(A)(5) (“[t]he failure to request a hearing within [the] time period
constitutes a waiver of the right to contest the violation and ticket, and is deemed to
constitute an admission of liability and waiver of the opportunity to contest the
violation”).
{¶37} As noted above, Girard’s arguments relate to the underlying merits of the
plaintiffs’ claims rather than the ability to define a class for the purpose of facilitating the
“adjudication of disputes involving common issues between multiple parties in a single
action.” Planned Parenthood Assn. of Cincinnati, Inc. v. Project Jericho, 52 Ohio St.3d
56, 62, 556 N.E.2d 157 (1990). Naturally, the plaintiffs contest Girard’s claims. See,
e.g., Lycan v. Cleveland, 8th Dist. Cuyahoga Nos. 107700 and 107737, 2019-Ohio-
3510, ¶ 24 (where “any participation in the City’s administrative hearing process would
have been futile * * * the class was not required to exhaust administrative remedies prior
to pursuing the current judicial remedy”). At this stage of the proceedings, however, it is
neither appropriate nor necessary to determine these issues which, as noted above,
may be addressed at trial or on summary judgment. Also, as noted above, even if the
certified class were comprised of only 66 members, the Ohio Supreme Court has held
that this number is sufficient to satisfy the numerosity requirement. Warner, 36 Ohio
St.3d at 97, 521 N.E.2d 1091.
12 {¶38} Girard argues that the commonality requirement of Civil Rule 23(A)(2) was
not satisfied “in light of the class members’ varying speeds and because only a fraction
of the class sought to contest their violation through an administrative hearing.”
Appellant’s brief at 20. Girard admittedly employs the “same analysis” with respect to
the commonality requirement as it did with respect to numerosity: “[b]ecause every
motorist who did not timely seek an administrative hearing waived his or her right to
contest the citation * * * the commonality of the questions of law extend solely to the 66
motorists who sought an administrative hearing but did not receive complete relief.” Id.
at 21.
{¶39} The trial court determined that the “legal questions raised by the proposed
subclasses would have common questions of law,” although the “questions of fact for
each might be substantially different as to speed, location and response to receipt of the
citation.” The court recognized that the division of the general class into one subclass
of “those who paid the citation in some manner” and another subclass of “those that did
not” would help “to separate those factual issues not germane to the entire group.” The
court’s analysis is reasonable. The issues raised by Girard as preventing class
certification are essentially the common questions of law satisfying this requirement.
{¶40} Girard argues that the typicality requirement of Civil Rule 23(A)(3) was not
satisfied because only two of the named plaintiffs (Rotz and Beal) timely sought
administrative hearings. The failure of the remaining four named plaintiffs (Black, Hyde,
Morris, and Perfette) “to timely seek an administrative hearing to contest the speeding
citations is fatal to their claims and will set up a dichotomy in the class between those
limited few who sought an administrative hearing and the vast majority of those who did
13 not.” Appellant’s brief at 22.
{¶41} As presently defined, the fact that only Rotz and Beal sought
administrative hearings does not prevent the plaintiffs from satisfying the typicality
requirement. Black, Hyde, Morris, and Perfette have paid their fines and so represent
subclass 1 while Rotz and Beal have not paid and so represent subclass 2. As yet,
there has been no determination as to the affirmative defense of failing to exhaust
administrative remedies. Assuming, arguendo, that Girard ultimately prevails on its
arguments regarding exhaustion and only the claims of the 66 members who sought
administrative hearings remain viable, Rotz’ and Beal’s claims would still be typical of
these members: they sought an administrative hearing, failed to obtain complete relief,
and have not paid their fines.
{¶42} Finally, Girard argues that the adequacy requirement of Civil Rule 23(A)(4)
was not satisfied “in light of two thirds of Appellees failing to contest their citations” and
so “will be antagonistic to the one third of Appellees and members of the class who
timely sought an administrative hearing to contest the speeding citations.” Appellant’s
brief at 23. We disagree.
{¶43} To the extent that the failure to exhaust administrative remedies will deny
any recovery to those plaintiffs that did not request a hearing, Black, Hyde, Morris, and
Perfette will fairly and adequately protect the interests of those plaintiffs inasmuch as
their claims are subject to dismissal on the same grounds.
{¶44} The second assignment of error is without merit.
{¶45} For the foregoing reasons, the judgment of the Trumbull County Court of
Common Pleas, granting the plaintiffs’ Amended Motion for Class Certification, is
14 affirmed. Costs to be taxed against the appellant.
TIMOTHY P. CANNON, P.J.,
MARY JANE TRAPP, J.,
concur.