Harvell v. Goodyear Tire and Rubber Co.

2006 OK 24, 164 P.3d 1028, 2007 WL 1991433

• Court: Supreme Court of Oklahoma
• Decided: July 3, 2007
• Docket: 102,128
• Status: Published

Opinions

KAUGER, J.

T1 The only issue presented ¹ is whether the trial court abused its discretion in certifying a class pursuant to 12 O.S.2001 § 2023.² We hold that it did.

FACTS

T2 On July 28, 2004, the plaintiff/appellee, Lori Harvell (Harvell/eustomer) noticed that the check engine light in her car was on. After spotting a Goodyear Auto Service Center (service center) a few blocks away, she pulled into the service center to get her car checked. After performing a diagnostic check on the vehicle, the service center recommended that she replace the spark plugs and told her that her brakes were worn. Rather than have the spark plugs or the brakes replaced at that time, she drove home.

T3 The service center presented the customer with two copies of an invoice. One was an estimate invoice, the other was an actual invoice for the services performed. Although an estimate invoice is typically given to customers before any work is done, it was not given to Harvell before the service center checked her car. The actual invoice itemized the charges as $86.50 for labor, $0.00 for parts, $2.56 for shop supplies for a total of $39.28 which included $.22 for taxes on the $2.56 shop supply charge. The shop supply charge also appeared on the estimate invoice.³ Both invoices contained an explanation of the shop supply fee at the bottom of the page which provided: "SHOP SUPPLY FEES COVER MISC MATERIALS USED IN SERVICING YOUR VEHICLE THAT DO NOT APPEAR ELSEWHERE ON THIS INVOICE AND FOR PROFIT."

T4 When the customer questioned the cashier about the shop supply fee, she was told not to worry about it, that it was just part of the bill. She asked whether she would get her car back if she failed to pay the $2.56 charge, and was told that she had to pay it. Harvell paid the invoice.

5 On August 26, 2004, the customer filed a class action lawsuit against the defendant/appellant, the Goodyear Rubber & Tire Company (Goodyear), seeking certification of a national class action of consumers who, in approximately 37 states, had paid Goodyear a shop supply fee since 1998.⁴ She alleged that Goodyear was illegally charging a shop supply fee based on 7% of the labor charge, regardless of whether shop supplies were used. She asserted claims for breach of contract, unjust enrichment, and a violation of the Ohio Consumer Sales Practices Act (the Ohio Act).⁵

T6 A hearing for class certification was held on March 29, 2005. On stipulation of the parties, the trial court admitted deposition testimony, affidavits, and exhibits into evidence. The evidentiary materials show, among other things, that the shop supply fee was initiated ⁶ and tracked from Goodyear's corporate offices in Ohio, but because stores purchased their own supplies, the brand, supplier, and cost of the supplies varied from store to store.

T7 On April 14, 2005, the trial court issued an order granting the customer's motion for class certification. The trial court found that the four requirements of 12 0.8.2001 § 2023 (A): numerosity, commonality, typicality, and representation, were satisfied. It also determined that two of the requirements of § 2023(B) were applicable because there was a predominance of common questions of law or fact, a superiority of class action adjudication, and injunctive relief was appropriate. It also found that Ohio substantive law applied to all three claims.⁷ Goodyear appealed, and we retained the cause on June 3, 2005. The briefing cyele was completed on October 18, 2005.

THE TRIAL COURT ABUSED ITS DISCRETION IN CERTIFYING THE CLASS.

T8 Title 12 0.98.2001 § 2028 requires that four prerequisites for class certification under § 2023(A) and one of the three additional requirements contained in § 2028(B) must be met in order to certify a class.⁸ Subsections 1 through 4 of § 2028(A), respectively, require: 1) numerosity of class members; 2) commonality of questions of law or fact; 3) typicality of claims or defenses of the class representatives with the class; and 4) adequacy of representative parties to protect class interests. Subsection 1 through 3 of § 2023(B) requires either: 1) a risk of inconsistent adjudications by separate actions or substantial impairment of non-parties to protect their interests; 2) appropriateness of final injunctive or declaratory relief; or 3) predominance of common questions of law or fact to class members and superiority of class action adjudication.

19 A trial court's class certification order is reviewed for abuse of discretion.⁹ An abuse of discretion occurs when a court bases its decision on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling.¹⁰ If the record does not demonstrate that the requisites for class action have been met, the trial court has abused it's discretion.¹¹

110 The party who seeks certification has the burden of proving each of the requisite elements for class action.¹² We take as true all uncontroverted allegations in the instruments in the record and the unde-nied statements of counsel in the briefs.¹³ A trial court is allowed flexibility and discretion to modify, or even set aside, its order of certification if later developments demonstrate a need to do so.¹⁴ Consequently, in the face of a close question as to certification, the Court has held that the pragmatic action is to sustain certification.¹⁵

111 To resolve whether the prerequisites for class-certification are met, we need not reach the merits of the claim.¹⁶ Nevertheless, determining whether the trial court applied the correct legal standards when it assessed § 2028's requirements for class certification necessitates identification and review of the core liability issues asserted by the class.¹⁷

€ 12 The customer argues that because she proved that the four elements required pursuant to 12 O.S8. § 2023 (A) [numerosity, commonality, typicality, and representation] and that two of the three standards of § 2023(B) [the appropriateness of injunctive or declaratory relief or predominance of common questions of law or fact and the superiority of class action adjudication] were met, the trial court's certification order must be affirmed. The primary focus of Goodyear's challenge to the trial court's certification is that certification must fail because Harvell did not satisfy the requirements of either appropriateness of injunctive or declaratory relief or predominance of common questions of law or fact over questions affecting only individual members. Goodyear also argues that Ohio law is inapplicable to the claims. We agree with Goodyear's challenges.

113 A factor weighing heavily in this case is the geographic dispersion of the class members and the consequent, potential applicability of the law of multiple jurisdictions. This factor is important because we have previously held that where the substantive law of multiple jurisdictions may apply, common issues of law or fact generally do not predominate as required by 12 0.8.2001 § 2023 (B)(3) ¹⁸ and class certification should be defeated.¹⁹

i. Breach of Contract Claim

114 The trial court analyzed the applicability of the law of multiple jurisdictions in terms of the most significant relationship test of the Restatement (Second) Conflicts of Law §§ 6 and 188 (1971).²⁰ However, in Oklahoma,²¹ the established choice of law rule in contract actions known as lex loci contractus is that, unless the contract terms provide otherwise, the nature, validity, and interpretation of a contract are governed by the law where the contract was made.²² Although variations from this rule have been applied in the unique context of motor vehicle insurance policies with contract terms contrary to law or the public policy of the state where enforcement is sought,²³ and contracts involving the sale of goods under the Uniform Commercial Code ²⁴-neither of the exceptions are involved here.²⁵

T 15 The place of performance of any alleged contract for each person charged a supply fee for the service of vehicles is the state in which the vehicle was serviced.²⁶ Consequently, the law of each of the 87 states involved governs the breach of contract claims. While the elements for breach of contract may be substantially similar in each state, the trial court would be required to apply each state's contracts regime, including applicable defenses and divergent statutes of limitation.²⁷

T16 Goodyear's standard procedure requires that each customer receive and sign an estimate, notifying each customer that some or all of the shop supply fee is for profit. The customer ordinarily signs the estimate before any work is done. Apparently, Harvell is not the typical customer because she alleges that she was not given an estimate until after the work was completed. The existence of a contract and a determination of what the material terms of the contract were differ with each class member's interaction with each service center. These individualized determinations, coupled with the application of the law of 37 states, precludes a finding of predominance and defeats the purpose of certifying a class. The trial court would be overwhelmed with the burden of an unmanageable class.²⁸ Consequently, trial court abused its discretion in certifying the breach of contract claim.

ii. Unjust Enrichment Claim

117 To determine which state's law governs, Harvell argues that the most significant relationship test of Restatement (Second) of Conflicts § 148 (1971),²⁹ which we have previously applied to fraud/false representations and misrepresentation claims,"" also applies to the unjust enrichment claims.³⁰ She insists that because Ohio has the most significant relationship to the transactions of all of the class members, Ohio law clearly controls.³¹ Goodyear contends that this cause is governed by the law of each state in which a service was performed.³²

$18 Unjust enrichment is a condition which results from the failure of a party to make restitution in cireumstances where it is inequitable; i.e. the party has money in its hands that, in equity and good conscience, it should not be allowed to retain.³³ Where the plaintiff has an adequate remedy at law, the court will not ordinarily exercise its equitable jurisdiction to grant relief for unjust enrichment.³⁴

119 In the present case, regardless of whether we apply a significant relationship analysis or whether the principle of lex loci contractus, the result is the same. Any representations upon which a customer relied and any enrichment received occurred in the state where the services were rendered. The unjust enrichment sought by Harvell is an equitable remedy aimed at recovering unspecified amounts of money which Goodyear received, unrelated to the actual shop supplies used.

120 Any enrichment related to the services rendered by Goodyear occurred in the state in which the alleged contract for service was signed and performed. Therefore, the law of each state where the services were rendered governs any claim for unjust enrichment. The elements of unjust enrich ment claims differ markedly from state to state.³⁵ In addition to the differences in these basic criteria, state considerations of such claims differ over issues of misconduct,³⁶ availability of adequate remedies at law,³⁷ and the effect of the existence of an express contract governing the transaction.³⁸

121 Additionally, for each class member, a decision as to whether unjust enrichment is applicable will depend heavily on the services rendered, the amount of supply fee charged, the supplies used (if any), the cost of the shop supplies, and whether a customer agreed to pay the cost, even if it might have been purely for profit. The success of a claim for unjust enrichment depends on the particular facts and cireumstances of each case and hinges on whether a customer actually received few or no miscellaneous supplies. These factual particularities make class certification imprudent because the claims and defenses of each class member involve a specific finding of cost, profit, and equitable unfairness which necessarily requires individualized findings of fact for each member of the class. For all of these reasons, there is a lack of predominance of common legal and factual issues and the trial court abused its discretion in certifying the claim for unjust enrichment which fails to meet the statutory requirement of predominance under 12 0.8. 2001 § 2023 (B)@).³⁹

iii. Ohio Consumer Sales Practices Act Claims

122 The consumer alleges that Goodyear violated the Ohio Consumer Sales Practices Act (the Act)⁴⁰ Goodyear argues that the trial court erred in certifying a class action based on the alleged violation of the Act because the Act is inapplicable to the class.

$23 The Act generally prohibits unfair, unconscionable, and deceptive sales.⁴¹ Section 1845.04 of the Act imposes liability only when an offending act or practice takes place within the state of Ohio.⁴² Courts have generally determined that the focus of the inquiry concerning application of such an Act to out-of-state consumers is whether the offending consumer transaction occurred with the state.⁴³

24 While Goodyear may have developed the shop supply fees from its corporate offices in Ohio, in our view any unfair, deceptive or unconscionable conduct toward a consumer occurred where the transaction occurred-when a customer brought an automobile in for service to a service center and was charged a shop supply fee. Accordingly, the Ohio Act is inapplicable to transactions occurring in states other than Ohio.

iv. Appropriateness of Final Injunctive or Declaratory Relief.

125 In addition to finding predominance, the trial court determined that the class should be certified under 12 O.S. § 2023 (B)(2). Section (B)(2) allows certification when the class representative can show that the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive or corresponding declaratory relief with respect to the class as a whole.⁴⁴ Under this section, the customer argues that injunctive or declaratory relief is an appropriate basis for certifying the class. Goodyear insists that because all of the asserted claims seek predominately monetary damages, subsection (B)(2) is inapplicable.

126 We have not previously addressed a class certification under § 2028(B)(2). However, Oklahoma's class action scheme closely parallels Rule 23, of the Federal Rules of Civil Procedure and we find it illustrative.⁴⁵ Under Rule 28(b)(2) of the Federal Rules of Civil Procedure ⁴⁶ the injunctive or declaratory relief must be the primary remedy requested for class members,⁴⁷ and the defendant's behavior must be generally applicable to the class as a whole.⁴⁸ The award of some monetary damages is not precluded by the requirement, provided that monetary relief is secondary or incidental to the primary in-junctive or declaratory relief sought.⁴⁹

€27 To determine certification under subsection (2), the court considers not merely the relief sought by the plaintiffs, but whether the crux of the action is for monetary damages.⁵⁰ Certification is improper if the merits of the claim turn on the defendant's individual dealings with each plaintiff.⁵¹ Certification is generally reserved for cases in which broad, class-wide injunctive or declaratory relief is necessary to address a group-wide injury such as in discrimination or civil rights suits, even though some damages may also be awarded.⁵²

128 The present action is not similar to those types of actions. Even though Harvell also seeks an injunction against the continued practice of charging the fees, the crux of her class action is compensation sought for the allegedly fraudulently charged shop supply fees.⁵³ This case focuses squarely on a claim for compensatory money damages. A determination of the damages would require individualized determinations for each class member of the fees charged compared with the services rendered, to determine whether the fees did in fact correlate to the supplies used. Accordingly, certification pursuant to § 2023(B)(2) is also an abuse of discretion.

CONCLUSION

129 A trial court's class certification order is reviewed for abuse of discretion.⁵⁴ An abuse of discretion occurs when a court bases its decision on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling.⁵⁵ If the record does not demonstrate that the requisites for class action have been met, the trial court has abused it's discretion.⁵⁶

{30 The trial court certified a class action on a common law breach of contract claim, a common law claim of unjust enrichment and a violation of the Ohio Consumer Sales Practices Act, finding that the requirements of numerosity, commonality, typicality, and representation as well as two alternative requirements of appropriateness of injunctive or declaratory relief or predominance of common questions of law or fact and superiority of class action adjudication had been met. We have determined that neither of the predominance requirements or the alternative requirements of appropriateness of injunctive or declaratory relief were satisfied and that the Ohio Act is inapplicable. Accordingly, the trial court abused its discretion in certifying the class action.

TRIAL COURT REVERSED; CAUSE REMANDED.

131 WATT, C.J., WINCHESTER, V.C.J., LAVENDER, HARGRAVE, OPALA, KAUGER, and TAYLOR, JJ.-Coneur. [32 EDMONDSON, J., and COLBERT, J., Concur in Part and Dissent in Part.

1 . On October 7, 2005, the Court entered an order directing the appellant, the Goodyear Tire and Rubber Company, to show why the appendix to its brief in chief filed on October 6, 2005, should not be stricken in violation of Oklahoma Supreme Court Rule 1.11, 12 0.$.2001 Ch. 15, App. 1. which provides in pertinent part:

"... An Appendix to a brief may be filed as an attachment to the brief or as a separate document. An Appendix to a brief on appeal may only include: (1) a copy of the decision from which the appeal is taken; (2) copies of authorities not contained in the National Reporter System; (3) copies of statutes or rules not promulgated in Oklahoma; ..."

On October 18, 2005, the Court deferred consideration of the issue to the decisional stage. Because the appendix contains copies of authorities not contained in the National Reporter System and copies of statutes or rules not promulgated in Oklahoma, it is in compliance with the rule and will not be stricken.

2 . Title 12 0.$.2001 § 2023 provides in pertinent part:

"A. PREREQUISITES TO A CLASS ACTION. One or more members of a class may sue or be sued as representative parties on behalf of all only 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. B. CLASS ACTIONS MAINTAINABLE. An action may be maintained as a class action if the prerequisites of subsection A are satisfied and in addition:

1. The prosecution of separate actions by or against individual members of the class would create a risk of:

a. inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or

b. adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or

2. The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

3. 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 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, and

d. the difficulties likely to be encountered in the management of a class action...."

3 . According to Goodyear, the shop supplies include such things as floor covers, seat and steering wheel covers, rags, small amounts of brake cleaner or fluid, and lubricating grease and other solutions which are immeasurable as a per-vehicle cost.

4 . Excluded from the class were transactions occurring in New York, California and Washington, D.C.

5 . Ohio Rev.Code Ann. § 1345.01 et seq.

6 . Goodyear initially instituted the shop fee as 2% of the costs for parts and labor with a maximum charge of $2.00 and over time has increased the fee to 7% with a maximum charge of $20.00.

7 . Title 12 O.S.2001 § 2023, see note 2, supra.

8 . Id. Fent v. Oklahoma Natural Gas Co., 2001 OK 35, ¶ 12, 27 P.3d 477; Black Hawk Oil Co. v. Exxon Corp., 1998 OK 70, ¶ 12, 969 P.2d 337.

9 . Ysbrand v. DaimlerChrysler Corp., 2003 OK 17, ¶ 5, 81 P.3d 618 cert. denied DaimlerChrysler Corp. v. Ysbrand, 542 U.S. 937, 124 S.Ct. 2907, 159 L.E.2d 812 (2004); Scoufos v. State Farm Fire & Cas. Co., 2001 OK 113, ¶ 1, 41 P.3d 366; Black Hawk Oil Co., v. Exxon Corp., see note 8, supra at ¶ 10; Shores v. First City Bank Corp., 1984 OK. 67, ¶ 4, 689 P.2d 299.

10 . Fent v. Oklahoma Natural Gas Co., see note 8, supra; KMC Leasing, Inc. v. Rockwell-Standard Corp., 2000 OK 51, ¶ 9, 9 P.3d 683.

11 . Ysbrand v. DaimlerChrysler Corp., see note 9, supra.

12 . KMC Leasing, Inc. v. Rockwell-Standard Corp, see note 10, supra.

13 . Fent v. Oklahoma Natural Gas Co., see note 8, supra at ¶ 13; Shores v. First City Bank Corp., see note 9, supra at ¶ 6; Mattoon v. City of Norman, 1981 OK 92, ¶ 11, 633 P.2d 735.

14 . Title 12 0.$.2001 § 2023 (C)(1) provides:

"As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subsection may be conditional, and may be altered or amended before the decision on the merits."

15 . Black Hawk Oil Co. v. Exxon Corp., see note 8, supra; Perry v. Meek, 1980 OK 151, ¶ 19, 618 P.2d 934.

16 . Inquiry into the merits of the action is inappropriate when the court is deciding whether a class should be certified. Black Hawk Oil Co., see note 8, supra at I 18.

17 . See, Scoufos v. State Farm Fire & Cas. Co., note 9, supra; KMC Leasing, Inc. v. Rockwell-Standard Corp., note 10, supra.

18 . Title 12 O.S.2001 § 2023 (B), see note 2, supra.

19 . KMC Leasing, Inc. v. Rockwell-Standard Corp., see note 10, supra at 120. See also, Ysbrand v. DaimlerChrysler Corp, note 9, supra [Analyzing choice of law issues to determine common issue of law.].

20 . The Restatement (Second) Conflict of Laws § 6 (1971) provides:

"(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.

(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include

(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,

(c) the relevant policies of the other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations,

(e) the basic policies underlying the particular field of law,

(f) certainty, predictability and uniformity of result, and

(g) ease in the determination and application of the established choice of law rule for the more modern 'significant relationship' test."

The Restatement (Second) Conflict of Laws § 188 (1971) provides in pertinent part:

"(1) The rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles state in § 6.

(2) In the absence of an effective choice of law by the parties, the contracts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:

(a) the place of contracting,

(b) the place of negotiation of the contract,

(c) the place of performance,

(d) the location of the subject matter of the contract, and

(e) the domicile, residence, nationality, place of incorporation and place of business of the parties.

These contracts are to be evaluated according to their relative importance with respect to the particular issue.

(3) If the place of negotiating the contract and the place of performance are in the same state, the local law of this state will usually be applied, except as otherwise provided in §§ 189-99 and 203."

21 . This suit was brought in Oklahoma; therefore, Oklahoma choice of law principles must be applied. Ysbrand v. DaimlerChrysler Corp., see note 9, supra at ¶ 11. See also, In re Bridgestone/[Firestone, Inc., 288 F.3d 1012, 1015 (7th Cir.2002) cert. denied Gustafson v. Bridgestone/[Firestone, Inc., 537 U.S. 1105, 123 S.Ct. 870, 154 L.Ed.2d 774 (2003)[Because plaintiffs' claims rest on state law, the choice-of-law rules come from the state in which the federal court sits.].

22 . Bohannan v. Allstate Ins. Co., 1991 OK 64, ¶ 30, 820 P.2d 787; Telex Corp. v. Hamilton, 1978 OK 32, ¶ 8, 576 P.2d 767; Paclawski v. Bristol Laboratories, Inc., 1967 OK 21, ¶ 5, 425 P.2d 452; Aetna Cas. & Sur. Co. of Hartford, Conn. v. Gentry, 1942 OK 366, ¶ 32, 132 P.2d 326; Clark v. First National Bank of Marseilles, 1916 OK 404, 59 Okla 2, 157 P. 96. Title 15 O.S.2001 § 162 provides:

"A contract is to be interpreted according to the law and usage of the place where it is to be performed, or, if it does not indicate a place of performance, according to the law and usage of the place where it is made."

23 . Bohannan v. Allstate Ins. Co., see note 22, supra [The choice of law rule for motor vehicle insurance cases which involve conflicting state law is that the law of the state in which the contract was made applies unless those provisions are contrary to the public policy of Oklahoma, or unless the facts demonstrate that another jurisdiction has the most significant relationship with the subject matter of the parties.].

24 . Ysbrand v. DaimlerChrysler Corp., see note 9, supra at ¶¶ 12-13.

25 . When a transaction relates primarily to services, an incidental sale of merchandise does not make it a contract for the sale of goods governed by the Uniform Commercial Code. 12A 0.$.2001 § 2-102 [Recognizing application to transactions in goods.]. Other states apply a predominance or dominance test to determine whether the transaction is primarily for services or the sale of goods to determine the applicability of the Uniform Commercial Code. See, for example, Tar-rant County Hosp. Dist. v. GE Automotive Services, Inc., 156 S.W.3d. 885, 892 (Tx.App.2005); Lohman v. Wagner, 160 Md.App. 122, 862 A.2d 1042, 1046 (2004); Hensley v. Ray's Motor Co., 158 N.C.App. 261, 580 S.E.2d 721, 724 (2003); Heart of Texas Dodge, Inc. v. Star Coach, 255 Ga.App. 801, 567 S.E.2d 61 (2002). Here, the predominate purpose of the customer's alleged contract with the service center was for repair of her vehicle a provision of services, rather than sale of goods. See also, McCool v. Hoover Equipment Co., 1966 OK 95, ¶ 9, 415 P.2d 954 [Where service predominates, contract is for work or labor and materials and not sales.].

26 . Even if we were to apply a significant relationship test and weigh through the factors of the Restatement (Second) of Conflicts §§ 6 and 188, see note 20, supra, we are not convinced that Ohio has more significant relationship between the contracting parties than the state where the services were performed and the contract was allegedly formed and breached.

27 . See Miss.Code Ann. § 15-1-49(1) [Default three year statute of limitations for all unpres-cribed offenses, including breach of contract.]; Tex. Civ. Prac. & Rem.Code Ann. § 16.051 [Four year statute of limitations for breach of contract.]; 12 0.S.2001 § 95 (a) [Five year limitation for written contracts; three year limitation for express or implied oral contracts.]; Ga.Code Ann. § 9-3-24 [Six year statute of limitations for written contracts.]; Mont.Code Ann. § 27-2-202 [Eight year statute of limitations for written contracts; three year statute of limitations for oral contracts.] Iowa Code Ann. § 614.1(5)[Ten year statute of limitations for written contracts.].

28 . Title 12 0.S.2001 § 2023 (B)(3), see note 2, supra; Ysbrand v. DaimlerChrysler Corp., see note 9, supra. See generally, KMC Leasing, Inc. v. Rockwell-Standard Corp., note 10, supra.

29 . The Restatement (Second) Conflict of Law § 148 (1971) provides:

"(1) When the plaintiff has suffered pecuniary harm on account of his reliance on the defendant's false representations and when the plaintiff's action in reliance took place in the state where the false representations were made and received, the local law of this state determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship under te principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.

(2) When the plaintiff's action in reliance took place in whole or in part in a state other than that where the false representations were made, the forum will consider such of the following contacts, among others, as may be present in the particular case in determining the state which, with respect to the particular issue, has the most significant relationship to the occurrence and the parties:

(a) the place, or places, where the plaintiff acted in reliance upon the defendant's representations,

(b) the place where the plaintiff received the representations,

(c) the place where the defendant made the representations,

(d) the domicile, residence, nationality, place of incorporation and place of business of the parties,

(e) the place where a tangible thing which is the subject of the transaction between the parties was situated at the time, and

(f) the place where the plaintiff is to render performance under a contract which he has been induced to enter by the false representations of the defendant."

See also § 221 of the Restatement (Second) Conflicts of Law (1971), which according to the comments, applies to unjust enrichment claims which are based neither on contract nor on tort. Neither party argues it applies to the present cause.

³⁰

31 . Harvell contends that Ohio law should govern the unjust enrichment claims for the same reason that she argues the breach of contracts claims should be governed by Ohio Iaw-because Ohio has the most significant relationship. Even if we were to apply a significant relationship test and weigh through the factors of the Restatement (Second) of Conflicts §§ 148 or 221, see note 29, supra, the only connection Ohio has is that: 1) Goodyear is headquartered in Ohio; 2) the decision to charge the fee in question originated in Ohio; 3) the computer system for each store stems in Ohio; and 4) part or all of the fee was ultimately transmitted to Ohio. We are not convinced that these factors are enough to point away from the law of the state where the service was provided.

32 . Neither party relies on the Restatement (First) of Conflicts of Law § 453 (1934) which provides:

"When a person is alleged to have been unjustly enriched, the law of the place of enrichment determines whether he is under a duty to repay the amount by which he has been enriched."

33 . French Energy, Inc. v. Alexander, 1991 OK 106, ¶ 11, 818 P.2d 1234. One is not unjustly enriched, however, by retaining benefits involuntarily acquired which law and equity give him absolutely without any obligation on his part to make restitution. McBride v. Bridges, 1950 OK 25, ¶ 8, 215 P.2d 830.

34 . Robertson v. Maney, 1946 OK 59, ¶ 7, 166 P.2d 106.

35 . Ray Reilly's Tire Mart, Inc. v. F.P. Elnicki, Inc., 149 Vt. 37, 537 A.2d 994, 995 (1987) and Bouchard v. Price, 694 A.2d 670, 673 (R.I.1997) [Requiring inequitable retention of a benefit]; Lectrodryer v. Seoulbank, 91 Cal.Rptr.2d 881, 77 Cal.App.4th 723, 726 (2000) [Requiring the unjust retention of a benefit at the expense of another.]; Amoco Production Co., v. EM Nominee Partnership Co., 2 P.3d 534, 541-42 (Wyo.2000) [Requiring constructive notice of intent to be paid.].

36 . DCB Construction Co., Inc. v. Central City Development Co., 965 P.2d 115, 119 (Colo.1998) [Holding that unjust enrichment requires a showing of improper, deceitful, or misleading conduct]; Schock v. Nash, 732 A.2d 217, 232 (Del.1999) [Allowing for restitution, even when defendant is not a wrongdoer.]; Anderson v. Delisle, 352 N.W.2d 794, 796 (Minn.App.1984)[Unjust enrichment claim allowable in situations where enrichment was morally wrong.].

37 . Community Guardian Bank v. Hamlin, 182 Ariz. 627, 898 P.2d 1005, 1008 (Ariz.App.1995)[Holding that unjust enrichment requires absence of a remedy provided by law.]; Independent Voters of Illinois v. Illinois Commerce Com'n, 117 Ill.2d 90, 109 Ill.Dec. 782, 510 N.E.2d 850, 854 (1987)[Holding thai restitution predicated on unjust enrichment "usually" requires that no adequate legal remedy exist.]; Williams v. Bear Stearns & Co., 725 So.2d 397, 400 (Fla.App.1998) [An available legal remedy is not sufficient to bar restitution claims.].

38 . Adelman v. Christy, 90 F.Supp.2d 1034, 1045 (D.Ariz.2000)[The existence of contract governing the dispute is not sufficient to invalidate an unjust enrichment theory of recovery.]; Williams v. Bear Stearns & Co., see note 37, supra [Unjust enrichment claim fails if an express contract already exists.]; Mitford v. de Lasala, 666 P.2d 1000, 1006, n. 1 (Alaska 1983) [Unjust enrichment is precluded by the existence of an actual contract.]; Cole v. Benavides, 481 F.2d 559, 561 (5th Cir.1973) [Proof of an express contract covering the services precludes relief in unjust enrichment.]; Lemoge v. County of San Mateo, 46 Cal.2d 659, 297 P.2d 638, 664 (1956)[Formal contract, the meaning of which is understood by both parties, precludes equitable relief.]; Keneally v. Orgain, 186 Mont. 1, 606 P.2d 127, 129 (1980) [Plaintiffs may not allege an implied contract while proving an express contract.]; Polverari v. Peatt, 29 Conn.App. 191, 614 A.2d 484, 489 (1992) [Awards for unjust enrichment are allowable when not inconsistent with express contracts.].

39 . Title 12 O.S.2001 § 2023 (B)(3), see note 2, supra. At least one court has recognized that because unjust enrichment claims are fact specific to each case, they are unsuitable for class action treatment altogether. Avis Rent A Car Systems, Inc., v. Heilman, 876 So.2d 1111, 1123 (Ala.2003).

40 . Ohio Rev.Code § 1345.01 et seq.

41 . See generally, Ohio Rev.Code § 1345.01 et seq.

42 . Ohio Rev.Code § 1345.04 provides:

''The court of common pleas, and municipal or county courts within their respective monetary jurisdiction have jurisdiction over any supplier with respect to any act or practice in this state covered by sections 1345.01 to 1345.13 of the Revised Code, or with respect to any claim arising from a consumer transaction subject to such sections."

43 . Clark v. TAP Pharmaceutical Products, 343 Ill.App.3d 538, 278 Ill.Dec. 276, 798 N.E.2d 123, 129 (2003) [Out-of-state consumer may pursue an action for consumer fraud if deceptive acts and practices took place within the state.]; Oce Printing Systems USA, Inc. v. Mailers Data Services, Inc., 760 So.2d 1037, 1042 (Fla.Dist.Ct.App.2000) [Certification of Nationwide class improper because Deceptive and Unfair Trade Act applies to in-state consumers.]; Delahunt v. Cytodyne Technologies, 241 F.SupP.2d 827, 839 (S.D.Ohio 2003); Shorter v. Champion Home Builders Co., 776 F.Supp. 333, 338-39 (N.D.Ohio 1991). See also, Pacamor Bearings, Inc. v. Minebea Co., Ltd., 918 F.Supp. 491, 504 (D.N.H.1996); Brown v. Market Dev. Inc., 41 Ohio Misc. 57, 322 N.E.2d 367, 369 (1974) noting that irrespective of the locus of the manufacturer or supplier, it is the activity that is determinative. But see, Steed Realty v. Oveisi, 823 S.W.2d 195, 198 (Tenn.App.1991) [Consumer Protection Act applies to any consumer as long as defendant transacts business within the state.].

44 . Title 12 § 2023 (B)(2), see note 2, supra.

45 . Federal Rules of Civil Procedure, Rule 23(b) provides in pertinent part:

"... An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:

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(2) the party opposing the class has acted or refused to act on the grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a » whole; or ..

We have previously considered the federal rule when interpreting our similar statute. Dewey v. State ex rel. Oklahoma Firefighters Pension & Retirement System, 2001 OK 40, ¶ 18, 28 P.3d 539; Mattoon v. City of Norman, see note 13, supra at ¶ 8; KMC Leasing, Inc. v. Rockwell-Standard Corp., see note 10, supra; Black Hawk Oil Co. v. Exxon Corp., see note 8, supra at ¶ 11; Shores v. First City Bank Corp., see note 9, supra at ¶ 5.

46 . Federal Rules of Civil Procedure, Rule 23(b)(2), see note 45, supra.

47 . Federal Rules of Civil Procedure, Rule 23(b)(2), see note 45, supra; In re St. Jude Medical, Inc., 425 F.3d 1116, 1121 (8th Cir.2005); Molski v. Gleich, 318 F.3d 937, 947 (9th Cir.2003); Coleman v. General Motors Acceptance, 296 F.3d 443, 446 (6th Cir.2002); Stewart v. Abraham, 275 F.3d 220, 228 (3rd Cir.2001) cert. denied 536 U.S. 958, 122 S.Ct. 2661, 153 L.Ed.2d 836 (2002); In re Mercedes-Benz Antitrust Litigation, 213 F.R.D. 180, 186 (D.N.J.2003); United States v. Trucking Employers, Inc., 75 F.R.D. 682, 692 (D.D.C.1977). See, In re School Asbestos Litigation, 789 F.2d 996, 1008 (3rd Cir.1986) cert. denied Celotex v. School Dist. of Lancaster, 479 U.S. 852, 107 S.Ct. 182, 93 L.Ed.2d 117 (1986) [An action for money damages may not be maintained as a Rule 23(b)(2) class action.].

48 . Federal Rules of Civil Procedure, Rule 23(b)(2), see note 45, supra; Bolin v. Sears, Roebuck & Co., 231 F.3d 970, 975 (5th Cir.2000); In re Methyl Tertiary Butyl Ether Products Liability Litigation, 209 F.R.D. 323, 341 (S.D.N.Y.2002).

49 . Cooper v. Souther Co., 390 F.3d 695, 720 (11th Cir.2004) cert. denied 546 U.S. 960, 126 S.Ct. 478, 163 L.Ed.2d 363 (2005); Molski v. Gleich, see note 47, supra; Coleman v. General Motors Acceptance, see note 47, supra; In re Mercedes-Benz Antitrust Litigation, see note 47, supra; Colorado Cross-Disability Coalition v. Taco Bell Corp., 184 F.R.D. 354, 361 (D.Colo. 1999); Heartland Communications, Inc. v. Sprint Corp., 161 F.R.D. 111, 117 (D.Kan.1995).

50 . Heartland Communications, Inc. v. Sprint Corp., see note 49, supra. See, Molski v. Gleich, note 47, supra [Focus is on the intent of plaintiffs in bringing the suit.]; In re Mercedes-Benz Antitrust Litigation, note 47, supra [Assessing the "realities of the litigation", the focus of the cause was on money damages.]; In re School Asbestos Litigation note 47, supra [Despite plaintiff's ingenuity, claims are essentially for damages.].

51 . Bolin v. Sears, Roebuck & Co., see note 48, supra.

52 . Molski v. Gleich, see note 47, supra; Robinson v. Metro-North Commuter Railroad Co., 267 F.3d 147, 162 (2nd Cir.2001) cent. denied 535 U.S. 951, 122 S.Ct. 1349, 152 L.Ed.2d 251 (2002); Stewart v. Abraham, see note 47, supra; In re Methyl Tertiary Butyl Ether Products Liability Litigation, see note 48, supra; Kleiner v. First National Bank of Atlanta, 97 F.R.D. 683, 691 (N.D.Ga.1983); McCray v. Standard Oil Co., 76 F.R.D. 490, 500 (N.D.Ill.1977). See, Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 2245, 138 L.Ed.2d 689 (1997) [Noting civil rights cases against parties charged with unlawful, class-based discrimination are prime examples of Rule 23(b)(2) certifications.]; In re St. Jude Medical, Inc., see note 48, supra [Recognizing injuries remedied through (b)(2) actions are really group as opposed to individual injuries and class members are generally bound together by a significant common trait such as race or gender.]; Lemon v. International Union of Operating Engineers, 216 F.3d 577, 580 (7th Cir.2000) [23(b)(2) operates under the presumption that the interests of the class members are cohesive and homogenous, not individual differences among members.]; Marcus v. Kansas Dept. of Revenue, 206 F.R.D. 509, 514 (D.Kan.2002) [Certification met for class comprised of purchasers of disabled parking cards who alleged Department of Motor Vehicles violated the Americans with Disabilities Act by charging fees.].

53 . For example, of Harvell's three asserted claims, the only one which even mentions an injunction is the violation of the Ohio Consumer Sales Practices Act, but she also seeks compensatory and statutory damages under it. The customer seeks compensatory damages under the breach of contract theory in an amount equal to the shop supplies fees paid, and refund of the illegal profits and wrongful fees to the class under her unjustment enrichment theory. Here, a determination of damages would require individualized determinations of whether the shop fees did in fact correlate to the supplies used. In any class action in which both injunctive and monetary relief are sought, where the determination of damages are inherently and individualized nature, class action status is inappropriate. Robinson v. Metro-North Commuter Railroad Co., see note 52, supra. See, Bolin v. Sears, Roebuck & Co., note 48, supra [Certification is improper if the merits of the claims turn on the defendant's individual dealings with each plaintiff.]; Hoffman v. Honda of America Mfg., Inc., 191 F.R.D. 530, 533 (S.D.Ohio 1999) [Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual's case, nor should it entail individualized determinations.].

54 . Ysbrand v. DaimlerChrysler Corp., see note 9, supra; Scoufos v. State Farm Fire & Cas. Co., see note 9, supra; Black Hawk Oil Co. v. Exxon Corp., see note 8, supra; Shores v. First City Bank Corp., see note 9, supra.

55 . Fent v. Oklahoma Natural Gas Co., see note 8, supra; KMC Leasing, Inc., v. Rockwell-Standard Corp., see note 10, supra.

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