[Cite as Strickler v. First Ohio Banc & Lending, Inc., 2013-Ohio-1221.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
LYNN A. STRICKLER, et al. C.A. No. 12CA010178
Appellees
v. APPEAL FROM JUDGMENT ENTERED IN THE FIRST OHIO BANC & LENDING, INC., COURT OF COMMON PLEAS et al. COUNTY OF LORAIN, OHIO CASE No. 07-CV-151964 Appellants
DECISION AND JOURNAL ENTRY
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 are 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 felt that one or more aspects of the 2
loan did not comport with the representations that First Ohio’s agents had made during the loan
process. Each ultimately consulted with the same attorney. In reviewing their respective cases,
Stickler and Krese’s attorney reviewed the disclosure statements First Ohio had provided them
during the loan process and discovered that certain required information had been omitted.
{¶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 R.C. 1322.062. The second count was directed at the Sureties and sought
payment of First Ohio’s broker bonds as relief, should the class prevail on the count against First
Ohio. Strickler and Krese sought to certify as a class: “all persons who, during the period from
May 2, 2002,1 to the present, purchased services from [First Ohio] relating to a mortgage loan on
Ohio realty.”
{¶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 R.C. 1322.062; and (2) whether First Ohio was subject to liability for any
1 May 2, 2002, is the date when R.C. 1322.062, the statute containing the disclosure requirements for mortgage loan origination disclosure statements, became effective. 3
deficiencies in the statements under R.C. 1322.11. The trial court agreed to the stipulation and
allowed the parties to file cross-motions for partial summary judgment. The parties filed their
respective motions and also jointly filed the sixteen versions of the disclosure statements that
First Ohio gave its customers from May 2, 2002, to present. Subsequently, the court granted
Strickler and Krese’s motion for partial summary judgment and determined both that (1) First
Ohio’s disclosure statements violated R.C. 1322.062 for various reasons; and (2) First Ohio was
liable for the violations under R.C. 1322.11. In making its ruling, the court determined that any
violation of R.C. 1322.062 gives rise to a damage award under R.C. 1322.11 because “[s]ome
amount of damage must be assumed in order to effectuate the purpose of the statute * * *.”
{¶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 raise 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. 4
Assignment of Error Number Two
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 R.C. 1322.062 only results in a damage award upon proof of actual injury. In the second
assignment, they argue that the common question of liability was not proven because the trial
court erred when it concluded that First Ohio’s disclosure forms contained deficiencies. In their
third assignment of error, First Ohio and the Sureties argue that Strickler and Krese lacked
standing to prosecute the class action because they failed to demonstrate an injury in fact.
{¶8} For an action to be certified as a class action, there must be questions of law or
fact common to the class. Civ.R. 23(A)(2). See also In re Consol. Mtge. Satisfaction Cases, 97
Ohio St.3d 465, 2002-Ohio-6720, ¶ 6. “If there is a common nucleus of operative facts, or a
common liability issue, the rule is satisfied.” Hamilton v. Ohio Sav. Bank, 82 Ohio St.3d 67, 77
(1998). The commonality prerequisite is distinct from the prerequisite that named class
representatives be members of the class they seek to certify. See In re Consol. Mtge. Satisfaction
Cases at ¶ 6. “The class membership prerequisite requires that the class representative possess
standing and ‘have an action’ for the remedy he or she seeks on behalf of the class.” (Emphasis 5
omitted.) Mozingo v. 2007 Gaslight Ohio, L.L.C., 9th Dist. Nos. 26164 & 26172, 2012-Ohio-
5157, ¶ 14, quoting Hamilton at 74. “In order to have standing to sue as a class representative,
the plaintiff must possess the same interest and suffer the same injury shared by all members of
the class that he or she seeks to represent.” Hamilton at 74, quoting 5 Moore, Federal Practice,
Paragraph 23.21[1] (3d Ed.1997).
{¶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 R.C.
1322.062 results in an injury per se or requires proof of actual damages, and (2) whether First
Ohio’s disclosure forms violated R.C. 1322.062. Those questions do not bear upon the
appropriateness of class certification and are not the proper subject of an appeal at this time. See
Hill at ¶ 13 (court abused its discretion in class certification when it “examined the merits of the
class action” and found that “the evidence produced in preliminary discovery, on its face,
demonstrated compliance by [the defendant broker] with R.C. 1322.062”). We acknowledge that
the parties were permitted to move for partial summary judgment and, consequently, have
already received a ruling on certain substantive issues. This appeal, however, stems solely from 6
the court’s decision to grant class action certification; a decision entered separately from the
court’s decision granting partial summary judgment to Strickler and Krese. First Ohio and the
Sureties cannot challenge the trial court’s partial summary judgment rulings in this appeal.
Instead, they are limited to the court’s ruling on the appropriateness of class certification.
{¶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 class 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 period, as did the other members of the class; (2) that First Ohio’s disclosure statements
violated R.C. 1322.062; and (3) that, as a result of the violation(s), “each member of the Class
(including Lynn Strickler and Keith Krese) was actually injured and suffered damages.” It also
set forth several common questions of law, including whether First Ohio’s disclosure statements
complied with R.C. 1322.062 and whether First Ohio was liable for the non-complying
statements. See Hamilton at 77 (“If there is a * * * common liability issue, the [commonality]
rule is satisfied.”). The trial court was required to view the allegations in the complaint as true
without considering their merits. Hill, 2009-Ohio-4614, at ¶ 8. First Ohio and the Sureties have
not shown that the trial court erred by concluding that Strickler and Krese had standing to sue
and that the suit involved common questions of law. To the extent their argument truly
addresses standing and commonality, it is overruled. Their remaining arguments exceed the
scope of this appeal, as they are merits-based arguments that do not address the appropriateness 7
of class certification. First Ohio and the Sureties’ first, second, and third assignments of error
are overruled.
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 court erred by granting certification.
{¶13} Civ.R. 23 governs class action certifications. Before a court may certify a case as
a class action: 8
(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 have 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 Civ.R. 23, or that suggests that
the trial court did not conduct a rigorous analysis into whether or not the prerequisites of Civ.R.
23 are satisfied, will constitute an abuse of discretion.” (Internal citations and quotations
omitted.) Hill, 2009-Ohio-4614, at ¶ 9, quoting Cicero v. U.S. Four, Inc., 10th Dist. No. 07AP-
310, 2007-Ohio-6600, ¶ 10.
{¶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 Civ.R. 23(B).
Accordingly, this Court will not analyze the remaining class action prerequisites. The trial court 9
determined that Strickler and Krese satisfied the provisions of Civ.R. 23(B)(1), 23(B)(2), and
23(B)(3). First Ohio and the Sureties challenge the court’s determination as to each subsection.
Yet, a class action plaintiff need only satisfy one subsection of Civ.R. 23(B) for class
certification. See id. (class certification requires that one of the three Civ.R. 23(B) requirements
be satisfied). Consequently, if the court correctly concluded that Strickler and Krese satisfied
any one of the Civ.R. 23(B) subsections, this Court must uphold the class certification.
{¶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 Civ.R.
23(B)(3). See Hamilton, 82 Ohio St.3d at 79, quoting Warner v. Waste Mgt., Inc., 36 Ohio St.3d
91, 95-96 (1988) (“The Rule 23(B)(3) action is the so-called ‘damage’ action.”).
{¶17} Civ.R. 23(B)(3) provides that an action:
may be maintained as a class action 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 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 Civ.R. 23(B)(3) was to bring within the fold of maintainable class actions cases
in which the efficiency and economy of common adjudication outweigh the interests of
individual autonomy.” Hamilton at 80. The rule permits numerous individuals “who have small
claims that might not be worth litigating in individual actions to combine their resources and
bring an action to vindicate their collective rights.” Id., quoting 7A Wright, Miller & Kane,
Federal Practice and Procedure, Section 1777, at 518 (2d Ed.1986). 10
{¶18} In challenging the predominance requirement of Civ.R. 23(B)(3), First Ohio and
the Sureties argue that individual questions would dominate the class action against them
because each class member would have to prove an actual injury resulted from any deficiency in
their disclosure statement. First Ohio and the Sureties insist that one must prove an actual injury
before any damages are recoverable under R.C. 1322.11. They further note that the reason the
trial court found some of their disclosure statements defective was that First Ohio’s agents did
not correctly complete them. Accordingly, First Ohio and the Sureties insist that a class action
would actually result in numerous “mini-trials” where the court would be forced to determine:
(1) whether any deficiencies existed in each class member’s disclosure statement; and (2)
whether each class member sustained an actual injury as a result of any deficiency in their
disclosure statement. Because the foregoing individual issues would predominate, First Ohio
and the Sureties argue, Strickler and Krese failed to meet the predominance requirement.
{¶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 treatment 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 spent 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.” 11
Id. at 85. The fact that the trial court may have to spend considerable time on individual issues is
not a bar to class certification so long as common questions predominate. See In re Consol. Mtg.
Satisfaction Cases, 97 Ohio St.3d 465, 2002-Ohio-6720, at ¶ 10 (“The mere existence of
different facts associated with the various members of a proposed class is not by itself a bar to
certification of that class.”). Such common questions here include whether First Ohio’s
standardized forms violated R.C. 1322.062, whether First Ohio and the Sureties are liable for
violations of R.C. 1322.062, and whether buyers must demonstrate actual injury as a result of
such violations before they can recover under R.C. 1322.11. We reject First Ohio and the
Sureties’ argument that Strickler and Krese failed to satisfy Civ.R. 23(B)(3)’s predominance
requirement.
{¶20} In challenging the superiority requirement of Civ.R. 23(B)(3), First Ohio and the
Sureties once again argue that a class action would actually result in numerous “mini-trials” that
would require much time, effort, and expense. A superiority analysis requires a “comparative
evaluation of the other procedures available to determine whether a class action is sufficiently
effective to justify the expenditure of judicial time and energy involved therein.” Id. at ¶ 8,
quoting Schmidt v. Avco Corp., 15 Ohio St.3d 310, 313 (1984). First Ohio and the Sureties have
not explained how individual actions would be more efficient than a class action. See App.R.
16(A)(7). A class action would benefit any plaintiffs whose damage award might be slight and
who might otherwise not have the “financial wherewithal” to proceed with a suit against First
Ohio and the Sureties. In re Consol. Mtge. Satisfaction Cases at ¶ 14. It also would address all
of the claims for statutory violations arising from First Ohio’s disclosure statements since May 2,
2002, in one action rather than having potential plaintiffs from over a ten-year period each file
separate claims. See id. at ¶ 15. Moreover, while some difficulties might arise in the 12
management of the class, we are not convinced that separate actions by individual plaintiffs
would result in any less difficulty for the court system. See id. at ¶ 16. First Ohio and the
Sureties have not shown that Strickler and Krese failed to meet Civ.R. 23(B)(3)’s superiority
{¶21} Finally, First Ohio and the Sureties argue 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 Civ.R.
23 that [a] trial court make formal findings to support its decision on a motion for class
certification * * *.” Hamilton, 82 Ohio St.3d at 70. We do not believe that the trial court here
failed to undertake a rigorous analysis. The court specifically set forth all of the prerequisites for
class certification and found that Strickler and Krese satisfied each prerequisite. Although the
court did not explain why it found that Strickler and Krese had satisfied each prerequisite, there
is no evidence that the court confused any of the prerequisites or failed to meaningfully consider
any of them. Compare Setliff v. Morris Pontiac, Inc., 9th Dist. No. 08CA009364, 2009-Ohio-
400, ¶ 10 (certification reversed where court’s entry suggested that it had conflated the
commonality and predominance requirements and, thus, had failed to conduct a rigorous
analysis). As First Ohio and the Sureties note in their brief, the parties “extensively briefed their
respective positions” before the court’s certification decision. Absent something more, this
Court will not conclude that the trial court abused its discretion simply because it did not
explicitly set forth its rationale for each class prerequisite in its judgment entry. See Hamilton at
70. 13
{¶22} Because Strickler and Krese satisfied the predominance and superiority
requirements for class certification, the trial court properly certified their class action under
Civ.R. 23(B)(3). First Ohio and the Sureties’ sixth and seventh assignments of error are
overruled, as they address the court’s decision to certify the class action under Civ.R. 23(B)(3).
First Ohio and the Sureties’ fourth and fifth assignments of error address the court’s decision to
certify the action under Civ.R. 23(B)(1) and 23(B)(2). As previously set forth, however, an
action need only satisfy one subsection of Civ.R. 23(B) for it to be maintained as a class action.
See In re Consol. Mtge. Satisfaction Cases, 97 Ohio St.3d 465, 2002-Ohio-6720, at ¶ 6. Because
the action here was appropriately certified under Civ.R. 23(B)(3), First Ohio and the Sureties’
challenges to certification under Civ.R. 23(B)(1) and 23(B)(2) are moot. This Court declines to
address their fourth and fifth assignments of error. Lastly, this Court rejects First Ohio and the
Sureties’ argument that the trial court failed to conduct a rigorous analysis of the requirements
for class action certification. Consequently, First Ohio and the Sureties’ eighth assignment of
error is overruled.
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. 14
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 App.R. 27.
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
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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.