Thomas v. Jackson Hewitt, Inc.

950 N.E.2d 578, 192 Ohio App. 3d 732
CourtOhio Court of Appeals
DecidedFebruary 10, 2011
DocketNo. 95019
StatusPublished
Cited by3 cases

This text of 950 N.E.2d 578 (Thomas v. Jackson Hewitt, Inc.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thomas v. Jackson Hewitt, Inc., 950 N.E.2d 578, 192 Ohio App. 3d 732 (Ohio Ct. App. 2011).

Opinion

Kathleen Ann Keough, Judge.

{¶ 1} Plaintiffs-appellants, Nancee and Paul Thomas, appeal the trial court’s decision granting the motion of defendant-appellee, Jackson Hewitt, Inc. to dismiss. Finding no merit to the appeal, we affirm.

2} In September 2009, Nancee Thomas filed a putative class-action complaint against Jackson Hewitt. The class action was brought by Thomas individ[734]*734ually and on behalf of a class of Ohio residents who had sought Jackson Hewitt’s assistance in obtaining a refund-anticipation loan (“RAL”). The complaint alleged that Jackson Hewitt violated Ohio’s Credit Services Organization Act (“CSOA”), R.C. 4712.01 et seq., in its RAL practice. Specifically, Thomas alleged that Jackson Hewitt received payment or arranged RALs on behalf of Ohio consumers without first meeting the requirements of the CSOA by, among other violations, failing to (1) register as a credit-service organization (“CSO”), (2) obtain a surety bond, (3) provide consumers with a three-day right to rescind the transaction, and (4) provide contracts with the required disclosures.

{¶ 3} In response, Jackson Hewitt moved for dismissal pursuant to Civ.R. 12(B)(6) and 12(B)(7), arguing that it was not required to comply with the CSOA because (1) Thomas was not a “buyer” as defined under the CSOA, (2) Jackson Hewitt was not a CSO, as defined under the CSOA, (3) Thomas had not suffered any injury, and (4) all necessary parties were not made parties to the action.

{¶ 4} Thomas filed a first amended class-action complaint for the sole purpose of adding her husband, Paul Thomas, as a named plaintiff. The parties stipulated that the motion to dismiss filed by Jackson Hewitt in response to the initial complaint would also apply to the first amended complaint. Accordingly, Jackson Hewitt moved for dismissal pursuant to Civ.R. 12(B)(6).1

{¶ 5} The trial court granted Jackson Hewitt’s motion to dismiss and ruled, “Jackson Hewitt is not a credit services organization as defined by R.C. 4712.01. Moreover, this court finds that plaintiff has failed to set forth any identifiable damages.”

{¶ 6} The Thomases appeal, arguing in their sole assignment of error that the trial court erred when it granted Jackson Hewitt’s motion to dismiss.

Standard of Review

{¶ 7} This court’s review of a motion to dismiss pursuant to Civ.R. 12(B)(6) is de novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, at ¶ 5. In resolving a Civ.R. 12(B)(6) motion, a court is confined to the allegations in the complaint, and as an appellate court, we must independently review the complaint to determine whether dismissal was appropriate. McGlone v. Grimshaw (1993), 86 Ohio App.3d 279, 285, 620 N.E.2d 935. A complaint cannot be dismissed unless it appears beyond all doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. O’Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 245, 71 O.O.2d 223, 327 N.E.2d 753.

[735]*735{¶ 8} It is well settled that “when a party files a motion to dismiss for failure to state a claim, all the factual allegations of the complaint must be taken as true and all reasonable inferences must be drawn in favor of the nonmoving party.” Byrd v. Faber (1991), 57 Ohio St.3d 56, 60, 565 N.E.2d 584, citing Mitchell v. Lawson Milk (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753. While the factual allegations of the complaint are taken as true, “[ujnsupported conclusions of a complaint are not considered admitted * * * and are not sufficient to withstand a motion to dismiss.” State ex rel. Hickman v. Capots (1989), 45 Ohio St.3d 324, 544 N.E.2d 639, citing Schulman v. Cleveland (1972), 30 Ohio St.2d 196, 198, 59 O.O.2d 196, 283 N.E.2d 175, and Mitchell at 193. Moreover, “[l]egal conclusions, deductions or opinions couched as factual allegations are not given a presumption of truthfulness.” Williams v. U.S. Bank Shaker Square, Cuyahoga App. No. 89760, 2008-Ohio-1414, 2008 WL 802523, at ¶ 9, quoting Crane & Shovel Sales Corp. v. Bucyrus-Erie Co. (C.A.6,1988), 854 F.2d 802, 810.

Analysis

{¶ 9} Although generally our analysis would begin with a determination of whether the Thomases are subject to the CSOA, we find that even if the CSOA did apply to the Thomases and Jackson Hewitt, the Thomases have failed to sufficiently plead that they were damaged by Jackson Hewitt’s alleged failure to comply with the CSOA.2

{¶ 10} The Ohio CSOA’s damages provision states: “A buyer injured by a violation of sections 4712.01 to 4712.14 of the Revised Code may bring an action for recovery of damages.” R.C. 4712.10(A)(1). “Damages awarded under division (A)(1) of this section shall not be less than the amount paid by the buyer to the credit services organization, plus reasonable attorney’s fees and court costs.” R.C. 4712.10(A)(2).

{¶ 11} The Thomases’ sole allegation in their first amended complaint regarding injury or damages is found at paragraph 34:

34. As a result of Jackson Hewitt’s violations of the Credit Service Organization Act, Mr. and Mrs. Thomas and the proposed class have been damaged in an amount equal to all fees and charges they incurred in connection with Jackson Hewitt’s arrangement of the RAL.

[736]*736{¶ 12} Jackson Hewitt argued in its motion to dismiss that this bald assertion does not sufficiently allege injury in order to survive a Civ.R. 12(B)(6) dismissal. Instead, Jackson Hewitt maintained that the Thomases must allege that they suffered damages in some individual way and that it cannot be presumed that all violations of the CSOA result in injury.

{¶ 13} The Thomases, on the other hand, claim that injury was sufficiently alleged in their first amended complaint because they claimed that Jackson Hewitt failed to abide by the CSOA requirements (paragraphs 27-29) and that they paid Jackson Hewitt for RAL services (paragraphs 17-19, 23-25). On appeal, the Thomases explain that they were damaged by Jackson Hewitt’s failure to abide by the requirements of the CSOA, so that they were prevented from making an informed decision about the services they were purchasing. They further argue that Jackson Hewitt’s failure to comply reduced the value or usefulness of what the customer paid to receive and that Jackson Hewitt received money to which, under the law, they were not entitled.

{¶ 14} In support of their argument, the Thomases urge this court to follow the West Virginia District Court’s decision in Harper v. Jackson Hewitt (Sept. 29, 2009), S.D.W.Va. No. 3:06-0919, 2009 WL 3160484, for the proposition that a CSO cannot be relieved of its liability for violating the CSOA.

{¶ 15} As in the case before this court, the Harper

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Bluebook (online)
950 N.E.2d 578, 192 Ohio App. 3d 732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-jackson-hewitt-inc-ohioctapp-2011.