Barrow v. New Miami

[Cite as Barrow v. New Miami, 2014-Ohio-5743.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

DOREEN BARROW, et al., :

Plaintiffs-Appellees, : CASE NO. CA2014-04-092

: OPINION
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:

VILLAGE OF NEW MIAMI, et al., :

Defendants-Appellants. :

CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CV2013-07-2047

Rittgers & Rittgers, Charles H. Rittgers, 12 East Warren Street, Lebanon, Ohio 45036,
Michael K. Allen & Associates, Michael K. Allen, Joshua A. Engel, 5181 Natorp Blvd., Suite
210, Mason, Ohio 45040, and Markovits, Stock & DeMarco, LLC, Paul M. DeMarco, 119 East
Court Street, #530, Cincinnati, Ohio 45202, for plaintiffs-appellees, Doreen Barrow, Diane
Woods, Michelle Johnson and Don Muirheid

Rendigs, Fry, Kiely & Dennis, LLP, Wilson G. Weisenfelder, Jr., James J. Englert, 600 Vine
Street, Suite 2650, Cincinnati, Ohio 45202, for defendant-appellant, Village of New Miami
and defendant, Kenneth Cheeks

PIPER, J.

{¶ 1} Defendant-appellant, the village of New Miami (New Miami), appeals a decision

of the Butler County Court of Common Pleas granting class certification to plaintiffs-

appellees, Doreen Barrow and other similarly situated individuals (Plaintiffs).
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{¶ 2} New Miami operates an Automated Speed Enforcement Program in its village.

The enforcement program was meant to address the ongoing problem of motorists

disobeying speed limits. New Miami's Council adopted Ordinance 1917 (the Ordinance),

putting into action the enforcement program and setting forth its provisions for operation and

implementation.

{¶ 3} The enforcement program works through a laser system that tracks and takes

photos of a vehicle that is exceeding the posted speed limit. Two lasers are pointed at the

middle of a lane, and the lasers measure the speed of each vehicle based on how long it

takes a vehicle to travel a certain distance. If the motorist's speed is more than 46 m.p.h,,

the machine photographs the license plate and the registered owner of that vehicle is sent a

Notice of Liability. The system self-calibrates on a daily basis, and is calibrated by a

technician on a yearly basis.

{¶ 4} New Miami's ordinance created a civil enforcement program that defined the

basis for liability, civil penalties, collection of the penalty, and the basis for an administrative

appeal. The Notice of Liability indicates that payment of the penalty is an admission of

liability, and that such payment waives the right to a hearing, which would otherwise be

conducted by a hearing officer appointed by New Miami's Mayor. The Notice of Liability also

informs the motorist that a hearing may be requested wherein the motorist has the ability to

challenge the penalty on the basis that the vehicle was stolen, someone else was driving the

vehicle, it was a loaned vehicle, or the license plate was not clearly shown in the photos.

Motorists have 30 days from the date of the violation to request a hearing. If a motorist

wants to challenge the result of the hearing, the motorist can appeal to the Butler County

Court of Common Pleas. Motorists who do not pay the penalty become subject to a late fee,

are reported to a collection agency, and have their judgment reported to credit agencies.

{¶ 5} Plaintiffs in the current case are all motorists who were sent Notices of Liability,
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indicating that they violated speed limits when driving within New Miami. Some of the

Plaintiffs paid the penalty, admitting liability, and some did not. Plaintiffs collectively filed a

complaint alleging in Count 1 that the Ordinance improperly divests the municipal court of

jurisdiction over liability challenges. Count 2 alleges that the Ordinance violates the Ohio

Constitution's guarantee of "due course of law." Plaintiffs asked in Count 3 for injunctive

relief prohibiting continued enforcement of the Ordinance, while Count 4 seeks equitable

restitution of civil penalties, fees, or charges paid by any plaintiffs who had paid penalties.

{¶ 6} The Plaintiffs moved the trial court to issue a class certification so that the case

could proceed as a class action. New Miami contested the class certification, arguing that

Plaintiffs had not fulfilled the necessary requirements. The parties briefed the issue for the

trial court, and later held a lengthy discussion on the issue.1 The trial court then issued a

decision, certifying the class action and certifying two subclasses. Subclass One consists of

all persons who have paid penalties imposed under the Ordinance, and is represented by

Plaintiffs Diane Woods and Michelle Johnson. Subclass Two consists of all persons who

have received a Notice of Liability but have not yet paid any penalties, and is represented by

Michele McGuire.

{¶ 7} Subsequent to granting certification, the trial court considered the merits of the

Plaintiffs' causes of action by considering the parties' cross-motions for summary judgment.

The trial court granted summary judgment in favor of the Plaintiffs on their first three causes

of action and denied New Miami's motion for summary judgment in the process. The trial

court has not yet fully considered the Plaintiffs' fourth cause of action so that its decision on

1. The parties make reference to a two-hour hearing having occurred on February 25, 2014 in both their
respective briefs, and at oral arguments. The record contains a journalization of a five-minute hearing on
February 25, 2014, but does not otherwise indicate when the longer discussion occurred. Moreover, the record
does not contain a transcript of the discussion or the hearing and this court cannot review what was addressed
by the parties or the trial court.

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the unjust enrichment claim is forthcoming. New Miami now appeals the trial court's decision

to certify the class, raising the following assignment of error:2

{¶ 8} THE TRIAL COURT ERRED IN CERTIFYING A CLASS ACTION UNDER

CIVIL RULE 23(B)(2), AND IN APPOINTING PLAINTIFFS WOODS AND JOHNSON AS

SUBCLASS 1 REPRESENTATIVES AND PLAINTIFF MCGUIRE AS SUBCLASS 2

REPRESENTATIVE.

{¶ 9} New Miami argues in its assignment of error that the trial court erred in

certifying the class and by appointing certain Plaintiffs as representatives for the two

subclasses because the Plaintiffs lacked standing.

Standing

{¶ 10} New Miami first challenges the standing of the subclass representatives

Woods, Johnson, and McGuire.

{¶ 11} A class representative must have proper standing in order to fulfill the class

membership prerequisite. "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 v. Ohio Sav. Bank, 82 Ohio St. 3d 67,

74 (1998). Therefore, a party has standing in a class certification case when that

representative has "an action" for the claimed relief. Id.

{¶ 12} After reviewing the record, we find that the subclass Plaintiffs have standing to

act as representatives because they have an action for the claimed relief. The subclass

Plaintiffs also possess the same interests and have suffered the same injury shared by all

members of the class that they seek to represent. We are not asked at this stage of the case

2. The appeal currently before this court does not address the merits of the trial court's grant of partial summary
judgment on the first three causes of action. This appeal is specific to only class certification issues as permitted
by R.C. 2505.02(B)(5), which grants the right to an interlocutory appeal.

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whether the subclass Plaintiffs have a successful defense to the liability for speeding, nor are

we asked whether the Plaintiffs' assertion that the Ordinance is unconditional has merit.

Instead, we are only required to determine whether these representatives have an action for

the relief sought.

{¶ 13} The record indicates that Plaintiffs Diane Woods and Michelle Johnson have

standing to represent Subclass One because they were subject to the Ordinance and have

paid the same penalties, fees, or other charges that others did under the Ordinance. Both

Woods and Johnson hope to be reimbursed for the penalties they have incurred. New Miami

suggests that Woods and Johnson lack standing because they have already paid the

penalties, thus failing to avail themselves of the administrative hearing process. Despite the

fact that Woods and Johnson chose to pay the fine and forego the administrative hearing

process, Woods and Johnson have nonetheless been required to pay penalties because of

the Ordinance and the manner in which New Miami chose to implement the speed

enforcement program.

{¶ 14} The argument espoused by New Miami indirectly asks this court to decide the

merits of whether the speed enforcement program offers adequate due process protections

and the like. New Miami's argument requires us to determine first that the Ordinance's

administrative hearing and appellate process is valid and would meet the due process rights

of motorists who have been accused of speeding. However, such a finding would foreclose

the Plaintiffs' arguments that the administrative body (and later appellate process) had no

authority to proceed or to establish liability in the way set forth by the Ordinance.

{¶ 15} Similarly, we find that Subclass Two representative Michele McGuire also has

standing. McGuire was sent a Notice of Liability but did not timely receive it because she had

moved. Once McGuire received the Notice of Liability at her new address, the time to

request an administrative hearing had passed and she was denied her request for a hearing
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as being untimely.3 New Miami now asserts that McGuire lacks standing because she failed

to timey request a hearing, and like Johnson and Woods, has failed to exhaust the

administrative process. Again, we disagree and find that McGuire has standing.

{¶ 16} The record indicates that McGuire possesses the same interest and has

suffered the same injury as others in that she has been accused of speeding and must

answer the Notice of Liability in an administrative proceeding that may deprive her of
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protections otherwise applicable in the municipal court system. While McGuire has not paid

any fines or penalties, she nonetheless is subject to penalties for speeding just as any other

member of the class—regardless of whether that member has paid the penalty yet. McGuire,

like all members of the class, is subject to the Ordinance and the processes set forth

pursuant to the speed enforcement program. McGuire, as a class representative and

member, can now assert her claim that she should not have been subject to the Ordinance

because it is unconstitutional, and that fact remains true whether or not McGuire availed

herself of the administrative process and whether or not McGuire has since paid the penalty.

{¶ 17} New Miami's argument creates a quintessential catch-22. Either the Plaintiffs

lack standing because they have paid the penalties, or they lack standing because they have

not paid their penalties. In either case, the fact that the Plaintiffs did not avail themselves of

the administrative process does not change the fact that standing for class action certification

is conferred upon any plaintiff that possesses the same interest and suffers the same injury

shared by all members of the class that he or she seeks to represent. The record is clear

3. It appears that the time for requesting a hearing had passed through no fault or dilatory conduct on behalf of
McGuire. Rather, McGuire had moved and the delay in her requesting a hearing was because her mail had been
re-routed to her new address.

4. The unilateral imposition of the Ordinance's administrative proceedings presents colorable arguments that the
administrative process denied the Plaintiffs certain rights otherwise due to them by proceedings in municipal
court such as sufficiency of notice, shifting of the burden of proof, right to confrontation, and the right to remain
silent.

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that each subclass Plaintiff has been notified that he or she is subject to the Ordinance, an

Ordinance each Plaintiff believes to be unconstitutional. Each subclass Plaintiff faces the

same fate as all other members in being unilaterally forced to answer strictly through an

ordinance that affords less notice and fewer personal protections routinely given citizens of a

community through the jurisdiction of the municipal court.

{¶ 18} In the case sub judice, the standing inquiry is narrow, and limited to only

whether the subclass Plaintiffs possess the same interest and suffered the same injury

shared by all other members of the class. The record is clear that McGuire, Johnson, and

Woods have suffered the same injury, and possess the same interests shared by all

members. As such, the subclass Plaintiffs have standing

Certification

{¶ 19} "A class action is an exception to the general rule that litigation is conducted by

and on behalf of the named parties only, and therefore, to justify a departure from this rule,

the representative of the putative class is required to affirmatively demonstrate that each

requirement of Civ.R. 23 has been satisfied." Cullen v. State Farm Mut. Auto. Ins. Co., 137

Ohio St.3d 373, 374, 2013-Ohio-4733, ¶ 2, citing Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct.

2541, 2550 (2011).

{¶ 20} The Ohio Supreme Court has recognized that there are seven requirements to

class action certification, essentially recognizing two implied elements in addition to the five

express elements set forth in Civ.R. 23.

(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.
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Stammco, L.L.C. v. United Tel. Co. of Ohio, 125 Ohio St.3d 91, 2010-Ohio-1042, ¶ 6.

{¶ 21} Civ.R. 23(B) requires that the court make a finding that:

(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.

{¶ 22} In order to certify a class, a trial court must find that all seven elements are met,

and must do so by a preponderance of the evidence. Warner v. Waste Mgt. Inc., 36 Ohio

St.3d 91 (1988). A trial court's determination regarding class certification will not be disturbed

absent a showing of an abuse of discretion. Id. An abuse of discretion is more than a mere

error of law or judgment, instead requiring a finding that the trial court's decision is

"unreasonable, arbitrary, or unconscionable." State ex rel. Davis v. Pub. Emps. Retirement

Bd., 111 Ohio St.3d 118, 2006-Ohio-5339.

{¶ 23} The Ohio Supreme Court has clearly expressed that a trial court's discretion

when determining whether a class can be properly certified is not unlimited, and instead, is

"bounded by and must be exercised within the framework of Civ.R. 23." Howland v. Purdue

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Pharma L.P., 104 Ohio St.3d 584, 2004-Ohio-6552, ¶ 25. The Howland court went on to

state that a "trial court is required to carefully apply the class action requirements and

conduct a rigorous analysis into whether the prerequisites of Civ.R. 23 have been satisfied."

Id. The supreme court noted that the trial court in Howland had "failed to analyze or even

mention any of the specific problems argued by the appellants," failed to analyze pertinent

federal case law, and determined issues by "summarily" offering conclusory answers rather

than a full analysis of the issues. Id. at ¶ 21.

{¶ 24} In reversing, the Howland court specifically found that,

where the trial court completely misconstrues the letter and spirit
of the law, it is clear that the court has been unreasonable and
has abused its discretion. A trial court that dispenses with a
party's arguments in such a fashion, fails to examine a well-
established doctrine, and ignores nearly identical federal
proceedings does not merely misconstrue the letter and spirit of
the law--it ignores them.

Id. at ¶ 26.

{¶ 25} The trial court's opinion in the case at bar is similar to the one analyzed in

Howland, as the trial court appeared to summarily adopt the Plaintiffs' conclusions and failed

to address any of the legal assertions to the contrary. Nor is there any articulation of a

factual or legal analysis, and there is no discussion of relevant case law.

{¶ 26} New Miami does not challenge whether the class was sufficiently identifiable,

too numerous for joinder to be practicable, or that the members can adequately protect the

interest of the class. As such, the trial court was not required to make extensive findings on

these issues. However, New Miami challenged the other elements required for class

certification, including (1) whether there are questions of law or fact common to the class, (2)

whether the claims or defenses are typical of the class, and (3) whether one of the three

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Civ.R. 23(B) requirements have been met.5 The trial court should have addressed these

requirements in a way that demonstrated an analysis of the various issues.

{¶ 27} The record is deficient in providing us with insight as to the trial court's analysis

so that a meaningful review is impossible. The requirements necessary for class certification

would involve application of the facts pursuant to Civ.R. 23, and we cannot say whether the

trial court abused its discretion when this court is unaware of what factual and legal analysis

the trial court actually employed. If this court were to reach a decision as to the

appropriateness of class certification with the record presented, we would be forced to

supplant our judgment for that of the trial court, something the law does not permit. Preece

v. Stern, 12th Dist. Madison Nos. CA2008-09-024, CA2008-12-029, 2009-Ohio-2519, ¶ 14.

{¶ 28} The trial court, in concluding that typicality existed, stated in full "the claims of

the class representatives are typical of the other class members' claim in that the same

practices and process that gave rise to the representative's claims also gave rise to the

claims of the other class and subclass members * * *." However, the trial court never

articulated or discussed what practices and process it was referencing. The trial court also

stated, "all of their claims are based on the same legal theories, and no express conflict

exists between the class representatives and the other class (and subclass) members."

Again, however, the trial court gave no discussion of the legal theories the claims are based

upon. Absent a more specific application of the facts with an analysis, we are unable to

review the finding of typicality for an abuse of discretion. In order to find that a Civ.R. 23(B)

requirement exists, the trial court must give discussion to why that particular finding is made

and how it is based on the record.

5. Another requirement is that the named representatives be members of the class. While New Miami
challenged this element, we have already established that the named representatives are members of the class
through our discussion of the standing issue.

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{¶ 29} The trial court relied on Civ.R. 23(B)(2) when making the final finding for class

certification. However, the trial court did not explain why that factor applied. Nor did the trial

court address pertinent case law that may call into question the applicability of Civ.R.

23(B)(2) when it appears that the Plaintiffs may be seeking different monetary damages in

addition to an injunction against enforcement of the Ordinance. If the trial court makes the

finding that Civ.R. 23(B)(2) applies, it must analyze the case law, that for example, indicates

that class actions authorized by Civ.R. 23(B)(2) are inappropriate where the Ohio and United

States Supreme Courts have stated that Civ.R. 23(B)(2)/Fed.R.Civ.P. 23(B)(2) "does not

authorize class certification when each class member would be entitled to an individualized

award of monetary damages." Cullen v. St. Farm Mut. Auto. Ins. Co., 137 Ohio St.3d 373,

2013-Ohio-4733, ¶ 21. In the absence of an analysis, we are unware of the trial court's

reasoning that may otherwise comport with relevant case law once explained by the trial

court.

{¶ 30} Even before Howland, the Ohio Supreme Court expressed the importance of a

rigorous analysis in class certification cases. Hamilton v. Ohio Sav. Bank, 82 Ohio St. 3d 67,

74 (1998). In Hamilton, the Ohio Supreme Court explained that there are compelling reasons

for a trial court to make findings to support its decision. Id. at 70. The Hamilton Court

reasoned that a trial court's failure to make such findings impedes an appellate court's ability

to inquire into whether the relevant factors were properly applied and given appropriate

weight. Id. at 71.

{¶ 31} For these same reasons, we reverse the decision of the trial court and remand

the issue so that the trial court can articulate its rationale within the parameters of Howland

and Hamilton. While this court is aware that a trial court is not required to make formal

findings on every requirement within Civ.R. 23, we nonetheless must be given sufficient

insight as to the trial court's thoroughness of considerations, or the depth of its analysis,
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required by the rule and relevant case law.

{¶ 32} Judgment reversed and the cause is remanded for further proceedings

consistent with this opinion.

RINGLAND, P.J., and HENDRICKSON, J., concur.

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