I am in agreement that under the law 9f Polikoff v. Adam (1993), 67 Ohio St.3d 100, 616 N.E.2d 213; Walters v. TheEnrichment Ctr. of Wishing Well, Inc. (1997), 78 Ohio St.3d 118,676 N.E.2d 890, and Blumenthal v. Medina Supply Co. (1995),100 Ohio App.3d 473, 654 N.E.2d 368, a class certification order pursuant to Civ.R. 23 is not a final appealable order under R.C.2505.02. Therefore I agree that the determination of the trial court that the requirements of Civ.R. 23 have been met is not reviewable at this time.
However, we are dealing with a hybrid class certification order in this matter. Plaintiffs-appellees seek damages against the defendants, alleging in their complaint that the defendants committed unfair, deceptive, and unconscionable acts and practices in violation of R.C. 1345.02 and 1345.03 of the Consumer Sales Practices Act ("CSPA"). The complaint, in addition to seeking declaratory relief from the alleged violation of those sections, also seeks compensation under CSPA for actual losses, statutory damages, treble damages, and attorneys fees. Plaintiffs also filed a motion for class certification under Civ.R. 23 (B) (2) and 23 (B) (3).
Without making any findings on the record, the trial court granted plaintiffs' amended motion for class certification.
The CSPA prohibits unfair or deceptive acts and unconscionable acts or practices by suppliers in consumer transactions. R.C.1345.03 sets forth designated unconscionable sales practices. Plaintiffs' complaint relies primarily upon R.C. 1345.03 (B) (2), which reads as follows:
"Whether the supplier knew at the time the consumer transaction was entered into that the price was substantially in excess of the price at which similar property or services were readily obtainable in similar consumer transactions by like consumers."
R.C. 1345.09 provides for private remedies where there have been alleged violations of the CSPA:
"(A) Where the violation was an act prohibited by section1345.02 or 1345.03 of the Revised Code, the consumer may, in an individual action, rescind the transaction or recover his damages.
"(B) Where the violation was an act or practice declared to be deceptive or unconscionable by rule adopted under division (B) (2) of section 1345.05 of the Revised Code before the consumer transaction on which the action is based, or an act or practice determined by a court of this state to violate section 1345.02 or1345.03 of the Revised Code and committed after the decision containing the *Page 455 determination has been made available for public inspection under division (A) (3) of section 1345.05 of the Revised Code, the consumer may rescind the transaction or recover, but not in a class action, three times the amount of his actual damages or two hundred dollars, whichever is greater, or recover damages or other appropriate relief in a class action under Civil Rule 23, as amended."
The underlying cause of action being pursued by the plaintiffs has been specifically provided for by statute, and the remedies found therein, including treble damages and attorney fees in an individual action, and other appropriate relief and attorney fees in a class action, were not available in an action at common law.
The appellees argue that this case is indistinguishable fromPolikoff because here too the question whether the action meets the requirements of Civ.R. 23 will be preserved throughout the litigation. However, unlike the circumstances in Polikoff andBlumenthal, a plaintiffs right to seek money damages under the CSPA is conferred by a statute that requires that certain conditions be present in order to bring the action, whether an individual action or a class action. R.C. 1345.09 seems to require the trial court to determine whether the complaint falls within subsection (A) as an individual action, or within subsection (B) in that there has been an alleged act or practice that has been declared to be deceptive or unconscionable by rule adopted under R.C. 1345.05 (B) (2), or an act or practice determined by a court of this state to violate R.C. 1345.02 and1345.03 and committed after the decision has been made available for public inspection under R.C. 1345, 05 (A) (3).
It is clear that these sections of the Act make a substantive distinction between pursuing remedies in an individual action and pursuing remedies in a class action. Consequently, before a class action for damages can be certified under the CSPA, a trial court must not only find that the procedural requirements of Civ.R. 23 are satisfied, but first find that the substantive requirements of R.C. 1345.09 (B) are satisfied, including the requirement that the conduct at issue has been found to be deceptive or unreasonable, either by rule or by court decision made public by the Attorney General per R.C. 1345.05 (A) (3).
The trial court, in review, of the material before it when class certification is sought in a CSPA action, may find that the conditions within R.C. 1345.05 (A) (3) have been met and then proceed to a determination of the class action pursuant to Civ.R. 23. or the trial court may find that the conditions of R.C.1345.05 (A) (3) have not been met. In that event the court may hold that the action cannot proceed, and enter an order dismissing the action.
It should be pointed out here that the enactment of CSPA has not limited the remedies available to these plaintiffs, in that R.C. 1345.13 specifically provides: "The remedies in Sections1345.01 to 1345.13 of the Revised Code are in addition *Page 456 to remedies otherwise available for the same conduct under state or local law." I believe that this section adds further support to the argument that the sections under consideration here present a special statutory proceeding.
Based upon the foregoing, in my view, a motion to certify a class action in a suit for money damages under the CSPA is in the nature of a special proceeding that is conferred solely by statute, and therefore the order granting certification is subject to appellate review, at least as to the jurisdictional requirements set forth within R.C. Chapter 1345. The trial court having made no specific findings here, I would reverse and remand this matter.