Strickler v. First Ohio Banc & Lending, Inc.

[Cite as Strickler v. First Ohio Banc & Lending, Inc., 2018-Ohio-3835.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )

LYNN A. STRICKLER, et al. C.A. No. 17CA011117

Appellees

v. APPEAL FROM JUDGMENT
ENTERED IN THE
FIRST OHIO BANC & LENDING, INC., et COURT OF COMMON PLEAS
al. COUNTY OF LORAIN, OHIO
CASE No. 07-CV-151964
Appellants

DECISION AND JOURNAL ENTRY

Dated: September 24, 2018

SCHAFER, Judge.

{¶1} Defendant-Appellant, First Ohio Banc & Lending, Inc. (“First Ohio”), appeals all

trial court decisions rendered final and appealable by virtue of the March 7, 2017 judgment entry

of the Lorain County Court of Common Pleas. This Court affirms.

I.

{¶2} Plaintiff-Appellees, Lynn Strickler and Keith Krese (“Strickler and Krese”)

commenced this action on July 27, 2007. The lengthy and complex procedural history involves

individual and class action claims against First Ohio and other named Defendants. Relevant to

this appeal is the class action claim alleging First Ohio’s violation of the Ohio Mortgage Broker

Act and the judgment entered thereon. Strickler and Krese stand as class-action representatives

of the class certified as “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.” The March 7,

2017 judgment entry awarded damages against First Ohio in favor of the class.
 2

{¶3} This matter first came before this Court for review of the trial court’s denial of

First Ohio’s motion to stay proceedings pending arbitration. Strickler v. First Ohio Banc &

Lending, Inc., 9th Dist. Nos. 08CA009416, 08CA009460, 2009-Ohio-1422 (“Strickler I”). We

affirmed the trial court’s judgment on March 30, 2009. Id at ¶ 15. The Supreme Court of Ohio

declined jurisdiction over First Ohio’s attempted appeal. Strickler v. First Ohio Banc &

Lending, Inc., 122 Ohio St.3d 1503, 2009-Ohio-4233.

{¶4} Thereafter, the parties stipulated to submit two substantive issues for the trial

court to determine prior to considering the class certification issue. Ruling on the parties’

competing motions for summary judgment, the trial court granted partial summary judgment,

concluding that (1) First Ohio did violate former R.C. 1322.0621 because its Mortgage Loan

Origination Disclosure Statement forms did not comply with the content requirements; and (2)

First Ohio was liable for the violations under former R.C. 1322.112. The trial court also found

that First Ohio was not entitled to protection under the safe harbor provision of former R.C.

1322.11(E). Further, the trial court stated that former R.C. 1322.11 provides for a minimum

damage award for a violation of former R.C. 1322.062, and reasoned that “[s]ome amount of

damages must be assumed in order to effectuate the purpose of the statute to provide disclosure

of necessary information to the consumer.”

{¶5} Thereafter, Strickler and Krese moved for class certification and the parties

briefed the issues extensively. The trial court issued a journal entry on January 13, 2012,

granting the motion certifying the class action pursuant to Civ.R. 23(B)(1), (2), and (3). First

Ohio appealed the trial court’s judgment granting the class certification and, on March 29, 2013,

1
R.C. 1322.062 was effective until March 23, 2018, but has been repealed by 2017 H.B. 199.
2
R.C. 1322.11 was effective until March 23, 2018. It was been renumbered to R.C. 1322.52 by
2017 H.B. 199.
 3

this Court issued a decision affirming the trial court’s judgment. Strickler v. First Ohio Banc &

Lending, Inc., 9th Dist. Lorain No. 12CA010178, 2013-Ohio-1221 (“Strickler II”).

{¶6} In Strickler II, First Ohio presented several arguments aiming to establish that

certification of the class was not proper. Considering First Ohio’s arguments regarding liability,

the existence of a common injury, and proof of damages, we acknowledged that the trial court,

upon stipulation of the parties, made specific substantive rulings. We explained the trial court

was not required to make substantive rulings on the merits of the claims in deciding the issues of

class certification, therefore, the scope of our review was limited to determining the

appropriateness of the trial court’s decision to grant class action certification and whether the

prerequisites of Civ.R. 23 were met.

{¶7} Declining to consider any purely merit-based arguments challenging the trial

court’s substantive rulings, we concluded that First Ohio did not establish that the trial court

erred in deciding the issues of standing and commonality for the purposes of certification. Id. at

¶ 11. Upon consideration of First Ohio’s additional arguments alleging error in granting class

certification, we determined that the trial court sufficiently engaged in the requisite rigorous

analysis of the class action requirements. Id. at ¶ 21. We concluded that the trial court properly

found that the predominance and superiority requirements for class certification were met and

affirmed the trial court’s certification of the class action under Civ.R. 23(B)(3). Id. at ¶ 22.

{¶8} First Ohio then appealed this Court’s decision affirming the trial court’s judgment

certifying the class. While that matter was still pending, the Supreme Court of Ohio issued a

decision in Stammco, L.L.C. v. United Tel. Co. of Ohio, 136 Ohio St.3d 231, 2013-Ohio-3019,

which First Ohio believed to bear directly upon the class certification issues raised in this matter.

However, the Supreme Court did not accept jurisdiction of that appeal. Strickler v. First Ohio
 4

Banc & Lending, Inc., 137 Ohio St.3d 1410, 2013-Ohio-5096 (motion to reconsider denied at

137 Ohio St. 3d 1477, 2014-Ohio-176).

{¶9} On September 24, 2015, First Ohio moved the trial court to decertify the class.

First Ohio argued that decertification was necessary in light of the Supreme Court of Ohio’s

decisions in Stammco, and a subsequently decided case: Felix v. Ganley Chevrolet, Inc., 145

Ohio St.3d 329, 2015-Ohio-3430. The trial court determined that decertification was

unnecessary and issued a journal entry denying the motion.

{¶10} First Ohio again appealed, contending the trial court erred when it denied its

motion to decertify. Strickler v. First Ohio Banc & Lending, Inc., 9th Dist. Lorain No.

15CA010893, 2016-Ohio-5876 (“Strickler III”). First Ohio reasoned that this Court had

jurisdiction to consider the order denying decertification by arguing that “new circumstances”

had arisen—the Supreme Court’s decisions in Stammco and Felix—subsequent to the entry of

the initial certification order. We recognized that the trial court’s initial certification order had

been final and appealable pursuant to R.C. 2505.02(B)(5), and our affirmance of that order

effectively determined that this matter would be maintained as a class action. Strickler III, at ¶

13. We distinguished, however, that the motion to decertify was essentially First Ohio’s request

for “the trial court to reconsider the matter three years later in light of new case law.” Id.

Accordingly, we determined that because the order denying First Ohio’s “motion to decertify the

class was not the order certifying the class for the purposes of R.C. 2505.02(B)(5), the order

[was] not a final, appealable order, and the instant appeal therefrom must be dismissed.” Id.

{¶11} The matter proceeded in the trial court. The parties filed cross-motions for

summary judgment and the trial court granted summary judgment in favor of the class in the
 5

March 7, 2017, judgment entry. First Ohio timely filed this current appeal, raising two

assignments of error for our review.

II.

Assignment of Error I

The trial court erred in certifying the class and/or in failing to decertify the
class based on the plaintiffs’ failure to establish the existence of an “injury
caused by a violation” as mandated under R.C. 1322.11.

{¶12} In the first assignment of error, First Ohio seeks to revisit the issue of class

certification. In its merit brief, First Ohio vaguely framed the argument assigning error, and

omitted any mention of the appropriate standard of review. First Ohio does not clearly identify

the assigned errors in the record, but seems to assume that the trial court’s order certifying the

class, and our decision in Strickler II affirming certification, are subject to reconsideration in this

appeal. We must, as a threshold matter, clarify the scope of our review.

A. Certification of the Class

{¶13} As discussed above, we affirmed the trial court’s decision to grant the motion to

certify the class action in Strickler II. “[W]hen the trial court renders a decision on a particular

issue, and that decision is both final and appealable, then following such appeal or waiver of

appeal, the aggrieved party is precluded from resubmitting this same issue to the trial court in an

effort to obtain a different result.” Rehoreg v. Stoneco, Inc., 9th Dist. Lorain No. 04CA008481,

2005-Ohio-12, ¶ 10. The law of the case doctrine holds that the decision of a reviewing court is

the law within the reviewed case for all legal questions and for all subsequent proceedings in that

case. Id. quoting State ex rel. Sharif v. McDonnell, 91 Ohio St.3d 46, 47 (2001). The purpose of

the doctrine is to “ensure consistency of results in a case, to avoid endless litigation by settling
 6

the issues, and to preserve the structure of superior and inferior courts as designed by the Ohio

Constitution.” Id. quoting State ex rel. Sharif.

{¶14} “The doctrine of the law of the case also requires appellate courts to follow their

prior rulings on subsequent appeals.” Wears v. Motorists Mut. Ins. Co., 9th Dist. Summit No.

22027, 2005-Ohio-341, ¶ 17. An exception to the doctrine may apply if an appellate court, as the

only means to avoid injustice, deems it necessary to reexamine the law of the case it has itself

previously created. Weaver v. Motorists Mut. Ins. Co., 68 Ohio App.3d 547, 549 (2d Dist.1990),

citing Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984). “However, such reexaminations must not be

undertaken lightly by an appellate court, nor encouraged as a common course of conduct for

unsuccessful litigants.” Id.

{¶15} First Ohio has not specifically addressed the issue or argued any foundation for

disregarding the law of the case doctrine to reexamine our prior decision in Strickler II. We

conclude that, because this Court has already reviewed and affirmed the trial court’s initial

certification of the class, neither the trial court’s initial decision nor our affirmance thereof are

the proper subject of review in this appeal. However, subsequent to our affirmance of the class

certification, First Ohio prompted reconsideration of the issue in the trial court when it filed its

motion to decertify, which the trial court ultimately rejected. Therefore, our review is limited to

a determination of whether the trial court erred in declining to decertify the class.

B. Motion to Decertify

{¶16} First Ohio’s arguments in support of its motion to decertify the class were

premised upon First Ohio’s contention that Strickler and Krese had “not established the existence

of any actual ‘injury’ necessary to participate in a class action under R.C. 1322.11.” Despite this

argument having been previously rejected by the trial court upon certifying the class and by this
 7

Court affirming certification, First Ohio argued that the “new controlling case law” in the

Stammco and Felix decisions supported its position that the “loss of information” under R.C.

1322.062 is not sufficient injury to participate in the statutory remedy of R.C. 1322.11. See

Stammco, 136 Ohio St.3d 231 (decided July 16, 2013), and Felix, 145 Ohio St.3d 329 (decided

August 27, 2015).

{¶17} First Ohio now urges that “[t]he unique circumstances surrounding [the] original

certification of this class, this Court’s prior review of the class certification[,] and Ohio Supreme

Court jurisprudence issued after this Court’s prior review compel this Court[’]s consideration of

this issue.” First Ohio maintains that the Stammco and Felix decisions directly impact the class

certification in this matter, and render the trial court’s basis for certifying the class invalid under

Ohio Law.

{¶18} Generally, the law of the case doctrine would preclude the trial court from

exercising discretion to revisit the issue of certification after affirmance on appeal. See Rehoreg

at ¶12. However, “extraordinary circumstances, such as an intervening decision by [a superior

court]” create an exception to the doctrine. Nolan, 11 Ohio St.3d 1, at paragraph one of the

syllabus. To determine whether it would even be permissible for the trial court to reconsider

class certification, we examine whether Stammco or Felix qualify as “intervening decisions” that

would present the extraordinary circumstances required to permit the trial court to disregard the

law of the case in this matter. An “intervening decision” must: (1) be issued by a superior court,

(2) be decided between resolution of the first and second appeals, and (3) state a rule of law that

is contrary to the earlier mandate of the appellate court. See State ex rel. Crandall, Pheils &

Wisniewski v. DeCessna, 73 Ohio St.3d 180, 183 (1995).
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C. “Intervening Decision” Analysis

1. Stammco v. United Tel. Co. of Ohio

{¶19} In Stammco the Supreme Court of Ohio accepted review of a Sixth District Court

of Appeals decision to consider whether a trial court abuses its discretion by evaluating the

merits of a plaintiff’s claim in denying class certification. Stammco, 136 Ohio St.3d at ¶ 2. The

Court held that “[a]t the certification stage in a class-action law suit, a trial court must undertake

a rigorous analysis, which may include probing the underlying merits of the plaintiffs’ claims,

but only for the purpose of determining whether the plaintiff has satisfied the prerequisites of

Civ.R. 23.” (Emphasis added.) Id. at syllabus (following Wal-Mart Stores, Inc. v. Dukes, 564

U.S. 338 (2011) and Amgen Inc. v. Connecticut Retirement Plans & Trust Funds, 568 U.S. 455

(2013).) “However, a trial court’s consideration of the underlying merits of a plaintiff’s claim at

the certification stage is not unfettered.” Id. at ¶ 33. “‘Merits questions may be considered to the

extent—but only to the extent—that they are relevant to determining whether the [Civ.R. 23]

prerequisites for class certification are satisfied.’” Id. quoting Amgen at 466, citing Dukes at

351, fn. 6.

{¶20} The Stammco decision did not alter the existing law or impose any new obligation

regarding the trial court’s review of the merits of the underlying claim to certify a class—rather it

clarified that trial courts are not prohibited from undertaking such a review to the extent

necessary to make a Civ.R. 23 determination. In the case at bar, there was no discernable issue

involving the trial court exceeding the permissible bounds of inquiry to consider the merits of the

claim in deciding the issue of certification. Furthermore, First Ohio has not adequately

articulated how the holding in Stammco is relevant to the issues of injury and damages in the

instant matter. Therefore, we conclude that First Ohio’s reliance on Stammco as an intervening
 9

decision is misplaced3, and the trial court did not err in declining to decertify the Class in light of

its holding.

2. Felix v. Ganley

{¶21} In Felix the Supreme Court of Ohio considered “whether all members of a

plaintiff class alleging violations of the Ohio Consumer Sales Practices Act (“OCSPA”), R.C.

Chapter 1345, must have suffered injuries as a result of the conduct challenged in the suit.”

Felix, 145 Ohio St.3d at ¶ 1. Interpreting former R.C. 1345.09, the Supreme Court stated that,

while class actions are authorized under the OCSPA, the class recovery is limited to actual

damages. Id. at ¶ 29. Viewing the Civ.R. 23 requirements in light of the fact that “[p]laintiffs

bringing OCSPA class-action suits must allege and prove that actual damages were proximately

caused by the defendant’s conduct,” the Court, in this context, indicated that “[p]roof of actual

damages is required before a court may properly certify a class action.” Id. at ¶ 31.

{¶22} In its analysis, the Supreme Court discussed that, when evaluating damages in a

predominance inquiry, the amount of damages is an individual question that does not defeat class

certification; however, if a proposed class would require the court to determine the

individualized fact of damages—or existence of an injury—the predominance requirement is not

met. Id. at ¶ 34. “If the class plaintiff fails to establish that all of the class members were

damaged (notwithstanding questions regarding the individual damages calculations for each class

member), there is no showing of predominance under Civ.R. 23(b)(3).” Id. at ¶ 35. The Court

then held “that all members of a class in class action litigation alleging violations of the OCSPA

must have suffered injury as a result of the conduct challenged in the suit.” Id. at ¶ 36.

3
The Stammco decision was issued prior to the Supreme Court declining jurisdiction over the
appeal of our decision affirming certification in Strickler II, thus the Supreme Court had the opportunity
to consider the relevance of Stammco before making that decision.
 10

{¶23} The issue in Felix arose “at the intersection of class-action suits and the OCSPA.”

Felix, 145 Ohio St.3d at ¶ 23. The Felix court determined, based on the class action damages

limitation of the OCSPA, that the class failed because there was no showing that all class

members suffered injury and sustained damages as a result of the conduct violating the OCSPA.

Id. at ¶ 37-40. Our review of Felix leads us to conclude that it did not announce a new rule of

law, but rather clarified the law respecting class action damages under OCSPA. Moreover, we

are not persuaded that the Supreme Court intended to extend its holding in Felix to apply, not

only to OCSPA class actions, but also to other types of class actions.

{¶24} First Ohio has not presented any convincing argument to support its contention

that Felix is applicable to the claim in this action. In this case, the class brought this claim under

the Ohio Mortgage Broker Act, which, most significantly, does not contain any similar provision

to OCSPA language limiting recovery of damages in a class action. See former R.C. 1322.11.

We conclude, therefore, that Felix does not state a rule of law contrary to our earlier mandate

and, therefore, is not an intervening decision. See DeCessna, 73 Ohio St. 3d at 183. Thus, the

trial court did not err in declining to decertify the class based on this decision.

3. Conclusion

{¶25} Neither Felix nor Stammco stated a rule of law contrary to our earlier mandate in

Strickler II. Therefore, neither constitutes an “intervening decision” sufficient to create an

exception to the law of the case doctrine. Id. Accordingly, the trial court was without discretion

to revisit the issue of certification as affirmed by this Court in the prior appeal.

{¶26} Furthermore, in the case at bar, the trial court considered and rejected, prior to

certifying the class, First Ohio’s argument that proof of injury requires more than the loss of

statutorily mandated information. The trial court later revisited its initial substantive rulings on
 11

the issue and, after certification, permitted additional briefing to determine whether those rulings

should expressly apply to the certified class. The trial court then ruled that the “prior substantive

decision, that found that [First Ohio] violated certain statutory requirements and that [First Ohio]

was liable to the named Plaintiffs for statutory damages, shall be applied to all the class

members.” Ultimately, the trial court decided the merits of the claim, and rendered judgment

against First Ohio and in favor of the class. First Ohio has not challenged the merits of the trial

court’s subsequent substantive decisions regarding liability and damages.

{¶27} Because we have determined that the law of the case doctrine applied without

exception, we further conclude that the trial court did not err in denying the motion to decertify.

{¶28} First Ohio’s first assignment of error is overruled.

Assignment of Error II

The trial court erred, contrary to law, in finding that the printed fee
calculation statement in First Ohio’s disclosure form was deficient under
R.C. 1322.11(A)(1)(f) [sic].

{¶29} In this assignment of error, First Ohio cites a non-existent subsection of former

R.C. 1322.114 to contend that the trial court erred by finding “the printed fee calculation

statement” in a disclosure form deficient. However, a review of the very limited discussion of

the issue reveals that First Ohio’s argument does not align with the stated assignment of error.

First Ohio instead attempts to argue that the trial court erred in determining that First Ohio was

not entitled to safe harbor provisions of former R.C. 1322.11(E), which stated:

No person shall be deemed to violate sections 1322.01 to 1322.12 of the Revised
Code with respect to any act taken or omission made in reliance on a written
notice, written interpretation, or written report from the superintendent, unless
there is a subsequent amendment to those sections, or rules promulgated
thereunder, that affects the superintendent’s notice, interpretation, or report.

4
Although former R.C. 1322.11 did not include a subsection “(A)(1)(f)”, First Ohio might have
intended to cite former R.C. 1322.062(A)(1)(f).
 12

{¶30} First Ohio asserts that “the deficiency identified by the trial court in support of

class certification was premised on the printed ‘fee calculation’ statement” on First Ohio forms.

First Ohio mentions forms “F0000349, F0000351, and F0000353” but does not clarify the

relevance of these three particular forms, and fails to indicate where such forms may be located

in the record. See App.R. 12(A)(2). Presumably in reference to those forms, First Ohio states:

“this language came verbatim from that as contained on the state exemplar form.”

Unfortunately, First Ohio fails to identify the actual language at issue in the forms, and further

neglects to specify what language from the “state exemplar form” it seeks to compare to the

language in its own forms.

{¶31} First Ohio contends that, despite its reliance on “language contained in the

exemplar form,” the trial court determined that First Ohio was not entitled to safe harbor

protection under former R.C. 1322.11(E). Then, quoting a paragraph from the trial court’s

January 13, 2011 entry5, First Ohio asserts that trial court reached an incorrect conclusion

regarding safe harbor based on the reasoning contained therein. First Ohio then makes the

unsupported, conclusory proclamation that it is “entitled to Safe Harbor protection based upon its

reliance on the printed ‘fee calculation’ language contained on the State Exemplar Form.”

{¶32} It is also not clear from the brief whether First Ohio ever raised to the trial court

the argument it is attempting to make in this appeal. Throughout this case the trial court has

issued multiple rulings, in some instances entertaining motions to reconsider, on the substantive

issues related to the language of the disclosure forms, liability for violations of former R.C.

1322.062, and the applicability of safe harbor provisions. However, aside from referencing the

5
First Ohio does not discuss the significance of this January 13, 2011 entry. Our review reveals
that the entry addresses a second motion for reconsideration relative to the trial court’s journal entries of
September 13, 2010 and November 9, 2010.
 13

January 13, 2011 entry—which was issued prior to certification of the class and prior to the post-

certification summary judgment decision reaffirming the trial court’s prior rulings on liability—

First Ohio has failed to present any argument giving context to the assigned error, relating the

facts and procedural history of this case to the assigned error, or even asserting an applicable

standard of review.

{¶33} Otherwise put, First Ohio has failed to comply with App.R. 16(A)(6), which

requires that First Ohio’s brief include “[a] statement of facts relevant to the assignments of error

presented for review, with appropriate references to the record[.]” Further, First Ohio’s woefully

underdeveloped argument does not accurately relate to the assigned error and also fails to

comport with App.R. 16(A)(7). Pursuant to that rule, an appellant’s brief must include “[a]n

argument containing the contentions of the appellant with respect to each assignment of error

presented for review and the reasons in support of the contentions, with citations to the

authorities, statutes, and parts of the record on which appellant relies.” App.R. 16(A)(7).

{¶34} First Ohio bears the burden of affirmatively demonstrating the assigned error

through a properly supported argument with citations to legal authority and facts in the record,

and it is not the function of this court to construct an argument on First Ohio’s behalf. Ohio

Edison Co. v. Williams, 9th Dist. Summit No. 23530, 2007-Ohio-5028, ¶ 9. We conclude that

First Ohio has not met this burden; therefore, we are unable to determine whether the trial court

committed any reversible error. Pursuant to App.R. 12(A)(2) and App.R. 16(A), we disregard

this assignment of error based on the deficiencies outlined above and the failure to comply with

the appellate rules. See id. at ¶ 10.

{¶35} First Ohio’s second assignment of error is overruled.

III.
 14

{¶36} First Ohio’s assignments of error are overruled. The decision of the Lorain

County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

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 Appellant.

JULIE A. SCHAFER
FOR THE COURT

CARR, J.
CONCURS IN JUDGMENT ONLY.

HENSAL, P. J.
CONCURRING IN PART, AND DISSENTING IN PART.
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{¶37} I concur with the majority’s resolution of the second assignment of error. I

disagree, however, with the majority’s resolution of the first assignment of error. Specifically, I

disagree with the lead opinion’s reliance on Strickler v. First Ohio Banc & Lending, Inc., 9th

Dist. Lorain No. 12CA010178, 2013-Ohio-1221 (“Strickler II”), for purposes of holding that the

law-of-the-case doctrine precludes this Court from reviewing the original class certification, and

that it precluded the trial court from revisiting the certification issue. Given the fact that this

Court declined to address certain merits-based issues in Strickler II that First Ohio has again

raised on appeal, I would hold that the law-of-the-case doctrine is inapplicable. Id. at ¶ 22. I,

therefore, respectfully concur in part, and dissent in part.

APPEARANCES:

CLIFFORD C. MASCH, BRIAN D. SULLIVAN and ANTHONY CATANZARITE, Attorneys
at Law, for Appellant.

THOMAS R. THEADO, Attorney at Law, for Appellee.

JACK MALICKI, Attorney at Law, for Appellee.