The opinion
[Cite as Unifund CCR Partners v. Young, 2013-Ohio-4322.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
UNIFUND CCR PARTNERS, )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 11-MA-113
V. )
) OPINION
VICKI L. YOUNG, ET AL., )
)
DEFENDANTS-APPELLANTS. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 10CV110
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Attorney Alan H. Abes
Attorney Elizabeth M. Shaffer
1900 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202
For Defendants-Appellants Attorney Anand N. Misra
3659 Green Road, Suite 100
Beachwood, Ohio 44122
Attorney Robert S. Belovich
9100 South Hills Blvd., Suite 300
Broadview Heights, Ohio 44147
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: September 27, 2013
[Cite as Unifund CCR Partners v. Young, 2013-Ohio-4322.]
DONOFRIO, J.
I. INTRODUCTION
{¶1} Defendant-appellant Vicki Young appeals a decision of the Mahoning
County Common Pleas Court denying her motion for class certification of her
counterclaims against plaintiff-appellee Unifund CCR Partners, et al (Unifund).
Unifund, which is in the business of buying debt in default and then attempting to
collect on it, purchased a credit card debt that Young had incurred on a card issued
by Citi Bank and had fallen into default. Unifund sued Young on the debt and Young
filed numerous counterclaims, including state and federal consumer-protection-act
claims. Young’s counterclaims were based primarily upon its contention that Unifund,
a New York partnership, lacked the capacity to sue because it had failed to file a
partnership certificate as required under Ohio law by R.C. 1777.02 (since repealed)
and that its assignment of collection rights did not comply with R.C. 1319.12.
II. FACTS & PROCEDURAL HISTORY
{¶2} Unifund filed its original complaint against Young in Mahoning County
Court Area No. 2 in Boardman, Ohio on February 8, 2007, seeking judgment for an
alleged credit card debt of over $11,811.66 plus interest and costs. Unifund obtained
a default judgment against Young on June 15, 2007.
{¶3} Nearly two years later, Young then filed and was granted a motion to
vacate the default judgment on April 16, 2009. She subsequently filed a motion for a
more definite statement which the trial court granted on June 9, 2009. In response,
Unifund filed an amended complaint on June 15, 2009, noting that the debt had
grown to $21,472.07 taking into account accrued interest. Young moved to dismiss
the amended complaint. On September 14, 2009, a magistrate granted Young’s
motion to dismiss, finding that Unifund had failed to attach to either its original
complaint or amended complaint an assignment evidencing value or consideration
given for the assignment of Young’s account from Citi Bank to Unifund in compliance
with R.C. 1319.12 (governing collection of assigned debts).
{¶4} Unifund filed objections to the magistrate’s decision and Young
responded. Meanwhile, on October 28, 2009, Young filed a counterclaim purportedly
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as a class action setting forth seven counts: (1) Violations of the federal Fair Debt
Collection Practices Act (FDCPA), 15 U.S.C. 1692 et seq.; (2) Deceptive, Unfair or
Unconscionable Acts in violation of the Ohio Consumer Sales Practices Act
(OCSPA), R.C. 1345.01 et seq.; (3) Deceptive trade practices in violation of the Ohio
Deceptive Trade Practices Act (ODTPA), R.C. 4165.01 et seq.; (4) Fraud; (5) Civil
Conspiracy; (6) Abuse of Process; (7) Defamation. Young’s counterclaim sought
statutory, compensatory, and punitive damages in excess of $25,000.00.
{¶5} On December 29, 2009, the trial court vacated the magistrate’s
September 14, 2009 decision granting Young’s motion to dismiss. The court found
that Unifund’s June 15, 2009 amended complaint and Young’s October 28, 2009
counterclaim each sought damages in an amount exceeding that court’s statutory
jurisdiction. The case was transferred to the Mahoning County Common Pleas Court
in January 2010.
{¶6} Young sought to certify her counterclaim as a class action under Civ.R.
23. Young sought to certify two classes. The first proposed class included each
person named as a defendant in lawsuits filed between February 8, 2005 and
December 12, 2007 in Ohio by Unifund CCR Partners as plaintiff. The second
proposed class included each person named as a defendant in lawsuits filed
between February 8, 2005 and August 6, 2008 in Ohio by Unifund CCR Partners as
plaintiff and, at the time of filing of the lawsuit, the debt alleged in the complaint was
owned by an entity other than Unifund CCR Partners.
{¶7} On April 8, 2011, a magistrate overruled Young’s motion for class
certification. Young filed objections to the magistrate’s decision and Unifund filed a
response. On June 29, 2011, the trial court adopted the magistrate’s decision as its
own, concluding that the classes as proposed by Young failed to meet five of Civ.R.
23’s class certification requirements. First, because it found that “at least” three of her
claims (FDCPA, OCSPA, and defamation) were barred by the applicable statutes of
limitation, the court concluded that Young, as the class representative, was not a
member of the class she proposed to certify. Second, the court concluded that Young
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had failed to establish the existence of an unambiguous, identifiable class. Without
explanation, the court found that the proposed classes were otherwise “wrought with
ambiguity and not readily identifiable.” Third, relying on its conclusion that Young
failed to show an unambiguous, identifiable class, the court found that Young failed
to meet Civ.R. 23(A)’s numerosity requirement – that the classes be composed of a
sufficient number of identifiable individuals to justify class certification. Fourth, based
upon a review of Young’s deposition testimony, the court found that she would not
adequately represent the proposed classes because she lacked “even the most
rudimentary understanding” of the claims she purported to certify as class actions.
Fifth, the court found that Young failed to establish the applicability of any of the three
Civ.R. 23(B) requirements.
{¶8} This appeal followed.
III. STANDARD OF REVIEW
{¶9} Young contends that the standard of review in this case is de novo. She
states that the trial court’s judgment was based on an erroneous interpretation of the
law and that when this happens, “an abuse of discretion standard is not appropriate.”
Citing Medical Mutual of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-4171,
909 N.E.2d 1237, ¶ 13.
{¶10} Unifund contends that the standard of review is abuse of discretion.
Unifund cites the decision in State ex rel. Davis v. Pub. Emps. Ret. Bd. holding that
an appellate court reviews the decision of the trial court to deny a motion for class
certification under the abuse of discretion standard. 111 Ohio St.3d 118, 2006-Ohio-
5339, 855 N.E.2d 444, ¶ 18. Therefore, Unifund alleges, in order to overrule the trial
court, this court must find that the lower court abused its discretion on every one of its
five conclusions.
{¶11} Class certification in Ohio is governed by Civ.R. 23, which is nearly
identical to Fed.R.Civ.P. 23. Citing the need for trial courts to have the ability to
manage their dockets appropriately, the Ohio Supreme Court explained the standard
of review for certifying class actions as abuse of discretion:
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We have consistently held that 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.” * * * In rejecting a de novo standard of review urged in an
appeal from a decision based only on a written record that denied class
certification, we noted that “appellate courts overwhelmingly, if not
universally, give trial courts broad discretion in deciding whether to
certify a class” and that “the appropriateness of applying the abuse-of-
discretion standard in reviewing class action determinations is
grounded not in credibility assessment, but in the trial court’s special
expertise and familiarity with case-management problems and its
inherent power to manage its own docket.
Id.
{¶12} Therefore, the correct standard of review is abuse of discretion. Abuse
of discretion is more than an error of law or judgment; it implies an attitude on the
part of the trial court that is unreasonable, arbitrary, or unconscionable. Marks v. C.P.
Chem. Co., Inc., 31 Ohio St.3d 200, 509 N.E.2d 1249 (1987).
{¶13} “At the certification stage in a class-action lawsuit, a trial court must
undertake a rigorous analysis, which may include probing the underlying merits of the
plaintiff’s claim, but only for the purpose of determining whether the plaintiff has
satisfied the prerequisites of Civ.R. 23.” Stammco, L.L.C. v. United Tel. Co. of Ohio,
Slip Opinion No. 2013-Ohio-3019.
{¶14} A party seeking class certification must meet all the requirements set
forth in Civ.R. 23(A) and (B). The seven requirements of Civ.R. 23 are as follows: (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
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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. Hamilton, 82 Ohio St.3d at 71, 694
N.E.2d 442 (1998).
{¶15} If the proposed class meets the first six prerequisites of Civ.R. 23(A),
the trial court must then determine whether a class action is maintainable under at
least one of the three subsections in Civ.R. 23(B). Warner v. Waste Mgt., Inc., 36
Ohio St.3d 91, 94, 521 N.E.2d 1091 (1988).
{¶16} Under Civ.R. 23(B)(1)(a), a class action is maintainable “if separate
actions would create a risk of inconsistent or varying adjudications with respect to
individual members of the class that would establish incompatible standards of
conduct for the party opposing the class,” and subsection (B)(1)(b) “will permit
certification if separate actions would create a risk of adjudications that would as a
practical matter be dispositive of the claims of non-parties or substantially impair or
impede their ability to protect their interests.” Id. at 95, 521 N.E.2d 1091.
{¶17} Under Civ.R. 23(B)(2), a class action is maintainable if “its primary
application [is] injunctive relief.” Id.
{¶18} And finally, under Civ.R. 23(B)(3), a class action is maintainable if the
plaintiff is seeking damages and the court makes two findings: “that the common
questions predominate over 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.” Id. at 96, 521 N.E.2d 1091.
{¶19} “The failure to meet any one of these prerequisites will defeat a request
for class certification * * *.” Schmidt v. Avco Corp., 15 Ohio St.3d 310, 313, 473
N.E.2d 822 (1984).
IV. STATUTES OF LIMITATION
{¶20} Young’s first assignment of error states:
The trial court erred to the prejudice of defendant-appellant in
concluding that Ms. Young’s claims are time-barred. (R-51, 6/29/2011
JE, at p. 6.)
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{¶21} The trial court denied Young class certification in part because some of
her claims were time-barred by the applicable statutes of limitation. The statute of
limitations is one year for Young’s FDCPA claim and two years for her OCSPA claim.
Unifund initially sued Young on the credit card debt on February 8, 2007, and service
of the summons and complaint was obtained on April 14, 2007. Young did not file her
class action counterclaims until over two and half years later on October 28, 2009.
Consequently, the trial court concluded that her FDCPA and OCSPA claims were
time-barred.
A. Young’s FDCPA Claim & the Relation Back Doctrine
{¶22} Young argues that because her counterclaims were based on Unifund’s
original action, for purposes of the statute of limitations, they should have been
deemed to have been filed on February 8, 2007, the date Unifund initially sued
Young on the credit card debt. Young cites National R.M. Ins. Co. v. Gross, 142 Ohio
St.132, 50 N.E.2d 258 (1943), in support. In Gross, the Ohio Supreme Court held that
“[i]f a counterclaim is not barred by a statute of limitation at the commencement of the
action in which it is pleaded, it does not become so during the pendency of that
action.” Id. at paragraph two of the syllabus. Young’s argument, based on Gross, is
that her counterclaims, for the purpose of the statute of limitations, relate back to the
date that the original action was filed by Unifund.
{¶23} In response, Unifund contends that only compulsory counterclaims
relate back to the filing of an original complaint and that permissive counterclaims do
not. Unifund alleges Young’s counterclaim was permissive and therefore did not
relate back. Unifund cites Armstrong v. Harp Realty Co., Inc., stating that relating
back to an original claim only applies to a counterclaim “which relates to the same
transaction or occurrence asserted in the original claim.” 73 Ohio App.3d 292, 294,
596 N.E.2d 1131 (8th Dist.1991). Unifund argues that it is established that a debtor’s
FDCPA and similar claims are permissive counterclaims to the debt collection action,
citing various federal cases which reason that such lawsuits as Young’s are not
compulsory.
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{¶24} Young counters that her FDCPA counterclaim is a compulsory
counterclaim, citing Sec. Natl. Bank & Trust Co. v. Reynolds, 2d Dist. No. 2007-CA-
66, 2008-Ohio-4145, in support. In Reynolds, a creditor sued debtors to recover the
deficiency on a promissory note that was partially secured by a motor vehicle, and
debtors counterclaimed for violation of the FDCPA. The appellate court found a
FDCPA counterclaim to be compulsory because “[m]any of the same facts and
evidence that would be required to prove [plaintiff] SNB’s claim to recover a
deficiency would be useful to the [defendant-counterclaimant] Reynolds in proving
that SNB violated the Fair Debt Collections Practices Act in attempting to collect that
deficiency.” 2d Dist. No. 2007-CA-66, 2008-Ohio-4145, ¶ 38.
{¶25} “[I]t is well established that counterclaims relating to the same
transaction or occurrence underlying the original claim relate back to the
commencement of the action.” Michigan Millers Mut. Ins. Co. v. Christian, 153 Ohio
App.3d 299, 2003-Ohio-2455, 794 N.E.2d 68, ¶ 16 (10th Dist.), citing Gross, supra. In
other words, “the filing of a complaint by a plaintiff against a defendant tolls the
statute of limitations for counterclaims that arise out of the same transaction or
occurrence underlying the original claim.” Id.
{¶26} “In determining whether claims arise out of the same transaction or
occurrence, courts most frequently utilize the ‘logical relation’ test.” Rettig
Enterprises, Inc. v. Koehler, 68 Ohio St.3d 274, 278-79, 626 N.E.2d 99 (1994). Under
this test, “[a] compulsory counterclaim is one which ‘is logically related to the
opposing party’s claim where separate trials on each of their respective claims would
involve a substantial duplication of effort and time by the parties and the courts.’”
Staff Notes (1970) to Civ.R. 13, quoting Great Lakes Rubber Corp. v. Herbert Cooper
Co., 286 F.2d 631, 634 (C.A.3, 1961).
{¶27} In this instance, Young’s reliance on Reynolds to show that her FDCPA
claims were compulsory is misplaced. State and federal courts have concurrent
jurisdiction over FDCPA claims. Herbst v. Resolution Trust Corp., 66 Ohio St.3d 8,
10, 607 N.E.2d 440, (1993); Byrd v. Homecomings Fin. Network, 407 F.Supp.2d 937,
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943 (N.D.Ill.2005). However, when it comes to determining which law governs the
application of the statute of limitations to a federal claim, federal law prevails. See
Owens v. Okure, 488 U.S. 235, 239, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989)
(limitations period chosen for Section 1983 claims brought in state court should be
consistent with federal law and policy).
{¶28} Federal law, as cited by Unifund, has held that FDCPA’s claims are
permissive, not compulsory counterclaims. For example, in Hart v. Clayton-Parker
and Assocs., Inc., 869 F.Supp. 774, 777 (D. Ariz. 1994), the court observed that
“every published decision directly addressing the issue in this case has found that
FDCPA lawsuits and lawsuits arising from the underlying contractual debts are not
compulsory counterclaims.” Also, an FDCPA claim concerns the method of collecting
the debt, not whether the underlying debt is valid. Thus, a FDCPA claim does not
arise out of the transaction creating the debt.
{¶29} Because Young’s FDCPA claim is a permissive counterclaim and not a
compulsory counterclaim, that claim does not relate back to the date Unifund filed its
original claim on the credit card debt. Furthermore, since Young’s FDCPA
counterclaim does not relate back to Unifund’s original claim on the credit card debt,
the October 28, 2009 filing of that counterclaim extended well beyond the one year
statute of limitations and was thus time-barred.
B. Young’s OCSPA Claim & R.C. 1345.10(C)
{¶30} Young argues that the OCSPA specifically allows a counterclaim to be
asserted without regard to the statute of limitations. She relies on R.C. 1345.10(C),
which provides:
An action under sections 1345.01 to 1345.13 of the Revised
Code may not be brought more than two years after the occurrence of
the violation which is the subject of suit, or more than one year after the
termination of proceedings by the attorney general with respect to the
violation, whichever is later. However, an action under sections 1345.01
to 1345.13 of the Revised Code arising out of the same consumer
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transaction can be used as a counterclaim whenever a supplier sues a
consumer on an obligation arising from the consumer transaction.
(Emphasis added.)
{¶31} R.C. 1345.10(C) does not operate to toll the statute of limitations for
Young’s OCSPA claim for three reasons. First, R.C. 1345.10(C) requires that the
OCSPA counterclaim arise out of the same consumer transaction for which the
supplier suing a consumer on an obligation arising from the consumer transaction.
For reasons similar to those discussed under the section addressing Young’s FDCPA
claim, Young’s OCSPA claim does not arise out of the same transaction for which
Unifund was suing her. Young’s complaint that Unifund filed collection actions against
customers without complying with Ohio’s partnership registration statute is irrelevant
to the credit debt that Young incurred.
{¶32} Second, Young did not comply with the affirmative pleading
requirements for a OCSPA class action claim. In particular, R.C. 1345.09(B) sets
forth a notice requirement which must be met:
The Ohio Consumer Sales Practices Act has specific rules
permitting a class action. Under R.C. 1345.09(B), a class action is
permitted under the Act if the plaintiff alleges that the substantive
provisions of the Act have been violated, and (1) a specific rule or
regulation has been promulgated under R.C. 1345.05 that specifically
characterizes the challenged practice as unfair or deceptive, or (2) an
Ohio state court has found the specific practice either unconscionable
or deceptive in a decision open to public inspection.
Johnson v. Microsoft, 155 Ohio App.3d 626, 2003-Ohio-7153, 802 N.E.2d 712, ¶ 21
(1st Dist.).
{¶33} In this case, Young’s OCSPA counterclaim was based on Unifund
having failed to attach to either its original complaint or amended complaint an
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assignment evidencing value or consideration given for the assignment of Young’s
account from Citi Bank to Unifund in compliance with R.C. 1319.12 (governing
collection of assigned debts) and Unifund lacking standing to sue her and other
similarly situated consumers because it had failed to comply with Ohio’s partnership
registration statute (R.C. 1319.12).
{¶34} Young has failed to cite a specific rule or regulation that has been
promulgated under R.C. 1345.05 that specifically characterizes these practices as
unfair or deceptive. Nor has she cited an Ohio state court that has found either of
these practices either unconscionable or deceptive in a decision open to public
inspection.
{¶35} Since Young’s OCSPA class action counterclaim did not arise out of the
same transaction for which she was being sued by Unifund and Young failed to meet
the affirmative pleading requirements required for a class action counterclaim with
OCSPA, the tolling provision of R.C. 1345.10(C) does not operate to extend the
statute of limitations for that claim and the claim is thus time-barred.
C. Equitable Tolling
{¶36} Next, Young argues that the trial court’s consideration of the merits of
Unifund’s statute of limitations defense in deciding class certification was incorrect,
especially in view of equitable tolling facts clearly alleged in the counterclaim. The
equitable tolling facts to which Young is referring are the allegations she asserted in
her counterclaim that Unifund tried to dissuade her from taking any action in
response to its lawsuit against her to collect the credit card debt. (¶¶ 35-41.)
{¶37} In response, Unifund argues that whether it tried to dissuade Young
from responding to its lawsuit to collect on the debt is irrelevant to Young’s
allegations that it concealed information regarding its partnership name certificate or
assignment of Young’s debts and whether Young relied on that information.
{¶38} The doctrine of equitable tolling can be used to prohibit the inequitable
use of statutes of limitation. Sharp v. Ohio Civ. Rights Comm., 7th Dist. No. 04 MA
116, 2005-Ohio-1119, at ¶ 10. For example, the Ohio Supreme Court has used
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equitable principles to incorporate the discovery rule into the statute of limitations
governing wrongful death lawsuits. See Collins v. Sotka, 81 Ohio St.3d 506, 692
N.E.2d 581 (1998). However, “[e]quitable tolling is only available in compelling cases
which justify a departure from established procedure.” Sharp at ¶ 11. Thus, Ohio law
“requires a showing of actual or constructive fraud by a party in the form of
representations that the statute of limitations was larger than it actually was,
promises of a better settlement if the lawsuit was not filed, or other similar
representations or conduct” before a party can get relief through the doctrine of
equitable tolling. Sabouri v. Ohio Dept. of Job & Family Serv., 145 Ohio App.3d 651,
655, 736 N.E.2d 1238 (10th Dist.2001). This closely resembles federal law, where
the United States Supreme Court has said that the doctrine should be used
“sparingly” and only in “situations where the claimant has actively pursued his judicial
remedies by filing a defective pleading during the statutory period, or where the
complainant has been induced or tricked by his adversary’s misconduct into allowing
the filing deadline to pass.” Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 96, 111
S.Ct. 453, 112 L.Ed.2d 435 (1990).
{¶39} In this case, Unifund did not induce Young into delaying the exercise of
her rights or fraudulently conceal facts that would have prompted her to sue them
earlier, had she only been aware of the alleged violations. While Unifund did not
affirmatively alert Young to any defects in their required state filings, the record bears
no indication that Unifund actively concealed evidence relative to Unifund’s legal
capacity to sue. Whether or not Unifund had made the required filings was readily
ascertainable from a public records search.
D. Class Action Tolling Principles
{¶40} Young claims to have been involved in a similar action seeking class
certification with respect to claims brought by Unifund. (Tr. 51.) No motion for class
certification had been filed. The case, Pamela Ruth v. Unifund CCR Partners, et al,
was filed October 3, 2008, in the Summit County Common Pleas Court (case no. CV-
2008-10-6916).
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{¶41} The Ohio Supreme Court has adopted class action tolling, holding that
“the filing of a class action, whether in Ohio or the federal court systems, tolls the
statute of limitations as to all asserted members of the class who would have been
parties had the suit been permitted to continue as a class action.” Vaccariello v.
Smith & Nephew Richards, Inc., 94 Ohio St.3d 380, 763 N.E.2d 160 (2002). Thus,
Young contends that on the day Ruth was filed, any statute of limitation applicable to
Young’s case would be tolled.
{¶42} In reply, Unifund argues that the trial court was correct in recognizing
that Young’s cause of action accrued no later than the date of service of the
underlying collection complaint against her – April 14, 2007. Unifund agrees with the
trial court’s determination that Young’s FDCPA and defamation claims were
governed by a one-year statute of limitations while her OCSPA claim was governed
by a two-year statute of limitations. Therefore, Unifund argues that Young’s October
28, 2009 counterclaim was time-barred.
{¶43} Young and Unifund have two different theories on when the statute of
limitations begins. The Ohio Supreme Court explained that the statute of limitations is
tolled for asserted members of a class action to later file in state court if a case is
dismissed otherwise than on the merits:
We hold that the filing of a class action, whether in Ohio or the
federal court system, tolls the statute of limitations as to all asserted
members of the class who would have been parties had the suit been
permitted to continue as a class action. * * * Our holding today merely
allows a plaintiff who could have filed suit in Ohio irrespective of the
class action filed in federal court * * * to rely on that class action to
protect her rights in Ohio.
Vaccariello v. Smith & Nephew Richards, Inc., 94 Ohio St.3d 380, 2002-Ohio-892,
763 N.E.2d 160.
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{¶44} However, a United States Supreme Court case cited by Young, on
which Vaccariello relied upon and cited, states that the “commencement of a class
action suspends applicable statute of limitations as to all asserted members of the
class who would have been parties had the suit been permitted to continue as a
class action.” Crown, Cork & Seal Co. v. Parker, 464 U.S. 345, 353-54 (1983). The
key component of that reference is asserted members. The record is devoid of and
Young has presented no evidence that she was asserted as a member of the
proposed class action in the Ruth case. Without being asserted as a class member in
the Ruth case, the Supreme Court’s ruling in Vaccariello has no effect on Young’s
applicable statute of limitations in her claims against Unifund. Due to the absence of
evidence that Young was an asserted member of the Ruth case, the trial court did not
abuse its discretion.
{¶45} Accordingly, Young’s first assignment of error is without merit.
V. CIV.R. 23(A)’S REQUIREMENTS
{¶46} Young’s second assignment of error states:
The trial court erred to the prejudice of defendant-appellant in
concluding that the defined class was ambiguous and not sufficiently
numerous, and that Ms. Young was not a member of the defined class
and not an adequate class representative. (R-51, 6/29/2011 JE, at p. 5-
8.)
A. Unambiguous Identifiable Class
{¶47} Young reiterates the arguments she made under the first assignment of
error concerning the statute of limitations. For the reasons stated therein, they are
equally without merit here also.
B. Numerosity
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{¶48} Young asserts the numerosity requirement has been satisfied citing
Warner v. Waste Management Inc.:
In construing Civ.R. 23(A)(1), known as the numerosity
requirement, courts have not specified numerical limits for the size of a
class action. This determination must be made on a case-by-case
basis. * * * [i]f the class has more than forty people in it, numerosity is
satisfied.
Warner v. Waste Management, Inc., 36 Ohio St.3d 91, 97, 521 N.E.2d 1091 (1988).
Young argues based on the fact that the stipulated class size is over 100, numerosity
is met. Further, Young argues that Unifund did not fulfill their promise of not
challenging numerosity on the basis that Young did not file a motion to compel:
therefore, Unifund must either produce documents requested in discovery or be
estopped from claiming lack of numerosity.
{¶49} Unifund argues that Young ignored the fact that Unifund refused to
stipulate that the proposed class criteria were correct or had legal significance, thus,
even though she named over 100 persons meeting her criteria, this was not
adequate for a class action due to the fact that the proposed date ranges could not
legally be used to certify a class. Unifund argues that they only stipulated to the
factual significance of the data, not any legal significance.
{¶50} A review of the record reveals that there was no stipulation that the
proposed classes met the numerosity requirement. In the stipulation, the parties
agreed “to the number of the proposed class members meeting the criteria” of the
two proposed classes, but did not “stipulate to any other matter pertaining to class
certification, including but not limited to appropriateness of those criteria.” And, since
the date ranges in the stipulation were date ranges for which she could not lawfully
certify a class since she herself was not a member, she could not demonstrate
numerosity.
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C. Adequate Representative
{¶51} Young cites to this court’s ruling that “both the named plaintiffs and the
class counsel must be deemed adequate * * *. A representative is adequate if his
interest is not antagonistic to that of other class members.” Fowler v. Ohio Edison
Co., 7th Dist. No. 07-JE-21, 2008-Ohio-6587, ¶ 62. Young argues that similar to
Fowler there is no conflict between Young and the proposed class members. Young
cites Westgate Ford Truck Sale, Inc. v. Ford Motor Co. as a summary of the
Supreme Court’s stance on adequacy of representation, “[t]he supreme court has
viewed questions of adequacy as being ‘serious discrepancy between the position of
the representative and that of the class * * *.’” 8th Dist. No 86596, 2007-Ohio-4013, ¶
64 quoting Hannah v. Dayton Power & Light Co., 82 Ohio St.3d. 482, 487, 696
N.E.2d 1044 (1998). Young argues that requiring knowledge of legal standards would
never allow an unsophisticated citizen to take the role as a class representative.
Young cites the court in Westgate as stating, “[i]n practical terms, the courts have
noted a growing sense that adequacy questions more appropriately focus not on the
adequacy of the class representative, but on the adequacy of counsel.” Westgate
Ford Truck Sales, 8th Dist. No 86596, 2007-Ohio-4013, ¶ 69. Young stated that
Unifund did not challenge the adequacy of Young’s counsel.
{¶52} Young makes several references to the record to demonstrate her
knowledge of class actions and refusal to accept a deal for only herself:
Q. How would the court decide whose [sic] in the class? I’ll
rephrase. Who are you asking to be in the class?
MR. MISRA: Objection.
A. I know of the class to be people who have common
experiences and common -- common experiences.
***
Q. In other words, at the end of the day what do you want the
court to award you and the class?
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A. I want the outcome to be a fair outcome for all parties
involved.
***
Q. * * * And my question is, if the defendants offered to settle
just with you and gave you everything you want, would you take that
settlement and withdraw from the case?
MR. MISRA: Objection.
A. No, I would not.
Q. Why not?
MR. MISRA: Objection.
A. As I stated earlier it’s not just Vicki Young. It’s not just me
involved.
(Deposition of Vicki Young, pp. 162, 165, 166).
{¶53} Young asserts that she is greatly qualified and complies with standards
for a class representative. Knowledge should be required only for what is necessary
to be a class representative and “certification is denied on this ground only in extreme
cases, such as where the proposed representative’s lack of knowledge shows a lack
of interest in or lack of connection with the proceeding or threatens to prejudice the
class.” Westgate Ford Truck Sales, Inc. v. Ford Motor Co., 8th Dist. No 86596, 2007-
Ohio-4013, ¶¶ 69, 73.
{¶54} In reply, Unifund argues that the trial court did not abuse its discretion in
holding the defined class was ambiguous and not sufficiently numerous, that Young
was not a member of the defined class, and that Young was not an adequate class
representative.
{¶55} Unifund argues that Young’s testimony shows that she was not an
adequate representative of the class. Unifund agrees with Young’s citation of
Hamilton that a class representative is adequate as long as their interests are not
antagonistic to the other members; they argue, however, that Young does not define
antagonistic. Unifund posits that “[i]nterests are antagonistic when there is evidence
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that the representative plaintiffs appear unable to ‘vigorously prosecute the interests
of the class.” Citing Stout v. J.D. Byrider, 228 F.3d 709, 717-18, (6th Cir.2000).
Unifund also cites Westgate, recognizing that a class certification should be denied
for lack of an adequate class representative “where the proposed representative’s
lack of knowledge shows a lack of interest in or lack of connection with the
proceedings or threatens to prejudice the class.” Westgate Ford Truck Sales, Inc. v.
Ford Motor Co., 8th Dist. No. 86596, 2007-Ohio-4013, ¶ 73.
{¶56} Unifund details several instances in Young’s testimony to demonstrate,
in their opinion, that she is not an adequate representative of the class: Young could
not answer whether she called Unifund’s counsel as alleged prior to her affidavit (Tr.
129-135), Young did not know if she reviewed the class counterclaim before her
counsel filed it (Tr. 137), Young did not know if a class had already been certified (Tr.
166), Young did not know whose decision it would be to settle the lawsuit for the
class. (Tr. 169-172).
{¶57} Unifund argues that given the evidence of Young’s deposition, the trial
court was within its discretion to conclude that Young would be antagonistic to the
interests of the group due to her lack of knowledge.
{¶58} In her reply brief, Young argues that Unifund’s position would eliminate
the possibility of a FDCPA protected consumer from serving as a class
representative because all consumers are assumed to be “least sophisticated.”
Young argues she explicitly demonstrated that she places the interest of the class
above her own by rejecting Unifund’s efforts to settle with her alone.
{¶59} The trial court concluded that Young did not belong to the classes she
set up because some of her claims were barred by the statute of limitations. The
court reasoned that Young was required to file on or before April 14, 2009 and thus
her counterclaim filed October 28, 2009 is time-barred. The court also reasoned
because of this she cannot serve as a class representative.
{¶60} Further, the court felt Young would not be an adequate class
representative. The trial court concluded that Young was not held to the same
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required knowledge as her attorney but that she “failed to establish that she has the
most basic understanding of the facts and circumstances underlying [the] claims and
their legal implications.”
{¶61} The trial court was not correct in the standard that it used to judge
Young as a class representative. The Ohio Supreme Court stated:
[A]bsent some serious discrepancy between the position of the
representative and that of the class, the focus at this stage of the
proceedings should properly remain on the essential conforming
characteristics of the defendant’s conduct and the claims arising there
from. Thus, as we stated in Hamilton, supra, “a unique defense will not
destroy typicality or adequacy of representation unless it is ‘so central
to the litigation that it threatens to preoccupy the class representative to
the detriment of the other class members.’ Hamilton v. Ohio Sav. Bank,
82 Ohio St.3d at 78, 694 N.E.2d at 453.
Baughman v. State Farm Mut. Auto. Ins. Co., 88 Ohio St.3d 480, 727 N.E.2d 1265
(2000), ¶ 11.
{¶62} Young was not adverse to the class as a whole; she recognized that the
lawsuit was not about only her interests, but about those of the whole group. There
was no serious discrepancy as required by Baughman. Young obtained legal
assistance to help her navigate through difficult phases of the lawsuit to help her get
what she hoped would be a fair outcome for all parties involved. Therefore, the trial
court abused its discretion in ruling that Young was not an adequate representative
of the class.
{¶63} Apart from the court’s ruling on the adequacy of representation, the
court did not abuse its discretion and, therefore, Young’s second assignment of error
is without merit.
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VI. CIV.R. 23(B)’S REQUIREMENTS
{¶64} Young’s third and fourth assignments of error state, respectively:
The trial court erred to the prejudice of defendant-appellant in
finding that the requirements of Ohio Civil Rule 23(B)(3) were not met
despite undisputed evidence proving on a simultaneous, class-wide
basis, that: (a) plaintiff-appellee has filed lawsuits against all potential
Partnership Class members without meeting the requirements of R.C.
§§ 1777.04 and 1329.10; (b) plaintiff-appellee has filed lawsuits against
all potential Collection Agency Class members without meeting the
requirements of R.C. § 1319.12. (R-51, 6/29/2011 JE, at p. 9-10.)
The trial court erred to the prejudice of defendant-appellant in
concluding that monetary relief predominated and class certification
was improper under Civ.R. 23(B)(2). (R-51, 6/29/2011 JE, at p. 8-9.)
{¶65} In her remaining two assignments of error, Young raises other
challenges to the trial court’s denial of her motion to certify a class in this case,
particularly with regards to whether her proposed class action is maintainable under
one of the three subsections in Civ.R. 23(B). Because we found that the trial court
properly found that the statute of limitations barred some of her claims and that she
failed to establish the numerosity requirement as to all of her claims, and she was
required to establish all of the requirements of Civ.R. 23(A), Young’s remaining
assignments of error have been rendered moot and will not be addressed. See
App.R. 12(A)(1)(c); Martin v. Services Corp. Internatl., 9th Dist. No. 22180, 2005-
Ohio-2403, ¶ 19.
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{¶66} The judgment of the trial court is hereby affirmed.
Waite, J., concurs.
DeGenaro, P.J., concurs.