# Dunkelman v. Cincinnati Bengals > Ohio Court of Appeals · December 22, 2006 · 170 Ohio App. 3d 224 URL: https://www.frixlaw.com/law-library/cases/3727929 ## Case - **Full name:** DUNKELMAN Et Al., Appellees, v. CINCINNATI BENGALS, Appellant - **Court:** Ohio Court of Appeals - **Decided:** December 22, 2006 - **Citations:** 170 Ohio App. 3d 224; 2006 Ohio 6825; 866 N.E.2d 576 - **Precedential status:** Published - **Opinion:** Dissent by Gorman - **Judges:** Sundermann, Painter, Gorman - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3727929 ## How later opinions describe it (automated extraction) - reversing the trial court’s order 12 OHIO FIRST DISTRICT COURT OF APPEALS certifying the class because “the trial court’s entry * * * is devoid of any rationale, yet alone any rigorous analysis, relating to any of the prerequisites for class certification. Given the inadequacy… ## Opinion text Gorman, Presiding Judge, dissenting. I. Class Certification {¶ 25} One aspect of this case is now certain: The Supreme Court’s opinion in Marrone, 110 Ohio St.3d 5 , 2006-Ohio-2869 , 850 N.E.2d 31 , sounded the death knell for the Dunkelman plaintiffs’ claim under the OCSPA. Just as certain, in my opinion, is that a class should not be certified for the Dunkelman plaintiffs’ four remaining claims. {¶ 26} I adhere to my dissent in Robinson v. Johnston Coca-Cola Bottling Group, Inc., 153 Ohio App.3d 764 , 2003-Ohio-4417 , 796 N.E.2d 1 , and the reasons why the trial court’s order granting class certification need not include a “rigorous analysis” of the Civ.R. 23 class-action requirements as a prerequisite to appellate review. This case reinforces my point. The record is replete with evidence upon which a reviewing court can unequivocally determine that the trial court abused its discretion in granting class certification. {¶ 27} As a prerequisite to class certification, class representatives must “fairly and adequately protect the interests of the class.” See Civ.R. 23(A)(4). The putative class representatives in this case cannot fairly or adequately represent the broad class of fans, exceeding 2,200 individuals, who purchased their COAs and season tickets from the Club Seat Brochure, because none are current *233 season-ticket holders. The putative class representatives — all former club-seat season-ticket holders — do not wish to be bound by the six-, eight-, or ten-year lease terms they initially selected from the Club Seat Brochure. By contrast, current club-seat season-ticket holders want the terms to be binding because the terms include season-ticket price protection. This fundamental conflict between the named representatives and the putative class members is fatal to class certification of all claims in the Dunkelman plaintiffs’ complaint. See In re Kroger Co. Shareholders Litigation (1990), 70 Ohio App.3d 52 , 590 N.E.2d 391 , citing United Indep. Flight Officers, Inc. v. United Air Lines, Inc. (C.A.7, 1985), 756 F.2d 1274 ; Berman v. Narragansett Racing Assn., Inc. (C.A.1, 1969), 414 F.2d 311 . II. Relief Granted to Unidentified Plaintiffs {¶ 28} It is also troubling that the majority has decided to address the declaratory-relief claim without knowing whether a class even exists. None of the putative class members certified under Civ.R. 23(B)(3) have been given notice of the action, an opportunity to enter an appearance through counsel, or an opportunity to opt out as is provided by Civ.R. 23(C)(2). While I appreciate that only the Civ.R.23 (B)(2) claim, i.e., the one for declaratory and injunctive relief, was ruled on by the trial court, resolution of this claim is central to determining the merits of the remaining claims. Addressing the merits of the Dunkelman plaintiffs’ claims as the majority has done before knowing whether a class exists violates the due-process rights of the Civ.R. 23(B)(3) putative class members — if this class does indeed exist. See, generally, Mullane v. Cent. Hanover Bank & Trust Co. (1950), 339 U.S. 306 , 70 S.Ct. 652 , 94 L.Ed. 865 . The effect of the majority opinion is to grant relief to unidentified plaintiffs and to bind putative class members without following proper procedural safeguards. III. The Club Seat Brochure {¶ 29} While I disagree -with the majority’s decision to address the merits of the declaratory-relief claim, I am nevertheless compelled to comment on what I view as inaccuracies in its analysis. A. The COA and the Lease Term are Two Different Things {¶ 30} Permanent seat licenses are a method that several NFL franchises and government authorities have used to raise the initial capital for financing stadium construction. Typically, a permanent seat license grants the buyer ownership of a specific seat location in the stadium and a continuing right to purchase season tickets for that seat under terms agreed to by the team and the purchaser. See Reese, Nagel, and Southall, National Football League Ticket Transfer Policies: Legal and Policy Issues (2004), 14 J.Legal Aspects of Sport 163, 174-175. The *234 Bengals’ permanent seat license at issue here, the “Charter Ownership Agreement” or “COA,” offered its owner the right to buy tickets in a preferred location in one of three club-seat areas in Paul Brown Stadium, together with membership in the adjacent club-level restaurant and lounges not available to COA owners in general-admission locations. {¶ 31} Ground had not even been broken for Paul Brown Stadium when the Bengals started selling COAs on behalf of Hamilton County, as evidenced by Paragraph 10 of the Charter Ownership Rules and Regulations: “All COA payments will be held in an escrow account until they are deposited to the account of the County of Hamilton, Ohio. All proceeds from the sale of COA will go solely to cover costs associated with constructing the new Bengals Stadium. In the event the new stadium is not constructed, the deposit amount will be returned to the original purchaser.” In other words, the COA — the location and the right to purchase tickets — existed separately from the lease-term options for the purchase of season tickets listed in the Club Seat Brochure. {¶ 32} The length of the lease-term options was set forth in the Club Seat Brochure in a section plainly entitled “Lease Terms.” A COA owner had a right to lock in the cost of club-level seat tickets by checking one of three options on the order form, indicating a choice of a six-, eight-, or ten-year lease term. The six-year lease term included a one-year price freeze with a five-percent price cap for the remaining seasons. The eight-year lease term included a two-year price freeze with a four-percent price cap for the remaining seasons. The ten-year lease term included a three-year price freeze with a three-percent price cap for the remaining seasons. When the Dunkelman plaintiffs accepted one of these three lease-term options, they were under an obligation to buy season tickets for the term of years selected. In return, they received guaranteed price protection as determined by the length of the lease term they selected. B. Paragraph 12 {¶ 33} The majority’s conclusion that Paragraph 12 of the Club Seat Brochure gave plaintiffs “the unilateral right to cancel their club-seat licenses by not purchasing club-seat tickets” ignores the obvious distinction between the COA and the lease term. It is beyond debate that the plain language of the Club Seat Brochure provided that Paragraph 12 applied only to the terms of the COA. The purpose of Paragraph 12 was to ensure that those COA owners who breached their lease-term obligation could not retain their COAs. Without this language, a COA owner could retain the COA after a breach, and the Bengals would have had no authority to sell tickets in that location. Paragraph 12 was intended to protect the Bengals’ business interests. It was not the exclusive remedy for a breach of *235 the lease term and did not preclude the Bengals from attempting to enforce the terms of the lease. {¶ 34} The majority maintains that Paragraph 12 allowed subscribers the opportunity for the highest savings from the Bengals, i.e., the ten-year-lease price protection, without any corresponding obligation to perform. The argument defies all considerations of mutuality and invites the question why anyone would ever choose less than a ten-year lease term with lesser price protection if the brochure so clearly allowed the purchaser a unilateral right to rescind. {¶ 35} Three and a half seasons have now come and gone since the Dunkelman plaintiffs stopped purchasing tickets for Bengals games. Professional football in Cincinnati has moved on, and all 2006 preseason and regular-season home games have been sold out. By their own admission, the Dunkelman plaintiffs have not suffered economic damages. In fact, the Bengals offered to return their money before they filed this action. They may perceive their apparent vendetta against the Bengals as a need to satisfy some personal agenda, but their grievances serve no useful purpose for the advancement of the rule of law. {¶ 36} I would reverse the trial court’s judgment on class certification and enter judgment in favor of the Bengals on the merits of the claim for declaratory and injunctive relief. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3727929. Public record. Not legal advice.