[Cite as Egbert v. Shamrock Towing, Inc., 2022-Ohio-474.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Haelie Egbert et al., : 

 Plaintiffs-Appellants, : 

 No. 20AP-266 

v. : (C.P.C. No. 19CV-6391)

Shamrock Towing, Inc., : (REGULAR CALENDAR) 

 Defendant-Appellee. : 

 

D E C I S I O N 

Rendered on February 17, 2022 

 

On brief: Hilton Parker L.L.C., Geoffrey C. Parker, and 

Jonathan L. Hilton, for appellants. Argued: Geoffrey C. 

Parker. 

On brief: Kemp, Schaeffer & Rowe Co., L.P.A., and Erica 

Ann Probst, for appellee. Argued: Erica Ann Probst. 

 

APPEAL from the Franklin County Court of Common Pleas 

DORRIAN, J. 

{¶ 1} Plaintiffs-appellants Haelie Egbert, Travis Ellis, and Justin Shanahan 

(collectively "appellants") appeal an April 20, 2020 opinion of the Franklin County Court 

of Common Pleas denying appellants' motion for class certification on grounds that the 

criteria set forth in Civ.R. 23(B)(3) was not met. For the following reasons, we affirm. 

I. Facts and Procedural History 

{¶ 2} Appellants filed a class action complaint against defendant-appellee, 

Shamrock Towing, Inc. ("Shamrock"), for common-law conversion on August 7, 2019, 

which was amended on September 19, 2019, seeking damages both individually and on 

behalf of a putative class, arising out of Shamrock's alleged violations of R.C. 4513.601. 

More specifically, appellants alleged every tow by Shamrock from a purported "private tow-
No. 20AP-266 

2 

 

away zone" was conducted without statutory authorization, at least since the 2015 

amendment to R.C. 4513.601 was enacted, because Shamrock's signs fail to create "private 

tow-away zone[s]." See R.C. 4513.601(A). (Am. Compl. at ¶ 5.) Appellants further alleged 

every tow conducted by Shamrock since 2017, pursuant to Shamrock's "Private Property 

Impound Authorization Form" ("authorization form"), has also been conducted without 

statutory authorization due to lack of a written contract with the property owner. See R.C. 

4513.601(B)(3). (Am. Compl. at ¶ 5.) 

{¶ 3} Regarding their claim of conversion, appellants assert they owned, or had the 

current right of possession of, vehicles that were taken by Shamrock without their consent, 

and they suffered damages in the form of a "fee" paid to Shamrock to reclaim their vehicles. 

(Am. Compl. at ¶ 42.) Appellants further assert the taking of appellants' vehicles was 

wrongful because Shamrock's removal was not authorized by R.C. 4513.601, the statute 

permitting the creation of a "private tow-away zone," or by any other law. Appellants were 

deposed by Shamrock and provided the testimony summarized below. 

{¶ 4} Ellis testified he parked in the "Fireproof lot" located at 1020 North High 

Street, Columbus, Ohio on June 28, 2019 and became aware the next morning that his 

vehicle had been towed. (Ellis Depo. at 17, 24.) Ellis' testimony reflects the Fireproof lot 

has two entrances and has an L-shape. Ellis testified he could not recall if signs were posted 

regarding a private tow-away zone when he entered the Fireproof lot to park. Ellis asserted 

he was given permission to park in the lot from the friend he was visiting who lived in the 

Fireproof apartments. Ellis further asserted he had previously parked in this same parking 

space in the Fireproof lot with the permission of employees who worked in the leasing 

office, however, he did not talk to anyone from the leasing office prior to parking in the 

Fireproof lot on June 28, 2019. Ellis testified he knew Fireproof owned the lot, that 

residents of the Fireproof building were assigned spaces for parking, and that the Fireproof 

lot contained signage indicating resident and customer parking. Ellis also testified the 

Fireproof lot had designated guest parking, but was not able to recall the wording of the 

signs. Prior to being towed, and thereafter, Ellis testified he parked, and continued to park, 

in the same parking space in the Fireproof lot as a guest without being towed. Upon 

realizing he had been towed, Ellis called the non-emergency police phone number and with 
No. 20AP-266 

3 

 

the information provided to him, walked to Shamrock's lot. Ellis paid $156.95 to Shamrock 

for the tow.

{¶ 5} Egbert's vehicle was towed from a lot located at 45 East Norwich Avenue, 

Columbus, Ohio on July 23, 2019 (the "Norwich lot"). Egbert testified she moved into an 

apartment at 45 East Norwich in June 2019, and that the lease she signed made her aware 

that Oxford Realty owned the property and further that she would need to purchase a 

parking pass to park in the property's lot. The previous tenant had purchased a parking 

pass that was left for Egbert, however, Egbert forgot to use the pass on July 23, 2019. Prior 

to moving in, Egbert purchased a street parking pass and explained through her testimony 

that the Norwich lot oriented parking spaces in the lot in rows, creating a lot in which 

vehicles blocked other vehicles, which was how Egbert's car was parked on the day she was 

towed. Egbert testified she chose to purchase a street permit to park rather than a parking 

pass for the Norwich lot due to the less than satisfactory design of the parking lot and cost 

of the pass. When Egbert parked in the Norwich lot on July 23, 2019 she knew she did not 

have a parking pass for the lot and further that she did not have permission to park in the 

lot. Egbert acknowledged that a sign was visible when she exited her vehicle after parking 

on the day in question, and further that she walked by a sign that stated "private tow-away 

zone unauthorized vehicles will be towed away." (Egbert Depo. at 29.) Egbert recalled the 

sign posted in the lot stated the cost of the tow was $90.00.1 Egbert's testimony reflects 

that the sign posted at the Norwich lot has been modified since she was towed, as the sign 

now includes an address, whereas an address was not reflected on the sign the day Egbert 

was towed. (See Egbert Depo., Exs. D and F.) Egbert paid $109.65 to Shamrock for the tow. 

{¶ 6} Shanahan's vehicle was towed from a lot located at 253 East 19th Avenue, 

Columbus, Ohio on June 27, 2017. Shanahan was in Columbus on June 27, 2017 for an 

event and parked at a friend's apartment located at 253 East 19th Avenue. Shanahan 

parked in his friend's roommate's parking space with the permission of his friend who lived 

at the property; however, he did not have permission from the property owner. According 

to Shanahan, his friend's roommate had either a parking pass or sticker, however Shanahan 

1 According to testimony from Shamrock, this sign stated the amount of charges applicable to a tow, which is 

a sign that was used prior to the change made to R.C. 4513.601. 
No. 20AP-266 

4 

 

was not provided with either and did not display from his vehicle anything indicating he 

had authorization to park in the lot. Shanahan acknowledged that when he exited his 

vehicle after parking in the lot, he was able to observe a sign indicating the property owner 

with a towing sign underneath but was not able to confirm the signs presented to him via 

exhibits by Shamrock were the same signs that were posted in the lot on the day he was 

towed. Shanahan was able to pick up his vehicle the same day he was towed, and testified 

he knew where to go from either the phone number on a sign located at the lot or the nonemergency number for police. Shanahan paid $109.65 to Shamrock for the tow. 

{¶ 7} Appellants filed a motion for class certification on January 31, 2020. In their 

motion for class certification, appellants defined the proposed class as: "All individuals 

(1) who owned or had the current right to possess a vehicle, (2) which vehicle Shamrock 

towed from a purported 'private tow-away zone,' (3) where that tow took place under the 

purported authority of R.C. 4513.601, and (4) where that tow took place on or after 

August 7, 2015." (Mot. for Class Certification at 1.) In addition to the aforementioned 

proposed class, appellants sought certification of four overlapping subclasses. Relevant to 

the issues before this court, appellants' proposed contract subclass was defined as: "All 

individuals who are members of the proposed Class [sic] and whose vehicles were towed by 

Shamrock on or after April 6, 2017." (Mot. for Class Certification at 2.) 

{¶ 8} On February 28, 2020, the trial court conducted a hearing on appellants' 

motion for class certification. Counsel presented oral arguments in support of their 

respective positions related to appellants' motion for class certification. In addition to oral 

arguments, the trial court considered deposition testimony by appellants filed February 18, 

2020 and deposition testimony from David Timothy Duffy ("Tim") current president of 

Shamrock, and James Michael Duffy ("Mike") Tim's brother and another employee of 

Shamrock, filed January 31, 2020. 

{¶ 9} During the hearing before the trial court, appellants withdrew their request 

for three of the proposed subclasses, which was memorialized further in appellants' posthearing notice filed March 2, 2020. Appellants' request to certify the proposed class and 

the remaining proposed contract subclass pursuant to Civ.R. 23(B)(3) remained. 
No. 20AP-266 

5 

 

{¶ 10} Appellants' post-hearing notice provided the following definitions for 

appellants' proposed class and subclass: 

Proposed Class (defined by the 4-year statute of 

limitations for conversion): 

All individuals (1) who owned or had the current right to 

possess a vehicle, (2) which vehicle Shamrock towed from a 

purported "private tow-away zone," (3) where that tow took 

place under the purported authority of R.C. 4513.601; and 

(4) where that tow took place on or after August 7, 2015. 

Proposed Contract Subclass (defined by effective date of 

the contract requirement): 

All individuals (1) who owned or had the current right to 

possess a vehicle, (2) which vehicle Shamrock towed from a 

purported "private tow-away zone," (3) where that tow took 

place under the purported authority of R.C. 4513.601; and 

(4) where that tow took place on or after April 6, 2017. 

(Emphasis sic.) (Appellants' Post-Hearing Notice at 1.) 

{¶ 11} On April 20, 2020, the trial court denied appellants' motion for class 

certification finding appellants failed to satisfy the requirements of Civ.R. 23(B)(3). 

Specifically, the trial court determined the proposed classes were not readily ascertainable, 

common questions did not predominate over questions affecting only individual members; 

the existence and/or terms of contracts were not shown to be a common issue that 

predominates; and because no identifiable class existed, a class action was not a superior 

way to address appellants' claims. 

{¶ 12} It is from the denial of appellants' motion for class certification that 

appellants appeal. 

II. Assignments of Error 

{¶ 13} Appellants appeal and assign the following four assignments of error for our 

review: 

[I.] The trial court abused its discretion by declining to certify 

both the proposed Class and the proposed Contract Subclass 

based on a purported lack of ascertainability. 
No. 20AP-266 

6 

 

[II.] The trial court abused its discretion by declining to certify 

both the proposed Class and the proposed Contract Subclass 

based on a purported lack of superiority. 

[III.] The trial court abused its discretion by declining to 

certify the proposed Contract Subclass based on a purported 

lack of predominance. 

[IV.] The trial court abused its discretion by declining to 

certify the proposed overarching Class based on a purported 

lack of predominance. 

III. Analysis 

A. Standard of Review as to Civ.R. 23 Class Certification 

{¶ 14} A trial court has broad discretion in deciding whether a class action may be 

maintained, and that conclusion will not be disturbed absent a showing of an abuse of 

discretion. Marks v. C.P. Chem. Co., Inc., 31 Ohio St.3d 200 (1987), syllabus. The term 

abuse of discretion connotes more than an error of law or judgment; it implies that the 

court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 

Ohio St.3d 217, 219 (1987). In applying this standard, due deference is given the trial court's 

decision, as it is in the best position to understand its docket management and analyze the 

inherent complexities that arise from class action litigation. Marks at 201. "A finding of 

abuse of discretion, particularly if the trial court has refused to certify, should be made 

cautiously." Frisch's Restaurant, Inc. v. Kielmeyer, 10th Dist. No. 05AP-412, 2005-Ohio5426, ¶ 13, quoting Marks at 201. 

{¶ 15} However, the Supreme Court of Ohio has instructed that a trial court's 

discretion in deciding whether to certify a class action is not without limits and must be 

exercised within the framework of Civ.R. 23. Hamilton v. Ohio Sav. Bank, 82 Ohio St.3d 

67, 70 (1998). The trial court must carefully apply the requirements of Civ.R. 23 and 

conduct a rigorous analysis into whether those requirements have been satisfied. Id. As 

described by the Supreme Court in Felix v. Ganley Chevrolet, Inc., 145 Ohio St.3d 329, 

2015-Ohio-3430, ¶ 26, a trial court's "rigorous analysis" often requires the trial court to 

"look[] into enmeshed legal and factual issues that are part of the merits of the plaintiff's 

underlying claims." In determining whether the criteria for Civ.R. 23 class certification has 
No. 20AP-266 

7 

 

been met by the plaintiff, a trial court must "consider what will have to be proved at trial 

and whether those matters can be presented by common proof." Cullen v. State Farm Mut. 

Auto. Ins. Co., 137 Ohio St.3d 373, 2013-Ohio-4733, ¶ 17, citing 7AA Wright, Miller & Kane, 

Federal Practice and Procedure, Section 1785 (3d Ed.2005). However, a trial court may 

only consider the underlying merits of plaintiff's claims only to the extent necessary to 

determine whether the plaintiff has satisfied the requirements of Civ.R. 23. Felix at ¶ 26; 

Stammco, L.L.C. v. United Tel. Co. of Ohio, 136 Ohio St.3d 231, 2013-Ohio-3019, ¶ 44. 

Although it is the preferred course, Civ.R. 23 does not mandate that the trial court make 

specific findings on each of the seven prerequisites for class certification, nor that it 

articulate its reasoning for such findings as part of its rigorous analysis. Hamilton at 70-

71. 

B. Requirements for Civ.R. 23 Class Certification 

{¶ 16} The Supreme Court articulated the following seven prerequisites for 

certification of a class action pursuant to Civ.R. 23: (1) an identifiable class must exist and 

the definition of the class must be unambiguous, (2) the named plaintiff representatives 

must be members of the class, (3) the class must be so numerous that joinder of all the 

members is impracticable, (4) there must be questions of law or fact common to the class, 

(5) the claims or defenses of the representatives 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 requirements for certification set forth in Civ.R. 23(B) 

must be met. Hamilton at 71, citing Warner v. Waste Mgt., Inc., 36 Ohio St.3d 91, 96 

(1988); Civ.R. 23. The first two prerequisites are implicitly required while the remaining 

five are explicitly set forth in the rule. Warner at 94. 

{¶ 17} The party seeking class action certification pursuant to Civ.R. 23 must prove, 

by a preponderance of the evidence, that the proposed class meets each of the requirements 

set forth in the rule. Id. The burden of proof is satisfied when all the prerequisites of Civ.R. 

23(A) are met and, further, that at least one of the requirements as set forth in Civ.R. 23(B) 

are met. Hamilton at 71. 

{¶ 18} Civ.R. 23 states: 

(A) Prerequisites. 
No. 20AP-266 

8 

 

One or more members of a class may sue or be sued as 

representative parties on behalf of all members only if: 

(1) the class is so numerous that joinder of all members is 

impracticable, 

(2) there are questions of law or fact common to the class, 

(3) the claims or defenses of the representative parties are 

typical of the claims or defenses of the class, and class, 

(4) the representative parties will fairly and adequately 

protect the interests of the class. 

(B) Types of class actions. 

A class action may be maintained Civ.R. 23(A) is satisfied 

[sic], and if: 

* * * 

(3) the court finds that the questions of law or fact common to 

class members predominate over any questions affecting only 

individual members, and that a class action is superior to 

other available methods for fairly and efficiently adjudicating 

the controversy. The matters pertinent to these findings 

include: 

(a) the class members' interests in individually controlling the 

prosecution or defense of separate actions; 

(b) the extent and nature of any litigation concerning the 

controversy already begun by or against class members; 

(c) the desirability or undesirability of concentrating the 

litigation of the claims in the particular forum; and 

(d) the likely difficulties in managing a class action. 

C. Criteria of Predominance per Civ.R. 23(B)(3) – Fourth and 

Third Assignments of Error 

{¶ 19} Here, appellants sought certification of their proposed class and proposed 

contract subclass under Civ.R. 23(B)(3). 
No. 20AP-266 

9 

 

{¶ 20} The first requirement for maintaining a class action under Civ.R. 23(B)(3) 

provides that common questions of law or fact predominate over questions concerning only 

individual members of the class. Assn. for Hosps. & Health Sys. v. Ohio Dept. of Adm. 

Servs., 10th Dist. No. 04AP-762, 2006-Ohio-67, ¶ 25. And therefore "a key purpose of the 

predominance requirement is to test whether the proposed class is sufficiently cohesive to 

warrant adjudication by representation." Felix at ¶ 35, citing Amchem Prods., Inc. v. 

Windsor, 521 U.S. 591 (1997). 

{¶ 21} For common questions of law or fact to predominate, it is not sufficient that 

such questions merely exist; rather, they must also represent a significant aspect of the case 

and they must be capable of resolution for all members in a single adjudication. Marks at 

204. " ' "To meet the predominance requirement, a plaintiff must establish that issues 

subject to generalized proof and applicable to the class as a whole predominate over those 

issues that are subject to only individualized proof." ' " Cullen at ¶ 30, quoting Young v. 

Nationwide Mut. Ins. Co., 693 F.3d 532, 544 (6th Cir.2012), quoting Randleman v. Fidelity 

Natl. Title Ins. Co., 646 F.3d 347, 352-53 (6th Cir.2011). 

{¶ 22} Appellants' third and fourth assignments of error argue the trial court abused 

its discretion by declining to certify appellants' proposed class and subclass based on a 

purported lack of predominance. We will begin by discussing appellants' fourth assignment 

of error regarding appellants' proposed class, which is the main class, and thereafter we will 

discuss appellants' proposed contract subclass as addressed in appellants' third assignment 

of error. Both assignments of error address R.C. 4513.601 which appellants refer to as a 

"safe harbor" for appellee. 

1. Fourth Assignment of Error 

{¶ 23} In their fourth assignment of error, appellants argue the trial court abused its 

discretion by declining to certify their proposed class based on a purported lack of 

predominance. 

{¶ 24} In support, appellants raise the following issues: (1) R.C. 4513.601's safe 

harbor is an affirmative defense for which Shamrock bears the burden of proof, and (2) at 

the class certification stage, Shamrock must present evidence that an affirmative defense 

applies to a significant percentage of the proposed class. 
No. 20AP-266 

10 

 

{¶ 25} As to the first issue raised by appellants in support of their fourth assignment 

of error, appellants argue that Shamrock bears the burden to produce evidence as an 

affirmative defense that Shamrock conducted tows in accord with R.C. 4513.601.2

Appellants aver this burden shift is appropriate because often the tow company will have 

actual knowledge of, and ability to prove, contents of the signage on the relevant lot at the 

time of the tow; and further, that Shamrock is better situated to bring forth evidence as to 

the contents of the signs on the lots from which it has conducted tows. Appellants cite R.C. 

4513.601(D)(1) in support of their proposition. 

{¶ 26} In its decision denying appellants' motion for class certification, the trial 

court found Shamrock did not bear the burden of proof to raise an affirmative defense as to 

liability because appellants' argument was not supported by Ohio law. In addition to the 

trial court's finding, the trial court considered, assuming arguendo, that if Shamrock was 

required to present proof of an affirmative defense, the difficulties meeting predominance 

remained. See Civ.R. 23(B)(3). The trial court stated that important, individualized issues 

with R.C. 4513.601(A)(1) impact this case. More specifically, the trial court noted "the 

2 In support of their argument, appellants cite this court's decision in Bugoni v. C & M Towing, 10th Dist. No. 

12AP-62, 2012-Ohio-4508. However, the posture of the case in Bugoni and in the case before us differ. In 

Bugoni, the issue before this court was whether the trial court abused its discretion by granting the appellee's 

Civ.R. 12(B) motion to dismiss for the appellant's failure to state a claim. Id. at ¶ 3. The appellant's underlying 

cause of action was a complaint alleging conversion of his personal vehicle when the appellee towed his vehicle 

without his consent. Id. at ¶ 9. Citing to the former version of the private tow-away zone statute, R.C. 

4513.60(B), the appellee argued the claim of conversion failed because the appellant parked his vehicle in a 

marked private tow-away zone. Id. at ¶ 10. This court held because the complaint did not contain allegations 

related to R.C. 4513.60(B), the appellee's argument was not a basis on which the trial court could grant a 

motion to dismiss for failure to state a claim. Id. This court further stated, because the appellant stated a claim 

for conversion, the trial court abused its discretion by dismissing the appellant's complaint for failure to state 

a claim. Id. at ¶ 11. 

In further support, appellants also cite Stanley v. Auto Tow & Bradley Motors, 9th Dist. No. 92CA005441 

(Feb. 17, 1993). In Stanley, the appellant filed a complaint against Auto Tow & Bradley Motors ("Auto Tow") 

alleging conversion of his vehicle and Auto Tow raised, as an affirmative defense pursuant to R.C. 4513.60, 

the former version of the private tow-away zone statute. The Ninth District affirmed the trial court's finding 

that at one time the appellant was authorized as a tenant to park in the apartment complex and that Auto Tow 

failed to prove that the property owner had notified the appellant that he was no longer permitted to park in 

the lot in question or that the appellant parked in violation of the posted conditions, therefore Auto Tow did 

not have authority to hold the appellant's truck until tow and storage charges were paid. Id. 

Because the authority cited by appellants does not address class certification, and more specifically, the issue 

of predominance, we do not find the argument as presented by appellants to apply to the matter before us. We 

also agree with the trial court that, assuming arguendo, appellants are correct that the obligation to show 

signage as to each tow is an affirmative defense, that would still not avoid the need for individual trials. 
No. 20AP-266 

11 

 

legality of each tow based upon signs posted in individual lots on specific dates – is highly 

individualized." (Opinion at 8.) In finding appellants did not meet the predominance 

requirement, the trial court denied certification of the proposed class because common 

questions as required by Civ.R. 23(B)(3) were not met. The trial court's analysis pointed to 

the need to examine questions about the location from which each proposed class member 

was towed in addition to examination of the specific signage present on the relevant day 

from each tow location for the thousands of tows of the purported class which would require 

"[m]ini-trials, focused on each tow from each lot, with a specific determination of the 

signage present when Shamrock towed a vehicle, would be essential to determine whether 

vehicles actually were illegally towed or wrongfully converted." (Fn. omitted; Opinion at 

15-16.) 

{¶ 27} Appellants' arguments asserting Shamrock bears the burden to prove an 

affirmative defense disregards the inquiry as to whether appellants' proposed class has met 

the requirement of predominance. This is likewise true with respect to appellants' second 

argument in support of their fourth assignment of error, wherein appellants assert 

Shamrock must present evidence that the affirmative defense applies to a significant 

percentage of the proposed class. 

{¶ 28} Appellants further support their fourth assignment of error that the trial 

court abused its discretion when it found a lack of predominance as to the proposed class, 

by arguing that the trial court: (1) accepted bald legal conclusions over evidence in the 

record, or (2) incorrectly interpreted a statute not before it. 

{¶ 29} Specifically, as to the first argument, appellants assert the trial court's finding 

that "[b]ased upon the testimony by Shamrock witnesses currently of record, proper signs 

were in place containing appropriate 'legal' language for at least some tows and some 

locations," is a bald assertion only supported by Shamrock witnesses. (Appellants' Am. 

Brief at 59-60; Opinion at 16.)

{¶ 30} Appellants contend Shamrock's signs do not contain all the language set forth 

in R.C. 4513.601(A)(1), therefore there is not a single sign on any lot from which Shamrock 

conducted a tow on a member of the proposed class that has been in compliance with R.C. 

4513.601. In making this argument, appellants interpret R.C. 4513.601 to require all 
No. 20AP-266 

12 

 

language set forth in R.C. 4513.601(A)(1) must be contained in one sign. Pointing to the 

record, appellants claim Shamrock's signs do not contain a "description of persons 

authorized to park on the property." R.C. 4513.601(A)(1)(b). Appellants support their 

claim by referring to testimony presented by Shamrock that states Shamrock adds 

addresses of the property to Shamrock's standard signs. Ultimately, appellants contend 

that if their interpretation of the statute is correct, then none of Shamrock's signs comply.3 

{¶ 31} Under R.C. 4513.601(A), "[t]he owner of a private property may establish a 

private tow-away zone, but may do so only if all of the following conditions are satisfied":

(1) The owner of the private property posts on the property a 

sign, that is at least eighteen inches by twenty-four inches in 

size, that is visible from all entrances to the property, and that 

includes all of the following information: 

(a) A statement that the property is a tow-away zone; 

(b) A description of persons authorized to park on the 

property. If the property is a residential property, the owner 

of the private property may include on the sign a statement 

that only tenants and guests may park in the private tow-away 

zone, subject to the terms of the property owner. If the 

property is a commercial property, the owner of the private 

property may include on the sign a statement that only 

customers may park in the private tow-away zone. In all cases, 

if it is not apparent which persons may park in the private 

tow-away zone, the owner of the private property shall include 

on the sign the address of the property on which the private 

tow-away zone is located or the name of the business that is 

located on the property designated as a private tow-away 

zone[;] 

(c) If the private tow-away zone is not enforceable at all times, 

the times during which the parking restrictions are enforced; 

3 However, as asserted before the trial court, appellants believe one question will resolve the legal issue of the 

proposed class, "[i]f it is necessary for the signage to be copies of a single sign that includes all of the 

information required under the statute, then that is sufficient, because Shamrock has no evidence that has 

ever occurred for any class member." (Feb. 28, 2020 Tr. at 17; Opinion at 14.) Appellants argument asked for 

consideration of the plain language of the statute as to provision (A) in R.C. 4513.601. R.C. 4513.601(A) 

explicitly provides for the way in which a property owner may establish a private tow-away zone. 
No. 20AP-266 

13 

 

(d) The telephone number and the address of the place from 

which a towed vehicle may be recovered at any time during 

the day or night; 

(e) A statement that the failure to recover a towed vehicle may 

result in the loss of title to the vehicle as provided in division 

(B) of section 4505.101 of the Revised Code. 

In order to comply with the requirements of division (A)(1) of 

this section, the owner of a private property may modify an 

existing sign by affixing to the existing sign stickers or an 

addendum in lieu of replacing the sign. 

{¶ 32} Tim Duffy testified he is the current president of Shamrock and that he took 

over the family towing business from his father 30 years ago. Tim estimated Shamrock 

currently has 6,000 accounts and he further estimated the total number of lots within each 

account to be 10,000. Tim opined Shamrock tows approximately 12,000 vehicles per year; 

one-third of that total, around 4,000, consists of tows from private tow-away zones. 

Shamrock offers towing service on a patrol basis or on-demand. Drivers of the tow trucks 

conduct patrols of the lots as initiated by the property owner. 

{¶ 33} Mike Duffy testified that his current job title could be "[t]he sign man," and 

he does a bit of everything at Shamrock. (Mike Duffy Depo. at 10.) According to the 

testimony given by Tim and Mike, Shamrock has its own standard signs printed by a 

supplier, which Shamrock provides to property owners. Further testimony reflects the 

appearance of the signs may be customized depending on the needs of the specific property 

and it is unknown how many signs currently in use have been customized. Shamrock has 

used two to three versions of signs over the past 20 years. Mike explained that although 

property owners generally use the signs provided by Shamrock, some property owners post 

signs that are purchased from print shops in Columbus, Ohio. Mike did not know how 

many current property owners employing Shamrock's towing services use signs printed by 

other vendors.

{¶ 34} Mike testified that Shamrock's current sign utilizes language from 

parameters given by the Towing and Recovery Association, however, the appearance of the 

signs can be customized at the request of a property owner. The language exhibited on 

Shamrock's signs reflects:
No. 20AP-266 

14 

 

PRIVATE 

TOW-AWAY ZONE 

UNAUTHORIZED VEHICLES 

WILL BE TOWED AWAY. 

PUCO 138816T 

CALL NUMBER BELOW FOR LOCATION & 

IMPOUND FEES. FAILURE TO RECOVER 

A TOWED VEHICLE MAY RESULT IN THE 

LOSS OF TITLE TO VEHICLE. 

ORC 4505.101 

TOWING ENFORCED 24/7 

1145 HAMLET ST., COLS., OH 43201 

6333 FROST RD., WESTERVILLE, OH 43082 

ORC 4513.60 [sic] 

(Mike Duffy Depo., Ex. C; Tim Duffy Depo., Ex. C.) 

{¶ 35} Both Tim and Mike acknowledged a change in the private towing law that 

resulted in changes as to what appears on Shamrock's signs, reflected above. Specifically, 

language was added to the sign in 2015 that provided notice that failure to recover a towed 

vehicle may result in loss of title, in addition to noting the Public Utilities Commission of 

Ohio ("PUCO") number. Although updating signs began immediately after the change in 

the law, not all lots were updated in the same manner. Mike testified lots with heavy traffic, 

for example lots located on campus, were updated first, otherwise Mike would update signs 

himself when he happened on an outdated sign or on notification received from tow truck 

drivers or property owners. As for updated signs that do not reflect who is permitted to 

park in the lot or who owns the lot, Mike also updates those signs using either a sticker or 

paint pen.4 Mike did not know how many signs have been updated since August 7, 2019, 

the date on which appellants filed a cause of action against Shamrock. 

{¶ 36} Tim testified that at the time a vehicle is to be towed, Shamrock employees 

are instructed to take a photograph of only Shamrock's signs. Shamrock's policy regarding 

4 Mike testified: "Well, to put the -- if the owner wasn't going to put the address on there or put their sticker 

or their logo or whatever in there or any instructions, then if it was an open kind of a lot that wasn't apparent 

who could park there, or it was a parking lot belonged [sic] to them, then I put the address on there." (Mike 

Duffy Depo. at 37.) 
No. 20AP-266 

15 

 

retention of those photographs was unclear. Shamrock had retained photographs of 

Egbert's vehicle at the time it was towed from the lot located at 45 East Norwich, which 

were introduced during the deposition of Tim. A photograph of what is purported to be 

Shamrock's sign was also introduced; however, the sign was difficult to decipher as 

photographed. Shamrock also retained photographs of Ellis' vehicle on the day it was towed 

by Shamrock from the Fireproof lot. Evidence was not provided of Shamrock's sign on the 

day Ellis' vehicle was towed. The photograph Shamrock did provide of its sign from the 

Fireproof lot was a photograph of the alley that adjoins the parking lot, however, Tim 

testified he did not think that the signs depicted in the photograph were the same signs that 

were posted on the day Ellis' vehicle was towed. Shamrock did not have photographs of 

Shanahan's vehicle on the day his vehicle was towed from 253 East 19th Avenue or 

photographs of Shamrock's sign on the day of the tow. However, photographs of the signs 

located at 253 East 19th Avenue were introduced and Tim testified that the first sign was 

an older version of a Shamrock sign and the second was Shamrock's sign taken several 

months after appellants filed their cause of action. Tim testified that the sign in the second 

picture had an orange overlay, but he did not know what it was. Mike testified that the 

orange overlay was a sticker he uses to update the signs. (See Mike Duffy Depo. at 37.) Tim 

did not know when the sign had been altered, however, he testified he had been told this 

particular property owner(s) had been in the process of updating signs themselves. 

Appellants represented on the record, without objection, that the overlay stated "permit 

only, 253 East 10th [sic]." (Tim Duffy Depo. at 82.)

{¶ 37} Mike testified that he installs Shamrock's signs according to the wishes of the 

property owner or at his discretion if the property owner has not stated a designation; 

however, signs will be posted where the sign is deemed to be visible from all entrances. 

Property owners are responsible for the installation of a pole if one is not in existence. Mike 

testified there are times property owners will move signs or add signs near to Shamrock's 

and Shamrock is not made aware of these changes. Further, Tim agreed there is not a lot 

in Franklin County that is identical to another lot, each lot has a different view from the 

entrance, and further, the number of entrances for a lot can vary from one to potentially 

three.
No. 20AP-266 

16 

 

{¶ 38} In asserting that the trial court relied on bald legal conclusions, appellants 

maintain the record contains adequate evidence for the court to make an affirmative finding 

that it is more likely than not that no such sign has been in compliance with R.C. 

4513.601(A), which appellants disclaim is their burden to prove. However, appellants' 

specific argument as to one of the trial court's findings regarding the purported legality of 

Shamrock's signs overlooks the larger question when assessing the requirement of 

predominance on the facts of this case.

{¶ 39} When reviewing the record, we must bear in mind that in order to meet the 

predominance requirement, appellants' claims must be substantiated by generalized proof 

applicable to the class as a whole that predominates over those issues that are subject to 

only individualized proof. See Cullen at ¶ 30. 

{¶ 40} Appellants' proposed class was presented in simple terms, specifically, 

appellants defined the proposed class as "everyone towed by Shamrock under the authority 

of the statute, and they all share the claim that there were no comply[ing] signs." (Feb. 28, 

2020 Tr. at 26-27.) The trial court clarified, "[t]hat's the essence of it, no compliance [sic] 

signs." (Tr. at 27.) Appellants answered, "[c]orrect." (Tr. at 27.) The proposed class 

appellants seek to certify is to be established as of August 7, 2015. In accord with R.C. 

4513.601(A)(1), the following must be evaluated as to whether the lot has been established 

as a private tow-away zone: (1) the size of the sign, (2) the location of the lot from which 

their vehicle was towed, (3) the location of the signage posted at or in the lot, (4) the content 

posted on the signage, and (5) whether it was apparent to the person parking the vehicle 

who was permitted to park in the lot. 

{¶ 41} As of the date of testimony provided by Tim, Shamrock tows from 10,000 lots 

per year and tows approximately 4,000 vehicles per year from private tow-away zones. Tim 

acknowledged that the lots in Franklin County are not identical to the others, the number 

of entrances to a lot can vary from one to three, and the view from each lot varies.

{¶ 42} Testimony given by Ellis, Egbert, and Shanahan establish that appellants' 

recollection lacks detail of the signs posted at the lot on the day their own vehicles were 

towed and regarding the lot itself; and further their testimony reveals it would be unlikely 

that class members would be able to provide details regarding any lot other than the one 
No. 20AP-266 

17 

 

from which they were towed. Egbert testified she used to live near 253 East 19th Avenue, 

the lot from which Shanahan was towed, however she could not recall the parking lot. 

Egbert was familiar with the Fireproof lot, the lot from which Ellis was towed, and she 

testified she was aware the lot had signs, but she believed the signs gave indication the lot 

was a shopping complex. Shanahan testified he was not familiar with the lots from which 

Egbert and Ellis' vehicles were towed. Ellis was not asked questions regarding his 

familiarity with any lots.

{¶ 43} Whether a sign provides a description of persons authorized to park on the 

property also requires individualized evaluation. R.C. 4513.601(A)(1)(b) states: "In all 

cases, if it is not apparent which persons may park in the private tow-away zone, the owner 

of the private property shall include on the sign the address of the property on which the 

private tow-away zone is located or the name of the business that is located on the property 

designated as a private tow-away zone." 

{¶ 44} In 2015, Shamrock began the process of updating its signs to comply with a 

change in the law, however there is no record of what signs were updated and when. 

Testimony provided by Mike reflects that signs are updated by a full replacement of the 

sign, by a sticker or with a paint pen. The record also reflects that Shamrock believed one 

of the property owners of a lot from which an appellant was towed was in the process of 

making changes to its signs. 

{¶ 45} According to the numbers provided by Shamrock, appellants' proposed class 

could include 4,000 members. Here, appellants presented testimony from three lots and 

each lot presents its own set of facts. Ellis believed he was permitted to park in the Fireproof 

lot and further that the Fireproof lot contained signs permitting guests, but he could not 

recall the wording. Photographs of Ellis' vehicle at the time of tow are in evidence, however 

photographs of the signs present on the day his vehicle was towed were not. When Egbert 

parked her vehicle, she knew she was not authorized to park her vehicle in the lot from 

which she was towed and testified that a sign was visible when she parked her car that stated 

the lot was a private towing zone and unauthorized vehicles would be towed. Evidence 

presented regarding signs posted in the lot from which Egbert was towed reflect that signs 

had been changed since the tow occurred. Shanahan testified he observed two signs when 
No. 20AP-266 

18 

 

he parked, one sign providing the name of the property owner and underneath a towing 

sign, however when presented with photographs purporting to depict signs posted at the 

lot in question, Shanahan could not confirm the photographs depicted the same signs as 

the day he was towed.

{¶ 46} As we noted above, "[f]or common questions of law or fact to predominate, it 

is not sufficient that such questions merely exist; rather, they must present a significant 

aspect of the case. Furthermore, they must be capable of resolution for all members in a 

single adjudication." Cullen at ¶ 30, quoting Marks at 204. " ' "To meet the predominance 

requirement, a plaintiff must establish that issues subject to generalized proof and 

applicable to the class as a whole predominate over those issues that are subject to only 

individualized proof." ' " Id., quoting Young at 544, quoting Randleman at 352-53, citing 

Beattie v. CenturyTel, Inc., 511 F.3d 554, 564 (6th Cir.2007). Here, the record contains 

evidence that generalized proof cannot be applied in evaluating each tow conducted by 

Shamrock for each member of the proposed class; the location of the lot, where signage was 

posted on the day of the tow, the location of the vehicle prior to tow, what language was 

stated on the signage on the day of the tow, and the driver of the vehicle's understanding of 

who was authorized to park in the lot. See R.C. 4513.601(A)(1). Therefore, the trial court 

did not abuse its discretion in finding that individual questions of law and fact predominate 

over any commonalities of the proposed class. 

{¶ 47} Although appellants assert the trial court relied on bald legal conclusions over 

record evidence to the contrary, we find that review of the record reflects individual 

questions overwhelm those questions common to the class.5

5 Issues regarding class certification of towed vehicles have been addressed by Ohio courts, and as illustrated 

by caselaw cited by Shamrock, the First District found with regard to tows conducted from Central Parking 

lots "[f]our mini-trials would be necessary to determine whether any and how many parking violations had 

occurred." Safi v. Cent. Parking Sys. Ohio, Inc., 1st Dist. No. C-150021, 2015-Ohio-5274, ¶ 35. The court 

declined to certify the proposed class holding, tort and equitable claims involving varying fact patterns along 

with defenses and damages result in the predominance of individual issues, rather than common. Id. 
No. 20AP-266 

19 

 

{¶ 48} Second, in addition to asserting the trial court relied on bald legal 

conclusions, appellants further support their fourth assignment of error by arguing the trial 

court incorrectly interpreted a statute when the question was not before the trial court. 

Specifically, whether the trial court improperly resolved a question of law on the merits in 

finding that the statutory requirement that signs must describe the persons authorized to 

park can be satisfied by the addition of the address of the lot on which the private tow-away 

zone is located. 

{¶ 49} This court recognized at the class certification stage, a trial court must not 

determine questions as to the merits outside the parameters of the certification 

determination; to do so would be an abuse of discretion. Assn. for Hosps. & Health Sys. at 

¶ 26. "A court may examine the underlying claims only for the purpose of determining 

whether common questions exist and predominate and not for the purpose of determining 

the validity of such claims." Id., citing George v. Ohio Dept. of Human Servs., 145 Ohio 

App.3d 681, 687 (10th Dist.2001). 

{¶ 50} Appellants' arguments in support of their fourth assignment of error assert 

the record reflects adequate evidence for the trial court to find no sign erected by Shamrock 

on any lot complied with R.C. 4513.601(A). Review of the trial court's decision does not 

reflect that this finding was made as a determination of the validity of appellants' claims. 

As discussed above, the trial court's consideration was part of the trial court's analysis as to 

the predominance requirement, specifically whether a common question existed. 

Therefore, we cannot find based on our review of the record that the trial court considered 

the merits outside of what common questions of law or fact predominate as to appellants' 

proposed class. 

Shamrock also cites Carlin v. Genie of Fairview Park, 8th Dist. No. 48593 (Apr. 11, 1985), wherein the court 

found parking and towing were a basic nucleus of fact and law for the proposed class under Civ.R. 23(A)(2), 

however the court further held that the alleged offense of illegally parking on private property over an 

extended period of time would likely result in claims and defenses that would not be typical across the class 

in that "the nature of the case, serves to emphasize the differences among the claims of each class member." 

Carlin. In a footnote, the court further explained the nucleus of operative fact through an example of a class 

alleging breach of a printed contract and where each member's claim was based on the same printed contract, 

the nucleus of operative fact was the printed contract. Id. at fn. 3, citing Hitzler v. Doraty Chevrolet, 8th Dist. 

No. 46035 (Sept. 9, 1983). 

 
No. 20AP-266 

20 

 

{¶ 51} Therefore, we find the trial court did not abuse its discretion in finding the 

predominance requirement was not met as to appellants' proposed class. 

{¶ 52} Accordingly, we overrule appellants' fourth assignment of error.

2. Third Assignment of Error 

{¶ 53} In their third assignment of error, appellants argue the trial court abused its 

discretion by declining to certify the proposed contract subclass based on a lack of 

predominance. Relevant to appellants' proposed contract subclass, R.C. 4513.601(B)(3) 

states: "No towing service shall remove a vehicle from a private tow-away zone except 

pursuant to a written contract for the removal of vehicles entered into with the owner of 

the private property on which the private tow-away zone is located." (Emphasis added.) 

The amended complaint alleges that the authorization form which Shamrock has lot owners 

sign is not a written contract. 

{¶ 54} Appellants allege the trial court gave "short shrift" to appellants' proposed 

contract subclass and with its five sentence analysis abused its discretion by declining to 

certify the proposed contract class. (Appellants' Am. Brief at 36.) (See Opinion at 17.) 

{¶ 55} The trial court found: 

There is another statutory obligation, namely that the towing 

service removes vehicles only "pursuant to a written contract 

* * * with the owner of the private property on which the 

private tow-away zone is located." R.C. 4513.601(B)(3). 

Plaintiffs' post-hearing filing proposed a "Contract Subclass" 

focused not on lot signs, but on whether Shamrock operates 

under "a written contract for the removal of vehicles entered 

into with the owner of the private property on which the 

private tow-away zone is located."6 It is unsettled in the law 

whether this statute creates a private cause of action in favor 

of a person whose vehicle is towed from a lot lacking a written 

contract. Reaching that conclusion essentially requires a 

determination that a vehicle owner is a third-party beneficiary 

of the statute. Aside from the need to consider common law 

6 The first two sentences of the trial court's analysis are not relevant to the matter before us; however, we will 

address appellants' arguments regarding the same. Appellants acknowledge the first sentence of the trial 

court's analysis is correct, however, appellants perceive that the trial court's second sentence suggests 

appellants first introduced their proposed contract subclass in the post-hearing notice filed by appellants on 

March 2, 2020. Although we do not find the trial court's second sentence to state what appellants perceive, 

we do agree that the proposed contract subclass was included in appellants' motion for class certification filed 

January 31, 2020, but note that the definition of the proposed contract subclass is defined in greater detail by 

appellants' post-hearing notice. (Compare Mot. for Class Certification at 2; Post-Hearing Notice at 1.) 
No. 20AP-266 

21 

 

rules on third-party beneficiary status, it may be relevant here 

that another Ohio statute lists a dozen or more "major" and 

"minor" violations of law for which a civil action can be 

brought against a towing service, but does not list the absence 

of a written contract as a basis for such a civil claim. R.C. 

4513.611. But, as with the signage issue, the existence and/or 

terms of contracts on some 10,000 lots from which Shamrock 

may make tows has not been shown to be a common issue that 

predominates under Rule 23(B)(3). 

(Opinion at 17.) 

{¶ 56} Appellants argue the trial court improperly considered the merits of 

appellants' claims as they relate to the proposed contract subclass in the third, fourth, and 

fifth sentences. More specifically, appellants assert the trial court considered whether 

appellants have a private right of action under R.C. 4513.601(B)(3), without linking its 

consideration to the predominance requirement. 

{¶ 57} The Supreme Court has held a trial court's rigorous analysis in determining 

whether Civ.R. 23 has been met often considers enmeshed legal and factual issues, 

however, the merits of the underlying cause of action may only be examined in determining 

whether Civ.R. 23 has been met. Felix at ¶ 26. 

{¶ 58} On review of the three sentences at issue in appellants' argument, we find the 

trial court's statements to reflect a process of thought by the court rather than dispositive 

findings. Furthermore, the trial court's statements do not reflect any determination on the 

merits. Most importantly, the last sentence of the trial court's analysis, finding the 

existence and/or terms of contracts on some 10,000 lots has not been shown to be a 

common issue that predominates, leads us to find the trial court did not base its decision 

on its consideration of the merits of appellants' claims. Because we find the trial court's 

decision was not based on its consideration of the merits, we do not find appellants' 

argument compelling. Therefore, we decline to further address appellants' arguments as to 

the merits of whether the statute creates a private right of action. 

{¶ 59} Appellants also argue that the trial court abused its discretion in finding a 

lack of predominance as to the proposed contract subclass. Specifically, appellants argue 

the trial court's finding is not supported by the record and is contrary to Ohio Supreme 

Court precedent. Underlying these arguments is appellants' assertion that a document 
No. 20AP-266 

22 

 

which disclaims an intent to bind and or lacks consideration cannot constitute a written 

contract. 

{¶ 60} Regarding the argument that the trial court's finding is not supported by the 

record, appellants argue the record supports that Shamrock property owners sign an 

authorization form prior to Shamrock towing from the property owner's lot and that the 

authorization forms do not materially differ from previous versions. Appellants argue that 

all versions of the authorization form disclaim any intent to bind, and further, do not 

purport to create any obligation by Shamrock to the property owner or require 

consideration on the part of Shamrock. Appellants further argue Shamrock does not permit 

property owners to modify the authorization form other than listing properties of the 

property owner from which Shamrock is to tow. Appellants contend the authorization form 

does not create any obligation on Shamrock's part to perform a tow. Appellants also infer 

from the record that the authorization forms presented govern nearly all of Shamrock's 

tows during the subclass period. 

{¶ 61} The authorization forms for the tows conducted on the named appellants are 

found in the record. Each form includes the following statement: "NOTICE: This form 

serves only to provide Shamrock Towing, Inc. with written authorization to remove vehicles 

per your instructions in accordance with Ohio Revised Code §4513.60 from properties 

owned by you or your employer. It is NOT a binding contract of any sort." (Emphasis sic.) 

(Tim Duffy Depo., Ex. D.) 

{¶ 62} Tim testified that Shamrock sends an authorization form to all potential 

customers. The authorization forms introduced in the record are all entitled the same, 

"Private Property Impound Authorization Form." Tim testified the authorization form has 

been used by Shamrock for about ten years and he believes most current property owners 

have signed Shamrock's newest form. The authorization form requires the signature of 

either the property owner or property manager, in addition to their respective address and 

phone number. A signed authorization form is required from every property owner before 

Shamrock will conduct a tow and authorization forms are retained by Shamrock either on 

paper or electronically. Shamrock does not charge property owners to tow from lots. 
No. 20AP-266 

23 

 

{¶ 63} The authorization form includes blank lines that require the name of the 

business or property owner to be inserted, with language stating that the business or 

property owner authorizes Shamrock to remove vehicles "PER MY INSTRUCTIONS

from the properties listed below." (Emphasis sic.) (Tim Duffy Depo., Ex. A.) Tim testified 

that instructions from the business or property owner are written into the authorization 

form and are included as part of the agreement with Shamrock. Tim also testified that 

Shamrock's policy does not allow property owners to modify the authorization form. The 

record is not clear as to what would be considered a permissible instruction as opposed to 

an impermissible modification. 

{¶ 64} Additionally, the authorization form allows property owners to select the 

following towing instructions: (1) at the discretion of the property owner using a Shamrock 

issued authorization code, (2) on a patrol basis removing vehicles parked without a 

displayed parking permit,7 and (3) on a patrol basis according to criteria set by the property 

manager to be coordinated with Shamrock's office. Each selection has an open field for 

which the property owner may choose, presumably property owners may choose any or all 

available towing instructions. 

{¶ 65} Tim further testified for those lots from which Shamrock has contracted to 

patrol, patrolling of lots is initiated by the property owner generally when an issue arises 

with parking in their lot, resulting in Shamrock increasing patrols of the lot. Shamrock 

monitors these patrols with GPS so that reports can be made to the property owners. 

Shamrock will discontinue regular patrols of the lot once the issues for which the property 

owner was concerned are no longer evident. Shamrock does not regularly patrol all lots on 

a daily, weekly or monthly basis. Tim testified that Shamrock always asks the property 

owner why a tow has been requested; explaining that the circumstances of the vehicle may 

have changed since the property owner requested the tow and this would require the 

property owner to decide whether a tow is still requested. Shamrock's initial response to a 

new lot involves a grace period of about 72 hours for Shamrock to set up in a lot. Shamrock 

7 The towing instructions further state the property owner shall provide a copy of the parking permit to 

Shamrock's office. 
No. 20AP-266 

24 

 

does not guarantee a response time to a tow, as Tim explained the response depends on 

Shamrock's workload, however industry custom is usually within a few days. 

{¶ 66} The authorization form also contains dedicated blank lines for property 

owners to list properties from which Shamrock is authorized to tow. Tim explained that in 

addition to the authorization form, Shamrock maintains a code card for each property 

owner and on that card Shamrock lists names of the properties the property owner has 

authorized Shamrock to tow. Tim further explained property owner names and their 

properties may also be entered into Shamrock's computer system if the property list does 

not fit on the code card. 

{¶ 67} While in deposition, appellants pointed out to Tim that Shamrock's 

authorization form states it is not a binding contract. Tim testified that if a property owner 

asked if the authorization form was a contract, Shamrock would respond: "[I]f this doesn't 

work for you, then we won't work for you." (Tim Duffy Depo. at 44.) Appellants inquired 

further, "Okay. But if somebody asks -- or if somebody says, I don't want to sign a contract, 

this isn't a contract, right, is the answer?" (Tim Duffy Depo. at 45.) Tim did not have an 

answer. However, Tim also testified that Shamrock has experienced some potential 

customers back out because they did not want to sign a contract. 

{¶ 68} Tim estimated Shamrock currently has 6,000 accounts and that the total 

number of lots within each account is estimated to be 10,000. In 2018, approximately 100 

new property owners signed an authorization form with Shamrock. Within the parameters 

of the authorization form, property owners are provided room to give instructions specific 

to their properties and also in accord with how the property owner wishes their lot to have 

tows conducted. In addition, property owners may choose any or all of the towing 

selections delineated on the form. Not all property owners have signed Shamrock's 

authorization form for the same service and each property owner would necessarily have 

properties that vary from other property owners who also sign the authorization form for 

towing services by Shamrock. Shamrock will not conduct tows from a property owner's lot 
No. 20AP-266 

25 

 

without a signature on the authorization form, and Shamrock does not exchange money 

with a property owner for tow services conducted.8

{¶ 69} On review of appellants' assertions with the record, we find that although the 

authorization form begins as a standardized form, the information with which the 

authorization form is completed creates a document that is individualized for each property 

owner. The authorization form explicitly permits a property owner to authorize Shamrock 

to tow pursuant to instructions as provided by the property owner, which according to 

testimony given by Tim, may be written into the authorization form and is included as part 

of the agreement. Therefore, we cannot conclude that a property owner cannot modify the 

authorization form. As the trial court suggests, we question whether the language to which 

appellants point in the authorization forms has the legal significance in this context to 

provide a relevant point of commonality sufficient to sustain a class. And if it might, and 

somehow could be said to relate to a cognizable claim around which a class theoretically 

could form, then the variations in those agreements that the record reflects would become 

material and undermine the agreements' value as a means for defining a subclass. 

{¶ 70} Regarding the argument that the trial court's finding is contrary to Supreme 

Court case law, appellants cite two cases in further support of their position that where the 

claims of all members of a proposed class turn on a handful of common questions of 

8 We note that R.C. 4513.612(A)(1) states: "No towing service shall knowingly offer or provide monetary 

compensation in exchange for the authorization to tow motor vehicles from a specified location or on behalf 

of the person to whom the towing service offered or provided the compensation." Furthermore, R.C. 

4513.601(G)(1) states that the owner or lienholder of a vehicle that has been towed may reclaim it upon both: 

(1) presenting proof of ownership or lease agreement, and (2) payment of all applicable fees as established by 

the public utilities commission per R.C. 4921.25. R.C. 4921.25 provides that any company engaged in the 

towing of motor vehicles is subject to regulation of PUCO as a "for-hire motor carrier" under R.C. Chapter 

4921. It further provides that PUCO shall "establish maximum fees that may be charged by a for-hire motor 

carrier engaged in the towing of motor vehicles or a storage facility that accepts such vehicles under sections 

[R.C.] 4513.60 and 4513.601." R.C. 4921.25(B)(4). Ohio Adm.Code 4901:2-24-03 outlines maximum fees 

which may be charged for towing of motor vehicles and storage of motor vehicles. Ohio Adm.Code 4901:2-22-

06 outlines maximum fees for after-hours retrieval. Furthermore, pursuant to R.C. 4513.601(F), a towing 

service is required to send multiple notices to the owner of a towed motor vehicle and any known lienholder, 

and 60 days after any notice is received or delivery was not possible, the towing service may initiate the process 

for obtaining a certificate of title to a towed motor vehicle pursuant to R.C. 4505.101. 

Tim testified that Shamrock has an impound lot and if a towed motor vehicle is abandoned, they sell it as scrap 

or remarket it according to the Ohio Revised Code. 
No. 20AP-266 

26 

 

statutory and contractual interpretation concerning similar form contracts, those common 

questions predominate. 

{¶ 71} In the first case cited by appellants, Hamilton, 82 Ohio St.3d 67, 80, the 

Supreme Court held predominance was met by a class of mortgagors who had or still had 

mortgages with interest calculated by the same method. Hamilton at 77. In Hamilton, the 

proposed class member claims were a common legal claim of breach of contract resulting 

from the common fact of the application of the same method used to calculate the interest 

rates on their respective loans. Id. The Supreme Court found members of the classes 

retained common claims from the common fact that the monthly payment amount on their 

loans was established under the same method of interest calculation, resulting in the same 

failures regarding their loans. Id. The court held: "[T]he questions of law and fact which 

have already been shown to be common to each respective subclass arise from identical or 

similar form contracts." Id. at 80. 

{¶ 72} In the second case cited by appellants, Cope v. Metro. Life Ins. Co., 82 Ohio 

St.3d 426 (1998), life insurance policy holders alleged the insurance company applied 

accumulated cash values, dividends, and interest from existing life insurance policies to 

fund the purchase of additional life insurance policies. Cope at 427, 430. The Supreme 

Court found that the claims of the proposed class members were not predicated on 

misrepresentation or actionable conduct, but, rather, the complaint asserted that a scheme 

was employed to collect larger commissions through the intentional omission of mandated 

written disclosure warnings when the life insurance policies were replaced. Id. at 432-33. 

Cope held "[c]ourts also generally find that a wide variety of claims may be established by 

common proof in cases involving similar form documents or the use of standardized 

procedures and practices." Id. at 430. 

{¶ 73} The Supreme Court held in both Hamilton and Cope: "Class action treatment 

is appropriate where claims arise from standardized forms or routinized procedures, 

notwithstanding the need to prove reliance." Hamilton at 84, Cope at 435. 

{¶ 74} Review of the record of the testimony of Tim reflects that although the 

authorization form may begin as a standardized form, the procedures imposed by 

Shamrock and the opportunity for property owners to provide instruction as to their 
No. 20AP-266 

27 

 

authorization for Shamrock to tow, leads this court to find the matter before us is 

distinguishable from Hamilton and Cope. Specifically, as articulated above, authorization 

forms utilized by Shamrock are not standardized as to each property owner with which 

Shamrock conducts a tow because not only may property owners provide their own 

instructions as to how tows may be conducted on their lots, property owners may also 

choose any or all of the towing instructions as provided by Shamrock on the authorization 

form. As reflected on the authorization form and through testimony presented by 

Shamrock, procedures employed by Shamrock to conduct tows are performed on a variety 

of bases, including discretionary, which will necessarily require an individualized 

determination as to whether the tow was authorized by the property owner. Each tow 

conducted will have issues subject to individualized proof as to the authorization form 

governing that particular property. 

{¶ 75} Finally, we acknowledge appellants' argument that the trial court gave "short 

shrift" to the proposed contract subclass. Although the Supreme Court has held Civ.R. 23 

does not require a trial court to make formal findings regarding its decision on a motion for 

class certification, the court did note that there are compelling reasons for findings to be 

made, specifically that articulated findings allow the appellate court to determine whether 

the trial court's discretion was within the framework of Civ.R. 23. Hamilton at 70-71. The 

Supreme Court further held that unarticulated findings relative to the trial court's analysis 

of Civ.R. 23 leaves a reviewing court less likely to find the trial court properly exercised its 

discretion. Id. 

{¶ 76} Here, it is without question that the trial court made a one sentence 

conclusory finding regarding predominance as to appellants' proposed contract subclass. 

However, because the trial court is not mandated to make specific findings on the 

prerequisites for class certification, nor articulate its reasoning for its finding, we cannot on 

that basis alone find the trial court abused its discretion. See Hamilton at 70-71. Because 

the trial court references its extensive findings regarding appellants' proposed class and 

applies the same to the proposed contract subclass, we find the trial court left a framework 

from which we are able to review its analysis. Further, on our review of the record herein 

as to the need for individualized review of the facts and law as to each property owner's 
No. 20AP-266 

28 

 

authorization form, we cannot find that the record supports appellants' arguments in 

support of their third assignment of error. 

{¶ 77} Therefore, we find the trial court did not abuse its discretion in finding the 

predominance requirement was not met as to appellants' proposed contract subclass. 

{¶ 78} Accordingly, we overrule appellants' third assignment of error. 

D. Criteria of Ascertainability and Superiority – First and Second 

Assignments of Error 

{¶ 79} Because class certification pursuant to Civ.R. 23 requires all seven 

prerequisites to be met, failure to meet the predominance requirement as to appellants' 

proposed class and proposed contract subclass is dispositive, rendering appellants' first and 

second assignments of error moot. See Frisch's Restaurant at ¶ 18. 

IV. Conclusion 

{¶ 80} Having overruled appellants' third and fourth assignments of error as 

dispositive to appellants' appeal, we render appellants' first and second assignments of 

error moot, and affirm the judgment of the Franklin County Court of Common Pleas. 

Judgment affirmed. 

MENTEL and NELSON, JJ., concur. 

NELSON, J., retired, formerly of the Tenth Appellate District, 

Assigned to active duty under authority of the Ohio 

Constitution, Article IV, Section 6(C).