[Cite as Black v. Girard , 2020-Ohio-1562.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO

MILES BLACK, INDIVIDUALLY : O P I N I O N AND ON BEHALF OF THOSE SIMILARLY SITUATED, et al., : CASE NO. 2019-T-0050 Plaintiffs-Appellees, :

- vs - : CITY OF GIRARD, OHIO, et al., : Defendant-Appellant. :

Civil Appeal from the Trumbull County Court of Common Pleas, Ca se No. 2018 CV 01256.

Jud g ment: Affirmed.

Thomas A. Zimmerman , Zimmerman Law Offices, P.C., 77 West Washington Street, Suite 1220, Chicago, IL 60602, and Marc E. Dann , Brian Daniel Flick , and Michael Andrew Smith , The Dann Law Firm, 2728 Euclid Avenue, Suite 300, P.O. Box 6031040, Cleveland, OH 44103 ( For Plaintiffs-Appellees )

. James M. Popson and Robert E. Cahill , Sutter O’Connell Co., 1301 East Ninth Street, 3600 Erieview Tower, Cleveland, OH 44114 ( For Defendant-Appellant )

.

MATT LYNCH, J. {¶1} Defendant-appellant, the City of Girard, appeals the July 12, 2 019 Judgment Entry of the Trumbull County Court of Common Pleas, gr anting plaintiffsappellees’ Amended Motion for Class Certification. For the fol lowing reasons, we affirm

the decision of the court below. {¶2} On July 16, 2018, plaintiffs, Miles Black, Melissa Black aka Me lissa Hyde,2 Lorraine Morris, John Perfette, Samuel Rotz, and John Beal, fil ed a Class Action Complaint for Violation of the Ohio Constitution, Declaratory J udgment, Equitable Restitution, Violation of the Ohio Consumer Sales Protection Ac t, and Negligent Misrepresentation against defendants, the city of Girard, Ohio, and Blue Line Solutions,

LLC. {¶3} The Complaint identified Girard as an Ohio municipality authori zed to ticket persons who exceed the speed limits along Interstate 80 within its boundaries. Blue Line operates an automatic traffic enforcement system on b ehalf of Girard. {¶4} On July 18, 2018, the plaintiffs filed a Motion for Class Certi fication. {¶5} On August 15, 2018, Girard filed a Motion to Dismiss, pursuant to Civil Rule 12(B)(6), for failure to state a claim upon which relief c an be granted. The plaintiffs responded on August 30, 2018. Girard filed a Reply in Support of the Motion to Dismiss on September 10, 2018. {¶6} On September 17, 2018, Blue Line filed a Motion to Dismiss, pur suant to Civil Rule 12(B)(6), for failure to state a claim upon which re lief can be granted. The plaintiffs responded on October 18, 2018. Blue Line filed a Re ply Brief to the Plaintiffs’ Response on October 24, 2018. {¶7} On November 21, 2018, the trial court ruled on the Motions to D ismiss.

The court noted: According to the complaint, each Plaintiff was issued a citatio n for speeding in the City of Girard between the time frame of Decemb er 7, 2017 to January 7, 2018. During this time frame, the posted speed limit on the subject area of Interstate 80 was 55 mph. According to the Plaintiffs, the speed limit in the subject are a should have been 65 mph since the Ohio Department of Transportation had completed construction in the subject area on December 7, 2017. The citations were issued by the City of Girard, however ,3 Blue Line operates the traffic enforcement system according to the complaint. {¶8} The court dismissed the plaintiffs’ claims for violations of th e Ohio Consumer Sales Practices Act and negligent misrepresentation. The court ruled that “the motions are denied as to the remaining claims for due proc ess violations, declaratory judgment, equitable restitution, and civil conspira cy.” {¶9} On December 5, 2018, Blue Line filed its Answer to Plaintiffs’ Class Action Complaint. On December 17, 2018, Girard filed its Answer. {¶10} On May 2, 2019, the plaintiffs filed an Amended Motion for Clas s Certification. On May 31, 2019, Girard and Blue Line filed ind ividual Briefs in Opposition to the Amended Motion for Class Certification. The plaintiffs filed a Reply on June 14, 2019. With leave of court, Girard and Blue Line joint ly filed a Surreply in Opposition to the Amended Motion for Class Certification. {¶11} On July 12, 2019, the trial court issued its ruling on the Amen ded Motion for Class Certification. The court granted the following “Gene ral Class”: All persons and entities who were issued a citation for allegedly traveling in excess of 55 m.p.h. in violation of Gira rd City Ordinance 333.03 and/or Traffic Code Ordinance 8069-16, between December 7, 2017 and January 7, 2018, in the westbound lane of Interstate 80 within the municipal limits of the City of Girard

. The court defined a “Subclass 1 of this general class definitio n” as follows: All persons and entities who were issued a citation for allegedly traveling in excess of 55 m.p.h. in violation of Gira rd City Ordinance 333.03 and/or Traffic Code Ordinance 8069-16, between December 7, 2017 and January 7, 2018, in the westbound lane of Interstate 80 within the municipal limits of the City of Girard , and who paid any fines, penalties or fees related to the citation. The court defined a “Subclass 2 of the general class definition ” as follows:4 All persons and entities who were issued a citation for allegedly traveling in excess of 55 m.p.h. in violation of Gira rd City Ordinance 333.03 and/or Traffic Code Ordinance 8069-16, between December 7, 2017 and January 7, 2018, in the westbound lane of Interstate 80 within the municipal limits of the City of Girard , and who have not paid any fines, penalties or fees related to the citation, and whose citation was not found not liable at a hear ing. {¶12} On August 9, 2019, Girard filed a Notice of Appeal. On appeal, Girard raises the following assignments of error: {¶13} “[1.] The trial court erred by failing to undertake the require d rigorous analysis, which includes probing the underlying merits of the A ppellees’ claims, for the purpose of determining whether Appellees have satisfied the pre requisites of Civ.R. 23.” {¶14} “[2.] The trial court erred by certifying a class action becaus e the certified class is overly broad and Appellees failed to establish by a pr eponderance of the evidence the requirements of Civ.R. 23(A).” {¶15} An action may be maintained as a class action “if (1) the class is so numerous that joinder of all members is impracticable, (2) ther e are questions of law or fact common to the class, (3) the claims or defenses of the rep resentative parties are typical of the claims or defenses of the class, and (4) the rep resentative parties will fairly and adequately protect the interests of the class.” Civ.R. 23( A). {¶16} In addition to these prerequisites, “[a] class action may be ma intained if * * * the court finds that the questions of law or fact common to t he members of the class predominate over any questions affecting only individual member s, and that a class action is superior to other available methods for fairly and ef ficiently adjudicating the controversy.” Civ.R. 23(B)(3); In re Consol. Mtge. Satisfaction Cases , 97 Ohio St.3d 465, 2002-Ohio-6720, 780 N.E.2d 556, ¶ 7.5 {¶17} Finally, there are “[t]wo prerequisites * * * implicitly requir ed by Civ.R. 23”: the class must be identifiable and unambiguous, and the class r epresentatives must be

members of the class. Warner v. Waste Mgt., Inc. , 36 Ohio St.3d 91, 521 N.E.2d 1091 (1988), paragraphs one and two of the syllabus, 96; Hamilton v. Ohio Savings Bank , 82 Ohio St.3d 67, 71, 694 N.E.2d 442 (1998). 1 {¶18} “A trial court must conduct a rigorous analysis when determinin g whether to certify a class pursuant to Civ.R. 23 and may grant certific ation only after finding that all of the requirements of the rule are satisfied; the analysis requires the court to resolve factual disputes relative to each requirement and to find, base d upon those determinations, other relevant facts, and the applicable legal standard, that the requirement is met.” Cullen v. State Farm Mut. Auto. Ins. Co. , 137 Ohio St.3d 373, 2013-Ohio-4733, 999 N.E.2d 614, paragraph one of the syllabus. {¶19} “A party seeking certification pursuant to Civ.R. 23 bears the burden of demonstrating by a preponderance of the evidence that the propo sed class meets each of the requirements set forth in the rule.” Id. at paragraph three of the syllabus. {¶20} “A trial judge has broad discretion in determining whether a cl ass action may be maintained and that determination will not be disturbed absent a showing of an

abuse of discretion.” Marks v. C.P. Chem. Co., Inc. , 31 Ohio St.3d 200, 509 N.E.2d 1249 (1987), syllabus; Vinci v. American Can Co. , 9 Ohio St.3d 98, 459 N.E.2d 507 (1984), paragraph one of the syllabus. The abuse of discretion standard “applies to the

1. The Ohio Supreme Court in Hamilton identified the seven necessary requirements before an action could be maintained as a class action as follows: “(1) an ident ifiable class must exist and the definition of the class must be unambiguous; (2) the named representatives mu st be members of the class; (3) the class must be so numerous that joinder of all members is imprac ticable; (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 par ties must fairly and adequately protect the interests of the class; and (7) one of the three Civ.R. 23(B) r equirements must be met.” Id. at 71.6 ultimate decision of the trial court, * * * as well as to its d etermination regarding each requirement of the rule.” Cullen at ¶ 19. Nevertheless, as in civil cases generally where “the burden of persuasion is only by a preponderance of the evi dence, * * * evidence

must still exist on each element (sufficiency) and the evidence on each element must satisfy the burden of persuasion (weight).” Id. at ¶ 20, citing Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19. {¶21} With respect to the mandate for the trial court to “conduct a r igorous analysis” as to whether class certification is appropriate, thi s court has held: “Where the trial court’s written decision granting class certification pro vides an articulated rationale sufficient to support an appellate inquiry into whether the rel evant factors were properly applied, the trial court does not abuse its discretion in condu cting its rigorous analysis.”

Unifund CCR Partners v. Piaser , 2019-Ohio-183, 131 N.E.3d 233 (11th Dist.), ¶17, citing Baughman v. State Farm Mut. Auto. Ins. Co. , 88 Ohio St.3d 480, 483, 727 N.E.2d 1265 (2000). {¶22} The arguments in Girard’s assignments of error overlap to a cer tain extent. In the first assignment, Girard broadly argues that th e trial court failed to conduct a “rigorous analysis” as to whether class certification is appropriate. Arguments that the court failed to conduct a rigorous analysis with respe ct to particular findings are made under both assignments but will be considered by this cour t under the second assignment of error. {¶23} Under the first assignment of error, Girard asserts that the “t rial court’s complete failure to perform the rigorous analysis that is requi red of it in order to certify a class suggests that the trial court erroneously interpreted the law” so that this court7 “should review [its] decision using a de novo standard, rather than an abuse of discretion standard.” Appellant’s brief at 11. Girard relies on the following proposition of law: “At the certification stage in a class-action lawsuit, a trial court must undertake a rigorous analysis, which may include probing the underlying mer its of the plaintiff’s claim, but only for the purpose of determining whether the plai ntiff has satisfied the prerequisites of Civ.R. 23.” Stammco, L.L.C. v. United Tel. Co. of Ohio , 136 Ohio St.3d 231, 2013-Ohio-3019, 994 N.E.2d 408, syllabus. {¶24} Girard’s assertion that the trial court completely failed to co nduct a rigorous analysis stems from the trial court’s failure to addre ss arguments it raised which probed the underlying merits of the plaintiffs’ claims. For example, Girard notes that, between December 7, 2017 and January 7, 2018, 7,733 motor ists were issued citations on I-80 in Girard. Of this number, only 157 motorist s contested their citations by requesting a review hearing pursuant to R.C. 4511.098(A)(5). Of the motorists who contested their citations, “66 were found liable and paid some of the amount in response to their violation.” Yet the court failed “to analyze whether the failure of the vast majority of the proposed class to contest their citations via an administrative hearing constitutes a waiver of their claims,” thereby limiting the proposed class to 66 members. Appellant’s brief at 8. The court likewise failed “t o analyze whether Appellees’ sought-after remedy of equitable restitution is limi ted to the 66 motorists who did not receive complete relief from an administrative appeal.” Id. at 9. {¶25} Alternatively, the trial court failed to consider the argument that members of the proposed class who were cited for traveling at speeds in excess of 75 m.p.h. would nonetheless have violated the speed limit if the allegedl y proper limit of 65 m.p.h.8 had been posted. Id. at 7. Again, the court failed to consider “whether the failur e of two thirds of the [named plaintiffs] to contest their citations via an administrative hearing would create a fatal division in the proposed class.” Id. at 10. {¶26} We reject Girard’s argument that the trial court so completely failed to conduct a rigorous analysis that its judgment must be reversed as a matter of law. The arguments which Girard claims the trial court failed to conside r go far beyond the limited probing of the underlying merits for the purposes of determinin g whether the prerequisites of Civil Rule 23 have been satisfied sanctioned b y Stammco . Rather, these arguments concerning the exhaustion of administrative rem edies and/or the validity of the citations issued directly address the merits of the plaintiffs’ claims and only tangentially affect the prerequisites for certification. Binder v. Cuyahoga Cty , 2019- Ohio-1236, 134 N.E.3d 807, ¶ 81 (8th Dist.) (“the affirmative d efense of failure to exhaust administrative remedies * * * is an issue regarding the merits that must be proven”) and 147 (the existence of an injury-in-fact “is a meri t issue and is not something typically addressed in determining whether a class sh ould have been certified”). {¶27} The plaintiffs note that similar arguments were raised in Girar d’s Motion to Dismiss and rejected by the trial court. Neither that rejectio n nor the court’s failure to address the arguments in ruling on the Motion for Class Certifi cation are determinative of their merit. The Ohio Supreme Court has recognized that suc h arguments may be properly addressed at trial or in a summary-judgment motion. Stammco , 136 Ohio St.3d 231, 2013-Ohio-3019, 994 N.E.2d 408, at ¶ 39. Assuming, arguendo, that there are only 66 viable members in the proposed class, the Ohio Supr eme Court has held9 that such a number is sufficient for certification. Warner , 36 Ohio St.3d at 97, 521 N.E.2d 1091 (“[i]f the class has more than forty people in it, numerosity is satisfied”) (citation omitted). {¶28} Finally, we rely on this court’s holding in Piaser that, where the trial court’s decision articulates a rationale sufficient to permit appellate review of the particular findings necessary for certification, the court does not abuse its discretion with respect to conducting a rigorous analysis. Piaser , 2019-Ohio-183, at ¶ 17. The lower court’s Entry granting certification is sufficient to support appellate review. The validity of its analysis with respect to specific factors will be considered un der the second assignment

of error. {¶29} The first assignment of error is without merit. {¶30} Under the second assignment of error, Girard contends that the certified class is overly broad and fails to satisfy the requirements of Civil Rule 23(A). {¶31} Girard’s initial argument is that the certified class is overly broad. Girard relies on the following: “If * * * a class is defined so broadl y as to include a great number of members who for some reason could not have been harmed by th e defendant’s allegedly unlawful conduct, the class is defined too broadly to permit certification.” (Citation omitted.) Stammco , 136 Ohio St.3d 231, 2013-Ohio-3019, 994 N.E.2d 408, at ¶ 53. Here, “those traveling in excess of 75 m.p.h. and the 94 9 class members who have not paid their citations were not damaged by Girard’s enfo rcement of the posted speed limit.” Therefore, “the trial court certified a class th at is overly broad by including a great number of motorists who were not damaged.” Appellant’s brief at 15. {¶32} We reject the proposition that the certified class is overly br oad for two10 reasons. First, the plaintiffs’ position is that all the issue d citations were invalid regardless of the actual speeds traveled by the motorists. See Class Action Complaint at ¶ 73 (“Plaintiffs * * * are entitled to a declaration that t he Citations issued on the I-80 Non-Construction Zone * * * are invalid and unenforceable”). T he validity of the citations is one of the underlying issues in this case and does not properly bear on the preliminary issue of class certification. Ojalvo v. Bd. of Trustees of Ohio State Univ. , 12 Ohio St.3d 230, 233, 466 N.E.2d 875 (1984) (“[c]lass action cer tification does not go to the merits of the action”). Likewise, it is the plaintiffs’ co ntention that class members who have not paid their citations may nonetheless suffer injury inasmuch as their citations remain subject to collection as well as late charges and penalties. Class Action Complaint at ¶ 52. The lower court recognized the issue by defining two subclasses, one including persons who have paid their fines and the other including those who have not paid them. {¶33} Second, the overbreadth of the certified class in Stammco was not simply a matter of the defined class including persons who could not h ave been injured, but of being able to determine which unnamed class members had been in jured. The certified

class in Stammco was defined as persons who were billed for unauthorized teleph one service charges. The definition was found to be “too broad” be cause the defendant had “no records regarding which charges are authorized and which ar e not”: “every person who was billed a third-party charge for which [the defendant] h ad no prior authorization is now a class member even if the third-party charge was proper .” Stammco , 136 Ohio St.3d 231, 2013-Ohio-3019, 994 N.E.2d 408, at ¶ 56. In the pre sent case, by contrast, it is the plaintiffs’ contention that none of the citations wer e proper. Moreover, even if11 the actual speed of the class members should prove to be materi al, that information is in the parties’ possession and is readily determinable. {¶34} Girard next argues that “the certified class is not readily ide ntifiable and is ambiguously defined” as evidenced by the “numerous attempts to define a class and the fact that it took over a year to arrive at the final version.” Appellant’s brief at 15-16. The amount of time between the filing of the Complaint and class ce rtification has no bearing on whether the class is readily identifiable or ambiguously def ined. As a practical matter, the class defined by the trial court is essentially the same as the class proposed in the Complaint. Moreover, Girard’s own appellate brief readi ly identifies the class as comprising 7,733 motorists of whom 6,784 have paid their citati ons (subclass 1) and 949 have not paid them (subclass 2). {¶35} Girard next argues that the numerosity requirement of Civil Rul e 23(A)(1) was not satisfied in light of the fact that only 66 class membe rs have a potentially viable claim. Girard’s argument proce eds as follows: The plaintiffs’ declaratory judgment claim is not viable because a special statutory proceeding to contest the citations exists pursuant to R.C. 4511.099 and, as a matter of law, the remedy o f declaratory judgment is precluded. See State ex rel. Iris Sales Co. v. Voinovich , 43 Ohio App.2d 18, 19, 332 N.E.2d 79 (1975) (“[a] general rule regarding declaratory judgm ents is that where a special statutory method for the determination of a particular type of case has been provided, it is not proper to by-pass this statutory procedure by means of a declaratory judgment action”). {¶36} Girard’s argument continues: Of the three remaining causes of a ction for due process, civil conspiracy, and equitable restitution, the c laims for civil conspiracy12 and equitable restitution are wholly dependent on the due proce ss claim establishing a basis for liability. However, only 66 members of the certified class have a viable due process claim “because all other class members either successfu lly challenged their citations through an administrative hearing or waived their rig ht to contest the citations by failing to timely contest the citations in an administrative hearing.” Appellant’s brief at 19; R.C. 4511.098(A)(5) (“[t]he failure to request a hearing wi thin [the] time period constitutes a waiver of the right to contest the violation and ticket, and is deemed to constitute an admission of liability and waiver of the opportun ity to contest the violation”). {¶37} As noted above, Girard’s arguments relate to the underlying mer its of the plaintiffs’ claims rather than th e ability to define a class fo r the purpose of fac ilitating the “adjudication of disputes involving common issues between multi ple parties in a single

action.” Planned Parenthood Assn. of Cincinnati, Inc. v. Project Jericho , 52 Ohio St.3d 56, 62, 556 N.E.2d 157 (1990). Naturally, the plaintiffs conte st Girard’s claims. See, e.g., Lycan v. Cleveland, 8th Dist. Cuyahoga Nos. 107700 and 107737, 2019-Ohio3510, ¶ 24 (where “any participation in the City’s administrati ve hearing process would have been futile * * * the class was not required to exhaust ad ministrative remedies prior to pursuing the current judicial remedy”). At this stage of th e proceedings, however, it is neither appropriate nor necessary to determine these issues whi ch, as noted above, may be addressed at trial or on summary judgment. Also, as not ed above, even if the certified class were comprised of only 66 members, the Ohio Sup reme Court has held that this number is sufficient to satisfy the numerosity requir ement. Warner , 36 Ohio St.3d at 97, 521 N.E.2d 1091.13 {¶38} Girard argues that the commonality requirement of Civil Rule 23 (A)(2) was not satisfied “in light of the class members’ varying speeds an d because only a fraction of the class sought to contest their violation through an admin istrative hearing.” Appellant’s brief at 20. Girard admittedly employs the “same a nalysis” with respect to the commonality requirement as it did with respect to numerosit y: “[b]ecause every motorist who did not timely seek an administrative hearing waiv ed his or her right to contest the citation * * * the commonality of the questions of law extend solely to the 66 motorists who sought an administrative hearing but did not rece ive complete relief.” Id.

at 21. {¶39} The trial court determined that the “legal questions raised by the proposed subclasses would have common questions of law,” although the “q uestions of fact for each might be substantially different as to speed, location and response to receipt of the citation.” The court recognized that the division of the gener al class into one subclass of “those who paid the citation in some manner” and another sub class of “those that did not” would help “to separate those factual issues not germane t o the entire group.” The court’s analysis is reasonable. The issues raised by Girard as preventing class certification are essentially the common questions of law satis fying this requirement. {¶40} Girard argues that the typicality requirement of Civil Rule 23( A)(3) was not satisfied because only two of the named plaintiffs (Rotz and Be al) timely sought administrative hearings. The failure of the remaining four nam ed plaintiffs (Black, Hyde, Morris, and Perfette) “to timely seek an administrative hearing to contest the speeding citations is fatal to their claims and will set up a dichotomy in the class between those limited few who sought an administrative hearing and the vast m ajority of those who did14 not.” Appellant’s brief at 22. {¶41} As presently defined, the fact that only Rotz and Beal sought administrative hearings does not prevent the plaintiffs from sa tisfying the typicality requirement. Black, Hyde, Morris, and Perfette have paid their fines and so represent subclass 1 while Rotz and Beal have not paid and so represent s ubclass 2. As yet,

there has been no determination as to the affirmative defense o f failing to exhaust administrative remedies. Assuming, arguendo, that Girard ultim ately prevails on its arguments regarding exhaustion and only the claims of the 66 me mbers who sought administrative hearings remain viable, Rotz’ and Beal’s claims would still be typical of these members: they sought an administrative hearing, failed to obtain complete relief, and have not paid their fines. {¶42} Finally, Girard argues that the adequacy requirement of Civil R ule 23(A)(4) was not satisfied “in light of two thirds of Appellees failing to contest their citations” and so “will be antagonistic to the one third of Appellees and memb ers of the class who timely sought an administrative hearing to contest the speeding citations.” Appellant’s brief at 23. We disagree. {¶43} To the extent that the failure to exhaust administrative remedi es will deny any recovery to those plaintiffs that did not request a hearing , Black, Hyde, Morris, and Perfette will fairly and adequately protect the interests of th ose plaintiffs inasmuch as their claims are subject to dismissal on the same grounds. {¶44} The second assignment of error is without merit. {¶45} For the foregoing reasons, the judgment of the Trumbull County Court of Common Pleas, granting the plaintiffs’ Amended Motion for Class Certification, is15 affirmed. Costs to be taxed against the appellant.

TIMOTHY P. CANNON, P.J., MARY JANE TRAPP, J.,

concur.