[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as 

Lycan v. Cleveland, Slip Opinion No. 2016-Ohio-422.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in 

an advance sheet of the Ohio Official Reports. Readers are requested 

to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 

65 South Front Street, Columbus, Ohio 43215, of any typographical or 

other formal errors in the opinion, in order that corrections may be 

made before the opinion is published. 

SLIP OPINION NO. 2016-OHIO-422 

LYCAN ET AL., APPELLEES, v. THE CITY OF CLEVELAND, APPELLANT. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as Lycan v. Cleveland, Slip Opinion No. 2016-Ohio-422.] 

Appellate review—Final, appealable order—Res judicata—Automated traffic 

cameras—Preclusion effect of administrative process. 

(No. 2014-0358—Submitted March 11, 2015—Decided February 9, 2016.) 

APPEAL from the Court of Appeals for Cuyahoga County, 

No. 99698, 2014-Ohio-203. 

____________________ 

FRENCH, J. 

{¶ 1} This interlocutory appeal arises in a class action challenging the city 

of Cleveland’s collection of fines for traffic violations captured by its automated 

cameras. Defendant-appellant, the city of Cleveland, appeals the decision of the 

Eighth District Court of Appeals, which affirmed the trial court’s classcertification order and the appointment of plaintiffs-appellees, Janine Lycan, 

Thomas Pavlish, Jeanne Task, Lindsey Charna, Ken Fogle, and John T. Murphy, 
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2

as named plaintiffs. Because Cleveland has raised no arguments regarding class 

certification here, we affirm the Eighth District’s judgment in that respect. 

{¶ 2} Cleveland also appeals the Eighth District’s ruling, based on the 

doctrine of res judicata, that appellees’ failure to appeal their traffic violations 

through Cleveland’s administrative process did not bar them from pursuing 

equitable and declaratory relief in the trial court. We hold, however, that the 

Eighth District erred in addressing res judicata because the trial court did not 

decide that question in its class-certification order. In the absence of a final, 

appealable order from the trial court addressing res judicata, the Eighth District 

improperly ruled on that issue in the first instance. We therefore vacate in part the 

judgment of the Eighth District regarding the preclusive effect of Cleveland’s 

administrative process, and we remand this matter to the trial court for further 

proceedings. 

FACTS AND PROCEDURAL HISTORY 

Overview of Cleveland’s use of automated traffic cameras 

{¶ 3} Cleveland Codified Ordinances (“CCO”) 413.031 authorizes the use 

of automated traffic cameras in Cleveland to photograph red-light and speeding 

violations. The automated-camera system generates a ticket that is reviewed by a 

Cleveland police officer and then sent by first-class mail or personal service to the 

vehicle’s owner. CCO 413.031(h). 

{¶ 4} The ordinance imposes a $100 fine for red-light violations, a $100 

fine for speeding violations up to 24 miles per hour over the speed limit, a $200 

fine for speeding violations 25 miles per hour or more over the speed limit, and a 

$200 fine for any speed violation in a school or construction zone. CCO 

413.031(o). These civil fines do not constitute criminal penalties and do not 

result in the assessment of driver-suspension points. CCO 413.031(i). 

{¶ 5} The recipient of a notice of liability must either pay the fine within 

20 days from the date of the ticket’s mailing, CCO 413.031(o), or file a notice of 
January Term, 2016 

3

appeal and request an administrative hearing within 21 days from the date listed 

on the ticket, CCO 413.031(k). The ordinance provides: “The failure to give 

notice of appeal or pay the civil penalty within this time period shall constitute a 

waiver of the right to contest the ticket and shall be considered an admission.” Id. 

The city assesses late penalties if the fine is not paid within 20 days. CCO 

413.031(o). 

{¶ 6} The ordinance imposes liability on the “owner of a vehicle” 

committing a red-light or speeding offense. CCO 413.031(b) and (c). The 

ordinance formerly defined “vehicle owner” as “the person or entity identified by 

the Ohio Bureau of Motor Vehicles, or registered with any other State vehicle 

registration office, as the registered owner of a vehicle.” Cleveland Ordinance 

No. 1284-05 (July 20, 2005). In Dickson & Campbell, L.L.C. v. Cleveland, 181 

Ohio App.3d 238, 2009-Ohio-738, 908 N.E.2d 964, ¶ 50 (8th Dist.), the Eighth 

District concluded, based on the plain meaning of “vehicle owner,” that former 

CCO 413.031 did not impose liability on vehicle lessees. Cleveland subsequently 

amended CCO 413.031, effective March 11, 2009. The ordinance now states that 

a “vehicle owner” includes the “lessee” of a leased or rented vehicle. CCO 

413.031(p)(4). 

Plaintiffs’ class-action lawsuit 

{¶ 7} After the Dickson & Campbell decision was announced, Lycan filed 

a class-action complaint on February 26, 2009, in Cuyahoga County Court of 

Common Pleas challenging Cleveland’s imposition of fines against vehicle 

lessees under former CCO 413.031. An amended class-action complaint, filed on 

May 28, 2009, added Pavlish, Task, Charna, Fogle, and Murphy as named 

plaintiffs. The amended complaint alleged that each of the plaintiffs received a 

notice of liability from Cleveland stating that an automated traffic camera had 

identified the vehicle described and pictured in the notice as the vehicle being 

driven during the commission of a red-light or speeding offense. Plaintiffs 
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4

alleged that they had leased the vehicles identified in the notices of liability but 

were never the vehicles’ registered owners. 

{¶ 8} Instead of filing a notice of appeal and requesting a hearing to 

challenge their tickets, Lycan, Pavlish, Charna, and Fogle paid the $100 fine. 

Murphy received five notices of liability and paid a reduced amount for one 

ticket; Cleveland agreed to accept this as payment in full for all five tickets. Task 

received notices of liability for two separate speeding violations. Task did not 

pay the fines for either ticket and subsequently received a demand for payment of 

$320 in fines and penalties. 

{¶ 9} In their complaint, plaintiffs contended that Cleveland had no 

authority under the former version of CCO 413.031 to collect fines from plaintiffs 

as vehicle lessees. As relief, plaintiffs sought the following: (1) disgorgement, 

under an unjust-enrichment theory, of fines paid to the city, (2) an injunction 

preventing Cleveland from enforcing the ordinance against vehicle lessees, and 

(3) declaratory relief. Plaintiffs also filed a motion for class certification. 

{¶ 10} On November 24, 2009, the trial court granted Cleveland’s motion 

for judgment on the pleadings, finding that plaintiffs had waived the right to 

pursue judicial remedies by paying their fines and failing to appeal their citations 

as permitted by CCO 413.0319(k). In the same order, the trial court denied 

plaintiffs’ class-certification motion. 

Plaintiffs’ appeal to the Eighth District (“Lycan I”) 

{¶ 11} Plaintiffs appealed to the Eighth District Court of Appeals. The 

appeals court affirmed the trial court’s judgment dismissing plaintiffs’ claim for 

injunctive relief, finding that an injunction would serve no purpose because the 

offending ordinance has since been repealed. Lycan v. Cleveland, 8th Dist. 

Cuyahoga No. 94353, 2010-Ohio-6021, ¶ 9 (“Lycan I”). But the appeals court 

reversed the trial court’s dismissal of plaintiffs’ claims for restitution and 

declaratory relief. Id. at ¶ 8, 10. The court found that plaintiffs’ failure to 
January Term, 2016 

5

challenge the fines before payment did not necessarily foreclose plaintiffs from 

proving a set of facts where it would be unjust for Cleveland to retain the paid 

fines. Id. at ¶ 8. The appeals court also reversed the denial of plaintiffs’ classcertification motion and remanded for further proceedings on that question. Id. at 

¶ 11. 

{¶ 12} This court declined jurisdiction over Cleveland’s discretionary 

appeal. 128 Ohio St.3d 1501, 2011-Ohio-2420, 947 N.E.2d 683. 

Remand to the trial court 

{¶ 13} On remand, and after completion of discovery, the trial court 

addressed the parties’ competing motions for summary judgment on plaintiffs’ 

unjust-enrichment claim. In support of its motion, Cleveland argued that the 

administrative process provided an adequate remedy to those receiving civil 

notices of liability and that the doctrine of res judicata therefore precluded review 

of the class’s unjust-enrichment claim. More specifically, Cleveland argued that 

its notices of liability, combined with the opportunity to participate in the 

administrative-appeals process, constituted quasi-judicial administrative 

proceedings from which the preclusive effect of res judicata arose. 

{¶ 14} In an order dated February 8, 2013, the trial court granted partial 

summary judgment for plaintiffs. The court’s entry consisted of two lines. The 

first line stated that plaintiffs’ “[motion] for partial summary judgment * * * filed 

7/25/2012, is granted.” The second line of the order set a hearing date on 

plaintiffs’ motion for class certification and appointment of class counsel. The 

order contained no other findings of law or fact. Cleveland did not seek 

interlocutory review of this order by or before the March 11, 2013 appeal 

deadline. See Ohio App.R. 4(A) (providing that a notice of appeal must be filed 

within 30 days of a judgment entry). 

{¶ 15} The trial court held a class-certification hearing on February 19, 

2013. Cleveland did not assert res judicata in its memorandum opposing class 
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6

certification or at the class-certification hearing. On February 26, 2013, the court 

granted class certification and found that plaintiffs met the seven requirements of 

Civ.R. 23. The court certified the following class: “All persons and entities who 

were not a ‘vehicle owner’ under CCO 413.031, but were issued a notice of 

citation and/or [assessed] a fine under that ordinance, prior to [M]arch 11, 2009, 

by/or on behalf of Defendant, City of Cleveland.” The class-certification order 

contains no discussion of res judicata. 

Cleveland’s appeal to the Eighth District (“Lycan II”) 

{¶ 16} On March 27, 2013, pursuant to R.C. 2505.02(B)(5), which allows 

immediate appeal of a class-certification order, Cleveland appealed the February 

26, 2013 order to the Eighth District. Cleveland’s first assignment of error 

addressed the February 26, 2013 class-certification order and raised two 

arguments: that plaintiffs failed to meet the requirements of Civ.R.23 and that res 

judicata precluded class relief. Cleveland’s second assignment of error alluded to 

the February 8, 2013 partial-summary-judgment order. However, Cleveland did 

not address the summary-judgment order in its brief. 

{¶ 17} From the outset, the court distinguished the two orders and noted 

that the February 8, 2013 partial summary judgment was “not yet appealable” and 

was “not addressed in the substance of [Cleveland]’s brief.” Lycan v. Cleveland, 

8th Dist. Cuyahoga No. 99698, 2014-Ohio-203, 6 N.E.3d 91, ¶ 12 (“Lycan II”). 

The court therefore limited its review to the class-certification order: “the issues 

raised on appeal pertain to whether the Civ.R. 23(A) class action requirements 

were met and whether the action is barred by res judicata.” Id. 

{¶ 18} The court began with the latter question and considered whether 

plaintiffs’ failure to appeal their traffic citations through Cleveland’s 

administrative procedure precluded their class action. The doctrine of res 

judicata, as the court noted, provides that “ ‘a valid, final judgment rendered upon 

the merits bars all subsequent actions based upon any claim arising out of the 
January Term, 2016 

7

transaction or occurrence that was the subject matter of the previous action.’ ” Id.

at ¶ 15, quoting Grava v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 

(1995), syllabus. The court concluded that plaintiffs’ failure to pursue 

administrative relief did not bar plaintiffs’ class action “because there was never 

an actual ‘judgment’ rendered by a court, or administrative tribunal, of competent 

jurisdiction.” Id. Moreover, the court noted, even if an administrative decision 

had been rendered, Cleveland’s parking-violations bureau could not have decided 

plaintiffs’ claims for unjust enrichment and declaratory judgment. Id. The court 

declined to follow the “expansive view of res judicata” set forth in Carroll v. 

Cleveland, 522 Fed.Appx. 299 (6th Cir.2013), and Foor v. Cleveland, N.D.Ohio 

No. 1:12 cv 1754, 2013 WL 4427432 (Aug. 15, 2013). Id. at ¶ 14. The court 

concluded that “fairness and justice would not support the application of res 

judicata in this case.” Id. at ¶ 19. The court then proceeded to address 

Cleveland’s challenge to class certification. The court concluded that the class 

met all requirements under Civ.R. 23 and affirmed the trial court’s classcertification order. 

QUESTION PRESENTED 

{¶ 19} We accepted the following proposition of law: 

Cleveland Codified Ordinance 413.031 provides an 

adequate remedy in the ordinary course of law to those receiving 

civil notices of liability by way of the administrative proceedings 

set forth in the ordinance. State ex rel. Scott v. Cleveland[,] 112 

Ohio St.3d 324, 2006-Ohio-6573, 859 N.E.2d 923. Individuals 

who receive a civil citation issued pursuant to a local ordinance 

and who knowingly decline to take advantage of an available 

adequate remedy at law are precluded by res judicata from 

subsequently acting as class representatives and presenting 
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8

equitable claims predicated in unjust enrichment. Accord Carroll 

v. Cleveland, 522 Fed.Appx. 299 (6th Cir. Ohio 2013). 

See 139 Ohio St.3d 1416, 2014-Ohio-2487, 10 N.E.3d 737. 

{¶ 20} In this court, Cleveland does not challenge the Eighth District’s 

conclusions regarding whether the proposed class met the requirements of Civ.R. 

23. Instead, Cleveland argues only that plaintiffs cannot proceed with their class 

action because they did not take advantage of the administrative process and that 

therefore, the doctrine of res judicata bars them from relitigating their waived 

challenges to the traffic citations. Before reaching that argument, however, we 

must determine whether it is appropriate for us to consider res judicata in 

Cleveland’s interlocutory appeal of a class-certification order that never addressed 

that issue. On September 16, 2015, we ordered supplemental briefing for the 

parties to argue whether a final, appealable order exists in which the trial court 

ruled on the res judicata question raised in Cleveland’s proposition of law. Upon 

consideration of the parties’ briefs and the record below, we conclude that there is 

not such an order. In the absence of a final, appealable order from the trial court 

addressing that issue, we will not address Cleveland’s res judicata argument in the 

first instance. 

ANALYSIS 

{¶ 21} We begin with two well-settled principles governing the scope of 

appellate review. First, under Article IV, Section 3(B)(2) of the Ohio 

Constitution, appellate courts have jurisdiction to “review and affirm, modify, or 

reverse judgments or final orders of the courts of record inferior to the court of 

appeals within the district.” In the absence of a final order, an appellate court has 

no jurisdiction. State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 

23, ¶ 28; Supportive Solutions, L.L.C. v. Electronic Classroom of Tomorrow, 137 

Ohio St.3d 23, 2013-Ohio-2410, 997 N.E.2d 490, ¶ 10. An order is a final, 
January Term, 2016 

9

appealable order only if it meets the requirements of both R.C. 2505.02 and, if 

applicable, Civ.R. 54(B). Gehm v. Timberline Post & Frame, 112 Ohio St.3d 

514, 2007-Ohio-607, 861 N.E.2d 519, ¶ 15. Second, an appellate court limits its 

review to issues actually decided by the trial court in its judgment. See Bowen v. 

Kil-Kare, Inc., 63 Ohio St.3d 84, 89, 585 N.E.2d 384 (1992) (declining to rule on 

issue not decided by trial court). 

{¶ 22} Applying these two principles, we conclude that the Eighth District 

improperly ruled on the question of res judicata, because the trial court did not 

decide that question in a final, appealable order. 

{¶ 23} The parties do not dispute that the order that Cleveland appeals 

here—the trial court’s February 26, 2013 class-certification order—is a final, 

appealable order. See R.C. 2505.02(B)(5) (“An order that determines that an 

action may or may not be maintained as a class action” is a final, appealable 

order). That order, however, addresses only whether plaintiffs met the seven 

Civ.R. 23 requirements to maintain a class action. It contains no findings or 

discussion pertaining to res judicata or the preclusive effect of Cleveland’s 

administrative process. Therefore, it provides no basis for reviewing the res 

judicata question in this appeal. 

{¶ 24} Nor does the trial court’s February 8, 2013 entry granting partial 

summary judgment provide a basis for reviewing the res judicata question. The 

Eighth District declined to review that ruling because it was “not yet appealable 

and is not addressed in the substance of [Cleveland’s] brief.” Lycan II, 2014-

Ohio-203, 6 N.E.3d 91, at ¶ 12. We agree and note that if the order had been final 

and appealable on February 8, 2013, then Cleveland’s March 27, 2013 appeal to 

the Eighth District would have been untimely. We therefore decline to address 

the partial-summary-judgment order in this appeal. 

{¶ 25} Nevertheless, Cleveland raises several arguments in an attempt to 

shoehorn its res judicata defense into its appeal of the February 26, 2013 class-
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10 

certification order. First, Cleveland argues that given the proximity of the 

summary-judgment and class-certification orders, the class-certification order was 

a tacit rejection of Cleveland’s res judicata defense to plaintiffs’ motion for partial 

summary judgment. Nothing in the trial court’s class-certification order, 

however, can be construed as an implicit ruling on Cleveland’s res judicata 

argument. At best, the trial court noted as part of its Civ.R. 23 typicality analysis 

that “[i]n its Summary Judgment Order, this Court has already ruled that there are 

no unique defenses to the claims of the named class members.” The trial court’s 

two-line summary-judgment order does not contain any such language, let alone a 

ruling on res judicata. It concludes merely that plaintiffs’ “[motion] for partial 

summary judgment * * * filed 7/25/2012, is granted.” Cleveland did not assert 

that the action was precluded by res judicata in its memorandum opposing class 

certification or at the class-certification hearing before the trial court on February 

19, 2013. Given Cleveland’s failure to argue res judicata in those two instances 

and the trial court’s silence on the issue, it would be highly speculative to 

construe the class-certification order as an implicit ruling on res judicata. 

{¶ 26} Next, Cleveland contends that it preserved the res judicata issue on 

appeal by raising plaintiffs’ lack of standing as a defense to class certification. 

Plaintiffs lack standing to pursue class-action relief, Cleveland argues, because 

they paid their fines or otherwise waived their administrative appeal and, 

therefore, have not suffered any cognizable injury. Res judicata and standing are 

not interchangeable defenses, however. “Res judicata raises merit questions that 

are to be resolved in a merit decision.” Shaper v. Tracy, 76 Ohio St.3d 241, 242, 

667 N.E.2d 368 (1996), citing Shaper v. Tracy, 73 Ohio St.3d 1211, 1212, 654 

N.E.2d 1268 (1995). Standing, on the other hand, addresses justiciability, see 

generally Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 

2012-Ohio-5017, 979 N.E.2d 1214, ¶ 20-21, and “does not depend on the merits 

of the plaintiff’s claim,” ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio St.3d 520, 
January Term, 2016 

11 

2014-Ohio-2382, 13 N.E.3d 1101, ¶ 7. None of the cases cited by Cleveland 

support the proposition that we should treat standing and res judicata as doctrinal 

counterparts. See, e.g., Johnson v. Allen, 101 Ohio App.3d 181, 185, 655 N.E.2d 

240 (8th Dist.1995) (plaintiff who lacked standing to challenge guardianship 

appointment in probate court was barred by res judicata from challenging 

guardianship again in common pleas court). Cleveland’s challenge to plaintiffs’ 

standing during the class-action proceedings did not preserve the issue of res 

judicata on appeal of the class-certification order. And, to the extent that 

Cleveland raises standing as an independent ground for reversing class 

certification, we decline to address that issue here because Cleveland did not 

present a proposition of law to this court concerning standing. See Estate of 

Ridley v. Hamilton Cty. Bd. of Mental Retardation & Dev. Disabilities, 102 Ohio 

St.3d 230, 2004-Ohio-2629, 809 N.E.2d 2, ¶ 18 (declining to address argument 

raised by party in merit brief that had not been accepted as proposition of law); In 

re Timken Mercy Med. Ctr., 61 Ohio St.3d 81, 87, 572 N.E.2d 673 (1991) (same). 

{¶ 27} Finally, Cleveland argued below that an appeals court may review 

res judicata in the first instance as a subject-matter-jurisdiction question related to 

standing. While a reviewing court may consider a challenge to the court’s 

subject-matter jurisdiction for the first time on appeal, Jenkins v. Keller, 6 Ohio 

St.2d 122, 216 N.E.2d 379 (1966), paragraph five of the syllabus, either at the 

parties’ suggestion or sua sponte, State ex rel. Bond v. Velotta Co., 91 Ohio St.3d 

418, 419, 746 N.E.2d 1071 (2001), neither res judicata nor standing implicates 

subject-matter jurisdiction. 

{¶ 28} Cleveland argued that res judicata was a jurisdictional issue in the 

Eighth District and cited as support Lingo v. State, 8th Dist. Cuyahoga No. 97537, 

2012-Ohio-2391, affʼd on other grounds, 138 Ohio St.3d 427, 2014-Ohio-1052, 7 

N.E.3d 1188. In Lingo, the Eighth District used an amalgam of res judicata, 

standing, mootness, and subject-matter jurisdiction to hold that a class-
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12 

certification order was void. The Eighth District appears to have used the 

framework from Lingo in Lycan II to review res judicata as a jurisdictional issue 

in the absence of a final, appealable order. Our precedent, however, does not 

support Cleveland’s argument or the Eighth District’s analysis. 

{¶ 29} Like Cleveland in this case, the appellant in Lingo sought reversal 

of a class-certification order. Instead of addressing the class certification itself, 

the appellant argued that the plaintiffs lacked standing and that the trial court 

lacked subject-matter jurisdiction because res judicata barred the plaintiffs’ 

claims. Lingo at ¶ 15. The Eighth District noted the absence of any final, 

appealable order involving res judicata or standing. Id. Nevertheless, the Eighth 

District erroneously conflated the concepts of res judicata, standing, and subjectmatter jurisdiction and addressed these issues as relevant to its review of class 

certification: 

Jurisdiction is relevant when determining class certification 

because in order to represent the class, class members must have 

proper standing. Hamilton v. Ohio Sav. Bank, 82 Ohio St.3d 67, 

70, 1998-Ohio-365, 694 N.E.2d 442. If the representative 

member’s claims are barred by res judicata, he lacks standing and 

cannot represent the class. Sierra Club v. Morton, 405 U.S. 727, 

731-32, 92 S.Ct. 1361, 31 L.Ed. 636 (1972). Individual standing is 

a threshold to all actions, including class actions. Id.; see also 

Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 

(1975). 

Id. at fn. 3. The Eighth District ultimately found that res judicata barred the 

plaintiffs’ claims and that those claims were moot. Id. at ¶ 25. In the absence of a 

live case or controversy, the Eighth District concluded that the trial court lacked 
January Term, 2016 

13 

subject-matter jurisdiction and that any proclamation issued by the trial court, 

including its class-certification order, was void. Id. 

{¶ 30} Our precedent does not support the Eighth District’s approach. 

This court has stated that res judicata is an affirmative defense that does not 

implicate a court’s subject-matter jurisdiction. See State ex rel. LTV Steel Co. v. 

Gwin, 64 Ohio St.3d 245, 251, 594 N.E.2d 616 (1992) (assertion of res judicata

does not attack an appellate court’s jurisdiction); Shaper, 76 Ohio St.3d at 242, 

667 N.E.2d 368, citing Shaper, 73 Ohio St.3d at 1212, 654 N.E.2d 1268 (“res 

judicata raises merit questions” that are improperly asserted in a jurisdictional 

motion). We have also recently held that a party’s “lack of standing does not 

affect the subject-matter jurisdiction of the court.” See Bank of Am., N.A. v.

Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, paragraph three of 

the syllabus. To the extent that the Eighth District relied on its previous ruling in 

Lingo to address res judicata here in the absence of a final, appealable order, that 

reliance was misguided. 

{¶ 31} Finally, Cleveland did not assert a proposition of law or present 

any arguments in its briefs challenging the trial court’s finding that plaintiffs 

satisfied the Civ.R. 23 class-action requirements. Cleveland, then, has waived 

these arguments. Accordingly, without rendering an opinion as to the merits of 

class certification, we affirm the remaining portions of the Eighth District’s 

judgment with respect to class certification. 

CONCLUSION 

{¶ 32} For all these reasons, we affirm in part the Eighth District’s 

judgment and conclude that plaintiffs satisfied the requirements for class 

certification under Civ.R. 23. We also conclude, however, that the Eighth District 

erred in deciding that res judicata barred plaintiffs’ claims, in the absence of a 

final, appealable order from the trial court addressing that question. We therefore 
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vacate the Eighth District’s judgment with respect to res judicata, and we remand 

the cause to the trial court for further proceedings. 

Judgment affirmed in part 

and vacated in part, 

and cause remanded. 

PFEIFER, RICE, and O’NEILL, JJ., concur. 

O’CONNOR, C.J., dissents without opinion. 

LANZINGER and KENNEDY, JJ., dissent. 

CYNTHIA W. RICE, Eleventh District Court of Appeals, sitting for 

O’DONNELL, J. 

__________________ 

KENNEDY, J., dissenting. 

{¶ 33} Respectfully, I dissent. Civ.R. 23 does not require a trial court to 

recite talismanic words when certifying a class action. Nor is there any case 

authority imposing such a requirement on the trial court. The trial court is, 

however, required to “undertake a rigorous analysis” that may include probing the 

merits of the claim before it certifies a class action. Stammco, L.L.C. v. United 

Tel. Co. of Ohio, 136 Ohio St.3d 231, 2013-Ohio-3019, 994 N.E.2d 408, ¶ 44. 

{¶ 34} The trial court specifically held in its order certifying the class that 

“[i]n its Summary Judgment Order, this Court has already ruled that there are no 

unique defenses to the claims of the named class members.” By explicitly 

referring to the summary-judgment order, the trial court indicated that within its 

analysis of the issues before certifying the class under Civ.R. 23, it had rejected 

the city of Cleveland’s defenses of res judicata and mistake of law. Moreover, 

unlike the majority’s interpretation, a plain reading of the proposition of law 

presented in this appeal asserts that res judicata bars individuals who received a 

civil citation and declined to avail themselves of the civil administrative appeal 

remedy from serving as representatives for the certified class. Therefore, I would 
January Term, 2016 

15 

hold that the Eighth District Court of Appeals did not err in addressing the 

question of res judicata and that this court should address the substance of this 

appeal. 

{¶ 35} In order for the majority to hold that the trial court did not address 

the defense of res judicata in its class-certification order and there was no final, 

appealable order addressing res judicata, it must presume that the trial court did 

not conduct the rigorous analysis required by law. Wal-Mart Stores, Inc. v. 

Dukes, 564 U.S. 338, 131 S.Ct. 2541, 2551-2552, 180 L.Ed.2d 374 (2011). But a 

trial judge is presumed to know and follow the law. See Woodford v. Visciotti, 

537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002). 

{¶ 36} Civ.R. 23 governs the certification of a class-action lawsuit. A trial 

judge must make seven affirmative findings prior to certifying a class action. 

Warner v. Waste Mgt., Inc., 36 Ohio St.3d 91, 94, 521 N.E.2d 1091 (1988). One 

prerequisite set forth in Civ.R. 23(A)(3) is typicality, that is, that “the claims or 

defenses of the representative parties are typical of the claims or defenses of the 

class.” See generally Baughman v. State Farm Mut. Auto. Ins. Co., 88 Ohio St.3d 

480, 484, 727 N.E.2d 1265 (2000). Typicality has been found to have been 

satisfied “where there is no express conflict between the representatives and the 

class.” Warner at paragraph four of the syllabus. 

{¶ 37} This court has long held that because Civ.R. 23 is identical to the 

federal class-action rule, “federal authority is an appropriate aid to interpretation 

of the Ohio rule.” Marks v. C.P. Chem. Co., Inc., 31 Ohio St.3d 200, 201, 509 

N.E.2d 1249 (1987). In considering the issue of typicality, the Third Circuit 

Court of Appeals stated, “A proposed class representative is neither typical nor 

adequate if the representative is subject to a unique defense that is likely to 

become a major focus of the litigation.” Beck v. Maximus, Inc., 457 F.3d 291, 

301 (3d Cir.2006). When reviewing a class certification, the trial court should 

focus on “the similarity of the legal theory and legal claims; the similarity of the 
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individual circumstances on which those theories and claims are based; and the 

extent to which the proposed representative may face significant unique or 

atypical defenses to her claims.” In re Schering Plough Corp. ERISA Litigation, 

589 F.3d 585, 597-598 (3d Cir.2009). Other federal circuit courts have similarly 

emphasized this concern. See, e.g., Gary Plastic Packaging Corp. v. Merrill 

Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir.1990) (“there is a 

danger that absent class members will suffer if their representative is preoccupied 

with defenses unique to it”); Hanon v. Dataproducts Corp., 976 F.2d 497, 508 

(9th Cir.1992) (same); J.H. Cohn & Co. v. Am. Appraisal Assocs., Inc., 628 F.2d 

994, 999 (7th Cir.1980) (“the presence of even an arguable defense peculiar to the 

named plaintiff or a small subset of the plaintiff class may destroy the required 

typicality of the class * * *. The fear is that the named plaintiff will become 

distracted by the presence of a possible defense applicable only to him so that the 

representation of the rest of the class will suffer”). When certifying this case as a 

class action, it was appropriate and necessary for the trial court to consider 

whether the defense of res judicata was unique to the named representatives of the 

class and whether the defense barred appellees from serving as the representatives 

for the class. 

{¶ 38} The trial court stated that the class to be certified was “[a]ll persons 

and entities who were not a ‘vehicle owner’ under CCO 413.031, but were issued 

a notice of citation and/or [assessed] a fine under that ordinance, prior to March 

11, 2009, by/or on behalf of Defendant, City of Cleveland.” As defined, the class 

includes individuals who challenged a ticket under the city’s administrativeappeal process. But all the named class representatives had paid their tickets 

before the class action was filed and did not avail themselves of the 

administrative-appeal process to challenge the validity of the tickets. 

{¶ 39} This distinction between other members of the defined class and 

the named class representatives calls into question the issue of typicality. Since 
January Term, 2016 

17 

all the named class representatives failed to avail themselves of the 

administrative-appeal process and the class as defined might have included 

members who had appealed, the claims of the named class representatives might 

have been defeated by the defense of res judicata, while the claims of other 

members of the class might not have been defeated by that defense. 

{¶ 40} When the class was certified, the trial court stated that “[i]n its 

Summary Judgment Order, this Court has already ruled that there are no unique 

defenses to the claims of the named class members.” By explicitly referring to 

the summary-judgment order in the order certifying the class action, the trial court 

indicated that it had considered the defenses raised by the city in response to the 

motion for partial summary judgment within the analysis of the typicality 

prerequisite of Civ.R. 23. 

{¶ 41} In its November 21, 2012 reply brief in support of its own motion 

for summary judgment, the city argued that res judicata and mistake of law were 

defenses to the claims brought by the named class representatives. In granting the 

motion for partial summary judgment, the trial court issued a one-sentence order. 

While the order did not contain any findings of fact or conclusions of law, a 

logical conclusion is that the trial court rejected both of the city’s defenses. 

{¶ 42} The majority opinion asserts that “it would be highly speculative to 

construe the class-certification order as an implicit ruling on res judicata” because 

the city had not argued that the action was precluded by res judicata in either the 

memorandum opposing class certification or at the class-certification hearing. 

Majority opinion at ¶ 25. However, the record contradicts the majority’s position. 

{¶ 43} In its memorandum in opposition to the certification of the class, 

the city did argue that it was problematic for individuals who had paid their fines 

without availing themselves of the administrative-appeal process to serve as class 

representatives. The city argued: “All Plaintiffs, including Lycan, lack standing 

because each and every one of them admitted the violation by payment and/or not 
SUPREME COURT OF OHIO

18 

appealing the violation notice.” Although it labeled its argument as a standing 

argument, it correctly asserted the reasoning that applies to other defenses that 

destroy typicality. The city cited E. Texas Motor Freight Sys. Inc. v. Rodriguez, 

431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977), which analyzed whether the 

named plaintiffs were members of the class they claimed to represent, for the 

proposition that the “class representative must be part of the class and ‘possess the 

same interest and suffer the same injury’ as the class members.” Id. at 403, 

quoting Schlesinger v. Reservists Commt. to Stop the War, 418 U.S. 208, 216, 94 

S.Ct. 2925, 41 L.Ed.2d 706 (1974). This reasoning mimics the same concern 

courts have had when analyzing whether a defense unique to the named 

representatives negates typicality. See In re Schering Plough, 589 F.3d at 598 

(the representatives’ interests might not be aligned with those of the class). 

Implicit in the city’s standing argument is that its defense of res judicata 

prevented the named class representatives from satisfying typicality. “When an 

issue of law that was not argued below is implicit in another issue that was argued 

and is presented by an appeal, we may consider and resolve that implicit issue.” 

Belvedere Condominium Unit Owners’ Assn. v. R.E. Roark Cos., Inc., 67 Ohio 

St.3d 274, 279, 617 N.E.2d 1075 (1993). 

{¶ 44} Moreover, while discussing typicality during the class-certification 

hearing, counsel for the named class representatives recognized that the trial 

court’s ruling on summary judgment had answered the question whether there 

were any defenses unique to those representatives: “[T]here’s no unique defenses, 

the claim is the named class and the summary judgment has always [sic] been 

granted.” The majority further concludes the city was required to argue a futile 

position. Since the trial court’s granting of the motion for partial summary 

judgment was acknowledged in the class-certification hearing, the city was not 

required to reargue a settled issue. 
January Term, 2016 

19 

{¶ 45} Finally, the majority opinion asserts that the city did not present a 

proposition of law challenging the trial court’s certification of the class. The only 

proposition of law presented by the city states: 

Individuals who receive a civil citation issued pursuant to a local 

ordinance and who knowingly decline to take advantage of an 

available adequate remedy at law are precluded by res judicata

from subsequently acting as class representatives and presenting 

equitable claims predicated in unjust enrichment. 

(Emphasis added.) See 139 Ohio St.3d 1416, 2014-Ohio-2487, 10 N.E.3d 737. 

The gravamen of the proposition of law revolves around whether the application 

of the defense of res judicata bars the class representatives from serving the class 

as certified. 

{¶ 46} For the foregoing reasons, I would hold that by referring to the 

summary-judgment order, the certification order rejected the city’s defenses of res 

judicata and mistake of law, because the certification order could be issued only 

after a rigorous analysis of the prerequisite of typicality. Moreover, the 

proposition of law presented in this appeal asserts that res judicata bars 

individuals who received a civil citation and declined to avail themselves of the 

civil-administrative-appeal remedy from serving as representatives for the 

certified class. Therefore, I would hold that the Eighth District did not err in 

addressing the question of res judicata and that this court should address the 

substance of this appeal. 

{¶ 47} Accordingly, I respectfully dissent. 

LANZINGER, J., concurs in the foregoing opinion. 

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SUPREME COURT OF OHIO

20 

 Bashein & Bashein Co., L.P.A., and W. Craig Bashein; Paul W. Flowers 

Co., L.P.A., Paul W. Flowers, and Justin D. Care; and The Dickson Firm, L.L.C., 

and Blake A. Dickson, for appellees. 

 Barbara A. Langhenry, Cleveland Director of Law, and Gary S. 

Singletary, Assistant Director of Law, for appellant. 

 Mayle, Ray & Mayle, L.L.C., Andrew R. Mayle, Jeremiah S. Ray, and 

Ronald J. Mayle; and Murray & Murray Co., L.P.A., and John T. Murray, urging 

affirmance for amici curiae Bradley L. Walker and Sam Jodka. 

 Michael K. Allen & Associates and Joshua Adam Engel; Markovits, Stock 

& DeMarco, L.L.C., and Paul M. De Marco; and Rittgers & Rittgers and Charles 

H. Rittgers, urging affirmance for amicus curiae Michael K. Allen. 

 Frost Brown Todd, L.L.C., Philip K. Hartmann, Stephen J. Smith, and 

Yazan S. Ashrawi; and Ohio Municipal League and John Gotherman, urging 

reversal for amicus curiae Ohio Municipal League. 

 Adam W. Loukx, Toledo Director of Law, and Eileen Granata, urging 

reversal for city of Toledo. 

 Bricker & Eckler, L.L.P., Quintin F. Lindsmith, James P. Schuck, and 

Sommer L. Sheely, urging reversal for amicus curiae Redflex Traffic Systems, 

Inc. 

 Baker & Hostetler, L.L.P., Gregory V. Mersol, and Chris Bator, urging 

reversal for amicus curiae Xerox State & Local Solutions, Inc. 

 Mannion & Gray Co., L.P.A., Judd R. Uhl, and Katherine L. Kennedy, 

urging reversal for village of Elmwood Place. 

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