[Cite as Satterfield v. Ameritech Mobile Communications, Inc., 2017-Ohio-928.]

Court of Appeals of Ohio

 EIGHTH APPELLATE DISTRICT 

 COUNTY OF CUYAHOGA 

 JOURNAL ENTRY AND OPINION

 No. 104211 

 

CINDY SATTERFIELD, ET AL.

PLAINTIFFS-APPELLEES

vs.

AMERITECH MOBILE COMMUNICATIONS, 

INC., ET AL.

DEFENDANTS-APPELLANTS 

JUDGMENT:

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-03-517318 

BEFORE: Kilbane, J., Keough, A.J., and Laster Mays, J. 

RELEASED AND JOURNALIZED: March 16, 2017 
ATTORNEYS FOR APPELLANT

For Cincinnati SMSA Limited Partnership

James F. Lang 

Matthew J. Kucharson 

Calfee, Halter & Griswold, L.L.P. 

1405 East Sixth Street 

Cleveland, Ohio 44114 

Kerin Lyn Kaminski 

Karen L. Giffen 

Giffen & Kaminski, L.L.C. 

1300 East Ninth Street, Suite 1600 

Cleveland, Ohio 44114 

Hans J. Germann (pro hac vice) 

Mayer Brown, L.L.P. 

71 South Wacker Drive 

Chicago, Illinois 60606 

ATTORNEYS FOR APPELLEES

For Intermessage Communications

Randy J. Hart 

Randy J. Hart, L.L.P. 

3601 South Green Road, #309 

Beachwood, Ohio 44122 

Carla M. Tricarichi 

Tricarichi & Carnes, L.L.C. 

3601 Green Road, Suite 309 

Beachwood, Ohio 44122 
Dennis R. Rose 

Royce R. Remington 

Hahn Loeser & Parks, L.L.P. 

200 Public Square, Suite 2800 

Cleveland, Ohio 44114-2316 

Thomas R. Theado 

Gary, Naegele & Theado, L.L.C. 

401 Broadway Avenue, Unit 104 

Lorain, Ohio 44052-1745 

Mark D. Griffin 

Law Offices of Mark Griffin 

175 Honeybelle Oval 

Orange, Ohio 44022 
MARY EILEEN KILBANE, J.: 

{¶1} Defendant-appellant, Cincinnati SMSA Limited Partnership (operating 

under the trade name Ameritech Mobile (“Ameritech”)), appeals from the trial court’s 

order certifying a class action complaint brought by plaintiffs-appellees, Cindy Satterfield 

(“Satterfield”), Cindy Satterfield, Inc., n.k.a. Highland Speech Services, Inc. 

(“Highland”), and Intermessage Communications (“Intermessage”) (collectively referred 

to as “plaintiffs”). For the reasons set forth below, we affirm. 

{¶2} In December 2003, Satterfield, Highland, and Intermessage filed a class 

action complaint against Ameritech, Ameritech Mobile Communications, Inc., Verizon 

Wireless a.k.a. New Par, Verizon Wireless (“VAW”), L.L.C., and Airtouch Cellular 

Eastern Region, L.L.C. (the last three of which are collectively referred to as 

(“Verizon”)). Ameritech and Verizon are providers of wholesale and retail cellular 

telecommunications services and equipment. 

{¶3} Satterfield and Highland purchased cellular service from Verizon. 

Intermessage was a retail customer of Ameritech owned primarily by Kevin Moore 

(“Moore”) and Robert Schimmelphennig (“Schimmelphennig”). Intermessage operated 

a two-way radio business and sold backup panels for alarm systems. Intermessage 

purchased cellular service from Ameritech and placed it into a product that was used to 

back up the alarm systems it sold. Intermessage paid Ameritech directly for the cost of 

the cellular service and then passed those costs to its customers. Intermessage dissolved 

in 2001 and Moore and Schimmelphennig created a new business, Wireless Associates, 
Ltd. (“Wireless Associates”). Moore sold his interest in Wireless Associates to 

Schimmelphennig in 2005. 

{¶4} The complaint is based upon a prior ruling of the Public Utilities 

Commission of Ohio (“PUCO”), finding that Ameritech and Verizon discriminated 

against Cellnet, an independent reseller of cellular services, with respect to their offering 

of wholesale services to Cellnet. See In the Matter of Complaint of Westside Cellular, 

Inc. d.b.a. Cellnet v. New Par Cos. d.b.a. AirTouch Cellular & Cincinnati SMSA Ltd. 

Partnership, PUCO Case No. 93-1758-RC-CSS, 2001 Ohio PUC LEXIS 18 (Jan. 18, 

2001) (“Cellnet Order”). Cellnet alleged that Ameritech and Verizon had discriminated 

against it by unlawfully providing cellular service, equipment, and features to their own 

retail operations at rates, terms, and conditions more favorable than those that they made 

available to Cellnet. The PUCO found that Ameritech and Verizon committed numerous 

acts prohibited by R.C. Chapter 4905 (titled Public Utilities Commission — General 

Powers), commencing October 18, 1993.1

 Specifically, Ameritech and Verizon provided 

retail cellular service to end users at rates and upon terms and conditions more favorable 

than those that they made available to Cellnet. 

{¶5} In their complaint, Satterfield, Highland, and Intermessage defined the 

members of its class as all subscribers to the Verizon defendants’ service from 1991-1997 

 1 Under R.C. Chapter 4905, the PUCO requires all Ohio cellular phone 

companies to sell cellular service at nondiscriminatory wholesale rates. By 

increasing the number of competitors that could offer cellular service, the public 

would benefit from the lower prices that such competition would naturally cause. 
and all subscribers to Ameritech service from 1993-1998. Plaintiffs asserted the 

following three causes of action: (1) recovery for treble damages under R.C. 4905.61; 

(2) unjust enrichment; and (3) tortious acquisition of a benefit. They essentially claimed 

that 

[Ameritech] cheated Ohio cellular telephone consumers out of millions of 

dollars by excluding competitors that charged lower rates and by locking-in 

customers before other competitors could enter the market. By 

manipulating the market for cellular telephone service in Ohio — practices 

for which the PUCO has already found [Ameritech] liable — [Ameritech] 

caused each Class Member, including [Intermessage], to pay more for 

cellular telephone service than the market otherwise would have charged. 

{¶6} In January 2006, the trial court dismissed plaintiffs’ causes of action for 

unjust enrichment and tortious acquisition, finding that R.C. 4905.61 is the exclusive 

remedy for the plaintiffs. Under R.C. 4905.61, a plaintiff may recover against a public 

utility when the PUCO finds that a public utility engaged in conduct prohibited by statute 

or a PUCO order and the plaintiff suffered damages as a result of that conduct. 

{¶7} In September 2008, the court granted Verizon’s motion for judgment on the 

pleadings against Satterfield and Highland on statute of limitations grounds. In October 

2008, the parties agreed to dismiss all claims against Ameritech Mobile Communications, 

Inc. Therefore, the remaining cause of action before the trial court was Intermessage’s 

claim against Ameritech under R.C. 4905.61, which was limited by the trial court to the 

period of October 18, 1993 through September 8, 1995. 

{¶8} Also in September 2008, the trial court concluded that Intermessage’s claim 

for 1995-1998 was barred by the statute of limitations. The court found that the statute 
of limitations for the 1995-1998 claim expired on January 18, 2002, which was one year 

after the PUCO issued the Cellnet Order. The court found, however, that Intermessage 

could maintain its claim for the 1993-1995 period because such claim is controlled by the 

Ohio Supreme Court’s decision that reviewed the Cellnet Order — Westside Cellular, 

Inc. v. Pub. Utils. Comm., 98 Ohio St.3d 165, 2002-Ohio-7119, 781 N.E.2d 199. In 

Westside Cellular, the Ohio Supreme Court reversed that part of the Cellnet Order,

finding that Cellnet could not have suffered economic injury prior to 1995 because it had 

not earlier made a formal request to Ameritech for wholesale service. Instead, the court 

held that the applicable time frame commenced on October 18, 1993, which was the date 

of Cellnet’s complaint to the PUCO. Id. at ¶ 10. 

{¶9} Then in December 2008, Intermessage filed a motion for class certification. 

 Intermessage sought certification on behalf of “all retail subscribers of [Ameritech] who 

purchased service with an Ohio area code during the period October 18, 1993 through 

September 8, 1995.” In June 2015, the trial court conducted a pretrial conference to 

discuss the pending motion and required the parties to submit proposed orders. 

{¶10} On February 9, 2016, the trial court entered an opinion and order granting 

Intermessage’s motion for class certification. In a 19-page order, the trial court certified 

a class under Civ.R. 23(A) and (B)(3) consisting of “all retail subscribers of [Ameritech] 

who purchased service with an Ohio area code within geographic areas in which the 

PUCO decision found wholesale price discrimination during the period October 18, 1993 

through September 8, 1995.” In a thorough 19-page opinion, the trial court certified this 
class “on all the remaining claims, issues, and defenses presented in this action.” 

{¶11} It is from this order that Ameritech appeals, raising the following 

assignment of error for review. 

Assignment of Error 

The trial court erred in granting the motion for class certification filed by 

[Intermessage]. 

{¶12} In the sole assignment of error, Ameritech claims the court erred in granting 

class certification to Intermessage because it lacks standing to pursue its purported claim 

against Ameritech. Ameritech further argues that even if Intermessage had standing to 

bring the class action, the class was erroneously certified because: (1) it necessarily 

includes persons who were not injured; (2) individualized issues predominate over 

common questions of fact or law; (3) its claims are not typical of the purported class; and 

(4) a class action is not superior to other methods of adjudication. 

Standing 

{¶13} Ameritech first argues that the class certification fails because Intermessage 

lacks standing as an adequate class representative for the following three reasons: (1) 

Intermessage no longer owns its claim against Ameritech, but assigned it to others after it 

dissolved; (2) after dissolving, Intermessage failed to pursue its claim against Ameritech 

as speedily as practicable under R.C. 1701.88(D); and (3) the violations at issue found by 

the PUCO concerned duties Ameritech owed to an independent reseller regarding the 

provision of wholesale services, while Intermessage and the purported class it seeks to 

represent consist of indirect, retail purchasers. We disagree. 
{¶14} R.C. 1701.88, which establishes the powers of a corporation after 

dissolution, provides that “[a]ny claim existing or action or proceeding pending by or 

against the corporation may be prosecuted to judgment, with right of appeal as in other 

cases.” Id. at (C). Therefore, “the dissolution of a corporation does not abate ‘[a]ny 

claim existing or action or proceeding pending by or against the corporation or which 

would have accrued against it * * *.’” State ex rel. Falke v. Montgomery Cty. 

Residential Dev., 40 Ohio St.3d 71, 74, 531 N.E.2d 688 (1988), quoting R.C. 1701.88(B). 

{¶15} Ameritech argues that Intermessage lacks standing because Intermessage 

transferred its claim to either Wireless Associates, Ltd., or Schimmelphenning and 

Moore, after dissolving. In support of its contention, Ameritech relies on certain 

deposition testimony of Moore and Schimmelphennig. However, when asked about 

Intermessage’s assets Schimmelphennig stated that “I can’t tell you specifically * * * 

[b]ecause I don’t recall.” Additionally, Moore was never asked whether Intermessage 

had transferred its claim against Ameritech. In his affidavit attached to Intermessage’s 

motion for class certification, he stated that “[t]he claims brought in this suit on behalf of 

[Intermessage] existed in favor of [Intermessage] at the time of its dissolution, and are 

being pursued in this litigation pursuant to [R.C. 1701.88.]” Thus, Intermessage’s claim 

against Ameritech remained an asset of Intermessage after dissolution. 

{¶16} Ameritech also contends that Intermessage lacks standing to pursue its claim 

against it because Intermessage did not commence this action “as speedily as is 

practicable” when winding up its affairs. R.C. 1701.88(D) provides that the directors of 
a dissolved corporation “shall proceed as speedily as is practicable to a complete winding 

up of the affairs of the corporation.” “A corporation continues to exist after dissolution, 

for the purpose of winding up its affairs[.]” Diversified Prop. Corp. v. Winters Natl. 

Bank & Trust Co., 13 Ohio App.2d 190, 193, 234 N.E.2d 608 (2d Dist.1967), paragraph 

one of syllabus. 

{¶17} Ameritech claims that Intermessage waited 33 months to bring this suit. 

Ameritech acknowledges that Intermessage filed within the statute of limitations, but 

argues that it was not “speedily enough.” The damages Intermessage seeks against 

Ameritech occurred from October 18, 1993, through September 8, 1995. However, 

recovery of those damages can be only be obtained through a lawsuit brought under R.C. 

4905.61, which cannot be initiated without a prior finding that the utility had violated a 

PUCO statute or order. Cleveland Mobile Radio Sales, Inc. v. Verizon Wireless, 113 

Ohio St.3d 394, 2007-Ohio-2203, 865 N.E.2d 1275, ¶ 21, citing R.C. 4905.61; Milligan v. 

Ohio Bell Tel. Co., 56 Ohio St.2d 191, 383 N.E.2d 575 (1978), paragraph one of the 

syllabus. In the instant case, the liability finding was not made until 2001 by the Cellnet 

Order, which was not rendered final until 2002 by Cincinnati SMSA L.P. v. Pub. Util. 

Comm. of Ohio, 98 Ohio St.3d 282, 2002-Ohio-7235, 781 N.E.2d 1012. That finding 

expressly excluded the period of time now at issue in this lawsuit — October 18, 1993 

through September 8, 1995. Cellnet Order, 2001 Ohio PUC LEXIS 18 at 269-271. The 

first finding of liability involving the relevant 1993-1995 time period was not made until 

December 26, 2002, by the Supreme Court in Westside Cellular. Intermessage’s 
complaint was filed within a year later on December 16, 2003. R.C. 1701.88(A) 

provides that a corporation may do such acts as are required to wind up its affairs and for 

this purpose the dissolved corporation “shall continue as a corporation for period of five 

years from the dissolution[.]” Intermessage filed this lawsuit within three years of its 

dissolution. Therefore, Intermessage commenced its complaint as speedily as 

practicable in accordance with R.C. 1701.88. 

{¶18} Ameritech further argues that Intermessage lacks standing because the 

Cellnet Order did not establish liability as to Intermessage or any other retail customer. 

In the Cellnet Order, the PUCO held that Ameritech had violated Ohio statutes and 

PUCO orders, which provided that cellular telephone companies were required to 

maintain separate wholesale and retail operations; and the terms, conditions, and rates that 

the Ameritech’s wholesale operations made available to Ameritech’s affiliated retail 

operations were to be made available to any unaffiliated wholesale customer of 

Ameritech. 

{¶19} In the Cellnet Order, the PUCO found that Ameritech was providing its own 

affiliated reseller with service and equipment for free, while charging, or attempting to 

charge, the unaffiliated reseller Cellnet for the same service. This resulted in Ameritech 

being able to charge its own customers for service when it had minimized the 

competition. Intermessage’s economic expert believes that the price Ohio consumers 

would have paid without Ameritech’s conduct is about two-thirds of what they did pay. 

R.C. 4905.61 does not require anything more than a finding of unlawful conduct on the 
part of a public utility in order to permit an injured party to institute an action for damages 

in common pleas court. 

{¶20} Thus, based on the foregoing, we find that Intermessage has standing to 

recover damages against Ameritech for the injury caused by the PUCO violations. 

{¶21} Having found that Intermessage has standing to bring the class action 

against Ameritech, we now address Ameritech’s arguments regarding the trial court’s 

certification of the class action. 

Class Action — Standard of Review 

{¶22} A trial court has broad discretion in determining whether to certify a class 

action, and an appellate court should not disturb that determination absent an abuse of 

discretion. Marks v. C.P. Chem. Co., 31 Ohio St.3d 200, 509 N.E.2d 1249 (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.” (Citations omitted.) Blakemore v. Blakemore, 5 Ohio St.3d 217, 

219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 

144 (1980). In Hamilton v. Ohio Sav. Bank, 82 Ohio St.3d 67, 694 N.E.2d 442 (1998), 

the Ohio Supreme Court noted that “the appropriateness of applying the 

abuse-of-discretion standard in reviewing class action determinations is grounded * * * in 

the trial court’s special expertise and familiarity with case-management problems and its 

inherent power to manage its own docket.” Id. at 70, citing Marks; In re NLO, Inc., 5 

F.3d 154 (6th Cir.1993). “A finding of abuse of discretion * * * should be made 
cautiously.” Marks at 201. 

{¶23} The Hamilton court further noted that the trial court’s discretion in deciding 

whether to certify a class must be exercised within the framework of Civ.R. 23. Id. 

The trial court is required to “carefully apply the class action requirements” and to 

conduct a “rigorous analysis” into whether the prerequisites for class certification under 

Civ.R. 23 have been satisfied. Id. 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. 

Requirements for Class Action Certification 

{¶24} In determining whether a class action is properly certified, the first step is to 

ascertain whether the threshold requirements of Civ.R. 23(A) have been met. Once 

those requirements are established, the trial court must turn to Civ.R. 23(B) to discern 

whether the purported class comports with the factors specified therein. Accordingly, 

before a class may be properly certified as a class action, the following seven 

prerequisites must be met: (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 under Civ.R. 23(B) must be met. Hamilton, 

82 Ohio St.3d at 71, 694 N.E.2d 442, citing Civ.R. 23(A) and (B); Warner v. Waste Mgt. 
Inc., 36 Ohio St.3d 91, 96, 521 N.E.2d 1091 (1988). Of the Civ. R. 23(B) requirements, 

subsection (3) is applicable to the instant case. This section provides that a class action 

may be allowed if “the questions of law or fact common to class members predominate 

over any questions affecting only individual members, and that class action is superior to 

other available methods for fairly and efficiently adjudicating the controversy.” We note 

that the burden of establishing that a cause of action merits treatment as a class action 

rests on the party bringing the lawsuit. State ex rel. Ogan v. Teater, 54 Ohio St.2d 235, 

247, 375 N.E.2d 1233 (1978), citing Tolbert v. Western Elec. Co., 56 F.R.D. 108 

(N.D.Ga. 1972); McFarland v. Upjohn Co., 76 F.R.D. 29 (E.D.Pa. 1977). 

{¶25} Here, Ameritech raises arguments similar to those it raised before the trial 

court. It argues that the class certification must be reversed because the class necessarily 

includes persons who were not injured; individualized issues predominate; Intermessage 

failed to establish harm and damages on a class-wide basis; Intermessage cannot prove 

typicality; and a class action is not superior to other methods of adjudication. The trial 

court addressed these arguments and found in favor of Intermessage. We agree with the 

trial court. 

{¶26} In its thoughtful and detailed opinion granting class action certification, the 

court wrote: 

Typicality: This case satisfies Civ.R. 23(A)(3), requiring that the claims or 

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

the class. To satisfy this requirement, the claims of the named plaintiff 

“need not be identical” to those of other class members. 

[PlannedParenthood Assn. v. Project Jericho, 52 Ohio St.3d 56, 64, 556 

N.E.2d 157]. 
[A] plaintiff’s claim is typical if it arises from the same event or practice or 

course of conduct that gives rise to the claims of other class members, and 

if his or her claims are based on the same legal theory. When it is alleged 

that the same unlawful conduct was directed at or affected both the named 

plaintiff and the class sought to be represented, the typicality requirement is 

usually met irrespective of varying fact patterns which underlie individual 

claims. 

Baughman v. State Farm Mut. Auto. Ins. Co., 88 Ohio St.3d 480, 485, 

2000-Ohio-397, 727 N.E.2d 1265 (2000), quoting Newberg on Class 

Actions (3 Ed.1992) Sec. 3.13 (internal quotation omitted). The purpose 

of typicality is to protect absent class members and promote economy of 

class action by ensuring the named plaintiffs’ interests are substantially 

aligned with the class. Typicality is met where there is no express conflict 

between the class representatives and the class. Hamilton, [82 Ohio St.3d 

at 77, 694 N.E.2d 442]. 

[Ameritech] argues [Intermessage] is uniquely atypical because it passed on 

the entire cost of cellular service it purchased to its customers. 

[Intermessage] was manufacturer and seller of backup panels for alarm 

systems. [Intermessage] purchased cellular service for the backup panels 

from [Ameritech], and then sold the panels to its customers. Thus, 

[Intermessage] did not suffer the overcharge damages claimed by other 

class members. 

However, this argument constitutes “passing-on” defense, rebutted by the 

well-established rule that an offense is complete at the time of injury, 

regardless of the victim’s later acts in mitigation. [Hanover Shoe, Inc., v. 

United Shoe Machine Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 

(1968)]. [Intermessage] purports that the class is comprised of retail 

purchasers of cellular service, rather than retail users. Additionally, 

merely because [Intermessage] passed on the overcharge to its customers 

does not establish conflict between [Intermessage] and the other class 

members. 

The evidence of record shows [Intermessage’s] claim against [Ameritech] 

arises from the same events, practices, and conduct that give rise to the 

claims of every other class member, and the claims of each class member 

are based on the same legal theory. [Intermessage] alleges the same 

unlawful conduct was directed at or affected the named [Intermessage] and 

every other member of the class. More importantly, there is no conflict, 
express or otherwise, between the named [Intermessage] and the class. 

The typicality criterion for class certification is satisfied in this action. 

Adequacy: This case also satisfies Civ.R. 23(A)(4), requiring that the 

representative parties fairly and adequately protect the interests of the class. 

 This requirement “is divided into consideration of the adequacy of the 

representatives and the adequacy of counsel.” [Warner, 36 Ohio St.3d at 

98, 521 N.E.2d 1091 (1988)]. [Ameritech] does not contest the adequacy 

of [Intermessage’s] counsel to represent the class, but [Ameritech] does 

contend [Intermessage] is an inadequate class representative. 

A named plaintiff is deemed adequate so long as his or her interest is not 

antagonistic to the interest of other class members. Hamilton, [82 Ohio 

St.3d at 77-78, 694 N.E.2d 442]; Warner [at 98]; Marks, [31 Ohio St.3d at 

203, 509 N.E.2d 1249]. The evidence of record shows the interests of 

[Intermessage] are not antagonistic to the interests of any other member of 

the class. [Intermessage] was a retail subscriber and purchased service 

with an Ohio area code during the relevant time period. [Intermessage’s] 

interest is compatible with the interest of other class members who were 

also retail subscribers. 

[Ameritech] argues [Intermessage] is an inadequate class representative 

because [Intermessage] may be distracted by an arguable defense peculiar to 

it. Specifically, [Intermessage] is a dissolved corporation that failed to 

bring this matter as speedily as practicable to complete the winding up of its 

affairs as required by [R.C. 1701.88(D)]. [Intermessage] was voluntarily 

dissolved in March 2001 and brought the present action in December 2003. 

However, there is no strict rule requiring dissolved corporation to complete 

the winding up of its affairs by set date. Pursuant to [R.C. 1701.88(A)], a 

corporation may do such acts as are required to wind up its affairs and for 

this purpose the dissolved corporation shall continue as corporation for 

period of five years from the dissolution. [Intermessage] filed this lawsuit 

within three years of its dissolution. [Ameritech]’s argument has no merit. 

Also, [Ameritech] now asserts [Intermessage] is an inadequate class 

representative because [Intermessage’s] status as a dissolved corporation 

means it lacks standing to bring this claim. Standing involves the question 

of whether party has sufficient stake in an otherwise justiciable controversy 

to obtain judicial resolution of that controversy. Fed. Home Loan Mortg. 

Corp. v. Schwartzwald, 134 Ohio St.3d 13, 17, 2012-0hio-5017, 979 N.E.2d 

1214. The standing argument is similar to [Ameritech’s] argument that 

[Intermessage] failed to bring this matter as speedily as practicable to 

complete the winding up of its affairs as required by R.C. 1701.88(D). 
Both arguments invoke the Ohio statute dictating how a voluntarily 

dissolved corporation may bring lawsuit. 

Under Ohio law, a dissolved corporation may bring lawsuit if it is brought 

as part of the company’s winding up of its affairs. Under R.C. 1701.88(A), 

“when a corporation is dissolved voluntarily . . . the corporation shall cease 

to carry on business and shall do only such acts as are required to wind up 

its affairs * * * and for such purposes it shall continue as corporation for 

period of five years from the dissolution, expiration, or cancellation.” 

Pursuant to [R.C. 1701.88(B)], the voluntary dissolution of corporation 

shall not eliminate any remedy available to the corporation prior to its 

dissolution if the corporation brings an action within the time limits 

otherwise permitted by law. 

In this case, [Intermessage] was dissolved in March 2001 and filed this 

lawsuit in December 2003. [Intermessage] seeks remedy arising from 

conduct which occurred between October 18, 1993 and September 8, 1995. 

The PUCO decision finding that [Ameritech] had engaged in price 

discrimination was released on January 18, 2001. Both [Ameritech’s] 

alleged conduct and the PUCO decision occurred prior to the corporation’s 

dissolution. There is no dispute the case was brought within the applicable 

statute of limitations. Accordingly, [Intermessage] is an adequate class 

representative and will not be distracted by an arguable defense peculiar to 

it. 

* * * 

[Intermessage] has satisfied the adequacy criterion for class certification. 

Predominance: Questions of law and fact common to the members of the 

class must predominate over any questions affecting individual members. 

Predominance is met when there exists generalized evidence which proves 

or disproves an element on simultaneous, class-wide basis, since such proof 

obviates the need to examine each class member’s individual position. 

[Baughman v. State Farm Mut. Auto Ins. Co., 88 Ohio St.3d 480, 489, 727 

N.E.2d 1265 (2000).] 

In determining whether common questions predominate, “the focus of the 

inquiry is directed toward the issue of liability.” Cicero v. U.S. Four, Inc., 

10th Dist. Franklin No. 07AP-310, 2007-0hio-6600, ¶ 38. The 

predominance requirement is satisfied where the questions of law or fact 

common to the class represent a significant aspect of the case and are able 
to be resolved for all members of the class in single adjudication. Schmidt 

v. AVCO Corp. 15 Ohio St.3d 310, 313, 473 N.E.2d 822 (1984). 

The central issue of this case is to what extent [Ameritech] is liable to 

[Intermessage] for [Ameritech’s] wholesale price discrimination. In [the 

Cellnet Order,] the PUCO found [Ameritech] had engaged in unlawful 

discriminatory pricing practices. Under [R.C. 4905.61], a public utility 

which engages in price discrimination is liable to any person, firm, or 

corporation injured by such violation. 

The issues presented by [Intermessage’s R.C. 4905.61] claims are common 

to the proposed class — e.g., whether [Ameritech’s] conduct affected the 

market and proximately caused retail cellular prices to be artificially 

inflated; whether [Ameritech’s] conduct prevented resellers from increasing 

their market share by lowering their prices; whether [Ameritech’s] conduct 

prevented other resellers from entering the Ohio market; and whether and to 

what extent [Ameritech’s] conduct proximately caused injury to the 

members of the class. These issues “represent significant aspect of the 

case” and are “able to be resolved for all members of the class in a single 

adjudication.” Schmidt, [15 Ohio St.3d at 313, 473 N.E.2d 822]. All of 

the issues bearing upon [Ameritech’s] liability are common to the class as 

whole. These issues can be adjudicated in single, class-wide trial and 

predominate over any individual issues that might remain. 

[Intermessage’s] expert Dr. Gale opined that without discriminatory pricing, 

resellers would have been more competitive, whether as group because 

there are more of them, or because particular reseller became more 

competitive, causing prices to decline. The price decline would have 

impacted all consumers. Gale Dep. at 67. 

Dr. Gale further stated: “It is my opinion that the alleged acts by 

[Ameritech] had class-wide impact, and that there are feasible and 

widely-used methodologies for showing the impact through common 

proof.” Report of John M. Gale (“Gale Report”), at p. 2. Dr. Gale 

identified one possible model for measuring damages the 

“McFadden/Woroch model” developed for the damages litigation arising 

from the PUCO determination[.] During this litigation, Dr. Gale assisted 

Professors McFadden and Woroch with “preparing an expert report which 

included damage estimate for Cellnet [aka Westside Cellular, the plaintiff in 

the PUCO case] based on standard model of competition and consumer 

demand well documented in the economics literature.” Gale Report at p. 4. 
Dr. Gale described the McFadden/Woroch model as follows: “[t]he 

damages model employed by Professors McFadden and Woroch estimated, 

for each year in each of seven Ohio SMSAs [Standard Metropolitan 

Statistical Areas], retail prices and sales for each of the two facilities-based 

cellular providers and Cellnet but for the price discrimination. The model 

relied upon data for costs, revenues, subscribers, and prices provided by 

defendants and Cellnet. In addition, the model used estimates of consumer 

demand for wireless services published in the economics literature. The 

methodology did not vary across SMSAs and years. During the [Cellnet] 

litigation, variations of the damages model were introduced by one 

defendant’s expert that included entry of multiple resellers at the 

non-discriminatory wholesale prices.” Gale Report at p. 4. As explained 

by Dr. Gale, “[t]hese models, relied upon by both Cellnet’s and defendant’s 

experts demonstrate not only that model which shows class-wide impact is 

available, but that such model has already been developed and used.” [Id.] 

[Ameritech] argues the court must deny class certification because Dr. Gale 

does not propose definite method allocating damages among the proposed 

class. [Ameritech] challenges Dr. Gale’s Report because, as Dr. Gale 

admits, he has never used the McFadden/Woroch model to determine 

class-wide impact and damages in this case. In fact, the model would have 

to be adapted to show class-wide impact across the retail market. Gale 

Dep. p. 69. 

[Ameritech] relies principally on the United States Supreme Court’s 

decision in [Comcast Corp. v. Behrend, 133 S.Ct. 1426, 185 L.Ed.2d 515 

(2013)]. [Ameritech] argues that Comcast stands for the proposition that 

[Intermessage] must provide damages model susceptible to measurement 

across the entire class in order to satisfy the predominance requirement. 

This reading of the Comcast holding is unduly broad. 

* * * 

Comcast was unusual because the plaintiff’s damages model was 

disconnected from the plaintiff’s theory of liability. Comcast is 

distinguished because in this case [Intermessage’s] proposed theory of 

damages is consistent with its theory of liability. [Intermessage’s] expert 

may not have an exact measure of damages, but as the Comcast court 

acknowledges, at this stage of class certification an exact measure is not 

required. Id. 
The court need only probe the underlying merits of plaintiff’s claim for the 

purposes of determining whether plaintiff has satisfied the prerequisites of 

class certification. Stammco, L.L.C. v. United Tel. Co. of Ohio, 136 Ohio 

St.3d 231, 242, 2013-Ohio-3019, 994 N.E.2d 408. [Intermessage] is 

pursuing this claim pursuant to [R.C. 4905.61], which allows person, firm 

or corporation injured by public utility’s price discrimination to seek 

damages. The PUCO already determined that [Ameritech] engaged in 

price discrimination. [Intermessage] must prove injury in order to establish 

liability. Whether [Intermessage] can provide working damages model 

goes directly to the merits of [Intermessage’s] claim. While class brought 

pursuant to [R.C. 2905.61] must prove damages to prevail on the merits, 

such proof is not prerequisite to class certification. Predominance 

“requires showing that questions common to the class predominate, not that 

those questions will be answered, on the merits, in favor of the class.” 

[Amgen Inc. v. Connecticut Retirement Plans Trust Funds, 133 S.Ct. 1184, 

1191, 185 L.Ed.2d 308 (2013).] 

Moreover, [Intermessage] need not prove that each element of claim can be 

established by class-wide proof. The rule requires “that common questions 

predominate over any question affecting only individual class members.” 

Glazer v. Whirlpool Corp. (In re Whirlpool Corp. Front-Loading Washer 

Prods. Liab. Litig.), 722 F.3d 838, 860-61 (6th Cir.2013), quoting Amgen

[at 1196] (internal quotation omitted) (emphasis in original). Comcast

does not abrogate existing case law dictating that the court should not delve 

too deeply into the merits of plaintiff’s claim at the class certification stage 

of the litigation. Stammco, 136 Ohio St.3d at 242. Moreover, “[w]hether 

mathematical formula could be used to calculate individual damages is 

irrelevant because the need to calculate damages individually, by itself, is 

not reason to deny class certification.” Hoang v. E*Trade Group, Inc., 151 

Ohio App.3d 363, 2003-Ohio-301, ¶ 21, (8th Dist.), jurisdictional motion 

overruled, 99 Ohio St.3d 1437 (8th Dist.2003). 

* * * 

[Intermessage’s] claims in this case are common to the class. 

[Intermessage’s] theory of liability consists of whether [Ameritech’s] 

anti-competitive conduct affected the market and proximately caused retail 

cellular prices to be artificially inflated. The damages theory is the 

difference between what retail customers actually paid for cellular service 

and what retail customers should have paid but-for [Ameritech’s] 

anti-competitive conduct. Dr. Gale’s report proposes a model that could be 

adapted to measure class-wide damages resulting from [Intermessage’] only 
theory of liability. 

Although Dr. Gale does not provide an exact model for measuring damages, 

the court will have an opportunity through the factual development of the 

case to consider whether the damages formula can be established and 

utilized. Also, [Intermessage] will be subject to summary judgment if it is 

not able to establish damages model. Finally, the court may alter or amend 

its certification of the class at any time prior to final order. Civ. R. 

23(C)(1)(c). 

[Ameritech] additionally argues that determination of injury in fact would 

require an individual by individual review of each class member claim and 

that this fails the predominance requirement of class certification. In fact, 

Dr. Gale testified at his deposition “[i]f wanted to determine the damages to 

particular individual, would have to go and find out what they paid, would 

have to go and find out how they would choose among alternatives, and 

then would have to go and make prediction based on the alternatives that 

were available to them in the but-for world, which one of those alternatives 

they would choose. Then I could make an estimation of the damages for 

that individual.” Gale Dep. at 104:2-10. 

However, individualized damages are not fatal to class certification because 

predominance focuses on liability, rather than damages. Ojalvo v. Board of 

Trustees of Ohio State Univ., 12 Ohio St.3d 230, 232[, 466 N.E.2d 875] 

(1984). It is not necessary for a plaintiff to prove “that each element of 

claim can be established by classwide proof: What the rule does require is 

that common questions predominate over any questions affecting only 

individual class members.” [Glazer, 722 F.3d at 858, quoting [Amgen, 

133 S.Ct. at 1196], (internal quotation omitted) (emphasis in original). 

To clarify, if common liability issues predominate over issues of individual 

liability or damages, then the predominance requirement is satisfied even 

though the actual damages may be individualized. Here, the issue of 

whether [Ameritech’s] anti-competitive conduct affected the market and 

proximately caused retail cellular prices to be artificially inflated is common 

to the class. 

[Intermessage] has demonstrated that the common liability issues 

predominate over individual claims of class members and has satisfied the 

predominance requirement for class certification. 

Superiority: Finally, this case satisfies the superiority requirement for 
class certification. The superiority criterion is satisfied where “the 

efficiency and economy of common adjudication outweigh the difficulties 

and complexity of individual treatment of class members claims.” 

[Warner, 36 Ohio St.3d at 96, 521 N.E.2d 1091]. “[I]n determining 

whether class action is superior method of adjudication, the court must 

make comparative evaluation of the other processes available to determine 

whether class action is sufficiently effective to justify the expenditure of 

judicial time and energy involved therein.” Westgate Ford Truck Sales, 

Inc. v. FordMotor Co., 8th Dist. Cuyahoga No. 86596, 2007-Ohio-4013, 

¶ 78, quoting [Schmidt, 15 Ohio St.3d at 313, 473 N.E.2d 822.] (internal 

quotations omitted). Class certification should be granted where 

“[r]epetitious adjudication of liability, utilizing the same evidence over and 

over, could be avoided.” [Marks, 31 Ohio St.3d at 204, 509 N.E.2d 1249]. 

In the instant case, class certification will permit class-wide adjudication of 

all issues bearing upon [Ameritech’s] liability. Without class certification, 

adjudication of class members claims would require tens of thousands of 

individual suits with concomitant duplications of costs, attorneys’ fees, and 

demands upon court resources. Ojalvo, supra, 12 Ohio St.3d at 235 (a 

class action is “the ideal means of adjudicating in single proceeding what 

might otherwise become three thousand to six thousand separate 

administrative actions”). Similar benefits will accrue to [Ameritech] 

through avoidance of multiple suits and multiple jury determinations. 

Moreover, if class members were required to pursue their claims 

individually, the potential for recovery likely would be outweighed by the 

cost of investigation, discovery, and expert testimony. Class certification 

overcomes the lack of incentive individuals would face in attempting to 

recover small amounts with individual actions. [Hamilton, 82 Ohio St.3d 

67 at 80, 694 N.E.2d 442]. The aggregation of class members claims in 

class action will ensure there is “a forum for the vindication of rights” that 

is economical enough to pursue. Cope v. Metro. Life Ins. Co., 82 Ohio 

St.3d 426, 431, 1998-Ohio-405, 696 N.E.2d 1001, quoting Hamilton [at 80] 

(1998) (internal quotations omitted). 

Based on the whole of the parties’ submissions and the evidence presented, 

class action is the most efficient means of adjudicating [Ameritech’s] 

alleged liability and the damages allegedly caused to the proposed class 

members. A class action will avoid the repetitious adjudication of liability 

and is sufficiently effective as to justify the judicial time and energy 

involved. [Intermessage] has satisfied the superiority requirement for 

class certification. 
{¶27} We agree with the detailed findings of the trial court. Intermessage has 

satisfied the predominance, typicality, superiority, and adequacy requirements for class 

certification. Intermessage’s claim against Ameritech arises from the same events, 

practices, and conduct that give rise to the claims of every other class member, and the 

claims of each class member are based on the same legal theory. Furthermore, the 

PUCO has already determined that Ameritech engaged in price discrimination. In the 

instant case, Intermessage is pursuing its claim under R.C. 4905.61, which allows a 

corporation injured by public utility’s price discrimination to seek damages. In support 

of its predominance contention, Ameritech’s relies on Felix v. Ganley Chevrolet, Inc., 

145 Ohio St.3d 329, 2015-Ohio-3430, 49 N.E.2d 1224 and Ford Motor Credit v. 

Agrawal, 8th Dist. Cuyahoga No. 103667, 2016-Ohio-5928, and argues that Intermessage 

did not suffer any injuries because it passed the costs on to its customers.2

 The court 

found, and we agree, that the issue of whether Ameritech’s anticompetitive conduct 

affected the market and proximately caused retail cellular prices to be artificially inflated 

is common to the class. If common liability issues predominate over issues of individual 

liability or damages, then the predominance requirement is satisfied even though the 

actual damages may be individualized. 

 2Felix and Ford Motor Credit stand for the proposition that all class members must be in fact 

injured by defendant’s actions. Felix was an Ohio Sales Consumer Practices Act (“OSCPA”) case 

that carried an extra burden of proof for the plaintiff. In Ford Motor Credit, this court found 

that individualized inquiry is necessary to determine injury. Id. at ¶ 30. These 

cases are factually distinguishable as the instant case does not involve the OSCPA 

and the record demonstrates an injury to all class members. 
{¶28} We are mindful that 

due deference must be given to the trial court’s decision. A trial court that 

routinely handles case-management problems is in the best position to 

analyze the difficulties which can be anticipated in litigation of class 

actions. * * * A finding of abuse of discretion * * * should be made 

cautiously. 

Marks, 31 Ohio St.3d at 201, 509 N.E.2d 1249. 

{¶29} Here, the trial court presided over the instant case for over 13 years and 

concluded that Intermessage established the requirements to maintain a class action under 

Civ.R. 23. In doing so, the trial court conducted a 19-page analysis into whether the 

prerequisites for class certification under Civ.R. 23 have been satisfied. Cognizant of the 

fact that a class-action certification does not go to the merits of the action, the trial court 

acknowledged that it will have an opportunity to consider whether damages can be 

established, summary judgment is possible if Intermessage is not able to establish 

damages, and the court’s ability to alter or amend its certification of the class at any time 

prior to final order. 

{¶30} Therefore, based on the foregoing, we find that the trial court did not abuse 

its discretion in certifying the class in the instant case. 

{¶31} The sole assignment of error is overruled. 

{¶32} Accordingly, judgment is affirmed. 

It is ordered that appellees recover of appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 
pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

MARY EILEEN KILBANE, JUDGE 

KATHLEEN ANN KEOUGH, A.J., and 

ANITA LASTER MAYS, J., CONCUR