[Cite as Berdysz v. Boyas Excavating, Inc., 2017-Ohio-530.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104001


                            JOHN C. BERDYSZ, ET AL.

                                                              PLAINTIFFS-APPELLEES

                                                      vs.

                     BOYAS EXCAVATING, INC., ET AL.

                                                              DEFENDANTS-APPELLANTS

                                            JUDGMENT:
                                             AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-14-826410

        BEFORE: Jones, P.J., E.T. Gallagher, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: February 16, 2017
ATTORNEYS FOR APPELLANT

Timothy J. Riley
Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103

Matthew B. Barbara
Gregory G. Guice
Holly M. Wilson
Reminger Co., L.P.A.
1400 Midland Building
101 Prospect Avenue, West
Cleveland, Ohio 44115

ATTORNEYS FOR APPELLEES

For Boyas Excavating, Inc.

Timothy J. Weyls
Weyls, Peters & Chuparkoff, L.L.C.
6505 Rockside Road, Suite 105
Independence, Ohio 44131

For John C. Berdysz

Edward W. Cochran
Cochran & Cochran
20030 Marchmont Road
Shaker Heights, Ohio 44122

Thomas J. Connick
Connick Law, L.L.C.
25550 Chagrin Boulevard, Suite 101
Beachwood, Ohio 44122

David Mullen
Weltman Weinberg & Reis Co., L.P.A.
323 West Lakeside Avenue, 2nd Floor
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:

        {¶1} Defendant-appellant, the city of Garfield Heights (“Garfield Heights”),

appeals from the trial court’s December 2015 judgment granting the plaintiffs-appellees’

motion to certify this case as a class action.   We affirm.

Procedural History and Facts

        {¶2} The plaintiffs-appellees in this action are John Berdysz, Colette Berdysz, John

Drab, Marianne Eckhoff, Patricia Masa, Alberta Krupp, and Kathleen Tucciarelli.       They

are all residents of Garfield Heights and the gravamen of their complaint is that noxious

odors in their neighborhood affected the use and enjoyment of their properties.

        {¶3} In addition to Garfield Heights, numerous other defendants were named in the

suit.   The plaintiffs’ claims against the defendants revolve around the development of

property in Garfield Heights that previously was the site of two landfills from the 1960s

through the 1980s.      In 2002, the waste materials on the property were disturbed as

developers explored ideas for using the property. In 2005, the property was developed

into the City View Center shopping center (“the City View property”).

        {¶4} Residents in the neighborhood immediately surrounding the City View

property complained of odors, and as a result, the Ohio Environmental Protection Agency

(“EPA”) issued orders in March 2005 obligating Garfield Heights to take actions

necessary for full compliance with environmental regulations.      As of November 2014,

most of the tenants in the shopping center had vacated; for example, Walmart closed in
2009 because of “landfill gas intrusion.”

       {¶5} The plaintiffs originally filed suit in 2009; there were over 85 named plaintiffs

in the action.     See Baczowksi v. Boyas Excavating, Inc., Cuyahoga C.P. No.

CV-09-712005. By 2013, only two plaintiffs remained in the action, and they voluntarily

dismissed the case.    The action was refiled in 2014 and is the case at hand.           Five

plaintiffs filed the action, and an amended complaint was filed adding two more plaintiffs.

       {¶6} The plaintiffs filed a motion to certify the case as a class action, and the trial

court held a hearing on the motion.   The issue was also extensively briefed by the parties.

 At the time of the hearing, all of the defendants except Garfield Heights were in

settlement negotiations with the plaintiffs, and the city therefore was the only defendant

who argued against class-action certification.

       {¶7} The neighborhood that the plaintiffs sought to be included in the class was the

neighborhood immediately surrounding the City View property, and was defined as

follows:

       the intersection of Transportation Boulevard and Antenucci Boulevard as the
       northwest point to the intersection of Antenucci Boulevard and Turney Road
       as the northeast point, south down the center line of Turney Road, and
       bounded on the south by the full length of Maple Leaf Drive.

       {¶8} Further, the borders were defined as follows:

       (1) to the west, the City View property itself; (2) to the north, an east-west
       section of Interstate 480, bounded by hills and barrier and walls; (3) to the
       west, Turney Road, a major north-south thoroughfare; and (4) to the south,
       an area of land, south of Maple Leaf Drive.

       {¶9} As to the members of the class, the plaintiffs sought to have it include “all
persons and entities (including trustees) that own or reside in a home within the class area

which home was purchased by the class member prior to December 31, 2002.”                There

were approximately 220 homes in the proposed class area that were purchased prior to

December 31, 2002.     The plaintiffs presented a list of the homeowners to the trial court.

       {¶10} The plaintiffs also submitted an expert’s report from Golder Associates

(“Golder”) for the trial court’s consideration.   The report indicates that a

       primary source of odors from the [landfill] facility is likely from the direct
       discharge of collected gas from the blower units located near the fuel station,
       the unfinished building in the northwest corner of the site and the blowers
       used to extract and vent gas from beneath the shopping center buildings.

The report further indicates that “[w]ind direction information * * * indicates a normal

southwesterly wind that would potentially carry odors from these discharge locations

towards the residences located northeast of the property,” and that the “landfill odors

would be expected to constitute a nuisance to the surrounding area and the homeowners.”

       {¶11} Additionally, the plaintiffs submitted the affidavit of Craig Cantrell, a

licensed Ohio real estate agent and broker and owner of Chestnut Hill Realty.         For the

purpose of the averments in his affidavit, Cantrell assumed the plaintiffs’ claim of noxious

odors in their proposed class area to be true.    Cantrell averred as follows:

       If in a residential neighborhood, there are noxious odors which have
       continued for a long period of time, a reasonable buyer will be willing to pay
       only a diminished price. Consequently, it is my opinion, to a reasonable
       degree of certainty, that the homes in the “class area” can be sold by a
       reasonable seller to a reasonable buyer only at a price of 30-35% below what
       these homes would sell for in the open market if there were no noxious
       odors; and that diminution in price will apply to the entire class area.

       {¶12} The plaintiffs also submitted the affidavit of Lance Traves (“Traves”), an
expert on prevailing winds and odor migration. Traves averred that “because the class area

is so small and in such close proximity to the subject landfill, the odors emitted from the

landfill that are subject to the prevailing winds would be expected to be distributed over

the entire class area and detectable to all those in the class area.”

       {¶13} Another expert report, prepared by GC Environmental, Inc. (“GCE”), was

submitted by the city for the trial court’s consideration. In its report, GCE contradicted

the findings of Golder, the plaintiffs’ expert, and found any odors on the City View

property to be “de minimis,” did not detect any odors in the proposed class area, and

concluded that it is “unreasonable to suggest that landfill gas would have been able to

migrate to the [class] neighborhood.”

       {¶14} At the hearing, testimony was taken from one of the plaintiffs’ attorneys

about how he determined the potential class members. Further, one of the plaintiffs and

class representatives, Kathleen Tucciarelli, testified about her experience living in the

neighborhood with the alleged noxious odors. After the hearing, the trial court granted

the plaintiffs’ motion and issued findings of fact and conclusions of law.

       {¶15} Garfield Heights now presents the following sole assignment of error for our

review:   “The trial court committed reversible error in certifying a class where the

plaintiffs failed to satisfy both the explicit and implicit requirements of Civ.R. 23.”

Law and Analysis

       {¶16} Generally, litigation is conducted by and on behalf of only the individually

named parties; a class action is an exception to the rule. Felix v. Ganley Chevrolet, Inc.,
145 Ohio St.3d 329, 2015-Ohio-3430, 49 N.E.3d 1224, ¶ 25.                To fall within the

exception, the party bringing the class action must affirmatively demonstrate, by a

preponderance of the evidence, that each requirement of Civ.R. 23 has been satisfied.

Cullen v. State Farm Mut. Auto. Ins. Co., 137 Ohio St.3d 373, 2013-Ohio-4733, 999

N.E.2d 614, paragraph three of the syllabus.

       {¶17} A trial court must conduct a “rigorous analysis” when determining whether to

certify a class, and may grant certification only after resolving all relevant factual disputes

and finding that sufficient evidence proves that all of the requirements have been satisfied.

 Id. at paragraph one of the syllabus.   In resolving a factual dispute, a court may examine

the underlying merits of the claim as part of its rigorous analysis, but only to the extent

necessary to determine whether the requirements of the rule are satisfied.              Id. at

paragraph two of the syllabus.

       {¶18} The trial court has broad discretion in determining whether to certify a class

action, and that decision will not be disturbed on appeal absent an abuse of discretion.

Hamilton v. Ohio Sav. Bank, 82 Ohio St.3d 67, 70, 694 N.E.2d 442 (1998).

Civ.R. 23

       {¶19} Civ.R. 23(A) sets forth the requirements that must be satisfied before the trial

court may certify a class action:   (1) the class is so numerous that joinder of all members

is impracticable, (2) there are questions of law or fact common to the class, (3) the claims

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

and (4) the representative parties will fairly and adequately protect the interests of the
class.

         {¶20} Further, Civ.R. 23(B) provides that a class action may be maintained if any

of the following apply:

         (1) prosecuting separate actions by or against individual class members
         would create a risk of:

                (a) inconsistent or varying adjudications with respect to
                individual class members that would establish incompatible
                standards of conduct for the party opposing the class; or

                (b) adjudications with respect to individual class members
                that, as a practical matter, would be dispositive of the interests
                of the other members not parties to the individual adjudications
                or would substantially impair or impede their ability to protect
                their interests; or

         (2) the party opposing the class has acted or refused to act on grounds that
         apply generally to the class, so that final injunctive relief or corresponding
         declaratory relief is appropriate respecting the class as a whole; or

         (3) the court finds that the questions of law or fact common to class
         members predominate over any questions affecting only individual members,
         and that a class action is superior to other available methods for fairly and
         efficiently adjudicating the controversy. The matters pertinent to these
         findings include:

                (a) the class members’ interests in individually controlling
                the prosecution or defense of separate actions;

                (b) the extent and nature of any litigation concerning the
                controversy already begun by or against class members;

                (c) the desirability or undesirability of concentrating the
                litigation of the claims in the particular forum; and

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

         {¶21} Thus, to be eligible for class certification pursuant to Civ.R. 23, the plaintiffs
must establish the following seven prerequisites: (1) an identifiable and unambiguous class

must exist; (2) the named representatives of the class must be class members; (3) the class

must be so numerous that joinder of all members of the class is impractical; (4) there must

be questions of law or fact that are common to the class; (5) the claims or defenses of the

representative parties must be typical of the claims and defenses of the members of the

class; (6) the representative parties must fairly and adequately protect the interests of the

class; and (7) one of the three requirements of Civ.R. 23(B) must be satisfied. Stammco,

L.L.C. v. United Tel. Co. of Ohio, 125 Ohio St.3d 91, 2010-Ohio-1042, 926 N.E.2d 292, ¶

6.   The party seeking class certification bears the burden of demonstrating that the

requirements of Civ.R. 23(A) and (B) are met. Hoang v. E*trade Group, 151 Ohio

App.3d 363, 2003-Ohio-301, 784 N.E.2d 151, ¶ 14 (8th Dist.).

       {¶22} The trial court found that the plaintiffs met all the requirements under Civ.R.

23(A) for class certification and further found, under Civ.R. 23(B), that the “questions of

law and/or fact common to the class predominate over any questions affecting only

individual members” and that a class action is “superior to other available methods to

fairly and efficiently adjudicate this controversy.”    For the reasons set forth below, the

trial court’s decision to certify the class was not an abuse of discretion.

Identifiable Class with Named Representative Members of Class

       {¶23} As mentioned, the plaintiffs proposed that the class consist of “all persons

and entities (including trustees) that own or reside in a home within the class which home

was purchased by the class member prior to December 31, 2002.”                The class area was
defined as the

        intersection of Transportation Boulevard and Antenucci Boulevard as the
        northwest point to the intersection of Antenucci Boulevard and Turney Road
        as the northeast point, south down the center line of Turney Road, and
        bounded on the south by the full length of Maple Leaf Drive.

And the borders were delineated as the

        neighborhood immediately east of the City View property, with borders (1)
        to the west, the City View property itself, (2) to the north, an east-west
        section of Interstate 480, bounded by hills and barrier and walls, (3) to the
        west, Turney Road, a major north-south thoroughfare, and (4) to the south,
        an area of land, south of Maple Leaf Drive.

There were approximately 220 homes in the proposed class area that were purchased prior

to December 31, 2002.

        {¶24} Upon review, the plaintiffs’ proposal was specific as to the people, time

frame, and location, and was buttressed by the map of the area and the list of people in the

area.   Further, we are not persuaded by the city’s contention that the proposed class was

too ambiguous because not all the homeowners reside in the homes (i.e., they rent them

out).   The identities of the class members do not have to be specified in order to

demonstrate that a class actually exits; rather, the class definition must be precise enough

to “permit identification within reasonable effort.” Warner v. Waste Mgt., Inc., 36 Ohio

St.3d 91, 96, 521 N.E.2d 1091 (1988). The class definition here meets that requirement.

Moreover, the trial court has determined that, because of the class-wide settlement with the

other defendants in this matter, it will not have any administrative burden in determining

whether any particular person is a member of the class.          Further, there are named

representatives of the class, a point not in contention.
       {¶25} In light of the above, the trial court did not abuse its discretion by finding

that an identifiable, unambiguous class with named representatives exists.

Numerosity

       {¶26} In regard to the numerosity requirement, there is no specific number to meet

the requirement and it must be decided on a case-by-case basis, but it has been noted that if

a class has more than 40 people, the numerosity requirement has usually been satisfied.

Id. at 97, citing Miller, An Overview of Federal Class Actions: Past, Present and Future,

22 (2 Ed.1977).

       {¶27} Here, the plaintiffs presented evidence that there were over 200 residences in

the proposed class area.    Further, the plaintiffs’ expert, Traves, averred in an affidavit

that the odors emanating from the landfill area were subject to the prevailing winds and

would have been distributed and detectable to the entire class area.     On this record, the

trial court did not abuse its discretion in finding that the numerosity requirement was met.

Common Questions of Law or Fact

       {¶28}     Civ.R. 23(A)(2) requires the presence of “questions of law or fact common

to the class.”    Courts generally have given this requirement a permissive application.

Marks v. C.P. Chem. Co., 31 Ohio St.3d 200, 202, 509 N.E.2d 1249 (1987). Thus, there

need not be a complete identity of claims among all class members, but a plaintiff seeking

class action certification must make some threshold showing of a “common nucleus of

operative facts.” Miles v. N.J. Motors, 32 Ohio App.2d 350, 356, 291 N.E.2d 758 (6th

Dist.1972). In other words, common facts alone are not sufficient unless they have legal
significance.

               “If there is a common liability issue, [Fed. R. Civ. P.] 23(a)(2) is
       satisfied. Similarly if there is a common fact question relating to negligence,
       or the existence of a contract or its breach, or a practice of discrimination, or
       misrepresentation, or conspiracy, or pollution, or the existence of a particular
       course of conduct, the Rule is satisfied.”

Warner at id., quoting Miller, (2 Ed.1977) at 24.

       {¶29} “Commonality may be found where the basis for liability is common to the

proposed class or where a common factual question exists on issues of negligence, breach

of contract, illegal practice, or other applicable causes of action[.]”   (Citations omitted.)

Grant v. Becton Dickinson & Co., 10th Dist. Franklin No. 02AP-894, 2003-Ohio-2826, ¶

36; see also Hansen v. Landaker, 10th Dist. Franklin Nos. 99AP-1191 and 99AP-1192,

2000 Ohio App. LEXIS 5674 (Dec. 7, 2000) (indicating that commonality requires a

common issue of liability.)

       {¶30} The city contends that individual differences in certain issues among the

proposed class defeats the commonality requirement.        We disagree.    The balancing test

of common and individual issues is qualitative, not quantitative. In re Am. Med. Sys.,

Inc., 75 F.3d 1069, 1080 (6th Cir.1996). Thus, there need be only a single issue common

to all members of the class, and the “‘fact that questions peculiar to each individual

member of the class member remain after the common questions of the defendant’s

liability have been resolved does not dictate the conclusion that a class action is

impermissible.’”   Musial Offices, Ltd. v. Cty. of Cuyahoga, 8th Dist. Cuyahoga No.

99781, 2014-Ohio-602, ¶ 32, quoting        Sterling v. Velsicol Chem. Corp., 855 F.2d 1188,
1197 (6th Cir.1988).

        {¶31} Upon review, the plaintiffs here alleged common questions of law and fact,

and we are required to deem the allegations in their complaint as true.     We therefore find

that the trial court did not abuse its discretion in finding that they fulfilled the commonality

requirement.

Predominance/Superiority

        {¶32} In addition to finding that the class shares common questions of law and/or

fact under Civ.R. 23(A), the trial court also found, as mentioned, that under Civ.R. 23(B),

those common questions “predominate over any questions affecting individual members”

and that a class action is “superior to other available methods to fairly and efficiently

adjudicate this controversy.”

        {¶33} The predominance test is an attempt to achieve a balance between the value

of allowing individual actions to be instituted so that each person can protect his or her

own interest and the economy achievable by allowing a multiple party dispute to be

resolved as a class action. Schmidt v. Avco Corp., 15 Ohio App.3d 81, 87, 472 N.E.2d

721 (1st Dist.1984). For common questions of law or fact to predominate, “‘it is not

sufficient that such questions merely exist; rather, they must present a sufficient aspect of

the case.’”      Cullen v. State Farm Mut. Auto. Ins. Co., 137 Ohio St.3d 373,

2013-Ohio-4733, 999 N.E.2d 614, ¶ 30, quoting Marks, 31 Ohio St.3d at 204, 509 N.E.2d

1249.    They must also be capable of resolution for all members in a single adjudication.

Cullen at id.
       {¶34} Whether a class action is the superior method of adjudication requires a

comparative evaluation of other available procedures to determine if the judicial time and

energy involved would be justified. State ex rel. Davis v. Pub. Emp. Retirement Bd., 111

Ohio St.3d 118, 2006-Ohio-5339, 855 N.E.2d 444, ¶ 28. The necessity for a class action

is a valid consideration for the trial court. Id. at ¶ 32-33.   “[T]he ‘need’ for class action

treatment * * * may be considered a vital, if not determinative, consideration as need

inevitably relates to the problems of superiority, fairness, and efficiency.” Id. at ¶ 32,

quoting Wilcox v. Commerce Bank of Kansas City, 474 F.2d 336, 346 (10th Cir.1973).

       {¶35} The trial court did not abuse its discretion by finding predominance and

superiority.   According to the city, this case is a “mass toxic tort case” and the plaintiffs

cannot show that common questions predominate. The city cites Sterling, 855 F.2d 1188,

in support of its contention.     The plaintiffs in Sterling sought damages for personal

injuries and property damage they suffered as a result of the defendant disposing of

ultrahazardous chemicals at a landfill located near the plaintiffs’ residences.    The Sixth

Circuit stated the following in addressing the issue of class certification:

       In complex, mass, toxic tort accidents, where no one set of operative facts
       establishes liability, no single proximate cause equally applies to each
       potential class member and each defendant, and individual issues outnumber
       common issues, the district court should properly question the
       appropriateness of a class action for resolving the controversy. However,
       where the defendant’s liability can be determined on a class-wide basis
       because the cause of the disaster is a single course of conduct which is
       identical for each of the plaintiffs, a class action may be the best suited
       vehicle to resolve such a controversy.

Id. at 1197.
       {¶36} In affirming the district court’s certification of a class action, the Sixth

Circuit reasoned as follows:

       In the instant case, each class member lived in the vicinity of the landfill and
       allegedly suffered damages as a result of ingesting or otherwise using the
       contaminated water. Almost identical evidence would be required to
       establish the level and duration of chemical contamination, the causal
       connection, if any, between the plaintiffs’ consumption of the contaminated
       water and the type of injuries allegedly suffered, and the defendant’s
       liability. The single major issue distinguishing the class members is the
       nature and amount of damages, if any, that each sustained. To this extent, a
       class action in the instant case avoided duplication of judicial effort and
       prevented separate actions from reaching inconsistent results with similar, if
       not identical, facts. The district court clearly did not abuse its discretion in
       certifying this action as a Rule 23(b)(3) class action. However, individual
       members of the class still will be required to submit evidence concerning
       their particularized damage claims in subsequent proceedings.

Id.

       {¶37} Here, the plaintiffs allege that noxious odors emanating from the City View

property have resulted in a nuisance that interferes with the peaceful and useful enjoyment

of their properties, and has diminished the value of their properties. Further, the class

area is relatively small and is well defined.   Their claim applies equally to all the class

members and is “sufficiently cohesive to warrant adjudication by representation.”

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625, 117 S.Ct. 2231, 138 L.Ed.2d 689

(1997).   Additionally, the trial court determined that, because it had already approved a

class-wide settlement with the other defendants, it would not encounter any administrative

burden in determining whether a particular person is a member of the class. The trial court

did not abuse its discretion in its findings.

Typical Claims or Defenses
        {¶38} According to the city, the plaintiffs failed to demonstrate typicality because

their claims require proof of individualized causation.    The typicality requirement equates

to a finding that the “‘named plaintiffs’ claims are typical, in common-sense terms, of the

class, thus suggesting that the incentives of the plaintiffs are aligned with those of the

class.’”   Musial Offices, 8th Dist. Cuyahoga No. 99781, 2014-Ohio-602 at ¶ 24, quoting

Neal v. Casey, 43 F.3d 48, 55 (3d Cir.1994). Thus, the “requirement for typicality is met

where there is no express conflict between the class representatives and the class.”

Hamilton, 82 Ohio St.3d at 70, 694 N.E.2d 442.

        {¶39} The plaintiffs here claim that the city created and failed to mitigate or abate

the nuisance of the emission of noxious odors over the class area, thereby causing the

plaintiffs’ damages.    The answer to this issue will resolve all of the plaintiffs’ claims.

Additionally, the city has raised defenses relating to the enforceability of federal court

orders regarding the City View property. Resolution of the plaintiffs’ claims and the

city’s defenses will apply equally to the class area.     Thus, the plaintiffs’ claims met the

typicality requirement, and the trial court did not abuse its discretion in so finding.

Representation

        {¶40} Finally, the trial court did not abuse its discretion by finding that the class

will be fairly represented.   The representative plaintiffs all own homes in the class area,

and plaintiffs’ counsel adequately identified and investigated the potential claims in this

case.   Further, counsel has experience in handling class actions and in the types of claims

alleged here.
Conclusion

       {¶41} After conducting a rigorous analysis, which included an evidentiary hearing,

the trial court properly found that the plaintiffs met the requirements under Civ.R. 23 for

class-action certification.    The trial court, therefore, did not abuse its discretion in

certifying this case as a class action.   The city’s assignment of error is overruled.

       {¶42} Judgment 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 Cuyahoga

County Court of Common Pleas 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.




LARRY A. JONES, SR., PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and
SEAN C. GALLAGHER, J., CONCUR
