[Cite as Gordon v. Erie Islands Resort & Marina, 2016-Ohio-7107.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                    OTTAWA COUNTY


Carl R. Gordon, et al.                                    Court of Appeals No. OT-15-035

         Appellees                                        Trial Court Nos. 2010-CV-271H
                                                                           2011-CV-606H
v.

Erie Islands Resort & Marina, et al.

         Appellants


Karen Walderzak

          Appellee

v.

Erie Islands Resort & Marina, et al.                      DECISION AND JUDGMENT

          Appellants                                      Decided: September 30, 2016

                                                *****

        D. Jeffery Rengel and Thomas R. Lucas, for appellees.

        John A. Coppeler and Bryan M. Ridder, for appellants.

                                                *****
       JENSEN, P.J.

                                      I. Introduction

       {¶ 1} Following this court’s order of remand, the Ottawa County Court of

Common Pleas certified this case as a class action.

       {¶ 2} Plaintiffs-appellees are Carl and Geri Gordon and Karen Walderzak. The

Gordons and Ms. Walderzak, collectively referred to as “appellees,” separately purchased

ownership interests in a resort, known as Erie Islands Resort & Marina, located in Port

Clinton, Ohio, in Ottawa County. Defendants-appellants are Erie Islands Resort &

Marina, Erie Islands Resort & Marina, Inc., and Erie Islands Holding Company.

       {¶ 3} In this case appellees allege, generally, that appellants breached the terms of

the purchase agreements, committed fraud, violated their fiduciary duty to appellees and

violated two consumer protection statutes. At issue in this appeal, however, is whether

the case was properly certified as a class action under Civ.R. 23. Appellants dispute that

the elements for class certification are met. They conclude that the trial court abused its

discretion in certifying the case.

       {¶ 4} For the reasons that follow, we affirm the decision to certify this case as a

class action. Accordingly, we remand the matter for further proceedings consistent with

this decision.

                     II. Statement of Facts and Procedural History

       {¶ 5} Erie Islands Resort & Marina was formed in 1987 when its parent company

acquired 145 acres of undeveloped land along Lake Erie in Port Clinton, Ohio.



2.
       {¶ 6} The development is a collection of cottages, campground sites, recreational

facilities, and a marina. In August of 1989, appellees Carl and Geri Gordon purchased an

undivided 1/15,000 fee simple ownership interest “as tenants-in common” for a purchase

price of $10,200. The Gordons’ undivided ownership interest is commonly referred to as

a “UOI.” The Gordons put 10 percent down and financed the remaining 90 percent with

appellants over 120 months, at a rate of 15 percent interest per annum.

       {¶ 7} Between 1989 and 2003, the Gordons’ ownership interest and classification

changed four times. We briefly summarize those classifications here. We note, however,

that we described the various classifications and corresponding rights and obligations in

greater detail in our previous decision. Gordon v. Erie Islands Resort & Marina, 6th

Dist. Ottawa No. OT-13-040, 2014-Ohio-4970 (“Gordon I”).

       {¶ 8} To summarize, the Gordons purchased a UOI at the “A-1 Harbor Admiral”

classification level in 1989, entitling them to use a campsite or cottage and the common

facilities for up to 14 consecutive days. The Gordons were obligated to pay an annual

maintenance fee of $192, in addition to use fees for accommodations.

       {¶ 9} Appellee Karen Walderzak purchased the same ownership interest at the

same classification level the previous year, in 1988.

       {¶ 10} According to its literature, appellants offered a wide variety of recreational

activities, both indoor and outdoor, on land and in the water. The record indicates that

some of the amenities currently exist, and some do not.




3.
       {¶ 11} In 1992, the Gordons upgraded to a “Priority Gold Membership” for

$2,495, which entailed entering into three separate agreements with appellants. Under

these agreements, the Gordons’ maintenance fee was “frozen” at $210; they were entitled

to overnight accommodations for up to 21 consecutive nights; and they were approved to

participate in appellants’ resale program. Under the program, appellants established a

number of procedures and preconditions as to the price, the creditworthiness of the

prospective buyer, and other conditions of sale.

       {¶ 12} In 1994, the Gordons upgraded again by entering into to a “Priority Gold

Modification Agreement,” for which they paid an additional $495 to appellants. As part

of that agreement, the Gordons could quitclaim all of their previously-purchased rights,

titles, and interests to appellants while maintaining certain membership rights, “subject to

their rules and regulations.” The agreement gave appellants a 20-year option to purchase

the Gordons’ interest at 85 percent of the purchase price of $12,695.

       {¶ 13} Finally, in 2003, the Gordons entered into a “Platinum Club Membership

Agreement” whereby they paid an additional $4,000 to appellants. Under this agreement,

maintenance fees and special assessments were waived permanently. The Gordons’

benefits remained substantially the same, but some priority reservations and usage

discounts were added. Appellants imposed a number of transfer limitations.

       {¶ 14} Since its formation, appellants have sold approximately 10,000 UOI’s in

the resort and 5,000 upgrades. Appellants state in their brief, however, that “many of the

approximate 10,000 sales transactions would have also included spouses.”



4.
       {¶ 15} Appellants’ rules and regulations are set forth in the resort’s declaration,

which is filed with the county recorder’s office. Appellants amended the declarations

approximately six times between 1988 and 2011.

       {¶ 16} On April 9, 2010, the Gordons filed a 19-count complaint. On

November 21, 2011, Walderzak filed a nine-count complaint, alleging similar, but not

identical, facts and legal theories against the same defendants. (Ottawa Co. C.P. case No.

2011-CV-606H).

       {¶ 17} Gordons’ Counts 1 through 9 and Walderzak’s first claim allege that

appellants violated the Ohio Consumer Sales Practices Act (“CSPA”), R.C. Chapter

1345. Gordons’ Counts 10-15, and Walderzak’s Counts 2-4 and 6-7, allege fraud and

fraudulent misrepresentations by appellants. Gordons’ Counts 16 and 17, and

Walderzak’s Counts 5 and 9, allege breach of contract. Gordons’ Count 18 alleges

violation of the Ohio Retail Installment Sales Act (“RISA”), R.C. Chapter 1317. Finally,

Gordons’ Count 19 alleges a claim for breach of appellants’ fiduciary duty.

       {¶ 18} In general, the complaints allege that appellants failed to provide all of the

amenities that they represented would be available; sold more memberships than the

resort could reasonably accommodate; charged various assessments and maintenance fees

despite those fees having been “frozen” or waived; disguised fees and assessments to

circumvent agreements providing for “frozen” or waived maintenance fees and

assessments; charged fees that had no relationship to the true operational expenses of the

resort; unreasonably amended the rules governing use of the resort facilities; imposed



5.
unfair procedures and preconditions upon the members’ ability to transfer their

membership in the resort; misrepresented the status of the resale market; sold “upgrades”

that did not offer any additional appreciable rights; breached their duties and implied

warranties of good faith and fair dealing and other fiduciary duties; engaged in a

systematic, predatory scheme of selling illegal timeshares and memberships; and violated

a number of specific statutes and regulations in their method of selling and financing

interests in the resort. Gordon I, 6th Dist. Ottawa No. OT-13-040, 2014-Ohio-4970, at

¶ 9.

       {¶ 19} In their complaint, the Gordons sought class certification under Civ.R. 23

and sought to serve as class representatives. They ultimately argued that six classes

should be certified. Appellants opposed class certification.

       {¶ 20} On January 4, 2013, the trial court conducted a hearing on the Gordons’

request for class certification. On November 21, 2013, in a two-paragraph decision, the

court certified the case.

       {¶ 21} Appellants appealed. By decision dated November 7, 2014, we reversed

the trial court and remanded the matter, relying on Hamilton v. Ohio Sav. Bank, 82 Ohio

St.3d 67, 694 N.E.2d 442 (1998). Consistent with that case, we ordered the lower court

to “elaborate as to its rationale for reaching its decision [to certify the case as a class

action], addressing each Civ.R. 23 prerequisite and addressing appellants’ objections.”

Gordon I at ¶ 22.




6.
         {¶ 22} Following remand, the parties filed proposed findings of fact and

conclusions of law. On August 4, 2015, the lower court modified its previous

certification order but reached the same decision, that the elements of Civ.R. 23 were met

and that the case ought to be certified. By separate order, it also consolidated

Walderzak’s case with the instant case.1

       III. The Trial Court’s Decision and Description of the Class and Subclasses

         {¶ 23} The lower court authored a 34-page opinion in which it certified the

following class and five subclasses:

                Persons or entities, other than Defendants, who owned an

         Unidentified Ownership Interest or Ownership Interest Modification in Erie

         Islands Resort & Marina in Bay Township, Ottawa County, Ohio (further

         referenced and described at Vol. 332, Page 667 Ottawa County Records

         “Erie Islands Resort”) on or after April 9, 1995.

                Sub-Class 1: Persons or Entities, other than Defendants, who owned

         an Undivided Ownership Interest in Erie Islands Resort and who paid a

         reimbursement expense charge or assessment to Defendant(s) after on or

         after [sic] April 9, 1995 other than for the purchase of an Undivided

         Ownership Interest or Ownership Interest Modification in Erie Islands

         Resort.



1
    Appellants did not appeal the trial court’s order of consolidation.


7.
            Sub-Class 2: Persons or Entities, other than Defendants, who owned

     an Undivided Ownership Interest modification in Erie Islands Resorts

     where annual fees and expense reimbursements were set or “frozen” and

     who paid a reimbursement, charge or assessment to Defendant(s) in excess

     of the set, or “frozen”, annual reimbursement expense, charge or

     assessment, on or after April 9, 1995.

            Sub-Class 3: Person or Entities, other than Defendants, who owned

     an Undivided Ownership Interest “Priority Gold” modification in Erie

     Islands Resorts.

            Sub-Class 4: Person or Entities, other than Defendants, who entered

     into a “Resale Agreement” with Defendant(s) on or after April 9, 1995.

            Sub-Class 5: Persons or Entities, other than Defendants, who owned

     an Undivided Ownership Interest modification (“Platinum Club”) in Erie

     Islands Resorts and who paid a reimbursement expense, charge or

     assessment to Defendant(s) after on or after [sic] April 9, 1995 other than

     for purchase of an Undivided Ownership Interest or Ownership Interest

     Modification in Erie Islands Resort. (Emphasis added.)

                        IV. Appellants’ Assignment of Error

            The trial court erred in certifying this matter as a class action.




8.
                                   V. Law and Analysis

                        A. Civ.R. 23 and the Standard of Review

       {¶ 24} A class action is “an exception to the usual rule that litigation is conducted

by and on behalf of the individual named parties only * * * and [t]o come within the

exception, a party seeking to maintain a class action must affirmatively demonstrate his

compliance with Rule 23.” Cullen v. State Farm Mut. Auto. Ins. Co., 137 Ohio St.3d

373, 2013-Ohio-4733, 999 N.E.2d 614 ¶ 11.

       {¶ 25} The following seven requirements must be satisfied before an action may

be maintained as a class action under Civ.R. 23: (1) an identifiable class must exist and

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

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

impracticable; (4) there must be questions of law or fact common to the class; (5) the

claims or defenses of the representative parties must be typical of the claims or defenses

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

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

82 Ohio St.3d at 71, 694 N.E.2d 442; Civ.R. 23(A) and (B).

       {¶ 26} A party seeking class certification bears the burden of demonstrating each

of the requirements by a preponderance of the evidence. Cullen at ¶ 15. In considering

whether to certify a class, a trial court must conduct a rigorous analysis to determine that

each requirement is satisfied. Id. at ¶ 16. In performing this analysis, the court must

resolve factual disputes relative to each requirement and find, “based upon those



9.
determinations, other relevant facts, and the applicable legal standard, that the

requirement is met.” Id. Should a factual dispute concerning a Civ.R. 23 requirement

overlap with a merit issue, the trial court may examine the underlying merits of the claim

to the extent necessary to determine whether the requirement of the rule is satisfied. Id.

at ¶ 17.

         {¶ 27} A trial court has broad discretion in determining whether a class action may

be maintained, and we will not disturb its determination absent an abuse of discretion. Id.

at ¶ 19. A trial court abuses its discretion when its decision is “unreasonable, arbitrary, or

unconscionable.” Id., quoting Wilson v. Brush Wellman, Inc., 103 Ohio St.3d 538, 2004-

Ohio-5847, 817 N.E.2d 59, ¶ 30. This standard applies to both the trial court’s ultimate

decision and as to its determination regarding each requirement of the rule. Id.

         {¶ 28} In support of their single assignment of error, appellants argue that the trial

court abused its discretion in making the following six findings: (1) that an identifiable

class exists and that the proposed class is unambiguous; (2) that appellees are members of

that class; (3) that there are sufficient questions of law and fact that are common to the

class and there is commonality between appellees and the class; (4) that appellees’ claims

are typical of the claims of the class; (5) that appellees fairly and adequately protect the

interests of the proposed class; and (6) that appellees met the requirements of Civ.R.

23(B).

         {¶ 29} We address each argument separately.




10.
       B. An Identifiable Class Exists and the Proposed Class is Unambiguous

       {¶ 30} The focus at this stage is on how the class is defined. The class must be

“sufficiently definite so that it is administratively feasible for the court to determine

whether a particular individual is a member.” Hamilton, 82 Ohio St.3d at 71-72, 694

N.E.2d 442.

       {¶ 31} Appellants argue that the proposed class description is indefinite because,

in order to identify the class, the parties and the court would be required to “conduct an

extensive examination of the merits and claims of each potential member.” Appellants

claim that “individualized inquiries” would have to be made of each of the potentially

10,000 class members to determine whether all of them have suffered harm to which

common questions of law or fact apply.

       {¶ 32} We disagree. To determine whether an individual is a member of the class,

the focus is not upon the plaintiffs’ claims but rather the actions and practices of the

defendants. Id. Indeed, “[t]he question as to whether there are differing factual and legal

issues ‘does not enter into the analysis until the court begins to consider the Civ.R.

23(B)(3) requirement of predominance and superiority.’” Hamilton at 73, quoting Marks

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

       {¶ 33} For example, in Hamilton, the proposed classes consisted of a group of

borrowers whose mortgage interest was calculated a certain way by the bank. Finding

that an identifiable class existed, the court said,




11.
              [We] need only look to the actions or practices of [the bank] to

       determine whether an individual is a member of any of the respective

       subclasses. * * * In fact, in October 1985, [the bank] readily identified and

       notified [2,700] of its borrowers that their loans would not fully amortize

       within the intended term. It is difficult to accept that individual knowledge

       inquiries are required to determine class membership in this case, when [the

       bank] was able to ascertain, with a reasonable effort, two thousand seven

       hundred prospective class members without inquiring as to their knowledge

       or understanding of the terms of their agreements. Id. at 74

       {¶ 34} The same is true in this case. The trial court can properly determine

whether a person is a member of the class by reviewing the individual’s deed to

determine if he or she owned the UOI on or after April 9, 1995. Likewise, a review of

appellants’ computer records will show what type of agreement governed the parties’

relationship (e.g. A-1 Admiral, Platinum, Gold, or Priority Gold) and the individual’s

payment history.

       {¶ 35} We see no abuse of discretion by the trial court’s conclusion that an

identifiable class, with sub-classes, exists and that they are readily identifiable and

unambiguous. We agree with the trial court that the evidence in this case, consisting of

computer lists identifying all UIO holders, their payment history, and the types of charges

assessed to them, is sufficient to define an unambiguous and identifiable class and

subclasses.



12.
                         C. Appellees are Members of the Class

       {¶ 36} The class membership prerequisite requires only that the representative

have proper standing. “In order to have standing to sue as a class representative, the

plaintiff must possess the same interest and suffer the same injury shared by all members

of the class that he or she seeks to represent.” (Citations omitted.) Id. at 74.

       {¶ 37} Appellants’ primary argument is that virtually all of appellees’ claims are

barred by the statute of limitations and therefore they cannot be considered members of

the proposed class. We discuss that argument under the predominance and superiority

elements of Civ.R. 23(B)(3).

       {¶ 38} The class consists of UIO holders since April 9, 1995. Appellees herein

have been UOI holders since that time. Appellees claim that they were charged, and

paid, certain improper expense reimbursements, charges and assessments in violation of

their agreements with appellants. Since 1995, the Gordons have, at one time, held an

ownership interest in all of the subclasses, and Walderzak has held a UOI at the admiral

level. Thus, the Gordons and Walderzak have the same interest and same injury shared

by members of the class and their respective subclasses that each seek to represent.

       {¶ 39} We see no abuse of discretion by the trial court in its conclusion that

appellees qualify as class members and may properly act as class representatives.




13.
 D. There are Sufficient Questions of Law and Fact That are Common to the Class

              and There is Commonality Between Appellees and the Class

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

to the class. “Courts generally give this requirement a permissive application. It is not

necessary that all the questions of law or fact raised in the dispute be common to all the

parties. If there is a common nucleus of operative facts, or a common liability issue, the

rule is satisfied.” Hamilton, 82 Ohio St.3d at 77, 694 N.E.2d 442.

       {¶ 41} Here, the trial court cited the following as issues common to the class:

              (1) Whether a given individual purchased a UOI from appellants

       during the class period;

              (2) Whether each class member signed documents similar to those

       signed by appellees.

              (3) Whether the declarations recorded by appellants were violative

       of Ohio law;

              (4) Whether the class members paid various fees and assessments to

       appellants;

              (5) Whether those fees and assessments were valid by contract or

       law;

              (6) Whether the collection of expenses and assessments without any

       correlation to actual expenses were valid;




14.
              (7) Whether the collection of expenses and assessments in excess of

      the amount agreed to by class members was legal;

              (8) Whether appellants engaged in fraud and/or breach of contract,

      as to sub-class 2, 3, and 5 by charging various monies in excess of actual

      expenses, when such items were supposed to have been frozen or

      eliminated;

              (9) Whether appellants engaged in fraud by failing to provide

      documentation of the true operational expenses and in representing that the

      charges represented the true, actual expenses;

              (10) Whether the appellants breached a fiduciary duty by charging

      excessive fees and by failing to provide an accurate accounting of those

      fees.

              (11) Whether the appellants breached a contractual duty to provide

      all of the represented goods, services, and “amenities”;

              (12) Whether appellants had a right to change unilaterally their

      agreements with class members or to exercise a “veto power” over

      decisions of a majority of the UOI members;

              (13) Whether appellants committed fraud and/or breach of contract

      by amending declarations without UOI members’ majority approval;

              (14) Whether appellants’ actions violated the CSPA;




15.
              (15) Whether appellants engaged in unfair, deceptive and

       unconscionable acts;

              (16) Whether a UOI constitutes an “unavailability of goods” under

       the CSPA;

              (17) Whether the “discovery rule” applies to appellees’ fraud and

       CSPA claims;

              (18) Whether every class member suffered the same type of damage

       for payment of unauthorized assessments and fees.

       {¶ 42} Finally, appellees’ claims are premised upon representations set forth in

appellants’ standardized forms. These forms were used in the sale of the UOI’s and

modifications thereto. Because appellants used the same standardized forms as to all

UOI holders within all of the various subclasses, the issue of appellants’ liability is

common to all members of the classes proposed by appellees. “Class action treatment is

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

notwithstanding the need to prove reliance.” Hamilton at 84.

       {¶ 43} We see no unreasonable, arbitrary, or unconscionable conclusions by the

trial court in finding that the commonality requirement was met here.

          E. The Claims of Appellees are Typical of the Claims of the Class

       {¶ 44} The requirement for typicality is met where there is no express conflict

between the class representatives and the class. Id. at 77-78. The purpose of the




16.
typicality requirement of Civ.R. 23(A)(3) is to protect the interests of absent class

members. Id.

       {¶ 45} Moreover, typical does not mean “identical.” Planned Parenthood v.

Project Jericho, 52 Ohio St.3d 56, 556 N.E.2d 157 (1990). Here, the trial court found

that the typicality requirement was met because the plaintiffs “allege they are the victims

of the same common course of wrongful business practices and procedures that class

members were subjected to, utilizing the same or similar form documents.”

       {¶ 46} Again, appellants assert a statute of limitations defense to the typicality

element which we address in our discussion regarding Civ.R. 23(B)(3).

       {¶ 47} We see no error in the trial court’s finding that appellees’ claims are typical

of those in the class.

   F. Appellees Fairly and Adequately Protect the Interests of the Proposed Class

       {¶ 48} Civ.R. 23(A)(4) consists of two distinct elements: that the class

representatives fairly and adequately protect the class members’ interests and that the

counsel for the class is experienced in handling class action litigation. Vinci v. American

Can Co., 9 Ohio St.3d 98, 101, 459 N.E.2d 507 (1984).

       {¶ 49} Here appellants challenge only the first prong. Appellants claim that,

because all but one of the appellees’ claims are time barred, appellees cannot protect the

interests of the class. Appellants’ statute of limitations defense is more properly related

to the issue of predominance under Civ.R. 23(B)(3) and will be addressed below.




17.
       {¶ 50} A representative is adequate so long as his or her interest is not antagonistic

to that of other class members. Hamilton, 82 Ohio St.3d at 78, 694 N.E.2d 442. We see

no abuse of discretion in the trial court’s finding that there is no inherent conflict or

antagonism between appellees’ interests in pursuing the action and those of the class they

seek to represent.

                   G. Appellees Met the Requirements of Civ.R. 23(B)

       {¶ 51} If a party satisfies all six elements under Civ.R. 23(A), the next

requirement is to show that the action also falls within Civ.R. 23(B)(1), (2) or (3). In this

case, the trial court found that certification was appropriate under Sections (B)(2) and

(B)(3). The rule provides that a class action may be maintained if,

              (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;



18.
                (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. (Emphasis

       added.)

       {¶ 52} Where class injunctive relief is sought, certification under Civ.R. 23(B)(2)

may be appropriate. Here, appellees seek an order enjoining appellants from (1) collecting

fees in contravention of their UOI’s; (2) amending declarations without majority approval

of the UOI holders; (3) denying use of the resort in contravention of the UOI’s; and

(4) limiting the transfer of UOI’s.

       {¶ 53} Appellants argue that Civ.R. 23(B)(2) is not applicable where “the primary

relief requested is damages [and that] a simple request for injunctive relief is not enough

to immunize a plaintiff’s motion from scrutiny under Civ.R. 23(B)(3).” Appellants argue

that because appellees are “primarily seeking monetary relief,” Section (B)(2) is

inapplicable.

       {¶ 54} We disagree. A demand for monetary damages does not necessarily defeat

certification under Civ.R. 23(B)(2). As explained by the Ohio Supreme Court,

                Disputes over whether the action is primarily for injunctive or

       declaratory relief rather than a monetary award neither promote the

       disposition of the case on the merits nor represent a useful expenditure of



19.
       energy. Therefore, they should be avoided. If the Rule 23(A) prerequisites

       have been met and injunctive or declaratory relief has been requested, the

       action usually should be allowed to proceed under subdivision (B)(2).

       Those aspects of the case not falling within Rule 23(B)(2) should be treated

       as incidental. Indeed, quite commonly they will fall within Rule 23(b)(1)

       or Rule 23(b)(3) and may be heard on a class basis under one of those

       subdivisions. Even when this is not the case, the action should not be

       dismissed. Hamilton, 82 Ohio St.3d at 87, 694 N.E.2d 442.

       {¶ 55} More recently, the court distinguished Hamilton from the case before it, but

emphasized that where “ongoing practice continues to injure all class members”

certification under subdivision (B)(2) may be appropriate. Cullen, 137 Ohio St.3d 373,

2013-Ohio-4733, 999 N.E.2d 614, at ¶ 24 (Finding subdivision (B)(2) inapplicable). We

see no error in the trial court’s conclusion that the case is certifiable under Civ.R.

23(B)(2).

       {¶ 56} Finally, with regard to Civ.R. 23(B)(3), there are two main elements to the

rule. The first is that common questions of fact and law must predominate over

individualized ones, and the second is that class certification is the superior method to

fairly and efficiently adjudicate the matter. Phillips v. Andy Buick, Inc., 11th Dist. No.

2004-L-093, 2006-Ohio-5832, ¶ 36.

       {¶ 57} Here, we address appellants’ statute of limitations argument. Appellants

claim that the trial court abused its discretion in certifying this case because “virtually



20.
every claim raised by appellees in their complaint is time-barred.” In support, appellants

point to the Gordons’ purchase of their UOI in 1989, and subsequent modifications

thereto in 1992, 1994, and 2003, and to Walderzak’s purchase in 1988. Appellants claim

that, because the CSPA and RISA have two-year statutes of limitations, fraud and breach

of fiduciary duty have four-year statutes, and breach of written contract has a 15-year

statute, that most all of appellees’ claims are time-barred. Appellants argue that, by

operation of the statute of limitations to all but one of appellees’ claims, there exists a

conflict between appellees and potential class members. Because of the conflict,

appellants conclude that (1) appellees are unable to represent the class because they are

not members of the class; (2) appellees’ claims are atypical and antagonistic to the class;

and (3) appellees’ individual issues (pertaining to the statute of limitations) predominate

over issues common to the class.

       {¶ 58} The trial court set a class period using the applicable 15-year statute of

limitations for breach of contract in effect when the Gordons filed their complaint in

2010. The court concluded,

              Modification of the class identity to those persons who owned a UOI

       or modification within the fifteen (15) years prior to the filing of this

       lawsuit [i.e. April 9, 1995] places the putative class members and the

       named Plaintiffs in an identical situation vis-à-vis statute of limitations.

       The fifteen (15) year statute of limitations also applies to Plaintiffs’ claims




21.
       for breach of fiduciary duty * * * and breach of the covenant of good faith

       in the contract between the parties. (Citations omitted). Decision at 30-31.

       {¶ 59} “That a statute of limitations may bar the claims of some, but not all, class

members does not compel a finding that individual issues predominate over common

ones. * * * Rather, as long as there is a sufficient nucleus of common issues, differences

in the application of a statute of limitations to individual class members will not preclude

certification under Rule 23(b)(3).” Hamilton, 82 Ohio St.3d at 84, 694 N.E.2d 442,

quoting 5 Moore’s Federal Practice, 23-210 to 23-211, Section 23.46[3] (3 Ed.1997).

       {¶ 60} Moreover, appellees argue that that the parties in this case have maintained

an “ongoing contractual relationship.” They claim that, because the agreements were still

in effect, and still being exercised, the statute of limitations did not begin to run. We

express no opinion as to appellees’ argument. We agree with the trial court that

appellants’ statute of limitations defense is not currently ripe for adjudication inasmuch

as it goes to the merits of the case and not as to whether it is certifiable under Civ.R.

23(B)(3). Ojalvo v. Board of Trustees of Ohio State Univ., 12 Ohio St.3d 230, 233, 466

N.E.2d 875 (1984).

       {¶ 61} The trial court found, and we agree, that a class action is superior to other

available methods for fairly and efficiently adjudicating this controversy. We see no

error in its conclusion that each subclass shares a common nucleus of operative facts and

asserts the same theories of liability. The substantive elements of the class members’

claims require the same proof for each class member, and the class is clearly bound



22.
together by a mutual interest in resolving common questions to a far greater extent than it

may be divided by individual interests. Therefore, common questions represent a

significant aspect of the case, and predominate over questions affecting only individual

members of the class.

         {¶ 62} We see no abuse of discretion by the trial court in finding that the case is

certifiable under Civ.R. 23(B)(2) or 23(B)(3).

                                       VI. Conclusion

         {¶ 63} Consistent with the Supreme Court’s recommendations in Hamilton, and

the other decisions applying Hamilton, we find that the trial court elaborated sufficiently

as to its rationale for reaching its decision, addressing each Civ.R. 23 prerequisite and

addressing appellants’ objections. We find appellants’ sole assignment of error not well-

taken.

         {¶ 64} For the foregoing reasons, we affirm the judgment of the Ottawa County

Court of Common Pleas to certify this case under Civ.R. 23 as a class action. This action

is remanded for a trial on the merits. It is so ordered. Costs are assessed to appellants

pursuant to App.R. 24.


                                                                          Judgment affirmed.




23.
                                                               Gordon v. Erie Islands
                                                               Resort & Marina
                                                               C.A. No. OT-15-035




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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