[Cite as Sliwinski v. Capital Properties Mgt. Ltd., 2012-Ohio-1822.]


STATE OF OHIO                      )                         IN THE COURT OF APPEALS
                                   )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

MARY SLIWINSKI, et al.                                       C.A. No.   25867

        Appellants

        v.                                                   APPEAL FROM JUDGMENT
                                                             ENTERED IN THE
CAPITAL PROPERTIES                                           COURT OF COMMON PLEAS
MANAGEMENT, LTD., et al.                                     COUNTY OF SUMMIT, OHIO
                                                             CASE No.   CV 06 02 0884
        Appellees

                                  DECISION AND JOURNAL ENTRY

Dated: April 25, 2012



        MOORE, Presiding Judge.

        {¶1}     Appellant, Mary Sliwinski, appeals from the judgment of the Summit County

Court of Common Pleas. This Court affirms.

                                                        I.

        {¶2}     Appellant, Mary Sliwinski, is a former tenant of the Hunt Club Apartments

located in Copley Township, Ohio. Appellees, Capital Properties Management, Ltd. and Hunt

Club Limited Partnership (collectively “Hunt Club”), manage and own the apartments. In 2003,

Hunt Club notified its residents that it intended to install new plumbing with meters so that it

could begin separately charging for water and sewer services in 2004. Prior to that date, the

tenants were not charged for water.

        {¶3}     On February 8, 2006, Sliwinski filed suit against Hunt Club, alleging that it was

illegally charging the tenants for water at a mark-up rate. On July 18, 2006, Sliwinski filed an

amended complaint containing class-action allegations. On April 20, 2007, she filed a motion
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for class certification pursuant to Civ.R. 23 defining the class as “[a]ll those present or former

lessees, or their heirs or assigns, of residential units at the Hunt Club Apartments, Copley

Township, Ohio, who signed a lease requiring the payment of water and sewer service charges

after January 1, 2004, and who paid any such charges under that provision of the lease.” Hunt

Club filed a memorandum in opposition to the motion on May 2, 2007. On February 7, 2008,

Sliwinski filed a notice withdrawing the motion to certify.

       {¶4}    On October 9, 2008, Hunt Club filed a motion to strike the class-action

allegations from the amended complaint pursuant to Civ.R. 23(D)(4). On October 17, 2008,

Sliwinski filed a motion to delay consideration of class certification until discovery was resolved.

She filed her response to Hunt Club’s motion to strike on October 23, 2008. The case was

referred to a magistrate and a conference was held on November 14, 2008. On December 9,

2008, the magistrate issued a decision granting Hunt Club’s motion to strike. Sliwinski filed

objections on December 18, 2008. On March 18, 2009, the trial court entered its order adopting

the magistrate’s order and granting the motion to strike the class action allegations from the

amended complaint.

       {¶5}    On March 6, 2009, Sliwinski filed a notice of appeal from the trial court’s order.

This Court dismissed the appeal on July 8, 2009, based on the trial court’s failure to resolve each

of Sliwinski’s objections. On March 4, 2011, after conducting a de novo review of the amended

complaint and concluding that Sliwinski’s pleadings failed to comply with Civ.R. 23, the trial

court issued an order overruling Sliwinski’s objections, and again ordering the class action

allegations stricken from the amended complaint.

       {¶6}    Sliwinski timely filed a notice of appeal. She raises one assignment of error for

our review.
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                                                  II.

                                   ASSIGNMENT OF ERROR

          THE TRIAL COURT ERRED IN ORDERING THE CLASS ACTION
          ALLEGATIONS STRICKEN FROM THE PLEADINGS.

          {¶7}   Sliwinski’s sole assignment of error contends that the trial court erred in ordering

the class action allegations stricken from the pleadings. We do not agree.

          {¶8}   In the present case, Sliwinski filed objections to the decision of the magistrate

ordering the class action allegations stricken from the amended complaint. The trial court

overruled those objections and adopted and approved the magistrate’s decision. Sliwinski now

argues that the trial court erred in overruling her objections to the magistrate’s decision and in

granting the motion to strike the class action allegations from the pleadings. However, Sliwinski

did not provide the trial court with any evidence from the record to support her objections to the

magistrate’s decision.

          {¶9}   Civ.R. 53(D)(3)(b)(iii) provides, as to the form of objections, that “[a]n objection

to a factual finding * * * shall be supported by a transcript of all the evidence submitted to the

magistrate relevant to that finding or an affidavit of that evidence if a transcript is not available.”

Here, Sliwinski failed to provide a copy of the transcript of the hearing regarding the motion to

strike.    Absent a transcript, the trial court and this Court must presume regularity in the

proceedings on any finding of fact made by the magistrate. Knapp v. Edwards Laboratories, 61

Ohio St.2d 197 (1980). In Knapp, the Ohio Supreme Court stated:

          The duty to provide a transcript for appellate review falls upon the appellant.
          This is necessarily so because an appellant bears the burden of showing error by
          reference to matters in the record. See State v. Skaggs, 53 Ohio St.2d 162 (1978).
          This principle is recognized in App.R. 9(B), which provides, in part, that “the
          appellant shall in writing order from the reporter a complete transcript or a
          transcript of such parts of the proceedings not already on file as he deems
          necessary for inclusion in the record * * *. When portions of the transcript
                                                  4


        necessary for resolution of assigned errors are omitted from the record, the
        reviewing court has nothing to pass upon and thus, as to those assigned errors, the
        court has no choice but to presume the validity of the lower court’s proceedings,
        and affirm.”

Id. at 199.

        {¶10} In its order below, the trial court acknowledged that Sliwinski failed to provide a

copy of the transcript from the magistrate hearing, and thus, it was required to accept the

magistrate’s findings of fact as true. See Crislip v. Crislip, 9th Dist. No. 03CA0112-M, 2004-

Ohio-3254, ¶ 6. The trial court’s analysis was confined to the magistrate’s application of law to

those findings of fact. On appeal, we must determine whether the trial court abused its discretion

in its decision to adopt the magistrate’s decision. Barlow v. Barlow, 9th Dist. No. 08CA0055,

2009-Ohio-3788, ¶ 5. In doing so, our focus “must be on the trial court’s actions and not the

decisions of the magistrate.” Solomon v. Solomon, 157 Ohio App.3d 807, 2004-Ohio-2486, ¶ 17

(7th Dist.).

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

maintained and such determination will not be disturbed absent a showing of abuse of

discretion.” Southern Health Facilities, Inc. v. Somani, 10th Dist. No. 95APE06-826, 1995 WL

765161 (Dec. 29, 1995), citing Marks v. C.P. Chemical Co., 31 Ohio St.3d 200, 201 (1987).

        {¶12} Under Civ.R. 23, seven prerequisites must be met before a court may certify a

case as a class action:

        (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 impractical; (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 satisfied.
                                                 5


In re Consol. Mtge. Satisfaction Cases, 97 Ohio St.3d 465, 2002-Ohio-6720, ¶ 6. The burden of

establishing the right to a class action rests upon the plaintiff. State ex rel. Ogan v. Teater, 54

Ohio St.2d 235, 247 (1978). Failure to satisfy any one of these seven prerequisites results in

denial of certification. Warner v. Waste Mgmt., 36 Ohio St.3d 91 (1988).

       {¶13} The trial court here concluded that the allegations in Sliwinski’s complaint fell

under three of these seven requirements: potential identity of the class, plaintiff’s membership in

the class, and a singular question of fact to members of the class. However, it further concluded

that there were no allegations establishing the number of members in the purported class, how

Sliwinski’s claims were typical of those held by other members of the purported class, whether

Sliwinski would fairly and adequately protect the interest of the class, and whether questions of

law or fact common to members of the class predominated over questions affecting only

individual members.      It further found that Sliwinski would not be an adequate class

representative because she had terminated her relationship with Hunt Club, and would therefore

have a clear conflict with the class members who were current tenants with valid leases for the

premises. It concluded that these deficiencies were fatal and granted the motion to strike the

class action claims from the amended complaint.

       {¶14} Initially, Sliwinski challenges the court’s ability to strike the class action claims

from the pleadings prior to the filing of a motion to certify. In support of this argument, she

references several federal cases.    However, Ohio courts have acknowledged that a Civ.R.

23(D)(4) motion to strike class allegations and claims is appropriate where the plaintiff has failed

to properly plead operative facts demonstrating compliance with Civ.R. 23(A) and (B). See

Cubberly v. Chrysler Corp., 70 Ohio App.2d 263, 267, fn.2 (8th Dist.1981) (“Failure to assert

such facts renders a pleading, containing class allegations, subject to a motion to strike made by
                                                   6


an opposing party pursuant to Civ.R. 23(D)(4).”). See also Waterman v. Christy, 10th Dist. No.

87AP-866, 1988 WL 33623, *2 (Mar. 15, 1988) (“It is well-established that a complaint is

subject to a motion to strike in accordance with Civ.R. 23(D)(4) where there is a failure to

properly plead operative facts.”). Accordingly, this argument is without merit.

       {¶15} The majority of Sliwinski’s remaining arguments center around the trial court’s

finding that her amended complaint sought to void the leases, as opposed to voiding an alleged

separate contract concerning the sale of water and sewer. In addition, she argues that the trial

court “erred as a matter of fact in ruling whether the lease contains a severability clause.”

However, these were findings of fact made by the magistrate and adopted by the trial court. As

discussed above, because Sliwinski did not offer a transcript or affidavit to support her objection

to the magistrate’s decision, the trial court would have abused its discretion had it not adopted

the magistrate’s findings of facts as true. Crislip at ¶ 6. Accordingly, she cannot demonstrate an

abuse of discretion on the part of the trial court in adopting these facts.

       {¶16} Next, Sliwinski argues that the trial court erred as a matter of law in concluding

that it had no authority to sever the water and sewer portions of the contract. Arguably, this

argument could relate to the issues of voiding or rescinding the entire lease agreements, and

would thus support the trial court’s concerns regarding a potential conflict with the current

tenants and Sliwinski’s ability to adequately represent the class. However, this is not the only

Civ.R. 23 requirement that the court concluded Sliwinski failed to satisfy. It also found that

there were no allegations establishing the number of members in the purported class, how

Sliwinski’s claims were typical of those held by other members of the purported class, and

whether questions of law or fact common to members of the class predominated over questions

affecting only individual members. On appeal, she fails to argue, let alone demonstrate, that
                                                  7


these findings constituted an abuse of discretion by the trial court. As stated above, failure to

satisfy any one of the seven prerequisites of Civ.R. 23 will result in denial of certification.

Warner, 36 Ohio St.3d at 91. Accordingly, she has failed to demonstrate that the trial court

abused its discretion in granting the motion to strike.

       {¶17} The remainder of Sliwinski’s arguments center around the magistrate’s findings

pertaining to a private anti-trust action, and the need to identify a human being when pleading

corporate fraud. Again, these arguments fail to address the fatal deficiencies the trial court found

in her pleadings with regard to the Civ.R. 23 requirements. Accordingly, we conclude that

Sliwinski has failed to demonstrate that the trial court abused its discretion in granting the

motion to strike the class action allegations from the pleadings.

       {¶18} Sliwinski’s sole assignment of error is overruled.

                                                 III.

       {¶19} Sliwinski’s assignment of error is overruled.          The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
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period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    CARLA MOORE
                                                    FOR THE COURT



CARR, J.
CONCURS.

DICKINSON, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

JOHN WOOD, Attorney at Law, for Appellant.

MARK A. PHILLIPS, Attorney at Law, for Appellees.
