[Cite as Black v. Girard, 2020-Ohio-1563.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


MILES BLACK, INDIVIDUALLY                      :        OPINION
AND ON BEHALF OF THOSE
SIMILARLY SITUATED, et al.,                    :
                                                        CASE NO. 2019-T-0053
                 Plaintiffs-Appellees,         :

        - vs -                                 :

CITY OF GIRARD, OHIO,                          :

                 Defendant,                    :

BLUE LINE SOLUTIONS, LLC,                      :

                 Defendant-Appellant.          :


Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2018 CV
01256.

Judgment: Affirmed.


Thomas A. Zimmerman, Jr., Zimmerman Law Offices, P.C., 77 West Washington
Street, Suite 1220,Chicago, IL 60602, and Marc E. Dann, Brian Daniel Flick, and
Michael Andrew Smith, Jr., The Dann Law Firm, 2728 Euclid Avenue, Suite 300, P.O.
Box 6031040, Cleveland, OH 44103 (For Plaintiffs-Appellees).

Robert S. Yallech, Reminger Co., LPA, 11 Federal Place Central, Suite 1200,
Youngstown, OH 44503 (For Defendant-Appellant).


MATT LYNCH, J.

        {¶1}     Defendant-appellant, Blue Line Solutions, LLC, appeals the July 12, 2019

Judgment Entry of the Trumbull County Court of Common Pleas, granting plaintiffs-

appellees’ Amended Motion for Class Certification. For the following reasons, we affirm
the decision of the court below.

       {¶2}   On July 16, 2018, plaintiffs, Miles Black, Melissa Black aka Melissa Hyde,

Lorraine Morris, John Perfette, Samuel Rotz, and John Beal, filed a Class Action

Complaint for Violation of the Ohio Constitution, Declaratory Judgment, Equitable

Restitution, Violation of the Ohio Consumer Sales Protection Act, and Negligent

Misrepresentation against defendants, the City of Girard and Blue Line Solutions.

       {¶3}   On July 18, 2018, the plaintiffs filed a Motion for Class Certification.

       {¶4}   On August 15, 2018, Girard filed a Motion to Dismiss, pursuant to Civil

Rule 12(B)(6), for failure to state a claim upon which relief can be granted. The plaintiffs

responded on August 30, 2018. Girard filed a Reply in Support of the Motion to Dismiss

on September 10, 2018.

       {¶5}   On September 17, 2018, Blue Line Solutions filed a Motion to Dismiss,

pursuant to Civil Rule 12(B)(6), for failure to state a claim upon which relief can be

granted. As the basis for dismissal Blue Line Solutions argued:

              Plaintiff’s Complaint alleges causes of action and damages that flow from
              the purported “invalid” speeding citations and consequent fines. BLS did
              not issue any of the citations in this case. The statutes and ordinances
              cited by plaintiffs make clear that only Girard had that authority. BLS
              collected none of the fines from the plaintiffs. Those were paid by the
              plaintiffs to Girard. * * * Plaintiffs cannot prove any set of facts in support
              of their claim [sic] which would entitle them to relief against BLS.

The plaintiffs responded on October 18, 2018. Blue Line Solutions filed a Reply Brief to

the Plaintiffs’ Response on October 24, 2018.

       {¶6}   On November 21, 2018, the trial court ruled on the Motions to Dismiss.

The court noted:

              According to the complaint, each Plaintiff was issued a citation for
              speeding in the City of Girard between the time frame of December 7,



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              2017 to January 7, 2018. During this time frame, the posted speed limit
              on the subject area of Interstate 80 was 55 mph. According to the
              Plaintiffs, the speed limit in the subject area should have been 65 mph
              since the Ohio Department of Transportation had completed construction
              in the subject area on December 7, 2017. The citations were issued by
              the City of Girard, however, Blue Line operates the traffic enforcement
              system according to the complaint.

The court dismissed the plaintiffs’ claims for violations of the Ohio Consumer Sales

Practices Act and negligent misrepresentation. The court ruled that “the motions are

denied as to the remaining claims for due process violations, declaratory judgment,

equitable restitution, and civil conspiracy.”

       {¶7}   On December 5, 2018, Blue Line Solutions filed its Answer to Plaintiffs’

Class Action Complaint. On December 17, 2018, Girard filed its Answer.

       {¶8}   On May 2, 2019, the plaintiffs filed an Amended Motion for Class

Certification. On May 31, 2019, Girard and Blue Line Solutions filed individual Briefs in

Opposition to the Amended Motion for Class Certification. The plaintiffs filed a Reply on

June 14, 2019.     With leave of court, Girard and Blue Line Solutions jointly filed a

Surreply in Opposition to the Amended Motion for Class Certification.

       {¶9}   On July 12, 2019, the trial court issued its ruling on the Amended Motion

for Class Certification. The court granted the following “General Class”:

       {¶10} All persons and entities who were issued a citation for allegedly traveling
in excess of 55 m.p.h. in violation of Girard City Ordinance 333.03 and/or Traffic Code
Ordinance 8069-16, between December 7, 2017 and January 7, 2018, in the westbound
lane of Interstate 80 within the municipal limits of the City of Girard.

       {¶11} The court defined a “Subclass 1 of this general class definition” as follows:

                      All persons and entities who were issued a citation for allegedly
              traveling in excess of 55 m.p.h. in violation of Girard City Ordinance
              333.03 and/or Traffic Code Ordinance 8069-16, between December 7,
              2017 and January 7, 2018, in the westbound lane of Interstate 80 within
              the municipal limits of the City of Girard, and who paid any fines, penalties



                                           3
              or fees related to the citation.

The court defined a “Subclass 2 of the general class definition” as follows:

                      All persons and entities who were issued a citation for allegedly
              traveling in excess of 55 m.p.h. in violation of Girard City Ordinance
              333.03 and/or Traffic Code Ordinance 8069-16, between December 7,
              2017 and January 7, 2018, in the westbound lane of Interstate 80 within
              the municipal limits of the City of Girard, and who have not paid any fines,
              penalties or fees related to the citation, and whose citation was not found
              not liable at a hearing.

       {¶12} On August 7, 2019, Blue Line Solutions filed a Notice of Appeal.             On

appeal, Blue Line Solutions raises the following assignment of error:

       {¶13} “[1.] The trial court committed reversible error when it granted appellees’

Amended Motion for Class Certification, finding appellees had named an identifiable

and unambiguous class that was not overly broad.”

       {¶14} At oral argument, Blue Line Solutions raised arguments regarding its

liability for citations that it neither issued nor enforced. These same arguments were

raised in its September 17, 2018 Motion to Dismiss.             As these arguments were

addressed in an interlocutory order and were not raised in Blue Line Solutions’

appellant’s brief, they are not properly before this court and we decline to address them.

       {¶15} An action may be maintained as a class action “if (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.” Civ.R. 23(A).

       {¶16} In addition to these prerequisites, “[a] class action may be maintained if * *

* the court finds that the questions of law or fact common to the members of the class




                                           4
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.” Civ.R. 23(B)(3); In re Consol. Mtge. Satisfaction Cases, 97 Ohio St.3d

465, 2002-Ohio-6720, 780 N.E.2d 556, ¶ 7.

        {¶17} Finally, there are “[t]wo prerequisites * * * implicitly required by Civ.R. 23”:

the class must be identifiable and unambiguous, and the class representatives must be

members of the class. Warner v. Waste Mgt., Inc., 36 Ohio St.3d 91, 521 N.E.2d 1091

(1988), paragraphs one and two of the syllabus, 96; Hamilton v. Ohio Savings Bank, 82

Ohio St.3d 67, 71, 694 N.E.2d 442 (1998).1

        {¶18} “A trial court must conduct a rigorous analysis when determining whether

to certify a class pursuant to Civ.R. 23 and may grant certification only after finding that

all of the requirements of the rule are satisfied; the analysis requires the court to resolve

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

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

requirement is met.” 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.

        {¶19} “A party seeking certification pursuant to Civ.R. 23 bears the burden of

demonstrating by a preponderance of the evidence that the proposed class meets each

of the requirements set forth in the rule.” Id. at paragraph three of the syllabus.

        {¶20} “A trial judge has broad discretion in determining whether a class action

1. The Ohio Supreme Court in Hamilton identified the seven necessary requirements before an
action could be maintained as a class action as follows: “(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.” Id. at 71.


                                                5
may be maintained and that determination will not be disturbed absent a showing of an

abuse of discretion.” Marks v. C.P. Chem. Co., Inc., 31 Ohio St.3d 200, 509 N.E.2d

1249 (1987), syllabus; Vinci v. American Can Co., 9 Ohio St.3d 98, 459 N.E.2d 507

(1984), paragraph one of the syllabus. The abuse of discretion standard “applies to the

ultimate decision of the trial court, * * * as well as to its determination regarding each

requirement of the rule.” Cullen at ¶ 19. Nevertheless, as in civil cases generally where

“the burden of persuasion is only by a preponderance of the evidence, * * * evidence

must still exist on each element (sufficiency) and the evidence on each element must

satisfy the burden of persuasion (weight).” Id. at ¶ 20, citing Eastley v. Volkman, 132

Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19.

        {¶21} Blue Line Solutions raises three arguments under its sole assignment of

error. The first is that the certified class is overly broad because it “includes members

who suffered no injury.” Its position is that “the members of [the] proposed class who

were cited for speeding at 75 m.p.h. or greater (ten miles above the 65 m.p.h. threshold

appellees assert is correct) would have received citations regardless, and therefore

could not have suffered an injury.2 Appellant’s brief at 9.

        {¶22} Blue Line Solutions relies upon the following proposition: “If * * * a class is

defined so broadly as to include a great number of members who for some reason could

not have been harmed by the defendant’s allegedly unlawful conduct, the class is

defined too broadly to permit certification.”           (Citation omitted.)     Stammco, L.L.C. v.

United Tel. Co. of Ohio, 136 Ohio St.3d 231, 2013-Ohio-3019, 994 N.E.2d 408, ¶ 53.

                Plaintiffs in class-action suits must demonstrate that they can prove,

2. A vehicle must be traveling “at a speed that exceeds the posted speed limit by not less than
ten miles per hour” in order for a ticket to be issued “based upon evidence recorded by a traffic
law photo-monitoring device.” R.C. 4511.0912(B).


                                               6
             through common evidence, that all class members were in fact injured by
             the defendant’s actions. * * * Although plaintiffs at the class-certification
             stage need not demonstrate through common evidence the precise
             amount of damages incurred by each class member, * * * they must
             adduce common evidence that shows all class members suffered some
             injury.

Felix v. Ganley Chevrolet, Inc., 145 Ohio St.3d 329, 2015-Ohio-3430, 49 N.E.3d 1224, ¶

33.   “If the class plaintiff fails to establish that all class members were damaged

(notwithstanding questions regarding the individual damages calculations for each class

members [sic]), there is no showing of predominance under Civ.R. 23(b)(3).” Id. at ¶ 35.

       {¶23} We disagree that, even if the trial court were to determine that 65 m.p.h.

was the proper speed limit, class members traveling in excess of 75 m.p.h. would not

have suffered an injury-in-fact.   The plaintiffs’ position is that the actual speed of

particular class members is not relevant inasmuch as the citations were invalid and

unenforceable. See Class Action Complaint at ¶ 73 (“[p]ursuant to R.C. § 2721.02,

Plaintiffs and members of the Class, Subclass 1, and Subclass 2 are entitled to a

declaration that the Citations issued in the I-80 Non-Construction Zone * * * are invalid

and unenforceable”). While we offer no opinion on the merits of the argument, the claim

that the citations are invalid “ab initio” is a sufficient demonstration of common evidence

that all class members have allegedly suffered some injury. Ojalvo v. Bd. of Trustees of

Ohio State Univ., 12 Ohio St.3d 230, 233, 466 N.E.2d 875 (1984) (“[c]lass action

certification does not go to the merits of the action”); Binder v. Cuyahoga Cty., 2019-

Ohio-1236, 134 N.E.3d 807, ¶ 147 (8th Dist.) (the existence of an injury-in-fact “is a

merit issue and is not something typically addressed in determining whether a class

should have been certified”).

       {¶24} Both Stammco and Felix are distinguishable.           The certified class in



                                         7
Stammco was defined as persons who were billed for unauthorized telephone service

charges. This definition was found to be “too broad” not because unauthorized service

charges did not constitute an injury-in-fact, but because the defendant had “no records

regarding which charges are authorized and which are not”: “every person who was

billed a third-party charge for which [the defendant] had no prior authorization is now a

class member even if the third-party charge was proper.” Stammco at ¶ 56. Unlike the

present case, the class in Stammco was not “readily identifiable.” Id.

       {¶25} In Felix, the defined class “encompass[ed] consumers who purchased a

vehicle * * * through a purchase contract that contained [an] unconscionable arbitration

provision.”   Felix, 145 Ohio St.3d 329, 2015-Ohio-3430, 49 N.E.3d 1224, at ¶ 37.

However, merely entering into a purchase contract containing an unconscionable

provision did not constitute an injury-in-fact in the absence of any “showing that all of

the consumers who purchased vehicles through a contact with the offensive arbitration

provision were injured by it or suffered any damages.”         Id.   The allegedly invalid

citations at issue herein did constitute an actual injury inasmuch as all potential class

members were subject to fines and penalties which could not have otherwise been

imposed. Although worded somewhat awkwardly, the defined classes exclude persons

who contested their citations and were found “not liable at a hearing.”

       {¶26} Blue Line Solutions argues that “[i]ncreasing the speed limit from 55

m.p.h. to 65 m.p.h. would not invalidate [the] citations, and therefore [class members

traveling at a speed of 75 m.p.h. or greater] could not have suffered injuries or be

entitled to remedies even if appellees’ declaratory judgment were granted.” Appellant’s

brief at 12. This contention, however, raises the merits of the underlying action: “At the




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certification stage in a class-action lawsuit, a trial court must undertake a rigorous

analysis, which may include probing the underlying merits of the plaintiff’s claim, but

only for the purpose of determining whether the plaintiff has satisfied the prerequisites

of Civ.R. 23.” Stammco at syllabus. It is the validity of the citations that is at issue and

so any argument as to whether increasing the speed limit would or would not invalidate

them is inappropriate at this stage of the proceedings. Ojalvo, 12 Ohio St.3d at 233,

466 N.E.2d 875 (the trial court abused its discretion in considering whether certain

contractual agreements had been breached as there was no need to consider

arguments “beyond the necessity of establishing the validity of certification under Civ.R.

23”).

        {¶27} Blue Line Solutions’ next argument is that the certified class is “overly

broad because it includes parties who waived their rights to adjudicate their citations” by

not requesting a hearing pursuant to R.C. 4511.098(A)(5) (“[t]he failure to request a

hearing within [the] time period constitutes a waiver of the right to contest the violation

and ticket, and is deemed to constitute an admission of liability and waiver of the

opportunity to contest the violation”). Likewise, it argues that “[t]hose appellees who

either paid their fine in lieu of attending their hearing or failed to pay their fine and did

not request a hearing have waived their right to contest their citation” under the doctrine

of waiver and/or satisfaction. Appellant’s brief at 15.

        {¶28} The arguments raised by Blue Line Solutions – whether exhaustion,

waiver, or satisfaction – are all affirmative defenses, see Civ.R. 8(C), the validity of

which are only relevant to the degree that they affect the plaintiffs’ ability to satisfy the

requirements of Civil Rule 23. “When ‘one or more of the central issues in the action




                                          9
are common to the class and can be said to predominate, the action may be considered

proper * * * even though other important matters will have to be tried separately, such

as damages or some affirmative defenses peculiar to some individual class members.’”

(Citation omitted.) Tyson Foods, Inc. v. Bouaphakeo, __ U.S. __, 136 S.Ct. 1036, 1045,

194 L.Ed.2d 124 (2016); Toliver v. Semple, D.Conn. No. 3:16-cv-1899, 2019 WL

4686587, *4 (“[n]either exhaustion nor standing are part of the class certification

analysis, because both challenge whether the case should proceed, not whether the

class should be certified, and are better addressed by a motion to dismiss”); Binder,

2019-Ohio-1236, 134 N.E.3d 807, at ¶ 53 (“[f]ailure to exhaust administrative remedies

is an affirmative defense and accordingly, if raised it will be addressed when the merits

of the case are addressed”).

       {¶29} In the present case, the validity of the defenses raised by Blue Line

Solutions is contested by the plaintiffs and resolution of the issue is more properly

reserved for a consideration on its own merits rather than in the class certification

context. The existence of the issue does not impinge on the requirements of Civil Rule

23 and, as has been observed, the application of “[t]he exhaustion doctrine is not

without exception.”    Dworning v. Euclid, 119 Ohio St.3d 83, 2008-Ohio-3318, 892

N.E.2d 420, ¶ 10. Moreover, Blue Line Solutions acknowledges that the “overwhelming

majority of appellees’ proposed class members refused to participate in the process at

all by failing to request a hearing.” Appellant’s brief at 19. Accordingly, it cannot be

said that the exhaustion issue is inconsistent with the fundamental purposes of class

action certification as a method of fairly and efficiently adjudicating the parties’ rights in

the controversy. Binder at ¶ 80 (where “most, if not all, of the * * * plaintiffs did not




                                          10
exhaust their administrative remedies * * * the issue of failure to exhaust administrative

remedies is one of the issues the trial court would be required to determine for the entire

class”).

       {¶30} Blue Line Solutions’ final argument is that “the appellees have presented a

class with a myriad of different factual circumstances that give rise to diverse questions

of law and fact that are not appropriately resolved in a single adjudication.” Appellant’s

brief at 22. Specifically, Blue Line Solutions identifies those class members who were

traveling at speeds of 75 m.p.h. or greater and those class members who refused to

request hearings. It maintains that these individual questions would predominate the

litigation. We disagree.

       {¶31} Neither of the two circumstances identified by Blue Line Solutions would

significantly impede the progress of a class action lawsuit or compromise its fairness.

As a factual matter, the class members who exceeded 75 m.p.h. and/or who did not

challenge their citations by requesting a hearing may be readily determined from the

documents in the parties’ possession. The issues raised by these two circumstances

are essentially legal issues and capable of resolution through briefing.

       {¶32} The trial court identified the “validity of the citation [as] the common legal

question to each proposed class member”: “[i]t is the issuance of the citation itself that

forms the substance of the dispute – not the individual variances.” The court further

stated that the “legal questions raised by the proposed subclasses would have common

questions of law,” although the “questions of fact for each might be substantially

different as to speed, location and response to receipt of the citation.”       The court

recognized that the division of the general class into one subclass of “those who paid




                                        11
the citation in some manner” and another subclass of “those that did not” would help “to

separate those factual issues not germane to the entire group.” The court’s analysis is

reasonable. We find no abuse of discretion.

      {¶33} The sole assignment of error is without merit.

      {¶34} For the foregoing reasons, the judgment of the Trumbull County Court of

Common Pleas, granting the plaintiffs’ Amended Motion for Class Certification, is

affirmed. Costs to be taxed against the appellant.



TIMOTHY P. CANNON, P.J.,

MARY JANE TRAPP, J.,

concur.




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