[Cite as Ayers v. KCI Technologies, Inc., 2019-Ohio-3614.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


JENNIFER L. AYERS, et al.,                              :    OPINION

                 Plaintiffs-Appellees,                  :
                                                             CASE NO. 2018-P-0087
        - vs -                                          :

KCI TECHNOLOGIES, INC., et al.,                         :

                 Defendants,                            :

OSCAR BRUGMANN SAND                                     :
& GRAVEL, INC., et al.,
                                                        :
                 Defendants-Appellants.
                                                        :


Civil Appeal from the Portage County Court of Common Pleas, Case No. 2014 CV
00572.

Judgment: Affirmed.


Edward A. Proctor and Thomas J. Connick, Connick Law, LLC, 25550 Chagrin
Boulevard, Suite 101, Cleveland, OH 44122 (For Plaintiffs-Appellees).

Jeffrey T. Kay, Frank H. Scialdone, and John D. Pinzone, Mazanec, Raskin & Ryder
Co., LPA, 100 Franklin’s Row, 34305 Solon Road, Cleveland, OH 44139, and David
James Garnier, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266
(For Defendants-Appellants, County of Portage, Ohio, Portage County Engineer, and
Michael Marozzi).

Dennis R. Fogarty, Davis & Young LPA, 29010 Chardon Road, Willoughby Hills, OH
44092 (For Defendant-Appellant, Pasquale Romano).

Craig G. Pelini, Eric J. Williams, and Nicole H. Richard, Pelini, Campbell & Williams
LLC, 8040 Cleveland Avenue, NW, Suite 400, North Canton, OH 44720 (For
Defendants-Appellants, Oscar Brugmann Sand & Gravel, Inc. and Todd Brugmann).
MATT LYNCH, J.

      {¶1}   Defendants-appellants appeal the decision of the Portage County Court of

Common Pleas to grant class certification to plaintiffs-appellees.        For the following

reasons, we affirm the decision of the court below.

      {¶2}   On July 16, 2014, Jessica L. Ayers and other representative plaintiffs filed

a Class Action Complaint against KCI Technologies, Inc.; MS Consultants, Inc.; Oscar

Brugmann Sand & Gravel, Inc.; Todd Brugmann; the Portage County Engineer; County

of Portage, Ohio; Romano & Sons Nursery; Pasquale Romano; and Michael Marozzi.

The plaintiffs are or have been at relevant times residents or property owners in the

Aurora East Subdivision, Shalersville Township, Portage County.             The Complaint

summarizes its allegations as follows:

             Plaintiffs, on behalf of themselves and Class of similarly situated
             persons defined below, bring this suit to seek redress for
             negligence,      continuing       nuisance,     continuing      trespass,
             Unconstitutional Taking under both the Ohio and Federal
             Constitutions, Writ of Mandamus for Inverse Condemnation, and
             injunctive and declaratory relief. Plaintiffs have been and continue
             to be injured by Defendant KCI Technologies, Inc.’s, as successor
             in interest by acquisition of McCoy Associates, Inc., (“Defendant
             KCI”) and Defendant MS Consultants, Inc.’s (“Defendant MS”)
             negligent failure to properly design the Aurora East Storm Drainage
             System improvements, to convey the flow of storm water and
             prevent storm water from overwhelming the system and flooding
             Plaintiffs’ properties; this includes, but is not limited to, downsizing
             the storm drainage systems due to alleged lack of funds, despite
             knowledge [that] the downsized systems would be insufficient to
             handle the storm water flow, and failing to re-direct and/or divert
             water from the adjoining area, so as to avoid entering the
             subdivision. Plaintiffs have also been and continue to be injured by
             Defendant Todd Brugmann, Defendant Oscar Brugmann Sand &
             Gravel’s (collectively, “Defendant Brugmann”) and Defendant
             Romano & Sons Nursery’s and Defendant Pasquale Romano’s
             (collectively, “Defendant Romano”) construction, alteration and
             modifications on their respective properties which has altered the
             natural water flow in the Aurora East Drainage System contributing
             to the unreasonable flooding of Plaintiffs’ properties. Plaintiffs have

                                             2
              also been and continue to be damaged by the negligence, reckless,
              willful and wanton actions of the Portage County Engineer’s
              negligent failure to properly operate, maintain and/or upkeep the
              Aurora East Storm Drainage Sewer System, Aurora East roadways,
              and the drainage from the aforementioned [sic] swamp area that
              the county has negligently maintained and alleged unreasonable
              amounts of water to be diverted directly into the Aurora East
              Subdivision. Additionally, the Portage County engineer has acted
              with wanton, willful and reckless disregard for the rights of the
              Aurora East residents and property owners. Alternatively, Plaintiffs
              are entitled to fair and just compensation for the County of Portage,
              Ohio’s unconstitutional taking of their properties under both the
              Ohio and Federal Constitution.

      {¶3}    In the course of the subsequent litigation, the plaintiffs dismissed KCI

Technologies, MS Consultants, Todd Brugmann, and Romano & Sons Nursery as

defendants.

      {¶4}    On July 21, 2017, the plaintiffs filed a Motion to Certify Class Action. The

plaintiffs sought to have the class defined as follows: “All persons who own or owned

real property in the Aurora East Subdivision at any time since 1998.”

      {¶5}    On November 13, 2017, defendants Pasquale Romano, Brugmann Sand

& Gravel, Portage County Engineer, Portage County, and Michael Marozzi filed a Joint

Memorandum in Opposition to Plaintiffs’ Motion to Certify Class Action.

      {¶6}    On November 21, 2017, the plaintiffs filed a Reply Brief in Support of their

Motion to Certify Class Action.

      {¶7}    On November 1, 2018, the trial court granted the Plaintiffs’ Motion to

Certify Class Action, but amended the proposed class definition as follows: “All persons

who own or owned real property in the East Aurora Subdivision at any time since 1998

and whose property suffered excessive flooding and/or whose property was unduly

taken or otherwise adversely affected due to any actions on the part of Defendants

causing alterations of surface water through the Subdivision.”

                                            3
        {¶8}    On November 26, 2018, the defendants filed a Notice of Appeal.                           On

appeal, they raise the following assignment of error: “The trial court abused its

discretion when it granted class certification.”

        {¶9}    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).

        {¶10} 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 predominate over any questions affecting only individual members, and that a

class action is superior to other available methods for the fairly and efficiently

adjudicating the controversy.” Civ.R. 23(B)(3); In re Consol. Mgte. Satisfaction Cases,

97 Ohio St.3d 465, 2002-Ohio-6720, 780 N.E.2d 556, ¶ 7.

        {¶11} 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

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



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.

                                                     4
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.

       {¶13} “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.” Cullen, 137 Ohio St.3d 373, 2013-Ohio-4733,

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

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

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.

       {¶15} With respect to the mandate for the trial court to “conduct a rigorous

analysis” as to whether class certification is appropriate, this court has held: “Where the

trial court’s written decision granting class certification provides an articulated rationale

                                             5
sufficient to support an appellate inquiry into whether the relevant factors were properly

applied, the trial court does not abuse its discretion in conducting its rigorous analysis.”

Unifund CCR Partners v. Piaser, 11th Dist. Ashtabula No. 2016-A-0076, 2019-Ohio-

183, ¶ 17, citing Baughman v. State Farm Mut. Auto. Ins. Co., 88 Ohio St.3d 480, 483,

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

        {¶16} The defendants’ challenge to class certification focuses generally on three

elements: commonality, typicality, and the predominance of common questions of law or

fact.

Civil Rule 23(A)(2) (“questions of law or fact common to the class”)

        {¶17} “Courts generally have given a permissive application to the commonality

requirement in Civ.R. 23(A)(2).       This prerequisite has been construed to require a

‘common nucleus of operative facts.’” (Citation omitted.) Warner, 36 Ohio St.3d 91,

521 N.E.2d 1091, at paragraph three of the syllabus. Civil Rule 23(A)(2) “clearly does

not require commonality with respect to damages but merely that the basis of liability is

a common factor for all class members.” Ojalvo v. Bd. of Trustees of Ohio State Univ.,

12 Ohio St.3d 230, 235, 466 N.E.2d 875 (1984); Warner at 97 (“[i]f there is a common

liability issue” or “if there is a common fact question relating to negligence * * * the Rule

is satisfied”) (citation omitted).   “Typically, the subdivision (a)(2) requirement is met

without difficulty for the parties and very little time need be expended on it by the * * *

judge.” (Citation omitted.) Warner at 97.

        {¶18} In determining that the commonality requirement was satisfied, the trial

court stated: “Here, all class members would have similar legal claims stemming from

the same nucleus of operative facts surrounding the alleged actions on the part of

Defendants causing alterations of surface water through the Subdivision. The answer

                                              6
to the question of whether or not those alleged actions caused damage to the property

in the Subdivision would apply equally to the class as a whole and, accordingly, resolve

the dispute across the board.”

         {¶19} The defendants contest this finding on the grounds that “none of the

Plaintiffs experienced the exact same flooding events in the same manner.”              The

defendants note that different plaintiffs experienced flooding in different years.

Moreover, “none of the named Plaintiffs can agree on the same exact location from

where the flooding in the Subdivision originates.” Appellants’ brief at 16. “Some of the

Plaintiffs live on the east side of the Subdivision closer to the Brugmann property, some

of the Plaintiffs live on the west side of the Subdivision closer to the Romano property,

and other Plaintiffs live throughout the Subdivision.” Therefore, it is not possible “to

isolate which Defendant, if any, is responsible for their flooding.” Appellants’ brief at 17.

Finally, the defendants argue that actions taken by individual plaintiffs “have altered the

drainage surrounding their respective properties,” affecting not only the impact of

flooding on their own properties but on that of their neighbors as well. Appellant’s brief

at 18.

         {¶20} We find no abuse of discretion in the trial court’s determination that the

commonality prerequisite was satisfied. Here, the common question of law or fact is the

defendants’ liability for “causing alterations of surface water through the Subdivision.”

The defendants’ objections to a commonality finding focus on the potential disparity in

individual recoveries on account of particular circumstances, such as location within the

Subdivision or actions contributing to the flooding. But these considerations do not

invalidate the fact that the defendants’ alleged conduct in altering the flow of surface

water into the Subdivision establishes a common basis for liability. “It is not necessary

                                             7
that all the questions of law or fact raised in the dispute be common to all the parties.”

Hamilton, 82 Ohio St.3d at 77, 694 N.E.2d 442. Rather, “[t]he issue of whether there

are any additional questions affecting only individual class members does not enter the

class certification analysis until the Civ.R. 23(B)(3) requirement of predominance and

superiority is applied.” Id.

       {¶21} The application of this principle in determining commonality is illustrated in

the case of Berdysz v. Boyas Excavating, Inc., 2017-Ohio-530, 85 N.E.3d 288 (8th

Dist.), where the plaintiffs (property owners) sought class certification on the grounds

that “noxious odors emanating from the City View property [development] * * * resulted

in a nuisance that interferes with the peaceful and useful enjoyment of their properties,

and has diminished the value of their properties.” Id. at ¶ 37. It was objected that

“individual differences in certain issues among the proposed class defeats the

commonality requirement.” Id. at ¶ 30. The court of appeals rejected the argument,

noting that “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 * * * remain after

the common questions of the defendant’s liability have been resolved does not dictate

the conclusion that a class action is impermissible.” (Citation omitted.) Id.

       {¶22} The defendants cite to the cases of Stammco, L.L.C. v. United Tel. Co. of

Ohio, 136 Ohio St.3d 231, 2013-Ohio-3019, 994 N.E.2d 408, and Wal-Mart Stores, Inc.

v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011), for the proposition

that “raising common questions is not enough[,] [r]ather, the requirement is to ‘generate

common answers apt to drive the resolution of the litigation.’” Stammco at ¶ 32, citing

Dukes at 350.       A finding of commonality in the present case accords with this

proposition.    The alleged negligence, nuisance, trespass and/or taking by the

                                             8
defendants based on their conduct in diverting the flow of surface water into the

Subdivision is a sine qua non for, albeit not a guaranty of, recovery by any of the

plaintiffs.

Civil Rule 23(A)(3) (“the claims or defenses of the representative parties are
typical of the claims or defenses of the class”)

        {¶23} The rationale behind the typicality requirement is that “a plaintiff with

typical claims will pursue his or her own self-interest in the litigation and in so doing will

advance the interests of the class members, which are aligned with those of the

representative.” (Citation omitted.) Baughman, 88 Ohio St.3d at 485, 727 N.E.2d 1265;

Marks, 31 Ohio St.3d at 202, 509 N.E.2d 1249 (“[t]he purpose of this provision is to

protect absent class members”). “When it is alleged that the same unlawful conduct

was directed at or affected both the named plaintiff and the class sought to be

represented, the typicality requirement is usually met irrespective of varying fact

patterns which underlie individual claims.”       (Citation omitted.)   Baughman at 485;

Hamilton, 82 Ohio St.3d at 77, 694 N.E.2d 442 (“[t]he requirement for typicality is met

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

“The defenses or claims of the class representatives must be typical of the defenses or

claims of the class members. They need not be identical.” Planned Parenthood Assn.

of Cincinnati, Inc. v. Project Jericho, 52 Ohio St.3d 56, 64, 556 N.E.2d 157 (1990).

        {¶24} In determining that the commonality requirement was satisfied, the trial

court stated: “In this case, it appears that the named Plaintiffs’ interests are the same as

those of the other class members and not, in any way, antagonistic toward the other

class members. Plaintiffs allege that they and the members of the putative class have

interests that are, indeed co-extensive, as property owners in the Aurora East



                                              9
Subdivision who have suffered damage to their property as a result of the alleged

actions of the Defendants.”

       {¶25} The defendants assert that there can be no typicality inasmuch as the

“claims [of the numerous named Plaintiffs] inherently require individualized proof of

separate facts and involve a consistently changing set of circumstances over a span of

more than fifteen years.” Appellant’s brief at 22. “None of the Plaintiffs experienced the

same damages or the same amount of damages” and, therefore, are “not subject to any

formulaic method of proof.” Appellants’ brief at 27.

       {¶26} These arguments misconstrue the purpose behind the typicality

requirement. The defendants’ arguments do not impugn the ability or the incentive of

the class representatives to advance the interests of the other class members and, as

properly noted by the trial court, none of the class representatives’ claims are

antagonistic to the claims of other class members.

       {¶27} Again, the Berdysz case is illustrative. Similar to the defendants in this

case, the defendant in Berdysz argued “the plaintiffs failed to demonstrate typicality

because their claims require proof of individualized causation.” Berdysz, 2017-Ohio-

530, 85 N.E.3d 288, at ¶ 38. The court of appeals rejected the argument, noting that

“the incentives of the plaintiffs are aligned with those of the class” and “[r]esolution of

the plaintiffs’ claims and the city’s defenses will apply equally to the class area.”

(Citation omitted.) Id. at ¶ 38 and 39.

       {¶28} The cases cited by the defendants for the proposition that the inability to

determine damages on a class-wide basis bars class certification, Petty v. Wal-Mart

Stores, Inc., 148 Ohio App.3d 348, 2002-Ohio-1211, 773 N.E.2d 576 (2d Dist.), and

Crutchfield v. Sewerage and Water Bd. of New Orleans, 829 F.3d 370 (5th Cir.2016),

                                            10
are distinguishable and/or inapposite.      In Petty, not only were the class members’

damages “highly individualized,” but the court of appeals found that there was not “a

single issue in the case that [was] susceptible of proof or disproof by a body of general

evidence applicable to the entire class.” Petty at ¶ 28. “Without at least one issue that

can be determined on a class-wide basis, there is no point to adjudication by means of

a class action.” Id. In the present case, however, the defendants’ alleged liability for

diverting surface water into the Subdivision provides a common issue which may be

determined on a class-wide basis.

       {¶29} In Crutchfield, the circuit court of appeals merely affirmed that “[t]he district

court did not err in concluding that highly individualized issues of both causation and

damages would predominate over any common liability questions or defenses that

might exist.” Crutchfield at 378. In doing so, the court recognized that “damages are

often an individualized determination and Plaintiffs correctly note that courts often certify

class actions and provide for bifurcated damages trials after a classwide trial on other

issues.” Id.

       {¶30} It should be also noted that in both Petty and Crutchfield the courts were

discussing the issue of predominance rather than typicality.

Civil Rule 23(B)(3) (“questions of law or fact common to class members
predominate over any questions affecting only individual members”)

       {¶31} The predominance inquiry under Civil Rule 23(B)(3) “requires a court to

balance questions common among class members with any dissimilarities between

them, and if the court is satisfied that common questions predominate, it then should

‘consider whether any alternative methods exist for resolving the controversy and

whether the class action method is in fact superior.’” (Citation omitted.) Cullen, 137



                                             11
Ohio St.3d 373, 2013-Ohio-4733, 999 N.E.2d 614, at ¶ 29. “To meet the predominance

requirement, a plaintiff must establish that issues subject to generalized proof and

applicable to the class as a whole predominate over those issues that are subject to

only individualized proof.” (Citation omitted.) Id. at ¶ 30; Schmidt v. Avco Corp., 15

Ohio St.3d 310, 313, 473 N.E.2d 822 (1984) (“in determining whether common

questions of law or fact predominate over individual issues, it is not sufficient that

common questions merely exist; rather, the common questions must represent a

significant aspect of the case and they must be able to be resolved for all members of

the class in a single adjudication”).

        {¶32} In determining that the predominance requirement was satisfied, the trial

court stated: “The claims of the Plaintiffs and the putative class members regarding the

alleged damages to their properties in the Aurora East Subdivision as a result of the

alleged actions of the Defendants appear to be based upon the same theories of

recovery and therefore fulfill the status of common factual and/or legal issues as

contemplated in Rule 23(B)(3).”2

        {¶33} The defendants reiterate the arguments made previously with respect to

the requirements of commonality and typicality: “[N]one of the Plaintiffs suffered the

same flooding events in the same manner.                    * * *    [B]ecause each of the Plaintiffs

experienced a different flood in a different manner, there are many different causes for



2. The trial court made other findings, pertinent to the requirements of Civil Rule 23(B)(3), which are not
disputed on appeal: “First of all, there is nothing to indicate that any putative class members have filed
suits of their own regarding the claims set forth in Plaintiffs’ Complaint. Further, resolution of the issues at
hand on a class-wide basis would be beneficial to both the Court and to the litigants in terms of efficiency
of time and money, as well as in the consistency of analysis of said factual and legal issues. There
appears to be no interest on the part of any putative class member to control the prosecution of a
separate action at present. * * * Inasmuch as the cause of action arose in Portage County, it appears
desirable to concentrate the litigation in the Portage County Common Pleas Court. Finally, it appears that
no management difficulties exist so as to preclude the prosecution of the instant case as a class action.”

                                                      12
the flooding events and, therefore, multiple theories of liability and causation.”

Appellant’s brief at 30-31. Accordingly, the trial court’s finding that plaintiffs’ claims

“appear to be based upon the same theories” constitutes an abuse of discretion. We

disagree.

       {¶34} In support of their Motion to Certify Class Action, the plaintiffs cited the

testimony of the Portage County Engineer (defendant Marozzi), their own retained civil

engineer, Karen Ridgway, and other testimony to establish, by a preponderance of the

evidence, the existence of common questions of law or fact relating to the drainage of

surface water into the Subdivision. The underlying issue involves Portage County’s

design, operation, and maintenance of a storm water system completed in 1998.

Ancillary to this issue is the effect that the immediately adjoining property owners’,

represented by defendants Brugmann Sand & Gravel and Romano, alteration of their

own property had on drainage into the Subdivision.         While it could be argued that

Portage County’s potential liability is distinct from that of Brugmann Sand & Gravel’s or

Romano’s, the evidence in the record does not support this position inasmuch as the

liability of any single defendant will be relative to the liability of other defendants.

Because all defendants’ alleged liability relates to drainage of surface water into the

Subdivision, a convincing claim can be made that the common questions predominate.

As noted above, while the defendants’ liability might not entitle all plaintiffs to recovery,

its absence would universally be fatal to their claims.

       {¶35} We further note that the propriety of class certification is not compromised

by the fact that individual plaintiffs may have differing opinions as to the cause of the

flooding. Class counsel will be responsible for determining what evidence to present in

support of plaintiffs’ claims.

                                             13
       {¶36} We acknowledge that the case of State ex rel. Huttman v. Parma, 2016-

Ohio-5624, 70 N.E.3d 1074 (8th Dist.), supports the defendants’ arguments against

certification, although we do not find it controlling. In Huttman, the plaintiffs, residents of

Parma, experienced “backup” flooding of the municipal sewer system on February 28,

July 19, and July 23, 2011. Id. at ¶ 2. They filed a class action complaint on the theory

that “water and sewage invaded their properties due to the failure of Parma to exercise

reasonable care in the maintenance and repair of its sanitary sewer system.” Id. at ¶ 3.

The trial court granted class certification and the court of appeals reversed.

       {¶37} Although the court of appeals recognized that “a common question exists

regarding Parma’s violation of the relevant standard of care due to historical negligence

in the maintenance of its sewers,” it could not conclude that this question predominated

because it appeared, “[d]ue to the widely varying conditions of Parma’s sanitary sewer

problems,” that “the resolution of factual questions pertaining to proximate causation will

be unique to each homeowner.” Id. at ¶ 31. The court noted, as have the defendants

herein, that “the flooding did not uniformly occur even with the named plaintiffs.” Id. at ¶

32. Thus, “under the record [before the court of appeals] the trial court abused its

discretion in granting class certification.” Id. at ¶ 33.

       {¶38} We decline to follow Huttman for several reasons. First, it is impossible to

compare the situation in the present case with the record in Huttman to any significant

degree. We do not know how the certified class in Huttman was defined. We do not

know the number of putative class members involved nor their geographic distribution.

The court in Huttman even spoke of the “limited facts before [the court]” which did “not

completely foreclose class certification in the future.” Id. Arguably the present case

could be distinguished given the limited geographical area (a Subdivision) and the

                                              14
limited theory of liability (surface water drainage), but, in the absence of specific details,

such speculation is idle.

       {¶39} Moreover, we find it difficult to reconcile the court of appeals’ position in

Huttman that “liability at this time cannot be determined across the class but, instead,

appears as though it must be examined on a house-by-house basis” with the

admonition that a trial court’s “probing the underlying merits of the plaintiff’s claim” is for

the limited “purpose of determining whether the plaintiff has satisfied the prerequisites of

Civ.R. 23.” Huttman at ¶ 31; Stammco, 136 Ohio St.3d 231, 2013-Ohio-3019, 994

N.E.2d 408, at syllabus. Rather, the Huttman court basically held that genuine issues of

material fact regarding causation existed which precluded the plaintiffs from proving

predominance. Huttman at ¶ 31 (“we cannot say that the [allegedly common] question

predominates for the same reason that we found genuine issues of material fact remain

in the first assignment of error”). Certainly class action plaintiffs must establish that their

theory of liability predominates over individual questions. Beyond this, however, the

inquiry is not meant to adjudicate the merits of the case.

       {¶40} Based on the record before this court, we conclude that the trial court’s

determination that the common questions regarding surface water drainage

predominate over questions affecting individual class members was within the

reasonable exercise of its discretion. Hamilton, 82 Ohio St.3d at 70, 694 N.E.2d 442

(“the appropriateness of applying the abuse-of-discretion standard in reviewing class

action determinations is grounded not in credibility assessment, but in the trial court’s

special expertise and familiarity with case-management problems and its inherent

power to manage its own docket”).

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

                                              15
      {¶42} For the foregoing reasons, the judgment of the Portage County Court of

Common Pleas is affirmed. Costs to be taxed against appellants.



CYNTHIA WESTCOTT RICE, J.,

TIMOTHY P. CANNON, J.,

concur.




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