Burrell v. Sol Bergman Estate Jewelers, Inc.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Plaintiff-appellant, Carmalita Burrell, timely appeals from the judgment of the Cuyahoga County Court of Common Pleas, which issued an order denying class certification as to Count III of appellant's complaint (thereby dismissing Count III) and granting appellee's motion for a protective order limiting all discovery in the action to discovery directly relating to the issue of certification of the proposed class and staying all other discovery pending a final order of the court of common pleas as to whether the action should be maintained as a class action.

Appellant filed a three-count complaint against appellee, the first two of which assert a cause of action under the Ohio Consumer Sales Practices Act, R.C. Chapter 1345, and common-law fraud. Appellant's third count alleges, in pertinent part, that "in excess of 500 persons have purchased diamond solitaire rings from defendant since April 1, 1988, in response to defendant's representations (through advertisements, promotional materials, and other methods of communication) that defendant was selling diamond solitaire rings at one-half their retail price. These representations were false and misleading." Appellant further alleged these misrepresentations constitute "an unfair and deceptive act and practice in violation of Section 1345.02, Ohio Revised Code." Finally, appellant requested the court to certify this case as a proper class action and determine that the plaintiff is a proper class representative "of a class defined as all purchasers of diamond solitaire rings from the defendant during the period between April 1, 1988 and the date of filing this action."

Contemporaneously with the complaint, appellant filed a request for production of documents relating to appellee's advertisements and promotional materials, customers, purchases and sales of diamond rings, sales manuals or sale policies and procedures, claims made against appellee under the Ohio Consumer Sales Practices Act, and others, and a set of interrogatories relating to the above topics. Subsequently, appellee filed its motion for a protective order.

The trial court conducted an evidentiary hearing on the issue of class certification and orally granted appellee's motion for a protective order. At the hearing, appellant testified she purchased a diamond solitaire ring from appellee. By way of background, appellant's complaint alleges appellee's salesperson showed her the ring and represented that the regular retail price of the ring was $7,379 and that the ring was graded SI for clarity and FG for color. The complaint further alleges appellant received a "certificate of appraisal" stating the replacement value of the ring was $7,379. The complaint also alleges the purchase price was $3,468.13, plus $242.77 tax, for a total of $3,710.90. Finally, appellant's complaint alleges reliance on appellee's advertisements and promotional materials and upon the representations made by appellee's salesperson. However, at the evidentiary hearing, this aspect of appellant's case was not elaborated on. Rather, appellant stated she later had the ring appraised by three other jewelers, who appraised the ring at $5,000, $4,000 and $3,700. Additionally, appellant stated she would have paid $3,400 or even $3,700 had appellee appraised the ring for $5,000. Appellant further alleges she believed the quality of the stone was higher than it actually is. Appellant admits she does not know anyone else who bought diamond rings at Sol Bergman's. Finally, appellant admitted she has read about class action lawsuits.

Based upon the above testimony, the trial court denied class certification and granted appellee's motion for a protective order. Appellant raises two assignments of error for our review. Assignment of Error I is as follows:

"The trial court abused its discretion in denying class certification without affording the plaintiff any opportunity to obtain discovery on class certification issues."

Appellant contends the trial court abused its discretion in denying appellant an opportunity to conduct discovery on class certification issues prior to ruling on appellant's request for class certification. Appellant argues the trial court abused its discretion in granting appellee's motion for a protective order limiting all discovery to that directly relating to the issue of certification of the proposed class and, then, adopting appellee's position that appellant's discovery is not related to class certification. This argument lacks merit.

Initially, appellee challenges this aspect of appellant's appeal, arguing that orders relating to discovery of class certification issues are not final, appealable orders. However, it is well established that an order of a trial court, pursuant to Civ.R. 23(C)(1), determining whether an action can be maintained as a class action is a final, appealable order pursuant to R.C. 2505.02. Amato v. Gen. Motors Corp. (1981),67 Ohio St.2d 253, 21 O.O.3d 158, 423 N.E.2d 452, syllabus; andRoemisch v. Mut. of Omaha Ins. Co. (1974), 39 Ohio St.2d 119, 68 O.O.2d 80, 314 N.E.2d 386, syllabus. Pursuant to R.C. 2505.02, a final, appealable order is an order affecting a substantial right made in a special proceeding and is resolved through a balancing test which "weighs the harm to the ``prompt and orderly disposition of litigation' and the consequent waste of judicial resources, resulting from the allowance of the appeal, with the need for immediate review because appeal after final judgment is not practicable." Amato, 67 Ohio St.2d at 258, 21 O.O.3d at 161,423 N.E.2d at 456.

In the present case, the harm to the "prompt and orderly disposition of litigation" and consequent waste of judicial resources resulting from the allowance of the appeal is nil, when compared to the need for immediate review, because appeal after final judgment is not practicable. The issue concerning whether the trial court properly denied appellant's request for class certification is already properly before this court.Amato, supra; Roemisch, supra. Further, the issue concerning the trial court's protective order is directly related to the trial court's order concerning class certification. Thus, since the issue of class certification is properly before this court, it is not any greater of a waste of judicial resources for this court to decide the related issue of the trial court's protective order. Finally, although issues related to discovery are generally interlocutory, non-final appealable orders, seeState ex rel. Daggett v. Gessaman (1973), 34 Ohio St.2d 55, 57, 63 O.O.2d 88, 90, 295 N.E.2d 659, 660; and United MethodistChurch of Berea v. Dunlop Constr. Prod., Inc. (July 20, 1989), Cuyahoga App. Nos. 55590 and 56202, unreported, 1989 WL 80979, in the present case, an appeal after final judgment of such order will not be practicable since the issue of class certification will have already been decided by this court. Therefore, any orders relating to discovery of class certification issues will be rendered moot.

Consistent with the general principle that discovery operates under the broad discretion of the trial court, questions concerning matters of discovery relating to the presence or absence of class action requirements of Civ.R. 23(A) and (B) rest in the sound discretion of the trial court. See GreaterCleveland Regional Transit Auth. v. Guzzo (1983), 6 Ohio St.3d 270, 6 OBR 335, 452 N.E.2d 1314. A trial court's order relating to discovery matters concerning class certification will not be disturbed absent an abuse of discretion. See, generally, Ojalvo v. Bd. ofTrustees of Ohio State Univ. (1984), 12 Ohio St.3d 230, 231, 12 OBR 313, 314, 466 N.E.2d 875, 876. "The standard for ``abuse of discretion' is readily defined, albeit broadly, as more than an error law or judgment, but implies an attitude on the part of the trial court that is unreasonable, arbitrary, or unconscionable." Id. at 232, 12 OBR at 315, 466 N.E.2d at 877.

In the present case, the trial court wrote, "[t]he discovery sought by plaintiff * * * is a fishing expedition by plaintiff to see if enough purchasers can be found to constitute a class who will claim fraud and unfair treatment. Plaintiff is unable to say positively that at least some purchasers other than plaintiff claimed fraud here." We agree. The record is devoid of other purchasers who could constitute a class claiming fraud and unfair treatment. Indeed, appellant herself is not aware of anyone else who bought a diamond ring at Sol Bergman's. Thus, it cannot be said that the trial court abused its discretion in granting appellee's motion for a protective order.

Therefore, appellant's first assignment of error is overruled.

Appellant's Assignment of Error II is as follows:

"The trial court abused its discretion in denying class certification on the basis of record. [Sic.]"

Appellant contends the trial court abused its discretion in denying class certification. This argument lacks merit.

A trial court 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. (1987), 31 Ohio St.3d 200, 31 OBR 398,509 N.E.2d 1249, syllabus. The burden of establishing that a case may appropriately be treated as a class action rests on the party bringing suit. Hanson v. Titan Tiger, Inc. (Jan. 14, 1988), Cuyahoga App. No. 53250, unreported, at 5, 1988 WL 3752;State ex rel. Ogan v. Teater (1978), 54 Ohio St.2d 235, 8 O.O.3d 217, 375 N.E.2d 1233.

"A trial judge must make seven affirmative findings before a case may be certified as a class action. Two prerequisites are implicitly required by Civ.R. 23, while five others are specifically set forth therein." Warner v. Waste Mgt., Inc. (1988), 36 Ohio St.3d 91, 521 N.E.2d 1091, paragraph one of the syllabus.

Civ.R. 23 implicitly requires that an identifiable class must exist before certification is permissible and that the class representative must be a member of the class. Id. at 96,521 N.E.2d at 1096. Further, Civ.R. 23(A) sets forth four express prerequisites as follows:

"One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there were 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."

Finally, a trial court must find that one of the three Civ.R. 23(B) requirements is met before a class may be certified.Warner, supra, 36 Ohio St.3d at 94, 521 N.E.2d at 1094. Appellant's theory in the present case proceeds under Civ.R. 23(B)(3), which provides:

"Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (A) are satisfied, and in addition:

"* * *

"(3) 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 fair and efficient adjudication of the controversy * * *."

Civ.R. 23(B)(3) requires two findings by the trial court: "that the common questions predominate over questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Professor Miller states, "``[t]he key should be whether the efficiency and economy of common adjudication outweigh the difficulties and complexities of individual treatment of class members claims.'" Warner, supra,36 Ohio St.3d at 96, 521 N.E.2d at 1096.

In the present case, the trial court noted, in its order denying appellant's request that this action be maintained as a class action and dismissing Count III of the complaint, that the plaintiff failed to meet her burden of satisfying all the requirements of Civ.R. 23. However, we find it unnecessary to discuss every requisite of Civ.R. 23 since it is clear that appellant has failed to meet the "numerosity" requirement.

With respect to the "numerosity" requirement, the Ohio Supreme Court has noted:

"In construing Civ.R. 23(A)(1), known as the numerosity requirement, courts have not specified numerical limits for the size of a class action. This determination must be made on a case-by-case basis. Professor Miller, however, has indicated: ``[i]f the class has more than forty people in it, numerosity is satisfied; if the class has less than twenty-five people in it, numerosity probably is lacking; if the class has between twenty-five and forty, there is no automatic rule * * *.'" Warner, supra,36 Ohio St.3d at 97, 521 N.E.2d at 1097.

We agree with the trial court's assessment that "it is clear from the statements of counsel and plaintiff herself that they are engaging in speculation, that they are not aware of any other ``purchasers' who claim to have been defrauded or treated unfairly by the defendant." Indeed, the record does not disclose any other purchasers making such claims, and appellant is not aware of anyone else who has ever purchased a diamond solitaire ring from Sol Bergman's.

Having determined that appellant failed to meet her burden concerning the "numerosity" requirement of Civ.R. 23, we need not go any further in overruling appellant's second assignment of error since appellant must demonstrate all seven prerequisites exist before the trial court could have properly certified a class action suit.

Accordingly, the order of the trial court is affirmed.

Judgment affirmed.

KRUPANSKY, C.J., concurs.

ANN McMANAMON, J., dissents.