Sliwinski v. Capital Properties Mgt. Ltd.

[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
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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.
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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
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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
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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.