Marks v. C.P. Chemical Co., Inc.

Decision Date08 July 1987
Docket NumberNo. 86-946,86-946
Citation509 N.E.2d 1249,31 Ohio St.3d 200,31 OBR 398
Parties, 31 O.B.R. 398 MARKS et al., Appellees, v. C.P. CHEMICAL COMPANY, INC. et al., Appellants.
CourtOhio Supreme Court

Syllabus by the Court

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.

On September 10, 1984, plaintiffs-appellees, Robert Marks, his wife, Lenore, and their son, Raymond, filed an amended complaint against defendants-appellants, C.P. Chemical Company, Inc., Blow-Rite Corporation, and U.S.A. Insulation & Weatherproofing, Inc. The Markses alleged that the foamed-in-place insulation in their home, which was manufactured, distributed and installed by defendants, respectively, emitted dangerous and toxic levels of formaldehyde, resulting in present and future personal injury and property damage to them. The suit was based on theories of misrepresentation, breach of express warranty, strict liability in tort, failure to warn, negligence, ultra-hazardous substance and violation of the state Consumer Sales Practices Act (R.C. 1345.01 et seq.). The Markses sought class certification of all liability issues and of all property damage claims pursuant to Civ.R. 23. The proposed class included all persons or firms in Ohio who purchased the foam insulation known as Tripolymer.

The trial court denied the class certification. The court of appeals, finding the trial court had abused its discretion in denying the certification, reversed and remanded.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Steven M. Weiss, Cleveland, for appellees.

Jackson & Campbell, P.C., Michael J. McManus, Washington, D.C. Warren Lutz, McNeal, Schick, Archibald & Biro Co., L.P.A., and Robert D. Archibald, Cleveland, for appellant C.P. Chemical Co., Inc.

Hesser, Armstrong & Disantis, William E. Armstrong and Jeffrey S. Gray, Cleveland, for appellant Blow-Rite Corp.

Cronquist, Smith, Marshall & Weaver, John M. Cronquist and John A. Valenti, Cleveland, for appellant U.S.A. Insulation & Weatherproofing, Inc.

GEORGE, Justice.

The sole question is whether the common pleas court abused its discretion in denying certification of a class action pursuant to Civ.R. 23. Since the Ohio rule is identical to Fed.R.Civ.P. 23, with the exception of Civ.R. 23(F) which is not involved in the discussion here, federal authority is an appropriate aid to interpretation of the Ohio rule. For the reasons set forth below this court holds the trial court did not abuse its discretion.

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. (Disallowance upheld, Schmidt v. Avco Corp. [1984], 15 Ohio St.3d 310, 312-313, 15 OBR 439, 441, 473 N.E.2d 822, 824, and allowance upheld, Vinci v. American Can Co. [1984], 9 Ohio St.3d 98, 99, 9 OBR 326, 327, 459 N.E.2d 507, 509.) Abuse of discretion has been defined as more than an error of law or judgment; it implies an attitude on the part of the trial court that is unreasonable, arbitrary, or unconscionable. Ojalvo v. Bd. of Trustees of Ohio State Univ. (1984), 12 Ohio St.3d 230, 232, 12 OBR 313, 315, 466 N.E.2d 875, 877; State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 173, 404 N.E.2d 144, 149.

Furthermore, while a trial court's determination concerning class certification is subject to appellate review on an abuse-of-discretion standard, due deference must be given to the trial court's decision. A trial court which routinely handles case-management problems is in the best position to analyze the difficulties which can be anticipated in litigation of class actions. It is at the trial level that decisions as to class definition and the scope of questions to be treated as class issues should be made. A finding of abuse of discretion, particularly if the trial court has refused to certify, should be made cautiously. Even if the appellate court does find an abuse of discretion, it should not proceed to formulate the class or issue itself. The case should be remanded so that the trial court, which will have responsibility for conducting the trial on a class basis, can provide guidance in the formation of the class and of the issues to be addressed on a class basis. Ojalvo, supra. The trial court, with the aid of counsel within the adversarial process, is best equipped to do this.

In denying the Markses' request for class certification, the trial judge found that:

" * * * [C]lass certification is inappropriate as there are differing factual and legal issues as to prospective class members. Also, there is no commonality toward the personal injuries and property damages involved."

"In order to maintain a class action, the requirements of Civ.R. 23(A) and 23(B) must be met." Schmidt, supra, 15 Ohio St.3d at 313, 15 OBR at 441, 473 N.E.2d at 824. Civ.R. 23(A) sets forth four prerequisites which must be satisfied before a class action can be maintained and failure to satisfy any one of the four will result in denial of certification. Id. "In addition, it must also be shown [that] the action comes within the purview of at least one of three types of class actions described in Civ.R. 23(B)." Id.

The threshold requirements of Civ.R. 23(A) have been met.

Numerosity Civ.R. 23(A)(1) requires plaintiffs to demonstrate that "the class is so numerous that joinder of all members is impracticable." In construing this requirement, courts have not specified numerical limits, but subclasses have been certified with as few as twenty-three members. Basile v. Merrill, Lynch, Pierce, Fenner & Smith, Inc. (S.D.Ohio 1985), 105 F.R.D. 506. It is estimated here that the class of purchasers of Tripolymer foam insulation in Ohio numbers at least six thousand. This number is sufficient so as to render joinder infeasible and meets the subdivision (A)(1) requirement.

Commonality

Civ.R. 23(A)(2) requires the presence of "questions of law or fact common to the class." Courts generally have given this requirement a permissive application. 7A Wright, Miller & Kane, Federal Practice & Procedure (2 Ed.1986) 169-228, Section 1763. Furthermore, courts are accorded broad discretion in making this determination. See Vinci, supra. It is important to note that this provision does not demand that all the questions of law or fact raised in the dispute be common to all the parties. 3B Moore's Federal Practice (1987) 23-159, Paragraph 23.06-1; see, e.g., Like v. Carter (C.A.8, 1971), 448 F.2d 798, certiorari denied (1972), 405 U.S. 1045, 92 S.Ct. 1309, 31 L.Ed.2d 588. Although there may be differing factual and legal issues, such differences do not enter into the analysis until the court begins to consider the Civ.R. 23(B)(3) requirement of predominance and superiority.

In Miles v. N.J. Motors (1972), 32 Ohio App.2d 350, 61 O.O.2d 518, 291 N.E.2d 758, syllabus, the commonality requirement of subdivision (A)(2) was satisfied with a finding of a "common nucleus of operative facts." Similarly, the federal courts have found commonality at this level in a common fact situation or in generally common legal and factual questions. Resnick v. American Dental Assn. (N.D.Ill.1981), 90 F.R.D. 530; Sweet v. General Tire & Rubber Co. (N.D.Ohio 1976), 74 F.R.D. 333. Here, all the claims stem from installation of a foamed-in-place insulation called Tripolymer in structures owned by putative class members. The complaint also raises legal issues common to the class, such as misrepresentation, breach of warranty, and violation of the state Consumer Sales Practices Act. The threshold requirement of commonality has been met.

Typicality

Under Civ.R. 23(A)(3) the claims or defenses of the representative parties must be typical of the claims or defenses of the class. The purpose of this provision is to protect absent class members. 3B Moore's Federal Practice, supra, at 23-178, Paragraph 23.06-2. The requirement is met where there is no express conflict between the representative party and the class. Caruso v. Celsius Insulation Resources, Inc. (M.D.Pa.1984), 101 F.R.D. 530, 534. Since plaintiffs' situation here is identical to that of putative class members, there is no conflict. The typicality requirement is satisfied.

Adequacy of Representation

Finally, Civ.R. 23(A)(4) requires that the representative parties must "fairly and adequately protect the interests of the class." Federal courts have referred to this requirement as being of crucial importance in terms of ensuring due process to members of the proposed class who will not have their individual day in court. Augusta v. Marshall Motor Co. (N.D.Ohio 1977), 453 F.Supp. 912, 917-919. The requirement is generally divided into a consideration of the adequacy of the representative and the adequacy of counsel. Caruso, supra, at 534. A representative is deemed adequate so long as his interest is not antagonistic to that of other class members. 3B Moore's Federal Practice, supra, at 23-188, Paragraph 23.07; Vinci, supra. As owners and residents of homes with Tripolymer insulation, the Markses' interest is compatible with that of other class members who have purchased the insulation for their homes or buildings. The competence and experience of plaintiffs' counsel in class action litigation is undisputed. Accordingly, the requirements of Civ.R. 23(A)(4) have been satisfied.

Once it has been ascertained that the threshold requirements have been met, it is necessary to review the three types of class actions described in Civ.R. 23(B) to determine if this action can be maintained under one of those provisions. Plaintiffs here sought to have the class certified under Civ.R. 23(B)(1), (B)(2), and (B)(3).

Civ.R. 23(B)(1)(b) permits class certification if prosecution of individual actions would create a risk of adjudication which would either be...

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