Ojalvo v. Board of Trustees of Ohio State University

• Decision Date: 01 August 1984
• Docket Number: No. 83-1500,83-1500
• Parties: , 19 Ed. Law Rep. 364, 12 O.B.R. 313 OJALVO et al., Appellants, v. BOARD OF TRUSTEES OF OHIO STATE UNIVERSITY, Appellee.
• Court: Ohio Supreme Court

Page 230

12 Ohio St.3d 230

466 N.E.2d 875, 19 Ed. Law Rep. 364, 12 O.B.R. 313

OJALVO et al., Appellants, v. BOARD OF TRUSTEES OF OHIO STATE UNIVERSITY, Appellee.

No. 83-1500.

Supreme Court of Ohio.

Aug. 1, 1984.

Syllabus by the Court

A court abuses its discretion in denying certification of a class action: when it requires a certainty that a common issue of fact "probably exists" based on the merits of the class claim; when it finds that no other members of the alleged class had filed a comparable suit or had sought to intervene; where no alternative means of redress is readily available for potential class members; and where under the totality of circumstances Civ.R. 23 is narrowly construed to substantially hinder the remedial purpose of the rule.

Morris Ojalvo, plaintiff-appellant herein, seeks to certify a class action in the Court of Claims pursuant to Civ.R. 23(B)(3). The plaintiff avers that the putative class consists of approximately three thousand individuals who worked for the Ohio State University ("the university") during the academic year 1981-1982. These individuals, including the plaintiff, allegedly failed to receive the full amount of salary due them pursuant to written agreements by the university.

On January 26, 1983 plaintiff's attempt at certification was denied by the Court of Claims based upon the court's belief that damages would vary as to each class member and the class as a whole would become unmanageable. Additional concerns raised by the Court of Claims included that no comparable suits had been brought and that administrative redress would be the optimum manner of dealing with the problem articulated by the plaintiff.

The court of appeals affirmed the judgment of the Court of Claims. The cause is now before this court upon the allowance of a motion to certify the record.

Schwartz, Shapiro, Kelm & Warren, Russell A. Kelm and Melodee S. Kornacker, Columbus, for appellants.

Anthony J. Celebrezze, Jr., Atty. Gen., Butler, Cincione, DiCuccio & Dritz and Alphonse P. Cincione, Columbus, for appellee.

David L. Cleveland, Cleveland urging reversal for amicus curiae, Consumers League of Ohio.

LOCHER, Justice.

The question before us is whether the Court of Claims abused its discretion in denying certification of a class action pursuant to Civ.R. 23(B)(3). For the reasons set forth below we hold that an abuse of discretion has occurred. Accordingly, we reverse the judgment of the court of appeals and remand for class certification.

I

The question of what constitutes an abuse of discretion has been examined by this court in numerous contexts. See, e.g., Rohde v. Farmer (1970), 23 Ohio St.2d 82, 262 N.E.2d 685 (with respect to granting of a new trial); Consumers' Counsel v. Pub. Util. Comm. (1984), 10 Ohio St.3d 49, 461 N.E.2d 303 (with respect to Public Utilities Commission of Ohio's orders). Recently in Vinci v. American Can Co. (1984), 9 Ohio St.3d 98, 459 N.E.2d 507, we examined, in some detail, the question of what impact, if any, potential dissimilarity in remedies would have on class action certifications. We held as a general rule in class certification: "A trial court's determination that a cause proceed as a class action under Civ.R. 23 will not be disturbed absent an abuse of discretion." Id. at paragraph one of the syllabus. We also held that "[w]hile potential dissimilarity in remedies is a factor to be considered in determining whether individual questions predominate over common questions pursuant to Civ.R. 23(B)(3), that alone does not prevent a trial court from certifying the cause as a class action." (Emphasis added.) Id. at paragraph three of the syllabus.

It is implicit from the above language that a trial court determination which seeks to deny class action certification should not predicate such denial solely on the basis of dissimilarity in remedies. Although the Court of Claims was not afforded the guidance of our Vinci decision at the time of its judgment, the outcome in Vinci was presaged by two appellate court decisions, Portman v. Akron Savings & Loan Co. (1975), 47 Ohio App.2d 216, 353 N.E.2d 634 , and Miles v. N.J. Motors (1972), 32 Ohio App.2d 350, 291 N.E.2d 758 . Neither of these opinions was discussed by the Court of Claims in its opinion. This omission, in itself, is not determinative of an abuse of discretion. The concern remains, however, that a trial court should not dispose of a class certification solely on the basis of disparate damages. ¹ Such a decision, being contrary to the weight of the authority and without an articulated rationale, is difficult to justify on appellate review although such a decision may not necessarily rise to the level of an abuse of discretion.

II

The standard for "abuse of discretion" is readily defined, albeit broadly, as more than an error of law or judgment, but implies an attitude on the part of the trial court that is unreasonable, arbitrary, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144 ; Lee v. Jennings Transfer Co. (1967), 14 Ohio App.2d 221, 223, 237 N.E.2d 918 ; Granneman v. Cincinnati Street Ry. Co. (1941), 67 Ohio App. 536, 537, 37 N.E.2d 971 . A single analytical error by the trial court, in an otherwise correct analysis, might not necessarily constitute a sufficient basis to overturn the decision of the court under established tests for abuse of discretion. The trial court, however, went too far in requiring a "certainty that a common issue of breach of three to six thousand contracts probably exists." Such a criterion is not a part of any law of this state and, in the absence of authority or support, is impermissible. The first justification for denial of class certification by the Court of Claims was therefore incorrect as a matter of law and was a prima facie unreasonable burden to impose on the appellant herein. In addition, it appears that the Court of Claims was not reviewing the propriety of class certification but was attempting, contrary to the applicable law, to reach the merits of the claim. Class action certification does not go to the merits of the action. See Eisen v. Carlisle & Jacquelin (1974), 417 U.S. 156, 177, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732; Portman v. Akron Savings & Loan Co., supra, 47 Ohio App.2d at 220, 353 N.E.2d 634.

Ojalvo argued that the university had failed to give university employees, during a finite period of time, a specific percentage increase in pay. A careful review of the findings of fact and conclusions of law does not provide a basis to indicate why the single legal question of liability presented by appellant, whether the university unlawfully failed to pay a salary increase to its employees, should be resolved under an entirely unsubstantiated "certainty" test prior to trial on the merits. The trial court's statement that it "finds that there is no certainty that a common issue of breach of three to six thousand contracts probably exists" thus not only is unreasonable in its test of "certainty," but also is an attempt to merge an improper analysis of the merits of the claim with the proper test of commonality under Civ.R. 23(A)(2). The court's resolution of the narrow issue of commonality by the conclusion that the breach probably does not exist is unreasonable since no arguments were made, nor need have been made, with respect to the actual merits of the case beyond the necessity of establishing the validity of certification under Civ.R. 23. See Eisen v. Carlisle & Jacquelin, supra; Portman v. Akron Savings & Loan Co., supra.

Since the Court of Claims' first reason for denial of class certification is incorrect, it is necessary to closely examine the remaining reasons adopted by the court for denying the class certification to determine if any of these reasons are valid. If such validity exists, then notwithstanding the error with respect to the first reason, we would still be compelled to affirm the trial court's decision.

III

The second reason offered by the Court of Claims for rejection of class certification is that no other members of the alleged putative class had filed a comparable suit or had sought to intervene. Becker v. Schenley Industries, Inc. (C.A.2, 1977), 557 F.2d 346, is cited to support this reason. In Becker the Second Circuit Court of Appeals affirmed the United States District Court for the Southern District of New York in denying a class action certification. The basis for the denial was that the plaintiffs who brought the suit failed to intervene in an earlier case which had raised the same issue that plaintiffs subsequently attempted to relitigate. The Court of Claims' belief that other alleged class members must have filed a comparable suit prior to class certification thus not only is a misstatement of applicable law, ² but also misconstrues the holding of the cited case.

IV

The final reason given by the Court of Claims is that the claims of the alleged class members "may fall within and be subject to administrative and not Court determination." To buttress what might otherwise be an adequate reason, appellee offers the further refinement that each of the three thousand to six thousand potential claims should be handled on an individualized basis, administratively, pursuant to R.C. 2743.10. Appellee hypothesizes "the administrative procedure provides a speedy, judicially economic and efficient remedy." Appellee, however, fails to consider its own previous argument raised with respect to class notification requirements that "[f]aculty and administrators and professional staff members come and go frequently. Visiting professors and scholars are present on campus for short periods of time. Many of the faculty and staff who were at OSU during 1981-1982 may now be in diverse corners of the world, a fact making the notice requirement of Civ.R. 23(C)(2) an extremely time consuming and expensive chore." This prior argument, in conjunction with the supposition that many members of...