Shaver v. Standard Oil Co.

• Decision Date: 19 October 1990
• Docket Number: No. H-89-58,H-89-58
• Parties: SHAVER, Appellant, v. STANDARD OIL COMPANY, Appellee.
• Court: Ohio Court of Appeals

Page 783

68 Ohio App.3d 783

589 N.E.2d 1348

SHAVER, Appellant, v. STANDARD OIL COMPANY, Appellee.

No. H-89-58.

Court of Appeals of Ohio, Sixth District, Huron County.

Decided Oct. 19, 1990.

Dennis E. Murray, Sandusky, for appellant.

Walter J. Rekstis III, Frank A. Di Piero, Cleveland, William W. Owens, Norwalk and Richard J. Goetsch, Cleveland, for appellee.

PER CURIAM.

This is an appeal of a judgment of the Huron County Court of Common Pleas which overruled plaintiff-appellant Kenneth B. Shaver's request for certification of his cause as a class action pursuant to Civ.R. 23. From that judgment, appellant filed a timely notice of appeal. He asserts one assignment of error consisting of several subparts:

"A trial court abuses its discretion by 'dismissing' class action allegations in a complaint where the record establishes that: (1) the ruling was made by a judge not assigned to the case; (2) the judge ruled sua sponte, without notice to the parties that he was in the case and that he would rule on the class certification issue; (3) the judge never met with the attorneys to discuss the case or the certification issue; (4) the judge stated he reviewed the 'memorandums' opposing class certification when only one was filed; (5) the judge stated he reviewed the 'depositions' when only one was filed; (6) the judge did not indicate that he reviewed the complaint or plaintiff's memorandum supporting certification or the case law authorities cited therein; (7) the judge ruled without a hearing, which had previously been scheduled, on class certification; (8) the judge ignored a pending motion to compel the discovery of evidence relevant to the certification issue and for additional time within which to file such evidence and a supplemental memorandum supporting certification; (9) the judge dismissed 'the cause of action with respect to class certification' when four causes of action, each containing class claims, were plainly asserted; and (10) the judge failed to make a single finding of fact or conclusion of law or to articulate a single ground supporting his decision."

The procedural aspects of this case relevant to our disposition of appellant's assignment of error are as follows.

On October 13, 1981, appellant filed a complaint alleging that defendant-appellee, the Standard Oil Company ("Standard"), a corporation duly organized and operating under Ohio law, had engaged in conduct which violated Ohio's Valentine Act, R.C. Chapter 1331, and the Ohio Consumer Sales Practices Act, R.C. Chapter 1345. The complaint further asserted that Standard had breached its fiduciary duty and interfered with the business relationship between appellant and his retail customers. In short, appellant alleged that Standard had engaged in the restraint of trade and sought to force independent lessee gasoline dealers out of the market in order to obtain their business for itself. Appellant brought the action on behalf of himself and of a class consisting of "all present and former Ohio independent lessee gasoline dealers of Sohio."

The sole judge in the Huron County Court of Common Pleas, General Division, was, at that time, the Honorable Robert B. Smith.

On December 11, 1981, Standard filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted. Appellant filed a memorandum in opposition and Standard, a reply memorandum. On March 31, 1982, appellant filed his first amended complaint which rectified certain omissions or errors in the original complaint but which contained the same four causes of action and reasserted that the suit was being brought on behalf of a class consisting of "all present and former Sohio independent lessee-dealers located in the state of Ohio."

On May 13, 1982, Standard filed a motion to dismiss the first amended complaint on the same ground as raised in its prior motion to dismiss. On June 19, 1986, Judge Smith, by journal entry, assigned this case to the Honorable Thomas E. Heydinger, the judge of the Huron County Court of Common Pleas, Probate/Juvenile Division. On September 23, 1986, after a pretrial conference, Judge Heydinger ordered that the parties submit written arguments on the motion to dismiss and the issue of class certification by October 1, 1986. The trial court scheduled a hearing on the motion to dismiss for October 20, 1986 and a hearing on the question of class certification for November 5, 1986. On October 1, 1986, Standard filed a supplemental memorandum in support of its motion to dismiss and appellant filed a memorandum in opposition. On October 6, 1986, the trial court denied the motion to dismiss.

On October 29, 1986, Standard filed a motion for reconsideration of the denial of the motion to dismiss and a motion for a continuance of the November 5 hearing on certification. Appellant filed a memorandum in opposition.

On October 3, 1986, Standard's motion for a continuance of the hearing on class action certification was granted and hearing set for January 12, 1987; the motion for reconsideration was granted, in part, and a hearing on said motion scheduled for December 15, 1986. Standard filed its answer to the first amended complaint and a counterclaim on November 4, 1986. The counterclaim alleged that appellant had failed to timely pay certain fees and charges as required by the licensing agreement and requested $768.70 in compensatory damages for breach of contract. Appellant filed his answer to the counterclaim on November 13, 1986.

On November 3, 1986, appellant filed his memorandum in support of class certification. Standard filed its memorandum in opposition to class certification on January 6, 1987.

On January 7, 1987, Judge Heydinger vacated the judgment of October 6, 1986, i.e., the denial of the motion to dismiss, and recused himself from the case. The record discloses no journal entry assigning any specific judge to this case after the recusal. On November 15, 1988, the Honorable Bruce C. Huffman filed a "decision" denying the motion to dismiss and ordering the parties to file supplemental briefs on the question of class certification by October 15, 1988. The "decision" further ordered the parties to prepare a judgment entry of the foregoing orders and submit it for the court's approval. The record does not contain such a judgment entry. Appellant's subsequent motion for an extension of time in which to file a supplemental memorandum and/or evidence in support of class certification was granted.

On November 10, 1988, appellant served Standard with interrogatories. By stipulation filed on December 19, 1988, the parties agreed to allow appellee until February 1, 1989, to respond to the interrogatories and to produce requested documents. The stipulation also provided that the parties could file supplemental materials relative to the certification issue until March 1, 1989. Nonetheless, no supplementary materials were ever filed.

On February 15, 1989, appellant filed a motion to compel discovery, arguing that Standard had failed to provide complete responses to Interrogatories Nos. 1 through 5 and 7. Appellant also moved the court for an extension of time in which to file a supplemental memorandum on class certification, that is, until thirty days after Standard's "complete" discovery response. Standard filed a memorandum in response contending that appellant had failed to examine business records made available to him by Standard and that some of the information sought by appellant was, at this point in time, irrelevant. Judge Huffman never ruled on the motion to compel.

The next judgment entry, dated November 21, 1989, signed by the Honorable Phillip M. White, denied appellant's request for class certification. Notice of appeal of this denial was filed on December 18, 1989.

Although appellant sets forth several subparts in his single assignment of error, these alleged procedural errors can be grouped into three categories.

First, appellant asserts that Judge White did not have the authority to rule on the issue of class certification. Appellant claims that Judge Huffman was assigned to this case and absent a journal entry or other order transferring the case to Judge White, the latter did not have the authority to make any rulings.

Appellant argues that Brown v. Brown (1984), 15 Ohio App.3d 45, 15 OBR 73, 472 N.E.2d 361, and Berger v. Berger (1981), 3 Ohio App.3d 125, 3 OBR 141, 443 N.E.2d 1375, are controlling in this case. The Berger court, relying on C.P.Sup.R. 4, held that in a multi-judge general division of each court of common pleas, a transfer of a case between judges must be journalized or the judge assuming the case has no authority and his rulings are voidable on timely objection by any party. Berger, supra, at 130, 3 OBR at 146, 443 N.E.2d at 1381. Both the Brown court and the Berger court held that the right to challenge the authority of the substituted judge could be waived upon failure to raise a timely objection. Brown, supra; Berger, supra, at 131, 3 OBR at 147, 443 N.E.2d at 1382.

In this case, the Huron County Court of Common Pleas, General Division, has one duly elected judge. R.C. 2301.02. Prior to his retirement, the Honorable Robert B. Smith was that judge. He, by journal entry, assigned Judge Heydinger to this case. After Judge Heydinger recused himself from the case, no specific judge was assigned to the case by journal entry, but Judge Huffman, a retired judge who we note is frequently temporarily assigned to sit in various common pleas courts, presided over the proceedings in this cause. In January 1989, Judge White took office as the only resident judge in the Huron County Court of Common Pleas, General Division. These facts distinguish this case from Brown and Berger, supra, and place it on all fours with State, ex rel. Bd. of Edn., v. Coffman (1965), 2 Ohio App.2d 41, 31 O.O.2d 78, 206 N.E.2d 231. In Coffman, supra, at 44, 31 O.O.2d at 79, 206 N.E.2d at 233, the Fayette...