Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEYS FOR APPELLANT For Cincinnati SMSA Limited
Partnership James F. Lang Matthew J. Kucharson Calfee, Halter
& Griswold, L.L.P. Kerin Lyn Kaminski Karen L. Giffen
Giffen & Kaminski, L.L.C. Hans J. Germann (pro hac vice)
Mayer Brown, L.L.P.
ATTORNEYS FOR APPELLEES For Intermessage Communications Randy
J. Hart Randy J. Hart, L.L.P. Carla M. Tricarichi Tricarichi
& Carnes, L.L.C. Dennis R. Rose Royce R. Remington Hahn
Loeser & Parks, L.L.P. Thomas R. Theado Gary, Naegele
& Theado, L.L.C. Mark D. Griffin Law Offices of Mark
BEFORE: Kilbane, J., Keough, A.J., and Laster Mays, J.
JOURNAL ENTRY AND OPINION
EILEEN KILBANE, JUDGE
Defendant-appellant, Cincinnati SMSA Limited Partnership
(operating under the trade name Ameritech Mobile
("Ameritech")), appeals from the trial court's
order certifying a class action complaint brought by
plaintiffs-appellees, Cindy Satterfield
("Satterfield"), Cindy Satterfield, Inc., n.k.a.
Highland Speech Services, Inc. ("Highland"), and
Intermessage Communications ("Intermessage")
(collectively referred to as "plaintiffs"). For the
reasons set forth below, we affirm.
In December 2003, Satterfield, Highland, and Intermessage
filed a class action complaint against Ameritech, Ameritech
Mobile Communications, Inc., Verizon Wireless a.k.a. New Par,
Verizon Wireless ("VAW"), L.L.C., and Airtouch
Cellular Eastern Region, L.L.C. (the last three of which are
collectively referred to as ("Verizon")). Ameritech
and Verizon are providers of wholesale and retail cellular
telecommunications services and equipment.
Satterfield and Highland purchased cellular service from
Verizon. Intermessage was a retail customer of Ameritech
owned primarily by Kevin Moore ("Moore") and Robert
Schimmelphennig ("Schimmelphennig"). Intermessage
operated a two-way radio business and sold backup panels for
alarm systems. Intermessage purchased cellular service from
Ameritech and placed it into a product that was used to back
up the alarm systems it sold. Intermessage paid Ameritech
directly for the cost of the cellular service and then passed
those costs to its customers. Intermessage dissolved in 2001
and Moore and Schimmelphennig created a new business,
Wireless Associates, Ltd. ("Wireless Associates").
Moore sold his interest in Wireless Associates to
Schimmelphennig in 2005.
The complaint is based upon a prior ruling of the Public
Utilities Commission of Ohio ("PUCO"), finding that
Ameritech and Verizon discriminated against Cellnet, an
independent reseller of cellular services, with respect to
their offering of wholesale services to Cellnet. See In
the Matter of Complaint of Westside Cellular, Inc. d.b.a.
Cellnet v. New Par Cos. d.b.a. AirTouch Cellular &
Cincinnati SMSA Ltd. Partnership, PUCO Case No.
93-1758-RC-CSS, 2001 Ohio PUC LEXIS 18 (Jan. 18, 2001)
("Cellnet Order "). Cellnet
alleged that Ameritech and Verizon had discriminated against
it by unlawfully providing cellular service, equipment, and
features to their own retail operations at rates, terms, and
conditions more favorable than those that they made available
to Cellnet. The PUCO found that Ameritech and Verizon
committed numerous acts prohibited by R.C. Chapter 4905
(titled Public Utilities Commission - General Powers),
commencing October 18, 1993. Specifically, Ameritech and
Verizon provided retail cellular service to end users at
rates and upon terms and conditions more favorable than those
that they made available to Cellnet.
In their complaint, Satterfield, Highland, and Intermessage
defined the members of its class as all subscribers to the
Verizon defendants' service from 1991-1997 and all
subscribers to Ameritech service from 1993-1998. Plaintiffs
asserted the following three causes of action: (1) recovery
for treble damages under R.C. 4905.61; (2) unjust enrichment;
and (3) tortious acquisition of a benefit. They essentially
[Ameritech] cheated Ohio cellular telephone consumers out of
millions of dollars by excluding competitors that charged
lower rates and by locking-in customers before other
competitors could enter the market. By manipulating the
market for cellular telephone service in Ohio - practices for
which the PUCO has already found [Ameritech] liable -
[Ameritech] caused each Class Member, including
[Intermessage], to pay more for cellular telephone service
than the market otherwise would have charged.
In January 2006, the trial court dismissed plaintiffs'
causes of action for unjust enrichment and tortious
acquisition, finding that R.C. 4905.61 is the exclusive
remedy for the plaintiffs. Under R.C. 4905.61, a plaintiff
may recover against a public utility when the PUCO finds that
a public utility engaged in conduct prohibited by statute or
a PUCO order and the plaintiff suffered damages as a result
of that conduct.
In September 2008, the court granted Verizon's motion for
judgment on the pleadings against Satterfield and Highland on
statute of limitations grounds. In October 2008, the parties
agreed to dismiss all claims against Ameritech Mobile
Communications, Inc. Therefore, the remaining cause of action
before the trial court was Intermessage's claim against
Ameritech under R.C. 4905.61, which was limited by the trial
court to the period of October 18, 1993 through September 8,
Also in September 2008, the trial court concluded that
Intermessage's claim for 1995-1998 was barred by the
statute of limitations. The court found that the statute of
limitations for the 1995-1998 claim expired on January 18,
2002, which was one year after the PUCO issued the
Cellnet Order. The court found, however, that
Intermessage could maintain its claim for the 1993-1995
period because such claim is controlled by the Ohio Supreme
Court's decision that reviewed the Cellnet Order
Westside Cellular, Inc. v. Pub. Utils. Comm., 98 Ohio
St.3d 165, 2002-Ohio-7119, 781 N.E.2d 199. In Westside
Cellular, the Ohio Supreme Court reversed that part of
the Cellnet Order, finding that Cellnet could not
have suffered economic injury prior to 1995 because it had
not earlier made a formal request to Ameritech for wholesale
service. Instead, the court held that the applicable time
frame commenced on October 18, 1993, which was the date of
Cellnet's complaint to the PUCO. Id. at ¶
Then in December 2008, Intermessage filed a motion for class
certification. Intermessage sought certification on behalf of
"all retail subscribers of [Ameritech] who purchased
service with an Ohio area code during the period October 18,
1993 through September 8, 1995." In June 2015, the trial
court conducted a pretrial conference to discuss the pending
motion and required the parties to submit proposed orders.
On February 9, 2016, the trial court entered an opinion and
order granting Intermessage's motion for class
certification. In a 19-page order, the trial court certified
a class under Civ.R. 23(A) and (B)(3) consisting of "all
retail subscribers of [Ameritech] who purchased service with
an Ohio area code within geographic areas in which the PUCO
decision found wholesale price discrimination during the
period October 18, 1993 through September 8, 1995." In a
thorough 19-page opinion, the trial court certified this
class "on all the remaining claims, issues, and defenses
presented in this action."
It is from this order that Ameritech appeals, raising the
following assignment of error for review.
Assignment of Error
The trial court erred in granting the motion for class
certification filed by [Intermessage].
In the sole assignment of error, Ameritech claims the court
erred in granting class certification to Intermessage because
it lacks standing to pursue its purported claim against
Ameritech. Ameritech further argues that even if Intermessage
had standing to bring the class action, the class was
erroneously certified because: (1) it necessarily includes
persons who were not injured; (2) individualized issues
predominate over common questions of fact or law; (3) its
claims are not typical of the purported class; and (4) a
class action is not superior to other methods of
Ameritech first argues that the class certification fails
because Intermessage lacks standing as an adequate class
representative for the following three reasons: (1)
Intermessage no longer owns its claim against Ameritech, but
assigned it to others after it dissolved; (2) after
dissolving, Intermessage failed to pursue its claim against
Ameritech as speedily as practicable under R.C. 1701.88(D);
and (3) the violations at issue found by the PUCO concerned
duties Ameritech owed to an independent reseller regarding
the provision of wholesale services, while Intermessage and
the purported class it seeks to represent consist of
indirect, retail purchasers. We disagree.
R.C. 1701.88, which establishes the powers of a corporation
after dissolution, provides that "[a]ny claim existing
or action or proceeding pending by or against the corporation
may be prosecuted to judgment, with right of appeal as in
other cases." Id. at (C). Therefore, "the
dissolution of a corporation does not abate '[a]ny claim
existing or action or proceeding pending by or against the
corporation or which would have accrued against it * *
*.'" State ex rel Falke v. Montgomery Cty.
Residential Dev., 40 Ohio St.3d 71, 74, 531 N.E.2d 688
(1988), quoting R.C. 1701.88(B).
Ameritech argues that Intermessage lacks standing because
Intermessage transferred its claim to either Wireless
Associates, Ltd., or Schimmelphenning and Moore, after
dissolving. In support of its contention, Ameritech relies on
certain deposition testimony of Moore and Schimmelphennig.
However, when asked about Intermessage's assets
Schimmelphennig stated that "I can't tell you
specifically * * * [b]ecause I don't recall."
Additionally, Moore was never asked whether Intermessage had
transferred its claim against Ameritech. In his affidavit
attached to Intermessage's motion for class
certification, he stated that "[t]he claims brought in
this suit on behalf of [Intermessage] existed in favor of
[Intermessage] at the time of its dissolution, and are being
pursued in this litigation pursuant to [R.C. 1701.88.]"
Thus, Intermessage's claim against Ameritech remained an
asset of Intermessage after dissolution.
Ameritech also contends that Intermessage lacks standing to
pursue its claim against it because Intermessage did not
commence this action "as speedily as is
practicable" when winding up its affairs. R.C.
1701.88(D) provides that the directors of a dissolved
corporation "shall proceed as speedily as is practicable
to a complete winding up of the affairs of the
corporation." "A corporation continues to exist
after dissolution, for the purpose of winding up its
affairs[.]" Diversified Prop. Corp. v. Winters Natl.
Bank & Trust Co., 13 Ohio App.2d 190, 193, 234
N.E.2d 608 (2d Dist.1967), paragraph one of syllabus.
Ameritech claims that Intermessage waited 33 months to bring
this suit. Ameritech acknowledges that Intermessage filed
within the statute of limitations, but argues that it was not
"speedily enough." The damages Intermessage seeks
against Ameritech occurred from October 18, 1993, through
September 8, 1995. However, recovery of those damages can be
only be obtained through a lawsuit brought under R.C.
4905.61, which cannot be initiated without a prior finding
that the utility had violated a PUCO statute or order.
Cleveland Mobile Radio Sales, Inc. v. Verizon
Wireless, 113 Ohio St.3d 394, 2007-Ohio-2203, 865 N.E.2d
1275, ¶ 21, citing R.C. 4905.61; Milligan v. Ohio
Bell Tel. Co., 56 Ohio St.2d 191, 383 N.E.2d 575 (1978),
paragraph one of the syllabus. In the instant case, the
liability finding was not made until 2001 by the Cellnet
Order, which was not rendered final until 2002 by
Cincinnati SMSA L.P. v. Pub. Util. Comm. of Ohio, 98
Ohio St.3d 282, 2002-Ohio-7235, 781 N.E.2d 1012. That finding
expressly excluded the period of time now at issue in this
lawsuit - October 18, 1993 through September 8, 1995.
Cellnet Order, 2001 Ohio PUC LEXIS 18 at 269-271.
The first finding of liability involving the relevant
1993-1995 time period was not made until December 26, 2002,
by the Supreme Court in Westside Cellular.
Intermessage's complaint was filed within a year later on
December 16, 2003. R.C. 1701.88(A) provides that a
corporation may do such acts as are required to wind up its
affairs and for this purpose the dissolved corporation
"shall continue as a corporation for period of five
years from the dissolution[.]" Intermessage filed this
lawsuit within three years of its dissolution. Therefore,
Intermessage commenced its complaint as speedily as
practicable in accordance with R.C. 1701.88.
Ameritech further argues that Intermessage lacks standing
because the Cellnet Order did not establish
liability as to Intermessage or any other retail customer. In
the Cellnet Order, the PUCO held that Ameritech had
violated Ohio statutes and PUCO orders, which provided that
cellular telephone companies were required to maintain
separate wholesale and retail operations; and the terms,
conditions, and rates that the Ameritech's wholesale
operations made ...