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Vuyancih v. Jones & Associates Law Group, L.L.C.

Court of Appeals of Ohio, Eighth District, Cuyahoga

February 22, 2018

JOHN VUYANCIH, ET AL. PLAINTIFFS-APPELLANTS
v.
JONES & ASSOCIATES LAW GROUP, L.L.C., ET AL. DEFENDANTS-APPELLEES

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-862262

          Marc E. Dann, William C. Behrens, Brian D. Flick, Emily White ATTORNEYS FOR APPELLANTS

          David H. Boehm, Sean T. Lavin ATTORNEYS FOR APPELLEES

          BEFORE: Jones, J., Boyle, P.J., and S. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          LARRY A. JONES, SR, J.

         {¶1} Plaintiffs-appellants, John Vuyancih, Rachel Vuyancih, Jacklyn Pavlinic, Charles Finley, and Catherine Finley (collectively "the proposed class"), appeal the trial court's decision denying their amended motion to certify a class action. For the reasons that follow, we affirm.

         {¶2} In 2016, the proposed class filed suit against defendants-appellees Jones and Associates Law Group and Ken Jones (collectively "Jones Group") alleging violations of the Ohio Consumer Sales Practices Act ("CSPA"). The proposed class alleged that the Jones Group sent solicitation letters to homeowners who were named defendants in foreclosure actions in Ohio courts and made false and deceptive statements related to their foreclosures.

         {¶3} The proposed class subsequently filed a motion for default judgment, a motion to certify a class action, and then an amended motion to certify a class action. The Jones Group answered the complaint and filed an initial brief in opposition to the amended motion. In April 2017, the trial court denied the amended motion to certify a class action, finding that the proposed class failed to certify the prior notice requirement necessary to maintain a class action under R.C. 1345.09(B).

         {¶4} The proposed class filed a timely notice of appeal and has raised one assignment for our review: "The trial court erred by denying the appellants' amended motion to certify class action."

         {¶5} Class actions are authorized for violations of the CSPA under R.C. 1345.09(B). Martin v. Lamrite W., Inc., 8th Dist. Cuyahoga No. 105395, 2017-Ohio-8170, ¶ 8. R.C. 1345.09(B) provides that a consumer may qualify for class-action status only when a supplier acted in the face of prior notice that its conduct was deceptive or unconscionable. Marrone v. Philip Morris USA, Inc., 110 Ohio St.3d 5, 2006-Ohio-2869, 850 N.E.2d 31, ¶ 9. The prior notice may be in the form of (1) a rule adopted by the Attorney General under R.C. 1345.05(B)(2) or (2) a court decision made available for public inspection by the Attorney General under R.C. 1345.05(A)(3). Id. A consumer intending to rely upon R.C. 1345.09(B) must specifically inform the trial court of the decision or rule relied upon. Burdge v. Subvest 4, LLC, 1st Dist. Hamilton No. C-060354, 2007-Ohio-1488, ¶ 5.

         {¶6} The trial court in this case found that the proposed class did not give the Jones Group sufficient notice for purposes of R.C. 1345.09(B) that the firm's alleged conduct was deceptive. The proposed class cited three cases to support their position that the Jones Group received proper notice via a court decision: (1) State ex rel, Celebreeze v. Mosley d.b.a. Nationwide Promotions, Franklin C.P. No. 87-CV-04-2228 (May 8, 1987); (2) State ex rel, Cordray v. Twenty First Century Legal Servs., Franklin C.P. No. 09 CVH 06-9535 (July 22, 2010); and (3) Stiltner v. Carlisle, McNellie, Rini, Mansfield M.C. No. 07-CVH-3952 (July 25, 2008). Mosley was decided by consent judgment, Twenty First Century was decided by default judgment, and Stiltner, which involved violations of a federal consumer protection act, was decided by summary judgment.

         {¶7} The proposed class argued that consent judgments could provide evidence of prior notice for the purposes of R.C. 1345.09(B), and urges this court to find that consent and default judgments may provide prior notice to a party that its conduct violated the CSPA. The Jones Group argued, and the trial court agreed, that consent judgments cannot form the basis of prior notice under R.C. 1345.09(B).

         {¶8} The leading case in this area is Philip Morris, 110 Ohio St.3d 5, 2006-Ohio-2869, 850 N.E.2d 31. In Philip Morris, the plaintiffs filed a class-action complaint against Philip Morris alleging violations of the CSPA. Plaintiffs moved for class certification pursuant to Civ.R. 23 and the trial court certified the class. Philip Morris appealed the class certification. In upholding the class certification, the court of appeals relied on cases cited by the plaintiffs and determined there had been a prior finding that the conduct of Philip Morris was a deceptive act. Id. at ¶ 6. Philip Morris appealed to the Ohio Supreme Court arguing that the practices described in the prior notice must be industry specific or conduct specific so that a supplier has fair warning that its conduct runs afoul of the CSPA. The plaintiffs contended that R.C. 1345.09(B) does not require specificity and that prior notice only be sufficient to put the offending party on notice.

         {¶9} The Ohio Supreme Court ultimately agreed with Philip Morris, holding that in order to satisfy R.C. 1345.09(B), a plaintiff must show that the defendant's alleged conduct is "substantially similar to an act or practice that was previously declared to be deceptive, " and ...


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