Court of Appeals of Ohio, Eighth District, Cuyahoga
JOHN VUYANCIH, ET AL. PLAINTIFFS-APPELLANTS
JONES & ASSOCIATES LAW GROUP, L.L.C., ET AL. DEFENDANTS-APPELLEES
Appeal from the Cuyahoga County Court of Common Pleas Case
E. Dann, William C. Behrens, Brian D. Flick, Emily White
ATTORNEYS FOR APPELLANTS
H. Boehm, Sean T. Lavin ATTORNEYS FOR APPELLEES
BEFORE: Jones, J., Boyle, P.J., and S. Gallagher, J.
JOURNAL ENTRY AND OPINION
A. JONES, SR, J.
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
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.
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
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."
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.
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.
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).
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.
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 ...