author: Robb, P.J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Shawn Martin THOMAS, Defendant-Appellant.
    No. 17 BE 0014
    Court of Appeals of Ohio, Seventh District, Belmont County.
    Dated: July 2, 2018
    Atty. J. Flanagan, Chief Assistant Prosecutor, Courthouse Annex 1, 147-A West Main Street, St. Clairsville, Ohio 43950, No Brief Filed for Plaintiff-Appellee and
    Atty. Edward Czopur, DeGenova & Yarwood, Ltd., 42 North Phelps St., Youngstown, Ohio 44503, for Appellant-Defendant.
    BEFORE: Carol Ann Robb, Cheryl L. Waite, Kathleen Bartlett, Judges.
    OPINION AND JUDGMENT ENTRY
   Robb, P.J.

{¶ 1} Defendant-Appellant Shawn Martin Thomas appeals the judgment of the Belmont County Common Pleas Court upon his guilty plea to three counts of unlawful sexual conduct with a minor. Appellant argues the plea was not knowing, intelligent, or voluntary because the trial court failed to explain that he was waiving the right to a jury trial where the court merely stated he was waiving the right to a "speedy and public trial" without mentioning a jury at any point in the colloquy. As strict compliance with the plea advisements on constitutional rights is required, Appellant's argument has merit. In accordance, this court concludes the trial court's judgment is reversed, and the case is remanded for further proceedings.

STATEMENT OF THE CASE

{¶ 2} On August 3, 2016, Appellant was indicted for attempted rape with the allegation he purposely compelled A.M. to submit to sexual conduct by force or threat of force. See R.C. 2907.02(A)(2) ; R.C. 2923.02(A). This offense would have been subject to Tier III classification, the highest sex offender label. See R.C. 2950.01(G)(a)(i). Appellant appeared for a plea hearing on November 21, 2016, at which time the parties advised the court a resolution had not been reached. A motion to suppress was filed on November 30, 2016, with regard to statements Appellant made during his August 30, 2016 interview at the Belmont County jail. The suppression motion was thereafter supplemented with a memorandum in support. Continuances were granted. When the case was called for the suppression hearing on January 31, 2017, the parties jointly requested a continuance to allow Appellant to consider the latest plea offer. The case was reset for February 13, 2017, at which time Appellant signed the plea agreement.

{¶ 3} Pursuant to the agreement, the state amended the second-degree felony attempted rape count in the indictment to fourth-degree felony unlawful sexual conduct with a minor. The agreement called for Appellant to plead guilty to this amended count plus two other fourth-degree felony counts of unlawful sexual conduct with a minor as set forth in a newly-filed bill of information. See R.C. 2907.04(A), (B)(1). Both the original indictment for the first offense and the bill of information for the two additional offenses stated the conduct occurred "on or about April 2011 through July 17, 2011" against A.M. whose date of birth was specified as "03-11-95" which means she turned 16 before the start of the approximate date range for the offense. Appellant waived his right to have the charges presented to a grand jury and signed a waiver of indictment. Defense counsel withdrew the motion to suppress. The court conducted a plea colloquy, and Appellant pled guilty to the three fourth-degree felony counts of unlawful sexual conduct with a minor in violation of R.C. 2907.04(A), (B)(1). The court memorialized the plea in a February 14, 2017 judgment entry. A presentence investigation and victim impact statement were ordered.

{¶ 4} At the February 27, 2017 sentencing, Appellant was offered his right to allocution, but he declined to speak. In accordance with the plea agreement, the prosecution took no position on sentencing, and the defense asked for concurrent sentences. The court reviewed information about the offense from the presentence investigation report and the victim impact statement. The court spoke of the purposes and principles of sentencing under R.C. 2929.11 and the seriousness and recidivism factors under R.C. 2929.12. The court reviewed Appellant's criminal history and made consecutive sentence findings under R.C. 2929.14.

{¶ 5} Appellant was sentenced to the maximum of eighteen months on each count to run consecutively. The court imposed a mandatory term of five years of post-release control as required by R.C. 2967.28(B)(1) and notified him if he violated the terms, then the parole board could return him to prison for a maximum of nine months for each violation for a total not to exceed one-half of his minimum stated prison term. See State v. Grimes , 151 Ohio St.3d 19, 2017-Ohio-2927, 85 N.E.3d 700, ¶ 9, citing R.C. 2929.19(B)(2)(c)-(e). The court also explained the parole authority can increase or reduce the restrictions imposed and, if Appellant is convicted of a felony while under post-release control, the court sentencing on the new felony could return him to prison in the current case and consecutively sentence him to prison for the new felony.

{¶ 6} The court labeled Appellant a Tier I sex offender and ordered him to register with the sheriff annually for fifteen years. The statutory sex offender registration notice was signed at hearing. Appellant's status was marked as a Tier I sex offender, and the notice explained a Tier I sex offender was required to register for 15 years with annual in-person verification. Appellant was given 89 days of jail time credit. The February 27, 2017 sentencing entry reiterated the court's findings.

{¶ 7} A timely notice of appeal was filed, and a new attorney was appointed for the appeal. On September 28, 2017, counsel filed a motion to withdraw and an Anders brief setting forth a proposed assignment of error on consecutive sentencing but concluding the trial court's findings were sufficient. See State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29 ("a word-for-word recitation of the language of the statute is not required, and as long as the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the record contains evidence to support the findings, consecutive sentences should be upheld"). This court appointed new counsel under Anders v. California , 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). On April 4, 2018, Appellant's new counsel filed a brief challenging the guilty plea.

ASSIGNMENT OF ERROR: PLEA COLLOQUY ON JURY TRIAL

{¶ 8} Appellant's sole assignment of error provides:

"The trial court did not comply with Crim.R. 11(C)(2)(c) in that it did not inform Appellant of his right to a jury trial, therefore the plea was not made knowingly, intelligently, and voluntarily requiring reversal."

{¶ 9} A guilty plea is governed by Crim.R. 11. The non-constitutional rights contained in this rule are subject to a substantial compliance analysis, which looks at the totality of the circumstances to ascertain whether the defendant subjectively understood the implications of his plea and the rights he waived. See, e.g., State v. Nero , 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990) ; State v. Stewart , 51 Ohio St.2d 86, 93, 364 N.E.2d 1163 (1977). However, strict compliance is required when addressing the constitutional rights contained in Crim.R. 11. State v. Barker , 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826, ¶ 15, citing State v. Veney , 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18. Regarding the constitutional rights, the trial court had the duty of:

Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant's favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.

Crim.R. 11(C)(2)(c). Where there is not strict compliance with these constitutional rights, the plea is invalid, without a requirement of showing prejudice. Veney , 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621 at ¶ 30.

{¶ 10} Although the trial court must strictly comply with this portion of the rule, the failure to recite the exact language of the rule will not invalidate a plea if the record demonstrates the court actually explained each constitutional right in a reasonably intelligible manner.

Barker , 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826 at ¶ 14-15, 20. Based on this premise, the Barker Court held the trial court reasonably conveyed to the defendant that he was waiving the right to have compulsory process for obtaining witnesses in his favor where the court advised him of the right to "call witnesses to speak on your behalf" (and the plea agreement spoke of the defendant's ability to use the power of the court to call witnesses to testify).

{¶ 11} As for reviewing a plea agreement, the trial court has the duty to impart knowledge of the constitutional rights and "cannot simply rely on other sources to convey these rights to the defendant." Veney , 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621 at ¶ 29 (invalidating plea where court failed to orally inform defendant of his constitutional right to require the state to prove his guilt beyond a reasonable doubt). Only where there is ambiguity in the court's references to the right, can the appellate court use the plea agreement to reconcile the ambiguity. Barker , 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826 at ¶ 23-27 (limiting Veney to the situation where a trial court omits any discussion of a constitutional right in the oral colloquy). Therefore, if the trial court makes no reference to one of the constitutional rights in any manner, the written plea agreement cannot cure the court's failure as to one of the rights. See id.

{¶ 12} Here, the court asked if Appellant understood he was waiving the following rights: "to a speedy and public" trial; to confront witnesses against him; to compulsory service of witnesses in his favor; to require the state to prove his guilt beyond a reasonable doubt; and to not be compelled to testify against himself. (Plea Tr. 6). As Appellant points out, the trial court did not refer to a "jury" trial.

{¶ 13} In some cases when a reviewing court is faced with this situation, the court can conclude there was a valid waiver by finding the reference to a jury was orally made when explaining some other aspect of the plea. See, e.g., State v. Ballard, 66 Ohio St.2d 473, 481, 423 N.E.2d 115 (1981) ; State v. Hayward , 6th Dist. No. WD-17-010, 2017-Ohio-8611, 2017 WL 5565182, ¶ 8, 12 ; State v. Smiddy , 2d Dist. No. 2014-CA-148, 2015-Ohio-4200, 2015 WL 5918084, ¶ 6, 15 ; State v. Young , 11th Dist. No. 2009-T-0130, 2011-Ohio-4018, 2011 WL 3558105, ¶ 39-40. As in this case, the trial court in Hayward orally advised the defendant of the right "to a speedy and public trial" but later explained that if he chose not to testify, the court would "instruct the jury" it could not consider this decision. The Sixth District relied on the later reference to a jury in the plea colloquy and the plea agreement in order to uphold the plea. Hayward , 6th Dist. No. WD-17-010.

{¶ 14} In Ballard , the trial court advised the pleading defendant of his right to a "fair and impartial" trial. This was an insufficient reference to the right to a jury trial. However, in discussing the right against self-incrimination, the trial court informed the defendant that "neither judge nor jury" could draw any inference if he refused to testify. The defendant said he understood the rights explained to him. The Supreme Court concluded: "These statements and answers, taken together, lead us to the conclusion that the appellant was informed of his right to a trial by jury." Ballard, 66 Ohio St.2d at 481, 423 N.E.2d 115.

{¶ 15} Here, there is no reference to a jury in any other part of the plea transcript. As Appellant concedes, the written plea clearly and boldly states the guilty plea waives the right to a jury trial. Yet, as Appellant further contends, the plea agreement cannot be used where the right was not touched upon in any manner by the trial court at the time the plea was entered.

{¶ 16} In sum, the trial court failed to advise Appellant of his constitutional right to a jury trial by informing him of "the right to a speedy and public trial" where no reference to a jury was made elsewhere at the plea hearing. Appellant's assignment of error is sustained. The judgment of the trial court is reversed, and the case is remanded for further proceedings.

SEXUAL OFFENDER TIERS

{¶ 17} Although not raised on appeal, this court is compelled to discuss the following issue with the sex offender tier label: Appellant was told he would be subject to Tier I registration of 10 years; registration for a Tier I sex offender is actually 15 years; but a sex offender convicted of fourth-degree felony unlawful sexual conduct with a minor is subject to a Tier II sex offender label which involves 25 years of registration. At the plea hearing, the trial court asked if Appellant understood he would be "registered as a sex offender, with the appropriate reporting requirements." (Plea Tr. 9). Appellant said he did and knew he would be required to sign a form in acknowledgement of the requirements. The court did not mention the tier or the duration of registration, but defense counsel voiced, "the prosecutor and I have determined this would be a Tier I Registration, which is once every 180 days for ten years." (Plea Tr. 10). The written plea agreement likewise stated in the section explaining the potential sentence: "Tier I Registration - every 6 mos. for 10 years."

{¶ 18} Contrary to this statement on the record and in the plea agreement, a person who is a Tier I sex offender is subject to 15 years of registration, and the verification of registration is annual. R.C. 2950.07(B)(3). The reference to 10 years in this division only relates to an offender who is a delinquent child. Id. This has been the case since 2008, when the Adam Walsh Act went into effect and created these tiers. At sentencing, the trial court designated Appellant as a Tier I sex offender with registration for 15 years, which is the proper duration for Tier I. See id. The statutory sex offender registration notice signed at the hearing was marked for Tier I sex offender status and explained a Tier I sex offender was subject to annual in-person verification for 15 years. The sentencing entry reiterated Appellant's designation as a Tier I sex offender with 15 years of annual verification.

{¶ 19} Nevertheless, unlawful sexual conduct with a minor in violation of R.C. 2907.04 requires a Tier II sex offender label under R.C. 2950.01(F)(1)(b). The only exception can occur in certain cases where the defendant was less than four years older than the minor subjected to the sexual conduct. Appellant was not less than four years older than the victim; nor did he negotiate a plea to such a lower degree of offense involving the lesser age difference. Compare State v. Grigsby , 2d Dist., 2017-Ohio-8760, 90 N.E.3d 956, ¶ 27-28. Appellant pled to fourth-degree felony unlawful sexual conduct with a minor in violation of R.C. 2907.04(A) and (B)(1).

{¶ 20} The only reference to R.C. 2907.04 in the definition of a Tier I sex offender is as follows: "A violation of section 2907.04 of the Revised Codewhen the offender is less than four years older than the other person with whom the offender engaged in sexual conduct, the other person did not consent to the sexual conduct, and the offender previously has not been convicted of or pleaded guilty to [certain sections]." (Emphasis added). R.C. 2950.01(E)(1)(b). This division has no relevance to the offenses to which Appellant pled guilty.

{¶ 21} Rather, a violation of R.C. 2907.04 when the offender is more than four years older than the person with whom the offender engaged in sexual conduct is contained in the definition of a Tier II sex offender. R.C. 2950.01(F)(1)(b). This division defines a Tier II sex offender as applying to a conviction for:

A violation of section 2907.04 of the Revised Code when the offender is at least four years older than the other person with whom the offender engaged in sexual conduct, or when the offender is less than four years older than the other person with whom the offender engaged in sexual conduct and the offender previously has been convicted of or pleaded guilty to a violation of section 2907.02, 2907.03, or 2907.04 of the Revised Code or former section 2907.12 of the Revised Code * * *.

R.C. 2950.01(F)(1)(b). In accordance, the offenses to which Appellant pled guilty made him subject to classification as a Tier II sex offender. See R.C. 2950.01(F)(1)(b). Tier II is a higher level than Tier I and is subject to a longer period of reporting and more frequent verification: every 180 days for 25 years. R.C. 2950.07(B)(2). This should be considered on remand during any new plea hearing.

{¶ 22} For the reasons set forth under Appellant's sole assignment of error, the trial court's judgment is reversed, and the case is remanded for further proceedings.

Waite, J., concurs.

Bartlett, J., concurs.

      Unlawful sexual conduct with a minor is a fourth-degree felony unless the offender is charged with: being less than four years older than the victim, in which case it is a first-degree misdemeanor; being ten or more years older than the victim, in which case it is a third-degree felony; or having certain prior convictions, in which case it is a second-degree felony. See R.C. 2907.04(B)(1)-(4). Although Appellant was more than ten years older than the victim, he negotiated the ability to plead to fourth-degree felonies under R.C. 2907.04(B)(1).

      We note the offense of unlawful sexual conduct with a minor deals with a victim who is under 16 years old (and at least 13). See R.C. 2907.04(A) ("No person who is eighteen years of age or older shall engage in sexual conduct with another, who is not the spouse of the offender, when the offender knows the other person is thirteen years of age or older but less than sixteen years of age, or the offender is reckless in that regard.").

      See R.C. 2950.01(E)(1)(b) (the label can be Tier I if there is less than four years in age difference, a lack of consent, and no prior specified convictions); R.C. 2950.01(B)(2)(b) (and there is no sex offender label if the age difference is less than four years and the sexual conduct was consensual). Compare R.C. 2950.01(F)(1)(b) (the label is Tier II if the defendant has certain prior convictions, even if there is less than four years in age difference).


source: Caselaw Access Project

author: SEAN C. GALLAGHER, J.:

license: Public Domain

text:
    Richard MORAN, Plaintiff-Appellant v. Michael A. LEWIS, Defendant-Appellee
    No. 106634
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: November 1, 2018
    Mary Jo Hanson, 55 Public Square, Suite 1550, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANT
    Joseph A. Ferrante, Lavell O. Payne, Nationwide Insurance Co., 4125 Highlander Parkway, Suite 200, Richfield, Ohio 44286, ATTORNEYS FOR APPELLEE
    S. Robert E. Lazzaro, Costanzo & Lazzaro, 13317 Madison Avenue, Lakewood, Ohio 44107, for Also listed: For Kevin Russell
    BEFORE: S. Gallagher, J., Boyle, P.J., and Keough, J.
    JOURNAL ENTRY AND OPINION
   SEAN C. GALLAGHER, J.:

{¶ 1} Richard Moran appeals the entry of judgment upon the pleadings entered in Michael Lewis's favor. Moran claims that Lewis, a private investigator hired to conduct surveillance of Moran's activities for a then-pending civil action, violated Moran's "right to privacy" and trespassed by installing global positioning system ("GPS") tracking devices on two of Moran's vehicles. According to Moran, he has an expectation of privacy while traveling on public roads and that privacy was violated by Lewis's conduct. Moran further argues that such a violation should essentially amount to a per se invasion of privacy under Ohio law. As much as Moran would prefer to argue that he has a recognized expectation of privacy while traveling on public roads, this case turns on the allegations in the complaint or, better stated, the failure to properly plead an invasion of privacy claim under Ohio law.

{¶ 2} Before the trial court granted judgment in favor of Lewis, Moran joined Lewis in seeking leave to file dispositive motions on whether the complaint set forth a viable claim for invasion of privacy and trespass. Thus, any issues with the procedural posture of the dispositive ruling would be, at best, invited error. Further, in this appeal Moran asked us to disregard any perceived error in granting judgment in favor of Lewis upon the claims for trespass. The only issue before this court is whether the allegations that a private citizen installed a GPS tracking device on another individual's motor vehicle to track its movement on public roads sufficiently pled a violation of the right to seclusion that is recognized as an invasion of privacy under Ohio law. It does not, and therefore, the allegations in the complaint failed to set forth a claim upon which relief could be granted.

{¶ 3} We review a ruling on a motion for judgment on the pleadings de novo. Thornton v. Cleveland , 176 Ohio App.3d 122, 2008-Ohio-1709, 890 N.E.2d 353, ¶ 3 (8th Dist.). Motions for judgment on the pleadings are governed by Civ.R. 12(C), which states as follows: "After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." "In order to be entitled to a dismissal under Civ.R. 12(C), it must appear beyond doubt that [the nonmovant] can prove no set of facts warranting the requested relief, after construing all material factual allegations in the complaint and all reasonable inferences therefrom in [the nonmovant's] favor." State ex rel. Toledo v. Lucas Cty. Bd. of Elections , 95 Ohio St.3d 73, 74, 2002-Ohio-1383, 765 N.E.2d 854. Parties may seek a dismissal for failure to state a claim within the context of Civ.R. 12(C). When reviewing a Civ.R. 12(B)(6) motion to dismiss under this framework, we must accept the material allegations of the complaint as true and make all reasonable inferences in favor of the plaintiff. Johnson v. Microsoft Corp. , 106 Ohio St.3d 278, 2005-Ohio-4985, 834 N.E.2d 791, ¶ 6.

{¶ 4} In Ohio, an actionable invasion of privacy is (1) the unwarranted appropriation or exploitation of one's personality; (2) the publicizing of one's private affairs with which the public has no legitimate concern; or (3) the wrongful intrusion into one's private activities in such a manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities. Housh v. Peth , 165 Ohio St. 35, 133 N.E.2d 340 (1956), paragraph two of the syllabus. Invasion of privacy under Ohio law is generally derived from the Restatement of Torts. Under Restatement of the Law 2d, Torts, Section 652B (1977), a defendant may be liable for intrusion upon another's seclusion if the defendant intentionally intrudes upon the "solitude or seclusion" or the private affairs or concerns of another, and if such an intrusion would be highly offensive to a reasonable person. Moran invoked that third prong of the invasion of privacy claim as stated in Housh ; however, Moran failed to allege any intrusion, much less a wrongful one, into his private activities or his right to seclusion.

{¶ 5} Instead, Moran claims that the installation of the GPS tracking device was a per se invasion into his private activities and the law should be expanded to prevent private citizens from using modern technology to track another's travels on public roads. According to Moran, the act of attaching a GPS device to another's vehicle is prima facie evidence supporting the invasion of privacy claim. He "urges this Court to reject the old thinking that you cannot have privacy driving your car along Ohio's highways." Moran has not cited any authority supporting the proposition that, as a matter of law, a private citizen tortiously invades the privacy of another merely through the act of attaching a GPS device on another's vehicle for the purpose of tracking public movements. App.R. 16(A)(7) ; see, e.g. , Turner v. Am. Car Rental, Inc. , 92 Conn.App. 123, 130, 884 A.2d 7 (2005) (acknowledging the lack of legal authority demonstrating an expectation of privacy on a public highway). In order to properly plead an invasion of privacy claim, there must be allegations that the tracking invaded the seclusion or private affairs of another. See Troeckler v. Zeiser , S.D.Ill. No. 14-cv-40-SMY-PMF, 2015 WL 1042187, *3 (Mar. 5, 2015) (plaintiffs failed to plead that the placement of the GPS led to the disclosure of private facts); Villanova v. Innovative Investigations, Inc. , 420 N.J. Super. 353, 21 A.3d 650, 652 (N.J.App.2011) (no evidence that the vehicle was driven into a private or secluded location where one would have a reasonable expectation of privacy). The act of attaching a GPS device does not in and of itself constitute the invasion into one's seclusion or private affairs.

{¶ 6} Moran alleges that Lewis (1) attached a GPS tracking device to two of Moran's vehicles deceptively without his consent, (2) had no right to enter the private property to install the devices, (3) recorded the locations of Moran's vehicles on a continuing basis, and (4) hid the information from Moran. However, there are no allegations that the recording of the tracking information gleaned any private information or that an intrusion into Moran's solitude, seclusion, or private affairs was accomplished. Further, there are no allegations that the GPS tracking of Moran's public travels would be highly offensive to a reasonable person when the tracking occurs with a device rather than physically tailing the vehicles. In this case, the complaint fails to state a claim upon which relief can be granted - the plaintiff failed to allege facts that would satisfy the elements of an invasion of privacy claim as articulated in Housh .

{¶ 7} In support of Moran's request to expand the invasion of privacy claim to encompass his generalized allegations that fail to allege each element of an invasion of privacy tort claim, he cites the Supreme Court's decision in United States v. Jones , 565 U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), in which it was held that law enforcement's act of trespass, by placing a GPS tracking device on a suspect's vehicle, was an unreasonable search. According to Moran, however, Jones stands for the proposition that citizens have an expectation of privacy while traveling on public roads, as articulated in Katz v. United States , 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). He is mistaken. Justice Antonin Scalia, writing for the majority in Jones , specifically rejected the government's claim that the expectation of privacy line of cases applied or impacted the determination of whether the installation of a GPS tracking device violated the Fourth Amendment. Jones at 405-406, 132 S.Ct. 945 ; but see State v. White , 5th Dist. Fairfield No. 2010-CA-60, 2011-Ohio-4526, 2011 WL 3930300, ¶ 66 (GPS technology infringes on the reasonable expectation of privacy). Jones did not recognize an expectation of privacy in this context.

{¶ 8} In the alternative, Moran asks to supplant the law stated in Housh, 165 Ohio St. 35, 133 N.E.2d 340, and the Restatement of Torts with a bad faith or corrupt motive standard - according to Moran any attachment of a GPS tracking device that was done in bad faith or with a corrupt motive would be an invasion of privacy regardless of whether the device was used to track public or private movements. In support of this new standard, Moran cites Sustin v. Fee , 69 Ohio St.2d 143, 145, 431 N.E.2d 992 (1982).

{¶ 9} That case is not applicable to the particular facts of this case, and it did not create a new standard for invasion of privacy. Sustin reiterated Ohio's reliance on the Restatement of the Law 2d, Torts, Section 652B, as the foundation for the invasion of privacy claims as set forth in Housh . Sustin merely added an additional caveat to address the situation in which the surveillance is conducted by a public official acting within the scope of his or her official duties. In that situation, an additional pleading requirement is necessary because in order to avoid immunity, the plaintiff must allege that the official acted in bad faith or with a corrupt motive. Id. In light of the fact that Lewis is a private citizen, Sustin does not impact our analysis, nor does it create a new standard to review invasion of privacy claims. The elements of an invasion into another's seclusion claim as articulated in Housh have not been altered.

{¶ 10} Under Ohio law, in order to properly plead an invasion of privacy claim premised on the invasion into another's seclusion, at a minimum, there must be allegations demonstrating an intrusion, physical or otherwise, into another's solitude or private affairs. Housh at paragraph two of the syllabus. The Restatement of the Law 2d, Torts, Section 652B, provides that " 'the defendant is subject to liability under the rule stated in this Section only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs.' " Salupo v. Fox, Inc. , 8th Dist. Cuyahoga No. 82761, 2004-Ohio-149, 2004 WL 64964, ¶ 23, quoting Haynik v. Zimlich , 30 Ohio Misc.2d 16, 22, 508 N.E.2d 195, 201 (1986). In Salupo , it was held that the failure to plead particular facts that the defendant wrongfully intruded upon the plaintiff's private affairs was dispositive - in such a situation the complaint fails to set forth a claim upon which relief could be granted and the case should be dismissed. Id. at ¶ 23-24.

{¶ 11} In this case, Moran's complaint merely alleges that Lewis attached a GPS tracking device to two of Moran's vehicles and such conduct was a per se violation of Moran's privacy because Ohioans should have an expectation of privacy while traveling on public roads. Such an allegation is insufficient to state a claim for invasion of privacy under Ohio law. The failure to plead facts, private or otherwise, establishing that the defendant wrongfully intruded into the seclusion or private affairs of the plaintiff is fatal to the pleading. The mere act of monitoring another's public movements through the attachment of a GPS tracking device is not, in and of itself, sufficient to state an invasion of privacy claim. As it stands under Ohio law, liability for intrusion into another's seclusion or private affairs does not exist where the defendant observes or records a person in a public place. Salupo at ¶ 25, citing Pollock v. Rashid , 117 Ohio App.3d 361, 369, 690 N.E.2d 903 (1st Dist.1996).

{¶ 12} The increased use of readily available technology has transformed an individual's expectations of privacy. We appreciate, and empathize with, Moran's concerns. Nevertheless, as an intermediate appellate court of law, we cannot change Ohio's existing tort standard for invasion of privacy. Although we are sensitive to individual privacy concerns, it is the role of the Ohio legislature to expand the right to privacy to include a prohibition against tracking devices as used in this case. See, e.g. , Alaska Stat. 11.41.270(b)(4)(H) (prohibiting the use of global positioning or other similar devices to monitor or track a person); Cal.Pen.Code 637.7 (prohibiting the use of electronic tracking devices to determine the location or movement of a person); 720 ILCS 5/21-2.5(b) (prohibiting the use of an electronic tracking device to determine another's movement or locations). Moving Ohio to a per se standard, in the effort to advance policy considerations, is beyond the role of this court. Under the existing tort law, Moran needed to plead facts demonstrating the intrusion into his seclusion or private affairs along with facts demonstrating mental suffering, shame, or humiliation. Housh, 165 Ohio St. 35, 133 N.E.2d 340.

{¶ 13} According to Moran, the GPS tracking devices in this case recorded his movements on public roads and there were no allegations that the recording or dissemination of the information intruded into Moran's solitude, seclusion, or private affairs. The solitary claim that the use of the GPS device was a per se invasion of privacy is overruled. The complaint fails to set forth a claim for invasion of privacy under Ohio law, and the judgment on the pleadings in favor of Lewis is affirmed.

MARY J. BOYLE, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR


author: PATRICIA ANN BLACKMON, J.:

text:
    Patrick W. CANTLIN, et al., Plaintiffs-Appellees v. SMYTHE CRAMER CO., Defendant-Appellant
    No. 106697
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: November 15, 2018
    Anthony J. Coyne, Jeffrey M. Embleton, Tracey S. McGurk, Mansour Gavin L.P.A., 55 Public Square, Suite 2150, Cleveland, Ohio 44113, Jennifer M. Keas, Jay N. Varon, Foley & Lardner, L.L.P., 3000 K Street, N.W., Suite 600, Washington, D.C. 20007, ATTORNEYS FOR APPELLANT.
    Patrick J. Perotti, Nicole T. Fiorelli, James S. Timmerberg, Dworken & Bernstein Co., L.P.A., 60 South Park Place, Painesville, Ohio 44077, James A. Deroche, Garson Johnson, L.L.C., 1600 Midland Building, 101 West Prospect Avenue, Cleveland, Ohio 44115, Glenn D. Feagan, Law Offices of Glenn D. Feagan, 101 W. Prospect Avenue, Suite 1600, Cleveland, Ohio 44115, ATTORNEYS FOR APPELLEES.
    BEFORE: Blackmon, J., McCormack, P.J., and S. Gallagher, J.
    JOURNAL ENTRY AND OPINION
   PATRICIA ANN BLACKMON, J.:

{¶ 1} Smythe Cramer Co., d.b.a. Howard Hanna Smythe Cramer ("HHSC"), appeals from the trial court's granting plaintiffs Rita Noall, Cindy Miller, Patrick Cantlin, and Elizabeth Hong's ("Plaintiffs") motion for class certification in this fraud and unjust enrichment case and assigns the following error for our review:

I. The trial court abused its discretion by certifying two new proposed classes in a December 18, 2017 order, because a rigorous analysis of the record, which was supplemented following this Court's May 26, 2016 reversal of a previously-proposed class, shows serious obstacles to predominance, identifiability, and typicality.

{¶ 2} Having reviewed the record and pertinent law, we affirm the trial court's judgment. The apposite facts follow.

{¶ 3} This lawsuit is a proposed class action, the heart of which concerns a $225 fee ("the Fee"), which HHSC charged putative class members allegedly as compensation for services performed in real estate transactions. The gist of Plaintiffs' argument is that the Fee is essentially unearned, because HHSC offered no services in exchange for the Fee, other than the services already offered to its customers prior to charging the Fee. As the trial court aptly stated, "[t]he plaintiffs claim to have evidence demonstrating that [HHSC] devised a scheme to assess the fee as a disguised raise in its sales commission to avoid the customer backlash that might have come with an overt increase in the percentage commission." The three real estate transactions involving the named Plaintiffs in this case are as follows.

{¶ 4} On May 21, 2009, Noall entered into an agreement with HHSC to buy real estate. Noall signed an HHSC form entitled "Offer to Purchase Real Estate and Acceptance." In section K of this form, Noall agreed to pay "an administrative fee of $225 to [HHSC] * * *." This section of Noall's document also states that if the seller is represented by HHSC, the seller agrees to pay "an administrative fee of $225" to HHSC. Furthermore, Noall's HUD settlement statement lists on line item 705 that she paid an "Admin Fee" of $225 to HHSC.

{¶ 5} On June 23, 2009, Cantlin and Hong entered into an agreement with HHSC to buy real estate. Cantlin and Hong signed an HHSC form entitled "Purchase Agreement Offer, Receipt and Acceptance," line item 106 of which obligates them to pay "a fee of $225.00 to Howard Hanna for brokerage services rendered to the BUYER." Line 301 of this same document states that the sellers agree to pay HHSC "a brokerage commission of seven percent (7%) of the sales price and $225." Cantlin and Hong's HUD settlement statement indicates on line item 704 that they paid an "Administrative Fee" of $225 to HHSC.

{¶ 6} On July 27, 2009, Miller entered into an agreement with HHSC to sell real estate. Miller signed an HHSC form entitled "Exclusive Right to Sell Agreement," section D of which states that "Seller also agrees to pay an Administrative Fee of $225 to Howard Hanna * * *." Miller also signed a Purchase Agreement Offer, Receipt and Acceptance which states on line item 97 that, if the seller is represented by HHSC, the seller shall pay "an Administrative Fee of $225" to HHSC. This document further states that the buyer shall also pay "an Administrative Fee of $225" to HHSC. Miller's HUD settlement statement lists on line item 105 that she paid HHSC a $225 "Broker Service Fee."

{¶ 7} On September 6, 2012, Plaintiffs filed this action alleging fraud, unjust enrichment, and fraudulent inducement and moved for class certification using the following definition:

All individuals: (1) in the state of Ohio; (2) from September 18, 2005 to the present; (3) who paid to Defendant a fee entitled "administrative fee," "broker service fee," "brokerage fee," or other similar title, which fee is usually listed on line 704 or 705 of the HUD-1.

{¶ 8} The trial court granted class certification on July 10, 2015. HHSC appealed, and this court reversed the trial court's decision, finding that "as the class is currently defined , this action does not satisfy the predominance requirement of Civ.R. 23(B)(3)" to certify a class action. (Emphasis sic.) Cantlin v. Smythe Cramer Co. , 8th Dist. Cuyahoga No. 103339, 2016-Ohio-3174, 2016 WL 3018588, ¶ 37 (" Cantlin I "). In finding that this class definition did not pass muster under Civ.R. 23(B)(3), this court held as follows:

In this case, there is no dispute that the HUD-1 is a standardized form. In addition, the HUD-1 clearly indicates whether a prospective class member has or has not paid the challenged "administrative fee." However, we find the HUD-1, standing alone, does not constitute generalized evidence that proves or disproves the elements of fraud, fraud in the inducement, and unjust enrichment on a "simultaneous, class-wide basis." In other words, the fact that an individual's HUD-1 shows that he or she paid an "administrative fee" is not evidence that will determine whether the class members' fraud claims "will prevail or fail in unison." In our view, the circumstances presented in this case require us to consider the HUD-1 in conjunction with the HHSC purchase agreements signed by each prospective class member.

{¶ 9} Upon remand, Plaintiffs filed a new motion for class certification and redefined the class into two groups:

Administrative Fee Class:
All individuals in the state of Ohio, both buyers and sellers, who, on or after September 18, 2005, paid Defendant an "administrative fee" or "administrative services fee" pursuant to the Exclusive Right to Sell Agreement; Exclusive Buyer Representation Agreement; Offer to Purchase Agreement; or Purchase Agreement.
Brokerage Services Fee Class:
All buyers of real estate in Ohio who, during or after March 2009, paid the Defendant a "brokerage services" fee pursuant to the Purchase Agreement; or Offer to Purchase Agreement.

{¶ 10} The trial court granted class certification on December 19, 2017, finding that the redefined class met the Civ.R. 23 threshold, including subsection (B)(3)'s predominance requirement, "[b]ecause all the elements of fraud and unjust enrichment can be proved or disproved by common proof [and] the questions of law and fact on both causes of action which are common to the class members predominate over questions which might affect only individual members." It is from this order that HHSC appeals, arguing that Plaintiffs fail to meet the Civ.R. 23(B) requirements of identifiability, typicality, and predominance in the redefined subclasses.

Class Certification Requirements

{¶ 11} Civ.R. 23 provides seven requirements for maintaining a class action:

(1) an identifiable class must exist and the definition of the class must be unambiguous; (2) the named representatives must be members of the class; (3) the class must be so numerous that joinder of all members is impracticable; (4) there must be questions of law or fact common to the class; (5) the claims or defenses of the representative parties must be typical of the claims or defenses of the class; (6) the representative parties must fairly and accurately protect the interests of the class; and (7) one of the three Civ.R. 23(B) requirements must be met.

(Citations omitted.) Cullen v. State Farm Mut. Auto. Ins. Co. , 137 Ohio St.3d 373, 2013-Ohio-4733, 999 N.E.2d 614, ¶ 12.

{¶ 12} Of the three Civ.R. 23(B) requirements, subsection (3) is applicable to the case at hand, and it states that a class action may be maintained if:

the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:
(a) the class members' interests in individually controlling the prosecution or defense of separate actions;
(b) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(c) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(d) the likely difficulties in managing a class action.

{¶ 13} Plaintiffs seeking class certification must prove all seven requirements by a preponderance of the evidence. Warner v. Waste Mgmt. , 36 Ohio St.3d 91, 94, 521 N.E.2d 1091 (1988). However, as noted, HHSC is challenging only three of the requirements: identifiability, typicality, and predominance.

Standard of Review

{¶ 14} When ruling on a motion to certify a class, the trial court must conduct a "rigorous analysis" of the evidence before it. As this court has held,

In Cullen , the Ohio Supreme Court indicated that the rigorous analysis "requires the court to resolve factual disputes relative to each requirement and to find, based upon those determinations, other relevant facts, and the applicable legal standard, that the requirement is met." A trial court may examine the underlying merits of the claim as part of its rigorous analysis, but only to the extent necessary to determine whether the Civ.R. 23 requirements are satisfied. Further, "deciding whether a claimant meets the burden for class certification pursuant to Civ.R. 23 requires the court to consider what will have to be proved at trial and whether those matters can be presented by common proof."

(Citations omitted.) Konarzewski v. Ganley, Inc. , 8th Dist. Cuyahoga, 2017-Ohio-4297, 82 N.E.3d 1191, ¶ 12.

{¶ 15} Appellate courts apply an abuse of discretion standard in reviewing class action determinations. This "is grounded not in credibility assessment, but in the trial court's special expertise and familiarity with case-management problems and its inherent power to manage its own docket." Gattozzi v. Sheehan , 8th Dist. Cuyahoga, 2016-Ohio-5230, 57 N.E.3d 1187, ¶ 16.

Identifiability

{¶ 16} Civ.R. 23(A) requires that the class definition be unambiguous and the class identifiable. " 'The requirement that there be a class will not be deemed satisfied unless the description of it is sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member.' " Hamilton v. Ohio Sav. Bank , 82 Ohio St.3d 67, 71-72, 694 N.E.2d 442 (1998), quoting 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure , Section 1760, at 120-121 (2d Ed.1986). "The test is whether the means is specified at the time of certification to determine whether a particular individual is a member of the class." Planned Parenthood Assn. of Cincinnati v. Project Jericho , 52 Ohio St.3d 56, 63, 556 N.E.2d 157 (1990).

{¶ 17} On appeal, HHSC argues that the trial court failed to consider the evidence it submitted regarding whether class members could be "identified with reasonable effort." According to HHSC, "there would be no way to determine class membership without a file-by-file review and individual analysis of each transaction." HHSC offers three reasons to support its argument.

{¶ 18} First, its agents used "[d]ifferent versions of the HHSC forms," some of which may have referenced the $225 fee and some of which may have described the "hybrid commission," which this court in Cantlin I determined was "inconsistent with the claims alleged in plaintiffs' complaint * * *." Second, "there are major defects in terms of identifying allegedly injured buyers * * *." Third, whether a putative class member "actually paid the Fee * * * could not be ascertained without individualized inquiry." (Emphasis sic.)

{¶ 19} A careful reading of HHSC's argument that the class is allegedly not identifiable reveals that all three reasons HHSC set forth are essentially the same - that individualized fact-finding would be required to determine membership in the class. While individualized fact-finding may defeat class certification, this is true only when the cause of the problem is plaintiff's overly broad class definition. See Maestle v. Best Buy Co. , 197 Ohio App.3d 248, 2011-Ohio-5833, 967 N.E.2d 227, ¶ 26 (8th Dist.). ("In our view, the overly broad nature of appellant's current class would require the lower court to conduct an individualized inquiry with respect to each individual's account in order to determine whether that individual was in fact injured and, therefore, a proper member of the class").

{¶ 20} HHSC's arguments under this factor of the class certification analysis are not well taken. In finding that the class members in the instant case are identifiable, the trial court stated that HHSC can reasonable identify its transactions for buyers and sellers using the noted form documents containing the Fee. Specifically, the court concluded that "it is essentially a clerical task to weed out those who did not actually pay the fee or paid a negotiated amount." The court also stated that class members "should be able to identify themselves by looking at lines 704 and 705 of their HUD-1 settlement statements to see if a fee was paid to [HHSC]." The court further found that the new class definitions excluded sellers who paid the "hybrid fee" mentioned in Cantlin I . Upon review, we find that the class definitions are narrowly tailored to include those people who paid an "administrative fee" or "brokerage services fee" as specified in HHSC's forms. HHSC's argument that its own forms are so convoluted and varied that it is an unreasonable task to identify who paid what is without merit.

{¶ 21} Ohio courts have favored class certification when fraud is alleged concerning a defendant's form contracts. "[C]laims involving interpretations of form contracts present the classic case for treatment as a class action * * *." Carder Buick-Olds Co. v. Reynolds & Reynolds , 148 Ohio App.3d 635, 2002-Ohio-2912, 775 N.E.2d 531, ¶ 45.

Generally, courts have found that when a common fraud is perpetrated on a group of plaintiffs, those plaintiffs should be able to pursue the claim without focusing on questions affecting individual members. In this regard, fraud cases that involve a single underlying scheme and common misrepresentations or omissions across the class are particularly subject to common proof. Once the plaintiff establishes that there are common misrepresentations or omissions affecting all class members, a class action can be certified notwithstanding the need to prove reliance.
Furthermore, direct evidence is not necessary to establish inducement and reliance. Instead, these elements of fraud can be established by inference or presumption. Courts have generally found that because inducement and reliance can be inferred from common proof of misrepresentations or omissions, the need for individualized proof is obviated. Even if specialized inquiries into reliance were necessary, this should not defeat class certification.

(Citations omitted.) Id. at ¶¶ 47-48. See also Baughman v. State Farm Mut. Auto. Ins. Co. , 88 Ohio St.3d 480, 727 N.E.2d 1265 (2000) ;

Hamilton, 82 Ohio St.3d 67, 694 N.E.2d 442 ; Cope v. Metro. Life Ins. Co., 82 Ohio St.3d 426, 430, 696 N.E.2d 1001 (1998) ("a wide variety of claims may be established by common proof in cases involving similar form documents or the use of standardized procedures and practices").

{¶ 22} Additionally,

[w]hile potential dissimilarity in remedies is a factor to be considered in determining whether individual questions predominate over common questions, that alone does not prevent a trial court from certifying a cause as a class action. * * * It is fundamental here that each member of the class * * * may not be awarded the same amount of damages in the event appellants are found liable. Nevertheless, the key fact is that the injuries sustained by the class flow from identical operative facts * * *.

Vinci v. American Can Co. , 9 Ohio St.3d 98, 101-102, 459 N.E.2d 507 (1984).

{¶ 23} Upon review, we find that the trial court conducted a rigorous analysis of the class members' identifiability and acted within its discretion when determining that this requirement was met.

Typicality

{¶ 24} HHSC's arguments on appeal concerning typicality are focused on the named-plaintiff Noall. On August 14, 2009, Noall signed a General Release of All Claims against HHSC in exchange for her real estate agent paying $200 to the sellers of the property at issue to cover late fees from the lender. This release states, in pertinent part, as follows:

Noall * * * do [sic] hereby forever release, acquit, and discharge [HHSC] from any and all claims and demands, obligations, judgments, actions, causes of action, liabilities for injuries, death, losses and damages, whether personal, property, or economic, whether now known or unknown, that were or could have been raised in relation to the Property.

{¶ 25} HHSC argues that this "release shows that Ms. Noall cannot receive redress from this case and, thus, lacks standing. Without standing, Ms. Noall is not a typical representative." Plaintiffs, on the other hand, argue that Noall meets the typicality requirement because she "was charged the same sham administrative fee as the rest of the members of the Administrative Fee Class * * *." Plaintiffs further argue that "Noall has not asserted any claims with respect to the property"; therefore, the release does not apply to this case.

{¶ 26} We first address the issue of standing. The Ohio Supreme Court has held a plaintiff must have standing to pursue a class action. Hamilton, 82 Ohio St.3d at 70, 694 N.E.2d 442 ; Lycan v. Cleveland , 146 Ohio St.3d 29, 2016-Ohio-422, 51 N.E.3d 593, ¶ 30. However, Civ.R. 8(C) lists a release of claims as an affirmative defense. Upon review, we find that Noall's standing is not at issue as far as the release is concerned. Rather, the release is properly regarded as an affirmative defense.

{¶ 27} "The requirement for typicality is met where there is no express conflict between the class representatives and the class. Similarly, a representative is deemed adequate so long as his or her interest is not antagonistic to that of other class members."

Hamilton at 77-78, 694 N.E.2d 442. Furthermore, "a unique defense will not destroy typicality or adequacy of representation unless it is 'so central to the litigation that it threatens to preoccupy the class representative to the detriment of the other class members.' " Id. at 78, 694 N.E.2d 442, quoting 5 Moore, Federal Practice, 23-126, Section 23.25(4)(b)(iv) and 23-98, Section 23.24(6) (3d Ed.1997).

{¶ 28} The Ohio Supreme Court has clarified that "the focus at [the class certification] stage of the proceedings should properly remain on the essential conforming characteristics of the defendant's conduct and the claims arising therefrom." Baughman, 88 Ohio St.3d at 487, 727 N.E.2d 1265. The Baugham court also noted that "any doubts about adequate representation, potential conflicts, or class affiliation should be resolved in favor of upholding the class, subject to the trial court's authority to amend or adjust its certification order as developing circumstances demand, including the augmentation or substitution of representative parties." Id.

{¶ 29} In Baughman , the Ohio Supreme Court held that " 'defenses asserted against a class representative should not make his or her claims atypical. Defenses may affect the individual's ultimate right to recover, but they do not affect the presentation of the case on the liability issues for the plaintiff class.' " (Citation omitted.) Baughman, at 486, 727 N.E.2d 1265. Compare Eighmey v. Cleveland , 8th Dist. Cuyahoga No. 104779, 2017-Ohio-7092, 2017 WL 3299429, ¶ 18 (although "defenses may or may not destroy the typicality of [a plaintiff's] class representation depending on how central they are to the litigation * * *[,] standing is an entirely different matter because rather than raising questions about the merits of the plaintiff's claims, it addresses justiciability").

{¶ 30} Upon review, we find that Noall's claim meets the typicality requirement of class certification, because there is no express conflict between her claim and the class-wide claim. HHSC's affirmative defense of release of claims goes to the merits of Noall's allegations of fraud and unjust enrichment, and should not defeat class certification. See Haller v. Borror Corp. , 50 Ohio St.3d 10, 13, 552 N.E.2d 207 (1990) ("A release of a cause of action for damages is ordinarily an absolute bar to a later action on any claim encompassed within the release").

Predominance

{¶ 31} Civ.R. 23(B)(3) states that a

class action may be maintained * * * if * * * the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.

{¶ 32} The statute lists four matters that are pertinent to these findings:

(a) the class members' interests in individually controlling the prosecution or defense of separate actions;
(b) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(c) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(d) the likely difficulties in managing a class action.

{¶ 33} The Ohio Supreme Court has held that "[f]or common questions of law and fact to predominate, it is not sufficient that such questions merely exist; rather, they must represent a significant aspect of the case. Furthermore, they must be capable of resolution for all members in a single adjudication." Marks v. C.P. Chem. Co. , 31 Ohio St.3d 200, 204, 509 N.E.2d 1249 (1987). As this court held in Cantlin I , "[w]here common issues predominate, the class members 'will prevail or fail in unison.' " Cantlin I, 8th Dist. Cuyahoga No. 103339, 2016-Ohio-3174, at ¶ 22, quoting Amgen Inc. v. Conn. Ret. Plans & Trust Funds , 568 U.S. 455, 460, 133 S.Ct. 1184, 185 L.Ed.2d 308 (2013). Although class action certification does not reach the merits of the case,

deciding whether a claimant meets the burden for class certification pursuant to Civ.R. 23 requires the court to consider what will have to be proved at trial and whether those matters can be presented by common proof. * * * Thus, * * * in resolving a factual dispute when a requirement of Civ.R. 23 for class certification and a merit issue overlap, a trial court is permitted to examine the underlying merits of the claim as part of its rigorous analysis, but only to the extent necessary to determine whether the requirement of the rule is satisfied.

Cullen v. State Farm Mut. Auto. Ins. Co., 137 Ohio St.3d 373, 2013-Ohio-4733, 999 N.E.2d 614, ¶ 17.

{¶ 34} This court held in Cantlin I that, in considering only each putative member's HUD-1 document, "the alleged fraudulent conduct was not standardized. * * * There is no common misrepresentation or omission across the entire class." (Emphasis sic.) Cantlin I, at ¶ 37. This court suggested that redefining the class may overcome the Civ.R. 23(B)(3) predominance hurdle. On remand, the trial court certified two sub-classes now defined by four HHSC forms: Exclusive Right to Sell Agreement; Exclusive Buyer Representation Agreement; Offer to Purchase Agreement; and Purchase Agreement. To be part of the class at issue, one has to meet the following criteria: a real property buyer or seller in Ohio; represented by HHSC on or after specified dates; paid the Fee to HHSC; pursuant to any of the four form documents.

{¶ 35} The trial court found that the central issue in this case is

whether the fee charged by [HHSC] is redundant of a commission already earned and paid and thus a 'sham fee' that must be disgorged and returned to those who paid it. Since the misrepresentations are alleged to be in the contract and settlement statements, and those documents are the same for each of the two classes, answering this question once will answer the question for the whole class.

{¶ 36} The court further found that "inferences or presumptions of inducement and reliance" are permitted to establish the elements of fraud in class actions. To properly analyze whether questions of fact or law common to class members predominate over individual questions, we must consider what Plaintiffs will have to prove at trial to succeed on their fraud and unjust enrichment claims.

{¶ 37} This court has held that the "elements of fraudulent inducement are essentially the same as those for fraudulent misrepresentation, fraudulent concealment, and fraudulent nondisclosure." Pedone v. Demarchi , 8th Dist. Cuyahoga No. 88667, 2007-Ohio-6809, 2007 WL 4442660, ¶ 29. Therefore, we treat Plaintiffs' fraud and fraudulent inducement claims as one. The elements of fraud are: (a) a misrepresentation or concealment of fact; (b) that is material to the transaction at hand; (c) made falsely, with knowledge of its falsity or with utter disregard and recklessness as to whether it is false; (d) with the intent of misleading another into relying upon it; (e) justifiable reliance upon the misrepresentation or concealment; and (f) resulting injury proximately caused by the reliance. Cohen v. Lamko, Inc., 10 Ohio St.3d 167, 169, 462 N.E.2d 407 (1984).

{¶ 38} Plaintiffs in the case at hand would have to prove that: (a) HHSC misrepresented or concealed the nature of the Fee; (b) the $225 Fee is material to the transaction; (c) HHSC knew of or disregarded the falsity; (d) HHSC intended to mislead the class members; (e) the class members justifiably relied on HHSC's misrepresentation or concealment; and (f) the class members were injured.

{¶ 39} Upon review, we find that Plaintiffs may present common evidence to show (a) - (c) and (f), i.e., HHSC's four form documents contained in the class definitions, Plaintiffs' HUD statements, and other standardized evidence. We are not commenting on the merits of Plaintiffs' case; rather, we are determining that Plaintiff's case may be won - or lost - with common proof.

{¶ 40} In Amato v. Gen. Motors Corp. , 11 Ohio App.3d 124, 128, 463 N.E.2d 625 (8th Dist.1982), this court "held here and now that proof of reliance may be sufficiently established by inference or presumption from circumstantial evidence to warrant submission to a jury without direct testimony from each member of the class." See also Cope v. Metro. Life Ins. Co., 82 Ohio St.3d 426, 436, 696 N.E.2d 1001 (1998) ("It is not necessary to establish inducement and reliance upon material omissions by direct evidence. When there is nondisclosure of a material fact, courts permit inferences or presumptions of inducement and reliance. Thus, cases involving common omissions across the entire class are generally certified as class actions, notwithstanding the need for each class member to prove these elements"). Thus, the need for individualized proof of the (d) and (e) fraud elements is obviated.

{¶ 41} The elements of unjust enrichment are: (a) plaintiff confers a benefit on defendant; (b) defendant knows about the benefit; and (c) defendant unjustly retains the benefit. Hambleton v. R.G. Barry Corp. , 12 Ohio St.3d 179, 183, 465 N.E.2d 1298 (1984). Unjust enrichment is an alternative theory of recovery, which "operates in the absence of an express contract or a contract implied in fact to prevent a party from retaining money or benefits that in justice and equity belong to another." Gallo v. Westfield Natl. Ins. Co., 8th Dist. Cuyahoga No. 91893, 2009-Ohio-1094, 2009 WL 625522, ¶ 19.

{¶ 42} Similar to our analysis of the fraud claim, Plaintiffs in the case at hand would be able to show unjust enrichment by common proof. We note that, with unjust enrichment, recovery is not available when the parties signed an express contract. Both subclasses in this case center around HHSC's form documents. In fact, one cannot be a class member without a signed contract. We are mindful that there is no summary judgment motion before us, and we are not passing upon the merits of this case. Thus, for the purpose of class certification, Plaintiffs can set forth an unjust enrichment claim with common proof that HHSC unjustly retained the class members' $225.

{¶ 43} HHSC argues that even under the redefined subclasses, "not all class members necessarily understood the Fee in the same way." For example, HHSC argues that "evidence in the record showed that many consumers received written and oral information that the Fee * * * was part of the overall brokerage commission * * *." (Emphasis sic.) HHSC's argument fails to recognize the holdings in Amato and Cope . The redefined subclasses do not include HHSC customers who were charged a "hybrid commission," as evidenced by HHSC documents. Rather, the subclasses include HHSC customers who were charged a separate fee, and reliance that the fee was "earned" may be presumed for the sake of class certification.

{¶ 44} It is important to note that this presumption does not shift the burden of proof. Rather, the presumption of reliance shifts "the burden of going forward." Amato, 11 Ohio App.3d at 128, 463 N.E.2d 625. Defendants may introduce evidence in rebuttal. Id.

Proofs on the merits of this case have not yet been introduced and it is not the office of a reviewing court to suggest avenues to proof to the parties. Suffice it to say that imagination calls up various proof and rebuttal possibilities that may be available to the parties. Until the opportunities are exhausted at trial, one can only speculate whether a case can be made in all the necessary elements. On this score it is noted that the rule permits a trial court considerable flexibility in deciding classes and in determining which issues may be brought or maintained in a class action.

Id., at 129, 463 N.E.2d 625.

{¶ 45} HHSC additionally argues that the trial court failed to consider "varying oral explanations by real estate sales agents" and "independent non-parties," various versions of the HUD-1, and other HHSC documents such as a buyer's guide regarding the Fee. This is not an accurate depiction of the trial court's analysis. Just because the trial court did not rule in HHSC's favor does not mean the trial court failed to consider HHSC's evidence and contentions. The trial court wrote a detailed decision analyzing both sides' arguments. In fact, the trial court stated in its decision that the alleged misrepresentation is evidenced in the HHSC forms, notwithstanding other explanations:

That is true even for plaintiffs who discussed the fee with a representative of Howard Hanna and still paid it. If one plaintiff can prove that Howard Hanna charged $225 for doing nothing that it hadn't otherwise charged and been compensated for, then even plaintiffs who were given oral assurances that the fee was in exchange for valuable services and then paid the fee should still recover since even though they may not have relied on the misrepresentation in the documents, they relied on the defendant's spoken lies.

{¶ 46} In other words, if the trier of fact concludes that the Fee was fraudulent, all class members may recover. If, on the other hand, the trier of fact concludes that no fraud occurred, the class action fails. As the trial court noted, "[p]ermitting a fraud because it was so successful that people didn't know they were being cheated only rewards the cheater's ingenuity and is hardly consistent with justice." We are mindful that the ultimate question of whether the Fee was fraudulent goes to the merits of the case.

{¶ 47} HHSC further argues that individual issues predominate over class-wide issues because of the multitude of forms that HHSC uses. "The record demonstrates that older HHSC forms are sometimes used by agents even after new versions of those forms - with different language - are rolled out." However, HHSC cannot avoid being sued in a class action in the instant case because they use too many different forms. The subclass definitions that the court certified include four forms with specific language. If a Plaintiff can show that he or she signed one of these forms and paid the Fee, they can participate in the class action. This is the predominant issue of the case.

{¶ 48} HHSC also argues that the case at hand is "directly in line with cases rejecting class treatment for lack of predominance."

To support this argument, HHSC cites Young v. FirstMerit Bank, N.A. , 8th Dist. Cuyahoga No. 94913, 2011-Ohio-614, 2011 WL 494893.

{¶ 49} Young involved a proposed class of over 700 investors who purchased promissory notes from Joanne Schneider, who was later convicted of running a $60.5 million Ponzi scheme. Id. at ¶¶ 6-7. The trial court certified the class, and this court reversed, finding that the Plaintiffs failed to meet the predominance requirement of Civ.R. 23(B)(3). In Young , unlike in the case at hand, the fraud alleged was not contained in the standard promissory notes that the defendant used. Rather, the Young plaintiffs alleged that the fraud occurred in how Schneider sold these notes. "These elements are specific to each individual investor, i.e., amount invested, number of investments, return on the investment, external inducements, and representations made by Schneider." Id. at ¶ 25. The Young court further found that "[e]ach plaintiff stated different reasons for investing their funds with Schneider." Id. at ¶ 26. The court concluded that "reliance cannot be presumed when the alleged misrepresentations are so varied. * * * Each fraud perpetrated by Schneider varied in its misrepresentations, reliance, inducement, and injury." Id. at ¶¶ 28-29.

{¶ 50} The instant case is distinguishable from Young in that the alleged fraud can be found in four HHSC standard forms. Plaintiffs allege that the misrepresentation or concealment regarding the Fee is specific, in writing, and the same for all class members. In Young , the entire investment scheme was alleged to be fraudulent, and the material misrepresentations were different for each plaintiff. For example, "some of the initial investors did in fact see high returns on their investments * * *." Id. at ¶ 28. In the case at hand, every putative class member was charged the Fee as part of a real estate transaction, and the Fee is alleged to be fraudulent for all who paid it.

{¶ 51} Upon review, we find that common issues predominate over questions affecting individual plaintiffs. Under Civ.R. 23(B)(3)(a), "the class members' interests in individually controlling the prosecution or defense of separate actions" do not outweigh the class members' common issues. Under Civ.R. 23(B)(3)(b), evidence in the record shows that Plaintiffs previously filed a similar suit in federal court, but that case was dismissed. The Ohio Supreme Court has held that "the lack of parallel lawsuits tends to weigh in favor of certification." Hamilton v. Ohio Sav. Bank , 82 Ohio St.3d 67, 81, 694 N.E.2d 442 (1998) (Emphasis sic). Under Civ.R. 23(B)(3)(c), concentrating this litigation as a single case in state court appears to be efficient, because common issues predominate, the real estate transactions at issue took place in Ohio, and violations of Ohio law are alleged. Finally, under Civ.R. 23(B)(3)(d), the trial court found that "managing these claims as a class action - especially where the hypothetical alternative is thousands of individual lawsuits - does not present any special difficulties which make individual cases a superior means of accomplishing a just result."

{¶ 52} Accordingly, we find that the trial court acted within its discretion by certifying this redefined class action, and HHSC's sole assigned error is overruled.

{¶ 53} Judgment affirmed.

TIM McCORMACK, P.J., and

SEAN C. GALLAGHER, J., CONCUR

      In Freeman v. Quicken Loans, Inc., 566 U.S. 624, 631, 132 S.Ct. 2034, 182 L.Ed.2d 955 (2012), the United States Supreme Court addressed "unearned fees" under 12 U.S.C.S. 2607(B), which governs real estate settlement procedures, and states that "No person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service in connection with a transaction involving a federally related mortgage loan other than for services actually performed." The Freeman court stated that the statute "unambiguously covers only a [real estate] provider's splitting of a fee with one or more persons; it cannot be understood to reach a single provider's retention of an unearned fee." Although the Supreme Court found that the statute did not prohibit unearned fees as long as they were undivided, the issue in the case at hand concerns liability under common law fraud and unjust enrichment theories, rather than liability under 12 U.S.C.S. 2607(B).

      In Cantlin v. Smythe Cramer Co. , 8th Dist. Cuyahoga No. 103339, 2016-Ohio-3174, 2016 WL 3018588, ¶ 33, this court referred to the language "a brokerage commission of seven percent (7%) of the sales price and $225" as a "hybrid commission fee" and found that this type of fee is "inconsistent" with claims for fraud.

      HHSC briefly argues that named-plaintiffs Cantlin and Hong are also atypical because of the placement and categorization of the Fee on their HUD-1. However, this court made it clear that "the HUD-1, standing alone, does not constitute generalized evidence that proves or disproves the elements of fraud * * *." Cantlin I at ¶ 28.