Deegan & McGarry v. Med-Cor

Patton, Judge. The trial court certified as a class of plaintiffs three law firms and all persons who were patients of twenty-seven hospitals in the Cleveland, Columbus, and Cincinnati metropolitan areas who had permitted their attorneys (whether named in the suit or not) to request their medical records from seven medical records services employed by the defendant hospitals. The dispositive issue, raised in plaintiffs’ motion to dismiss this appeal, is whether the class certification order is a final, appealable order. *452 The plaintiff class consists of patients and their attorneys who have requested medical records from defendant hospitals. The hospitals employ defendant records services that copy medical records for the hospitals. Plaintiffs allege that these services overcharge plaintiffs and at the same time kick back a portion of the fees they receive to the hospitals in the form of referral fees or free photocopies for other photocopy services required by the hospitals. Our appellate jurisdiction is limited to reviewing final orders. See Section 3(B)(2), Article IV, Ohio Constitution; R.C. 2505.03. A further limitation on our jurisdiction is contained in R.C. 2505.02, which defines a “final order” as (1) one that affects a substantial right in an action which in effect determines the action and prevents a judgment, (2) an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or (3) an order that vacates or sets aside a judgment or grants a new trial. 1 Because the order appealed from is the certification of a class pursuant to Civ.R. 23 (an order that neither determines the action nor vacates or sets aside a judgment), the finality of this appeal is governed by the language of R.C. 2505.02 that refers to an order that affects a substantial right made in a special proceeding. The first inquiry is whether the order was entered in a special proceeding. Polikoff v. Adam (1993), 67 Ohio St.3d 100, 108, 616 N.E.2d 213, 218, fn. 8. In Polikoff, the syllabus states, “Orders that are entered in actions that were recognized at common law or in equity and were not specially created by statute are not orders entered in special proceedings pursuant to R.C. 2505.02.” A two-step analysis is to be employed when determining whether an order has been entered in a special proceeding. First, the court must determine whether the action was recognized in equity, at common law, or established by special legislation. Id. at 107, 616 N.E.2d at 217-218. Second, the court must determine the nature of the relief sought, recognizing that a special proceeding is either a proceeding in which a party files a special petition seeking a remedy that was conferred upon that party, by statute or a proceeding that represents an essentially independent judicial inquiry. Id. In Blumenthal v. Medina Supply Co. (1995), 100 Ohio App.3d 473, 654 N.E.2d 368, we found that the grant of class certification was not a final appealable order under Polikoff because class action suits were known at common law; hence, they were not special proceedings as required by R.C. 2505.02. See, also, DeBaggis v. Smythe Cramer Co. (June 8, 1995), Cuyahoga App. No. 68332, unreported, at 2 *453 (“a grant of class certification is not a final appealable order”). Although this holding would seem dispositive of the motion to dismiss, defendants maintain that we may still consider this appeal because the relief sought by plaintiffs under the Ohio Consumer Sales Practices Act specifically relates to class actions for money damages under R.C. 1345.09(B). They maintain that certification of a class under that section may occur only after the court has found the substantive conduct at issue to be deceptive or unconscionable. Certification of a class under R.C. 1345.09(B) requires a prior determination that the act or practice violated R.C. 1345.02 or 1345.03. In the ordinary class action case, an order certifying the class does not determine the action because the court may decertify the class at any point in the proceedings. Blumenthal, supra, 100 Ohio App.3d at 475, 654 N.E.2d at 369-370, citing Dayton Women’s Health Ctr. v. Enix (1990), 52 Ohio St.3d 67, 76, 555 N.E.2d 956, 963-964 (Resnick, J., dissenting). The trial court’s order granting the motion to certify the class made no findings, much less the determination required by R.C. 1345.09(B). Nevertheless, the trial court may yet in its discretion decide that plaintiffs have not met or no longer meet the criteria of a class under Civ.R. 23 and decide to decertify the class, and such an order would have no effect on the substantive merits of plaintiffs’ claims. Defendants also argue that certification of the class could be made under R.C. 1345.09(B) only if the court determines that the alleged facts of the complaint in fact constituted violations of the Consumer Sales Practices Act. We disagree. The court’s certification of this class under R.C. 1345.09(B) does not constitute ipso facto proof of a Consumer Sales Practices Act violation by these particular defendants. Instead, it merely signifies judicial recognition that the practice complained of has previously been determined to be a violation, not that the specific allegations of the complaint are true by virtue of the class certification. For example, suppose a group of plaintiffs filed suit against a car dealership alleging that the dealership turned back odometers on all used cars it sold. That practice of turning back car odometers would be a violation of the Consumer Sales Practices Act, but it would remain a question for the trier of fact as to whether that particular car dealership engaged in the alleged violation. Accordingly, we find the court’s certification of this class did not constitute a final, appealable order. The motion to dismiss is granted. Cause dismissed. James D. Sweeney, C.J., concurs. Robert E. Holmes, J., concurs in part and dissents in part. *454 Robert E. Holmes, J., retired, of the Supreme Court of Ohio, sitting by assignment. Footnotes [1] Another limitation on appellate jurisdiction, not applicable to this appeal, is Civ.R. 54(B), which limits appellate jurisdiction to appeals where all claims against all parties have been adjudicated, unless the trial court certifies that there is no just reason for delay. Noble v. Colwell (1989), 44 Ohio St.3d 92, 540 N.E.2d 1381.