COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68332 PAUL DEBAGGIS, ET AL. : : ACCELERATED DOCKET : PLAINTIFFS-APPELLANTS : JOURNAL ENTRY : v. : AND : SMYTHE CRAMER COMPANY : OPINION : : PER CURIAM DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: JUNE 8, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-267556. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: David H. Wallace, Esq. Collen Tremel, Esq. Kelley, McCann & Livingstone 35th Fl., BP America Building 200 Public Square Cleveland, OH 44114-2302 Diane O. Leasure, Esq. Fossett & Brugger Chartered The Aerospace Building 10210 Greenbelt Road Seabrook, MD 20706 For Defendant-Appellee: John J. Eklund, Esq. Thomas I. Michals, Esq. Calfee, Halter & Griswold 800 Superior Avenue, Suite 1800 Cleveland, OH 44114 -3- PER CURIAM: This case came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the record from the Cuyahoga County of Common Pleas, the briefs and oral argument of counsel. On March, 29, 1994, plaintiffs-appellants, Paul DeBaggis, et al., instituted this action against defendant-appellee, Smythe, Cramer Co., seeking damages for breach of fiduciary duty. The fiduciary duty stems from a standard form listing agreement whereby appellee would sell appellants' real property. Pursuant to the standard practice within the real estate business, the appellee herein listed homes with the local multiple listing service. This data base provides every real estate broker and sales agent information regarding the homes actively listed. If the home is sold by another realtor, the commission would be split between the realtor selling the property and the realtor listing the property. Appellant, Paul DeBaggis, claims that during the four year period prior to the filing of the complaint the appellee adhered to a business practice known as "adverse commission splits" in which certain targeted real estate brokerage firms were told if they cooperated in the sale of properties listed by the appellee, they would receive substantially less commission than what is customarily given under the local multiple service listing arrangement. This practice had the effect of discouraging targeted realtors from bringing their buyers to see homes listed through the appellee. Appellant, Paul DeBaggis, claims appellee, Smythe Cramer -4- Company, breached its fiduciary duty to act in his best interest, by failing to disclose this practice and its effect. On June 29, 1994, appellant, Paul DeBaggis, motioned for class certification pursuant to Civ.R. 23. The proposed class was identified as follows: All those persons and entities, who, within the four (4) year period of the time prior to the filing of the Complaint, owned real properties in Cuyahoga, Geauga, Summit, Stark, Lorain, Lake, Medina and/or Portage County and listed such real properties for sale with Smythe, Cramer Co., which real properties were ultimately sold during the time period that Smythe, Cramer Co. was employed as the listing broker or for which commissions were earned by Smythe, Cramer Co., as a result of Plaintiffs' real properties being listed for sale with Smythe, Cramer Co. and who failed to receive a full and adequate disclosure from Smythe, Cramer Co. as to the existence, consequences and effect of its punitive adverse commission splits practice. Appellee, Smythe Cramer Company, opposed class certification arguing appellant failed not only to properly identify the class, but also failed to meet the prerequisites for certification as set forth in Civ.R. 23. On December 1, 1994, plaintiff- appellant's, Paul DeBaggis, motion for class certification was denied. Appellant timely filed this appeal. THE COURT OF COMMON PLEAS ERRED AND ABUSED ITS DISCRETION IN DENYING CERTIFICATION OF A CLASS ACTION PURSUANT TO CIV.R. 23. Before reaching the merits of the appeal, we must determine whether or not the denial of appellant's motion for class certification is a final appealable order. R.C. 2505.02 defines -5- a final appealable order as either: 1) an order 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. Initially we note the Ohio Supreme in Polikoff v. Adam (1993), 67 Ohio St.3d 100, has redefined what constitutes a "special proceeding" for purposes of R.C. 2505.02. Under this test, a grant of class certification is not a final appealable order. See Mark Blumenthal, et al., v. Medina Supply Company (January 19, 1995), Cuyahoga App. No. 67454, unreported. However, we believe the holding in Polikoff does not apply to a trial court's order denying class certification. While a granting of class certification must be reviewed under the second prong of R.C. 2505.02, the denial of a motion for class certification has been held to constitute under the first prong of R.C. 2505.02 an order which affects a substantial right in an action which in effect determines the action and prevents a judgment. See Roemisch v. Mut. of Omaha Ins. Co. (1974), 39 Ohio St.2d 119; Klocke v. A & D Ltd. Partnership (1993), 90 Ohio App.3d 317. "To hold otherwise would effectively place the existence of class actions in the unreviewable discretion of trial courts." Roemisch v. Mut. of Omaha Ins. Co., 39 Ohio St.2d at 124. Thus the trial court's order denying a motion for class certification -6- pursuant to Civ.R. 23 is a final appealable order and, as such, is properly before this court. It is well established that a trial court has broad discretion in determining whether a class action may be maintained. Marks v. C.P. Chemical Co. (1987), 31 Ohio St.3d 200. As such, a trial court's denial of a motion for class certification can only be reversed upon a showing of abuse of discretion. Planned Parenthood Assn. of Cincinnati, Inc. v. Project Jericho (1990), 52 Ohio St.3d 56. The term abuse of discretion connotes more than merely an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Ojalvo v. Bd. of Trustees of Ohio State Univ. (1984), 12 Ohio St.3d 230; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. "In order to maintain a class action, the requirements of Civ.R. 23(A) and 23(B) must be met." Schmidt v. Avco Corp. (1984), 15 Ohio St.3d 310, 313. The determination must be made on a case-by-case basis with the burden of proof falling upon the party seeking class certification. State, ex rel. Organ v. Teater (1978), 54 Ohio St.2d 235; Warner v. Waste Management, Inc. (1988), 36 Ohio St.3d 91. In denying appellant's motion for class certification, the trial court held appellant "failed to come forward with evidence which showed the numerosity as required. *** Without such evidence this court *** would be forced to guess at whether or not the numerosity requirement has been met." The court held -7- since the numerosity issue of Civ.R. 23(A)(1) had not been met, there was no need for further inquiry. In construing the numerosity requirement, courts have not been held to numerical limits. Marks, supra. Nor must prospective members of the class have knowledge they are entitled to pecuniary redress. Ojalvo v. Bd. of Trustees of Ohio State Univ. (1984), 12 Ohio St.3d 230. What is required of a party seeking class certification is to provide a means by which to identify members of the proposed class. Planned Parenthood Assn. of Cincinnati, Inc., supra. Plaintiff-appellant, Paul DeBaggis, argued the number of class members can be determined through a review of appellee's customer records and narrowed down to those who signed a listing agreement within the last four years as of the filing date of his complaint. Appellant claims since he provided evidence establishing appellee's policy not to disclose their practice of "adverse split commissions", all those who signed a listing agreement would have been harmed. We find appellant's argument to be without merit. We agree with appellant had there been an established policy of withholding this information from all clients who signed a listing agreement, the numerosity requirement would have been met. See Planned Parenthood Assn. of Cincinnati, Inc., supra. However, as presented in appellee's "Brief in Opposition to Plaintiff's Motion For Class Certification", the "Exclusive Right to Sell Agreement" disclosed appellee's right to determine, at -8- its sole discretion, with which real estate companies it will cooperate and that it may share less of its commission, but not more, than the amount specified by the seller. In this case, appellant-seller specified an amount of fifty percent (50%) and provided his signature. From a review of the record we cannot agree with appellant that he was not notified of the possibility of appellee's "adverse commission splits". Further, appellant has failed to establish a policy of withholding such information. As such, the trial court did not abuse its discretion in denying appellant's motion for class certification. Judgment affirmed. -9- It is ordered that appellee recover of appellant, Paul DeBaggis, its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SARA J. HARPER, PRESIDING JUDGE DAVID T. MATIA, JUDGE JAMES M. PORTER, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate .