COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69757 FRANCES HAMILTON, ET AL. : : : PLAINTIFFS-APPELLANTS : JOURNAL ENTRY : v. : AND : : OPINION OHIO SAVINGS BANK : : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 3, 1996 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-86378. JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-appellants: Robert E. Sweeney, Esq., Robert E. Sweeney Co., L.P.A., 55 Public Square, Suite 1500, Cleveland, Ohio, 44113; Steven M. Weiss, Esq., Weiss, Kwait & Associates, 55 Public Square, Suite 1250, Cleveland, Ohio, 44113. For Defendant-appellee: Hugh M. Stanley, Jr., Esq., Irene C. Keyse-Walker, Esq., Arter & Hadden, 1100 Huntington Building, 925 Euclid Avenue, Cleveland, Ohio, 44115-1475; Marc W. Freimuth, Esq., Roy E. Lachman, Esq., Ohio Savings Plaza, 1801 East Ninth street, Cleveland, Ohio, 44114. SWEENEY, JAMES D., P.J.: Plaintiffs-appellants Mrs. Frances Hamilton and Mr. & Mrs. George and Barbara Seidel, through a class action suit originally filed on February 1, 1985 against defendant-appellee Ohio Savings Bank ("Bank"), with an amended complaint adding the Seidels as parties filed on April 29, 1985, allege a violation of the Truth- In-Lending Act (as set forth in 15 U.S.C. Section 1601, et seq., 1 hereinafter referred to as "TILA") , breach of written contract, 1 The general grounds for the action alleges defendant- appellee failed "to disclose that it was calculating interest on its mortgage notes in such a way as to result in a balloon payment or overcharge at the retirement or discharge" of the loan. See Hamilton v. Ohio Savings Bank (September 17, 1992), Cuyahoga App. No. 61908, unreported, at 1, 1992 WL 227894 (hereinafter referred to as "Hamilton I"). The factual basis for the action was succinctly stated in Hamilton II, infra, at 137- 138 as follows: Hamilton's mortgage was for the principal sum of $44,000 and was to be payable in consecutive monthly installments of $364.79 with the "remaining balance, of principal and interest, if any," payable at the end of the twenty-nine-year mortgage term. The stated interest rate was 9.25 percent. The Seidel mortgage secured a principal amount of $32,400 with monthly payments of $262.76 over a period of twenty-nine years. The Hamilton mortgage was executed in September 1976 and the Seidel mortgage was signed in August 1977. Both mortgages contained the following language regarding interest calculation: "Such interest shall be computed monthly by (i) obtaining a daily interest factor based upon a 360-day year, (ii) multiplying such factor by the actual number of days in each calendar month, and (iii) applying the - 3 - fraud, unjust enrichment, conversion, estoppel, detrimental result against the unpaid balance of this note outstanding on the last day of each month." "Regulation Z" consumer disclosure notices, pursuant to Section 226.1 et seq., Title 12, C.F.R., were provided to both mortgagors. The record contains two different Hamilton Regulation Z forms. One is attached to the appellee's motion for summary judgment and is entitled "Joint Appendix Exhibit 'E'." On this form a typewritten notation was included that stated "THE CONTRACT INTEREST RATE IS 9.25% (365/360 method)." The second Regulation Z form is attached as plaintiff's Exhibit 4 to the deposition of Judy Ledin. The same typewritten language is included but it would appear that the "365/360" language was altered to read "360/360." Given the state of these documents, it is difficult to ascertain exactly what was done. The Seidel Regulation Z form does not indicate how interest will be calculated. Ultimately, another Ohio Savings mortgagor, John P. Clark, who holds degrees in both mathematics and economics, discovered that when the 365/360 method of interest calculation is used, the stated interest rate was less than that actually charged and paid to the bank. Based on this theory, the appellants claim that the actual rate of interest on the Hamilton note became 9.37 percent rather than 9.25 percent, and on the Seidel note, 9.12 percent rather than nine percent. Additionally, because the bank had based the monthly payment on a 360/360 calculation, both notes carried monthly payments that were insufficient to fully amortize the principal over the term of the loan. According to appellants [Hamilton and Seidels], this will result in outstanding balances at the end of the twenty-nine-year term on both notes, necessitating final payments of $6,493 on the Hamilton note and $4,702.34 on the Seidel note. - 4 - reliance and waiver. The plaintiffs had or hold Type 7 mortgage 2 notes with the Bank. The prospective class, as alleged by plaintiffs in their second amended complaint and as argued on appeal, is comprised of the following subclasses: 1. All Type 7 mortgage borrowers with retired loans containing understated monthly payments (this allegedly caused those borrowers to pay a partial balloon payment at the time the loan was paid off); 2. All Type 7 mortgage borrowers with outstanding loans containing understated monthly payments (this allegedly would cause those borrowers to pay a partial balloon payment at the time the loan is paid off); 3. All borrowers with retired loans executed after March of 1978 whose interest rate was a set percentage "per annum" in the note but where the Bank used the 365/360 method to calculate interest on the note (this allegedly caused the borrower to pay less in monthly interest than required by the note to fully amortize the loan, thereby resulting in a partial balloon payment at the term of the note); and, 4. All borrowers with outstanding loans executed after March of 1978 whose interest rate was a set percentage "per annum" in the note but where the Bank used the 365/360 method to calculate interest on the note (this allegedly would cause the borrower to pay less in monthly interest than required under the note to fully amortize the loan, thereby resulting 2 Mrs. Hamilton's loan is retired by virtue of having been refinanced in mid-1981 prior to the term of the original note. The Seidel's loan is still outstanding. - 5 - in a partial balloon payment at the term of the note). As claimed by plaintiffs, there are approximately 2,700 borrowers holding Type 7 loan agreements which were executed prior to March of 1978, all with understated monthly payments to the Bank. The Bank filed a counterclaim for reformation, alleging mutual mistake in the making of the residential mortgage notes in the failure to include in the monthly payment a sufficient amount to fully amortize the loan, but this counterclaim was dismissed pursuant to Civ.R. 12(B)(6) on October 13, 1988. For the reasons adduced below, we affirm in part and reverse in part and remand. A review of the record on appeal indicates that the trial court granted summary judgment on May 15, 1991, in favor of movant- Bank, without having reached the class certification issue. Plaintiffs appealed the granting of summary judgment to this court, which affirmed the trial court decision, finding that the TILA claim was time barred and the remaining claims were properly resolved through the use of summary judgment. See Hamilton I. Plaintiffs appealed Hamilton I to the Supreme Court, which reversed the opinion of this court in Hamilton v. Ohio Savings Bank (1994), 70 Ohio St.3d 137 (hereinafter referred to as "Hamilton II") and remanded the case to the trial court for further proceedings. 3 There are approximately thirty (30) other categories of mortgage loans covered by subclasses 3 and 4, but the precise numbers of borrowers covered by subclasses 3 and 4 is uncertain. Additionally, plaintiffs admit that subclasses 3 and 4 only have a cause of action for breach of contract, not TILA claims. - 6 - With the case once again before the trial court, and a trial date tentatively scheduled for August 7, 1995, the court took up the motion of plaintiffs for certification of the class, which motion had been pending since June 2, 1986. Following supplementation of the parties' briefs relative to certification, the trial court continued the trial date, and on October 20, 1995, without opinion or elucidation and using a half-sheet status form order, denied the motion to certify the class. Plaintiffs timely appealed this denial of class certification to this court in the present notice of appeal (hereinafter referred to as "Hamilton III"), presenting two assignments of error, which will be discussed jointly. I THE LOWER COURT ERRED IN FAILING TO CERTIFY A CLASS ACTION PURSUANT TO OHIO CIV.R. 23(B)(2). II THE LOWER COURT ERRED IN FAILING TO CERTIFY A CLASS ACTION PURSUANT TO OHIO CIV.R. 23(B)(3). The standard of review for an appeal from a decision regarding class certification is whether the trial court abused its discretion, which necessarily involves a determination as to whether the denial of certification was arbitrary, unreasonable or unconscionable. Gulf Oil Co. v. Bernard (1981), 452 U.S. 89, 100, 68 L.Ed.2d 693, 101 S.Ct. 2193; Marks v. C.P. Chemical Co. (1987), 31 Ohio St.3d 200; Shaver v. Standard Oil Co. (Huron, 1993), 89 Ohio App.3d 52, 55-56, appeal to the Supreme Court dismissed in - 7 - (1993), 67 Ohio St.3d 1478; Lowe v. Sun Refining & Marketing Co. (Lucas, 1992), 73 Ohio App.3d 563; Duvall v. TRW, Inc. (Cuyahoga, 1991), 63 Ohio App.3d 271; James v. ITT Financial Services (January 13, 1994), Cuyahoga App. No. 64547, unreported, 1994 WL 11324. Additionally, a "court cannot reach the merits of a litigant's claims in determining class certification." Shaver, supra at 798, citing Ojalvo v. Bd. of Trustees of Ohio State Univ. (1984), 12 Ohio St.3d 230, 232. Civ.R. 23 provides in pertinent part the following: (A) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. (B) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (A) are satisfied, and in addition: (1) the prosecution of separate actions by or against individual members of the class would create a risk of (a) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or (b) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or - 8 - substantially impair or impede their ability to protect their interests; or (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or (3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (a) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (b) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (c) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (d) the difficulties likely to be encountered in the management of a class action. (Underline added.) * * * Applying the language of Civ.R. 23, plaintiffs must demonstrate seven elements to be entitled to class certification. Warner v. Waste Mgt., Inc. (1988), 36 Ohio St.3d 91; Shaver v. Standard Oil Co., supra, at 56. Four elements are expressly mentioned in Civ.R.23(A)(1)-(4), namely, numerousity of the class 4 so as to make the joinder of all members impracticable , common questions of law or fact within the class, typicality of claims or 4 "'Impracticable' does not mean 'impossible.'" Planned Parenthood Assn. of Cincinnati v. Project Jericho (1990), 52 Ohio St.3d 56, 64, citing Gentry v. C & D Oil Co. (W.D.Ark. 1984), 102 F.R.D. 490, 493. - 9 - defenses between those of the representatives and those of the class, and adequate class representation so as to protect the interests of the class. Id. Two elements are implicit within Civ.R. 23(A), namely, (a) that the class be identifiable and the definition of the class be unambiguous, and (b) that the class representative(s) be a member (or members) of the class. Id. The final element is a determination that one of the three requirements contained in Civ.R.23(B)(1)-(3) is met. Id. At this point we will examine the present case for the presence of the seven factors mentioned in the previous paragraph. Without doubt, this review process is complicated where the trial court, as is the case here, has not provided the basis for its decision in denying the motion for certification. First, the Type 7 mortgage holders (retired loans and existing loans) alone would contain a class of approximately 2,700 persons. Accordingly, there is no reasonable argument that the potential class is not so numerous as to satisfy the numerousity requirement of Civ.R. 23(A)(1). Thus, the numerousity factor has been demonstrated. In regard to the requirement contained in Civ.R.23(A)(2), we note that: Courts generally have given a permissive application to the commonality requirement in Civ.R. 23(A)(2). See Marks v. C.P. Chemical Co. (1987), 31 Ohio St.3d 200, 31 OBR 398, 509 N.E.2d 1249. This prerequisite has been construed to require a "'common nucleus of operative facts.'" Marks, supra, at 202, 31 OBR at 400, 509 N.E.2d at 1253. - 10 - Warner v. Waste Mgt., Inc., supra, at 97. In the present case, by plaintiffs'-appellants' own admission throughout its appellate brief, plaintiffs have alleged a number of causes of action sounding in contract and tort concerning four subclasses of potential plaintiffs, with some of these causes of action applying to some of the subclasses of potential plaintiffs, but not to others. It is not required by Civ.R. 23(A)(2) that all questions of fact and law be common, rather what is required is that a question of law or fact be presented which is shared within the claims of the potential class. See 3B Moore's Federal Practice (1985), Paragraph 23.06-1, at 23-173 (which interprets the identical Federal counterpart to the Ohio rule). Furthermore, Potential dissimilarity in the remedies and the varying amounts of damages sought by the named plaintiffs does not prohibit a class action where the complaint establishes a common course of conduct giving rise to the legal rights sought to be enforced by the class. (Citations omitted.) Miles v. N.J. Motors (1972), 32 Ohio App.2d 350, headnote number two. The "common nucleus of facts" attendant to these claims and subclasses is that the Bank allegedly promulgated an amortization failure within the mortgages through the charging of excessive interest so as to cause a partial balloon payment towards principal at the end of the loan to cure the amortization failure. Accordingly, commonality of fact has been demonstrated. - 11 - The third factor is whether the claims or defenses of the representatives are typical of the claims or defenses of the class. This factor is satisfied where there is no express conflict between the representatives and the class. Warner v. Waste Mgt., Inc., supra, at paragraph four of the syllabus. The Hamilton loan is typical of those class members whose loans which have an amortization failure and have been retired. The Seidel loan is typical of those class members whose loans have an amortization failure and are still outstanding. In the case of both types of loans (retired or outstanding), the party and class member have a similar interest in preventing or recouping an overpayment on their loan in the form of an undisclosed balloon payment where the purpose was to fully amortize the loan. Accordingly, the typicality factor has been demonstrated. The fourth factor is whether the moving parties will fairly and adequately represent the interests of the potential class. Adequacy of representation contains two parts: adequacy of the representatives and adequacy of counsel. Warner v. Waste Mgt., Inc., supra, at 98. "A representative is deemed adequate so long as his interest is not antagonistic to that of the other class members." Id., citing Marks v. C.P. Chemical Co., supra, at 203. Notwithstanding the differing defenses which may be available to the Bank for the individual claims of the class members, we can discern little antagonism between the interests of the representatives and the class members. Both groups have coinciding - 12 - interests under whatever legal theory of recovery advanced by the particular representative/class member, namely, to recoup any overpayments of interest and prevent balloon payments from occurring at the term of the loans. Similarly, there is no serious demonstration to disprove the adequacy of counsel, as far as ability and expertise, for the class. Messers. Robert E. Sweeney and Steven M. Weiss each have professional experience in this county as counsel in class action lawsuits. As for Mr. Sweeney, he has been counsel, or is involved as counsel, in the following class actions: Cleveland Bd. of Edn. v. Armstrong World Indus., Inc. (Cuyahoga C.P., 1985), 22 Ohio Misc.2d 18 (asbestos contaminated schools); Wade v. Cuyahoga Metropolitan Housing Authority (N.D.Ohio Case No. 1:92-CV-1596)(lead exposure); and, In re Asbestos School Litigation (E.D.Pa. Case No. 83-0268)(asbestos abatement/removal from schools). As for Mr. Weiss, he has been counsel in the following class action cases: Marks v. C.P. Chemical Co., supra; and, Morris v. Ohio Savings Assn. (Cuyahoga County Common Pleas Case No. 034524). Additionally, there is no evidence to demonstrate that there is a danger of a collusive suit which is potentially detrimental to the rights of the class. See Vinci v. American Can Co. (1984), 9 Ohio St.3d 98, 100-101. Accordingly, the Civ.R. 23(A)(4) requirement is satisfied. The fifth factor, which is implicit within Civ.R. 23(A), concerns whether the definition of the class is unambiguous and whether the potential class is identifiable "within a reasonable - 13 - effort." Warner v. Waste Mgt., Inc., supra, at 96. In the present case, the class is adequately defined by virtue of the four subclasses previously noted in this opinion. Appellee-Bank argues that the potential class is not identifiable with reasonable effort due to the sheer volume of loan records which would have to be examined using a number of variables in the search parameters. Appellee's brief at 23-24. This argument seems a bit disingenuous when one considers that the Bank, whose operations have the capability and benefit of computer technology, identified with little trouble the approximately 2,700 Type 7 loans in an earlier search of its computerized records. In the modern world, particularly in areas of finance where electronic technology exhibits its ultimate expression of speed and ease of use in data transfer and information access, we have no doubt that the search parameters can be modified with reasonable effort to identify those loans in the Bank's records which would fall within the subclasses defined by the representatives of the class. Finally, it is not contested that the representatives are not members of the potential class. Accordingly, we find that appellants have demonstrated the implicit requirements contained in this sixth factor. Turning our attention to the seventh, and final, factor, we note that Civ.R. 23(B)(1) is not alleged as a basis for class certification by the plaintiffs in their amended complaint and is not argued by the parties on appeal. Thus, we need only address the application of Civ.R. 23(B)(2) and (3), which is argued. - 14 - As professed in Warner v. Waste Mgt., Inc., supra, at 95, Civ.R. 23(B)(2)'s principal application is to lawsuits seeking injunctive relief. In the present case, those representatives seeking injunctive relief, in the form of requiring the Bank to recalculate the interest rate on the loans and further preventing the Bank from making future miscalculations of the interest rate, include only those borrowers with outstanding loans as contained in subclasses 2 and 4. See the second amended complaint's prayer for relief at roman numerals V and VI. Appellee, relying upon James v. ITT Financial Services, supra, argues that certification under this subsection of the civil rule is improper for the case before us because the action as a whole was not primarily for injunctive relief. Reliance on James is misplaced in that James contained no subclasses of class members, as is the practice in the present case. This allowance of certification of subclasses, between those classes seeking primarily injunctive relief and those classes seeking primarily monetary damages, was recognized in Warner for purposes of defusing manageability problems and allowing class certification pursuant to Civ.R. 23(B)(2). Accordingly, subclasses 2 and 4 (those borrowers with outstanding loans) are subject to class certification pursuant to Civ.R. 23(B)(2) where they sought primarily injunctive relief. The following was stated by the Warner court at pages 95-96 of that opinion in regard to Civ.R. 23(B)(3): The Rule 23(B)(3) action is the so-called "damage" action. Rule 23(B)(3) requires two - 15 - findings by the court: that the common questions predominate over questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Professor Miller states, "[t]he key should be whether the efficiency and economy of common adjudication outweigh the difficulties and complexity of individual treatment of class members' claims." (Footnote omitted, underline added.) In addition to these two findings regarding predominance of common questions and superiority of a class action over separate actions, this section of the rule, at (B)(3)(a)-(d), provides a non-exhaustive list of factors relevant to the determination of these findings required by Warner. In applying the standard under this section of the rule, we note the following: Thus, while what is meant by "predominate" is not made clear by the rule, it is generally held that in determining whether common questions of law or fact predominate over individual issues, it is not sufficient that common questions merely exist; rather, the common questions must represent a significant aspect of the case and they must be able to be resolved for all members of the class in a single adjudication. And, in determining whether a class action is a superior method of adjudication, the court must make a comparative evaluation of the other procedures available to determine whether a class action is sufficiently effective to justify the expenditure of judicial time and energy involved therein. Wright & Miller, Federal Practice and Procedure (1972) 59, Section 1779. Schmidt v. Avco Corp. (1984), 15 Ohio St.3d 310, 313. By virtue of the applicability of section (B)(3) to classes involving claims for damages, as opposed to injunctive relief for those subclasses having outstanding loans, this section of the rule - 16 - applies to those subclasses herein (subclasses 1 and 3) which have retired mortgage loans. In carefully reviewing the record, it is readily apparent that the statute of limitations issue, and the equitable tolling thereof, applicable to each individual member of these subclasses predominates over the common questions of the subclass. Resolution of the statute of limitations issue, by virtue of the myriad factual patterns affecting the determination of when the borrower discovered or should have discovered the amortization problem in their loans, necessarily involves an independent inquiry for each potential member of the subclass. Accordingly, the trial court, in its discretion, properly denied class certification to those borrowers with retired mortgage loans on the basis of failing to demonstrate compliance with Civ.R. 23(B)(3). In summary, the trial court properly denied class certification to those subclasses with retired mortgage loans, but erred in not certifying those subclasses with outstanding mortgage loans. Upon remand, the trial court is directed to certify the subclasses with outstanding mortgage loans. Judgment affirmed in part and reversed in part and remanded. - 17 - This cause is affirmed in part and reversed in part and remanded. The court finds there were reasonable grounds for this appeal. It is, therefore, considered that said appellant(s) and appellee(s) each pay one-half of the costs herein. It is ordered that a special mandate be sent to said 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. Exceptions. JAMES M. PORTER, J., CONCURS; DIANE KARPINSKI, J., CONCURS IN PART AND DISSENTS IN PART; SEE CONCURRING AND DISSENTING OPINION ATTACHED. JAMES D. SWEENEY PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69757 : FRANCES HAMILTON, ET AL. : : : CONCURRING Plaintiffs-Appellants : : AND v. : : DISSENTING OHIO SAVINGS BANK : : OPINION : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 3, 1996 KARPINSKI, J., CONCURRING IN PART AND DISSENTING IN PART: I concur with the majority's decision to certify the class regarding the second and fourth subclasses; however, I dissent regarding the majority's decision not to certify the class regarding the first and third subclasses. In other words, I would certify the entire prospective class in the case at bar. In denying class certification to subclasses one and three, those borrowers with retired loans, the majority states as follows: In carefully reviewing the record, it is readily apparent that the statute of limitations issue, and the equitable tolling thereof, applicable to each individual member of these subclasses predominates over the common questions - 2 - of the subclass. Resolution of the statute of limitations issue, by virtue of the myriad factual patterns affecting the determination of when the borrower discovered or should have discovered the amortization problem in their loans, necessarily involves an inquiry for each potential member of the subclass. (Majority Op. at 16.) This reason is not sufficient to deny class certification to these classes. First, "[t]he commencement of a class action tolls the statute of limitations as to all asserted members of the class until the class member exercises his right to opt out because, before this time, the class member is deemed to be actively prosecuting his rights." Beavercreek Local Schools v. Basic, Inc. (1991), 71 Ohio App.3d 669, 689. The case at bar was filed on February 1, 1985; therefore, the statute of limitations is tolled on this date. Presumably, there are borrowers in subclasses one and three who have retired loans, but the loans were retired after 1985. For these borrowers, the statute has been tolled. Identifying these borrowers will not be difficult and, therefore, they should be allowed to join the class. Second, class certification should not be denied to the first and third subclasses, because the statute of limitations issue does not predominate over the common questions of the subclass. The Supreme Court has already guided the trial court as to the specific standard that needs to be applied to each plaintiff to determine whether statute of limitations will bar each claim. On remand, the trial court should determine when the appellants could reasonably have discovered the divergent terms of the mortgage, note and disclosure forms and whether they filed this action within one year from that date. - 3 - Hamilton v. Ohio Savings Bank (1994), 70 Ohio St.3d 137, 140. To resolve the statute of limitations issue, the trial court will have to apply the same standard to each plaintiff in subclasses one and three. Civ.R. 23(B)(3) requires the court to weigh whether the individual questions predominate over the common questions of the class. Regarding this weighing, the staff notes to Federal Rule 5/ 23(B)(3) provide the following direction: The court is required to find, as a condition of holding that a class action may be maintained under this subdivision, that the questions common to the class predominate over the questions affecting individual members. It is only where this predominance exists that economies can be achieved by means of the class-action device. In this view, a fraud perpetrated on numerous persons by the use of similar misrepresentations may be an appealing situation for a class action, and it may remain so despite the need, if liability is found, for separate determination of the damages suffered by individuals within the class. On the other hand, although having some common core, a fraud case may be unsuited for treatment as a class action if there was material variation in the representations made or in the kinds or degrees of reliance by the persons to whom they were addressed. Federal Rules Advisory Committee's Note, Federal Rule 23, As Amended and Effective, July 1, 1966. The case at bar is not a case in which each potential class member has different issues that predominate over the common issues. This case has potential class members who need the same issue resolved applying the same standard. Therefore I would reverse and certify the entire prospective class. .