[Cite as Booker v. Beauty Express Salons, Inc., 2018-Ohio-581.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105456




                                    SHERITA BOOKER

                                                            PLAINTIFF-APPELLANT

                                                      vs.

               BEAUTY EXPRESS SALONS, INC., ET AL.

                                                            DEFENDANTS-APPELLEES



                                    JUDGMENT:
                              REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-16-867751

        BEFORE: Jones, J., Keough, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: February 15, 2018
ATTORNEYS FOR APPELLANT

Lewis A. Zipkin
Andrea J. Latessa
In Son J. Loving
Zipkin Whiting Co., L.P.A.
3637 South Green Road
Beachwood, Ohio 44122


ATTORNEYS FOR APPELLEES

James H. Grove
R. Christopher Yingling
Nicola Gudbranson & Cooper
Republic Building, Suite 1400
25 West Prospect Avenue
Cleveland, Ohio 44115

Amy Berman Hamilton
3300 BP America Building
200 Public Square
Cleveland, Ohio 44114
LARRY A. JONES, SR., J.:

       {¶1} In this appeal, plaintiff-appellant Sherita Booker (“Booker”) challenges the

trial court’s January 13, 2017 judgment that granted the motion to stay the case pending

arbitration that was filed by defendants-appellees Beauty Express Salons, Inc. and Leslie

Pope (“Pope”).        For the reasons that follow, we reverse and remand for further

proceedings.

Procedural Background

       {¶2} Booker, an African-American, filed this action in 2016, after her June 2015

termination as a hair stylist for Beauty Express Salons (“Beauty Express”).           At all

relevant times, Pope was the store manager at the salon; she supervised Booker and

terminated her employment.

       {¶3} Booker’s complaint set forth claims for relief based on the following: (1) race

discrimination-disparate treatment; (2) race discrimination-hostile work environment; (3)

retaliation; (4) negligent retention and supervision; and (5) intentional infliction of

emotional distress.

       {¶4} Beauty Express filed a motion to dismiss, or in the alternative to stay pending

arbitration.   Attached to its motion was an arbitration agreement purportedly signed by

Booker.    Booker opposed the motion, contending that she had “no specific or recollection

of the existence of the arbitration agreement, let       alone reviewing or signing” it, and

contended that the trial court had venue and subject-matter jurisdiction over her claims.

According to Booker, “arbitration is not appropriate.”
       {¶5} Booker contended that Beauty Express failed to authenticate the purported

agreement it attached to its motion, as required by Evid.R. 901(A).            She further

contended that, even if the agreement were authenticated, her intentional infliction of

emotional distress claim did not fall within the scope of the agreement and, therefore, the

trial court had jurisdiction over that claim.

       {¶6} Additionally, Booker claimed that the arbitration agreement was both

substantively and procedurally unconscionable.     She also contended that because Pope

did not sign the agreement, her claims against Pope were not subject to the agreement.

       {¶7} In response to Booker’s claim about the authenticity of the agreement it

submitted, Beauty Express filed an affidavit of Joni Jacobson (“Jacobson”), the senior vice

president for human resources for Beauty Express.       Jacobson averred that every new

employee is required to fill out certain documents, including an “employment agreement”

and an “arbitration agreement.”

       {¶8} According to Jacobson, “[e]xecution of the employment agreement and the

arbitration agreement by every applicant is a condition of employment.      Those who do

not complete the agreements cannot be hired.”    Jacobson also averred that the arbitration

agreement Booker signed had been maintained in her personnel file, as was the company’s

customary business practice, and that the signature on the agreement “matches the

signature on her other forms.” Booker sought to strike Jacobson’s affidavit.

       {¶9} Defendant Pope also filed a motion to dismiss, or alternatively to stay pending

arbitration, and “joined in” the arguments advanced by Beauty Express.
       {¶10} The trial court denied Booker’s request to strike Jacobson’s affidavit, and set

a hearing on the defendants’ motions; the hearing was to be limited to the issue of whether

there was a “valid and enforceable arbitration agreement between the parties.”

       {¶11} Prior to the date scheduled for the hearing, however, the defendants filed a

motion to cancel the hearing on the ground that the need for it was moot. Specifically, in

an email from Booker’s counsel to defense counsel, Booker’s counsel stated, “[w]e have

confirmed with Mrs. Booker that a handwriting expert will not be necessary at the hearing.

 Mrs. Booker does not contest that the signature [on the arbitration agreement] appears to

be hers * * *.”   Booker’s counsel stated that Booker wished to challenge “(1) the quality

of the arbitration agreement, (2) the circumstances surrounding execution of the arbitration

agreement, and (3) the provisions of the arbitration agreement.”

       {¶12} Booker opposed cancellation of the hearing, contending that the trial court

had set the hearing to determine whether there was a “valid and enforceable” arbitration

agreement between the parties.    Booker contended that although the “mere existence of

an arbitration agreement is not at question, * * * the validilty and enforceability of said

agreement, i.e., whether or not the agreement is unconscionable, is at issue.”

       {¶13} Booker also filed her own affidavit, wherein she averred to the circumstances

surrounding her signing the arbitration agreement.     Her averments included that (1) she

was instructed by Pope, without explanation, to fill out the “hiring papers” as Pope

“impatiently stood over [her] shoulder,” (2) she was dismissed by Pope when she asked

questions about the documents, (3) she was not aware that she was signing an arbitration
agreement and that had she known, she would not have signed it, and (4) the quality of

some of the documents she signed was “poor and illegible, making reading them nearly

impossible.”

       {¶14} In January 2017, the trial court issued the judgment that is the subject of this

appeal. In the judgment, the court stated that it had confirmed with Booker’s counsel that

Booker signed the arbitration agreement.       The court cancelled the previously scheduled

evidentiary hearing, because it found that the “reason for the hearing (the existence of the

arbitration agreement) is moot.”      The court further stated that it had “no jurisdiction to

question the validity and conscionability of an arbitration agreement. The only issue is

whether the parties had such an agreement.         Once the parties agree on its existence,

there’s no reason for the hearing.”    Thus, the trial court granted the defendants’ request to

stay the case pending arbitration.     Booker now appeals, and presents the following two

assignments of error for our review:

       I. The trial court erred in finding that it lacked jurisdiction to question the
       validity and conscionability of the alleged arbitration agreement.

       II.   The trial court erred in staying the case pending arbitration.

Law and Analysis

       {¶15} In her first assignment of error, Booker contends that the trial court

erroneously believed that it was without jurisdiction to determine the validity and

conscionability of arbitration agreements.     We agree with Booker that the trial court did

have jurisdiction to determine the validity and conscionability of the arbitration agreement,

and reverse the trial court’s judgment on that ground.
       {¶16} This court recently considered a case wherein an employee sued his former

employer for breach of contract and unjust enrichment.              Robinson v. Mayfield Auto

Group, L.L.C., 8th Dist. Cuyahoga No. 105844, 2017-Ohio-8739.                      The employer

contended that the employee was subject to mandatory arbitration under an agreement the

employee signed, and filed a motion to stay the proceedings pending arbitration.                 In

opposition to the motion, the employee acknowledged that he had signed the arbitration

agreement, but contended that it was not supported by consideration, and that it was

unenforceable because it lacked mutuality and was unconscionable.                 The trial court

granted the employer’s motion, and the employee appealed.

       {¶17} This court stated that, because arbitration is a matter of contract,1 “prior to

making any determination regarding the arbitrability of any issue, a court must first

determine whether the arbitration agreement is enforceable under basic contract precepts.”

 Robinson at ¶ 12, citing Skerlec v. Ganley Chevrolet, Inc., 8th Dist. Cuyahoga No. 98247,

2012-Ohio-5748, citing Council of Smaller Ents. v. Gates, McDonald & Co., 80 Ohio

St.3d 661, 665, 687 N.E.2d 1352 (1998).

       {¶18} Here, Booker ultimately conceded that she had signed the arbitration

agreement, but contended that it was not valid or conscionable. The trial court did have

jurisdiction to consider the validity and conscionability of the agreement, and erred by not

doing so prior to staying the proceedings.


       1
        Robinson at ¶ 12, citing Devito v. Autos Direct Online, Inc., 2015-Ohio-3336, 37 N.E.3d
194, ¶ 12 (8th Dist.), citing United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S.
574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960).
       {¶19} Although Beauty Express maintains that the trial court properly stayed the

proceedings, it contends that if we find that the trial court did have jurisdiction to

determine the validity and conscionability of the agreement, the appropriate remedy for us

would be to remand the case for further proceedings.       We agree; because the trial court

never passed judgment on those issues, it would not be proper for them to be determined in

the first instance on appeal.

       {¶20} In light of the above, the first assignment of error is sustained, and the second

assignment of error is overruled as premature.

       {¶21} Judgment reversed; case remanded to the trial court for further proceedings

consistent with this opinion.

       It is ordered that appellant recover of appellees 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 Cuyahoga

County Court of Common Pleas 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.




LARRY A. JONES, SR., JUDGE

KATHLEEN ANN KEOUGH, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
