[Cite as Lavelle v. Henderson, 2016-Ohio-5313.]


STATE OF OHIO                    )                     IN THE COURT OF APPEALS
                                 )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

PATRICK J. LAVELLE, et al.                             C.A. No.   27921

        Appellants

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
ROBERT HENDERSON dba Renew Home                        COURT OF COMMON PLEAS
Design                                                 COUNTY OF SUMMIT, OHIO
                                                       CASE No.   CV 2015-04-2499
        Appellee

                                DECISION AND JOURNAL ENTRY

Dated: August 10, 2016



        MOORE, Judge.

        {¶1}     The plaintiffs, Patrick and Mary Jo Lavelle, appeal from the judgment of the

Summit County Court of Common pleas, which stayed the proceedings and compelled

arbitration. We affirm.

                                                  I.

        {¶2}     On April 24, 2015, the Lavelles filed a complaint against Robert Henderson dba

Renew Home Design. In their complaint, they alleged that they entered into a contract with Mr.

Henderson to perform renovation and construction work to their home, which included the

construction of a two-story addition. The contract attached to the complaint provided that the

Lavelles would pay Mr. Henderson $60,000 for this work. Under the terms of the agreement,

Mr. Henderson was to commence work within three days of permits being issued. However, the

Lavelles maintained that the permits were issued on December 12, 2014, but Mr. Henderson did

not begin work until January 12, 2015. Further, the Lavelles maintained that Mr. Henderson
                                                 2


ultimately refused to complete the agreed work, despite the Lavelles having tendered to him

$34,226 in payments. Based upon these allegations, the Lavelles asserted claims under the Ohio

Consumer Sales Practices Act (“CSPA”) and the Home Solicitation Sales Act (“HSSA”), a claim

for breach of contract, and a claim for promissory estoppel.

       {¶3}    Thereafter, Mr. Henderson moved the court to stay proceedings and compel the

Lavelles to arbitrate their claims in accordance with a section of the contract which provides:

       Should any dispute arise relative to the performance of this contract that the
       parties cannot resolve, the dispute shall be referred to a single arbitrator
       acceptable to the builder and the buyer. If the builder and the buyer cannot agree
       upon an arbitrator, the dispute shall be referred to the American Arbitrator
       Association for resolution.

       All attorney fees that shall be incurred in the resolution of dispute shall be the
       responsibility of the party not prevailing to the dispute.

       {¶4}    The Lavelles responded by filing a brief in opposition to Mr. Henderson’s motion

to stay and compel arbitration. Therein, the Lavelles maintained that the “loser-pays” provision

for attorney fees was in conflict with the remedial purpose of the CSPA, which rendered the

arbitration clause, as a whole, unenforceable.

       {¶5}    In a journal entry dated July 31, 2015, the trial court granted the motion to stay

litigation and compel arbitration. The Lavelles timely appealed, and they now present one

assignment of error for our review.

                                                 II.

                                  ASSIGNMENT OF ERROR

       TRIAL COURT ERRED WHEN IT GRANTED [MR. HENDERSON’S]
       MOTION TO STAY AND COMPEL ARBITRATION[.]

       {¶6}    In their sole assignment of error, the Lavelles argue that the trial court erred in

granting Mr. Henderson’s motion to stay and compel arbitration.
                                                 3


       {¶7}    “When addressing whether a trial court has properly granted motions to stay

proceedings and compel arbitration, the standard of review is abuse of discretion.” Eagle v. Fred

Martin Motor Co., 157 Ohio App.3d 150, 2004-Ohio-829, ¶ 10 (9th Dist.), citing Carter Steel &

Fabricating Co. v. Danis Bldg. Constr. Co., 126 Ohio App.3d 251, 254-255 (3d Dist.1998).

However, at issue here is the enforceability of the arbitration clause as a matter of public policy,

which is a question of law. See Murray v. David Moore Builders, Inc., 9th Dist. Summit No.

23257, 2006-Ohio-6751, ¶ 8; Eagle at ¶ 11. “[W]hen an appellate court is presented with purely

legal questions, the standard of review to be applied is de novo.” Eagle at ¶ 11, citing Akron-

Canton Waste Oil, Inc. v. Safety-Kleen Oil Serv., Inc., 81 Ohio App.3d 591, 602 (9th Dist.1992).

“Under the de novo standard of review, an appellate court does not give deference to a trial

court’s decision.” Eagle at ¶ 11, citing Akron v. Frazier, 142 Ohio App.3d 718, 721 (9th

Dist.2001).

       {¶8}    “Ohio’s public policy encourages arbitration as a method to settle disputes.”

Eagle at ¶ 14, citing Schaefer v. Allstate Ins. Co., 63 Ohio St.3d 708, 711-712 (1992).

Accordingly, there exists a presumption in favor of arbitration when the disputed issue falls

within the scope of the arbitration agreement. Eagle at ¶ 14, citing Williams v. Aetna Fin. Co.,

83 Ohio St.3d 464, 471 (1998). Arbitration agreements are “valid, irrevocable, and enforceable,

except upon grounds that exist at law or in equity for the revocation of any contract.” R.C.

2711.01(A); Eagle at ¶ 16.

       {¶9}    Here, the trial court compelled arbitration after determining the arbitration clause

was not unconscionable. Although some contracts may ostensibly provide for arbitration, “[a]n

unconscionable provision is clearly unenforceable.” Eagle at ¶ 29. Unconscionability consists

of two separate concepts: (1) unfair and unreasonable contract terms, i.e., substantive
                                                4


unconscionability; and (2) “an absence of meaningful choice on the part of one of the parties[,]”

i.e., procedural unconscionability. (Internal quotations and citation omitted.) Taylor Bldg. Corp.

of Am. v. Benfield, 117 Ohio St.3d 352, 2008-Ohio-938, ¶ 34; Eagle at ¶ 30. The party asserting

unconscionability of a contract bears the burden of proving “‘a quantum’ of both procedural and

substantive unconscionability.” Taylor Bldg. Corp. of Am. at ¶ 53.

       {¶10} Although the trial court used an unconscionability analysis in concluding the

arbitration clause was enforceable, the Lavelles maintain that they did not allege that the clause

was unenforceable due to unconscionability. Instead, they maintained that the arbitration clause

was unenforceable because it contained a “loser-pays” provision contrary to the public policy as

expressed in the CSPA, R.C. Chapter 1345.

       {¶11} The CSPA “is a remedial statute designed to compensate for traditional consumer

remedies.” Eagle, 157 Ohio App.3d 150, 2004-Ohio-829, at ¶ 24. “R.C. Chapter 1345 does not

expressly preclude arbitration clauses in consumer sales contracts.” Eagle at ¶ 27, citing Vincent

v. Neyer, 139 Ohio App.3d 848, 852 (10th Dist.2000). However, the Lavelles maintain that the

“loser-pays” provision contained within the arbitration clause is contrary to R.C. 1345.09(F).

R.C. 1345.09(F) provides that “[t]he court may award to the prevailing party a reasonable

attorney’s fee limited to the work reasonably performed and limited pursuant to section 1345.092

of the Revised Code, if either of the following apply: (1) The consumer complaining of the act or

practice that violated this chapter has brought or maintained an action that is groundless, and the

consumer filed or maintained the action in bad faith; (2) The supplier has knowingly committed

an act or practice that violates this chapter.” (Emphasis added.) Unlike R.C. 1345.09(F), under

the terms of the arbitration clause, the prevailing party is permitted to recover attorney fees

irrespective of whether the consumer has filed an action that is groundless or made in bad faith
                                                  5


or the supplier has knowingly committed an act that violates the CSPA. Accordingly, the

Lavelles argued that the arbitration clause violates the public policy concerns addressed by the

CSPA because it would have a chilling effect on consumers filing actions. See Eagle at ¶ 27

(although the CSPA does not preclude arbitration clauses in consumer sales contract, “[i]t is

important to safeguard the statute’s remedial and deterrent functions in the arbitration context.”)

       {¶12} Based upon their position that the loser-pays provision undermines a public policy

concern promoted by the CSPA, the Lavelles maintain that the arbitration provision is

unenforceable on this basis alone. Essentially, the Lavelles maintain that the unenforceability of

the arbitration clause on the basis of public policy is a distinct and separate rationale from that of

unenforceability on the basis of unconscionability. In support, the Lavelles cite an Eighth

District case, Hedeen v. Autos Direct Online, Inc., 8th Dist. Cuyahoga No. 100582, 2014-Ohio-

4200, for the proposition that, where an arbitration clause in a contract contains a loser-pays

provision in conflict with R.C. 1345.09(F), the arbitration clause is unenforceable in an action

brought under the CSPA. But see DeVito v. Autos Direct Online, Inc., 8th Dist. Cuyahoga No.

100831, 2015-Ohio-3336.

       {¶13} In concluding that a violation of public policy in a provision contained in the

arbitration clause rendered the arbitration clause unenforceable, Hedeen relied on this Court’s

decision in Eagle. In Eagle at ¶ 63, we stated: “A refusal to enforce a contract on the grounds of

public policy may be distinguished from a finding of unconscionability. Rather than focus on the

relationship between the parties and the effect of the agreement upon them, public policy

analysis requires the court to consider the impact of such arrangements upon society as a whole.”

See also Hedeen at ¶ 44. We further stated that “[w]hen an arbitration clause vanquishes the
                                                6


remedial purpose of a statute by imposing arbitration costs and preventing actions from being

brought by consumers, the arbitration clause should be held unenforceable.” Eagle at ¶ 68.

       {¶14} However, after Eagle, this Court explained that Eagle did not stand for the

proposition that, a party challenging the enforceability of an arbitration clause need only

establish that a provision in the arbitration clause inhibits the remedial nature of the CSPA.

Bozich v. Kozusko, 9th Dist. Lorain No. 09CA009604, 2009-Ohio-6908, ¶ 14-15. We explained

that, in Eagle, this Court determined “that the rules governing arbitration in that case violated

public policy and directly hindered the consumer protections afforded by the CSPA.” Bozich at ¶

15, citing Eagle, 157 Ohio App.3d 150, 2004-Ohio-829, at ¶ 61-74. “Consequently, we held [in

Eagle] that the arbitration provision was substantively unconscionable based on the arbitration

rules it employed.” (Emphasis added.) Bozich at ¶ 15, citing Eagle at ¶ 74. Further, “[b]ased on

other evidence in [the Eagle] case, we concluded that the arbitration clause, as applied to Eagle,

was procedurally unconscionable as well.” (Emphasis added.) Bozich at ¶ 15, citing Eagle at ¶

52-60. Accordingly, we concluded that the Boziches had attempted to “blur[] the discrete

rationale underlying procedural and substantive unconscionability as set forth in Eagle to suggest

that, where an arbitration provision contravenes the public policy goals implicit in the CSPA and

is determined to be substantively unconscionable, that alone would render the arbitration

provision unenforceable.” Bozich at ¶ 15. We determined that “[s]uch is not the case[,]” and a

quantum of both substantive and procedural unconscionability must be demonstrated. See id.

       {¶15} Although the parties’ dispute on appeal here centers on whether this Court should

follow the holding of the Eighth District in Hedeen, 2014-Ohio-4200, the Lavelles have not

advanced an argument that this Court depart from our holding in Bozich. Further, the Lavelles

have not advanced an argument below, or on appeal, demonstrating a “quantum” of procedural
                                                 7


unconscionability in agreeing to arbitrate the parties’ disputes. See Bozich at ¶ 15. Accordingly,

based upon the arguments advanced on appeal, we cannot say that the trial court erred in

enforcing the arbitration clause and compelling arbitration. See Taylor Bldg. Corp. of Am., 117

Ohio St.3d 352, 2008-Ohio-938, at ¶ 53; see also Fortune v. Castle Nursing Homes, Inc., 164

Ohio App.3d 689, 2005-Ohio-6195, ¶ 36 (5th Dist.). On this basis, the Lavelles’ assignment of

error is overruled.

                                                III.

       {¶16} The judgment of the trial court is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellants.




                                                       CARLA MOORE
                                                       FOR THE COURT
                                                 8




SCHAFER, J.
CONCURS.

CARR, P. J.
DISSENTING.

       {¶17} I respectfully dissent. The trial court did not address whether the "loser-pays"

provision in the arbitration clause was unenforceable on public policy grounds. The Eighth

District has struck down this provision twice as being in violation of public policy. Hedeen v.

Autos Direct Online, Inc., 8th Dist. Cuyahoga No. 100582, 2014-Ohio-4200 (arbitration

provision declared unenforceable and proceedings not stayed for arbitration.); DeVito v. Autos

Direct Online, Inc., 8th Dist. Cuyahoga No. 100831, 2015-Ohio-3336 (“loser-pays” provision

excised as unenforceable.). However, this issue has not been placed squarely before us at this

time. I would remand to the trial court to look at the public policy argument in the first instance.


APPEARANCES:

CHRISTOPHER O’CONNELL, Attorney at Law, for Appellants.

E. MARK YOUNG and RUSSELL R. O’ROURKE, Attorneys at Law, for Appellee.
