[Cite as Wisniewshi v. Marek Builders, Inc., 2017-Ohio-1035.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104197




                              MICHAEL WISNIEWSKI
                                                           PLAINTIFF-APPELLANT
                                                     vs.

                      MAREK BUILDERS, INC., ET AL.

                                                           DEFENDANTS-APPELLEES




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                   Case No. CV-15-851916

        BEFORE:          E.A. Gallagher, J., Keough, A.J., and McCormack, J.

        RELEASED AND JOURNALIZED:                          March 23, 2017
                                  ii




ATTORNEYS FOR APPELLANT

Daniel J. Myers
Samantha A. Vajskop
Myers Law L.L.C.
600 East Granger Road
Second Floor
Cleveland, Ohio 44131


ATTORNEYS FOR APPELLEES

Kenneth A. Calderone
Taylor Vincent Trout
R. Brian Borla
Hanna, Campbell & Powell L.L.P.
3737 Embassy Parkway
Suite 100
Akron, Ohio 44333
                                            iii


EILEEN A. GALLAGHER, J.:

      {¶1} Plaintiff-appellant Michael Wisniewski appeals the order of the Cuyahoga

County Court of Common Pleas staying the present contractual dispute case against

defendants-appellees Marek Builders Inc. and Robert Marek and compelling the parties to

arbitrate their claims pursuant to an arbitration agreement in their contract. For the

following reasons, we reverse and remand.

      Factual and Procedural Background

      {¶2} Wisniewski filed a complaint against Marek on September 30, 2015,

asserting claims for breach of contract, negligence and violations of the Home

Construction Service Supplier Act and Home Solicitation Sales Act arising out of a

contract for a home addition and remodeling of an existing structure.      Marek answered

the complaint and filed a counterclaim against Wisniewski asserting claims of breach of

contract, quantum meruit, unjust enrichment and fraud.    Marek also filed a third-party

complaint against various subcontractors for indemnity and contribution.

      {¶3} On January 4, 2016, Marek filed a motion to stay, pending arbitration,

asserting that Wisniewski’s claims were subject to a mandatory arbitration provision in

the parties’ contract.   Wisniewski opposed the motion arguing that the arbitration

provision was unenforceable because he had cancelled the contract due to violations of

the Ohio Home Solicitation Sales Act (“HSSA”), that the arbitration clause was

unconscionable, that Marek had waived any right to enforce the arbitration clause by
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engaging in the subject litigation and that there was no meeting of the minds on the

arbitration provision. On February 16, 2016, the trial court issued a journal entry finding

the arbitration agreement to be valid and enforceable and granted Marek’s motion to stay

pending arbitration.

       Law and Analysis

       {¶4} In his sole assignment of error, Wisniewski argues that the trial court erred

in granting Marek’s motion to stay pending arbitration.

       {¶5} The applicable standard of review for a trial court’s ruling on a motion to stay

and compel arbitration depends upon “the type of questions raised challenging the

applicability of the arbitration provision.” Kaminsky v. New Horizons Computer Learning

Ctr. of Cleveland, 8th Dist. Cuyahoga No. 103416, 2016-Ohio-1468, ¶ 12, citing

McCaskey v. Sanford-Brown College, 8th Dist. Cuyahoga No. 97261, 2012-Ohio-1543.

The issue of whether a party has agreed to submit an issue to arbitration or questions of

unconscionability are reviewed under a de novo standard. McCaskey at ¶       7-8.   “Under

a de novo standard of review, we give no deference to a trial court’s decision.” Brownlee

v. Cleveland Clinic Found., 8th. Dist. Cuyahoga No. 97707, 2012-Ohio-2212, ¶ 9, citing

Akron v. Frazier, 142 Ohio App.3d 718, 721, 756 N.E.2d 1258 (9th Dist.2001).

       {¶6} Wisniewski argues that the arbitration provision in the present case is invalid

and unenforceable because the contract containing the arbitration provision failed to

comply with the HSSA. Wisniewski argues that he cancelled the contract pursuant to
                                               v

the HSSA rendering the contract, and the arbitration provision contained therein, void ab

initio.

          I. Applicability of the HSSA

          {¶7} The HSSA seeks to decrease high-pressure sales tactics that are sometimes

employed during in-home solicitations by providing consumers with a cooling-off period

within which the transaction may be cancelled. Garber v. STS Concrete Co., L.L.C.,

2013-Ohio-2700, 991 N.E.2d 1225, ¶ 12 (8th Dist.). The HSSA applies to:

          a sale of consumer goods or services in which the seller or a person acting

          for the seller engages in a personal solicitation of the sale at a residence of

          the buyer, including solicitations in response to or following an invitation

          by the buyer, and the buyer’s agreement or offer to purchase is there given

          to the seller or a person acting for the seller, or in which the buyer’s

          agreement or offer to purchase is made at a place other than the seller’s

          place of business.

R.C. 1345.21(A).

          {¶8} Under the HSSA, a home solicitation sale must include a written agreement

that contains a statement of the buyer’s right to cancel the contract until midnight of the

third business day after the day on which the buyer signs the contract. R.C. 1345.22 and

1345.23. Where no such provision is contained in the agreement, the buyer’s right to

cancel the contract does not expire. R.C. 1345.23(C). If the buyer decides to cancel the
                                             vi

sale, the seller must refund all payments made under the contract to the buyer. R.C.

1345.23(D)(4)(a). This provision effectively allows the buyer to cancel the contract at any

time, but the buyer may be susceptible to an unjust enrichment claim by the seller. Garber

v. STS Concrete Co., L.L.C., 8th Dist. Cuyahoga No. 99139, 2013-Ohio-2700, ¶ 18.

R.C. 1345.23(C) makes clear that where a notice of right of cancellation is not included,

the three-day cancellation period does not begin until the seller furnishes the buyer with

the appropriate cancellation notice.

        {¶9} In this instance, there is no dispute that the parties’ contract failed to provide

Wisniewski with the required notice. Wisniewski attached an affidavit to his brief in

opposition to Marek’s Motion to Stay Proceedings Pending Arbitration averring that

Marek came to his home on multiple occasions to discuss the home addition and

remodeling project.     Marek presented Wisniewski with a contract that was signed at his

home.    Wisniewski further averred that Marek does not have a place of business open to

the public and that he never visited them at a place of business before or at the time of

signing the contract.   Finally, Wisniewski averred that he was never provided notice of

his three-day right to cancel the transaction under the HSSA and that he served Marek a

letter canceling the contract by certified mail on August 13, 2015.

        {¶10} Marek has not disputed these facts but instead argues that the HSSA does

not apply to the subject contract because the contract was for a home “addition” rather

than a home “renovation” or “remodel” that Marek concedes have long been held to fall
                                             vii

within the purview of the HSSA. Marek’s argument fails in two respects. First, Ohio

law has applied the HSSA to home additions. See, e.g.,           Kamposek v. Johnson, 11th

Dist. Lake No. 2003-L-124, 2005-Ohio-344, ¶ 3, 17. This court has plainly stated that

“the HSSA applies to home improvement contracts involving ‘consumer goods or

services.’” Camardo v. Reeder, 8th Dist. Cuyahoga No. 80443, 2002-Ohio-3099, ¶ 19.

Secondly, by Marek’s own admission the contract involved “remodeling of an existing

structure.”1

       {¶11} On the facts in the record before us, we conclude that the HSSA applied to

the subject contract

       II. Wisniewski’s Cancellation of the Contract

       {¶12} Marek has not disputed the fact of Wisniewski’s cancellation. Pursuant to

R.C. 2711.02(B) a trial court is required to stay the trial of an action upon application of

one of the parties where the court is satisfied that the issue involved in the action is

referable to arbitration. Here, Wisniewski alleged in his complaint that under the HSSA

he cancelled the subject contract via certified mail sent to Marek’s address listed in the

contract.      Wisniewski reiterated this fact in an affidavit attached to his brief in

opposition to Marek’s motion to stay. Marek has not challenged this fact either below or

on appeal.

       {¶13} Instead,    Marek argues that it would be unfair to allow him to cancel under


       1
        See Marek’s Reply Brief in Support of Motion to Stay Pending Arbitration, p. 2.
                                          viii

the HSSA after Marek provided services under the contract.       This court explained in

Garber, 8th Dist. Cuyahoga No. 99139, 2013-Ohio-2700, that while such an application

of the HSSA may seem like an inequitable result, in the context of service contracts

involving home remodeling, the statute “‘clearly [places] the risk on the home

improvement contractor who begins performance before giving the consumer proper

notice of the right to cancel.’” Id. at ¶ 16, quoting Clemens v. Duwel, 100 Ohio App.3d

423, 431, 654 N.E.2d 171 (2d Dist.1995).           Furthermore, we noted in Garber the

availability of an unjust enrichment claim on behalf of the contractor. Id. at ¶ 18.

Marek has raised such a claim in this case.

       III. The Enforceability of the Arbitration Provision.

       {¶14} Having concluded that the HSSA applies to the subject contract and that

Wisniewski exercised his right to cancel the contract pursuant to R.C. 1345.23(C), we

next examine the effect of the cancellation of the contract on the enforceability of the

arbitration provision.

       {¶15} Marek argues that pursuant to the Ohio Supreme Court’s decision in ABM

Farms v. Woods, 81 Ohio St.3d 498, 1998-Ohio-612, 692 N.E.2d 574, the arbitration

provision survives any rescission of the underlying contract pursuant to the HSSA. In

ABM Farms, the court held that an arbitration provision within a contract is “in effect, a

contract within a contract, subject to revocation on its own merits[.]” Id. at 501.   The

court stated:
                                            ix

       Because the arbitration clause is a separate entity, it only follows that an
       alleged failure of the contract in which it is contained does not affect the
       provision itself. It remains as the vehicle by which the legitimacy of the
       remainder of the contract is decided.

Id. at 502.

       {¶16} The court in ABM Farms applied this principle to conclude that to defeat an

arbitration provision it was not sufficient for a party to allege fraud in the inducement of

the underlying contract.    The court held that the party needed to demonstrate that the

arbitration provision itself was fraudulently induced. Id. at 502.

       {¶17} Since ABM Farms was released in 1998, a number of Ohio courts of appeals

have held that grounds for rescission of a contract will not defeat the enforceability of an

arbitration provision within the contract.         See, e.g. Household Realty Corp. v.

Rutherford, 2d Dist. Montgomery No. 20183, 2004-Ohio-2422 (holding that “a court is

not permitted to consider a claim for rescission of an entire contract where there is no

dispute as to the legitimacy of the arbitration clause”); Pinnell v. Cugini & Cappoccia

Builders, Inc., 10th Dist. Franklin No. 13AP-579, 2014-Ohio-669 (finding rescission of

an underlying contract not to affect an arbitration provision contained within); Tomovich

v. USA Waterproofing & Found. Servs., 9th Dist. Lorain No. 07CA009150,

2007-Ohio-6214 (holding that an arbitrator could resolve whether a party may revoke a

contract); Haga v. Martin Homes, Inc., 5th Dist. Tuscarawas No. 1998AP050086, 1999

Ohio App. LEXIS 1740 (Apr. 19, 1999) (holding that election of rescission as a remedy

would not abrogate the effect of an enforceable arbitration provision).
                                            x

       {¶18} However, this court has declined to extend the holding in ABM Farms to

situations where a rescission of the underlying contract occurs pursuant to Ohio statutory

law.   We have consistently held that an arbitration provision may be held unenforceable

on grounds that exist at law or in equity for the revocation of any contract. Hedeen v.

Autos Direct Online, Inc., 2014-Ohio-4200, 19 N.E.3d 957, ¶ 26 (8th Dist.), citing Hayes

v. Oakridge Home, 122 Ohio St.3d 63, 2009-Ohio-2054, 908 N.E.2d 408, ¶ 15.

       {¶19} Pursuant to this principle we held in Neubauer v. Household Fin. Corp., 8th

Dist. Cuyahoga No. 81451, 2002-Ohio-6831, that, consistent with R.C. 2711.01(A) and

FAA Section 2, Title 9 of the U.S. Code, an arbitration clause could be revoked and

cancelled by the statutory rescission of the underlying contract. Id. at ¶ 20-25.

       {¶20} We reaffirmed this position in Miller v. Household Realty Corp., 8th Dist.

Cuyahoga No. 81968, 2003-Ohio-3359, holding that “an arbitration provision will not be

enforced if it resulted from conduct that would provide for revocation of the contract.” Id.

at ¶ 34. We reiterated that arbitration clauses may be revoked upon grounds as exist at law

or in equity for the revocation of any contract. Id. at ¶ 35, citing Southland Corp. v.

Keating, 465 U.S. 1, 10-11, 104 S.Ct. 852, 79 L.Ed.2d 1, (1984).

       {¶21} In light of the above authority and the unopposed facts regarding the subject

contract’s violation of the HSSA and Wisniewski’s cancellation thereof, we find that the

trial court erred in granting Marek’s motion to stay and compel arbitration.

       {¶22} Wisniewski’s sole assignment of error is sustained.
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       {¶23} The judgment of the trial court is reversed.

       This cause is reversed and remanded to the lower court for further proceedings

consistent with this opinion.

       It is ordered that appellant recover from appellees the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to 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.



_____________________________________
EILEEN A. GALLAGHER, JUDGE

TIM McCORMACK, J., CONCURS;
KATHLEEN ANN KEOUGH, A.J., DISSENTS WITH SEPARATE OPINION
                                            xii



KATHLEEN ANN KEOUGH, A.J., DISSENTING:

       {¶24} I respectfully dissent. I would affirm the trial court’s decision to refer the

matter to arbitration and stay the proceedings pending arbitration.

       {¶25} R.C. 2711.02 provides that:

       (B) If any action is brought upon any issue referable to arbitration under

       an agreement in writing for arbitration, the court in which the action is

       pending, upon being satisfied that the issue involved in the action is

       referable to arbitration under an agreement in writing for arbitration, shall

       on application of one of the parties stay the trial of the action until the

       arbitration of the issue has been had in accordance with the agreement,

       provided the applicant for the stay is not in default in proceeding with

       arbitration.

       {¶26} The arbitration clause in the contract at issue between the parties provides:

       12) All claims, disputes, and other matters in question arising out of, or
       relating to, this agreement or breech [sic] of it shall be decided in arbitration
       in accordance with the Construction Arbitration Rules of the American
       Arbitration Association then in force. This agreement to arbitrate shall be
       specifically enforceable under the prevailing arbitration law. The award
       rendered by the arbitrator shall be final, and judgment may be entered upon
       in it in any court having jurisdiction.

       {¶27} In this case, the trial court determined that the arbitration agreement is valid

and enforceable — i.e. not unconscionable. Under our de novo review, I would find that
                                              xiii

the trial court did not err in its finding.

       {¶28} The notion of unconscionability includes “‘an absence of meaningful choice

on the part of one of the parties together with contract terms which are unreasonably

favorable to the other party.’” Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St.3d

352, 2008-Ohio-938, 884 N.E.2d 12, ¶ 33, quoting Lake Ridge Academy v. Carney, 66

Ohio St.3d 376, 383, 613 N.E.2d 183 (1993). It contains two separate concepts: (1)

unfair and unreasonable contract terms, i.e., substantive unconscionability; and (2)

“individualized circumstances surrounding each of the parties to a contract such that no

voluntary meeting of the minds was possible, i.e., procedural unconscionability.” Olah

v. Ganley Chevrolet, Inc., 8th Dist. Cuyahoga No. 86132, 2006-Ohio-694, ¶ 14, citing

Collins v. Click Camera & Video, 86 Ohio App.3d 826, 834, 621 N.E.2d 1294 (2d

Dist.1993). The Ohio Supreme Court has held that a party opposing arbitration must

show that the arbitration provision, not the contract as a whole, is substantively

unconscionable:

       [W]hen a party challenges an arbitration provision as unconscionable
       pursuant to R.C. 2711.01(A), the party must show that the arbitration clause
       itself is unconscionable. If the court determines that the arbitration clause
       is enforceable, claims of unconscionability that relate to the contract
       generally, rather than the arbitration clause specifically, are properly left to
       the arbitrator in the first instance.

Taylor Bldg. at ¶ 42.

       {¶29} Substantive unconscionability goes to the terms of the contract. Ball v.

Ohio State Home Servs., Inc., 168 Ohio App.3d 622, 2006-Ohio-4464, 861 N.E.2d 553, ¶
                                           xiv

7 (9th Dist.). “Substantive unconscionability involves those factors which relate to the

contract terms themselves and whether they are commercially reasonable.” Collins at

834. When a contractual term is “so one-sided as to oppress or unfairly surprise” a party,

the contractual term is said to be substantively unconscionable. Neubrander v. Dean

Witter Reynolds, Inc., 81 Ohio App.3d 308, 311-312, 610 N.E.2d 1089 (9th Dist.1992).

Essentially, it goes to the unfairness or unreasonableness of the contractual terms.

Featherstone v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 159 Ohio App.3d 27,

2004-Ohio-5953, 822 N.E.2d 841, ¶ 13 (9th Dist.).          Additional factors to consider

include, but are not limited to:

       [T]he fairness of the terms, the charge for the service rendered, the standard
       in the industry, and the ability to accurately predict the extent of future
       liability. No bright-line set of factors for determining substantive
       unconscionability * * *. The factors to be considered vary with the content
       of the agreement at issue.

Collins at id., citing Fotomat Corp. of Florida v. Chanda, 464 So.2d 626 (Fla.App.1985),
and Richard A. Berjian, D.O., Inc. v. Ohio Bell Tel. Co., 54 Ohio St.2d 147, 375 N.E.2d
410 (1978).

       {¶30} Regarding procedural unconscionability, when a party has such superior

bargaining power that the other party lacks a “meaningful choice” to enter into the

contract, the contract is said to be procedurally unconscionable. Taylor Bldg., at ¶ 33.

Courts have also characterized it as a lack of voluntary meeting of the minds due to the

circumstances surrounding the execution of the contract. Collins, 86 Ohio App.3d at

834, 621 N.E.2d 1294.
                                          xv

       Procedural unconscionability involves factors bearing on the relative
       bargaining position of the contracting parties, such as age, education,
       intelligence, business acumen and experience, relative bargaining power,
       who drafted the contract, whether the terms were explained to the weaker
       party, whether alterations in the printed terms were possible, [and] whether
       there were alternative sources of supply for the goods in question.

Collins at id.

       {¶31} Wisniewski initially contends that the arbitration clause is invalid because

he cancelled the contract under the HSSA. However, Wisniewski seems to confuse the

validity of the arbitration clause with the validity of the contract. Our review at this

stage is whether the arbitration clause is valid or unconscionable. See Taylor Bldg., 117

Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12, at ¶ 41-42 (in reviewing an appeal on a

motion to compel arbitration, the appellate court erred in determining the issue of

conscionability of the contract as whole rather than limiting its review to whether the

arbitration clause was unconscionable).

       {¶32} As to the issue at hand, Wisniewski broadly contends that the arbitration

agreement is substantively unconscionable without any real identification of which term

renders the clause unreasonable and unfair to him. The arbitration clause is relatively

simple and straightforward — all claims and disputes arising out of the agreement shall

be decided by arbitration and such award by the arbitrator shall be final. Wisniewski’s

unconscionability claim — both substantively and procedurally — focusing on the

“hidden” costs associated with arbitration and the allegation that the Construction

Arbitration Rules of the American Arbitration Association includes a “loser-pays”
                                           xvi

provision under R-48.

       {¶33} My review of R-48 of the Construction Arbitration Rules of the American

Arbitration Association does not reveal that a “loser-pays” provision exists. Rather, this

provision gives the arbitrator the discretion of assessing and apportioning fees, expenses,

and compensation as it deems appropriate. Included in this discretion is “an award of

attorneys’ fees if all parties have requested such an award or it is authorized by law or

their arbitration agreement.”

       {¶34} Unlike the “loser-pays” provision that this court, sitting en banc, concluded

rendered an arbitration clause unconscionable in Devito v. Autos Direct Online, Inc., 8th

Dist. Cuyahoga No. 100831, 2015-Ohio-3336 (en banc), no such clause exists here. In

this case, the “loser” is not automatically required to pay the costs or expenses as in

Devito; rather, the arbitrator has the discretion to award or apportion those costs and

expenses as he deems just and equitable, if at all. Therefore, Wisniewski’s claim that the

arbitration clause is substantively unconscionable on that basis is without merit.

       {¶35} Wisniewski further claims that the arbitration clause is procedurally

unconscionable because the arbitration provision was not explained to him, the costs were

not revealed, and he had no prior experience with arbitration.         However, the Ohio

Supreme Court has held that a failure to disclose the costs of arbitration do not make the

arbitration provision per se unconscionable.         Taylor Bldg.,117 Ohio St.3d 352,

2008-Ohio-938, 884 N.E.2d 12, ¶ 56-58.          Additionally, the record reveals that the
                                             xvii

contracting parties were not acting with unequal bargaining power. The contract price,

terms, and work to be performed was heavily negotiated and at least two alternate quotes

were submitted by Marek Builders before the parties agreed on a final contract price.

Additionally, Wisniewski was not obligated to accept the contract or its terms; no

allegation has been made that only Marek Builders could or would perform the contracted

renovations. Finally, the record reveals that Wisniewski was going to complete some of

the work himself; thus evidencing his experience in home renovations or the construction

trade.    Therefore, I would find that Wisniewski also failed to demonstrate that the

arbitration clause was procedurally unconscionable.

         {¶36} Wisniewski’s claims that the contract itself is void or invalid based on an

alleged HSSA violation is left for the arbitrator to decide. See Taylor Bldg., 117 Ohio

St.3d 352, 2008-Ohio-938, 884 N.E.2d 12, ¶ 41 (claims that relate to the contract

generally, rather than the arbitration clause specifically, are properly left to the arbitrator).

         {¶37} This court has repeatedly held that “in the face of a valid arbitration clause,

questions regarding the validity of the entire contract must be decided in arbitration.”

Coble v. Toyota of Bedford, 8th Dist. Cuyahoga No. 83089, 2004-Ohio-238, ¶ 20, quoting

Weiss v. Voice/Fax Corp., 94 Ohio App.3d 309, 313, 640 N.E.2d 875 (1st Dist.1994),

citing Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404, 87 S.Ct. 1801,

18 L.Ed.2d 1270 (1967); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. 473

U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985).
                                           xviii

       {¶38} Accordingly, based on the arbitration clause itself and the arguments raised

by Wisniewski, I would find that the arbitration clause is not unconscionable, and is

therefore enforceable and valid.

       {¶39} Having determined that the arbitration clause is enforceable, this court must

decide whether Wisniewski’s claims fall within the scope of the arbitration provision —

i.e. whether his claims are arbitrable.

       {¶40} The threshold question is whether the parties agreed to arbitrate the issues.

In Academy of Medicine of Cincinnati v. Aetna Health, Inc., 108 Ohio St.3d 185,

2006-Ohio-657, 842 N.E.2d 488, the Ohio Supreme Court reiterated that the test for

determining the arbitrability of a given dispute involves four rules:

       (1) that “‘arbitration is a matter of contract and a party cannot be required to
       so submit to arbitration any dispute which he has not agreed to so submit’”;
       (2) that the question whether a particular claim is arbitrable is one of law
       for the court to decide; (3) that when deciding whether the parties have
       agreed to submit a particular claim to arbitration, a court may not rule on
       the potential merits of the underlying claim; and (4) that when a “‘contract
       contains an arbitration provision, there is a presumption of arbitrability in
       the sense that “[a]n order to arbitrate the particular grievance should not be
       denied unless it may be said with positive assurance that the arbitration
       clause is not susceptible of an interpretation that covers the asserted
       dispute.”’”

Id. at ¶ 5, quoting Cohen v. PaineWebber, Inc., 1st Dist. Hamilton No. C-010312,

2002-Ohio-196, ¶ 9, quoting Council of Smaller Ent. v. Gates, McDonald & Co, 80 Ohio

St.3d 661, 665-666, 687 N.E.2d 1352 (1998), citing AT&T Technologies, Inc. v.

Communications Workers of Am., 475 U.S. 643, 650, 106 S.Ct. 1415, 89 L.Ed.2d 648
                                            xix

(1986). “A proper method of analysis is to ask if an action could be maintained without

reference to the contract or relationship at issue. If it could, it is likely outside the scope

of the arbitration agreement.” Aetna Health at ¶ 6, quoting Fazio v. Lehman Bros., Inc.,

340 F.3d 386, 395 (6th Cir.2003).

       {¶41} Despite Wisniewski’s claim that he cancelled the contract becuase of HSSA

violations, Wisniewski asserts a breach of contract claim against Marek. A breach of

contract claim expressly falls under the scope of the arbitration clause contained in the

contract. Moreover, because the arbitration clause is a broad clause — covering “all

claims, disputes, and other matters in question arising out of, or relating to, this agreement

or breech [sic]” — it is not limited to just the breach of contract cause of action raised by

Wisniewski. See Mitsubishi Motors, 473 U.S. at 628, 105 S.Ct. 3346, 87 L.Ed.2d 444

(even when the rights asserted are based upon state statutes, the provisions of the Federal

Arbitration Act apply — by agreeing to arbitrate a statutory claim, a party does not forgo

the substantive rights afforded by the statute; it only submits to their resolution in an

arbitral, rather than a judicial, forum); Weiss, 94 Ohio App.3d at 313-314, 640 N.E.2d

875 (statutory right to rescind contract is properly resolved with an arbitrator).

       {¶42} In this case, Wisniewski filed a complaint against Marek Builders alleging

breach of contract, negligence, HCSSA violations, and HSSA violations. The allegations

of the complaint demonstrate that Wisniewski’s claims, whether by contract, in tort, or by

statute, cannot be maintained without reference to the contract or relationship at issue.
                                            xx

Accordingly, I would find that the trial court did not err in compelling arbitration and

granting a stay pending arbitration.

       {¶43} Finally, it is important to note that the only issue before this court is whether

the trial court erred in compelling arbitration. The majority’s decision concludes that the

HSSA applied and Marek Builders violated the HSSA. These are issues that should be

litigated in the trial court, not in the appellate court. No decision has been reached by

any finder of fact regarding the applicability of the HSSA. The HSSA applies only to

certain transactions and on the limited record before us, I would find that we are unable to

determine whether one of the exemptions that would take the transaction outside the

realm of the HSSA applies. See R.C. 1345.21(A)(1)-(7).
