[Cite as Dozier v. Credit Acceptance Corp., 2019-Ohio-4354.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

MICHAEL DOZIER, JR.,                                   :

                 Plaintiff-Appellee,                   :
                                                                        No. 108069
                 v.                                    :

CREDIT ACCEPTANCE                                      :
CORPORATION,
                                                       :
                 Defendant-Appellant.
                                                       :


                               JOURNAL ENTRY AND OPINION

                 JUDGMENT: REVERSED AND REMANDED
                 RELEASED AND JOURNALIZED: October 24, 2019


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                                Case No. CV-18-902691


                                            Appearances:

                 McGlinchey Stafford, P.L.L.C., and James W. Sandy, for
                 appellant.


EILEEN T. GALLAGHER, J.:

                   Defendant-appellant,           Credit       Acceptance   Corporation   (“Credit

Acceptance”), appeals the denial of its motion to compel arbitration, or in the

alternative, to stay the case pending arbitration and claims the following error:

        The trial court erred when it denied Credit Acceptance’s motion to
        compel arbitration, dismiss case, or alternatively, stay proceedings
      pending arbitration because the plaintiff’s claims were subject to
      binding arbitration, the plaintiff never alleged, much less put forth any
      evidence, to establish that the arbitration clause was either
      procedurally or substantively unconscionable, and in order to negate
      an arbitration clause, a party must establish both procedural and
      substantive unconscionability.

               We find merit to the appeal, and reverse the trial court’s judgment.

                            I. Facts and Procedural History

               Plaintiff-appellee, Michael Dozier, executed a retail installment

contract (“the contract”) with Buckeye Motor Group Ltd. (“Buckeye”) for the

purchase of a 2010 Ford Taurus. As part of the transaction, Dozier also executed a

declaration acknowledging electronic signature,1 whereby he acknowledged that he

(1) read, understood, and agreed to use an electronic signature to sign all documents

pertaining to the retail installment transaction, including the contract, (2) was given

an opportunity to review a paper version of the contract prior to executing it, and

(3) had “physical control of the keyboard, mouse or other device when he executed

the contract.” The contract was simultaneously assigned to Credit Acceptance when

Dozier signed it.

               The fifth page of the contract contains an arbitration clause that

requires the arbitration of all “disputes” between the parties. The arbitration clause

states, in relevant part:

      This Arbitration Clause describes how a Dispute (defined below) may
      be arbitrated. * * *



      1 Copies of the retail installment contract and declaration acknowledging electronic

signature were authenticated by affidavit.
      * * *

      A “Dispute” is any controversy or claim between You [the buyer] and
      US [the seller] arising out of or in any way related to the contract,
      including but not limited to, * * * the purchase, sale, delivery, set-up,
      quality of the Vehicle, advertising for the Vehicle or its financing, or any
      product or service included in this Contract. “Dispute” shall have the
      broadest meaning possible and includes contract claims, and claims
      based on tort, violations of laws, statutes, ordinances, or regulations or
      any other legal or equitable theories.

               Additionally, the contract provides a notice of arbitration on the first

page, which states:

      ARBITRATION: The Contract contains an Arbitration Clause that
      states You [the buyer] and WE [the seller] may elect to resolve any
      dispute by arbitration and not by court action. See the Arbitration
      Clause on Page 5 of this Contract for the full terms and conditions of
      the agreement to arbitrate. By initialing below, you confirm that you
      have read, understand, and agree to the terms and conditions in the
      Arbitration Clause.

Dozier initialed below the notice of arbitration on the first page and initialed below

the entire arbitration clause on the fifth page of the contract. The arbitration

agreement also provides that either party can initiate arbitration at any time, even

after a lawsuit has started.

               Dozier executed the retail installment agreement in June 2017. In

August 2018, he filed a pro se complaint against Credit Acceptance alleging multiple

violations of the Consumer Sales Practices Act, R.C. 1345.03. After filing a timely

answer to the complaint, Credit Acceptance filed a motion to compel arbitration,

dismiss the case, or alternatively, to stay the case pending arbitration. Dozier, still

pro se, opposed the motion in two separate documents titled, “Motion to Vacate

Arbitration,” in which Dozier reiterated the alleged violations of the Consumer Sales
Practices Act. He made no arguments relative to the binding arbitration provision

in his contract. Yet, the trial court denied Credit Acceptance’s motion to compel

arbitration on grounds that it was unconscionable. Credit Acceptance now appeals

the trial court’s judgment.

                               II. Law and Analysis

                              A. Standard of Review

               “The appropriate standard of review on judgments pertaining to the

enforceability of an arbitration agreement depends on the questions raised in

challenging the applicability of the arbitration provision.” Javorsky v. Javorsky,

2017-Ohio-285, 81 N.E.3d 971, ¶ 7 (8th Dist.), citing McCaskey v. Sanford-Brown

College, 8th Dist. Cuyahoga No. 97261, 2012-Ohio-1543.

               In this case, the trial court determined that the arbitration clause was

unconscionable. Whether an arbitration provision is unconscionable is a question

of law, which we review de novo. Brownlee v. Cleveland Clinic Found., 8th Dist.

Cuyahoga No. 97707, 2012-Ohio-2212, ¶ 8. “Under a de novo standard of review,

we give no deference to a trial court’s decision.” Id. at ¶ 9.

                              B. Ohio Arbitration Act

               Ohio public policy favors enforcement of arbitration provisions.

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

¶ 15. The General Assembly codified Ohio’s policy of encouraging arbitration

through enactment of the Ohio Arbitration Act, R.C. Chapter 2711. Goodwin v.

Ganley, Inc., 8th Dist. Cuyahoga No. 89732, 2007-Ohio-6327, ¶ 8. R.C. 2711.01(A)
provides that an arbitration agreement in a written contract “shall be valid,

irrevocable, and enforceable, except upon grounds that exist in law or equity for the

revocation of any contract.”

               R.C. 2711.02(B), which governs the stay of litigation pending

arbitration, states, in relevant part:

      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.

Thus, R.C. 2711.02 requires a court to stay the trial of an action on application of one

of the parties if (1) the action involves an issue referable to arbitration under a

written arbitration agreement, (2) the court is satisfied the issue is referable to

arbitration under the agreement, and (3) the party seeking the stay is not in default

in proceeding with arbitration. Eaton Corp. v. Allstate Ins. Co., 8th Dist. Cuyahoga

No. 101654, 2015-Ohio-2034, ¶ 17.

               Thus, a presumption favoring arbitration arises when the claim in

dispute falls within the arbitration provision. Williams v. Aetna Fin. Co., 83 Ohio

St.3d 464, 471, 700 N.E.2d 859 (1998). Any doubts regarding arbitration should be

resolved in favor of arbitration. Ignazio v. Clear Channel Broadcasting, Inc., 113

Ohio St.3d 276, 2007-Ohio-1947, 865 N.E.2d 18, ¶ 18.
                             C. Unconscionability

               In the sole assignment of error, Credit Acceptance argues the trial

court erred in finding that the arbitration clause in the parties’ contract was

unconscionable.      It contends the agreement is neither procedurally nor

substantively unconscionable.

               An arbitration agreement is unenforceable if it is unconscionable.

Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St.3d 352, 2008-Ohio-938, 884

N.E.2d 12, ¶ 33. Unconscionability includes both the absence of meaningful choice

on the part of one of the parties to a contract and contract terms that are

unreasonably favorable to the other party. Collins v. Click Camera & Video, Inc., 86

Ohio App.3d 826, 834, 621 N.E.2d 1294 (2d Dist.1993). It incorporates two distinct

concepts (1)      unfair and unreasonable contract terms, i.e., substantive

unconscionability; and (2) unequal bargaining power such that the other party lacks

a “meaningful choice” to enter into the contract, i.e., procedural unconscionability.

Taylor at ¶ 33.

               Substantive unconscionability pertains solely to the terms of the

contract and whether they are commercially reasonable in the context of the

transaction. Pulte Homes of Ohio, L.L.C. v. Wilson, 8th Dist. Cuyahoga No. 102212,

2015-Ohio-2407, ¶ 17. For example, a contract is substantively unconscionable

where “the clauses involved are so one-sided as to oppress or unfairly surprise” a

party. Neubrander v. Dean Witter Reynolds, Inc., 81 Ohio App.3d 308, 311-312,
610 N.E.2d 1089 (9th Dist.1992). In determining whether a contract is substantively

unconscionable, “courts have considered factors such as: ‘the 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.’” DeVito v. Autos Direct Online, Inc.,

8th Dist. Cuyahoga No. 100831, 2015-Ohio-3336, ¶ 17, quoting Collins at 834.

                While substantive unconscionability pertains to the contract itself,

procedural unconscionability refers to the circumstances surrounding the

transaction. Procedural unconscionability considers

        “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.”

Wallace v. Ganley Auto Group, 8th Dist. Cuyahoga No. 95081, 2011-Ohio-2909,

quoting Collins at 834. “The crucial question is whether a party, considering his

education or lack of it, had a reasonable opportunity to understand the terms of the

contract, or were the important terms hidden in a maze of fine print.” DeVito at ¶

19.

                The party seeking to void a contract due to unconscionability “bears

the burden of proving that the agreement is both procedurally and substantively

unconscionable.” Benfield, 117 Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12, at

¶ 33.
                   Although the trial court concluded that the arbitration clause in the

parties’ retail installment contract was unconscionable, Dozier never argued, much

less presented evidence to establish, unconscionability.          Dozier presented no

evidence to establish that the parties had unequal bargaining power or that he lacked

intelligence, education, or business acumen such that the arbitration agreement was

incomprehensible to him. Nor did he present any evidence that either Buckeye or

Credit Acceptance defrauded him or that he lacked an opportunity to read the

agreement.     He, therefore, failed to establish that the parties’ agreement was

procedurally unconscionable, and our analysis could end here since the party

seeking to void an arbitration agreement must establish that the agreement is both

procedurally and substantively unconscionable. Id.

                   Nevertheless, there is also nothing to suggest that the arbitration

agreement is substantively unconscionable. The fact that there is an arbitration

agreement embedded within the contract is communicated in a notice on the first

page of the retail installment. The word “ARBITRATION” is written in capital letters

in order to attract the reader’s attention. The notice informs the reader that the full

text of the arbitration clause appears on the fifth page of the contract, and Dozier’s

initials appear below both the notice of arbitration and the actual arbitration clause.

The arbitration clause itself occupies the entire fifth page of the agreement and is

identified by the words “ARBITRATION CLAUSE,” which appear underlined in all

capital letters.
               The terms of the arbitration agreement, which are not ambiguous and

written in plain English, are fair and apply equally to both parties. Both parties are

required to resolve their disputes in arbitration. It is not as if Credit Acceptance has

the option of litigating disputes in the common pleas court but Dozier does not. This

is not the case.

               Moreover, the arbitration agreement gave Dozier the right to reject

the arbitration clause by mailing a written rejection to the address provided in the

arbitration clause within 30 days of signing the agreement. The second paragraph

of the arbitration clause provides, in relevant part:

      Your Right to Reject: If you don’t want this Arbitration Clause to apply,
      You may reject it by mailing Us at P.O. Box 5070, Southfield, Michigan
      48086-5070 a written rejection notice that describes the Contract and
      tell Us that You are rejecting this Arbitration Clause. A rejection notice
      is only effective if it is signed by all buyers, co-buyers and cosigners and
      the envelope that the rejection notice is sent in has a post mark of 30
      days or less after the date of this Contract. If you reject the Arbitration
      Clause, that will not affect any other provision of this Contract or the
      statute of Your Contract. If you don’t reject this Arbitration Clause, it
      will be effective as of the date of this Contract.

There is nothing confusing about this provision. Dozier had the right to reject

arbitration, but there is no evidence that he exercised that right before the 30-day

time period for rejection expired. Therefore, we finding nothing unconscionable

about the arbitration clause, particularly since it afforded Dozier the right to reject

it.

               The trial court nevertheless found the parties’ arbitration agreement

was unconscionable pursuant to Schwartz v. Alltel Corp., 8th Dist. Cuyahoga No.
86810, 2006-Ohio-3353. In Schwartz, we affirmed a trial court judgment finding

an arbitration agreement was substantively and procedurally unconscionable, in

part, because it eliminated a consumer’s right to proceed through a class action and

thus circumvented the purposes of the Ohio Consumer Sales Practices Act. Id. at

¶ 25-26, 30.

               However, since Schwartz, we have held that a ban on class actions

does not necessarily void an arbitration agreement. In reaching this conclusion, we

stated that even if the Consumer Sales Practices Act “contains a policy favoring class

action * * *, this court may not apply that policy in a way that disfavors arbitration.”

Wallace v. Ganley Auto Group, 8th Dist. Cuyahoga No. 95081, 2011-Ohio-2909,

¶ 19. The fact that an arbitration provision precludes the filing of class actions does

not, by itself, render an otherwise valid arbitration agreement unconscionable. See,

e.g., Ranazzi v. Amazon.com, Inc., 6th Dist. Lucas No. L-14-1217, 2015-Ohio-4411;

Alexander v. Wells Fargo Fin. Ohio 1, Inc., 8th Dist. Cuyahoga No. 89277,

2009-Ohio-4873, ¶ 18.

               The court in Schwartz did not void the arbitration agreement solely

because it contained a ban on class actions. The Schwartz court also concluded that

the agreement was procedurally unconscionable because it was “adhesive in nature.”

Schwartz at ¶ 35. The contract was presented on a “take-it-or-leave-it basis,” and

the arbitration agreement was hidden in “small, hard-to-read print * * * at the very

bottom of the back side of the agreement.” Under these circumstances, it is
reasonable to conclude that the consumer would be unaware that he or she was

waiving the right to participate in class actions by signing the contract.

               Unlike the contract at issue in Schwartz, which buried the arbitration

clause in fine print, a notice regarding the arbitration clause in this case is

conspicuous on the first page of the contract. Moreover, the arbitration clause

afforded Dozier the right to reject it, but he failed to exercise that right. We find

nothing procedurally or substantively unconscionable about the arbitration

agreement presented in this case, despite the ban on class actions. Therefore, the

arbitration clause in this case is distinguishable from the one at issue in Schwartz,

and the trial court erred in finding they were the same.

               The sole assignment of error is sustained.

               Judgment reversed, and case remanded to the trial court to stay

litigation pending arbitration.2

      It is ordered that appellee recover from appellant share costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to the common pleas court to carry

this judgment into execution.




      2 As previously stated, R.C. 2711.02(B) requires the trial court stay the litigation
pending arbitration when the arbitration clause is binding and enforceable.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE

MICHELLE J. SHEEHAN, J., CONCURS;
MARY EILEEN KILBANE, A.J., DISSENTS WITH SEPARATE ATTACHED
OPINION




MARY EILEEN KILBANE, A.J., DISSENTING:

              I respectfully dissent. I would affirm the trial court’s denial of Credit

Acceptance’s motion to compel arbitration, or in the alternative, stay the case

pending arbitration.

              The majority states that an arbitration agreement is unenforceable if

it is unconscionable. An arbitration agreement is also unenforceable when the

arbitration clause is against public policy. As this court stated in Hedeen v. Autos

Direct Online, Inc., 2014-Ohio-4200, 19 N.E.3d 957 (8th Dist.):

      A court may refuse to enforce a contract when it violates public policy.
      Marsh v. Lampert, 129 Ohio App.3d 685, 687, 718 N.E.2d 997 (12th
      Dist.1998), citing Garretson v. S.D. Myers, Inc., 72 Ohio App.3d 785,
      788, 596 N.E.2d 512 (9th Dist.1991). The court in Eagle [v. Fred
      Martin Motor Co.], 157 Ohio App.3d 150, 2004-Ohio-829, 809 N.E.2d
      1161, explained:

            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.

Id. at ¶ 63.

       Moreover, a contract injurious to the interests of the state will not be
       enforced. King v. King, 63 Ohio St. 363, 372, 59 N.E. 111 (1900). 17
       Ohio Jurisprudence 3d, Contracts, Section 94, at 528 (1980), states:

               Public policy is the community common sense and
               common conscience, extended and applied throughout
               the state to matters of public morals, health, safety,
               welfare, and the like. Again, public policy is that principle
               of law which holds that no one can lawfully do that which
               has a tendency to be injurious to the public or against the
               public good. Accordingly, contracts which bring about
               results which the law seeks to prevent are unenforceable
               as against public policy. Moreover, actual injury is never
               required to be shown; it is the tendency to the prejudice of
               the public’s good which vitiates contractual relations.
               (Footnotes omitted.)

Id. at ¶ 44-45.

                  While the Ohio CSPA does not expressly preclude arbitration clauses

in consumer sales contracts, limitations on a consumer’s rights should not be

allowed by a private arbitration forum. Vincent v. Neyer, 139 Ohio App.3d 848, 852,

745 N.E.2d 1127 (10th Dist.2000); Eagle at ¶ 67. Indeed, “[w]hen an arbitration

clause vanquishes the remedial purpose of a statute by limiting consumer[’]s rights

and preventing actions from being brought by consumers, the arbitration clause

should be held unenforceable.” Eagle at ¶ 68, citing Randolph v. Green Tree Fin.

Corp., 178 F.3d 1149 (11th Cir.1999), citing Gilmer v. Interstate/Johnson Lane

Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991).
               The arbitration clause in the instant case limits the consumer’s right

to proceed through a class action. It states, in relevant part: “if You or We elect to

arbitrate a dispute, (a) neither You nor We may participate in a class action in court

or in a class-wide arbitration, either as a plaintiff, defendant or class member[.] * * *

In the event that the Class Action Waiver is determined to be invalid or

unenforceable, then, subject to the right to appeal such a ruling, this entire

Arbitration Clause (except for this sentence) shall be null and void.”

               By prohibiting Dozier from filing suit as a class, Credit Acceptance

eliminates the right to proceed through a class action and hinders the policy

considerations of the CSPA, which I find renders the arbitration clause

unenforceable.     The plain language of the contract contemplates this by

acknowledging that the entire arbitration clause shall be null and void if the class

action waiver is found to be unenforceable. When the arbitration clause vanquishes

the remedial purpose of the CSPA, and is injurious to the interests of the state and

against public policy, it cannot be enforced. Eagle at ¶ 74, citing King, 63 Ohio St.

363, 372, 59 N.E. 111.

               For these reasons, I would affirm the trial court’s ruling.
