[Cite as Crouse v. LaGrange Junction Ltd., 2012-Ohio-2972.]


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

KEN CROUSE                                                C.A. No.   11CA010065

        Appellee

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
LAGRANGE JUNCTION LTD                                     COURT OF COMMON PLEAS
                                                          COUNTY OF LORAIN, OHIO
        Appellant                                         CASE No.   11CV172042

                                DECISION AND JOURNAL ENTRY

Dated: June 29, 2012



        DICKINSON, Judge.

                                           INTRODUCTION

        {¶1}    Ken Crouse bought a vacant lot and, nine months later, entered into a contract

with LaGrange Junction Ltd. for construction of a house on that lot. This case arose after Mr.

Crouse suffered a number of problems with the lot and house that prevented him from legally

occupying the house. He sued LaGrange, which answered and moved for a stay pending

arbitration. Mr. Crouse opposed the stay, arguing that the arbitration clause in the construction

contract was both substantively and procedurally unconscionable. The trial court denied the

stay, and LaGrange appealed. This Court reverses because Mr. Crouse did not provide sufficient

evidence of procedural unconscionability.

                                            BACKGROUND

        {¶2}    Mr. Crouse bought a vacant lot from Mr. Stiner, a member of LaGrange Junction

Ltd., and then entered into a construction contract with LaGrange for the building of a single-
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family dwelling on that lot. According to his complaint, Mr. Crouse’s claims in this case are

based on “severe and continued flooding covering the lot” and “numerous construction and/or

design problems with the interior of the home.”

          {¶3}   Mr. Crouse sued four defendants: (1) LaGrange Junction Ltd., which had served

as his builder, (2) Erie Coast Engineering LLC, an architectural and engineering firm, (3) an

individual member of Erie Coast, who had worked as the architect and engineer on the project,

and (4) Dennis R. Stiner, the seller of the real property at issue. Mr. Crouse sued Mr. Stiner for

breach of the purchase contract for the vacant lot.         He sued LaGrange for breach of the

construction contract and negligent construction and/or repair. He sued Erie Coast for negligent

design.     He also brought claims against “Defendants” for breach of implied and express

warranties, negligent supervision and retention, fraud, negligent misrepresentation, and deceptive

trade practices. It is unclear whether those claims were aimed at all the named defendants or just

some of them.

          {¶4}   LaGrange and Mr. Stiner jointly moved under Section 2711.02(B) of the Ohio

Revised Code to dismiss and/or stay the proceedings, arguing that the construction contract

required arbitration of the dispute. Mr. Crouse opposed the motion to dismiss and/or stay the

proceedings, arguing that the arbitration clause is unenforceable due to substantive and

procedural unconscionability. The trial court denied the motion, and LaGrange and Mr. Stiner

timely appealed.

          {¶5}   The issue on appeal is limited to the enforceability of the arbitration clause in the

LaGrange construction contract. That clause, if enforceable, applies only to claims arising under

that contract. Mr. Crouse sued Mr. Stiner individually based on a separate transaction, that is,

the sale of the vacant lot. Mr. Stiner has not argued that he is a party to LaGrange’s contract
                                                 3


with Mr. Crouse nor that the real estate contract between him and Mr. Crouse contains an

arbitration clause. Therefore, although LaGrange and Mr. Stiner are represented by the same

lawyer and both parties’ names appear on the notice of appeal and the briefs, for the sake of

clarity, this Court will address LaGrange’s arguments without reference to Mr. Stiner.

                                         JURISDICTION

       {¶6}    On September 23, 2011, this Court ordered LaGrange to demonstrate this Court’s

jurisdiction because the order appealed provides only that the “Motion to Dismiss and/or Stay

[P]roceedings is denied.” LaGrange responded to the order, explaining that the entry was a final,

appealable order under Section 2711.02(C) of the Ohio Revised Code because the motion to stay

or dismiss was based on a demand for arbitration. “[Section] 2711.02(C) permits a party to

appeal a trial court order that grants or denies a stay of trial pending arbitration, even when the

order makes no determination pursuant to [Rule 54(B) of the Ohio Rules of Civil Procedure].”

Mynes v. Brooks, 124 Ohio St. 3d 13, 2009-Ohio-5946, at syllabus. Thus, despite the fact that

Mr. Crouse’s claims remain pending against other defendants not involved in this appeal, the

trial court’s entry denying the requested stay is immediately appealable by statute.

                                         ARBITRATION

       {¶7}    The sole assignment of error is that the trial court incorrectly denied the motion to

dismiss and/or stay the proceedings pending arbitration because it incorrectly determined that the

arbitration clause is unenforceable due to unconscionability. “Arbitration agreements are ‘valid,

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

of any contract.’” Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St. 3d 352, 2008–Ohio–938,

¶ 33 (quoting R.C. 2711.01(A)). Unconscionability is a valid basis for revoking a contract. Id.
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       {¶8}    “Unconscionability includes both ‘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, ¶ 34

(quoting Lake Ridge Acad. v. Carney, 66 Ohio St. 3d 376, 383 (1993)). “The party asserting

unconscionability of a contract bears the burden of proving that the agreement is both

procedurally and substantively unconscionable.” Id. (citing Collins v. Click Camera & Video

Inc., 86 Ohio App. 3d 826, 834 (1993) (“One must allege and prove a ‘quantum’ of both prongs

in order to establish that a particular contract is unconscionable”)).              “The issue of

unconscionability is a question of law.”     Eagle v. Fred Martin Motor Co., 157 Ohio App. 3d

150, 2004–Ohio–829, at ¶ 12. Therefore, this Court reviews a trial court’s unconscionability

decision de novo. Taylor, 2008–Ohio–938, at ¶ 2.

       {¶9}    The LaGrange construction contract contains an arbitration clause:              “Any

controversy [or] claim which does arise, or which arises out of construction o[r] sale of the new

house or improvement thereto which is the subject of this contract, and which cannot be settled

by buyer and seller, shall be settled by arbitration in Lorain, Ohio, at the instance of either party

hereto. Such arbitration to be held with the American Arbitration Association and the arbitration

will be in accordance with the industry arbitration rules of said association and judgment upon

the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.”

                           PROCEDURAL UNCONSCIONABILITY

       {¶10} “Procedural unconscionability concerns the formation of the agreement and

occurs when no voluntary meeting of the minds is possible.” Brunke v. Ohio State Home Servs.

Inc., 9th Dist. No. 08CA009320, 2008–Ohio–5394, ¶ 10 (quoting Porpora v. Gatliff Bldg. Co.,

160 Ohio App. 3d 843, 2005–Ohio–2410, ¶ 7). To evaluate procedural unconscionability, this
                                                 5


Court considers “the relative bargaining positions of the parties . . . and whether the party

claiming that the provision is unconscionable was represented by counsel at the time the contract

was executed.” Porpora, 2005–Ohio–2410, at ¶ 7 (citing Eagle v. Fred Martin Motor Co., 157

Ohio App. 3d 150, 2004–Ohio–829, ¶ 31). Factors bearing on the relative bargaining positions

of the parties include “age, education, intelligence, business acumen, experience in similar

transactions, whether the terms were explained to the weaker party, and who drafted the

contract.” Eagle, 2004–Ohio–829, at ¶ 31. Courts will also consider “whether alterations in the

printed terms were possible, [and] whether there were alternative sources of supply for the goods

in question.” Hayes v. Oakridge Home, 122 Ohio St. 3d 63, 2009–Ohio–2054, ¶ 23 (quoting

Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St. 3d 352, 2008–Ohio–938, ¶ 44). Generally,

no one factor alone determines whether a contract is procedurally unconscionable. Id. at ¶ 29. A

court must consider the totality of the circumstances. Id. at ¶ 30.

       {¶11} Mr. Crouse has argued that the arbitration clause is procedurally unconscionable

because LaGrange drafted the agreement and failed to explain the arbitration provision to him.

He has argued that he was not represented by a lawyer at the meeting, he did not understand

what arbitration meant, and the provision is buried on page eight of the nine page agreement. By

affidavit, Mr. Crouse testified that LaGrange drafted the entire agreement and a representative

told him that it was “the[ ] standard construction agreement they always used.” He also wrote

that he was not represented by counsel at that time, no representative of LaGrange explained the

arbitration provision to him, and he did not understand the meaning of the term arbitration.

       {¶12} The record does not contain any evidence regarding Mr. Crouse’s “age, education,

intelligence, business acumen, [or] experience in similar transactions.”    Eagle v. Fred Martin

Motor Co., 157 Ohio App.3d 150, 2004–Ohio–829, ¶ 31. It also contains no evidence about
                                                 6


“whether alterations in the printed terms were possible, [and] whether there were alternative

sources of supply for the goods in question.” Hayes v. Oakridge Home, 122 Ohio St. 3d 63,

2009-Ohio-2054, ¶ 23 (quoting Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St. 3d 352,

2008-Ohio-938, ¶ 44). Although both sides have argued in their briefs to this Court that the

other party enjoyed a superior bargaining position in entering the contract, there is no evidence in

the record about whether either party’s bargaining position was superior to the other.

       {¶13} The arbitration provision does appear on the eighth of nine contract pages, but it

appears in an average font size and is separated from the surrounding text by a centered heading

that brings attention to the word “Arbitration” in bold text. There is no evidence that LaGrange

misrepresented the arbitration clause to Mr. Crouse or that the language was out of the ordinary

for the industry. See ABM Farms Inc. v. Woods, 81 Ohio St. 3d 498, 503 (1998) (determining

that arbitration clause need not be explained orally when it is not hidden, misrepresented, or out

of the ordinary for the industry).

       {¶14} The evidence does not support Mr. Crouse’s argument that the contract was one

of adhesion. Although the evidence tends to show that LaGrange drafted the contract and used it

as a form for their construction jobs, there is no evidence that Mr. Crouse could not have

negotiated more advantageous terms, including the elimination of the arbitration clause. There is

no evidence in the record tending to show that LaGrange offered the contract on a take-it-or-

leave-it basis. See Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St. 3d 352, 2008–Ohio–938,

at ¶ 49 (defining an adhesion contract as “a standardized form contract prepared by one party,

and offered to the weaker party, usually a consumer, who has no realistic choice as to the

contract terms”) (citing Black’s Law Dictionary 342 (8th Ed. 2004)).
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       {¶15} The evidence indicates that, although this was the type of purchase agreement that

might have involved lawyers, Mr. Crouse was not represented by a lawyer when he entered into

this contract. There is no evidence, however, indicating that LaGrange rushed Mr. Crouse

through the process of forming the agreement. Mr. Crouse testified by affidavit that he sunk his

“life savings” into this project, but he did not say that there was any reason why he was unable to

secure the assistance of legal counsel to review this contract for him before doing so.

       {¶16} The facts of this case distinguish it from cases such as Porpora v. Gatliff Building

Company, 160 Ohio App. 3d 843, 2005-Ohio-2410 (9th Dist.), wherein this Court held a

residential construction contract to be procedurally unconscionable. In Porpora, this Court

determined that the business owner’s “own testimony characterizes the construction contract in

general and the arbitration clause in particular as adhesive.” Id. at ¶ 12. In that case, the

business owner testified at deposition that he would never agree to do business with a consumer

who would not accept the terms of the arbitration clause in his form contract. In Porpora, this

Court also relied on the fact that the consumer testified that he had no prior experience with

construction contracts. Id. In this case, the record contains no evidence regarding Mr. Crouse’s

prior experience with similar contracts and no evidence suggesting that he could not have

negotiated for the removal of the arbitration clause.

       {¶17} Based on the totality of the circumstances, the trial court incorrectly determined

that the arbitration provision in the LaGrange contract was procedurally unconscionable. As Mr.

Crouse failed to carry his burden to show procedural unconscionability, this Court need not

consider whether the clause is substantively unconscionable. See Taylor Bldg. Corp. of Am. v.

Benfield, 117 Ohio St. 3d 352, 2008–Ohio–938, at ¶ 34. LaGrange’s assignment of error is

sustained.
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                                         CONCLUSION

       {¶18} LaGrange’s assignment of error is sustained because Mr. Crouse did not present

sufficient evidence of procedural unconscionability to render the arbitration clause

unenforceable. The judgment of the Lorain County Common Pleas Court is reversed, and this

cause is remanded for proceedings consistent with this opinion.

                                                                             Judgment reversed,
                                                                            and cause remanded.




       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 Lorain, 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 Appellee.




                                                     CLAIR E. DICKINSON
                                                     FOR THE COURT



MOORE, P. J.
CONCURS.
                                                 9


BELFANCE, J.
DISSENTING.

        {¶19} I respectfully dissent from the judgment of the majority based upon the analysis

and reasoning outlined in Porpora v. Gatliff Bldg. Co., 160 Ohio App.3d 843, 2005-Ohio-2410

(9th Dist.). I disagree that Porpora is not applicable to this case. In Porpora, this Court

expressly relied upon the fact that the arbitration provision was not explained to the consumers

by anyone in the company, the construction company did not bring the arbitration provision to

the consumers’ attention, the consumers were unrepresented by counsel, this was the first

construction contract that the consumers had experience with, and the consumers did not know

what arbitration meant. Id. at ¶ 11. These facts are present in this case. Although there was

additional testimony in Porpora that the company president would not have removed the

arbitration clause if he had been asked to, that fact was not dispositive given that the parties were

not confronted with the consumers’ attempt to remove the clause. Id. at ¶12. In fact, the

company president and the consumers did not have any discussion concerning the clause. See

id. Thus, the president’s state of mind concerning what he might have done had he been asked

had no actual impact on the formation of the agreement.

        {¶20} Furthermore, and also relying in part upon the similarity between the facts in this

case and the facts in Porpora, I would conclude that the agreement was substantively

unconscionable as well. See Porpora at ¶ 14-18. Accordingly, I would affirm the judgment of

the trial court.


APPEARANCES:

STEPHEN J. PROE, Attorney at Law, for Appellant.

ANTHONY J. COYNE and TRACEY S. MCGURK, Attorneys at Law, for Appellee.
