[Cite as Newland v. AEC S. Ohio College L.L.C., 2016-Ohio-675.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT



ANGELA NEWLAND                                   :           JUDGES:
                                                 :           Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                       :           Hon. W. Scott Gwin, J.
                                                 :           Hon. John W. Wise, J.
-vs-                                             :
                                                 :
AEC SOUTHERN OHIO COLLEGE                        :
LLC D/B/A BROWN MACKIE                           :
COLLEGE NORTH CANTON                             :           Case No. 2015CA00145
                                                 :
        Defendant-Appellant                      :           OPINION



CHARACTER OF PROCEEDING:                                     Appeal from the Court of Common
                                                             Pleas, Case No. 2015CV00759



JUDGMENT:                                                    Reversed and Remanded




DATE OF JUDGMENT:                                            February 22, 2016




APPEARANCES:

For Plaintiff-Appellee                                       For Defendant-Appellant

LEE E. PLAKAS                                                BRETT KRANTZ
BRANDON O. TRENT                                             JUSTINE LARA KONICKI
220 Market Avenue South                                      One Cleveland Center
8th Floor                                                    29th Floor
Canton, OH 44702                                             1375 East Ninth Street
                                                             Cleveland, OH 44114-1793
Stark County, Case No. 2015CA00145                                                      2

Farmer, P.J.

      {¶1}     On October 7, 2011, appellee, Angela Newland, entered into an enrollment

agreement with appellant, AEC Southern Ohio College LLC dba Brown Mackie College

– North Canton, to participate in its paralegal program.

      {¶2}     On April 10, 2015, appellee filed a complaint against appellant, claiming

fraudulent and negligent misrepresentation regarding the program's accreditation, fraud,

and civil conspiracy. On May 15, 2015, appellant filed a motion to compel arbitration and

stay litigation as set forth in the enrollment agreement. Appellee opposed the motion. A

hearing was held on June 22, 2015. By judgment entry filed July 7, 2015, the trial court

denied the motion, finding the arbitration clause was procedurally and substantively

unconscionable and therefore unenforceable.

      {¶3}     Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

      {¶4}     "THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT REFUSED

TO ENFORCE THE ARBITRATION PROVISION IN THE AGREEMENT."

                                             II

      {¶5}     "THE   TRIAL    COURT      COMMITTED        PLAIN   ERROR      WHEN     IT

CONDUCTED INDEPENDENT DISCOVERY."

                                             I

      {¶6}     Appellant claims the trial court erred in finding the arbitration clause in

appellee's enrollment agreement was unenforceable because it was both substantially

and procedurally unconscionable. We agree.
Stark County, Case No. 2015CA00145                                                          3

       {¶7}   As set forth in Taylor Building Corporation of America v. Benfield, 117 Ohio

St.3d 352, 2008-Ohio-938, ¶ 2, our standard of review is de novo: "We hold that the proper

standard of review of a determination whether an arbitration agreement is enforceable in

light of a claim of unconscionability is de novo, but any factual findings of the trial court

must be accorded appropriate deference."

       {¶8}   A review of the transcript of the June 22, 2015 hearing reveals sworn

testimony was not taken, nor were any affidavits submitted. The only evidence before

the trial court was the enrollment agreement. During a rather one-sided colloquy between

the trial court and appellant's attorney, certain concessions were made: 1) appellant

drafted the agreement, 2) the parties were not on equal footing in negotiating the

agreement, and 3) a scrivener's error in the arbitration clause stated a student could

select "one of these organizations as the administrator" when in fact only "JAMS" was

listed as the designated arbitration administrator. T. at 10, 16-17, 20.

       {¶9}   Appellee concedes: 1) she signed the agreement and initialed the page

containing the arbitration clause, and 2) the claims asserted in her complaint fall under

the arbitration clause if found to be valid. Appellee's Brief at 12; T. at 36.

       {¶10} Therefore, our de novo review is limited to these five concessions and the

four corners of the enrollment agreement.

       {¶11} R.C. Chapter 2711 governs arbitration.             R.C. 2711.02(C) states the

following:



              Except as provided in division (D) of this section, an order under

       division (B) of this section that grants or denies a stay of a trial of any action
Stark County, Case No. 2015CA00145                                                       4


      pending arbitration, including, but not limited to, an order that is based upon

      a determination of the court that a party has waived arbitration under the

      arbitration agreement, is a final order and may be reviewed, affirmed,

      modified, or reversed on appeal pursuant to the Rules of Appellate

      Procedure and, to the extent not in conflict with those rules, Chapter 2505.

      of the Revised Code.



      {¶12} R.C. 2711.01(A) states the following:



             A provision in any written contract, except as provided in division (B)

      of this section, to settle by arbitration a controversy that subsequently arises

      out of the contract, or out of the refusal to perform the whole or any part of

      the contract, or any agreement in writing between two or more persons to

      submit to arbitration any controversy existing between them at the time of

      the agreement to submit, or arising after the agreement to submit, from a

      relationship then existing between them or that they simultaneously create,

      shall be valid, irrevocable, and enforceable, except upon grounds that exist

      at law or in equity for the revocation of any contract.



      {¶13} "In examining an arbitration clause, a court must bear in mind the strong

presumption in favor of arbitrability and resolve all doubts in favor of arbitrability."

Neubrander v. Dean Witter Reynolds, Inc., 81 Ohio App.3d 308, 311 (9th Dist.1992).
Stark County, Case No. 2015CA00145                                                        5


       {¶14} In its judgment entry filed July 7, 2015, the trial court found the arbitration

clause was unenforceable because it was both substantially and procedurally

unconscionable.

       {¶15} In Taylor Building, supra, at ¶ 34 and 42, respectively, the Supreme Court

of Ohio stated the following on the issue of "unconscionability":



              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.' "      Lake Ridge Academy v.

       Carney (1993), 66 Ohio St.3d 376, 383, 613 N.E.2d 183, quoting Williams

       v. Walker-Thomas Furniture Co. (C.A.D.C.1965), 350 F.2d 445, 449; see

       also Collins v. Click Camera & Video, Inc. (1993), 86 Ohio App.3d 826, 834,

       621 N.E.2d 1294. The party asserting unconscionability of a contract bears

       the burden of proving that the agreement is both procedurally and

       substantively unconscionable.     See generally Ball v. Ohio State Home

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

       6; see also Click Camera, 86 Ohio App.3d at 834, 621 N.E.2d

       1294, citing White & Summers, Uniform Commercial Code (1988) 219,

       Section 4–7 ("One must allege and prove a 'quantum' of both prongs in

       order to establish that a particular contract is unconscionable").

              Similarly, when 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
Stark County, Case No. 2015CA00145                                                       6


       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.



       {¶16} In Brunke v. Ohio State Home Services, Inc., 9th Dist. Lorain No.

08CA009320, 2008-Ohio-5394, our brethren from the Ninth District explained the

following:



              "Procedural unconscionability concerns the formation of the

       agreement and occurs when no voluntary meeting of the minds is

       possible." Porpora [v. Gatliff Building, Co., 160 Ohio App.3d 843, 2005-

       Ohio-2410] at ¶ 7, citing Bushman v. MFC Drilling, Inc. (July 19, 1995), 9th

       Dist. No. 2403-M. "This Court has held that when determining procedural

       unconscionability, a reviewing court must consider factors bearing directly

       to the relative bargaining position of the parties." Ball [v. Ohio State Home

       Services, Inc., 168 Ohio App.3d 622, 2006-Ohio-4464] at ¶ 7. Those factors

       include "age, education, intelligence, business acumen, experience in

       similar transactions, whether terms were explained to the weaker party, and

       who drafted the contract." Featherstone [v. Merrill Lynch, Pierce, Fenner

       Smith, Inc., 159 Ohio App.3d 27, 2004-Ohio-5953] at ¶ 13, quoting Eagle [v.

       Fred Martin Motor Co., 157 Ohio App.3d 150, 2004-Ohio-829] at ¶ 31.

       "Substantive unconscionability encompasses those factors that concern the

       contract terms themselves[.]"       Eagle at ¶ 31.       "Contractual terms are
Stark County, Case No. 2015CA00145                                                         7


       substantively unconscionable if they are unfair and commercially

       unreasonable." Ball at ¶ 7, citing Porpora at ¶ 8.



       {¶17} The Taylor Building court stated at ¶ 44:



              "Factors which may contribute to a finding of unconscionability in the

       bargaining process [i.e., procedural unconscionability] include the following:

       belief by the stronger party that there is no reasonable probability that the

       weaker party will fully perform the contract; knowledge of the stronger party

       that the weaker party will be unable to receive substantial benefits from the

       contract; knowledge of the stronger party that the weaker party is unable

       reasonably to protect his interests by reason of physical or mental

       infirmities, ignorance, illiteracy or inability to understand the language of the

       agreement, or similar factors."     Restatement of the Law 2d, Contracts

       (1981), Section 208, Comment d.



       {¶18} In its judgment entry filed July 7, 2015, the trial court found the agreement

to be an adhesion contract, explained in Taylor Building, supra, at ¶ 49, citing Black's Law

Dictionary (8th Ed.2004) 342, 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." As noted by Justice Cupp in Taylor Building at ¶ 50, not all adhesion

contracts are unconscionable per se:
Stark County, Case No. 2015CA00145                                                     8


             To be sure, an arbitration clause in a consumer contract with some

      characteristics of an adhesion contract "necessarily engenders more

      reservations than an arbitration clause in a different setting," such as a

      collective-bargaining agreement or a commercial contract between two

      businesses. Williams v. Aetna Fin. Co., 83 Ohio St.3d at 472, 700 N.E.2d

      859.    However, even a contract of adhesion is not in all instances

      unconscionable per se.       As the Seventh Circuit recently observed in

      rejecting a claim that an arbitration clause was unconscionable, "few

      consumer contracts are negotiated one clause at a time." Carbajal v. H &

      R Block Tax Servs., Inc. (C.A.7, 2004), 372 F.3d 903, 906. Indeed, so-

      called "form contracts" can provide advantages to consumers. "Forms

      reduce transactions costs and benefit consumers because, in competition,

      reductions in the cost of doing business show up as lower prices * * *." Id.



      {¶19} This observation is undeniably true.       If all adhesion contracts were

procedurally unconscionable, none of us would be bound by car lease/rental agreements,

standard credit card agreements, standard cell phone agreements, or airplane tickets (to

mention a few). As consumers, on a daily basis we accept and agree to terms included

in agreements in which we are not the drafters, we are not on equal footing, and the

agreements are on a "take-it-or-leave-it" basis.

      {¶20} As cited above, the case law directs us to look at the arbitration clause and

the weaker party's circumstances such as age and experience and the availability of other

entities offering the same opportunity. It was conceded at the hearing that appellee was
Stark County, Case No. 2015CA00145                                                            9


thirty-five years old and had two years of post-high school education. T. at 10, 34. As for

available alternatives to appellant's program, we can state Stark County has four four-

year colleges/universities and one technical college, as well as online for-profit schools.

Alternatives are not a defining issue.

       {¶21} The six-paragraph arbitration clause sub judice includes the following

language in part:



              If a student decides to initiate arbitration, the matter will be submitted

       to JAMS, which will serve as the arbitration administrator pursuant to its

       rules of procedure. If Brown Mackie College intends to initiate arbitration it

       will notify the student in writing by regular mail at the student's latest address

       on file with Brown Mackie College, and the student will have 20 days from

       the date of the letter to select one of these organizations as the

       administrator. If the student fails to select an administrator within that 20-

       day period, Brown Mackie College will select one.



       {¶22} The clause provides for either side to initiate arbitration and for appellant

(the drafter) to pay filing fees charged by the arbitration administrator, up to $3,500 per

claim. It further explains, in capital letters, what a person gives up in agreeing to arbitrate:



              IF EITHER A STUDENT OR BROWN MACKIE COLLEGE

       CHOOSES ARBITRATION NEITHER PARTY WILL HAVE THE RIGHT TO

       A JURY TRIAL, TO ENGAGE IN DISCOVERY, EXCEPT AS PROVIDED
Stark County, Case No. 2015CA00145                                                      10


      IN THE APPLICABLE ARBITRATION RULES, OR OTHERWISE TO

      LITIGATE THE DISPUTE OR CLAIM IN ANY COURT (OTHER THAN IN

      SMALL CLAIMS OR SIMILAR COURT, AS SET FORTH IN THE

      PRECEDING PARAGRAPH, OR IN AN ACTION TO ENFORCE THE

      ARBITRATOR'S AWARD). FURTHER, A STUDENT WILL NOT HAVE

      THE RIGHT TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER

      OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM SUBJECT

      TO ARBITRATION. THE ARBITRATOR'S DECISION WILL BE FINAL

      AND BINDING.        OTHER RIGHTS THAT A STUDENT OR BROWN

      MACKIE COLLEGE WOULD HAVE IN COURT ALSO MAY NOT BE

      AVAILABLE IN ARBITRATION.



      {¶23} The enrollment agreement as a whole, including the arbitration clause,

provides for a six day cancellation period with a refund of all fees paid by the applicant.

Right above appellee's signature is the acknowledgment in bold letters: "My signature

below certifies that I have read, understood all aspects of this agreement, and

agreed to my rights and responsibilities, and that the College's cancellation and

refund policies have been clearly explained to me. It also affirms that I have

received an exact copy of this agreement."

      {¶24} From the four corners of the agreement and the undisputed facts, we find

nothing in the record to conclude the arbitration clause was concealed from appellee, she

did not have the opportunity to read it, or she "was limited in understanding its impact in

any way." Schaefer v. Jim Brown, Inc., 11th Dist. Lake No. 2014-L-073, 2015-Ohio-1994,
Stark County, Case No. 2015CA00145                                                      11


¶ 16. In fact, appellee had six days to read and understand the agreement and could

have chosen to cancel it with a full refund of any monies paid. We find despite the fact

that the agreement is an adhesion contract, appellee has not met her burden of

establishing that the arbitration clause is procedurally and substantively unconscionable.

      {¶25} Upon review, we find the trial court erred in finding the arbitration clause to

be unenforceable.

      {¶26} Assignment of Error I is granted.

                                            II

      {¶27} Based on our decision in Assignment of Error I, we find this assignment of

error to be moot.
Stark County, Case No. 2015CA00145                                            12


       {¶28} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby reversed, and the matter is remanded to said court for further proceedings

consistent with this opinion

By Farmer, P.J.

Gwin, J. and

Wise, J. concur.

SGF/sg 115
