[Cite as Fry v. FCA US L.L.C., 2017-Ohio-7005.]




                           IN THE COURT OF APPEALS OF OHIO
                               SIXTH APPELLATE DISTRICT
                                    LUCAS COUNTY


Jason Fry                                             Court of Appeals No. L-16-1230

        Appellant                                     Trial Court No. CI0201504812

v.

FCA US LLC, et al.                                    DECISION AND JUDGMENT

        Appellees                                     Decided: July 28, 2017

                                                  *****

        Sean H. Sobel, for appellant.

        Heidi N. Hartman, for appellees.

                                                  *****

        JENSEN, P.J.

                                           I. Introduction

        {¶ 1} This is an appeal from the judgment of the Lucas County Court of Common

Pleas, granting appellees’, FCA US LLC (“Chrysler”) and Sarah Bento, motion for

summary judgment based upon its determination that appellant’s, Jason Fry, claims were

untimely filed. Finding no error, we affirm.
                         A. Facts and Procedural Background

       {¶ 2} Appellant commenced this action upon the filing of a “Complaint for

Injunctive Relief and Damages” with the trial court on November 17, 2015. In his

complaint, appellant alleged that he is legally blind. Appellant applied to work at

Chrysler at its Toledo Assembly Complex in the spring of 2014. According to the

complaint, appellant was given an initial phone screening on April 29, 2014. On May 23,

2014, appellant traveled to Chrysler’s premises for an onsite assessment, where he

completed various tests over the course of several hours. Ultimately, appellant was

offered a position with Chrysler on May 27, 2014.

       {¶ 3} On May 28, 2014, appellant underwent a physical examination at the Toledo

Assembly Complex. Due to his vision impairment, Chrysler’s physician concluded that

appellant could not operate forklifts or company vehicles. No other limitations were

indicated.

       {¶ 4} Approximately nine months later, Chrysler contacted appellant to inform

him that his employment would commence on February 18, 2015. According to his

complaint, appellant worked without incident for two days. However, on February 20,

2015, appellant was “removed from safety training due to what Bento, Chrysler’s

[Human Resources] Representative, called a ‘question about [his] physical.’” Bento

terminated appellant’s employment one hour later, informing appellant that Chrysler was

unable to accommodate his vision impairment.




2.
        {¶ 5} Asserting that Chrysler’s stated reason for termination was merely

pretextual, appellant filed the aforementioned complaint, asserting claims for disability

discrimination, wrongful termination, failure to provide a reasonable accommodation,

and intentional infliction of emotional distress.

        {¶ 6} Appellees responded to appellant’s complaint on January 15, 2016, by filing

a motion to dismiss the action. In their motion, appellees argued that the action was

untimely filed based upon a provision within appellant’s application for employment,

which states:

                In consideration of the review of my application:

                ***

                7. I agree that any lawsuit arising out of my employment with, or

        my application for employment with, Chrysler Group LLC1 or any of its

        subsidiaries and affiliates must be filed no more than 180 days after the

        date of the employment action that is the subject of the lawsuit. While I

        understand that the statute of limitations for claims arising out of an

        employment action may be longer than 180 days, I agree to be bound by the

        180 day period of limitations and I WAIVE ANY STATUTE OF

        LIMITATIONS TO THE CONTRARY.




1
    FCA US LLC was formerly known as Chrysler Group LLC.




3.
According to appellees’ answer, appellant typed his first and last name and authorized the

use of his electronic signature to execute the application for employment.

       {¶ 7} Because appellant’s employment was terminated on February 20, 2015, and

appellant did not file his complaint until almost nine months later on November 17, 2015,

appellees contended that appellant’s claims were untimely under the 180-day limitations

period to which appellant agreed.

       {¶ 8} On February 3, 2016, appellant filed a memorandum in opposition to

appellees’ motion to dismiss. In his memorandum, appellant argued that he was not

contractually bound to the limitations period set forth in his application for employment,

because appellees’ promise to review his application did not constitute sufficient

consideration to form a contract. Appellant also argued that there was no meeting of the

minds with Chrysler because he had no reasonable opportunity to consider or negotiate

the terms of the contract, which was allegedly “thrust upon” him. Further, appellant

contended that he did not fully understand the terms of the limitations provision prior to

agreeing to be bound by it.

       {¶ 9} On April 12, 2016, the trial court issued an order converting appellees’

motion to dismiss into a motion for summary judgment. Consequently, the trial court

granted appellant additional time to offer evidence and arguments in response to

appellees’ motion.

       {¶ 10} Appellant filed his subsequent memorandum in opposition to appellees’

motion for summary judgment on May 6, 2016, in which appellant essentially advanced




4.
the same arguments as he had previously raised prior to the trial court’s conversion of the

motion to dismiss. Along with his memorandum in opposition to appellees’ motion for

summary judgment, appellant attached a “Declaration of Jason Fry Pursuant to 28 U.S.C.

§ 1746.” In his declaration, appellant asserted that he is legally blind. Appellant also

asserted that he was not given an opportunity to speak with Chrysler officials about the

terms of the application for employment or to alter its terms. Further, appellant

contended that he was not allowed to print a copy of the application with larger print so

that he could read the fine print. At the end of the declaration, appellant stated: “I

DECLARE, CERTIFY, VERIFY pursuant to 28 U.S.C. § 1746 that the foregoing is true

and correct.”

       {¶ 11} Appellees responded to appellant’s memorandum by the filing of a reply on

May 26, 2016. In their reply, appellees argued that unsworn written statements such as

appellant’s declaration could not be substituted for sworn affidavits under Ohio law. As

such, appellees insisted that the trial court could not consider appellant’s declaration as

evidence to support his arguments in opposition to summary judgment. Further,

appellees argued that the limitations provision was supported by adequate consideration

in the form of Chrysler’s promise to review appellant’s application. Moreover, appellees

contended that the limitations period provision was not unconscionable merely because

appellant failed to ascertain the terms of the contract before he signed it. In support of

their argument, appellees cited the following language from the acknowledgement page




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of the application for employment: “I have read and understand the statements contained

in this application and certify that they are true.”

       {¶ 12} Upon consideration of the parties’ arguments, the trial court issued its

decision on the motion for summary judgment on September 14, 2016. In its decision,

the trial court found that appellant’s unsworn declaration could not serve as an affidavit

under Ohio law, and therefore did not constitute Civ.R. 56(C) evidence that could be used

to meet appellant’s reciprocal evidentiary burden. As to the enforceability of the

limitations provision, the trial court determined that the limitations period was supported

by consideration. The court also found that appellant failed to introduce any evidence

that would raise a question of fact regarding his meeting of the minds argument.

Consequently, the court found that the limitations provision was enforceable, thereby

rendering appellant’s claims untimely and entitling appellees to summary judgment.

                                 B. Assignments of Error

       {¶ 13} Appellant has timely appealed the trial court’s grant of summary judgment

to appellees, asserting the following assignments of error:

              Assignment of Error I: The trial court committed reversible error by

       creating a contract out of the application.

              Assignment of Error II: The trial court committed reversible error

       by finding the contract between Fry and FCA US LLC was not

       procedurally unconscionable.




6.
                                       II. Analysis

                                 A. Standard of Review

      {¶ 14} A motion for summary judgment is reviewed de novo by an appellate court.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). “‘When

reviewing a trial court’s ruling on summary judgment the court of appeals conducts an

independent review of the record and stands in the shoes of the trial court.’” Gunsorek v.

Pingue, 135 Ohio App.3d 695, 700, 735 N.E.2d 487 (10th Dist.1999), quoting Baker v.

Buschman Co., 127 Ohio App.3d 561, 566, 713 N.E.2d 487 (12th Dist.1998).

      {¶ 15} In order to obtain summary judgment at the trial level,

             [I]t must be determined that (1) there is no genuine issue of material

      fact; (2) the moving party is entitled to judgment as a matter of law; and

      (3) it appears from the evidence that reasonable minds can come to but one

      conclusion when viewing the evidence in favor of the nonmoving party,

      and that conclusion is adverse to the nonmoving party. State ex rel. Cassels

      v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 219, 631

      N.E.2d 150 (1994), citing Davis v. Loopco Industries, Inc., 66 Ohio St.3d

      64, 65-66, 609 N.E.2d 144 (1993); see also Civ.R. 56(C).

                               B. Existence of a Contract

      {¶ 16} In his first assignment of error, appellant argues that the trial court erred in

concluding that he entered into a contract with Chrysler upon his execution of the

application for employment.




7.
       {¶ 17} A contract is a promise or a set of promises that can be enforced when one

person fails to fulfill the promise. Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985,

770 N.E.2d 58, ¶ 16, citing Pawlowski v. Pawlowski, 83 Ohio App.3d 794, 798-799, 615

N.E.2d 1071 (10th Dist.1992). A contract consists of an offer, acceptance, and

consideration. Id., citing Perlmuter Printing Co. v. Strome, Inc., 436 F.Supp. 409, 411

(N.D.Ohio 1976). An offer is defined as “‘the manifestation of willingness to enter into a

bargain, so made as to justify another person in understanding that his assent to that

bargain is invited and will conclude it.’” Garrison v. Daytonian Hotel, 105 Ohio App.3d

322, 325, 663 N.E.2d 1316 (2d Dist.1995), quoting 1 Restatement of the Law 2d 71,

Contracts, Section 24. Consideration is the bargained for legal benefit or detriment. Id.

The presence or absence of consideration is a proper question for the court. Irving

Leasing Corp. v. M & H Tire Co., 16 Ohio App.3d 191, 192, 475 N.E.2d 127 (2d

Dist.1984). However, once consideration is found to exist, the court may not inquire into

the adequacy of that consideration. Williams v. Ormsby, 131 Ohio St.3d 427, 2012-Ohio-

690, 966 N.E.2d 255, ¶ 17.

       {¶ 18} Here, the express terms of the application for employment demonstrate

Chrysler’s willingness to enter into a bargain. Specifically, Chrysler offered to review

appellant’s application in exchange for his agreement to be bound by a shorter period of

limitations than would otherwise be available to him under the Ohio Revised Code.

Appellant’s assent to those terms was all that was required in order to conclude the

bargain. Therefore, we find that the application for employment constituted an offer




8.
upon its presentation to appellant. When appellant executed the application, his

acceptance of the offer was complete, and the agreement was formed. This agreement

was supported by consideration in that Chrysler was obligating itself to review

appellant’s application, which it would not otherwise be obligated to do, and appellant

was waiving certain legal rights that he otherwise would possess under Ohio law.

Because the parties’ agreement was supported by consideration, we find that the trial

court properly found that a contract was formed in this case.

       {¶ 19} Notwithstanding the foregoing analysis, appellant argues that the

application for employment does not constitute an offer because it does not represent a

manifestation of Chrysler’s intent to enter into a bargain such that appellant would

understand that his assent to the terms contained therein was all that was needed to

conclude the bargain. We find no merit to appellant’s argument in light of the clear

language contained in the application. The authority appellant cites in support of his

argument is unavailing. Indeed, the cases appellant relies upon are factually

distinguishable insofar as they relate to instances in which the parties are in the process of

negotiations and the terms of the acceptance are different from the terms of the offer,

thereby creating a counteroffer rather than an acceptance. See Foster v. Ohio State Univ.,

41 Ohio App.3d 86, 88, 534 N.E.2d 1220 (10th Dist.1987) (finding that plaintiff’s

purported acceptance of defendant’s offer to begin employment on July 1, 1983, was

actually a counteroffer because plaintiff indicated that he desired to commence

employment on July 15, 1983, thereby altering the terms of defendant’s offer). Such is




9.
not the case here. In this case, appellant executed the application for employment

without modification of its terms.

       {¶ 20} Next, appellant argues that a contract could not exist in this case because

there was no meeting of the minds between the parties. A “meeting of the minds”

between parties is an essential element of a valid contract. Noroski v. Fallet, 2 Ohio

St.3d 77, 79, 442 N.E.2d 1302 (1982). “The ‘meeting of the minds’ is normally

manifested by an offer and acceptance.” Dalicandro v. Morrison Rd. Dev. Co., 10th Dist.

Franklin Nos. 00AP-619 and 656, 2001 Ohio App. LEXIS 1765, * 30 (Apr. 17, 2001),

citing Nilavar v. Osborn, 137 Ohio App.3d 469, 484, 738 N.E.2d 1271 (2d Dist.2000).

“Thus, the signing of an agreement and acquiescence in its effect generally demonstrates

the existence of a ‘meeting of the minds.’” Id., citing Cuyahoga Cty. Hospitals v. Price,

64 Ohio App.3d 410, 416, 581 N.E.2d 1125 (8th Dist.1989).

       {¶ 21} As indicated above, Chrysler’s offer to review appellant’s application in

exchange for certain concessions from appellant, and appellant’s execution of the

application for employment indicating his acceptance of Chrysler’s offer, is clear from

the undisputed facts. Appellant insists that, because he is legally blind and only

possesses a high school education, he did not hold the requisite level of knowledge,

experience, or sophistication to understand the language in the application. Notably,

appellant does not allege that he is illiterate. Moreover, appellant made no attempt to

modify the terms of the application for employment, nor did he question Chrysler

regarding the meaning of its terms. “[P]arties to contracts are presumed to have read and




10.
understood them and * * * a signatory is bound by a contract that he or she willingly

signed.” Preferred Capital, Inc. v. Power Engineering Group, Inc., 112 Ohio St.3d 429,

2007-Ohio-257, 860 N.E.2d 741, ¶ 10. Similarly, the Eighth District has previously

stated:

                 A party entering a contract has a responsibility to learn the terms of

          the contract prior to agreeing to its terms. The law does not require that

          each aspect of a contract be explained orally to a party prior to signing.

          [ABM Farms, Inc. v. Woods, 81 Ohio St.3d 498, 503, 692 N.E.2d 574

          (1997).] “It will not do for a man to enter into a contract, and, when called

          upon to respond to its obligations, to say that he did not read it when he

          signed it, or did not know what it contained. If this were permitted,

          contracts would not be worth the paper on which they are written.” [Id.]

          citing Upton v. Tribilcock, 91 U.S. 45, 50, 23 L.Ed. 203 (1875). Estate of

          Brewer v. Dowell & Jones, Inc., 8th Dist. Cuyahoga No. 80563, 2002-

          Ohio-3440, ¶ 13.

          {¶ 22} In light of the foregoing, we find that the evidence contained in the record

establishes that a meeting of the minds occurred in this case. Therefore, appellant’s

argument concerning a lack of a meeting of the minds is without merit.

          {¶ 23} Appellant further argues that the application for employment could not

constitute a contract because it was not supported by consideration. First, appellant

contends that there was no express consideration given by Chrysler in the application.




11.
We reject this argument outright, as the terms of the application for employment are

preceded by the phrase “In consideration of the review of my application.”

       {¶ 24} Next, appellant argues that Chrysler’s promise to review his application

was illusory because “any implied promise to consider [appellant] for employment was

on [Chrysler’s] own schedule and could be abandoned at their discretion once they find

the right candidate to hire before considering the rest of the applicants.” In support,

appellant cites several federal arbitration cases that stand for the proposition that an

employer’s promise to consider an applicant for hire is insufficient to form a contract and

render an arbitration provision enforceable.

       {¶ 25} At the outset, we note that the authority appellant relies upon in support of

his argument is either factually distinguishable insofar as this case does not involve the

enforceability of an arbitration provision, or otherwise not binding on this court due to

the fact that the cases are not Ohio cases. Under well-established Ohio law, courts

generally do not inquire into the adequacy of consideration once consideration is found to

exist. Butcher v. Bally Total Fitness Corp., 8th Dist. Cuyahoga No. 81593, 2003-Ohio-

1734, ¶ 31. In this case, consideration is evident from the four corners of the application

for employment. Moreover, appellant’s assertion that Chrysler’s promise to review his

application was illusory is belied by the fact that Chrysler hired appellant upon its review

of his application. Thus, we find no merit to appellant’s assertion that his assent to the

limitations provision in the application for employment rested upon an illusory promise.




12.
       {¶ 26} Additionally, we find no merit to appellant’s argument that mutuality of

obligation was lacking in this case simply because the application for employment does

not expressly limit Chrysler’s ability to sue appellant beyond the 180-day period.

Consideration requires mutuality of obligation. However, “the obligations of each are not

required to be identical.” Robbins v. Country Club Ret. Ctr. IV, Inc., 7th Dist. Belmont

No. 04 BE 43, 2005-Ohio-1338, ¶ 26. In this case, Chrysler is obligated to review

appellant’s application, which it did prior to selecting him for employment. Thus,

mutuality of obligation is present here.

       {¶ 27} Having found no merit to appellant’s arguments concerning the trial court’s

finding that the application for employment constituted an enforceable contract, we find

that appellant’s first assignment is not well-taken.

                           C. Conscionability of the Contract

       {¶ 28} In his second assignment of error, appellant argues that the trial court erred

in finding that the application for employment was not procedurally unconscionable.

       {¶ 29} A determination of whether a written contract is unconscionable is an issue

of law that we review de novo. Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St.3d

352, 2008-Ohio-938, 884 N.E.2d 12, ¶ 34. The defense that a contract or contract

provision is unenforceable on the ground that it is unconscionable is premised on a

finding that a party did not have any meaningful choice when entering into the contract or

the contract terms are unreasonably favorable to one party. Lake Ridge Academy v.

Carney, 66 Ohio St.3d 376, 382, 613 N.E.2d 183 (1993). “The party asserting




13.
unconscionability of a contract bears the burden of proving that the agreement is both

procedurally and substantively unconscionable.” Taylor at ¶ 33.

       {¶ 30} “‘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. Lorain No. 08CA009320, 2008-Ohio-5394, ¶ 10, quoting

Porpora v. Gatliff Bldg. Co., 160 Ohio App.3d 843, 2005-Ohio-2410, 828 N.E.2d 1081, ¶

7 (9th Dist.). To evaluate procedural unconscionability, courts consider factors relating

to the relative bargaining position of the parties, including “age, education, intelligence,

business acumen, experience in similar transactions, whether the terms were explained to

the weaker party, and who drafted the contract.” Eagle v. Fred Martin Motor Co., 157

Ohio App.3d 150, 2004-Ohio-829, 809 N.E.2d 1161, ¶ 31 (9th Dist.). No one factor

alone determines whether a contract is procedurally unconscionable. Hayes v. Oakridge

Home, 122 Ohio St.3d 63, 2009-Ohio-2054, 908 N.E.2d 408, ¶ 29. Rather, procedural

unconscionability is determined after consideration of the totality of the circumstances.

Id. at ¶ 30.

       {¶ 31} In this case, our ability to consider the totality of the circumstances is

frustrated by the fact that appellant submitted no evidence apart from his declaration in

which he asserted that he is legally blind, that he was not given an opportunity to speak

with Chrysler officials about the terms of the application for employment or to alter its

terms, and that he was not allowed to print a copy of the application with larger print so

that he could read the fine print. Even assuming, arguendo, that this evidence was




14.
admissible under Civ.R. 56, we find that appellant has failed to meet his burden of

establishing unconscionability. As noted above, appellant makes no argument that he is

illiterate or was unable to read the application for employment despite his alleged legal

blindness. While he states that he was unable to understand the meaning of some of the

terms contained in the application for employment, there is no record of appellant asking

Chrysler officials for an explanation of such terms.

       {¶ 32} Moreover, appellant has failed to demonstrate that the terms of the

application for employment are unreasonably favorable to Chrysler or that he had no

meaningful choice when entering into the contract. Indeed, appellant was free to find

another employer if he was unsatisfied with Chrysler’s terms of employment, which we

find were reasonable in light of Chrysler’s offer to review appellant’s application and its

subsequent decision to hire appellant.

       {¶ 33} In sum, we conclude that appellant has failed to demonstrate that the

application for employment was procedurally or substantively unconscionable.

Accordingly, appellant’s second assignment of error is not well-taken.

                                     III. Conclusion

       {¶ 34} For the foregoing reasons, the judgment of the Lucas County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.


                                                                         Judgment affirmed.




15.
                                                                      Fry v. FCA US LLC
                                                                      C.A. No. L-16-1230




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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