[Cite as Marion v. AWHR, L.L.C., 2012-Ohio-2912.]


                                     COURT OF APPEALS
                                    STARK COUNTY, OHIO
                                 FIFTH APPELLATE DISTRICT


SANDRA MARION, ET AL.                               :     JUDGES:
                                                    :
                                                    :     Hon. Patricia A. Delaney, P.J.
       Plaintiffs-Appellees                         :     Hon. John W. Wise, J.
                                                    :     Hon. Julie A. Edwards, J.
-vs-                                                :
                                                    :     Case No. 2012CA00005
AWHR, LLC, ET AL.                                   :
                                                    :
                                                    :
       Defendants-Appellants                        :     OPINION


CHARACTER OF PROCEEDING:                                Appeal from the Stark County Court of
                                                        Common Pleas, Case No. 2011CV03165



JUDGMENT:                                               REVERSED AND REMANDED




DATE OF JUDGMENT ENTRY:                                 June 22, 2012




APPEARANCES:

For Appellants:                                           For Appellees:

CRAIG S. COBB                                             DANIEL J. FUNK
55 Public Square, Suite 1580                              400 S. Main St.
Cleveland, OH 44113                                       North Canton, OH 44720




Delaney, P.J.
      {¶1} Defendant-Appellant AWHR, LLC appeals the December 9, 2011

judgment of the Stark County Court of Common Pleas to deny the motion to compel

arbitration and stay proceedings filed by AWHR, LLC. Plaintiffs-Appellees are Sandra

Marion and Ted Marion.

      {¶2} This case comes to us on the accelerated calendar. App. R. 11.1, which

governs accelerated calendar cases, provides in pertinent part:

      (E) Determination and judgment on appeal.

      The appeal will be determined as provided by App.R. 11.1. It shall be

      sufficient compliance with App.R. 12(A) for the statement of the reason

      for the court's decision as to each error to be in brief and conclusionary

      form.

      The decision may be by judgment entry in which case it will not be

      published in any form.

This appeal shall be considered in accordance with the aforementioned rule.

                       FACTS AND PROCEDURAL HISTORY

      {¶3} On February 5, 2009, AWHR installed a hot water tank and circulating

pump for the Marions at their residence. On that same day, a representative of AWHR

and Sandra Marion entered in a written agreement entitled: “AWHR Appliance Lifetime

Warranty and Service Plan Agreement.” The terms of the Agreement provide for the

installation and maintenance by AWHR of the hot water tank for a monthly charge of

$17.99 per month.

      {¶4} Paragraph 17 of the Agreement states:
Mandatory Arbitration of Disputes. ANY CLAIM, CONTROVERSY OR

DISPUTE OF ANY KIND BETWEEN THE CUSTOMER AND THE

COMPANY ARISING OUT OF OR RELATED TO THIS AGREEMENT

(WHETHER BASED ON CONTRACT, TORT, STATUTE, FRAUD,

MISREPRESENTATION OR ANY OTHER LEGAL OR EQUITABLE

THEORY)      SHALL     BE    RESOLVED       BY    FINAL    AND     BINDING

ARBITRATION, PURSUANT TO THE FOLLOWING TERMS: (i) The

Federal Arbitration Act not state law, shall govern the arbitration process

and the question of whether a claim is subject to arbitration.          The

customers, however, retains [sic] the right to take any claim, controversy

or dispute that qualifies to small claims court rather than arbitration. (ii)

A single arbitrator engaged in the practice of law will conduct the

arbitration. The arbitrator will be selected according to the rules of the

American Arbitration Association or alternatively, may be selected by

agreement of the parties, who shall cooperate in good faith to select the

arbitrator. The arbitration shall be conducted by, and under the then

applicable rules of, the American Arbitration Association. Any required

hearing fees and costs shall be paid by the parties as required by the

applicable rules, but the arbitrator shall have the power to apportion such

costs as the arbitrator deems appropriate. (iii) The arbitrator’s decision

and award will be final and binding, and judgment on the award rendered

by the arbitrator may be entered in any court with jurisdiction. (iv) No

claim, controversy or dispute may be joined in an arbitration with a claim,
      controversy or dispute of any other person, or resolved on a class-wide

      basis. The arbitrator may not award damages that are barred by this

      Agreement, and the Customer and the Company both waiver any claim

      for an award of damages that is excluded under this Agreement.

      {¶5} The hot water tank leaked and caused water and mold damage to the

Marion’s residence.

      {¶6} After the unsuccessful settlement of their claim through the insurance

providers for AWHR, the Marions filed a Complaint with the Stark County Court of

Common Pleas. The Complaint named AWHR and its insurer Zurich dba Maryland

Casualty Insurance Company as defendants. In the Complaint, the Marions alleged

the following against AWHR:

      4. The Plaintiffs entered into an agreement with the Defendant, AWHR,

      LLC, for the installation, leasing and servicing of a hot water tank and

      circulating pump (see attached Exhibit A [AWHR Appliance Lifetime

      Warranty and Service Plan Agreement]).

      ***

      COUNT ONE: BREACH OF EXPRESS/IMPLIED WARRANTY OF

      FTNESS [sic]

      6. Plaintiffs incorporate herein by reference the allegations contained in

      paragraphs 1-5 of their Complaint as if fully rewritten here.

      7. At the time of entering above referenced agreement, Defendant,

      AWHR, LLC, expressly and/or impliedly warrantied [sic] that the installed

      hot water tank would function properly.
      8. Defendant, AWHR, LLC, materially breached its’ [sic] express and/or

      implied warranty of fitness and duty to provide an operable and non-

      defective hot water tank.

      {¶7} AWHR filed an Answer to the Complaint asserting an affirmative defense

that the claims were subject to a mandatory arbitration provision in the Agreement.

AWHR filed a Motion to Compel Arbitration and Stay. The Marions filed a response to

the motion. In their response, the Marions argued their claim in the Complaint against

AWHR was not based on the Agreement. AWHR filed a reply.

      {¶8} On December 9, 2011, the trial court held a non-oral hearing and denied

the Motion to Compel Arbitration and Stay. The trial court found the arbitration clause

was both substantively and procedurally unconscionable as it relates to a consumer in

a consumer setting. It further held the claims presented by the Marions were not

based on the Agreement and therefore not subject to arbitration.

      {¶9} It is from this judgment AWHR now appeals.

                            ASSIGNMENTS OF ERROR

      {¶10} AWHR raises two Assignments of Error:

      {¶11} “I. THE TRIAL COURT ERRED WHEN IT DENIED AWHR’S MOTION

TO COMPEL ARBITRATION AND STAY AFTER FINDING THE ARBITRATION

PROVISION TO BE UNCONSCIONABLE WHERE APPELLEES MADE NO SUCH

ARGUMENT       AND     PRESENTED        NO    EVIDENCE       TO    SUPPORT       THAT

CONCLUSION.
      {¶12} “II. THE TRIAL COURT ERRED WHEN IT FOUND THAT APPELLEES’

CLAIMS FELL OUTSIDE OF THE CONTRACT AND THEREFORE WERE NOT

SUBJECT TO ARBITRATION.

                                     ANALYSIS

      {¶13} The Ohio General Assembly and Ohio courts have expressed a strong

public policy favoring arbitration. Hayes v. Oakridge Home, 122 Ohio St.3d 63, 2009-

Ohio-2054, 908 N.E.2d 408, ¶ 15 citing R.C. Chapter 2711 and Taylor Bldg. Corp of

Am. v. Benfield, 117 Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12, ¶ 27. Because

of the strong presumption favoring arbitration, all doubts should be resolved in its

favor. Hayes, supra citing Ignazio v. Clear Channel Broadcasting, Inc. 113 Ohio St.3d

276, 2007-Ohio-1947, 865 N.E.2d 18, ¶ 18.

                               UNCONSCIONABILITY


      {¶14} AWHR argues in its first Assignment of Error that the trial court erred as

a matter of law in finding the arbitration clause was both procedurally and

substantively unconscionable. We agree.

      {¶15} An arbitration agreement is enforceable unless grounds exist at law or in

equity for revoking the agreement. R.C. 2711.01(A). Unconscionability is a ground for

revocation of an arbitration agreement. Taylor Bldg., supra at ¶ 33. Whether an

arbitration clause is unconscionable is a question of law for which the reviewing court

employs a de novo standard of review. Taylor Bldg., supra at ¶ 37.

      {¶16} This Court examined the unconscionability of an arbitration agreement in

Lynn v. McKinley Ground Transport, LLC, 185 Ohio App.3d 146, 2009-Ohio-6088 (5th

Dist.). We stated:
       Unconscionability rests on a two-prong analysis: substantive and

procedural. Eagle v. Fred Martin Motor Co., 157 Ohio App.3d 150, 2004-

Ohio-829, 809 N.E.2d 1161. Substantive unconscionability relates to the

contract terms themselves and whether they are commercially reasonable.

Procedural unconscionability deals with those factors relating to the

ultimate bargaining positions of the contracting parties, i.e., age,

education, intelligence, business acumen, and experience.

       In Eagle, our brethren from the Ninth District explained the

following:

       “An unconscionable contract clause is one in which there is an

absence of meaningful choice for the contracting parties, coupled with

draconian contract terms unreasonably favorable to the other party.

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

621 N.E.2d 1294. Thus, the doctrine of unconscionability consists of two

separate concepts:

       “‘(1) [U]nfair 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.”      * * * These two

concepts create what is, in essence, a two-prong test of unconscionability.

One must allege and prove a “quantum” of both prongs in order to

establish that a particular contract is unconscionable.’ (Citations omitted.)

[Collins v. Click Camera & Video, Inc.], 86 Ohio App.3d at 834, 621 N.E.2d
      1294.” Eagle, 157 Ohio App.3d 150, 2004-Ohio-829, 809 N.E.2d 1161, ¶

      30.

             In Hayes v. Oakridge Home, 122 Ohio St.3d 63, 2009-Ohio-2054,

      908 N.E.2d 408, ¶ 30, the Supreme Court of Ohio stated the following:

             “All of the factors must be examined and weighed in their totality in

      determining     whether   an      arbitration   agreement   is   procedurally

      unconscionable. These findings must be considered in tandem with the

      analysis on substantive unconscionability.         A party challenging an

      arbitration agreement must prove a quantum of both procedural and

      substantive unconscionability.”

Lynn, supra at ¶ 17-22.

      {¶17} AWHR argues the Marions failed to meet their burden to allege and

prove a quantum of both substantive and procedural unconscionability of the

arbitration clause.   We agree.      A trial court’s determination of procedural and

substantive unconscionability must be based on the evidence in the record.            See

Lynn, supra at ¶ 23, 26, and 32. In this case, there is no evidence in the record, other

than the Agreement and the arbitration clause, to support the trial court’s finding the

arbitration clause was procedurally and substantively unconscionable. The trial court

held a non-oral hearing on the Motion.         The Marions’ response to the Motion to

Compel Arbitration and Stay did not raise the argument of unconscionability.

      {¶18} Accordingly, the first Assignment of Error of AWHR is sustained.
                        CLAIMS WITHIN THE AGREEMENT

      {¶19} AWHR next argues the trial court erred in determining the Marions’

claims against AWHR were not based on the Agreement. We agree.

      {¶20} The Marions argued in their response to the Motion that the Agreement

was a service contract and not the basis of their claim for breach of warranty to

provide an operable and non-defective hot water tank. In their Complaint, however,

the Marions alleged:

      4. The Plaintiffs entered into an agreement with the Defendant, AWHR,

      LLC, for the installation, leasing and servicing of a hot water tank and

      circulating pump (see attached Exhibit A [AWHR Appliance Lifetime

      Warranty and Service Plan Agreement]).

      ***

      COUNT ONE: BREACH OF EXPRESS/IMPLIED WARRANTY OF

      FTNESS [sic]

      6. Plaintiffs incorporate herein by reference the allegations contained in

      paragraphs 1-5 of their Complaint as if fully rewritten here.

      7. At the time of entering above referenced agreement, Defendant,

      AWHR, LLC, expressly and/or impliedly warrantied [sic] that the installed

      hot water tank would function properly.

      8. Defendant, AWHR, LLC, materially breached its’ [sic] express and/or

      implied warranty of fitness and duty to provide an operable and non-

      defective hot water tank.

      {¶21} The arbitration clause reads in pertinent part:
       ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND BETWEEN

       THE CUSTOMER AND THE COMPANY ARISING OUT OF OR

       RELATED       TO    THIS      AGREEMENT    (WHETHER      BASED      ON

       CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR

       ANY    OTHER       LEGAL      OR   EQUITABLE   THEORY)     SHALL    BE

       RESOLVED BY FINAL AND BINDING ARBITRATION * * *

       {¶22} The Marions’ claim for breach of warranty is within the Agreement and is

subject to the arbitration clause.

       {¶23} The second Assignment of Error of AWHR is sustained.
                                  CONCLUSION

       {¶24} Upon review, we find the trial court erred in denying AWHR’s Motion to

Compel Arbitration and Stay. AWHR’s Assignments of Error are sustained.

       {¶25} The judgment of the Stark County Court of Common Pleas is reversed

and the matter is remanded for further proceedings consistent with this opinion and

law.

By: Delaney, P.J.

Wise, J. and

Edwards, J. concur.



                                     HON. PATRICIA A. DELANEY



                                     HON. JOHN W. WISE



                                     HON. JULIE A. EDWARDS


PAD:kgb
                    IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                           FIFTH APPELLATE DISTRICT


                                     :
SANDRA MARION, et al.                :
                                     :
   Plaintiffs-Appellees              :       JUDGMENT ENTRY
                                     :
                                     :
-vs-                                 :
                                     :       Case No.   2012CA00005
AWHR, LLC, et al.                   :
                                    :
  Defendants-Appellants             :
                                    :


   For the reasons stated in our accompanying Opinion on file, the judgment of the

Stark County Court of Common Pleas is reversed and remanded. Costs assessed to

Appellees.




                                    HON. PATRICIA A. DELANEY



                                    HON. JOHN W. WISE



                                    HON. JULIE A. EDWARDS
