Moran v. Riverfront Diversified, Inc.

2011 Ohio 6328, 968 N.E.2d 1, 197 Ohio App. 3d 471
CourtOhio Court of Appeals
DecidedDecember 9, 2011
Docket24545
StatusPublished
Cited by10 cases

This text of 2011 Ohio 6328 (Moran v. Riverfront Diversified, Inc.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moran v. Riverfront Diversified, Inc., 2011 Ohio 6328, 968 N.E.2d 1, 197 Ohio App. 3d 471 (Ohio Ct. App. 2011).

Opinions

Hall, Judge.

{¶ 1} Riverfront Diversified, Inc., d.b.a. Everdry Waterproofing (“Everdry”), appeals from the trial court’s decision and entry denying its motion to stay proceedings and to compel arbitration.1

{¶ 2} Everdry advances two assignments of error on appeal. First, Everdry contends that the trial court erred in failing to conduct a hearing before denying its motion. Second, Everdry claims that the trial court erred in refusing to enforce the parties’ arbitration agreement.

{¶ 3} The record reflects that appellee Geraldine Moran contacted Everdry about repairing cracks in her home’s foundation. In January 2009, Everdry representative Eddie Joiner inspected the home and gave Moran an estimate for the work. Moran and Joiner proceeded to sign a contract to have Everdry perform the work. The terms and conditions of the contract included the following language regarding arbitration:

{¶ 4} “Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the Arbitrator(s) may be entered in any Court having jurisdiction thereof.”

{¶ 5} Shortly after the parties signed the contract, Everdry completed its work. Thereafter, on May 3, 2010, Moran filed a complaint against Everdry, alleging that the company had failed to repair her foundation. According to the complaint, the cracks had worsened since Everdry completed its work. Moran’s complaint set forth statutory and common-law claims against Everdry. She sought actual damages of more than $20,000, statutory damages in excess of $62,000, and punitive damages of $180,000.

{¶ 6} In July 2010, Everdry moved to stay proceedings and to compel arbitration pursuant to the arbitration clause quoted above. Moran opposed the motion, arguing that the arbitration clause was procedurally and substantively unconscionable and, therefore, unenforceable. Everdry filed a reply in which it noted the absence of evidence to support Moran’s claims. Attached to the reply was an [475]*475affidavit from Eddie Joiner. In response, Moran filed a surreply in which she provided the trial court with her own affidavit.

{¶ 7} On March 21, 2011, the trial court filed its decision and entry denying Everdry’s motion to stay proceedings and to compel arbitration. The trial court correctly analyzed the applicable law, which requires the opponent to an arbitration clause to prove that the clause is both procedurally and substantively unconscionable before the court will decline to enforce it. Brownell v. Van Wyk, Montgomery App. No. 24042, 2010-Ohio-6338, 2010 WL 5452103, ¶ 26. Brownell further explains the considerations the trial court should make in determining procedural and substantive unconscionability.

{¶ 8} In evaluating the facts before it, the trial court stated:

{¶ 9} “In this case, the contract was a standard form contract prepared by Defendant and issued to Plaintiff. As such, the Court finds the contract was adhesive in nature. Moreover, Plaintiff has averred that she is 88 years old, lives at home, and has little business experience. Plaintiffs letter sent to the Defendant and attached as Exhibit 1 to Defendant’s reply may bear on Plaintiffs claims, and tends to suggest a general level of comprehension by Plaintiff of the services rendered by Defendant. However, this evidence does not bear on the enforceability of the arbitration provision or Plaintiffs understanding of this provision. Based on the foregoing facts, the Court finds the arbitration provision was procedurally unconscionable.
{¶ 10} “As to whether the provision is substantively unconscionable, Defendant’s estimator avers that he ‘specifically went through the terms and conditions’ with Plaintiff. Plaintiff avers that she did not understand the arbitration provision, has never been involved in arbitration, and that the estimator did not explain that by signing the contract she would be giving up her right to have her day in court. Plaintiff avers that the estimator did not explain how the arbitration process would work, provide information about the arbitration process, explain that the arbitration process can be expensive, explain that by signing the contract she would have to pay for arbitration, or explain the papers that she signed when Defendant completed its work. Citing to the Construction Industry Arbitration Rules and Mediation Procedures, Plaintiff represents that she would be responsible for a $975 filing fee, administrative fees and various expenses, the arbitrator’s hourly compensation fee (minimum 4 hours) and a final fee of $300. These projected costs have not been disputed. The damages sought by Plaintiff do not bear on the costs the Plaintiff will incur if her case is arbitrated, or on her awareness of those costs prior to signing the contract. The Court finds that the mechanics of the arbitration process and its costs were not explained to the Plaintiff, and therefore the arbitration provision is substantively unconscionable under the circumstances of this case.”

[476]*476{¶ 11} In its first assignment of error, Everdry contends that the trial court erred in failing to hold a hearing before denying its motion to compel arbitration. While it concedes that a hearing is not required before a trial court rules on a motion to stay proceedings, Everdry contends that the same is not true for a motion to compel arbitration. In support, Everdry relies on R.C. 2711.03, which provides: “The court shall hear the parties, and, upon being satisfied that the making of the agreement for arbitration or the failure to comply with the agreement is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the agreement.” (Emphasis added.) See also Garcia v. Wayne Homes, L.L.C. (Apr. 19, 2002), Clark App. No. 2001 CA 53, 2002 WL 628619, *6 (noting that the statute “requires courts to conduct a hearing to determine the legitimacy of arbitration clause validity challenges”).

{¶ 12} Upon review, we find that the trial court’s failure to conduct an evidentiary hearing before ruling on Everdry’s motion to compel arbitration is not inherently reversible error. Everdry never requested an oral hearing, and both parties submitted affidavits in support of their written arguments. At least three other Ohio appellate courts have concluded that a party waives its right to an R.C. 2711.03 hearing by failing to request one. Hoppel v. Feldman, Columbiana App. No. 09 CO 34, 2011-Ohio-1183, 2011 WL 862052, ¶ 41 (citing cases). The case upon which Everdry relies, Brunke v. Ohio State Home Servs., Inc., Lorain App. No. 06CA008947, 2007-Ohio-3119, 2007 WL 1805026, is distinguishable because the complaining party there had requested a hearing. We note, too, that the parties here were “heard” insofar as they submitted evidence to the trial court in the form of affidavits. See Hoppel at ¶ 42 (reasoning that “a party is ‘heard’ for the purposes of R.C. 2711.03 where the trial court accepts his or her affidavit”).

{¶ 13} Defendant’s Motion to Stay Proceedings and Compel Arbitration was filed on July 22, 2010, and the only evidentiary material presented was the attached home-repair contract, front and back, containing the arbitration clause.

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Moran v. Riverfront Diversified, Inc.
2011 Ohio 6328 (Ohio Court of Appeals, 2011)

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Bluebook (online)
2011 Ohio 6328, 968 N.E.2d 1, 197 Ohio App. 3d 471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moran-v-riverfront-diversified-inc-ohioctapp-2011.