Myers v. Terminix International Co.

697 N.E.2d 277, 91 Ohio Misc. 2d 41, 1998 Ohio Misc. LEXIS 8
CourtLucas County Court of Common Pleas
DecidedJanuary 27, 1998
DocketNo. CI97-1797
StatusPublished
Cited by2 cases

This text of 697 N.E.2d 277 (Myers v. Terminix International Co.) is published on Counsel Stack Legal Research, covering Lucas County Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Myers v. Terminix International Co., 697 N.E.2d 277, 91 Ohio Misc. 2d 41, 1998 Ohio Misc. LEXIS 8 (Ohio Super. Ct. 1998).

Opinion

ChaRles J. Doneghy, Judge.

This consumer sales case is before the court on the defendants’1 motion to stay this action pending arbitration and on the plaintiffs motion for partial summary judgment. Upon review of the pleadings, evidence, memoranda of the parties, and applicable law, the court finds that the defendants’ motion should be denied and the plaintiffs motion should be granted.

I. FACTS

On or about September 8, 1993, the plaintiff, Judy Myers, and defendant Terminix International Company (“Terminix”) entered into a contract that was captioned “Termite Service Plan” (“the contract”). The main purpose of the contract was for Terminix to inspect for and eradicate termites that were parasitically living in Myers’s home. Myers agreed to pay Terminix over $1,300 on the contract. Myers and Terminix subsequently entered into one or more annual “renewal” contracts that provided for further inspections and insecticide treatments if necessary. Myers agreed to pay $85 for each renewal. At paragraph 10, on the backside of the one-page contract, the document provided for the arbitration of disputes between the parties. In relevant part, the contract’s arbitration clause reads as follows:

“10. ARBITRATION. The Purchaser and Terminix agree that, any controversy or claim between them arising out of or relating to this agreement shall be settled exclusively by arbitration. Such arbitration shall be conducted in accordance with the Commercial Arbitration Rules then in force of the American Arbitration Association. * * *”

Myers became dissatisfied with Terminix’s service when termites reinfested her home and allegedly caused significant damage. She contends that the termites caused more than $41,000 in damage to her home.

On January 22,1997, Myers brought this action alleging that the defendants (1) breached the contract (count I); ■ (2) violated provisions of the Ohio Consumer Sales Practices Act, R.C. Chapter 1345 (count II); (3) negligently, recklessly, and intentionally breached duties to exercise reasonable care to provide goods and services under the contract (count III); (4) breached warranties, representations, guarantees, and/or promises owed and/or made to Myers (count IV); (5) are legally and equitably estopped from denying representations made to Myers (count V); and (6) placed limits on the remedies allowed in the contract and upon [44]*44warranties, guarantees, and damages that are unconscionable and unenforceable (count VI).

Pursuant to R.C. Chapter 2711 (“the Ohio Arbitration Act”) and Section 2, Title 9, U.S.Code (“the Federal Arbitration Act”), the defendants seek to stay this action and to compel arbitration. Myers opposes the defendants’ motion and seeks a partial summary judgment declaring that the arbitration clause is void and unenforceable.

II. STANDARDS OF REVIEW

A. SUMMARY JUDGMENT STANDARD

The general rules governing motions for summary judgment filed pursuant to Civ.R. 56 are well established. In Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47, the Supreme Court of Ohio stated the requirements that must be met before a Civ.R. 56 motion for summary judgment can be granted:

“The appositeness of rendering a summary judgment hinges upon the tripartite demonstration: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor.
“The burden of showing that no genuine issue exists as to any material fact falls upon the moving party in requesting a summary judgment.”

B. MOTION TO STAY ACTION PENDING ARBITRATION

Both federal and Ohio public policy favor and encourage resolution of disputes through arbitration. Southland Corp. v. Keating (1984), 465 U.S. 1, 10, 104 S.Ct. 852, 858, 79 L.Ed.2d 1, 11-12; Lake Cty. Bd. of Mental Retardation & Dev. Disabilities v. Professional Assn. for the Teaching of the Mentally Retarded (1994), 71 Ohio St.3d 15, 17, 641 N.E.2d 180, 181-182. Many provisions of the Federal and the Ohio Arbitration Acts are similar. The relevant portion of the Federal Arbitration Act, at Section 2, Title 9, U.S.Code, reads as follows:

“A written provision in * * * a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, [45]*45and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (Emphasis added.)

The United States Supreme Court has interpreted this statute as requiring federal and state courts to stay actions addressing claims involving arbitration clauses until arbitration of the disputes is completed. See Southland Corp., 465 U.S. at 16-17, 104 S.Ct. at 861-862, 79 L.Ed.2d at 15-16.

The relevant portion of the Ohio Arbitration Act, at R.C. 2711.01, provides as follows:

“A provision in any written contract [providing for arbitration of a dispute] shall be valid, irrevocable, and enforceable, except upon grounds that exist at law or in equity for the revocation of any contract.” (Emphasis added.)

R.C. 2711.02 provides for a stay of court actions pending arbitration. Bellaire Bd. of Edn. v. Paxton (1979), 59 Ohio St.2d 65, 13 O.O.3d 58, 391 N.E.2d 1021, syllabus. Thus, according to both the Federal and the Ohio Arbitration Acts, courts must enforce an arbitration clause unless the arbitration clause could be revoked upon grounds as exist at law or in equity for the revocation of any contract. Doctor’s Assoc., Inc. v. Casarotto (1996), 517 U.S. 681, 684-686, 116 S.Ct. 1652, 1655, 134 L.Ed.2d 902, 907-908 (the federal Act); Zalecki v. Terminix Internatl., Inc. (Feb. 23, 1996), Lucas App. No. L-95-156, unreported, 1996 WL 76052 (the Ohio Act); Smith v. Ohio State Home Serv., Inc. (May 25, 1994), Summit App. No. 16441, unreported, 1994 WL 200801 (the Ohio Act). Even arbitration clauses in consumer contracts generally are enforceable. See Southland Corp., 465 U.S. at 16-17, 104 S.Ct. at 861-862, 79 L.Ed.2d at 15-16; Smith v. Ohio State Home Serv., Inc., supra.

III. DISCUSSION

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Bluebook (online)
697 N.E.2d 277, 91 Ohio Misc. 2d 41, 1998 Ohio Misc. LEXIS 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/myers-v-terminix-international-co-ohctcompllucas-1998.