[Cite as Caskey v. Sanford-Brown College, 2012-Ohio-1543.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 97261

JON McCASKEY

PLAINTIFF-APPELLANT 

vs. 

SANFORD-BROWN COLLEGE, ET AL.

DEFENDANTS-APPELLEES 

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-743061 

BEFORE: Celebrezze, J., Boyle, P.J., and Jones, J. 

RELEASED AND JOURNALIZED: April 5, 2012 
ATTORNEY FOR APPELLANT

L. Bryan Carr 

The Carr Law Firm 

1392 SOM Center Road 

Mayfield Heights, Ohio 44124 

ATTORNEYS FOR APPELLEES

Maureen P. Tracey 

Elizabeth A. Davis 

David J. Tocco 

Vorys, Sater, Seymour & Pease, L.L.P. 

1375 East Ninth Street 

2100 One Cleveland Center 

Cleveland, Ohio 44114-1724 
FRANK D. CELEBREZZE, JR., J.: 

{¶1} Plaintiff-appellant, Jon McCaskey, a graduate of Sanford-Brown College 

(“Sanford-Brown”), seeks reversal of a trial court order staying his case against 

Sanford-Brown and one of its employees, Kimberly Cole, pending arbitration. He argues 

that the arbitration provision is a nullity, unconscionable, and inapplicable. After a 

thorough review of the record and law, we affirm the trial court’s order staying the case 

pending arbitration. 

I. Factual and Procedural History 

{¶2} In 2009, McCaskey wished to enroll in a cardiovascular sonography program 

at Sanford-Brown. He executed an “Enrollment Agreement” setting forth the costs of 

tuition, the length of the program, the applicable fees, and the date the program was to 

commence. The agreement also contained several contract provisions, including 

cancellation and discrimination policies and a lengthy arbitration provision. 

{¶3} In March 2010, McCaskey was close to completion of the program and doing 

very well academically. He applied for externships with the Cleveland Clinic 

Foundation and University Hospitals. After scheduling interviews, McCaskey caused his 

academic transcripts to be sent to these hospitals from Sanford-Brown. The materials 

Sanford-Brown delivered indicated McCaskey had failed his final exams and been 

expelled from the program. In fact, McCaskey’s grade point average was excellent, and 

he graduated from the program in September 2010. 
{¶4} McCaskey asserts that because of Sanford-Brown’s false statements, he was 

not given an opportunity to interview with these hospitals or otherwise obtain an 

externship. 

{¶5} McCaskey filed suit against Sanford-Brown and Cole, who is alleged to have 

sent the information to the hospitals. Before filing an answer, Sanford-Brown moved to 

stay the proceedings pending arbitration. After extensive briefing and hearing, the trial 

court granted Sanford-Brown’s motion and stayed the case. McCaskey appealed that 

order to this court assigning a single error. 

II. Law and Analysis 

A. Enforcement of an Arbitration Provision 

{¶6} McCaskey’s sole assignment of error states: “The trial court erred in 

granting appellees’ motion to stay and in ordering the case to arbitration.” McCaskey 

advances a tripartite attack on this decision, arguing the trial court lacked the ability to 

stay the case, the provision is a legal nullity, and the provision is unenforceable by 

Sanford-Brown or Cole. 

i. Standard of Review 

{¶7} The standard of review applicable to this case is in dispute and may depend 

on the type of questions raised challenging the applicability of the arbitration provision. 

This court has variable holdings in the area, but the most recent pronouncement indicates 

that “[w]hen addressing whether a trial court has properly granted a motion to stay 

litigation pending arbitration, this court applies an abuse of discretion standard.” U.S. 

Bank, N.A. v. Wilkens, 8th Dist. No. 96617, 2012-Ohio-263, ¶ 13. However, that 
standard applies in only very limited situations, such as a determination that a party has 

waived its right to arbitrate a given dispute. See Milling Away, L.L.C. v. UGP 

Properties, L.L.C.,

8th Dist. No. 95751, 2011-Ohio-1103, ¶ 8. A de novo standard applies to questions of 

whether a party has agreed to submit an issue to arbitration. Shumaker v. Saks Inc., 163 

Ohio App.3d 173, 2005-Ohio-4391, 837 N.E.2d 393 (8th Dist.), citing Vanyo v. Clear 

Channel Worldwide, 156 Ohio App.3d 706, 2004-Ohio-1793, 808 N.E.2d 482 (8th Dist.). 

{¶8} Likewise, the Ohio Supreme Court has articulated that a de novo standard of 

review applies when arguing the unconscionability of an arbitration clause. Taylor Bldg. 

Corp. of Am. v. Benfield, 117 Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12. However, 

“[w]hen a trial court makes factual findings * * * supporting its determination that a 

contract is or is not unconscionable, such as any findings regarding the circumstances 

surrounding the making of the contract, those factual findings should be reviewed with 

great deference.” Id. at ¶ 38. 

{¶9} When determining whether a specific issue is encompassed by an arbitration 

provision, a mixed question of law and fact arises. But this court has cogently addressed 

the proper standard that applies to a motion to stay pending arbitration and addressed the 

apparently disparate holding of the Eighth District on this topic. N. Park Retirement 

Community Ctr., Inc. v. Sovran Cos., Ltd., 8th Dist. No. 96376, 2011-Ohio-5179. The 

Sovran panel found that the language of R.C. 2711.02(B) created a mandatory duty to 

stay the proceedings, leaving no discretion for the trial court upon being satisfied that the 

matter was subject to arbitration. The court reasoned, “[t]he abuse of discretion standard 
of review has no application in the context of the court deciding to stay proceedings 

pending the outcome of arbitration because a stay in such circumstances is mandatory, not 

discretionary.” Id. at ¶ 7. Therefore, we apply a de novo standard of review to 

questions of unconscionability and whether an issue is encompassed by a given arbitration 

clause. 

ii. Authority to Issue a Stay Pending Arbitration 

{¶10} McCaskey first argues the trial court does not have authority to compel 

arbitration because Sanford-Brown did not file a motion to compel, only a motion to stay 

pending arbitration. However, the trial court’s order states, “motion to stay pending 

arbitration is granted. Case is hereby stayed pending completion of arbitration as 

ordered.” The effect of the court’s order was to send the case to arbitration, but the order 

did not specifically compel arbitration. 

{¶11} Where a party moves for a stay pending arbitration, pursuant to R.C. 

2711.02(B), the court “shall * * * stay the trial of the action until the arbitration of the 

issue has been had in accordance with the agreement, provided the applicant for the stay 

is not in default in proceeding with arbitration.” 

{¶12} For support, McCaskey points to Drake v. Barclay’s Bank Delaware, Inc., 

8th Dist. No. 96451, 2011-Ohio-5275, ¶ 6. But in Drake, this court overruled an 

argument that the trial court must hold a hearing on a motion to stay pending arbitration 

where no motion to compel arbitration was pending. While a motion to compel 

arbitration requires a hearing according to R.C. 2711.03, one is not required under R.C. 

2711.02. Even if it were, the trial court did hold an oral hearing on the motion to stay to 
ensure that the matter was subject to arbitration. Therefore, the trial court had the ability 

to stay the case. 

iii. Applicability to Contracting Parties and Employees 

{¶13} McCaskey argues that Sanford-Brown is not a business entity capable of 

entering into contracts because its corporate registration was cancelled in 2006. 

Therefore, he claims, it could not enforce the arbitration provision. Appellant points to 

R.C. 1701.88, dealing with the winding up of corporate business after dissolution, to 

assert that Sanford-Brown had no authority to enter into contracts, and therefore, the 

arbitration clause is not binding. 

{¶14} The corporate entity “Sanford-Brown College, Inc.,” did have its articles 

cancelled by the Ohio secretary of state in 2006, but that is not the name of the 

contracting party in this case. The contract was executed by “Sanford-Brown College,” 

an alternate business name properly registered with the secretary of state for Ultrasound 

Technical Services, Inc. (“UTSI”) since 2008. 

{¶15} Sanford-Brown, a Delaware corporation, had the ability to enter into 

contracts under 8 Del.C. 122(13), similar to R.C. 1701.13(F)(2). Further, people may 

adopt any fictitious name they choose so long as it is not done with fraudulent purpose or 

against public policy. In re Wurgler, 136 Ohio Misc.2d 1, 2005-Ohio-7139, 844 

N.E.2d 919 (P.C.). This right has long been extended to corporations in Ohio. 1932 

Ohio Atty.Gen.Ops. No. 1294; see also R.C. 1329.01(A)(3) (the definition of “person” 

includes corporations). 
{¶16} There is a statute that arguably may prevent Sanford-Brown from enforcing 

the arbitration provision. R.C. 1329.10(B) provides: 

No person doing business under a trade name or fictitious name shall 

commence or maintain an action in the trade name or fictitious name in any 

court in this state or on account of any contracts made or transactions had in 

the trade name or fictitious name until it has first complied with section 

1329.01 of the Revised Code * * * but upon compliance, such an action 

may be commenced or maintained on any contracts and transactions entered 

into prior to compliance. 

{¶17} Even if Sanford-Brown’s trade name was not registered, the contract is still 

legally binding on the parties. Baldwin Realty Co. v. Smith, 23 Ohio N.P. (N.S.) 489, 31 

Ohio Dec. 527, 1920 WL 601 (1920). Sanford-Brown would just be barred from 

enforcing the contract through Ohio courts until it registered the name with the secretary 

of state pursuant to R.C. 1329.10(B). See Cheliotis v. Gould, 2d Dist. No. 14471, 1994 

WL 701963, *4-5 (Dec. 14, 1994). Because the name was registered and Sanford-Brown 

is not attempting to commence or maintain suit, the statute has no application here. 

{¶18} McCaskey also argues that Cole cannot hide behind an arbitration provision 

because she was not a party named in the contract. Generally, non-signatories to a 

contract are not subject to its provisions. “Nonetheless, in some circumstances 

non-signatories to contracts can be contractually bound by ordinary contract and agency 

principles.” Sovran, 2011-Ohio-5179, ¶ 17, citing Short v. Resource Title Agency, Inc., 

8th Dist. No. 95839, 2011-Ohio-1577, ¶ 14. 

{¶19} Here, Cole is an employee of Sanford-Brown acting within her capacity as 

an employee when sending transcript information to potential employers of 

Sanford-Brown students. The arbitration provision also encompasses any dispute 
involving “any act or omission regarding the Student’s relationship with [Sanford-Brown, 

or] its employees * * *.” 

{¶20} This provision clearly encompasses disputes between signatories and 

employees acting as employees of Sanford-Brown, including Cole. The Enrollment 

Agreement specifically mentioned employees of Sanford-Brown, and agency principles 

also allow Cole to make use of the provision. 

{¶21} McCaskey also argues that the provision does not encompass the type of 

dispute involved in this case. However, the provision is very broad and applies to “[a]ny 

disputes, claims or controversies * * * arising out of or relating to * * * career service 

assistance” by Sanford-Brown. This distinguishes the present case from Drake, 

2011-Ohio-5275, and Shumaker, 2005-Ohio-4391. In those two cases, this court held 

that the dispute did not relate to the contract provisions provided in the applicable 

agreements. The clause in this case specifically includes disputes about “career service 

assistance.” Therefore, the arbitration clause applies to the case unless the agreement is 

otherwise unenforceable as discussed below. 

iv. Unconscionability 

{¶22} McCaskey also argues that the trial court erred in granting the motion to stay 

because the arbitration clause is both procedurally and substantively unconscionable. 

{¶23} In Ohio, arbitration is favored as a more expedient and cost effective means 

of resolving disputes, and any doubts in the applicability of a given provision should be 

resolved in favor of arbitration. Hayes v. Oakridge Home, 122 Ohio St.3d 63, 

2009-Ohio-2054, 908 N.E.2d 408, ¶ 15. However, reasons in law or equity may exist to 
preclude binding a party to arbitrate a dispute. Unconscionability is such a reason. Id. 

at ¶ 19. 

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.’” The party asserting 

unconscionability of a contract bears the burden of proving that the 

agreement is both procedurally and substantively unconscionable. (Internal 

citations omitted.) Taylor, 117 Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 

12, at ¶ 34. 

a. Procedural Unconscionability 

{¶24} According to the case law in Ohio, unconscionability comes in two flavors 

— procedural and substantive. 

Procedural unconscionability examines the bargaining process and may 

include factors such as the ‘“age, education, intelligence, business acumen 

and experience, * * * who drafted the contract, * * * whether alterations in 

the printed terms were possible, [and] whether there were alternative 

sources of supply for the goods in question.”’ Id. at ¶ 44, quoting Collins v. 

Click Camera & Video, Inc., 86 Ohio App.3d 826, 834, 621 N.E.2d 1294 

(2d Dist.1993), quoting Johnson v. Mobil Oil Corp., 415 F.Supp. 264, 268 

(E.D.Mich.1976). 

{¶25} To support a claim of procedural unconscionability, McCaskey claims he 

was a young student with little business acumen, unfamiliar with arbitration provisions, 

rushed when given the contract with inadequate time to read and understand the 

document, and Sanford-Brown was in a better bargaining position. It should be noted 

that it is McCaskey’s burden to show, based on evidence in the record, that the arbitration 

provision is procedurally unconscionable. Hayes, 122 Ohio St.3d 63, 2009-Ohio-2054, 

908 N.E.2d 408, at ¶ 27. 

{¶26} What we know from the record is that McCaskey is a bright, young 

individual capable of achieving excellent academic success at a post-secondary level. 
There is no evidence that he was prevented from reading the contract before signing or 

that he is incapable of understanding the document based on a mental or physical 

impairment. The Enrollment Agreement is not some voluminous tome, but consists of 

two oversized pages. The print on the second page containing the arbitration clause is 

small, but not exceedingly so. Also, directly above the signature line in bold type is the 

advisement that “THIS CONTRACT CONTAINS A BINDING ARBITRATION 

PROVISION WHICH MAY BE ENFORCEABLE BY THE PARTIES.” 

{¶27} McCaskey also insists the contract is one of adhesion, and, as such, it should 

be viewed with scepticism with any doubts resolved in his favor. A “contract of 

adhesion” is “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.” 

Taylor, 117 Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12, at ¶ 49, citing Black’s Law 

Dictionary 342 (8th Ed.2004). These take-it-or-leave-it contracts have significantly 

grown in frequency in modern society. However, the fact that McCaskey claims he 

could not alter the terms of the agreement does not mean the terms are unenforceable. 

There is no evidence that McCaskey attempted to alter any terms. Also, there is no 

evidence of oppressive or fraudulent intent as there was in Williams v. Aetna Fin. Co., 83 

Ohio St.3d 464, 700 N.E.2d 859 (1998). 

{¶28} An important consideration is “whether ‘each party to the contract, 

considering his obvious education or lack of it, [had] a reasonable opportunity to 

understand the terms of the contract, or were the important terms hidden in a maze of fine 

print * * *?’” Blackburn v. Ronald Kluchin Architects, Inc., 8th Dist. No. 89203, 
2007-Ohio-6647, ¶ 29, quoting Vanyo v. Clear Channel Worldwide, 156 Ohio App.3d 

706, 2004-Ohio-1793, 808 N.E.2d 482 (8th Dist.), ¶ 18, citing Ohio Univ. Bd. of Trustees 

v. Smith, 132 Ohio App.3d 211, 724 N.E.2d 1155 (4th Dist.1999). Here, McCaskey was 

objectively capable of understanding the provisions included in a two-page contract. 

There are no allegations that an infirmity or incapacity impacted McCaskey’s ability to 

understand the Enrollment Agreement’s provisions. 

{¶29} McCaskey had the opportunity to read the agreement, and the above-quoted 

advisement put him on notice that an arbitration provision was contained in the 

agreement. There is simply no evidence that the bargaining process was so oppressive as 

to remove meaningful choice. This is in contrast to the process used in Rude v. NUCO 

Edn. Corp., 9th Dist. No. 25549, 2011-Ohio- 6789. There was evidence in that case 

that a great deal of pressure was applied to get prospective students to sign a contract by 

the end of a meeting with school personnel or risk losing a seat in the program. Id. at ¶ 

14. No similar evidence was put forth by McCaskey. McCaskey had two months before 

classes began during which he could have taken the time to read and understand the terms 

in the Enrollment Agreement. His affidavit is devoid of any evidence that he was told he 

could be denied admission to the program if he wanted to take time to read the contract or 

have it reviewed by counsel. 

b. Substantive Unconscionability 

{¶30} “An assessment of whether a contract is substantively unconscionable 

involves consideration of the terms of the agreement and whether they are commercially 

reasonable.” Hayes at ¶ 33, citing John R. Davis Trust 8/12/05 v. Beggs, 10th Dist. No. 
08AP-432, 2008-Ohio-6311, ¶ 13; Dorsey v. Contemporary Obstetrics & Gynecology, 

Inc., 113 Ohio App.3d 75, 80, 680 N.E.2d 240 (2d Dist.1996). Further, factors to 

consider include, but are not limited to: 

[T]he fairness of the terms, the charge for the service rendered, the standard 

in the industry, and the ability to accurately predict the extent of future 

liability. No bright-line set of factors for determining substantive 

unconscionability * * *. The factors to be considered vary with the content 

of the agreement at issue. Id. 

{¶31} McCaskey spends time arguing the unconscionability of a financing 

provision of the Enrollment Agreement, but the Ohio Supreme Court has held that a party 

opposing arbitration must show that the arbitration provision, not the contract as a whole, 

is substantively unconscionable. 

[W]hen 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 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. Taylor, 117 Ohio St.3d 352, 

2008-Ohio-938, 884 N.E.2d 12, at ¶ 42. 

{¶32} McCaskey also argues that the arbitration clause is substantively 

unconscionable because it does not disclose the costs of arbitration, which, he asserts, are 

higher than judicial proceedings. However, this argument was considered in Taylor

where that court cited approvingly the Supreme Court’s holding that a failure to disclose 

the costs of arbitration did not make a provision per se unconscionable. Id. at ¶ 56-58, 

citing Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 90-91, 121 S.Ct. 513, 

148 L.Ed.2d 373 (2000). The Taylor court required specific and individualized evidence 

that arbitration costs were unduly burdensome to the party opposing it. 
{¶33} Here, just as in Taylor, there is no evidence that McCaskey would be 

prevented from prosecuting his claim in arbitration even though he did submit various fee 

schedules for the American Arbitration Association (“AAA”) and the National 

Arbitration Forum (“NAF”). This is in contrast to the nursing students in Rude, where 

the waiver of class actions came together with the arbitration provision to greatly increase 

the costs associated with obtaining relief. Rude at ¶ 25. There is no similar issue here, 

and appellant has not demonstrated, as the nursing students in Rude did, that the costs 

associated with arbitration prevented him from pursuing his case. 

{¶34} Sanford-Brown argues that citation to the AAA and NAF rules within the 

arbitration clause reasonably apprised McCaskey of the costs of arbitration because these 

rules include fee schedules. The fact that a fee schedule is contained in some ancillary 

document referenced in the arbitration clause does not reasonably apprise a consumer of 

the costs of arbitration. However, that is not required to find the clause enforceable. 

Without some evidence that a party would be precluded from bringing a claim, the cost of 

arbitration, standing alone, is not a justifiable reason to find unconscionability. 

{¶35} The fact that Sanford-Brown chose the applicable governing rules to be 

those that apply to commercial arbitration proceedings is troubling given that the dispute 

here does not involve a commercial dispute. Further, the arbitration clause limits the 

types of damages that may be awarded. It provides: 

The arbitrator shall have the authority to award monetary damages and may 

grant any non-monetary remedy or relief available by applicable law and 

rules of the arbitration forums governing the proceedings and within the 

scope of this Enrollment Agreement. * * * The arbitrator will have no 

authority to award consequential damages, indirect damages, treble 

damages or punitive damages, or any monetary damages not measured by 
the prevailing party’s economic damages. The arbitrator will have no 

authority to award attorney’s fees except as expressly provided by the 

Enrollment Agreement or authorized by law or the rules of the arbitration 

forum. 

{¶36} McCaskey, citing to cases dealing with the impermissible abrogation of 

statutory rights in employment cases, argues that the clause in this case is similarly 

unconscionable. However, he fails to point to a statutory right that is impermissibly 

limited by the damage limitation provision. In fact, the provision specifically authorizes 

the arbitrator to award damages authorized by statute or the applicable arbitration rules. 

In Post v. Procare Automotive Serv. Solutions, 8th Dist. No. 87646, 2007-Ohio-2106, ¶ 

13-16, this court found an arbitration clause to be substantively unconscionable where it 

abrogated an aggrieved employee’s right to recover punitive damages and attorney fees 

pursuant to R.C. 4112.99. The present case does not require the careful reconciliation 

of “the ‘liberal federal policy favoring arbitration agreements,’ with the important rights 

created and protected by federal civil rights legislation.” Morrison v. Circuit City Stores, 

Inc., 317 F.3d 646, 652-653 (6th Cir.2003). There is no similar limitation of an 

important statutory right in the present case. 
III. Conclusion 

{¶37} McCaskey has failed to show that the arbitration clause was inapplicable or 

unenforceable. The dispute here involves the provision of career services by 

Sanford-Brown, a topic specifically named in the arbitration clause. Sanford-Brown had 

the ability to contract with McCaskey and the ability to enforce the arbitration provision. 

Sanford-Brown’s employee could also avail herself of the provision because disputes 

with employees of Sanford-Brown acting in their employment capacity are included in the 

provision as well as through agency principles. McCaskey also has failed to establish 

that the arbitration provision is substantively or procedurally unconscionable. Therefore, 

the trial court did not err in staying the case pending arbitration. 

{¶38} Judgment affirmed. 

It is ordered that appellees recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment into 

execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

FRANK D. CELEBREZZE, JR., JUDGE 

MARY J. BOYLE, P.J., and 

LARRY A. JONES, SR., J., CONCUR