[Cite as Newland v. AEC S. Ohio College L.L.C., 2016-Ohio-675.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

ANGELA NEWLAND : JUDGES: 

 : Hon. Sheila G. Farmer, P.J. 

 Plaintiff-Appellee : Hon. W. Scott Gwin, J. 

 : Hon. John W. Wise, J. 

-vs- : 

 : 

AEC SOUTHERN OHIO COLLEGE : 

LLC D/B/A BROWN MACKIE : 

COLLEGE NORTH CANTON : Case No. 2015CA00145 

 : 

 Defendant-Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Case No. 2015CV00759 

JUDGMENT: Reversed and Remanded 

DATE OF JUDGMENT: February 22, 2016 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

LEE E. PLAKAS BRETT KRANTZ 

BRANDON O. TRENT JUSTINE LARA KONICKI 

220 Market Avenue South One Cleveland Center 

8th Floor 29th Floor 

Canton, OH 44702 1375 East Ninth Street 

 Cleveland, OH 44114-1793 
Stark County, Case No. 2015CA00145 2 

Farmer, P.J. 

{¶1} On October 7, 2011, appellee, Angela Newland, entered into an enrollment 

agreement with appellant, AEC Southern Ohio College LLC dba Brown Mackie College 

– North Canton, to participate in its paralegal program. 

{¶2} On April 10, 2015, appellee filed a complaint against appellant, claiming 

fraudulent and negligent misrepresentation regarding the program's accreditation, fraud, 

and civil conspiracy. On May 15, 2015, appellant filed a motion to compel arbitration and 

stay litigation as set forth in the enrollment agreement. Appellee opposed the motion. A 

hearing was held on June 22, 2015. By judgment entry filed July 7, 2015, the trial court 

denied the motion, finding the arbitration clause was procedurally and substantively 

unconscionable and therefore unenforceable. 

{¶3} Appellant filed an appeal and this matter is now before this court for 

consideration. Assignments of error are as follows: 

I 

{¶4} "THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT REFUSED 

TO ENFORCE THE ARBITRATION PROVISION IN THE AGREEMENT." 

II 

{¶5} "THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT 

CONDUCTED INDEPENDENT DISCOVERY." 

I 

{¶6} Appellant claims the trial court erred in finding the arbitration clause in 

appellee's enrollment agreement was unenforceable because it was both substantially 

and procedurally unconscionable. We agree. 
Stark County, Case No. 2015CA00145 3 

{¶7} As set forth in Taylor Building Corporation of America v. Benfield, 117 Ohio 

St.3d 352, 2008-Ohio-938, ¶ 2, our standard of review is de novo: "We hold that the proper 

standard of review of a determination whether an arbitration agreement is enforceable in 

light of a claim of unconscionability is de novo, but any factual findings of the trial court 

must be accorded appropriate deference." 

{¶8} A review of the transcript of the June 22, 2015 hearing reveals sworn 

testimony was not taken, nor were any affidavits submitted. The only evidence before 

the trial court was the enrollment agreement. During a rather one-sided colloquy between 

the trial court and appellant's attorney, certain concessions were made: 1) appellant 

drafted the agreement, 2) the parties were not on equal footing in negotiating the 

agreement, and 3) a scrivener's error in the arbitration clause stated a student could 

select "one of these organizations as the administrator" when in fact only "JAMS" was 

listed as the designated arbitration administrator. T. at 10, 16-17, 20. 

{¶9} Appellee concedes: 1) she signed the agreement and initialed the page 

containing the arbitration clause, and 2) the claims asserted in her complaint fall under 

the arbitration clause if found to be valid. Appellee's Brief at 12; T. at 36. 

{¶10} Therefore, our de novo review is limited to these five concessions and the 

four corners of the enrollment agreement. 

{¶11} R.C. Chapter 2711 governs arbitration. R.C. 2711.02(C) states the 

following: 

 Except as provided in division (D) of this section, an order under 

division (B) of this section that grants or denies a stay of a trial of any action 
Stark County, Case No. 2015CA00145 4 

pending arbitration, including, but not limited to, an order that is based upon 

a determination of the court that a party has waived arbitration under the 

arbitration agreement, is a final order and may be reviewed, affirmed, 

modified, or reversed on appeal pursuant to the Rules of Appellate 

Procedure and, to the extent not in conflict with those rules, Chapter 2505. 

of the Revised Code. 

{¶12} R.C. 2711.01(A) states the following: 

 A provision in any written contract, except as provided in division (B) 

of this section, to settle by arbitration a controversy that subsequently arises 

out of the contract, or out of the refusal to perform the whole or any part of 

the contract, or any agreement in writing between two or more persons to 

submit to arbitration any controversy existing between them at the time of 

the agreement to submit, or arising after the agreement to submit, from a 

relationship then existing between them or that they simultaneously create, 

shall be valid, irrevocable, and enforceable, except upon grounds that exist 

at law or in equity for the revocation of any contract. 

{¶13} "In examining an arbitration clause, a court must bear in mind the strong 

presumption in favor of arbitrability and resolve all doubts in favor of arbitrability." 

Neubrander v. Dean Witter Reynolds, Inc., 81 Ohio App.3d 308, 311 (9th Dist.1992). 
Stark County, Case No. 2015CA00145 5 

{¶14} In its judgment entry filed July 7, 2015, the trial court found the arbitration 

clause was unenforceable because it was both substantially and procedurally 

unconscionable. 

{¶15} In Taylor Building, supra, at ¶ 34 and 42, respectively, the Supreme Court 

of Ohio stated the following on the issue of "unconscionability": 

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.' " Lake Ridge Academy v. 

Carney (1993), 66 Ohio St.3d 376, 383, 613 N.E.2d 183, quoting Williams 

v. Walker-Thomas Furniture Co. (C.A.D.C.1965), 350 F.2d 445, 449; see 

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

621 N.E.2d 1294. The party asserting unconscionability of a contract bears 

the burden of proving that the agreement is both procedurally and 

substantively unconscionable. See generally Ball v. Ohio State Home 

Servs., Inc., 168 Ohio App.3d 622, 2006-Ohio-4464, 861 N.E.2d 553, ¶ 

6; see also Click Camera, 86 Ohio App.3d at 834, 621 N.E.2d 

1294, citing White & Summers, Uniform Commercial Code (1988) 219, 

Section 4–7 ("One must allege and prove a 'quantum' of both prongs in 

order to establish that a particular contract is unconscionable"). 

Similarly, when 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 
Stark County, Case No. 2015CA00145 6 

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. 

{¶16} In Brunke v. Ohio State Home Services, Inc., 9th Dist. Lorain No. 

08CA009320, 2008-Ohio-5394, our brethren from the Ninth District explained the 

following: 

 "Procedural unconscionability concerns the formation of the 

agreement and occurs when no voluntary meeting of the minds is 

possible." Porpora [v. Gatliff Building, Co., 160 Ohio App.3d 843, 2005-

Ohio-2410] at ¶ 7, citing Bushman v. MFC Drilling, Inc. (July 19, 1995), 9th 

Dist. No. 2403-M. "This Court has held that when determining procedural 

unconscionability, a reviewing court must consider factors bearing directly 

to the relative bargaining position of the parties." Ball [v. Ohio State Home 

Services, Inc., 168 Ohio App.3d 622, 2006-Ohio-4464] at ¶ 7. Those factors 

include "age, education, intelligence, business acumen, experience in 

similar transactions, whether terms were explained to the weaker party, and 

who drafted the contract." Featherstone [v. Merrill Lynch, Pierce, Fenner 

Smith, Inc., 159 Ohio App.3d 27, 2004-Ohio-5953] at ¶ 13, quoting Eagle [v. 

Fred Martin Motor Co., 157 Ohio App.3d 150, 2004-Ohio-829] at ¶ 31. 

"Substantive unconscionability encompasses those factors that concern the 

contract terms themselves[.]" Eagle at ¶ 31. "Contractual terms are 
Stark County, Case No. 2015CA00145 7 

substantively unconscionable if they are unfair and commercially 

unreasonable." Ball at ¶ 7, citing Porpora at ¶ 8. 

{¶17} The Taylor Building court stated at ¶ 44: 

 "Factors which may contribute to a finding of unconscionability in the 

bargaining process [i.e., procedural unconscionability] include the following: 

belief by the stronger party that there is no reasonable probability that the 

weaker party will fully perform the contract; knowledge of the stronger party 

that the weaker party will be unable to receive substantial benefits from the 

contract; knowledge of the stronger party that the weaker party is unable 

reasonably to protect his interests by reason of physical or mental 

infirmities, ignorance, illiteracy or inability to understand the language of the 

agreement, or similar factors." Restatement of the Law 2d, Contracts 

(1981), Section 208, Comment d. 

{¶18} In its judgment entry filed July 7, 2015, the trial court found the agreement 

to be an adhesion contract, explained in Taylor Building, supra, at ¶ 49, citing Black's Law 

Dictionary (8th Ed.2004) 342, as: "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." As noted by Justice Cupp in Taylor Building at ¶ 50, not all adhesion 

contracts are unconscionable per se: 
Stark County, Case No. 2015CA00145 8 

 To be sure, an arbitration clause in a consumer contract with some 

characteristics of an adhesion contract "necessarily engenders more 

reservations than an arbitration clause in a different setting," such as a 

collective-bargaining agreement or a commercial contract between two 

businesses. Williams v. Aetna Fin. Co., 83 Ohio St.3d at 472, 700 N.E.2d 

859. However, even a contract of adhesion is not in all instances 

unconscionable per se. As the Seventh Circuit recently observed in 

rejecting a claim that an arbitration clause was unconscionable, "few 

consumer contracts are negotiated one clause at a time." Carbajal v. H & 

R Block Tax Servs., Inc. (C.A.7, 2004), 372 F.3d 903, 906. Indeed, socalled "form contracts" can provide advantages to consumers. "Forms 

reduce transactions costs and benefit consumers because, in competition, 

reductions in the cost of doing business show up as lower prices * * *." Id. 

{¶19} This observation is undeniably true. If all adhesion contracts were 

procedurally unconscionable, none of us would be bound by car lease/rental agreements, 

standard credit card agreements, standard cell phone agreements, or airplane tickets (to 

mention a few). As consumers, on a daily basis we accept and agree to terms included 

in agreements in which we are not the drafters, we are not on equal footing, and the 

agreements are on a "take-it-or-leave-it" basis. 

{¶20} As cited above, the case law directs us to look at the arbitration clause and 

the weaker party's circumstances such as age and experience and the availability of other 

entities offering the same opportunity. It was conceded at the hearing that appellee was 
Stark County, Case No. 2015CA00145 9 

thirty-five years old and had two years of post-high school education. T. at 10, 34. As for 

available alternatives to appellant's program, we can state Stark County has four fouryear colleges/universities and one technical college, as well as online for-profit schools. 

Alternatives are not a defining issue. 

{¶21} The six-paragraph arbitration clause sub judice includes the following 

language in part: 

 If a student decides to initiate arbitration, the matter will be submitted 

to JAMS, which will serve as the arbitration administrator pursuant to its 

rules of procedure. If Brown Mackie College intends to initiate arbitration it 

will notify the student in writing by regular mail at the student's latest address 

on file with Brown Mackie College, and the student will have 20 days from 

the date of the letter to select one of these organizations as the 

administrator. If the student fails to select an administrator within that 20-

day period, Brown Mackie College will select one. 

{¶22} The clause provides for either side to initiate arbitration and for appellant 

(the drafter) to pay filing fees charged by the arbitration administrator, up to $3,500 per 

claim. It further explains, in capital letters, what a person gives up in agreeing to arbitrate: 

IF EITHER A STUDENT OR BROWN MACKIE COLLEGE 

CHOOSES ARBITRATION NEITHER PARTY WILL HAVE THE RIGHT TO 

A JURY TRIAL, TO ENGAGE IN DISCOVERY, EXCEPT AS PROVIDED 
Stark County, Case No. 2015CA00145 10 

IN THE APPLICABLE ARBITRATION RULES, OR OTHERWISE TO 

LITIGATE THE DISPUTE OR CLAIM IN ANY COURT (OTHER THAN IN 

SMALL CLAIMS OR SIMILAR COURT, AS SET FORTH IN THE 

PRECEDING PARAGRAPH, OR IN AN ACTION TO ENFORCE THE 

ARBITRATOR'S AWARD). FURTHER, A STUDENT WILL NOT HAVE 

THE RIGHT TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER 

OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM SUBJECT 

TO ARBITRATION. THE ARBITRATOR'S DECISION WILL BE FINAL 

AND BINDING. OTHER RIGHTS THAT A STUDENT OR BROWN 

MACKIE COLLEGE WOULD HAVE IN COURT ALSO MAY NOT BE 

AVAILABLE IN ARBITRATION. 

{¶23} The enrollment agreement as a whole, including the arbitration clause, 

provides for a six day cancellation period with a refund of all fees paid by the applicant. 

Right above appellee's signature is the acknowledgment in bold letters: "My signature 

below certifies that I have read, understood all aspects of this agreement, and 

agreed to my rights and responsibilities, and that the College's cancellation and 

refund policies have been clearly explained to me. It also affirms that I have 

received an exact copy of this agreement." 

{¶24} From the four corners of the agreement and the undisputed facts, we find 

nothing in the record to conclude the arbitration clause was concealed from appellee, she 

did not have the opportunity to read it, or she "was limited in understanding its impact in 

any way." Schaefer v. Jim Brown, Inc., 11th Dist. Lake No. 2014-L-073, 2015-Ohio-1994, 
Stark County, Case No. 2015CA00145 11 

¶ 16. In fact, appellee had six days to read and understand the agreement and could 

have chosen to cancel it with a full refund of any monies paid. We find despite the fact 

that the agreement is an adhesion contract, appellee has not met her burden of 

establishing that the arbitration clause is procedurally and substantively unconscionable. 

{¶25} Upon review, we find the trial court erred in finding the arbitration clause to 

be unenforceable. 

{¶26} Assignment of Error I is granted. 

II 

{¶27} Based on our decision in Assignment of Error I, we find this assignment of 

error to be moot. 
Stark County, Case No. 2015CA00145 12 

{¶28} The judgment of the Court of Common Pleas of Stark County, Ohio is 

hereby reversed, and the matter is remanded to said court for further proceedings 

consistent with this opinion 

By Farmer, P.J. 

Gwin, J. and 

Wise, J. concur. 

SGF/sg 115