[Cite as Rude v. NUCO Edn. Corp., 2011-Ohio-6789.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

BARBARA J. RUDE, et al. 

 Appellees 

 v. 

NUCO EDUCATION CORPORATION, 

dba NATIONAL INSTITUTE OF 

TECHNOLOGY, et al. 

 Appellants 

C.A. No. 25549 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. 2010-01-032 

DECISION AND JOURNAL ENTRY

Dated: December 30, 2011 

 

DICKINSON, Judge. 

INTRODUCTION 

{¶1} When a number of nursing students of the RETS School of Nursing at the 

National Institute of Technology in Cuyahoga Falls learned that the program they had entered 

was not accredited, they sued the school. Their claims included violation of the Ohio Consumer 

Sales Practices Act, breach of contract, fraud, unjust enrichment, promissory estoppel, and 

negligence. The claims were based on allegations that the school had actively misrepresented its 

accreditation in order to induce them to secure thousands of dollars in federal education loans to 

enter the program. The school moved to stay the proceedings pending arbitration, and the 

students opposed the motion, arguing that the arbitration provision in the enrollment agreement 

was unconscionable. Following an evidentiary hearing, the trial court determined the arbitration 

agreement is unenforceable and denied the school’s motion to stay. The school has appealed that 
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decision. This Court affirms because the arbitration provision is unenforceable as it is both 

procedurally and substantively unconscionable. 

BACKGROUND 

{¶2} Barbara Rude and Jessica Canfield filed suit against NUCO Education 

Corporation dba National Institute of Technology, Aimee Dennison, Education Affiliates Inc., 

RETS Tech Center Inc. dba RETS College, and ten John Does. The named defendants included 

the two schools that promoted the nursing program, an admissions representative, and her direct 

employer. Two months later, Sonja Flynn sued the same defendants, alleging similar claims. 

Soon after that, Ms. Rude and Ms. Canfield amended their complaint and added Michelle Stover, 

Lacey Stoops, and Melissa Welker as party plaintiffs. They also moved to consolidate their case 

with that of Sonja Flynn. The trial court granted that motion. 

{¶3} Meanwhile, the school defendants moved to dismiss or stay the proceedings 

pending arbitration. The students opposed the motion, arguing the arbitration clause could not be 

enforced against them because it was both procedurally and substantively unconscionable. The 

trial court held an evidentiary hearing and ruled in favor of the students, precipitating this appeal. 

{¶4} According to the students, their future educational and professional options are 

severely limited by participation in an unaccredited nursing program. They testified that, 

knowing that to be the case, prior to enrolling in the program, they asked the admissions 

representative whether the program was accredited. Each student testified that she was told that 

it was accredited when, in fact, it was not. 

{¶5} The students testified that they each had a single meeting with Ms. Dennison that 

ended with them signing a “Retail Installment Contract” and an “Enrollment Agreement.” The 

students promised to pay approximately $25,000 each for the course of instruction culminating in 
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an occupational associate degree in registered nursing. The enrollment agreement is printed on a 

legal size piece of paper with single-spaced small print following the hand-written area 

describing the individual applicant. The arbitration provision appears on the back of the preprinted form in the same size font as the rest of the page: 

“Any disputes or claims arising out of or relating to this Agreement (including 

any claims against the Institute, any affiliate of the Institute or any Institute 

affiliate’s officers, directors, trustees, employees, or agents) shall be resolved by 

individual binding arbitration in accordance with the Commercial Arbitration 

Rules of the American Arbitration Association then in effect, and judgment on 

any award by the arbitrator(s) may be entered in any court having jurisdiction. 

The parties agree that this transaction involves interstate commerce and therefore 

the Federal Arbitration Act and related federal judicial procedure shall govern this 

Agreement to the fullest extent possible. The parties agree that any dispute 

subject to arbitration shall not be adjudicated as a class action or a consolidated 

class arbitration proceeding either in court or under the rules of the American 

Arbitration Association. The parties agree that a student’s responsibility to pay 

administrative fees, filing fees, processing fees, arbitrator compensation, and 

services charges for arbitration proceedings conducted by the American 

Arbitration Association under this Agreement shall be limited to no more than 

$125.00 for claims under $10,000 and $375.00 for claims between $10,000 but 

less than $75,000, or for claims not seeking monetary compensation. The 

arbitrator is allowed to ignore this limit, except as prohibited under applicable 

arbitration rules, should the arbitrator find that the student filed a frivolous 

claim(s) or unnecessarily delayed the arbitration proceedings. Except as may be 

required by law, neither a party nor an arbitrator may disclose the existence, 

content or results of any arbitration conducted pursuant to this provision without 

the prior written consent of both parties.” 

{¶6} Each of the students is a licensed practical nurse who comes from modest 

financial means and hoped to increase her earning power by becoming a registered nurse 

following graduation from the National Institute of Technology, now known as Fortis College. 

The National Institute of Technology is a for-profit private career college. The students said 

that, during individual meetings with the nursing recruiter, Aimee Dennison, they were pressured 

to sign the agreement immediately or risk losing their spot in the next class. The students 

testified that, although there are other nursing programs in the area, they take longer to complete 
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and have waiting lists. The students testified that they did not read the enrollment agreement 

word for word during their meeting with Ms. Dennison, but merely “skimmed” it before signing. 

None of them knew what arbitration was or asked any questions about the arbitration provision. 

Ms. Dennison testified that, although she interviews hundreds of applicants each year, she has 

never been asked a question about the arbitration provision and she has not mentioned it when 

meeting with prospective students. In fact, Ms. Dennison testified that she did not understand 

the arbitration provision herself. In any event, she said that she had no power to alter any of the 

terms of the agreement. 

ARBITRATION 

{¶7} The school defendants’ sole assignment of error is that the trial court incorrectly 

denied their motion to dismiss or compel arbitration because it incorrectly determined that the 

arbitration clause is unconscionable and, therefore, unenforceable. The students have accused 

the school of fraudulently inducing them to take on thousands of dollars of debt to pursue an 

unaccredited degree. In order to defeat a motion to stay pending arbitration, however, “a party 

must demonstrate that the arbitration provision itself in the contract at issue, and not merely the 

contract in general, was fraudulently induced.” ABM Farms Inc. v. Woods, 81 Ohio St. 3d 498, 

syllabus (1998). “Arbitration agreements are ‘valid, irrevocable, and enforceable, except upon 

grounds that exist at law or in equity for the revocation of any contract.’” Taylor Bldg. Corp. of 

Am. v. Benfield, 117 Ohio St. 3d 352, 2008-Ohio-938, at ¶33 (quoting R.C. 2711.01(A)). 

Unconscionability is a valid basis for revoking a contract. Id. 

{¶8} “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.’” Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St. 3d 352, 2008-Ohio-938, at ¶34 
5 

 

(quoting Lake Ridge Academy v. Carney, 66 Ohio St. 3d 376, 383 (1993)). “The party asserting 

unconscionability of a contract bears the burden of proving that the agreement is both 

procedurally and substantively unconscionable.” Id. (citing Collins v. Click Camera & Video 

Inc., 86 Ohio App. 3d 826, 834 (1993) (“One must allege and prove a ‘quantum’ of both prongs 

in order to establish that a particular contract is unconscionable”)). 

{¶9} “The issue of unconscionability is a question of law.” Eagle v. Fred Martin 

Motor Co., 157 Ohio App. 3d 150, 2004-Ohio-829, at ¶12. Therefore, this Court reviews a trial 

court’s unconscionability decision de novo. Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St. 

3d 352, 2008-Ohio-938, at ¶2. The question, however, necessarily requires a case-by-case 

review of the facts and circumstances surrounding the making of the agreement. Eagle, 2004-

Ohio-829, at ¶13. To the extent that conflicts in the evidence must be resolved via an evaluation 

of the credibility of witnesses, the trial court is in a better position to perform that evaluation and 

this Court is deferential toward such factual findings. Taylor, 2008-Ohio-938, at ¶38. 

PROCEDURAL UNCONSCIONABILITY 

{¶10} The trial court held that the arbitration provision was procedurally unconscionable 

because there is a disparity of bargaining power between the students and the school, the school 

used high-pressure sales tactics, the provision was part of a take-it-or-leave-it adhesion contract, 

and the students had no understanding of arbitration or the effect of entering into an arbitration 

agreement. “Procedural unconscionability concerns the formation of the agreement and occurs 

when no voluntary meeting of the minds is possible.” Brunke v. Ohio State Home Servs. Inc., 

9th Dist. No. 08CA009320, 2008-Ohio-5394, at ¶10 (quoting Porpora v. Gatliff Bldg. Co., 160 

Ohio App. 3d 843, 2005-Ohio-2410, at ¶7). To evaluate procedural unconscionability, this Court 

considers “the relative bargaining positions of the parties . . . and whether the party claiming that 
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the provision is unconscionable was represented by counsel at the time the contract was 

executed.” Porpora, 2005-Ohio-2410, at ¶7 (citing Eagle v. Fred Martin Motor Co., 157 Ohio 

App. 3d 150, 2004-Ohio-829, at ¶31). Factors bearing on the relative bargaining positions of the 

parties include “age, education, intelligence, business acumen, experience in similar transactions, 

whether the terms were explained to the weaker party, and who drafted the contract.” Eagle, 

2004-Ohio-829, at ¶31. Generally, no one factor alone determines whether a contract is 

procedurally unconscionable. Hayes v. Oakridge Home, 122 Ohio St. 3d 63, 2009-Ohio-2054, at 

¶29. A court must consider the totality of the circumstances. Id. at ¶30. 

{¶11} An adhesion contract 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 Bldg. Corp. of Am. v. Benfield, 117 Ohio St. 3d 352, 2008-Ohio-938, at ¶49 

(citing Black’s Law Dictionary 342 (8th Ed. 2004)). Despite Ohio’s public policy in favor of 

arbitration, the Ohio Supreme Court has cautioned courts to pay special attention to arbitration 

clauses in contracts between businesses and consumers. Id. at ¶50. “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.” Id. (quoting 

Williams v. Aetna Fin. Co., 83 Ohio St. 3d 464, 472 (1998)). In the consumer context, the Ohio 

Supreme Court has warned that if “there are strong indications that the contract at issue is an 

adhesion contract, and the arbitration clause itself appears to be adhesive in nature,” there is 

“considerable doubt that any true agreement ever existed to submit disputes to arbitration.” 

Williams, 83 Ohio St. 3d at 473. Under those circumstances, “the presumption in favor of 

arbitration should be substantially weaker[.]” Id. 
7 

 

{¶12} In this case, there is no doubt that the contract evidences a consumer transaction 

for the provision of educational services. See R.C. 3332.16. The entire contract, including the 

arbitration provision was drafted by the school, preprinted in boilerplate language, and presented 

on a take-it-or-leave-it basis. Ms. Dennison testified that the school had more applicants than it 

could accommodate and she had no authority to negotiate the terms of the contract even if any of 

the applicants had been sophisticated enough to question them. Thus, it was a contract of 

adhesion as the trial court determined. Furthermore, the arbitration provision was not a separate 

document, but was part of the single-spaced fine print of a double-sided legal size piece of paper. 

See Hayes v. Oakridge Home, 122 Ohio St. 3d 63, 2009-Ohio-2054, at ¶28. As this arbitration 

provision appears in a consumer contract that is one of adhesion, we consider it in light of the 

Ohio Supreme Court’s warning that there is “considerable doubt that any true agreement ever 

existed to submit disputes to arbitration.” Williams v. Aetna Fin. Co., 83 Ohio St. 3d 464, 473 

(1998). 

{¶13} The trial court correctly determined that the school enjoyed a “vastly superior 

bargaining position over the [students].” Although the students were all literate adults working 

as licensed practical nurses, none of them had any education beyond high school and a brief 

practical nursing program. None of them claimed any business education or experience and 

none of them knew what the word “arbitration” meant. Ms. Dennison testified that she did not, 

and, in fact, could not explain the arbitration provision to students. She testified that she did not 

understand it herself. The students had some experience with other consumer contracts, such as 

those for purchase of a house or car, but there was no evidence that any of the students had any 

experience with or understanding of arbitration provisions. 
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{¶14} The trial court determined that Ms. Dennison fulfilled a dual role as both “advisor 

[to the students] as they made a major life decision” and “closing agent for the school.” This 

contributed to the unequal bargaining power in the relationship. Each of the students testified 

that she was experiencing financial difficulty and hoped to increase her earning power to support 

her family by obtaining licensure as a registered nurse. They all needed to secure loans in order 

to pay the $25,000 in tuition and fees required by the school. Ms. Dennison testified that she or a 

co-worker met with each interested applicant and got to know them to help them determine 

whether the nursing program would be a good fit. Following the interview, she had the power to 

determine whether each applicant would be permitted to take the next step in the admissions 

process. The trial court found that “[e]ach [student] testified, entirely consistently, that [Ms.] 

Dennison urged her to sign the enrollment agreement during the meeting or risk losing [her] spot 

in the program. This representation acted as an impetus for each [student] to sign the enrollment 

form.” None of the students was represented by a lawyer when they signed the contract. In fact, 

none of them knew any lawyers or had ever hired a lawyer except for help with a divorce. 

{¶15} No prospective student has ever asked Ms. Dennison about the arbitration 

provision or asked to consult with a lawyer before signing it. Ms. Dennison testified that she 

always encouraged the students to read the agreement while she stepped out of the room to make 

copies of the forms. Although she did not require the students to sign at the first meeting, she 

did pressure them to sign immediately by emphasizing that the classes fill up fast and they may 

well have to wait if they do not choose to sign immediately. 

{¶16} The school has argued that the students were not without bargaining power 

because they could have obtained the same services elsewhere. The evidence revealed that there 

were a few other nursing programs in the area, but that those programs have waiting lists and, 
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once begun, take longer to complete. There was no evidence of a multitude of registered nursing 

programs available in the area. We note that the school has requested that this Court take 

judicial notice that “there are no fewer than eleven registered nursing programs in Northeast 

Ohio alone.” Under Rule 201 of the Ohio Rules of Evidence, a court may take judicial notice of 

an adjudicative fact that is “not subject to reasonable dispute in that it is either (1) generally 

known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready 

determination by resort to sources whose accuracy cannot reasonably be questioned.” Evid. R. 

201(B). A court “shall take judicial notice if requested by a party and supplied with the 

necessary information.” Evid. R. 201(D). We cannot take judicial notice of the number of 

registered nursing programs in Northeast Ohio because the source of information offered, that is, 

a link to a website for the Ohio Board of Nursing, did not supply the information in a manner 

that allows for judicial notice of a discrete fact without further inquiry. There is no evidence in 

the record indicating that a multitude of schools, located a similar distance from the students’ 

homes, offered the same program. 

{¶17} The school has argued that the arbitration provision is not procedurally 

unconscionable because the contract contained a five-day cancellation provision. The trial court 

determined that the “five-day cancellation period may mitigate against procedural 

unconscionability, [but] the arbitration clause in thi[s] case . . . is so hard to understand that the 

[students] had no reasonable opportunity to protect their interest and cancel their enrollment.” 

The trial court focused on the language about agreeing that the transaction involved “interstate 

commerce” when it did not. In addition to using language confusing even to a reviewing court, 

the provision does nothing to explain its meaning to the average consumer. Olah v. Ganley 

Chevrolet Inc., 8th Dist. No. 86132, 2006-Ohio-694, at ¶26 (arbitration clause that failed to 
10 

 

explain “any details about the arbitration process” deemed substantively unconscionable because 

“its incompleteness is not only confusing, but misleading[.]”). “Accepting the arbitration clause 

as written, plaintiffs could not have known what being bound to arbitration really meant.” Id. 

The clause in this case is even less informative than the clause in Olah. In that case, the Court 

considered an arbitration clause that explained “binding arbitration” with the words, “you give 

up your right to go to court.” Id. at ¶19. In this case, the clause did nothing to explain the words 

“binding arbitration” and “judgment on any award by the arbitrator(s) may be entered in any 

court having jurisdiction.” Furthermore, whether the students read the clause thoroughly before 

signing or within the five-day cancellation period is “ultimately inconsequential in this particular 

case . . . [because, as discussed below,] nothing on the face of the [arbitration] clause could have 

put [them] on notice of excessive, prohibitive costs associated with the arbitration.” Eagle v. 

Fred Martin Motor Co., 157 Ohio App. 3d 150, 2004-Ohio-829, at ¶54. The arbitration 

provision is procedurally unconscionable as applied to these students. To the extent that the 

school’s assignment of error relates to procedural unconscionability, it is overruled. 

SUBSTANTIVE UNCONSCIONABILITY 

{¶18} The trial court held the arbitration provision is substantively unconscionable 

because it prevents the students from proceeding under the Consumer Sales Practices Act, 

requires them to arbitrate under commercial rather than consumer arbitration rules, denies them 

access to the remedial provisions of the Consumer Sales Practices Act, mandates that they 

prosecute all claims individually, and requires confidentiality. The trial court further found the 

arbitration provision commercially unreasonable because it is “very difficult to understand” and 

determined that “it is pretty clear the [students] could not understand it.” “Substantive 

unconscionability encompasses those factors that concern the contract terms themselves[.]” 
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Brunke v. Ohio State Home Servs. Inc., 9th Dist. No. 08CA009320, 2008-Ohio-5394, at ¶10 

(quoting Eagle v. Fred Martin Motor Co., 157 Ohio App. 3d 150, 2004-Ohio-829, at ¶31). 

“Contractual terms are substantively unconscionable if they are unfair and commercially 

unreasonable.” Id. (citing Ball v. Ohio State Home Servs. Inc., 168 Ohio App. 3d 622, 2006-

Ohio-4464, at ¶7). 

{¶19} The school has argued that the provision is not substantively unconscionable 

because this Court has repeatedly enforced arbitration agreements in cases involving claims 

made under the Consumer Sales Practices Act, Ohio courts have held that class action waivers do 

not make arbitration provisions substantively unconscionable, and the confidentiality provision 

does not interfere with enforcement of the statutory claims because the provision forbids 

disclosure “[e]xcept as may be required by law.” The students have argued that the class action 

prohibition, coupled with the confidentiality clause, renders the arbitration provision 

substantively unconscionable. 

{¶20} In this case, however, the confidentiality restriction is limited so as to avoid 

interfering with applicable law. The contract provides that “neither a party nor an arbitrator may 

disclose the existence, content or results of any arbitration conducted pursuant to this provision 

without the prior written consent of both parties,” but that restriction is limited by the words 

“[e]xcept as may be required by law.” Thus, the remedial goals of the Ohio Consumer Sales 

Practices Act are not stymied by the confidentiality language in the arbitration provision. On the 

contrary, to the extent that the Act requires dissemination of the arbitration award or other 

information about the arbitration in order to protect other consumers, the language of the contract 

indicates that the law will be followed over the contract’s preference for confidentiality. See 

R.C. 1345.05(A)(3). 
12 

 

{¶21} This Court is “not authorized to reverse a correct judgment merely because 

erroneous reasons were assigned as a basis thereof.” State ex rel. Carter v. Schotten, 70 Ohio St. 

3d 89, 92 (1994). In this case, we do not agree with each of the reasons the trial court assigned 

for holding this arbitration provision substantively unconscionable, nor do we agree with its 

decision to give the cost issue “little weight.” Regardless, “an appellate court shall affirm a trial 

court’s judgment that is legally correct on other grounds, that is, one that achieves the right result 

for the wrong reason, because such an error is not prejudicial.” Cook Family Invests. v. Billings, 

9th Dist. Nos. 05CA008689, 05CA008691, 2006-Ohio-764, at ¶19. In this case, we affirm the 

judgment of the trial court because it correctly held the arbitration provision is both procedurally 

and substantively unconscionable, regardless of the reasons it assigned. 

{¶22} An analysis of this arbitration provision reveals that it is substantively 

unconscionable because it prevents the students from vindicating their claims due to the 

excessive cost of arbitration. Although the trial court found the students “have limited means to 

pay an arbitrator,” it gave “little weight” to the cost issue because “nothing in the provision 

exposes [the students] to undue or prohibitive costs.” The trial court determined that the students 

would be required to pay a filing fee similar to a court of competent jurisdiction and that they 

would “be exposed to additional, unspecified costs in either arbitration or civil litigation.” 

{¶23} The arbitration provision provides that students asserting a claim for damages 

between $10,000 and $75,000 will have their total arbitration fees capped at $375. The arbitrator 

is allowed to ignore the limit, however, if he finds that the student “filed a frivolous claim[ ] or 

unnecessarily delayed the arbitration proceedings.” The students argued before the trial court 

that the unspecified costs, such as witness fees, and the arbitrator’s discretionary power to ignore 

the fee cap could expose them to untold costs that place arbitration out of reach. Ms. Rude 
13 

 

testified that she would not pursue arbitration if it exposed her to more than $1200 in costs. As a 

single mother without a consistent source of income, Ms. Canfield testified that $375 is too much 

for her to pursue arbitration of her claims against the school. 

{¶24} Although silence of an arbitration clause with respect to costs does not, by itself, 

make the clause unconscionable, “if the costs associated with the arbitration effectively deny a 

claimant the right to a hearing or an adequate remedy in an efficient and cost-effective manner,” 

then the clause is invalid. Felix v. Ganley Chevrolet Inc., 8th Dist. No. 86990, 86991, 2006-

Ohio-4500, at ¶21. As the students have argued to this Court, the fee cap is inapplicable in this 

case, making arbitration under the provision prohibitively expensive. The students’ claims 

exceed $75,000 because they seek to recover monetary damages in excess of $25,000, subject to 

trebling under the Ohio Consumer Sales Practices Act. The trial court record contains a copy of 

the American Arbitration Association’s Commercial Rules authenticated by a lawyer’s affidavit. 

According to the standard fee schedule found in those rules, the students would be responsible 

for paying an initial filing fee of $1850 and a case service fee of $750 for a claim that proceeds 

to an initial hearing. These initial costs are merely the administrative costs of arbitration. Under 

Rule 50, each party is also responsible for her own witnesses’ expenses and half of the cost of 

“[a]ll other expenses of the arbitration, including required travel and other expenses of the 

arbitrator, AAA representatives, and any witness and the costs of any proof produced at the 

direct request of the arbitrator[.]” The arbitrator’s hourly rate of compensation is not specified, 

but is described in Rule 51(a) as “a rate consistent with the arbitrator’s stated rate of 

compensation.” Additionally, the arbitrator has the power to assess all or any part of the total 

arbitration costs to either party. 
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{¶25} The cost problem is further exacerbated in this case by the class action waiver 

language in the provision. The provision forbids any “class action or a consolidated class 

arbitration proceeding either in court or under the rules of the American Arbitration 

Association.” When a number of consumers have similar claims against a company, they may 

file one complaint in court and share the filing fee and additional costs associated with pursuing 

that claim, as the students testified that they have done in this action. When consumers are 

prevented from sharing the cost of that endeavor, it can quickly become more expensive than any 

one is able to shoulder alone. In this case, the students testified that they are unable to afford 

even the initial filing fee to arbitrate this case individually. See Porpora v. Gatfliff Bldg. Co., 

160 Ohio App. 3d 843, 2005-Ohio-2410, at ¶17-19. 

{¶26} Ignoring the fact that the arbitration clause exposes the students to potential 

liability for the entire cost of arbitration, the evidence shows that the known cost of arbitration 

under this clause is unattainable for these students, making them unable to vindicate their 

statutory rights. See Green Tree Fin. Corp.-AL v. Randolph, 531 U.S. 79, 90-91 (2000) 

(arbitration clause not invalidated by record’s silence on the subject of arbitration costs because 

silence allowed only speculation regarding whether costs would be prohibitive). From the 

evidence presented to the trial court, we know that each student will be required to pay a 

minimum of $1850 to file an arbitration claim and another $750 once the claim proceeds to an 

initial hearing. It is not at all speculative to consider that the students will each have to pay half 

of the arbitrator’s fee, even if no expenses are billed. There is no evidence in the record 

regarding how much each arbitrator will charge for his services, but a fee will certainly be 

charged. So, we know that the arbitration costs will exceed the filing fee. The students have 

offered a link to the website for the Summit County Clerk of Courts, indicating that the cost to 
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file a civil complaint is $275.00 plus a $25 fee for each summons the clerk is instructed to issue, 

http://www.cpclerk.co.summit.oh.us\civilfees.asp (last visited Dec. 28, 2011). In this case, six 

plaintiffs filed two complaints and served four defendants. The cost of that filing was shared 

among six plaintiffs rather than being incurred individually, as would be required in arbitration 

under the terms of this provision. 

{¶27} As the students have testified that they cannot afford to pay even the initial filing 

fee for individual arbitration under this clause, the students have met their burden of showing 

that the arbitration fees they would be responsible for under the contract make vindication of 

their claims through arbitration cost prohibitive. See Taylor Bldg. Corp. of Am. v. Benfield, 117 

Ohio St. 3d 352, 2008-Ohio-938, at ¶59. The arbitration provision in this case is substantively 

unconscionable because it is prohibitively expensive for consumers to pursue their claims under 

the terms of the provision. 

SEVERABILITY 

{¶28} The school has argued for the first time on appeal that, if this Court deems some 

part of the arbitration provision unconscionable, it should not affect the enforceability of the 

remainder of that provision because the contract also includes a severability clause. The contract 

provides that “[i]f any court of competent jurisdiction or governmental or accrediting agency 

determines that any provision of this Agreement is invalid or unenforceable, such judgment shall 

not invalidate any other provision of this Agreement.” 

{¶29} The school has cited the Ohio state court cases of Ignazio v. Clear Channel 

Broadcasting Inc., 113 Ohio St. 3d 276, 2007-Ohio-1947, at ¶12, Bozich v. Kozusko, 9th Dist. 

No. 09CA009604, 2009-Ohio-6908, at ¶10, and Broughsville v. OHECC LLC, 9th Dist. No. 

05CA008672, 2005-Ohio-6733, at ¶27-33, in support of its argument. The students have 
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correctly argued that those cases are not similar to the situation in this case. Ignazio, 2007-Ohio1947, at ¶17 (sentence in arbitration clause providing expanded judicial review contrary to state 

law was unenforceable and severable); Broughsville, 2005-Ohio-6733, at ¶22 (the designated 

arbital forum was unavailable, but term could be severed from the arbitration agreement); 

Bozich, 2009-Ohio-6908, at ¶10 (limitation of liability to price of home inspection was 

unconscionable and severable). In each of those cases, the court severed a discrete term of the 

arbitration provision and enforced the remainder of it. In this case, we need not consider how the 

cost of arbitration could be severed from this agreement because the school has forfeited its right 

to raise this issue by failing to raise it before the trial court. Eisenbrei v. Akron, 9th Dist. No. 

25788, 2011-Ohio-5777, at ¶12 (citing Thrower v. Akron Dep’t of Public Hous. Appeals Bd., 9th 

Dist. No. 20778, 2002-Ohio-3409, at ¶20). To the extent that the school’s assignment of error 

addresses substantive unconscionability, it is overruled. 

CONCLUSION 

{¶30} The school’s assignment of error is overruled. The trial court correctly held that 

the arbitration provision in this consumer contract is both procedurally and substantively 

unconscionable and, therefore, unenforceable. The judgment of the Summit County Common 

Pleas Court is affirmed. 

Judgment affirmed. 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 
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 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellants. 

 

 CLAIR E. DICKINSON 

 FOR THE COURT 

BELFANCE, P. J. 

MOORE, J. 

CONCUR

APPEARANCES:

DOUGLAS B. SCHNEE and LUCY K. O’SHAUGHNESSY, Attorneys at Law, for Appellants. 

WILLIAM DOWLING and JOSHUA D. NOLAN, Attorneys at Law, for Appellees.