Cook v. Richard T. Kiko Agency, Inc., 2023 Ohio 552

Cook signed two post-auction purchase agreements for multiple parcels and paid a 10% deposit ($149,600); no deed was ever delivered and he did not tender the balance.
Cook alleges defendants (the realtor Kiko and the Bieber sellers) misrepresented zoning (claimed commercial or "grandfathered" commercial use), inducing him to contract; he refused to close and sued for rescission, fraud, conversion, and declaratory relief seeking return of the deposit and damages.
The purchase agreement contained a conspicuous, one-page binding arbitration clause covering disputes "related to or arising out of the contract." Defendants moved to stay the lawsuit pending arbitration; the trial court granted the stay.
On appeal Cook argued (1) the statutory real‑estate exception to arbitration (R.C. 2711.01(B)(1)) applies because the dispute involves title or possession, and (2) the arbitration clause is unconscionable.
The appellate court affirmed: it held the claims for rescission/damages are not controversies about title or possession because no transfer or encumbrance of title occurred, and Cook failed to carry his burden to show procedural or substantive unconscionability.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does R.C. 2711.01(B)(1) (real‑estate exception) bar arbitration?	Cook: The purchase agreements concern transfer of title/possession; rescission is the mirror of specific performance so exception applies.	Defendants: No deed was delivered, title remained with sellers; Cook seeks money/return of deposit, not a ruling on title or possession.	Court: Exception does not apply—claims seek rescission/damages, not adjudication of title/possession; stay affirmed.
Is the arbitration clause unconscionable (procedural & substantive)?	Cook: Clause is a preprinted form forced on him, unequal bargaining power, limits damages, shifts costs, and delegates arbitrability to the arbitrator.	Defendants: Clause was conspicuous and negocible in practice, waivers and cost‑splitting apply to both sides, no evidence arbitration costs are prohibitive.	Court: Cook failed to present evidence (affidavits/hearing) of lack of meaningful choice or oppressive terms; limitations and fee allocation were commercially reasonable; clause enforceable.
May the court stay the entire action pending arbitration even if some issues might be non‑arbitrable?	(Implicit) Cook argued some remedies (title transfer) would be non‑arbitrable.	Defendants: Entire action may be stayed while arbitrable issues are submitted.	Court: A stay of the trial is proper pending arbitration even if non‑arbitrable issues exist; trial court properly stayed the action.

Taylor Bldg. Corp. of Am. v. Benfield, 884 N.E.2d 12 (Ohio 2008) (arbitration clause is severable; unconscionability must target the clause itself and enforceability is a matter for court review)
French v. Ascent Resources‑Utica, L.L.C., 193 N.E.3d 543 (Ohio 2022) (statutory real‑estate exception applies when a successful action affects title or possession, e.g., extinguishing an encumbrancing lease)
Hayes v. Oakridge Home, 908 N.E.2d 408 (Ohio 2009) (two‑part unconscionability test: procedural lack of meaningful choice and substantive commercially unreasonable terms)
Williams v. Aetna Fin. Co., 700 N.E.2d 859 (Ohio 1998) (presumption in favor of enforcing arbitration agreements)
Green Tree Fin. Corp. v. Randolph, 531 U.S. 79 (2000) (speculative risk of arbitration costs alone does not render arbitration clause unenforceable)
Belmont Cty. Sheriff v. Fraternal Order of Police, Ohio Labor Council, Inc., 820 N.E.2d 918 (Ohio 2004) (parties may agree to submit arbitrability to arbitrator unless they clearly and unmistakably provide otherwise)
Porpora v. Gatliff Bldg. Co., 828 N.E.2d 1081 (Ohio 2005) (arbitration provision can be unconscionable where it imposes undisclosed or prohibitively high arbitration costs or conditions precedent increasing the claimant's burden)