{¶ 1} Plaintiff-Appellant Thomas Tomovich appeals from the judgment of the Lorain County Court of Common Pleas which stayed his causes of action pending arbitration. We affirm.
{¶ 3} In his complaint, Tomovich alleged numerous violations of the Consumer Sales Practices Act ("CSPA"). In response to the complaint, on February 6, 2007, the three defendants filed a joint motion to stay the proceedings pending arbitration. The defendants attached the contract Tomovich signed which contained an arbitration clause to their motion. Tomovich opposed the motion to stay, primarily arguing the merits of his underlying cause of action. On March 6, 2007, the trial court held a hearing on the motion to stay.
{¶ 4} From the record before this Court, it appears that the trial court announced its judgment and served that judgment on the parties on March 21, 2007. On April 10, 2007, Tomovich filed "objections" to the trial court's decision. In those objections, Tomovich asserted that USAWFS did not become *3 registered as a fictitious name used by USAW until March 19, 2007.1 On April 13, 2007, the trial court's judgment staying the matter pending arbitration was finally journalized. In its entry, the trial court stayed the entire action pending arbitration. Tomovich timely appealed the trial court's judgment, raising three assignments of error for review.
"THE TRIAL COURT HAS COMMITTED REVERSIBLE AND PREJUDICIAL ERRORS IN SUBMITTING THE PARTIES' DISPUTE TO ARBITRATION[.]"
{¶ 5} Initially, we note that Tomovich has presented three assignments of error in his brief. Each of these alleged errors begins as quoted above. Tomovich then provides specific arguments in subheadings under each error. For ease of analysis, we have consolidated Tomovich's assignments of error into the above assignment of error.
{¶ 6} In his brief, Tomovich alleges that numerous grounds existed to support reversing the trial court's decision. Consequently, we first detail our standard of review and then review his claims.
{¶ 7} Generally, when an appellate court determines whether a trial court *4
properly denied a motion to stay proceedings pending arbitration, the standard of review is whether the trial court abused its discretion.Reynolds v. Lapos Const, Inc. (May 30, 2001), 9th Dist. No. 01CA007780, at *1. Abuse of discretion connotes more than simply an error in judgment; the court must act in an unreasonable, arbitrary, or unconscionable manner. Blakemore v. Blakemore (1983),
{¶ 8} Ohio public policy favors arbitration. Schaefer v. Allstate Ins.Co. (1992),
"If any action is brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which the action is pending, upon being satisfied that the issue involved in the action is referable to arbitration under an agreement in writing for arbitration, shall on application of one of the parties 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."
Accordingly, "unless it may be said with positive assurance that the subject arbitration clause is not susceptible to an interpretation that covers the asserted dispute[,]" the trial court should stay the proceedings. Neubrander v. Dean Witter Reynolds, Inc. (1992),
{¶ 9} The arbitration provision at issue provides as follows:
"Any controversy or claim arising out of or related to this contract, or breach thereof, shall be settled by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association, and judgment upon award rendered by the Arbitrator(s) may be entered in any Court having jurisdiction thereof."
{¶ 10} Despite Ohio's stated public policy, an arbitration clause may be found to be unenforceable on grounds existing at law or in equity for the revocation of a contract. R.C.
Valid Contract / Authority
{¶ 11} Tomovich first asserts that arbitration could not be ordered in this matter because the parties do not have a valid contract. We disagree.{¶ 12} To the extent that Tomovich filed suit against Rusk individually, we find no merit in his contentions that Rusk lacked the authority to invoke the arbitration provision. It is undisputed that Rusk was acting as an agent for USAWFS when he undertook his actions. In that respect, this Court has noted as follows: *6
"[W]e find that the broadly worded contractual language indicates that the parties' basic intent was to provide a single arbitral forum to resolve all disputes arising as a result of the home inspection. In order to settle all such controversies in the same place, claims against non-parties like Appellant, whose interests are directly related to those in privity of contract, must be read to fall within the scope of the clause. Appellees will not be allowed to circumvent their promise to arbitrate the home inspection matter by simply suing Appellant separately from Castle. Traditional agency theory also binds a non-party agent to the terms of an arbitration agreement made by his principal if the agent's actions served as the basis for his potential liability." (Internal citations and quotations omitted.) Manos v. Vizar (July 9, 1997), 9th Dist. No. 96 CA 2581-M, at *1-2.
We find our reasoning in Manos to be applicable the facts herein. Tomovich's complaint seeks to recover damages from Rusk's actions taken as an agent for USAWFS. Moreover, the parties' arbitration clause is broadly worded to encompass any controversy arising from performance of the underlying contract. We find, therefore, that Rusk had the authority to invoke the arbitration provision.
{¶ 13} Tomovich makes a similar argument with respect to USAW. Tomovich asserts that any contract that he entered into was with USAWFS, a company which was not registered in the State of Ohio when the contract was executed. It is undisputed, however, that during the course of these proceedings, USAWFS was registered as a fictitious name of USAW. As such, there are not two entities at issue. Rather, there is one entity which uses two different names. As one of those names appeared on the contract at issue, we find that both USAWFS and USAW are bound under the arbitration agreement. Accordingly, we find no error in the trial court's determination that the two names were utilized *7 by one company and that USAW was included under the contract's arbitration provision.
{¶ 14} Tomovich next argues that the failure of USAWFS to register with the Secretary of State precludes the company from moving to stay this matter. We disagree.
{¶ 15} R.C.
"The failure of any corporation to obtain a license under sections
1703.01 to1703.31 , inclusive, of the Revised Code, does not affect the validity of any contract with such corporation, but no foreign corporation which should have obtained such license shall maintain any action in any court until it has obtained such license. Before any such corporation shall maintain such action on any cause of action arising at the time when it was not licensed to transact business in this state, it shall pay to the secretary of state a forfeiture of two hundred fifty dollars and file in his office the papers required by divisions (B) or (C) of this section, whichever is applicable."
Under the plain language of R.C.
{¶ 16} Additionally, "R.C.
{¶ 17} As noted above, R.C.
"An action is an ordinary proceeding in a court of justice, involving process, pleadings, and ending in a judgment or decree, by which a party prosecutes another for the redress of a legal wrong, enforcement of a legal right, or the punishment of a public offense."
In this action, neither USA Waterproofing entity is seeking redress against Tomovich. We conclude, therefore, that neither entity is maintaining an action within the meaning of R.C.
{¶ 18} Tomovich also asserts that arbitration cannot be compelled because he rescinded any contract that was entered into by the parties. Tomovich has not claimed at any point in these proceedings that the arbitration clause would limit his remedies and preclude the arbitrator from rescinding the contract. Moreover, the arbitration clause at issue places no limits on the arbitrator's authority to order such a remedy. "Because an arbitrator can resolve the issue of whether [Tomovich] may revoke the Contract, we find [his] election of recission as a remedy would not abrogate the effect of an enforceable arbitration provision." *9 Haga v. Martin Homes, Inc. (Apr. 19, 1999), 5th Dist. No. 1998AP050086, at *6. Moreover, if we were to accept Tomovich's position, any party who asserts that he or she has rescinded a contract could avoid enforcement of an otherwise valid arbitration agreement. We decline to adopt such a position.
Unconscionability
{¶ 19} Another ground for invalidating an arbitration agreement is unconscionability. See Eagle v. Fred Martin Motor Co., {¶ 20} Procedural unconscionability concerns the formation of the agreement and occurs where no voluntary meeting of the minds was possible. Bushman v. MFC Drilling Inc. (July 19, 1995), 9th Dist. No. 2403-M, at *3, quoting Collins,
{¶ 21} Substantive unconscionability refers to the actual terms of the agreement. Contract terms are unconscionable if they are unfair and commercially unreasonable. Bank One, N.A. v. Borovitz, 9th Dist. No. 21042,
{¶ 22} In order to determine whether a given contract provision is unconscionable, courts must examine the particular facts and circumstances surrounding the agreement. Lightning Rod Mut. Ins. Co. v.Saffle (Nov. 6, 1991), 9th Dist. No. 15134, at *3. We now turn to those facts and circumstances.
{¶ 23} In his motion in opposition to the motion to stay, Tomovich did not include any argument related to unconscionability. Instead, he argued the merits of his claims and asserted that the defendants' inequitable conduct mandated that their motion to stay be denied. Consequently, there is no evidence in the record before this Court to support a finding of procedural unconscionability. Contrast Porpora v.Gatliff Building Co.,
{¶ 24} We also note that from the docket it appears that the trial court announced its judgment on March 21, 2007. This judgment, however, was not journalized until April 13, 2007. Before the trial court journalized its decision, it requested that the parties brief the issue of whether arbitration was cost prohibitive. In his brief on the issue, Tomovich asserted that the arbitration at issue was cost prohibitive. On appeal, Tomovich argues that Porpora mandates a denial of the motion to stay based upon the costs of the arbitration. Contrary to Tomovich's assertion, the cost of arbitration was only one factor in the decision reached by this Court in Porpora. See id. at ¶ 14-18. InPorpora, we also focused on the unfair terms contained in the arbitration provision. Specifically, this Court noted that the contract was "skewed" in favor of the contractor because it precluded commencing arbitration until the contractor unilaterally determined that the contract work was substantially complete. Id. at ¶ 15. Unlike inPorpora, the *12 provision at issue does not contain those types of unfair terms. Moreover, Tomovich has provided no law, and this Court has found no authority, for the proposition that cost, standing alone, is sufficient to find an arbitration clause substantively unconscionable. Even if we were to conclude that the cost of this arbitration satisfied Tomovich's burden to establish substantive unconscionability, as noted above he supplied no evidence of procedural unconscionability. The trial court, therefore, did not err in finding that the arbitration clause was not unconscionable.
Public Policy
{¶ 25} A contract injurious to the interests of the state will not be enforced. King v. King (1900),"Public policy is the community common sense and common conscience, extended and applied throughout the state to matters of public morals, health, safety, welfare, and the like. Again, public policy is that principle of law which holds that no one can lawfully do that which has a tendency to be injurious to the public or against the public good. Accordingly, contracts which bring about results which the law seeks to prevent are unenforceable as against public policy. Moreover, actual injury is never required to be shown; it is the tendency to the prejudice of the public's good which vitiates contractual relations." (Footnotes omitted.)
The Supreme Court has cautioned, however:
"Agreements voluntarily and fairly made between competent persons are usually valid and enforceable, and the principle that agreements opposed to public policy are not enforceable should be applied cautiously and only in circumstances patently within the *13 reasons on which that doctrine rests." Gugle v. Loeser (1944),
, paragraph one of the syllabus. 143 Ohio St. 362
{¶ 26} In his argument, Tomovich asserts that the instant contract violates public policy because USAWFS entered into the contract without being a registered entity. As noted above, however, Ohio law expressly declines to invalidate contracts on that basis. Consequently, the enforcement of such a contract cannot be said to be injurious to the interests of the State. Tomovich's public policy argument fails.
CSPA Claims
{¶ 27} Tomovich argues that his CSPA claims should not be subject to binding arbitration. In support of his claim, Tomovich has relied heavily upon Eagle. Eagle, however, does not stand for the proposition that CSPA claims are not subject to arbitration. Rather, Eagle reinforced longstanding law that statutory claims may be arbitrated so long as the complaining party may "vindicate [his or her] statutory cause of action." Eagle at ¶ 27, quoting Gilmer v. Interstate/JohnsonLane Corp. (1991),{¶ 28} In refusing to enforce the arbitration clause at issue, theEagle Court noted that several of its provisions directly conflicted with the stated goals of the CSPA. That Court noted that "[w]hen an arbitration clause vanquishes the remedial purpose of a statute by imposing arbitration costs and preventing actions from being brought by consumers, the arbitration clause should be held unenforceable."Eagle at ¶ 68.
{¶ 29} None of the provisions which the Eagle Court found offensive to the CSPA's purposes are present herein. The instant clause contains no confidentiality provision. Accordingly, the results of the arbitration would be readily available to the Attorney General and there would be no bar to them becoming public information. Compare Eagle at ¶ 72. Furthermore, there is no cost associated with receiving findings of fact and conclusions of law. Compare Eagle at ¶ 71. Further still, there is no provision which restricts the causes of action that may be maintained by Tomovich. Compare Eagle at ¶ 73-74; see, also, Schwartz v. AlltelCorp., 8th Dist. No. 86810,
Conclusion
{¶ 30} Having reviewed each of Tomovich's claims, we find that they lack merit.Judgment affirmed.
The Court finds that 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 Lorain, 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.
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). *16 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 Appellant.
Slaby, P. J. Dickinson, J., concur.