[Cite as Seyfried v. O'Brien,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104212

JAMES SEYFRIED

PLAINTIFF-APPELLANT

vs.

PATRICK O’BRIEN, JR., CHEVROLET, INC., ET AL. DEFENDANTS-APPELLEES

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-11-753162

BEFORE: McCormack, P.J., Stewart, J., and Boyle, J.

RELEASED AND JOURNALIZED: January 26, 2017 ATTORNEYS FOR APPELLANT

Rosemary Taft-Milby Michael Berler Ronald I. Frederick James Wertheim Frederick & Berler L.L.C. 767 East 185th Street Cleveland, OH 44119

ATTORNEYS FOR APPELLEE

Christopher A. Tipping Harry A. Tipping Harold M. Schwarz, III Stark & Knoll Co. L.P.A. 3475 Ridgewood Road Akron, OH 44333 TIM McCORMACK, P.J.:

{¶1} James Seyfried’s estate (“appellant” hereafter) appeals from a judgment of

the Cuyahoga County Court of Common Pleas that granted a motion to stay pending

arbitration in a consumer complaint. The trial court found James Seyfried signed a valid

and enforceable arbitration agreement regarding his purchase of a Chevrolet Cobalt. We

affirm.

Substantive Facts and Procedural History

{¶2} Seven years ago, on June 11, 2009, Seyfried went to a Chevrolet dealership

to purchase a used automobile. With the help of a salesman, James Stewart, he selected

a used 2009 Chevrolet Cobalt. Stewart prepared a handwritten “Buyer’s Order” for the

Cobalt, which Seyfried signed. To be allowed to take immediate possession of the

vehicle before he secured financing, Seyfried also signed a “Conditional Delivery

Agreement.” That agreement allowed him to cancel his purchase if third-party financing

could not be obtained within three days. Seyfried also signed a Used Vehicle Customer

Satisfaction Guarantee, which allowed him to cancel the deal within three days or 150

miles, if he was dissatisfied with the vehicle for any reason.

{¶3} The next day, on June 12, 2009, Seyfried executed several more documents

in connection with his purchase of the Cobalt. He signed an Agreement to Binding

Arbitration (“the arbitration agreement”). The agreement stated that “Binding

arbitration shall include all disputes * * * arising out of or in any way related to this

consumer transaction. Binding arbitration shall be used to resolve all claims arising from the purchase * * * of the vehicle * * * or any document or relationship established

in this transaction or related transaction regardless of whether the transactions were

consummated.” Before the signature line, there was a bolded warning in a larger font

and in capital letters: “READ BEFORE SIGNING. DO NOT SIGN THIS DOCUMENT

BEFORE YOU HAVE READ IT AND UNDERSTAND ITS CONTENTS.

ARBITRATION IS NOT REQUIRED FOR THE PURCHASE OR FINANCING OF

YOUR VEHICLE.”

{¶4} Raymond Cieslak, the dealership’s finance representative, testified that he

reviewed the arbitration agreement with Seyfried and explained that if there was any

dispute between him and the dealership, the dispute would go through a third-party

arbitrator as opposed to the courts. Seyfried gave no indication he did not understand

the arbitration agreement, expressed no objection, and signed the agreement voluntarily.

{¶5} Seyfried then signed a purchase contract for the Cobalt.1 Paragraph 14 of

the purchase contract stated: “If this vehicle is being delivered prior to finance approval,

buyer shall have 72 hours in which to secure or meet finance approval. Buyer will

assume full responsibility for all wear, tear and/or damage during this period and will

return vehicle in same condition at the end of the 72 hours, if finance approval is not

met.”

Under the purchase contract, the total balance for the used Cobalt was $16,902. It included a 1

sale price of $13,500, $399 in theft protection, service contract fee of $1,010, “GAP” care fee of $595, and other miscellaneous charges, offset by a trade-in credit of $750. {¶6} There was a two-sentence clause regarding arbitration in the purchase

contract and below the clause was a separate signature line. The sentence stated, “I

agree that any dispute from this transaction will go to arbitration and I have executed a

detailed arbitration agreement which is fully incorporated herein. Arbitration is not

required for the purchase or financing of your vehicle.” The signature line was left

blank in the purchase contract (and in subsequent purchase contracts signed by Seyfried

relating to his purchase of the Cobalt).

{¶7} On June 12, 2009, Seyfried also signed a loan agreement with Firefighters

Community Credit Union to finance the purchase of the vehicle. Seyfried, however,

failed to be approved for financing from the credit union. He did not cancel the

transaction within three days, but instead kept the vehicle. To help him obtain

financing from First Merit, Chevrolet’s financing company, Chevrolet increased the value

for his trade-in vehicle to $1,950 (but also increased the “GAP” care fees) and reduced

the total unpaid balance, and Seyfried signed another purchase contract on June 26, 2009,

with the reduced balance.2

{¶8} On April 13, 2011, Seyfried filed the instant class action complaint. The

complaint named as defendants four Patrick O’Brien Chevrolet entities (Patrick O’Brien

Jr. Chevrolet, Inc., Patrick O’Brien, Jr. Chevrolet II, Inc., Patrick O’Brien, Jr. Chevrolet

III, Inc., Patrick O’Brien, Jr. Chevrolet IV, Inc.), Patrick O’Brien, Jr., and Patrick O’Brien

Seyfried signed another purchase contract on July 2, 2009, backdated to June 26, with a 2

further reduced balance of $15,058.36. Sr. (collectively as “Chevrolet” hereafter), and First Merit (who was subsequently

dismissed from the lawsuit). The complaint alleged the defendants failed to disclose to

buyers of a used vehicle that the vehicle had been used as a rental vehicle, in violation of

the Consumer Sales Practices Act, R.C. 1345.02. Seyfried passed away in 2012, and his

estate was substituted as plaintiff. Apparently, the only asset in the estate is an interest

in the instant lawsuit.

{¶9} Chevrolet moved to stay the proceeding pending arbitration pursuant to

R.C. 2711.02. The trial court granted plaintiff’s request for discovery regarding the

validity of the arbitration agreement. On November 17, 2015, the trial court held a

hearing on Chevrolet’s motion. James Stewart, the sales person involved in the subject

transaction, Raymond Cieslak, the finance representative, and Debbie Kidwell, Seyfried’s

former fiancée, testified at the hearing. After the hearing, appellant submitted a brief

opposing the motion to stay, advancing two arguments: (1) the purchase contract was

fully integrated and it did not incorporate the arbitration agreement, and (2) the arbitration

agreement was substantively and procedurally unconscionable.

{¶10} The trial court found, as a factual matter, that Seyfried signed a binding

arbitration agreement and it granted Chevrolet’s motion to stay pending arbitration. The

court’s judgment entry stated:

The parties conducted discovery on the issue of whether a valid arbitration

agreement exists between the parties and on 11/17/2015 a hearing was held.

The court has duly considered the evidence admitted at the hearing as well as the arguments and post hearing briefs submitted by the parties. As a

factual matter, the court finds that on 6/12/2009 plaintiff James Seyfried

signed an agreement to binding arbitration. The court further finds that

agreement entered to be valid and enforceable.

Appeal

{¶11} Appellant raises one assignment of error, which states:

The trial court erred in finding the stand-alone arbitration agreement valid

and enforceable in light of Ohio law requiring that all terms of a motor

vehicle contract to be contained in one writing, in light of Ohio contract law

that a separate agreement is unenforceable when a contract is a fully

self-integrated document with a merger clause and its own unsigned

arbitration provision, and where the purported arbitration agreement is

unconscionable.

{¶12} Appellant argues, for the first time on appeal, that the June 12, 2009

arbitration agreement was not valid because R.C. 4517.26 requires a sale of a motor

vehicle “be preceded by a written instrument or contract that shall contain all of the

agreements of the parties and shall be signed by the buyer and the seller.” Appellant

claims that, under the statute, the arbitration agreement must be part of a single document

in order to be enforceable.

{¶13} “A party may not change its theory of the case and present new arguments

for the first time on appeal.” Tokles v. Black Swamp Customs, L.L.C., 6th Dist. Lucas No. L-14-1105,

, citing State ex rel. Gutierrez v. Trumbull Cty. Bd. of

Elections,

,

(1992). “[A]rguments raised for the

first time on appeal will not be considered by an appellate court.” Gardi v. Bd. of Edn.,

8th Dist. Cuyahoga No. 99414,

, citing State ex rel. Quarto Mining

Co. v. Foreman,

,

(1997).

{¶14} Appellant had ample opportunity to raise the argument based on R.C.

4517.26 before the trial court, but it did not. We decline to review an issue raised for the

first time on appeal.

{¶15} Rather, the main question we answer in this appeal is whether, as the trial

court found, Seyfried consented to arbitration regarding his purchase of the Cobalt.

Although it is undisputed that Seyfried signed an arbitration agreement, appellant argues

the executed arbitration agreement had no legal effect.

{¶16} As in all appeals concerning arbitration, we begin our review with the

recognition that both the Ohio General Assembly and the courts have expressed a strong

public policy favoring arbitration. Hayes v. Oakridge Home,

,

,

. Arbitration is favored because it provides the

parties “with a relatively expeditious and economical means of resolving a dispute.”

Schaefer v. Allstate Ins. Co.,

,

(1992).

{¶17} Under R.C. 2711.02, a court may stay trial of an action upon application of a

party “if (1) the action is brought upon any issue referable to arbitration under a written

agreement for arbitration, and (2) the court is satisfied the issue is referable to arbitration under the written agreement.” Austin v. Squire,

,

(9th Dist. 1997), citing Jones v. Honchell,

,

(12th Dist. 1984).

{¶18} Varying standards of review have been applied in arbitration matters. As

this court observed, “‘[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.’” McCaskey v. Sanford-Brown College, 8th Dist. Cuyahoga No. 97261,

, quoting U.S. Bank, N.A. v. Wilkens, 8th Dist. Cuyahoga No. 96617,

. See also Brownlee v. Cleveland Clinic Found., 8th Dist.

Cuyahoga No. 97707,

; Butcher v. Bally Total Fitness Corp., 8th Dist.

Cuyahoga No. 81593,

, ¶ 23 (generally the standard of review of whether

a trial court properly grants a motion to stay pursuant to R.C. 2711.02 is an abuse of

discretion); Carter Steel & Fabricating Co. v. Danis Bldg. Constr. Co.,

,

(3d Dist. 1998); Harsco Corp. v. Crane Carrier Co.,

,

(3d Dist. 1997). On the other hand, when reviewing

the scope of an arbitration agreement, that is, whether a party has agreed to submit a

certain issue to arbitration, a de novo standard applies.

, citing

Shumaker v. Saks Inc.,

,

,

(8th

Dist.). Similarly, a de novo standard applies in a claim of unconscionability of an

arbitration clause.

, citing Taylor Bldg. Corp. of Am. v. Benfield,

,

,

. Under either standard of review, when a trial court makes factual findings surrounding the making of an arbitration agreement,

the factual finding should be accorded appropriate deference. Taylor Bldg. at ¶ 2, 37.

Whether Seyfried Agreed to Arbitration

{¶19} To determine whether a party has agreed to arbitrate, the courts apply

ordinary principles that govern the formation of contracts. First Options of Chi., Inc. v.

Kaplan,

,

,

(1995). In order for a valid

contract to exist, there must be mutual assent on the essential terms of the agreement,

which is usually demonstrated by an offer, acceptance of the offer, and consideration.

Reedy v. The Cincinnati Bengals, Inc.,

,

(1st

Dist. 2001). “[Q]uestions of contract formation and intent remain factual issues to be

resolved by the fact finder after careful review of the evidence.” One Hundred Forty

Realty Co. v. England, 2d Dist. Montgomery No. 10189,

(Dec. 23, 1987), citing Mead Corp. v. McNally-Pittsburgh Mfg. Corp.,

(C.A.6 1981). Specifically, the question of whether the parties agreed to arbitrate

their disputes is a matter of contract and the terms of a contract are a question of fact.

Palumbo v. Select Mgt. Holdings, Inc., 8th Dist. Cuyahoga No. 82900,

.

{¶20} Here, Seyfried signed an agreement to binding arbitration on June 12, 2009.

That agreement identified the vehicle by its reference to the June 11, 2009 Buyer’s

Order. The agreement stated, in unambiguous terms, that the consumer agreed to

arbitrate all disputes “arising out of or in any way related to this consumer transaction” and “all claims arising from the purchase * * * of the vehicle * * * or any documents *

* * in this transaction or related transaction * * *.” Cieslak testified he reviewed the

arbitration agreement with Seyfried and explained the nature of arbitration, and Seyfried

signed the agreement voluntarily. Appellant, however, claims Seyfried did not consent

to arbitration because in the purchase contract Seyfried left the signature line blank below

the two-sentence arbitration clause that acknowledged an execution of a separate

arbitration agreement.

{¶21} Appellant essentially claims that Seyfried executed an agreement to

arbitration and immediately revoked his consent, a claim supported only by a lack of

signature acknowledging the separately executed arbitration agreement. In finding that

Seyfried had agreed to arbitration, the trial court did not consider Seyfried’s omission of

an acknowledgment of executing a separate arbitration agreement moments earlier fatal to

his consent to arbitration. The trial court recognized the incongruity of appellant’s claim

and gave effect to the arbitration agreement after an evidentiary ruling. We will give

deference to the finding.3

Appellant relies heavily on the lack of signature under the arbitration clause in the purchase 3

agreement in its claim that Seyfried did not consent to arbitration. We note that although the presence of a signature evinces consent to arbitration, the lack of a signature does not in itself show that a party has not consented to arbitration. The courts have long observed that for an arbitration agreement to be enforceable, R.C. Chapter 2711 requires only that the arbitration agreement be in writing, because there are no provisions in the chapter requiring the written agreement to be signed. Rather, the courts have applied ordinary contract principles to determine if a party is bound by an arbitration agreement absent a signature. Brumm v. McDonald & Co. Sec., Inc.,

,

(4th Dist. 1992). See also Ross v. Bridgewater Constr., Inc., 6th Dist. Lucas No. L-03-1029,

. Integration

{¶22} Appellant argues that because the purchase contract had a merger clause, it

was a fully integrated document and it superseded the separately executed arbitration

agreement.

{¶23} The courts have long recognized whether a contract is integrated is not

dependent upon the existence of an integration clause; “‘[t]he presence of an integration

clause makes the final written agreement no more integrated than does the act of

embodying the complete terms into the writing.’” Bellman v. Am. Internatl. Group,

,

,

, quoting Galmish v. Cicchini,

,

(2000).

{¶24} Appellant alleges that Seyfried signed the purchase contract after he signed

the arbitration agreement and attributes great significance to that temporal sequence.

However, by all accounts, the two documents were executed moments apart, not

separated by any meaningful lapse of time. Therefore, the two documents should be

more appropriately considered as multiple documents executed as part of a transaction.

“As a general rule of construction, a court may construe multiple documents together if

they concern the same transaction.” Ctr. Ridge Ganley, Inc. v. Stinn,

,

(1987). “[A]ll writings that are a part of the same transaction should

be interpreted together, and effect should be given to every provision of every writing.”

Prudential Ins. Co. of Am. v. Corporate Circle,

,

(8th Dist. 1995), citing Abram & Tracy, Inc. v. Smith,

,

(10th Dist. 1993). “[W]ritings executed as part of the same transaction, will

be read as a whole, and the intent of each part will be gathered from a consideration of the

whole.” Foster Wheeler Enviresponse v. Franklin Cty. Convention Facilities Auth.,

,

(1997).

{¶25} The contemporaneous nature of Seyfried’s execution on June 12, 2009, of

the arbitration agreement and the purchase contract reflects they were documents

executed in the same transaction. The purchase agreement was supplemented by the

arbitration agreement. The arbitration agreement executed by Seyfried would be

completely meaningless if it is not construed as such. When the two documents are read

together, the purchase contract did not supersede the contemporaneously executed

arbitration agreement despite the merger clause.

Whether the Arbitration Agreement Governs Subsequent Purchase Contract

{¶26} Appellant also argues the arbitration agreement signed in conjunction with

the purchase contract on June 12, 2009, did not bind Seyfried to arbitration because the

earlier purchase contract had “expired” and Seyfried entered into a new transaction on

June 26, 2009, without executing another arbitration agreement on that occasion.

{¶27} Appellant’s claim lacks merit. The June 12 and June 26 purchase contracts

concerned the same vehicle transaction — they were substantially similar except for the

higher trade-in value of Seyfried’s old vehicle and higher “GAP” care fees in the latter

contract. Appellant claims in its brief on appeal that the June 11, 2009 purchase contract

was contingent and it was “not binding unless accepted by seller and credit is approved,” pointing us to paragraph 14 of the purchase agreement. Our review of paragraph 14

shows that it stated only that if the buyer did not obtain financing within three days, the

buyer was to return the vehicle to the dealership. Although Seyfried could return the

Cobalt and cancel the transaction when he was unable to obtain the financing within three

days, he did not cancel the transaction — he retained the Cobalt despite his inability to

obtain financing. Therefore, the June 26, 2009 purchase contract did not relate to a new

transaction. It modified slightly the previous contractual terms, raising the trade-in

value and the “GAP” care fees but was otherwise substantially similar to the June 12,

2009 purchase agreement. These documents related to the same vehicle transaction.

By the clear terms of the arbitration agreement Seyfried executed on June 12, 2009,

Seyfried consented to arbitration for all claims arising out of his purchase of the Cobalt.

Unconscionability

{¶28} Seyfried also claims the arbitration agreement was both substantively and

procedurally unconscionable, citing this court’s en banc opinion in Devito v. Autos Direct

Online, Inc.,

,

(8th Dist.).

{¶29} Unconscionability embodies two separate concepts: (1) substantive

unconscionability, referring to “unfair and unreasonablecontract terms,” and (2)

procedural unconscionability, referring to “individualized circumstances surrounding

each of the parties to a contract such that no voluntary meeting of the minds was

possible.” Collins v. Click Camera & Video,

,

(2d Dist. 1993). {¶30} In Devito, the arbitration agreement contained a loser-pay provision that

required the nonprevailing party to pay the prevailing party’s arbitration costs and

expenses, including attorney fees. Its shifting of the financial burden to the consumer

sharply departed from the established consumer-related arbitration procedure. A

majority of this court, recognizing that arbitration is the preferred forum, held that the

arbitration agreement was valid and enforceable once the loser-pay provision was excised

from the arbitration agreement.4 The instant arbitration agreement did not contain a

cost-shifting loser-pay provision. DeVito is distinguishable.

{¶31} Appellant also claims the arbitration agreement is unconscionable because

it does not contain information about the consumer’s “loss of appeal rights,” citing

Felix v. Ganley Chevrolet, Inc., 8th Dist. Cuyahoga Nos. 86990 and 86991,

. Felix, however, does not stand for the proposition that a lack of

information about a consumer’s “loss of appeal rights” rendered an arbitration agreement

unconscionable. Felix involved a one-paragraph arbitration provision embedded in a

purchase contract. 5 This court found the one-paragraph provision substantively

The majority was split however regarding whether the inclusion of the loser-pay provision 4

rendered the arbitration agreement substantively and procedurally unconscionable. Only three of the seven judges forming the majority concluded that the loser-pay provision rendered the arbitration agreement substantively and procedurally unconscionable.

The arbitration in Felix states, in its entirety “Arbitration — Any dispute between you and 5

dealer (seller) will be resolved by binding arbitration. You give up your right to go to court to assert your rights in this sales transaction (except for any claim in small claims court). Your rights will be determined by a neutral arbitrator, not a judge or jury. You are entitled to a fair hearing, but arbitration procedures are simpler and more limited than rules applicable in court. Arbitrator decisions are as enforceable as any court order and are subject to a very limited review by a court. See general unconscionable because it did not divulge any details about the arbitration process. In

Wilkens, 8th Dist. Cuyahoga No. 96617,

, this court distinguished Felix,

finding the one-page separate arbitration agreement in that case valid because it contained

significantly more information than the short arbitration clause in Felix. Id. at ¶ 23-26.

{¶32} Similarly here, we distinguish Felix. Chevrolet’s arbitration agreement

was in a separate document clearly identified in bold print and capital letters as

“AGREEMENT TO BINDING ARBITRATION” and it provided much more

information about the arbitration process than the short arbitration clause in Felix. The

arbitration agreement here stated that the purchaser agreed to voluntarily “waive any right

to a trial in any state or federal court to resolve any dispute and will submit any dispute to

binding arbitration.” It warned the consumer that “[n]o claim submitted to arbitration is

heard by a jury and no claim may be brought as a class action * * *.” Unlike the

arbitration clause in Felix that directed any questions about the arbitration process to the

“general manager,” the agreement here stated the arbitration will be governed by the

American Arbitration Association and provided information about the arbitration

procedure. It also stated in bold print and in capital letters immediately before the

signature line: “READ BEFORE SIGNING. DO NOT SIGN THIS DOCUMENT

BEFORE YOU HAVE READ IT AND UNDERSTAND ITS CONTENTS.

ARBITRATION IS NOT REQUIRED FOR THS PURCHASE OR FINANCING OF

YOUR VEHICLE.” Felix is distinguishable.

manager for information regarding arbitration process.” {¶33} Finally, appellant makes a vague claim regarding the unconscionability of

the cost provision in the instant arbitration agreement. The arbitration agreement stated:

“This dealership will pay for the purchaser’s portion of the arbitrator’s compensation up

to $125, beyond this amount the purchaser is responsible for any additional arbitration

fees, costs and expenses.” Unlike DeVito, this provision does not require the consumer

to pay should the consumer lose.6 “Courts have consistently recognized that given the

strong public policy in favor of arbitration, a court shall not deem an arbitration clause

unconscionable simply because it imposes higher fees than filing a complaint in the trial

court.” Sikes v. Ganley Pontiac Honda, Inc., 8th Dist. Cuyahoga No. 82889,

, citing Dunn v. L&M Bldg., 8th Dist. Cuyahoga No. 77399,

(Oct. 26, 2001). Appellant argues in a cursory manner that

the arbitration cost imposed here has a chilling effect of deterring appellant from bringing

a claim, yet presented no authenticated document or sworn testimonial evidence to

substantiate its claim. As such, the claim is without merit.

{¶34} Under the circumstances of this case, the trial court properly granted

appellee’s motion to stay the matter pending arbitration. Appellant’s assignment of error

lacks merit.

{¶35} Judgment affirmed.

It is ordered that appellee recover of appellant costs herein taxed.

In DeVito, the loser-pay provision stated, “The non-prevailing party shall pay, and the 6

arbitrators shall award the prevailing party’s arbitration costs and expenses, including reasonable attorney’s fees.” The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas 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.

______________________________________________ TIM McCORMACK, PRESIDING JUDGE

MELODY J. STEWART, J., and MARY J. BOYLE, J., CONCUR