[Cite as Gibbs v. Firefighters Community Credit Union,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

RICHARD GIBBS, ET AL., :

Plaintiffs-Appellees, : No. 109929 v. :

FIREFIGHTERS COMMUNITY : CREDIT UNION,

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: August 5, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-19-927066

Appearances:

Branstetter, Stranch & Jennings, P.L.L.C., Alyson Steele Beridon, Karla Campbell, Michael J. Wall, J. Gerard Stranch, and Martin F. Schubert; Cohen & Malad, L.L.P., and Lynn A. Toops, for appellees.

Litchfield Cavo, L.L.P., James Branit, and Keith L. Gibson; Bricker & Eckler, L.L.P., and Daniel C. Gibson, for appellant. SEAN C. GALLAGHER, P.J.:

Defendant-appellant Firefighters Community Credit Union

(“FFCCU”) appeals the decision of the trial court that denied its motion to stay the

action pending arbitration. Upon review, we affirm the decision of the trial court.

Background

On December 26, 2019, appellees Richard Gibbs, Randall L. Joy, and

Donna M. Joy (collectively “appellees”) filed a class-action complaint against

FFCCU. The complaint states that appellees have checking accounts at FFCCU and

alleges that FFCCU engages in practices of (1) charging ATM/VCC fees on

transactions that do not actually overdraw an account, and (2) charging two or more

returned item fees on the same item. The complaint includes class allegations and

raises claims for breach of contract, breach of the covenant of good faith and fair

dealing, and unjust enrichment.

In response to the complaint, FFCCU filed a motion to dismiss or, in

the alternative, application for stay pending arbitration pursuant to R.C. 2711.02(B).

FFCCU argued that appellees agreed to a change in terms and conditions to their

account agreements, which adopted an “Arbitration and Waiver of Class Action

Relief provision.” FFCCU provided an affidavit of an authorized representative who

averred that “[o]ne amendment to the Account Agreement that [FFCCU] notified

the members of was the inclusion of an arbitration and class action waiver provision,

effective August 21, 2019.” It was also averred that this notice was sent to email

addresses previously provided by appellees to FFCCU and that no failure to deliver notices were received. FFCCU maintained that because appellees never opted out

of the Arbitration and Waiver of Class Action Relief provision, it became effective

and controls in this matter. Relevant hereto, the Account Agreement provided that

it “may be amended by Us at any time in which case We will provide You with a

notice of amendment as required by law or regulation,” and that the “Agreements

and Disclosures provided to You at the time you opened Your Account * * * may be

amended by Us from time to time in a manner as prescribed by law.”

The email that purportedly was sent to appellees on August 28, 2019,

contained the subject “We’ve updated our terms of services” and stated as follows:

Dear Valued Member,

We’re writing to let you know that we’ve updated our terms of service. These updates apply to all members and accounts at Firefighters Community Credit Union. We believe these updates will help us serve all of our members better. The changes in terms are attached to this email. We recommend that you familiarize yourself with these updated agreements. As you continue to use FFCCU for your banking needs, you agree to these updated terms. If you have any questions, please don’t hesitate to contact us at * * *. We look forward to continuing to serve you and to help you meet your financial goals.

(Emphasis added.)

This email indicated that the terms of service had been updated, and

nothing in the content of the email informed the recipient of the addition of the

Arbitration and Waiver of Class Action Relief provision or the ability to opt out.

Rather, the Notice of Change in Terms that was stated to “apply to all members” was

“attached to this email.” The attached Notice of Change in Terms included the Arbitration and Waiver of Class Action Relief provision and opt-out requirements,

which were shown in a box.

In opposing FFCCU’s motion, appellees argued in part that they “did

not agree to the arbitration or waiver clauses because [they] * * * were not fully

informed * * *.” Appellees alleged in their opposition that the parties had been

engaged in presuit settlement discussions on a class-wide basis for months leading

up to the filing of the case and that the August 28, 2019 email informing members

of changes to the terms of service was sent after counsel for the Joys sent a presuit

demand letter on July 17, 2019. Appellees argued that because they did not make

an informed decision, there was no meeting of the minds and no agreement to

arbitrate or waiver of their right to participate in a class-action lawsuit or to a jury

trial. They maintained that their claims were governed by the 2018 account

agreement and that they are not subject to the added provisions under the 2019

agreement. Appellees also argued that at the time the notice was sent, FFCCU was

already aware of the claim against it and that the Joys were represented by class

counsel. Additionally, they argued that the added arbitration and class or jury

waiver clauses were unconscionable.

In its reply, FFCCU argued that the opposition included no admissible

evidence and that appellees did not dispute receiving the notice that was sent or their

failure to opt out of the arbitration requirement. FFCCU continued to maintain that

the 2019 agreement and its arbitration and waiver provisions applied in this matter. FFCCU further argued that appellees failed to establish procedural or substantive

unconscionability.

Following a hearing on FFCCU’s motion, the trial court issued a

decision that denied the motion and found “plaintiffs’ claims may proceed as the

arbitration clause in issue is not enforceable against them.” The trial court

recognized the circumstances under which the change to the terms of service was

sent, including the active negotiations between the parties, and determined that

“there was no agreement to arbitrate because plaintiffs could not have made an

informed decision as to whether or not to opt out of the arbitration clause under

these factual circumstances.” The trial court specifically recognized that the “notice

of arbitration and class waiver provisions must be clear so that the parties can make

an informed decision” and that “the language used by defendants in the notice email

implied that all members already agreed to the updated terms.” In this regard, the

trial court determined as follows:

Further, the language used by defendant in the notice email implies that all members have already agreed to the updated terms. Defendant’s notice e-mail dated August 28, 2019 indicated that the terms had already been updated and that members should familiarize themselves with the updated terms because by continuing to use defendant’s services, members had actually already agreed to the terms. (See Def. Mem. Ex. 2. at 1. e-mail entitled “We’ve updated our terms of service,” stating that “we recommend that you familiarize yourself with these updated agreements” and “As you continue to use FFCCU for your banking needs, you agree to these updated terms.”).

The trial court concluded that “there was no agreement to arbitrate”

and denied FFCCU’s motion. This appeal followed. Law and Analysis

Under its sole assignment of error, FFCCU claims the trial court erred

by denying its motion to dismiss.

Initially, we address appellees’ contention that there is a lack of a final

appealable order because the trial court denied FFCCU’s motion to dismiss.

Although FFCCU styled its motion as a motion to dismiss, it requested in the

alternative that the case be stayed pending arbitration pursuant to R.C. 2711.02(B).

The trial court ultimately determined that the case was not subject to arbitration

because there was no agreement to arbitrate. Pursuant to R.C. 2711.02(C), “an order

under [R.C. 2711.02(B)] that grants or denies a stay of a trial of any action pending

arbitration * * * is a final order * * *.” Accordingly, “Ohio law authorizes appellate

review of such orders.” Taylor Bldg. Corp. of Am. v. Benfield,

,

,

.

R.C. 2711.02(B) requires a trial court to stay litigation pending

arbitration when certain conditions are met and provides as follows:

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.

The standard of review for a trial court’s decision on whether to stay

a case pending arbitration under R.C. 2711.02(B) depends on the underlying issue presented. McCaskey v. Sanford-Brown College, 8th Dist. Cuyahoga No. 97261,

. Generally, an abuse-of-discretion standard has been applied

when there is a question such as whether a party has waived its right to arbitrate a

given dispute, and a de novo standard has been applied when reviewing whether a

party has agreed to arbitration or questions of unconscionability. Hedeen v. Autos

Direct Online, Inc.,

,

, ¶ 9 (8th Dist.), citing

. “The existence of a contract is a question of law that we review de novo.”

Vogel v. Albi, 1st Dist. Hamilton No. C-190746,

, citing N. Side

Bank & Trust Co. v. Trinity Aviation, L.L.C., 1st Dist. Hamilton Nos. C-190021 and

C-190023,

. Accordingly, because we are reviewing the trial

court’s determination that there was no agreement to arbitrate, we apply a de novo

standard of review. See Hedeen at ¶ 9. However, any factual findings regarding the

circumstances surrounding the making of the contract should be reviewed with

great deference. See Benfield at ¶ 38.

Whether a party has agreed to arbitration is a matter of contract.

Maestle v. Best Buy Co., 8th Dist. Cuyahoga No. 79827,

, citing

First Options of Chicago, Inc. v. Kaplan,

,

,

(1995); Palumbo v. Select Mgt. Holdings, Inc., 8th Dist. Cuyahoga No.

82900,

. Therefore, when deciding whether a party has

agreed to arbitrate, courts should apply ordinary principles that govern the

formation of contracts. Seyfried v. O’Brien,

,

, ¶ 19 (8th

Dist.), citing First Options at 944; Roberts v. KND Dev. 51, L.L.C., 8th Dist. Cuyahoga No. 108473,

, citing Avery v. Academy Invests.,

L.L.C., 8th Dist. Cuyahoga No. 107550,

. “‘A valid arbitration

agreement, like any contract, requires an offer and acceptance that is supported by

consideration and is premised on the parties’ meeting of the minds as to the essential

terms of the agreement.’” Rousseau v. Setjo, L.L.C., 8th Dist. Cuyahoga No. 109237,

, ¶ 8, quoting Corl v. Thomas & King, 10th Dist. Franklin No.

05AP-1128,

. A party with a unilateral right to modify a

contract does not have the right to make any kind of change whatsoever.

.

Although Ohio courts recognize a strong public policy favoring

arbitration, when deciding motions to compel arbitration, the proper focus is

whether the parties actually agreed to arbitrate the issue. Taylor v. Ernst & Young,

L.L.P.,

,

,

, ¶ 20. Because

arbitration is a matter of contract, a party cannot be required to submit to arbitration

any dispute which he or she has not agreed so to submit. See id. at ¶ 20;

. “‘The party seeking to compel arbitration bears the burden of establishing

the existence of an enforceable arbitration agreement [with] the party against whom

the moving party seeks enforcement.’” Dorgham v. Woods Cove III, 8th Dist.

Cuyahoga No. 106838,

, ¶ 16, quoting Fifth Third Bank v. Senvisky,

8th Dist. Cuyahoga No. 100030,

.

In this action, FFCCU sought to amend the agreement with its

customers to add an Arbitration and Waiver of Class Action Relief provision. However, the record fails to demonstrate sufficient notice was sent such that there

was a “meeting of the minds” or an agreement as to the inclusion of the subject

provision. There is nothing to show that an arbitration provision was included in

the original account agreement, and the content of the email notice that was

purportedly sent to appellees did not provide any indication that the changes to the

account agreement involved the addition of the Arbitration and Waiver of Class

Action Relief provision. As stated by the Sixth Circuit in Sevier Cty. Schools Fed.

Credit Union v. Branch Banking & Trust Co.,

(6th Cir. 2021),

The proper question is whether, upon assenting to the original two- page * * * agreement, such individuals * * * would reasonably expect their relationship to be governed * * * by new provisions unilaterally added * * * to such an extent that the [Bank Services Agreement] ultimately contained terms that materially changed the Plaintiffs’ rights and obligations under the original agreement.

Despite the fact that the email notice indicated that “[t]he changes in

terms are attached to this email,” as the trial court aptly recognized, the language

used by the defendants in the email implied that all members had already agreed to

the updated terms. Likewise, the email notice stated as the subject, “We’ve updated

our terms of services,” and the email did not call attention to the arbitration

provision or opt-out requirements. Simply put, clear notice was not provided for

appellees to make an informed decision or to demonstrate they agreed to be bound

by the arbitration provision. Instead, “[t]he Plaintiffs were thus lulled into not

giving a thought to the unilateral addition of the arbitration provision * * *.” Id. at

24. Although FFCCU spends much time arguing that appellees failed to

present admissible evidence to rebut their claim that proper notice of the provision

and opt-out requirements was provided, FFCCU had the burden of establishing

sufficient notice was sent and to establish the existence of an enforceable arbitration

agreement. FFCCU failed to meet its burden.1 Additionally, this case is

distinguishable from AT&T Mobility Servs., L.L.C. v. Boyd, N.D.Ohio No.

1:19cv2539,

(Oct. 22, 2020), which is relied on by

FFCCU. In stark contrast to this case, in Boyd, the email notice included a subject

line, “Action Required: Notice Regarding Arbitration Agreement,” and specifically

informed the recipient that the “Arbitration Agreement [is] linked to this email” and

included instruction for opting out in the content of the email. Id. at 4-5.2

We also are not persuaded by the supplemental authority filed by

FFCCU, which cites Qualls v. Wright Patt Credit Union, 2d Dist. Greene No. 2020-

CA-48,

, and Rudolph v. Wright Patt Credit Union, 2d Dist. Greene

No. 2020-CA-50,

.

1 We would be remiss not to point out that as was the case in Sevier, the circumstances argued in this case present “the antithesis of good faith and fair dealing.”

In light of the representation that active negotiations were occurring between the parties at the time the email notification was sent, FFCCU arguably had knowledge that appellees would have opted out of the provision had proper notice been given. 2 Joseph v. M.B.N.A. Am. Bank, N.A.,

,

,

(8th Dist.), is also distinguishable because it applied Delaware law, which expressly permits banks to amend credit card agreements to add an arbitration clause pursuant to Del.Code Ann., Title 5, Section 952(a), and proper notice of intent to amend the credit card agreement to incorporate an arbitration provision was sent in a mailing to card holders. Id. at ¶ 2, 9, 12. In Qualls, the version of the membership agreement that was

attached to the complaint included the disputed arbitration clause, which had been

unilaterally added to the agreement by the credit union. The Second District Court

of Appeals determined that Qualls “acknowledged in his complaint that his and [the

credit union’s] contractual relationship was embodied in that Membership

Agreement and ‘related documentation.’” Id. at ¶ 86. The credit union, which had

reserved the right to change the terms of the agreement at any time, had posted new

versions of the agreement to its website and also asserted “it had mailed the July

2019 Membership Agreement to * * * the same mailing address Qualls had provided

to [the credit union] as his mailing address.” Id. at ¶ 10. The court found “Qualls

manifested his assent to the arbitration provision” by “continuing to maintain his

account * * * [and] by his continued use online banking.” Id. at ¶ 88. The Qualls

opinion contains little if any constructive legal analysis regarding notice of a

unilateral modification of an agreement to include an arbitration clause. Also,

unlike Qualls, in this case there was no physical mailing of the modified agreement

and appellees did not acknowledge the 2019 agreement was applicable in filing their

claims. Rather, appellees assert their claims are governed by the 2018 account

agreement, which is attached to the complaint, and maintain they are not subject to

the 2019 agreement containing the Arbitration and Waiver of Class Action Relief

provision that was unilaterally added by FFCCU without proper notice.

In Rudolph, the Second District Court of Appeals upheld a trial court’s

decision to enter a stay pending arbitration upon finding that the credit union could make a unilateral change to a membership agreement to change the prior method

of dispute resolution to arbitration and that Rudolph had notice of changes to the

agreement because he had registered for online banking and accepted responsibility

to review the member agreements that the credit union posted on its website. See

id. at ¶ 49. Additionally, the court found “the terms were sufficiently conspicuous

on the website, which Rudolph repeatedly accessed.” Id. at ¶ 57. The decision in

Rudolph attempts to distinguish Maestle, 8th Dist. Cuyahoga No. 79827, 2005-

Ohio-4120, and Sevier,

. Rudolph is not controlling to our decision.

Under the circumstances presented, we find the decision in Coleman

v. Alaska USA Fed. Credit Union, D.Alaska No. 3:19-cv-0229-HRH,

(Jan. 9, 2020), to be persuasive in this matter:

In order for plaintiff to have been bound by the terms of the arbitration agreement, there must be some evidence that shows “that a reasonably prudent user would have been on inquiry notice that [an arbitration] agreement existed.” [Knutson v. Sirius XM Radio Inc.,

, (9th Cir. 2014)]. “While failure to read a contract before agreeing to its terms does not relieve a party of its obligations under the contract, the onus must be on website owners to put users on notice of the terms to which they wish to bind consumers.” Nguyen v. Barnes & Noble Inc.,

(9th Cir. 2014) (internal citation omitted). As the Seventh Circuit has explained, “we cannot presume that a person who clicks on a box that appears on a computer screen has notice of all contents not only of that page but of other content that requires further action (scrolling, following a link, etc.).” Sgouros v. TransUnion Corp.,

(7th Cir. 2016). Here, defendant’s pop notice made no mention of the specific changes being made to the Account Agreement. The notice failed to describe the update or call attention to the new arbitration provision. Such notice is insufficient to put a member on inquiry notice that an arbitration agreement was being added to its contract with defendant. Requiring such notice is not “[a]n arbitration-specific rule [that] would be preempted by the FAA,” O’Connor v. Uber Technologies, Inc.,

(9th Cir. 2018), as defendant argues. It is a necessary requirement for a binding contract.

(Emphasis added.)

.

On the record before us, FFCCU cannot show that appellees clearly

agreed to the Arbitration and Waiver of Class Action Relief provision. Without

sufficient notice, there was no meeting of the minds and no binding agreement to

arbitrate. As the Supreme Court of Ohio has held, a party cannot be forced to

arbitrate a dispute that he or she did not agree to arbitrate. Taylor,

,

,

, at ¶ 20. Therefore, we find no error in the

trial court’s denial of FFCCU’s motion for stay pending arbitration pursuant to R.C.

2711.02(B).

Finally, contrary to FFCCU’s argument, we do not find that the trial

court extended its ruling to all FFCCU members because class-action issues and

class certification had yet to be determined. Also, the trial court did not suggest the

arbitration provision was unconscionable; rather, it found no arbitration agreement

existed. We find no merit to any other arguments raised by appellant that are not

specifically addressed herein. The assignment of error is overruled.

Judgment affirmed.

It is ordered that appellees recover from appellant costs herein taxed.

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.

__________________________________ SEAN C. GALLAGHER, PRESIDING JUDGE

LARRY A. JONES, SR., J., and EILEEN T. GALLAGHER, J., CONCUR