COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72107 MARY K. SUTTON : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION LAURA SALKIN BRIDAL : & FASHIONS, INC. : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 5, 1998 CHARACTER OF PROCEEDING : Civil appeal from : Shaker Heights : Municipal Court, : Case No. 96-CVI-07982. JUDGMENT : AFFIRMED IN PART; REVERSED IN PART AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: HERBERT PALKOVITZ Attorney at Law 1600 Standard Building 1370 Ontario Street Cleveland, Ohio 44113-1753 For defendant-appellee: JONATHAN OTTO SALKIN Attorney at Law 440 North Wabash Avenue, #1905 Chicago, Illinois 60611 TIMOTHY E. McMONAGLE, J.: Plaintiff-appellant, MaryK. Sutton ( appellant ), appeals the decision of the Shaker Heights Municipal Court, Small Claims Division, which vacated the judgment against defendant-appellee, -2- Laura Salkin Bridal & Fashions, Inc. ( Laura Salkin ), in the amount of $564.65, plus interest, and stayed the proceedings pending arbitration. The record reflects that appellant filed a complaint in the small claims division of the municipal court seeking the return of a deposit on a wedding gown which allegedly Laura Salkin failed to deliver by the promised date. Laura Salkin moved to stay the proceedings pending arbitration as provided in the parties' contract. Appellant opposed the motion to stay arguing that the fees associated with arbitration would be in excess of that which appellant sought to recover and thus would deny her the opportunity to pursue her claim against Laura Salkin in the inexpensive manner afforded by the small claims court. The court granted the motion to stay, staying proceedings until November 1, 1996. With no record of the arbitration having taken place, a trial before a magistrate of the municipal court was held on November 20, 1996. The magistrate found in favor of appellant in the amount of $564.65, plus interest, when Laura Salkin failed to appear. The court adopted the magistrate's decision on November 21, 1997. Shortly thereafter, Laura Salkin moved under Civ.R. 60(B)(1) to vacate this judgment on the basis that its failure to appear at the trial was due to excusable neglect. In an affidavit in support of its motion, an employee of Laura Salkin averred that a representative of the court called the store the day before the scheduled trial date and informed the employee that the trial was continued. On the basis of this -3- information, Laura Salkin, or its representative, did not appear at the trial wherein a default judgment was rendered against it. In its order granting the motion, the court stated: [Laura Salkin's] Motion to Vacate Judgment is well taken and is granted. The judgment of November 21, 1996 is vacated. [Appellant] is ordered to file for arbitration on or before March 31, 1997, and to notify the court of said filing. If [appellant] fails to file for arbitration, this case will be dismissed for want of prosecution. Appellant timely appeals this decision and assigns the following errors for our review: I. THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION TO VACATE WHERE APPELLEE'S COUNSEL FAILED TO CONFIRM OR TO IN ANY WAY AFFIRMATIVELYVERIFY THAT THE ALLEGED GRANTING OF THE MOTION FOR A CONTINUANCE WAS VALID, AND THEREFORE DOES NOT QUALIFY AS EXCUSABLE NEGLECT UNDER RULE 60(B) SINCE A COURT SPEAKS ONLY THROUGH ITS JUDGMENT ENTRY. II. THE TRIAL COURT ERRED IN ORDERING APPELLANT TO FILE FOR ARBITRATION WHEN THE SPECIFIC PURPOSE OF SMALL CLAIMS COURT IS TO FACILITATE FREE ACCESS TO AN EFFICIENT AND INEXPENSIVE METHOD OF SMALL CLAIMS ADJUDICATION FOR ALL CONSUMERS SO THAT THE EXPENSE OF COUNSEL AND COURT TIME IS MADE UNNECESSARY WHILE CONSUMERS ARE ADEQUATELY PROTECTED. III. THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION TO VACATE AND ORDERING APPELLANT TO FILE FOR ARBITRATION WHERE IT CONTRADICTS A PRIOR DECISION OF THE SHAKER HEIGHTS MUNICIPAL COURT AGAINST APPELLEE ALLOWING THE PARTIES TO ADJUDICATE THE CLAIM IN SMALL CLAIMS COURT. I. In her first assignment of error, appellant contends that the municipal court erred in granting Laura Salkin's motion to vacate because Laura Salkin's failure to independently verify the status -4- of the instant case does not constitute excusable neglect under Civ.R. 60(B)(1). Specifically, appellant argues that Laura Salkin should have taken some affirmative steps in an effort to confirm that the court did indeed continue the trial date instead of relying on the highly irregular procedure of a court employee contacting Laura Salkin with such information. To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken. GTE Automatic Electric, Inc. v. ARC Industries (1976), 47 Ohio St.2d 146. A ruling on a motion for relief from judgment under this rule is within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of an abuse of that discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77. Abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Appellant does not contend that Laura Salkin failed to demonstrate it had a meritorious defense to present if relief was granted, nor that it failed to demonstrate the motion was otherwise untimely. However, appellant does argue that Laura Salkin failed -5- to demonstrate that it was entitled to relief on the basis of excusable neglect under Civ.R. 60(B)(1). While Civ.R. 60(B) is a remedial rule to be liberally construed, the rule attempts to strike a proper balance between the conflicting principles that litigation must be brought to an end and justice should be done. Colley v. Bazell (1980), 64 Ohio St.2d 243, 248 citing 11 Wright & Miller, Federal Practice & Procedure 140, Section 2851. Nonetheless, where timely relief is sought from a default judgment and the movant has a meritorious defense, any doubt should be resolved in favor of the motion requesting relief so that cases can be decided on their merits. GTE Automatic Electric, 47 Ohio St.2d 146, paragraph three of the syllabus; GMAC v. Deskins (1984), 16 Ohio App.3d 132, 134. What constitutes excusable neglect depends on the facts and circumstances of each case. Colley, supra at 249; Hopkins v. Quality Chevrolet, Inc. (1992), 79 Ohio App.3d 578. Nonetheless, neglect is inexcusable when the movant exhibits a complete disregard for the judicial system or that of an opposing party. GTE Automatic Electric, supra at 153. Under the facts and circumstances of this case, we are persuaded that the municipal court did not abuse its discretion in granting Laura Salkin's request for relief from judgment. Laura Salkin's failure to appear at the trial was based on its belief that the trial had been continued. Such conduct does not rise to the high level of disregard as contemplated by the GTE Automatic Electric court thereby making Laura Salkin's neglect inexcusable. -6- Accordingly, appellant's first assignment of error is not well taken and is overruled. II. In her second assignment of error, appellant contends that it was error for the municipal court to stay the proceedings after granting Laura Salkin's motion to vacate because the arbitration clause contained in the parties' agreement is unenforceable.1 Specifically, appellant argues that she should not be required to submit her claim against Laura Salkin to costly and time-consuming arbitration when the small claims court can adjudicate the claim in an efficient and cost-effective manner. In general, R.C. Chapter 2711 favors the enforcement of arbitration clauses. See R.C. 2711.01(A); Schaefer v. Allstate Ins. Co. (1992), 63 Ohio St.3d 708, 711-712; Gen. Elec. Supply v. Warden Elec., Inc. (1988), 38 Ohio St.3d 378, 382. A strong presumption favoring arbitration exists when the claim falls within the scope of the arbitration clause. Independence Bank v. Erin Mechanical (1988), 49 Ohio App.3d 17, 18; Didado v. Lamson & Sessions Co. (1992), 81 Ohio App.3d 302, 304; Sexton v. Kidder Peabody & Co., Inc. (Mar. 7, 1996), Cuyahoga App. No. 69093, unreported. 1Appellant argues, in part, that the clause is unconscionable under the Consumer Sales Practices Act, codified at R.C. 1345.01 et seq. Appellant's complaint, however, does not request relief under this Act and we are, therefore, precluded from considering whether this statute and its corresponding case law afford appellant a basis for relief. -7- In this case, the contract that appellant signed contains a rather broad arbitration clause which provides that [a]ny dispute relating to this contract or the goods shall be resolved by arbitration under the rules of the American Arbitration Association. The parties do not dispute that appellant's breach of contract claim comes within the scope of the parties' contractual arbitration clause. What they do dispute is whether the clause is enforceable. In order to be enforceable, the agreement to arbitrate must be voluntary in a real and genuine sense. There can be little concern that it is genuinely voluntary when arbitration is agreed upon in collective bargaining between unions and employers possessing an equality, more or less, of bargaining power. The same is true of commercial arbitrations between business concerns which enter into arbitration agreements knowingly and advisedly. The situation may be different, however, where, as in this case, an arbitration clause appears as boilerplate language in an installment sales contract where bargaining power may be unequal. In such a case, the contract becomes one of adhesion, a descriptive term used to describe standard form printed contracts prepared by one party and submitted to the other on a take it or leave it basis where the only alternative to complete adherence is outright rejection. See Domke on Commercial Arbitration (Rev.Ed.1997), 17-18, Section 5.09. There is no question that appellant is a consumer and Laura Salkin is a business owner in the business of selling bridal dresses. Nor is it disputed that it was Laura Salkin who drafted -8- the standard form contract containing the broad arbitration clause. From the record before us, it appears that appellant was presented with the contract wherein she was to agree to its terms or forfeit her purchase. This relationship alone renders suspect the contractual clause at issue in this case. Nonetheless, mere inequality of bargaining power is insufficient to invalidate an otherwise enforceable arbitration clause. Gilmer v. Interstate/Johnson Lane Corp. (1991), 500 U.S. 20, 33; Neubrander v. Dean Witter Reynolds, Inc. (1992), 81 Ohio App.3d 308, 311. Under the facts and circumstances of this case, however, we find that it would defy common sense to enforce the arbitration clause contained in the parties' agreement. We are mindful that arbitration is favored as an efficient and economical alternative dispute mechanism with its purpose being to avoid needless and expensive litigation. Springfield v. Walker (1885), 42 Ohio St. 543, 546; Gerl Constr. Co. v. Medina Cty Bd. of Commrs. (1985), 24 Ohio App.3d 59, 61. Nonetheless, the small claims division of a municipal court exists for the very same purpose. Klemas v. Flynn (1993), 66 Ohio St.3d 249, 252. Confronted as we are with competing, yet common, objectives to seek redress in an efficient and cost-effective manner, we conclude that to enforce the arbitration clause under the facts and circumstances of this case would circumvent the public policy favoring resolution of small claims under R.C. Chapter 1925 as well as pervert the intent of arbitration under R.C. Chapter 2711. -9- This court realizes that we are not guided by any statutory or judicially-created authority in reaching this conclusion. As such, our disposition on this issue today may be viewed by some as encroaching on the role of the legislature. Nonetheless, we agree with the position taken by Judge Donald Ford from the Eleventh Appellate District in his concurring opinion in Zivich v. Mentor Soccer Club, Inc. (Apr. 18, 1997), Lake App. No. 95-L-184, unreported, discretionary appeal allowed (1997), 79 Ohio St.3d 1489, appeal dismissed as to the City of Mentor only (1997), 80 Ohio St.3d 1474. In that opinion, Judge Ford discusses at length the propriety of a reviewing court in addressing public policy issues and states rather emphatically that an intermediary appellate court has an obligation to render a decision that fills an interstice left open by the state legislature and our state supreme court. Id. at 57. In light of this obligation, we hold an arbitration clause to be unenforceable when such a clause is contained in a standard form contract, presented to a party of unequal bargaining power on a take it or leave it basis, and that party is able to and does seek damages under that contract in the small claims division of a municipal court. To hold otherwise would enable the drafter of a contract containing such a clause to induce the party with the lesser bargaining power to forego pursuing their claim because the cost of arbitration under R.C. Chapter 2711 would be greater than the damages they seek to recover. -10- Accordingly, appellant's second assignment of error is well taken and is sustained. III. In her third assignment of error, appellant contends that the decision to stay the proceeding pending arbitration contradicts a previous decision of the municipal court captioned Corfias v. Laura Salkin Bridals and Fashions, Inc. (Mar. 5, 1996), Shaker Heights Municipal No. 96-CVI-07110, unreported. In this regard, appellant apparently argues that the court should have followed a decision it made in a different case with similar issues. We do not agree. An unpublished opinion of a municipal court is not considered controlling authority within its district except between the parties of the particular opinion rendered. See Rules 2(G)(1) and 3 of the Supreme Court Rules for the Reporting of Opinions. On the contrary, such an opinion is merely persuasive authority which the court is free to consider, but is not bound to follow, in subsequent rulings. Rule (2)(G)(2) and Rule 3. Consequently, the municipal court was not bound to rule as it did in Corfias. Accordingly, appellant's third assignment of error is not well taken and is overruled. -11- This cause is affirmed in part, reversed in part, and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant and appellee shall split equally the costs herein. It is ordered that a special mandate be sent to said 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. KENNETH A. ROCCO, J. CONCURS; JAMES M. PORTER, A.J., CONCURS AND AND DISSENTS (WITH CONCURRING AND DISSENTING OPINION ATTACHED). JUDGE TIMOTHY E. McMONAGLE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72107 MARY K. SUTTON ) ) C O N C U R R I N G Plaintiff-appellant ) ) A N D -vs- ) ) D I S S E N T I N G LAURA SALKIN BRIDAL ) & FASHIONS, INC. ) O P I N I O N ) Defendant-appellee ) DATE: FEBRUARY 5, 1998 JAMES M. PORTER, P.J., CONCURRING AND DISSENTING: I concur with the majority's disposition of Assignments of Error I & III, but dissent from the disposition of Assignment of Error II. Since we are not bound by any controlling precedent in this area, I would not choose to disregard the contractual obligations to which the parties agreed, i.e., to submit all their disputes to arbitration. Since it is the defendant that is insisting on the primacy of the arbitration provision, I would enter an order giving the defendant thirty days within which to instigate the arbitration proceeding, including the payment of any filing fees. If defendant fails to institute such proceedings within the time allowed, it .