[Cite as Autovest, L.L.C. v. Hicks, 2025-Ohio-111.] COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
AUTOVEST, LLC, :
Plaintiff-Appellee, : No. 113409 v. :
ANDREW HICKS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED AND REMANDED RELEASED AND JOURNALIZED: January 16, 2025
Civil Appeal from the Cuyahoga County Common Pleas Court Case No. CV-22-966925
Appearances:
Gertsburg Licata Co., LPA, Victor A. Mezacapa, III, and Maximilian A. Julian, for appellee The LGM Co., Inc.
Frederick & Berler, LLC, Ronald I. Frederick, and Michael L. Berler; DePledge Law Office, Inc., and Laura A. DePledge; Weisman, Kennedy & Berris Co., L.P.A., and Daniel Goetz, for appellant.
ANITA LASTER MAYS, J.:
{¶1} Defendant/third-party plaintiff-appellant Andrew Hicks (“Hicks”)
appeals the trial court’s decision granting the third-party defendant-appellee The LGM Company’s (“LGM”) motion to stay proceedings and compel arbitration.
Hicks asks this court to reverse the trial court’s decision. We affirm the trial court’s
granting of the motion and remand for further proceedings.
I. Facts and Procedural History
{¶2} In December of 2015, Hicks purchased a vehicle from LCA Auto
Wholesaler, Ltd. (“LCA”) and took an assignment of rights under the Retail
Installment Sale Contract (“the RISC”) from LCA. LGM financed the vehicle, but
Hicks defaulted on the monthly payments. LGM repossessed the vehicle in
January 2017. The vehicle was sold at auction, and Hicks’s account had a deficient
balance.
{¶3} On March 20, 2017, LGM sold Hicks’s debt to a third-party collection
agency, Bayview Solutions, LLC (“Bayview”). On March 28, 2017, Bayview sold the
account to Autovest, LLC (“Autovest”). On February 24, 2020, Autovest filed a
complaint against Hicks in the Bedford Municipal Court for Hicks’s breach of the
RISC and claimed damages in the amount of $10,704.07. On December 28, 2020,
Hicks was served, and through his counsel, he answered the complaint on February
19, 2021.
{¶4} In addition to Hicks’s answer, he also filed a counterclaim and third-
party complaint against Autovest and LGM alleging that he received a defective
written notice regarding the vehicle’s auction in violation of Ohio’s Uniform
Commercial Code; his written notice of loan reinstatement rights violated Ohio’s Retail Installment Sales Act; and he was charged an excessive purchase under
Ohio’s Consumer Sales Practices Act. Hicks requested relief including economic,
noneconomic, and statutory damages, attorney fees, and corrections to any credit
reporting errors.
{¶5} On March 10, 2021, Autovest filed a motion to dismiss Hicks’s
counterclaim. On March 12, 2021, LGM was entered as a defendant on the
counterclaims, and service was attempted, but not perfected, because the address
was incorrect. On July 26, 2021, Hicks filed a motion for default judgment against
LGM alleging that he perfected service on LGM on March 18, 2021. A hearing
regarding Hicks’s motion for default judgment was set on September 22, 2021.
However, LGM did not become aware of the litigation until August 26, 2021.
{¶6} On August 19, 2021, the municipal court denied Autovest’s motion to
dismiss Hicks’s counterclaim. On September 22, 2021, all parties attended a
pretrial conference, and LGM was ordered to answer Hicks’s third-party complaint
and complete discovery within 60 days. A trial date was set for January 12, 2022.
{¶7} On October 6, 2021, Hicks requested a continuance of all proceedings
including the January 2022 trial date, and the municipal court granted his request
and set trial for February 10, 2022. On December 13, 2021, Autovest filed an
instanter request for leave to move for partial summary judgment. On January 5,
2022, the municipal court denied the request. {¶8} On January 14, 2022, Hicks filed a motion to amend his responsive
pleading. In Hicks’s amended pleading, he included a class action allegation,
claiming that he was bringing this action on behalf of himself and four classes of
other persons that were allegedly subjected to LGM’s unfair and deceptive business
practices. In Hicks’s first counterclaim, he sought relief totaling $15,000, the
maximum amount allowed by the municipal court. However, in his amended
pleading, he sought relief on behalf of the class, which would exceed $500,000, far
exceeding the jurisdictional limit of the municipal court.
{¶9} On February 9, 2022, LGM filed an opposition to Hicks’s amended
pleading. The trial court never ruled on LGM’s opposition, but Autovest and Hicks
agreed to a partial settlement. On March 1, 2022, as a result of the settlement, both
Autovest and Hicks filed a dismissal of claims against each other. However, Hicks
stated that his claims against LGM would continue.
{¶10} On June 6, 2022, Hicks filed a motion to transfer the matter from the
municipal court to the court of common pleas. The municipal court granted the
motion, and on August 3, 2022, the trial court began its proceedings for the case.
{¶11} On February 9, 2023, Hicks filed his second amended complaint. On
March 3, 2023, LGM filed a motion to stay proceedings and compel arbitration.
On March 15, 2023, Hicks filed a brief in opposition to LGM’s motion. On
November 6, 2023, the trial court granted LGM’s motion to stay proceedings,
stating, in part, in its journal entry: This matter is before the court on defendant LGM Co., Inc.’s motion to stay proceedings and compel arbitration. The court finds defendant’s motion well-taken and defendant’s motion is hereby granted. It is hereby ordered that all proceedings in this action are stayed. The parties are hereby ordered to resolve their dispute through arbitration, as provided for in the parties’ arbitration agreement.
Journal Entry No. 163569389 (Nov. 6, 2023).
{¶12} Hicks filed this appeal assigning three errors for our review:
1. The trial court erred in granting appellee’s motion to arbitrate when appellee had no right to arbitrate the agreement at issue;
2. The trial court erred in granting appellee’s motion to arbitrate when the appellee extinguished any right it had by assigning all of its rights to another party; and
3. The trial court erred in granting appellee’s motion to arbitrate when appellee waived its alleged right by its litigation conduct.
II. Standard of Review
{¶13} “‘In general, an appellate court reviews a trial court’s decision to grant
or deny a motion to compel arbitration under the abuse of discretion standard of
review.’” Smith v. Rezutek, 2024-Ohio-5599, ¶ 5 (8th Dist.), quoting Simmons v.
Extendicare Health Services, Inc., 2016-Ohio-4831, ¶ 13 (5th Dist.). An abuse of
discretion occurs when a court exercises its judgment in an unwarranted way
regarding a matter over which it has discretionary authority. Johnson v. Abdullah,
2021-Ohio-3304, ¶ 35.
{¶14} However, the standard changes when the dispute involves a
contractual interpretation. “Nevertheless, a trial court’s decision granting or denying a motion to compel arbitration or a motion to stay is subject to de novo
review on appeal because such cases generally turn on issues of contractual
interpretation.” Cuyahoga Supply & Tool, Inc. v. BECDIR Constr. Co., 2024-
Ohio-1375, ¶ 8 (8th Dist.), citing McFarren v. Emeritus at Canton, 2013-Ohio-
3900, ¶ 13 (5th Dist.); Hudson v. John Hancock Fin. Servs., 2007-Ohio-6997, ¶ 8
(10th Dist.); McCaskey v. Sanford-Brown College, 2012-Ohio-1543, ¶ 7 (8th Dist.).
{¶15} “Because this issue involves a matter of contract interpretation, it is
subject to de novo review.” Westlake Servs., LLC v. Chandler, 2023-Ohio-3714,
¶ 23 (8th Dist.). See, e.g., Little Aquanauts, L.L.C. v. Makovich & Pusti Architects,
Inc., 2021-Ohio-942, ¶ 8 (8th Dist.) (stating that a de novo standard of review
applies “when evaluating the scope of an arbitration agreement, that is, whether a
party has agreed to submit a certain issue to arbitration”), citing Seyfried v.
O’Brien, 2017-Ohio-286, ¶ 18 (8th Dist.).
III. Law and Analysis
{¶16} In Hicks’s first assignment of error, he argues that LGM has no right
to arbitrate under the RISC agreement. Specifically, Hicks claims that the RISC
contained an arbitration clause that was between Hicks and LCA, the seller of the
vehicle. According to Hicks, the RISC does not include assigns and states that the
RISC only grants arbitration rights to Hicks and LCA, not LGM.
{¶17} “Ohio has a strong public policy favoring arbitration of disputes, and
there is a presumption favoring arbitration that arises when the dispute falls within the scope of an arbitration provision.” Cuyahoga Supply & Tool, Inc., 2024-Ohio-
1375, at ¶ 9 (8th Dist.), citing Taylor Bldg. Corp. of Am. v. Benfield, 2008-Ohio-
938, ¶ 25-27 (12th Dist.). “‘Any doubts concerning the scope of arbitrable issues
should be resolved in favor of arbitration.’” Id., quoting Sebold v. Latina Design
Build Group, L.L.C., 2021-Ohio-124, ¶ 10 (8th Dist.), citing Moses H. Cone Mem.
Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983).
{¶18} “We note, however, that ‘parties cannot be compelled to arbitrate a
dispute in which they have not agreed to submit to arbitration.’” Cuyahoga Supply
& Tool, Inc. at ¶ 10, quoting Marks v. Morgan Stanley Dean Witter Commercial
Fin. Servs., 2008-Ohio-1820, ¶ 15 (8th Dist.), citing Piqua v. Ohio Farmers Ins.
Co., 84 Ohio App.3d 619, 621 (2d Dist. 1992); St. Vincent Charity Hosp. v. URS
Consultants, Inc., 111 Ohio App.3d 791, 793 (8th Dist. 1996); Shumaker v. Saks,
Inc., 2005-Ohio-4391, ¶ 13 (8th Dist.).
{¶19} “As our review is de novo, we conduct our own examination and
interpretation of the contract and arbitration provision.” Cuyahoga Supply &
Tool, Inc. at ¶ 12. Hicks claims that the arbitration agreement contained in the
RISC did not grant arbitration rights to assigns and LGM is an assigned party. The
arbitration clause located within the RISC states, in part:
Either you or we may choose to have any dispute between us decided by arbitration and not in court or by jury trial. If a dispute is arbitrated, you will give your right to participate as a class representative or class member on any class claim you may have against us including any right to class arbitration or any consolidation of individual arbitrations. Discovery and rights to appeal in arbitration are generally more limited than in a lawsuit, and other rights that you and we would have in court may not be available in arbitration.
Any claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Clause, and the arbitrability of the claim or dispute), between you and us or our employees, agents, successors, or assigns, which arises out of or relates to your credit application, purchase condition of the vehicle, this contract or any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract) shall, at your or our election, be solved by neutral binding arbitration and not a court action.
RISC p. 2.
{¶20} The RISC clearly states that any claim or dispute between Hicks and
any assigns, whether they signed the contract or not, be solve by neutral binding
arbitration and not a court action. This arbitration clause clearly defines the types
of claims that can be arbitrated as well as the parties that can be subject to the
agreement, including Hicks, LCA, LCA’s employees, agents of LCA, successors,
assigns, or third parties who did not sign the contract. “Moreover, Ohio courts
have also recognized that a third-party beneficiary, although a nonsignatory to
contract, may be bound to an arbitration agreement.” Javorsky v. Javorsky, 2017-
Ohio-285, ¶ 11 (8th Dist.), citing Cleveland-Akron-Canton Advertising Coop. v.
Physician’s Weight Loss Ctrs. of Am., 2009-Ohio-5699, ¶ 18 (8th Dist.).
{¶21} Hicks agrees that LGM is an assigned, and therefore, we determine
that the arbitration agreement covers disputes between assigns. {¶22} Therefore, Hicks’s first assignment of error is overruled.
{¶23} In Hicks’s second assignment of error, he argues that LGM
extinguished any right it may have had to arbitrate because LGM assigned all of its
rights to another party. LGM financed the vehicle, but Hicks defaulted on the
monthly payments, and LGM repossessed the vehicle in January 2017. The vehicle
was sold at auction, and Hicks’s account had a deficient balance. On March 20,
2017, LGM sold Hicks’s debt to a third-party collection agency, Bayview, who sold
the account to Autovest.
{¶24} Hicks contends that because LGM sold the debt to Bayview, LGM
extinguished any rights it had under the RISC. However, LGM argues that the
language in the purchase agreement clearly expresses its existing rights and
obligations include not only indemnification rights, but also an express right to
recall sold accounts, as well as a restriction on subsequent transfers that inheres to
LGM’s benefit to the detriment of all subsequent transferees per RISC:
Purchaser may sell, transfer ownership, or assign ownership of the Accounts, or otherwise assign its right or delegate its duties under this Agreement, to any third-party provided that the terms and conditions of this agreement are imposed on any subsequent Purchaser.
(Emphasis in original.) Purchase Agreement 6, at sec. 14.
{¶25} Furthermore, LGM also reserved an express right to recall Hicks’s
account under the precise circumstances presented by the instant litigation: The parties acknowledge that there may be various, legitimate business or legal reasons for Seller to repurchase an Account. Therefore, Seller may in its reasonable discretion without limitation, recall any Account, including but not limited to, accounts which Seller determines may be the subject of litigation, threatened litigation, adversarial administrative action, or which are the subject of a recall request by a Prior Holder, upon notice to Purchaser any time after the Closing Date as well as accounts which have made payments with transaction dates prior to the date the accounts were purchased by Purchaser. Upon receipt of such notice, Purchaser shall immediately cease all communications with the Customer and other collection activity, cause its tradeline to be deleted from any credit reporting agencies as may be applicable, or cause such tradeline to reflect the Account as having been recalled to Seller. Within five (5) business days of said recall notice, Purchaser shall return said Account to Seller. Seller shall pay to Purchaser the Purchase Price Percentage times the Unpaid Balance of the Account. This section shall survive the execution of this Agreement.
Purchase Agreement 8, at Sec. 23.
{¶26} LGM cites to this clause in the Purchase Agreement to demonstrate
that it did not assign all of its rights away to subsequent third parties and that they
reserve the right to recall the contract and enforce the arbitration agreement in the
contract. Hicks disagrees and contends that even though LGM may have the right
to recall his account, LGM failed to do so, and therefore the trial court erred when
it stayed the proceedings to allow LGM to arbitrate.
{¶27} The trial court’s decision in staying this case is not a final resolution
of LGM’s claims that they retain their rights under the RISC. See Verandah
Properties, LLC v. Ullman Oil Co., LLC, 2020-Ohio-1559, ¶ 27 (11th Dist.). Hicks
is still free to challenge appellee’s authority to proceed under the agreement in the arbitration proceedings because “[t]he arbitrator is the final judge of both law and
facts on issues encompassed by the agreement to arbitrate.” Id., quoting Bass
Energy Inc. v. Highland Hts., 2010-Ohio-2102, ¶ 43, (8th Dist.), citing Goodyear
Tire & Rubber Co. v. Local Union No. 200, United Rubber, Cork, Linoleum &
Plastic Workers of Am., 42 Ohio St.2d 516, 522 (1975).
{¶28} “‘[A]n arbitration clause will be judicially enforced unless a court is
firmly convinced that the clause is inapplicable to the dispute or issue in question.’”
Id. at ¶ 14, quoting Independence Bank v. Erin Mechanical, 49 Ohio App.3d 17
(8th Dist. 1988). “The issue of whether a controversy is arbitrable under an
arbitration provision of a contract is a question of law for the court to decide upon
an examination of the contract.” Id., citing Divine Constr. Co. v. Ohio-American
Water Co., 75 Ohio App.3d 311 (10th Dist. 1991). See, e.g., Gibbons-Grable Co. v.
Gilbane Bldg. Co., 34 Ohio App.3d 170 (8th Dist. 1986); Ervin v. Am. Funding
Corp., 89 Ohio App.3d 519, 521 (12th Dist. 1993).
{¶29} Upon review of the contract, we determined that the controversy is
arbitrable under the arbitration provision; however, whether LGM has standing to
enforce the arbitration provision will be determined by the arbitrator.
{¶30} Therefore, Hicks’s second assignment of error is overruled.
{¶31} In Hicks’s third assignment of error, he argues that LGM waived its
rights to arbitration because of its litigation conduct. Hicks contends that LGM
did not initially file a motion stay pending arbitration until after it extensively participated in filing motions, answering complaints, and participating in the
proceedings for more than two years from the date of service.
{¶32} “‘The right to arbitration may be waived just like any other
contractual right.’” Blue Technologies Smart Sols, L.L.C. v. Ohio Collaborative
Learning Solutions, Inc., 2020-Ohio-806, ¶ 13 (8th Dist.), quoting Aljaberi v.
Neurocare Ctr., Inc., 2019-Ohio-2181, ¶ 22 (5th Dist.). “‘To establish waiver, the
party seeking waiver must demonstrate (1) that the party knew of its right to assert
an argument or defense and (2) that the totality of the circumstances establish that
the party acted inconsistently with that right.’” Id., quoting Gembarski v.
PartsSource, Inc., 2019-Ohio-3231, ¶ 25, citing Donnell v. Parkcliffe Alzheimer’s
Community, 2017-Ohio-7982, ¶ 21 (6th Dist.).
{¶33} LGM can explicitly waive its right to arbitration or can implicitly
waive its right by failing to assert it or by participating in litigation to such an extent
that its actions are completely inconsistent with any reliance on this right, resulting
in prejudice to Hicks. Bass Energy Inc., 2010-Ohio-2102, at ¶ 33 (8th Dist.). “The
party claiming waiver must show that the party demanding arbitration acted
inconsistently with the right to arbitrate.” Id., citing U.S. Bank, N.A. v. Wilkens,
2010-Ohio-262, ¶ 29 (8th Dist.).
{¶34} The record demonstrates that LGM was not aware of the proceedings
until six months after Hicks filed his counterclaim against LGM and Autovest.
LGM was ordered by the municipal court to file its answer and complete discovery. LGM complied, but did not participate further in the proceedings before Hicks
filed an amended complaint and filed a motion to move the case to the common
pleas trial court from the municipal court. The trial court opened this case on
August 3, 2022, and LGM filed its motion to stay on March 3, 2023, seven months
after the case was initiated in the trial court. Between August 3, 2022, and March
3, 2023, LGM filed a notice of appearance on August 24, 2022, and participated in
a telephone conference on February 2, 2023, where Hicks discussed that he was
filing a second amended complaint. On February 9, 2023, Hicks filed his second
amended complaint, and less than a month later, LGM filed its motion to stay
proceedings and compel arbitration.
{¶35} Hicks’s assertion that LGM extensively participated in the case for
over two years before asserting its right to arbitration is not well taken by this
court. Hicks filed a second amended complaint, which supersedes his original
complaint. See Fried v. Friends of Breakthrough Schools, 2020-Ohio-4215, ¶ 12
(8th Dist.); Recovery Funding, LLC v. Spiers, 2020-Ohio-364, ¶ 28 (10th Dist.)
(“[W]e note that the assertions made in Appellant’s original complaint are no
longer viable, Appellant having replaced his original complaint with an amended
complaint.”); Michel v. Michel, 2012-Ohio-4037, ¶ 18 (7th Dist.) (“The allegations
of the amended complaint supersede those of the original complaint.”); State ex
rel. Barr v. Wesson, 2023-Ohio-3028, ¶ 30) (“an amended complaint supersedes
the first-filed complaint”). {¶36} The facts in this case do not support Hicks’s contention that LGM
implicitly waived its right to arbitration by extensively participating in the
litigation of the case. Instead, LGM filed its motion to stay less than a month after
Hicks filed his second amended complaint. Between that time, LGM did not file
any other motions or answers.
{¶37} Therefore, Hicks’s third assignment of error is overruled.
{¶38} Judgment affirmed and remanded for further proceedings.
It is ordered that appellee 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.
__________________________________ ANITA LASTER MAYS, JUDGE
SEAN C. GALLAGHER, J., CONCURS (WITH SEPARATE OPINION); KATHLEEN ANN KEOUGH, P.J., DISSENTS (WITH SEPARATE OPINION)
SEAN C. GALLAGHER, J., CONCURRING: {¶ 39} I concur with the lead opinion, which affirms the trial court’s decision
to grant LGM’s motion to stay proceedings and compel arbitration. I write to offer
some clarification.
{¶ 40} Because the issue whether LGM has a right to arbitrate under the
arbitration clause requires an interpretation of a contract, which is a question of law,
our review of this issue is de novo. See Cedar Brook Fin. Partners Holdings, LLC v.
Schlang, 2022-Ohio-3325, ¶ 16 (8th Dist.), citing Cercone v. Merrill Lynch, Pierce,
Fenner & Smith, 2008-Ohio-4229, ¶ 14 (8th Dist.). As the lead opinion recognizes,
the provision at issue explicitly extends to any claim or dispute between Hicks and
“assigns” and encompasses claims or disputes with third-party nonsignatories to the
contract. The parties herein are subject to this provision, and I agree that the
controversy is arbitrable under the arbitration provision.
{¶ 41} I also am not firmly convinced by Hicks’s argument that LGM
extinguished its right to arbitrate under the RISC. Indeed, it is well recognized that
Ohio and federal courts encourage arbitration to settle disputes, and an arbitration
agreement will be enforced unless the court is firmly convinced that the clause is
inapplicable to the dispute or that the parties did not agree to the clause. Moore v.
Houses on the Move, Inc., 2008-Ohio-3552, ¶ 22 (8th Dist.), citing ABM Farms, Inc.
v. Woods, 81 Ohio St.3d 498, 501 (1997); Ervin v. Am. Funding Corp., 89 Ohio
App.3d 519, 521 (12th Dist.1993). Generally, the arbitrator will serve as the final
judge of both law and fact. See Miller v. Gunckle, 2002-Ohio-4932, ¶ 18, citing Goodyear Tire & Rubber Co. v. Local Union No. 200, United Rubber, Cork,
Linoleum & Plastic Workers of Am., 42 Ohio St.2d 516, 522 (1975).
{¶ 42} Finally, when considering whether a party has waived a right to
arbitration, we “apply an abuse of discretion standard due to the ‘fact-driven’ nature
of the inquiry.” Bernat v. Ek Real Est. Fund I LLC, 2024-Ohio-5043, ¶ 27 (7th Dist.),
citing Steese v. Canton Regency, 2022-Ohio-4711, ¶ 12 (5th Dist.); see also Lovano
v. Setjo, LLC, 2023-Ohio-461, ¶ 17 (8th Dist.). “To establish waiver, the party
seeking waiver must demonstrate (1) that the party knew of its right to assert an
argument or defense and (2) that the totality of the circumstances establish that the
party acted inconsistently with that right.” Gembarski v. PartsSource, Inc., 2019-
Ohio-3231, ¶ 25. Although the filing of an amended or second amended complaint
does not necessarily reset the waiver clock or revive a right to arbitrate, it is a fact
that may be considered in a review of the totality of the circumstances. In this case,
LGM was not initially a party to the action; it engaged in limited motion practice and
discovery in the municipal court proceedings; it had not filed any affirmative claims
or dispositive motions in the matter; and it did not extensively participate in the
litigation. Further, Hicks was granted leave to file an amended pleading; he sought
to allege class claims and new causes of action; and the matter was transferred to
the court of common pleas. There was no undue delay in requesting arbitration, nor
was there any apparent prejudice. Because the totality of the circumstances does not show that LGM acted inconsistently with its right to arbitrate, I am unable to
find the trial court abused its discretion with regard to waiver.
{¶ 43} Accordingly, I concur and would affirm the trial court’s decision.1
KATHLEEN ANN KEOUGH, P.J., DISSENTING:
{¶ 44} I respectfully dissent and would have found that LGM waived its
right to arbitration.
{¶ 45} “When determining waiver, the ‘essential question is whether, based
on the totality of the circumstances, the party seeking arbitration has acted
inconsistently with the right to arbitrate.’” Debois, Inc. v. Guy, 2020-Ohio-4989,
¶ 24 (8th Dist.), quoting Phillips v. Lee Homes, 1994 Ohio App. LEXIS 596, * 8 (8th
Dist.). “To establish waiver, the party seeking waiver must demonstrate (1) that the
party knew of its right to assert an argument or defense and (2) that the totality of
the circumstances establish that the party acted inconsistently with that right.”
Gembarski v. PartsSource, Inc., 157 Ohio St.3d 255, 260 (2019).
{¶ 46} The majority finds that Hicks’s second amended counterclaim started
the litigation anew, precluding a finding that LGM participated in the litigation.
Though an amended complaint/counterclaim substantively replaces an existing
1 I recognize that appellant presented two assignments of error for review and that
the lead opinion reviews the issues presented as three assignments of error. In any event, I am not persuaded by appellant’s arguments and agree that the assignments of error should be overruled. complaint/counterclaim, the substantial history of this matter remains relevant in
determining whether waiver occurred.
{¶ 47} LGM appeared in the Bedford Municipal Court through counsel on
August 26, 2021. Despite significant motion practice, discovery, and a set trial date,
LGM never raised an argument concerning arbitration.
{¶ 48} In January 2022, Hicks filed his first motion to amend his answer and
counterclaims based on information received in discovery. In February 2022, LGM
opposed Hicks’s motion to amend his counterclaim, specifically arguing that Hicks’s
motion to amend was filed “[l]ess than 30 days before trial” in a case that had been
pending for “nearly two (2) years. . . .”
{¶ 49} On August 3, 2022, the case was transferred to the trial court, nearly
a year after LGM initially appeared. Hicks filed his second amended counterclaim
on February 9, 2023, and then, on March 3, 2023, LGM filed its motion to stay the
{¶ 50} In the motion to stay and compel arbitration, LGM claimed that it was
unaware that it had a contractual arbitration right until it received a legible copy of
the RISC document attached to the second amended counterclaim and realized that
the document provided for arbitration. First, the RISC is the essence of this matter
and forms the basis for the suit since LGM was the assignee of the RISC. For LGM
to claim that it did not know about or have a legible copy of this document prior to
February 2023 is specious. Second, the RISC was attached exhibit No. 5 to Hicks’s first motion to amend, filed in the Bedford Municipal Court on January 14, 2022.
This document was available nearly a year prior, and at anytime during these
proceedings, LGM could have filed its motion to stay and compel arbitration.
{¶ 51} I would find that the totality of the circumstances supports a finding
that LGM waived its right to arbitration. I am particularly persuaded by the nature
of the document containing the arbitration clause, LGM’s active participation in the
lawsuit, including but not limited to participating in discovery, opposing Hicks’s first
motion to amend in favor of going to trial, and remaining silent about the possibility
of arbitration until 18 months after joining the lawsuit.
{¶ 52} For these reasons, I very respectfully dissent.