[Cite as Donnell v. Parkcliffe Alzheimer's Community, 2017-Ohio-7982.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
Noel Donnell, as Personal Representative Court of Appeals No. WD-17-001 of the Estate of Helen Donnell, Deceased Trial Court No. 16 CV 219 Appellant
v.
Parkcliffe Alzheimer's Community, et al. DECISION AND JUDGMENT
Appellees Decided: September 29, 2017
*****
Blake A. Dickson, for appellant.
Rudolph A. Peckinpaugh, Jr. and Mark W. Sandretto, for appellees.
PIETRYKOWSKI, J.
{¶ 1} This is an appeal from the judgment of the Wood County Court of Common
Pleas, granting appellees’, Parkcliffe, Inc., Parkcliffe Development LLC, and its
unincorporated trade names Parkcliffe Alzheimer’s Community and Parkcliffe Community Northwood, motion to compel arbitration. For the reasons that follow, we
affirm.
I. Facts and Procedural Background
{¶ 2} The undisputed facts for purposes of this appeal are as follows. On April 14,
2016, appellant, Noel Donnell, as the Personal Representative of the Estate of Helen
Donnell, Deceased, filed a complaint against appellees, asserting survivorship claims and
wrongful death claims. In the complaint, appellant alleged that Mrs. Donnell was a
resident of appellees when she suffered injuries, including a hip fracture. Appellant
alleged that the injuries were caused by appellees’ negligence. Mrs. Donnell died on
November 19, 2015.
{¶ 3} On June 16, 2016, appellees filed an answer denying the allegations, and
asserting as an affirmative defense that the claims are subject to mandatory alternative
dispute resolution, including binding arbitration if necessary. Appellees attached to the
answer a copy of an “Amendment to the Admission Agreement,” which provides,
The resident and Parkcliffe agree to attempt to resolve informally
through mediation all disputes between them, including those that arise
under this Agreement and any other claims of any kind or type whatsoever
that Resident makes against Parkcliffe (all such disputes and claims are
referred to in this Agreement as “Claims”.) To the fullest extent permitted
by applicable law, any Claim that cannot be resolved informally by
2. mediation within sixty days from the date of initiation of the mediation
shall be determined by binding arbitration conducted in Lucas County,
Ohio by the American Arbitration Association or by any method of private
arbitration upon which the Resident and Parkcliffe agree; provided,
however, that any such private arbitration shall proceed in accordance with
the procedural rules of the American Arbitration Association then in effect
(the “Rules”).
{¶ 4} Thereafter, the parties engaged in some discovery. Appellees served
their first set of interrogatories, request for production of documents, and requests
for admissions. Appellees also responded to appellant’s first and second sets of
interrogatories, requests for admissions, and request for production of documents.
{¶ 5} On July 19, 2016, the trial court held a scheduling pretrial. The court
established deadlines for discovery, and scheduled a settlement pretrial for January 31,
2017, and a trial for March 28, 2017.
{¶ 6} On August 10, 2016, appellees moved to compel arbitration on the Estate of
Helen Donnell’s survivorship claims, and to stay the proceedings, including appellant’s
wrongful death claim, pending the conclusion of arbitration. Attached to the motion was
a “Durable General and Health Care Power of Attorney,” in which Mrs. Donnell named
appellant as her lawful agent. Notably, the power of attorney was executed in 1992, and
the health care powers expired after seven years. Also attached to the motion was the
3. “Admission Agreement” and “Amendment to the Admission Agreement.” The
“Admission Agreement” was signed by appellant under the “Resident’s Sponsor” line,
but the “Amendment to the Admission Agreement” contained appellant’s signature under
the “Resident” line. On October 25, 2016, appellant filed his brief in opposition to the
motion to compel arbitration. A reply brief and a sur-reply brief were also filed.
{¶ 7} On December 6, 2016, the trial court granted appellees’ motion to compel
arbitration, and stayed all of the actions in the case pending the results of arbitration.
II. Assignments of Error
{¶ 8} Appellant has timely appealed the trial court’s December 6, 2016 judgment
entry, and asserts six assignments of error for our review:
I. None of the appellees are parties to the arbitration clause.
II. The arbitration clause is not enforceable against Helen Donnell
because it was never signed by Helen Donnell nor by anyone with authority
to sign on her behalf.
III. Appellees waived their right to arbitration.
IV. The trial court erred in finding that Ohio Revised Code §
2711.22 through § 2711.24 were not applicable. The arbitration clause in
this case is void under Ohio law.
V. The arbitration clause in this case is both procedurally and
substantively unconscionable and therefore unenforceable.
4. VI. The trial court erred in staying the wrongful death claims
pending the resolution of arbitration.
III. Analysis
{¶ 9} This appeal concerns whether the arbitration clause is enforceable.
“Arbitration agreements are ‘valid, irrevocable, and enforceable, except upon grounds
that exist at law or in equity for the revocation of any contract.’” Taylor Bldg. Corp. of
Am. v. Benfield, 117 Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12, ¶ 32. “[I]n
reviewing whether an arbitration clause is enforceable, we apply a de novo standard of
review.” Norman v. Schumacher Homes of Circleville, Inc., 2013-Ohio-2687, 994
N.E.2d 865, ¶ 11 (4th Dist.).
A. Parties to the Arbitration Clause
{¶ 10} In his first and second assignments of error, appellant argues that the
arbitration clause is unenforceable because it was not signed by the parties.
{¶ 11} Specifically, in his first assignment of error, appellant argues that the
arbitration clause was signed on behalf of “Parkcliffe Community,” which is not a legal
entity or registered trade name.
{¶ 12} R.C. 1329.01(A)(2) provides that “a name used in business or trade that is
fictitious and that the user has not registered or is not entitled to register as a trade name”
is a “fictitious name.” “Corporations in Ohio have the right to adopt fictitious names ‘so
long as it is not done with fraudulent purpose or against public policy.’” Green Tree
5. Servicing LLC v. Luce, 11th Dist. Ashtabula No. 2015-A-0022, 2016-Ohio-1011, ¶ 21,
quoting McCaskey v. Sanford-Brown College, 8th Dist. Cuyahoga No. 97261, 2012-
Ohio-1543, ¶ 15; see also Plain Dealer Publishing Co. v. Worrell, 178 Ohio App.3d 485,
2008-Ohio-4846, 898 N.E.2d 1009, ¶ 16 (9th Dist.), quoting Baldwin’s Ohio Practice
Business Organizations, Section 17:9 (“A corporation may use a name other than its
corporate name in the conduct of its business.”). “[A]n action may be commenced or
maintained against the user of a fictitious name whether or not the name has been
reported.” Plain Dealer Publishing at ¶ 16. Here, appellant does not identify, and we
cannot find, anything in the record that would support a conclusion that the fictitious
name was adopted with fraudulent purpose or against public policy. Therefore, we hold
that appellees’ use of a fictitious name does not render the arbitration provision
unenforceable as between the parties to the litigation.
{¶ 13} Accordingly, appellant’s first assignment of error is not well-taken.
{¶ 14} In his second assignment of error, appellant argues that the arbitration
provision is unenforceable because it was not signed by Mrs. Donnell or anyone
authorized to sign on her behalf. In particular, appellant argues that the power of attorney
that was granted to him by Mrs. Donnell had expired. Section B of the power of attorney
provides that appellant is authorized to make health care decisions on behalf of Mrs.
Donnell. Subsection 3 of Section B states,
6. This durable power of attorney for health care shall expire seven
years after the date of its execution, or such later time as may be permitted
by law (this power of attorney for health care shall continue even after
seven years, if allowed by law, until terminated by the undersigned or by
applicable law) unless at such expiration date I lack the capacity to make
health care decisions for myself, in which case this durable power of
attorney for health care shall continue in effect until the time when I regain
the capacity to make health care decisions for myself.
Because the power of attorney was executed in 1992, appellant argues that it expired in
1999, and thus he did not have authority to bind Mrs. Donnell to the arbitration
agreement.
{¶ 15} In opposition, appellees do not contest that the health care power of
attorney expired after seven years. Instead, they argue that as an adult group home
licensed under R.C. Chapter 5119, they only provided Mrs. Donnell with living quarters,
meals, and assistance with activities of daily living, such as walking, moving, bathing,
grooming, toileting, oral hygiene, hair care, dressing, eating, and nail care. Appellees
stress that Mrs. Donnell did not reside in a nursing home, nor did they provide health care
or nursing care to Mrs. Donnell, or any other type of procedure requiring informed
consent. Thus, they contend that appellant’s authority to sign on behalf of Mrs. Donnell
did not arise under the health care powers, but instead was founded in the “Other Powers”
7. enumerated in section C of the power of attorney. Subsection 12 of section C provides
that appellant shall have the authority to “prepare, draw, make, sign, execute, seal,
acknowledge, verify, * * * on my behalf, any and all * * * contracts, * * * agreements, *
* * and any other papers, documents, or writings or things.”
{¶ 16} We agree with appellees that appellant was not exercising authority under
the health care powers when he signed the “Admission Agreement” and the “Amendment
to the Admission Agreement.” The “Admission Agreement” clearly states that
“Parkcliffe, by law, cannot provide skilled nursing care. However, if the resident
develops a medical condition that requires skilled nursing care on a periodic, scheduled
basis for no more than 120 days, the resident may contract with a Home Health agency or
a Hospice organization.” Further, the “Admission Agreement” provides that
Parkcliffe provides medication storage, reminders to take, assistance
opening containers, helping to prevent spilling and assistance with ordering
of medication from Swanton Pharmacy. Medication management should
not be confused with medication administration that is performed by a
nurse and based on a doctor’s specific order. We will make a good faith
effort to prompt residents, but cannot ensure that all medication will be
taken. Any skilled nursing care cannot be provided by Parkcliffe staff and
must be performed by a family member or a third-party agency.
8. Thus, because appellees were not providing health care or nursing care to Mrs.
Donnell, appellant was exercising his powers under the general powers conferred
in section C of the power of attorney when he signed the “Amendment to the
Admission Agreement.” Those powers were not subject to an expiration date.
Furthermore, the power of attorney provides in section H that “If any power or
authority hereby sought to be conferred upon my attorney should be invalid or
unexercisable (sic) for any use or not recognized by any person or organization
dealing with my attorney, the remaining powers and authorities given to my
attorney hereunder shall nevertheless continue in full force and effect.” Therefore,
the general powers conferred by the power of attorney were not affected by the
expiration of the powers under the health care provision. As a result, we hold that
appellant was acting within the authority conferred upon him by Mrs. Donnell
when he entered into the “Amendment to the Admission Agreement” containing
the arbitration provision.
{¶ 17} Alternatively, appellant argues that the arbitration provision is
unenforceable because appellant signed the agreement using only his name, and not as
“Helen M. Donnell, by Noel A. Donnell, Attorney-in-Fact” as provided in the power of
attorney. Further, appellant signed his name on the “Resident” line, and not on the
“Sponsor” line.
9. {¶ 18} However, the power of attorney provides that in addition to signing as
“Helen M. Donnell, by Noel A. Donnell, Attorney-In-Fact,” the attorney may sign “in
any other legally effective manner.” Here, the “Amendment to the Admission
Agreement” is expressly between Parkcliffe Community and Mrs. Donnell:
The undersigned resident Helen Donnell and Parkcliffe Community
hereby agree to amend the Admission Agreement entered into between
them on the date of 8/26/14, by inserting the attached new dispute
resolution provision at the end of the Agreement and incorporating that
provision in the Agreement.
Although appellant signed only his name, he had actual authority to bind Mrs. Donnell to
the agreement, and his signature was legal to do so. Therefore, we hold that the
arbitration provision is not unenforceable based on appellant’s signature.
{¶ 19} Accordingly, appellant’s second assignment of error is not well-taken.
B. Waiver
{¶ 20} In his third assignment of error, appellant argues that appellees waived
their right to enforce the arbitration clause. “Like any other contractual right, * * * the
right to arbitrate may be implicitly waived.” Travelers Cas. & Sur. Co. v. Aeroquip-
Vickers, Inc., 6th Dist. Lucas No. L-06-1201, 2007-Ohio-5305, ¶ 34. “Whether the
contractual right to arbitration has been waived is a mixed question of both factual issues
and the weight to be given those facts under the applicable legal standard.” Buyer v.
10. Long, 6th Dist. Fulton No. F-05-012, 2006-Ohio-472, ¶ 7. “[A]lthough questions of law
may be reviewed de novo, the trial court’s ultimate determination of whether the right to
demand arbitration has been waived will be reviewed under an abuse of discretion
standard.” Id.
{¶ 21} “Waiver may attach where there is active participation in a lawsuit
demonstrating an acquiescence to proceeding in a judicial forum.” Id. at ¶ 13. “A party
asserting waiver must establish that (1) the waiving party knew of the existing right to
arbitrate; and (2) the totality of the circumstances demonstrate the party acted
inconsistently with the known right.” Id. at ¶ 11, citing Atkinson v. Dick Masheter
Leasing II, Inc., 10th Dist. Franklin No. 01AP-1016, 2002-Ohio-4299, ¶ 20. When
considering the totality of the circumstances, the court may be guided by:
[W]hether the party seeking arbitration invoked the jurisdiction of
the court by filing a complaint, counterclaim, or third-party complaint
without asking for a stay of the proceedings; (2) the delay, if any, by the
party seeking arbitration to request a stay of the judicial proceedings, or an
order compelling arbitration; (3) the extent to which the party seeking
arbitration has participated in the litigation, including a determination of the
status of discovery, dispositive motions, and the trial date; and (4) whether
the nonmoving party would be prejudiced by the moving party’s prior
inconsistent actions. Id. at ¶ 12.
11. “[A] waiver of the right to arbitrate is not to be lightly inferred.” Id. at ¶ 13, citing
Griffith v. Linton, 130 Ohio App.3d 746, 751, 721 N.E.2d 146 (10th Dist.1998).
{¶ 22} Appellant argues that appellees waived the right to arbitrate the dispute
because they filed an answer with a jury demand, and participated in the litigation by
propounding and responding to discovery requests, filing and responding to motions, and
engaging in a status conference with the trial court.
{¶ 23} Appellees, on the other hand, argue that they raised the issue of arbitration
as an affirmative defense in their answer, and filed the motion to compel within four
months of filing their answer. Further, although they participated in limited discovery,
appellees note that there were additional claims for wrongful death, which were not
subject to the arbitration agreement. Appellees also argue that limited discovery was
consistent with the rights they have under the arbitration process. Finally, appellees
argue that appellant has not demonstrated any prejudice since the trial date was still seven
months away at the time the motion to compel was filed, and there is nothing to
demonstrate that appellees’ actions caused the loss of any evidence or duplication of
efforts.
{¶ 24} In its decision, the trial court concluded:
On balance, the totality of the circumstances does not demonstrate
that Parkcliffe’s actions were inconsistent with its right to arbitrate Mr.
Donnell’s claims against it. Parkcliffe did not invoke the court’s
12. jurisdiction by filing any type of claim against Mr. Donnell, Parkcliffe’s
four-month delay in filing its motion to stay was not unreasonable and was
not done at a time that would disrupt a scheduled trial or avoid the
consequences of a dispositive motion, its participation in the litigation to
this point was not substantively different than its participation would have
been if the case had gone directly to arbitration, and Mr. Donnell has not
shown any prejudice due to Parkcliffe’s actions to this point.
We agree, and hold that the trial court did not abuse its discretion when it found that
appellees had not waived their right to arbitration. See, e.g., Milling Away, LLC v.
Infinity Retail Environments, Inc., 9th Dist. Summit No. 24168, 2008-Ohio-4691, ¶ 14
(no waiver where motion for a stay was filed six months after the complaint, the parties
exchanged motions regarding the proceedings, minimal discovery had occurred, and the
trial court had not yet set a trial date).
{¶ 25} Accordingly, appellant’s third assignment of error is not well-taken.
C. Void under R.C. 2711.23
{¶ 26} In his fourth assignment of error, appellant argues that the arbitration
agreement is void because it fails to satisfy any of the conditions of R.C. 2711.23. R.C.
2711.23 governs “arbitration agreements pursuant to sections 2711.01 and 2711.22 of the
Revised Code for controversies involving a medical, dental, chiropractic, or optometric
claim that is entered into prior to a patient receiving any care, diagnosis, or treatment.” It
13. sets forth ten requirements that must be met for those arbitration agreements to be valid
and enforceable.
{¶ 27} However, as identified by appellees, and recognized by the trial court, R.C.
2711.23 applies to contracts “between a patient and a hospital or healthcare provider.”
R.C. 2711.22. “Hospital” is defined as “any person, corporation, association, board, or
authority that is responsible for the operation of any hospital licensed or registered in the
state.” R.C. 2711.22(B)(2) and 2305.113(E)(1). “Healthcare provider” is defined as “a
physician, podiatrist, dentist, licensed practical nurse, registered nurse, advanced practice
registered nurse, chiropractor, optometrist, physician assistant, emergency medical
technician-basic, emergency medical technician-intermediate, emergency medical
technician-paramedic, or physical therapist.” R.C. 2711.22(B)(1). Here, appellees are
not licensed or registered as a hospital, but instead are licensed as an adult group home
under R.C. Chapter 5119. Further, appellant has not alleged or provided any evidence
that any of appellees’ employees are health care providers. Therefore, the requirements
of R.C. 2711.23 do not apply to the arbitration agreement between the parties.
{¶ 28} Accordingly, appellant’s fourth assignment of error is not well-taken.
D. Unconscionability
{¶ 29} In his fifth assignment of error, appellant argues that the arbitration
agreement is unenforceable because it is unconscionable. We review the trial court’s
14. contrary determination that the arbitration agreement is not unconscionable de novo.
Hayes v. Oakridge Home, 122 Ohio St.3d 63, 2009-Ohio-2054, 908 N.E.2d 408, ¶ 21.
{¶ 30} “Unconscionability includes both an absence of meaningful choice on the
part of one of the parties together with contract terms which are unreasonably favorable
to the other party.” (Internal quotes omitted.) Id. at ¶ 20. “The party asserting
unconscionability of a contract bears the burden of proving that the agreement is both
procedurally and substantively unconscionable.” Id.
1. Procedural Unconscionability
{¶ 31} “Procedural unconscionability considers the circumstances surrounding the
contracting parties’ bargaining, such as the parties’ ‘age, education, intelligence, business
acumen and experience, * * * who drafted the contract, * * * whether alterations in the
printed terms were possible, [and] whether there were alternative sources of supply for
the goods in question.’” Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St.3d 352,
2008-Ohio-938, 884 N.E.2d 12, ¶ 43, quoting Collins v. Click Camera & Video, 86 Ohio
App.3d 826, 834, 621 N.E.2d 1294 (2d Dist.1993).
Factors which may contribute to a finding of unconscionability in
the bargaining process [i.e., procedural unconscionability] include the
following: belief by the stronger party that there is no reasonable
probability that the weaker party will fully perform the contract; knowledge
of the stronger party that the weaker party will be unable to receive
15. substantial benefits from the contract; knowledge of the stronger party that
the weaker party is unable reasonably to protect his interests by reason of
physical or mental infirmities, ignorance, illiteracy or inability to
understand the language of the agreement, or similar factors. Id., quoting
Restatement of the Law 2d, Contracts (1981), Section 208, Comment d.
“When a trial court makes factual findings * * * supporting its determination that a
contract is or is not unconscionable, such as any findings regarding the circumstances
surrounding the making of the contract, those factual findings should be reviewed with
great deference.” Id. at ¶ 37.
{¶ 32} Here, the trial court found that appellant was an elderly man, but that the
evidence did not indicate his level of education, intelligence, business acumen, or
experience. The court also found that while appellant had recently been released from
the hospital and was experiencing stress and anxiety about placing Mrs. Donnell into
appellees’ facility, two of appellant’s adult children were with him at the time he signed
the “Amendment to the Admission Agreement,” and at least one of the children had
communicated extensively with appellees’ Program Director of Health and Wellness
prior to Mrs. Donnell’s admission. Further, the trial court found that appellees drafted
the agreement, but the care manager who signed on behalf of appellees could not
correctly and satisfactorily explain the impact of the arbitration clause. As to the ability
to make alterations to the terms, the care manager stated that previous residents had
16. altered the admission agreement, but not the arbitration provision. She did testify in her
deposition, however, that signing the “Amendment to the Admission Agreement” was not
a condition of acceptance into the facility, and she was aware of other residents who had
been admitted without signing the amendment. Finally, the trial court found that there
was no evidence that appellees anticipated that Mrs. Donnell would fail to perform her
duties under the agreement, nor was there any evidence that Mrs. Donnell would not
receive substantial benefits because of the agreement.
{¶ 33} In his brief, appellant argues that the present situation is similar to two
cases where the court held that the arbitration provision in a nursing care facility
admission agreement was procedurally unconscionable. In Small v. HCF of Perrysburg,
Inc., 159 Ohio App.3d 66, 2004-Ohio-5757, 823 N.E.2d 19 (6th Dist.), the wife signed
the agreement on behalf of her husband. At the time, the wife was concerned for her
husband’s health because he appeared to be unconscious, and the wife was approached
and asked to sign the admission agreement shortly after she learned that her husband was
going to be transported to the hospital. The agreement was not explained to her, she did
not have an attorney present, she did not have any particularized legal expertise, and she
was 69 years old when the agreement was signed. The wife testified that she was under
considerable stress when she signed the agreement, and that the whole process, from their
arrival at the facility until the ambulance left, took approximately 30 minutes. We held
17. that under these circumstances, the arbitration agreement was procedurally
unconscionable. Id. at ¶ 27-30.
{¶ 34} Likewise, in Manley v. Personacare of Ohio, 11th Dist. Lake No. 2005-L-
174, 2007-Ohio-343, ¶ 30, the court held that the arbitration agreement was procedurally
unconscionable where, “[the resident] was 66 years old, entering a nursing home directly
from a hospital, without an attorney, friend, or family member to assist her in the process.
She had fears due to a recent assault, had no legal expertise, had numerous physical
problems, had a mild cognitive impairment, and had bouts of confusion.”
{¶ 35} We find the present situation to be distinguishable. Unlike the signers in
Small and Manley, there is no evidence in the record that appellant had any cognitive
impairment or confusion, or that he was under a great deal of stress precipitated by Mrs.
Donnell needing to be rushed to the hospital. Further, appellant was not alone when he
signed the agreement, but was joined by his two adult children, and there is no indication
that the admission procedure was rushed or truncated. Finally, there was testimony from
the care manager that the arbitration provision was not presented as a condition of
admission, and that she was aware of other residents who did not sign the arbitration
provision. While it is concerning that the care manager was not able to accurately
describe the consequences of arbitration, we hold that under the totality of the
circumstances of this case, the arbitration provision is not procedurally unconscionable.
18. 2. Substantive Unconscionability
{¶ 36} “An assessment of whether a contract is substantively unconscionable
involves consideration of the terms of the agreement and whether they are commercially
reasonable.” Hayes, 122 Ohio St.3d 63, 2009-Ohio-2054, 908 N.E.2d 408, at ¶ 33.
“Factors courts have considered in evaluating whether a contract is substantively
unconscionable include the fairness of the terms, the charge for the service rendered, the
standard in the industry, and the ability to accurately predict the extent of future liability.”
Id. “No bright-line set of factors for determining substantive unconscionability has been
adopted by this court.” Id.
{¶ 37} We hold that the arbitration provision is not substantively unconscionable
in this case. The arbitration provision does purport to waive the parties’ right to trial by
jury, but as recognized by the Ohio Supreme Court, “waiver of the right to trial by jury is
a necessary consequence of agreeing to have an arbitrator decide a dispute, and this
aspect of an arbitration clause is not substantively unconscionable.” Id. at ¶ 34. In
addition, the arbitration agreement does not speak to or provide for a shifting of attorney
fees or costs of arbitration, and it allows for discovery. Finally, we note that arbitration is
triggered only when informal mediation is unsuccessful, and that the parties can agree to
any private arbitration provided that the procedural rules of the American Arbitration
Association are used. Therefore, we do not find that the terms of the agreement are so
one-sided or unfair as to render the arbitration provision substantively unconscionable.
19. {¶ 38} Accordingly, because appellant has failed to demonstrate that the
arbitration provision is both procedurally and substantively unconscionable, his fifth
assignment of error is not well-taken.
E. Wrongful Death Claims
{¶ 39} In his sixth assignment of error, appellant argues that the wrongful death
claims of the beneficiaries of Mrs. Donnell’s estate should not be stayed pending
arbitration. Notably, the parties do not dispute that the wrongful death claims are
separate from the survival claims, and are not subject to the arbitration agreement.
{¶ 40} R.C. 2711.02(B) provides,
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.
“[W]hen an action involves both arbitrable and non-arbitrable claims, the entire
proceeding must be stayed until the issues that are subject to arbitration are resolved.”
Hussein v. Hafner & Shugarman Ents., 176 Ohio App.3d 127, 2008-Ohio-1791, 890
20. N.E.2d 356, ¶ 47 (6th Dist.), quoting Cheney v. Sears, Roebuck & Co., 10th Dist.
Franklin No. 04AP-1354, 2005-Ohio-3283, ¶ 12. Therefore, we hold that the trial court
did not err when it stayed the entire proceedings pending the results of arbitration.
{¶ 41} Accordingly, appellant’s sixth assignment of error is not well-taken.
F. Additional Authority
{¶ 42} As a final matter, we will address several motions filed by the parties after
their appellate briefs had been submitted. On July 12, 2017, one week before oral
arguments were held on this matter, appellees moved for leave to file additional authority
pursuant to App.R. 21(I), which provides, “If counsel on oral argument intends to present
authorities not cited in the brief, counsel shall, at least five days prior to oral argument,
present in writing such authorities to the court and to opposing counsel, unless there is
good cause for a later presentment.” Appellant did not object to this motion. Thus, upon
due consideration, appellees’ motion to file additional authority is granted.
{¶ 43} After oral arguments, on September 7, 2017, appellees filed a second
motion for leave to file additional authority. Appellant opposed this second motion, and
alternatively filed a motion for leave to file a response to the authority. The additional
authority cited by appellees is Kindred Nursing Ctrs. Ltd. Partnership v. Clark, Slip
Opinion No. 16-32, 137 S.Ct. 1421, 197 L.Ed.2d 806 (May 15, 2017), in which the
United States Supreme Court overturned the decision of the Kentucky Supreme Court
that held that a power of attorney must specifically entitle the agent to enter into an
21. arbitration agreement on behalf of the principal for the arbitration provision to be
enforceable when signed by the agent. Here, however, appellant does not argue that the
power of attorney must specifically state that he has the authority to enter into an
arbitration agreement. Thus, the additional authority is not applicable. Therefore, upon
due consideration, appellees’ second motion to file additional authority is hereby denied,
and appellant’s motion for leave to file a response is denied as moot.
IV. Conclusion
{¶ 44} For the foregoing reasons we find that substantial justice has been done the
party complaining and the judgment of the Wood County Court of Common Pleas is
affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________ JUDGE Arlene Singer, J. ____________________________ Thomas J. Osowik, J. JUDGE CONCUR. ____________________________ JUDGE
22.