[Cite as Handy v. Patriot Mgt. & Invest. Co., 2026-Ohio-1627.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY
BEULAH M. HANDY, :
Plaintiff-Appellee, : CASE NO. 24CA11
v. :
PATRIOT MANAGEMENT & : INVESTMENTS COMPANY, ET AL., DECISION AND JUDGMENT ENTRY : Defendants-Appellants.
_________________________________________________________________
APPEARANCES:
J. Randall Engwert and Jorden R. Messmer, Toledo, Ohio, and Melvin Davis, Columbus, Ohio, for appellants.
Donald R. Capper, Proctorville, Ohio, and William M. Mundy, Huntington, West Virginia, for appellee. ___________________________________________________________________ CIVIL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:5-1-26 ABELE, J.
{¶1} This is an appeal from a Lawrence County Common Pleas
Court judgment that denied defendant, Heartland-Riverview of South
Point, Oh, LLC, motion to stay the proceedings pending arbitration.
Heartland, defendant below and appellant herein, raises one
assignment of error for review:
“THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT-APPELLANT’S MOTION TO STAY THIS CASE PENDING ARBITRATION.” LAWRENCE, 24CA11 2
{¶2} Appellee Beulah Handy needed skilled rehabilitation after
a 2021 total knee replacement surgery. Appellee later filed suit
and alleged that Heartland’s negligence in failing to provide an
appropriate wheelchair for her June 1, 2021 transport from their
facility to a medical appointment caused appellee to fall and
suffer serious physical injuries. Heartland, however, contends
that appellee agreed to arbitration, which is the subject of this
dispute.
{¶3} On June 1, 2022, appellee filed a medical negligence
claim in the Lawrence County Common Pleas Court against appellant,
who formerly did business as the nursing home known as ProMedica
Skilled Nursing and Rehabilitation, and the co-defendant Patriot
Management and Investments Company (Patriot). Patriot is not a
party to this appeal.
{¶4} Appellee’s complaint alleged:
1. On or about June 1, 2021 the plaintiff was an inpatient receiving nursing and rehabilitation services from the defendants, Heartland of Riverview of South Point, OH LLC and Promedica Skilled Nursing and Rehabilitation. . .
2. Plaintiff, Beulah M. Handy is a resident of Lawrence County, Ohio.
3. Plaintiff was to be transported from the Heartland facility to a physician’s office . . . and to be returned to Heartland after her doctor’s appointment.
4. Due to plaintiff’s medical and physical condition, she needed ambulatory transport to her medical doctor’s appointment.
5. Arrangements for transport were made solely by Heartland LAWRENCE, 24CA11 3
who chose Patriot EMS for transport.
6. At all material times Heartland was the agent for Patriot and are vicariously liable to the acts of Patriot.
7. Patriot elected to use a defective and ill-equipped wheelchair that belonged to Heartland to transport the plaintiff from the nursing facility to the ambulance . . .
8. The Patriot EMS employee along with an agent and employee of Heartland moved the plaintiff via wheelchair from the nursing facility to the waiting ambulance and because of the defective condition of the wheelchair, and their negligence in transporting the plaintiff, caused the plaintiff to be thrown from the wheelchair fracturing her leg.
9. Both the Patriot and Heartland employees were negligent in not ensuring the wheelchair selected was appropriate for the plaintiff and by not appropriately conducting the transport and making sure the plaintiff’s legs were secure in the wheelchair.
10. Heartland was negligent in maintaining equipment that was inappropriate for transporting the plaintiff and for not training its staff how to safely transport a patient that was in the medical condition which the plaintiff presented.
11. Patriot was negligent in failing to train its staff in proper transport of patients and to use appropriate medical equipment and for failure to use an appropriate wheelchair to transport the plaintiff which failure caused the plaintiff to be thrown from the wheelchair causing serious physical injuries.
12. As a result of the negligence of Heartland and Patriot the plaintiff received serious physical injuries which required, but was not limited to, multiple surgical repairs of the plaintiff’s leg.
13. Plaintiff has incurred medical expenses due to defendants’ negligence, endured pain and suffering, emotional distress, lost enjoyment of life and other damages.
14. Plaintiff has serious permanent injuries which will LAWRENCE, 24CA11 4
cause the plaintiff to incur future medical expenses, endure future pain and suffering, lost enjoyment of life and other damages.
{¶5} On July 5, 2022, defendants Heartland-Riverview of South
Point, OH, LLC (Heartland) and ProMedica Skilled Nursing and
Rehabilitation (ProMedica) filed an answer and admitted appellee
received care in their facility, but denied all other allegations.
On July 20, 2022, defendants Heartland and ProMedica filed a Civ.R.
10(D) motion for judgment on the pleadings, and, on September 12,
2022, defendants filed a motion to stay discovery. Relevant to the
case sub judice, on November 16, 2022 Heartland and ProMedica filed
a motion to stay proceedings pending arbitration. On December 20,
2022, appellee filed a response to defendant’s motion to stay
proceedings pending arbitration and argued (1) no contract to
arbitrate exists, and (2) any such contract, if it so exists, would
be a contract of adhesion.
{¶6} On May 11, 2023, the trial court denied the motion for
judgment on the pleadings and motion to stay discovery. The court
held in abeyance the motion to stay proceedings pending arbitration
because a dispute exists regarding the enforceability of the
agreement and whether appellee signed the agreement. Thus, the
court held Heartland’s motion in abeyance and ordered the parties
to conduct discovery and brief the issues concerning the
arbitration agreement. LAWRENCE, 24CA11 5
{¶7} At David Roush’s December 8, 2022 video-taped deposition,
Roush stated that he is an EMT, worked for Patriot EMS, transported
“probably over a thousand-some calls,” and received transport
training from Patriot: “You’re basically with the person who had
been there working for the company with experience in wheelchair,
and you go with them and they show you how to operate the
wheelchair, how to load it up, and all the training that you need
to transport the wheelchair unit.” Roush said he received four
days of training on the truck and “they had, like, two, three
videos that you watched for transports.” Roush added that he
completed competency testing on the material.
{¶8} Roush did remember transporting appellee, but reviewed
the run report to prepare for his deposition. Roush drove a van
that day and knew he would transport appellee by wheelchair,
although the transport van did not carry a wheelchair. When they
arrive at a facility, the nursing staff would usually place the
patient in a wheelchair and, because wheelchairs do not contain
seat belts or restraints, Roush would use a belt to secure the
wheelchair.
{¶9} On June 1, 2021, Roush received a 1:20 p.m. dispatch for
a 1:00 p.m. pick up for appellee’s 2:00 p.m. medical appointment.
The run sheet stated that Roush was at Heartland for four minutes,
but Roush said that was incorrect. Roush stated that when he
arrived, he also received appellee’s paperwork that they take with LAWRENCE, 24CA11 6
the patient to the medical appointment. Roush did notice:
[t]he wheelchair that she’s in is, like, a little too big to go in the truck that I had. So they switch her out into a smaller chair, which both wheelchairs didn’t have foot pegs [footrests] on either one of them.
I asked - when they switched her into the other one, I asked them if they had footrests for the one, and just ‘cause I feel comfortable with the foot pegs on. But they said they didn’t have foot pegs, saying that she was able to hold her legs up, that she had no problems with it.
So we go to transport, start taking her out the building, like, walking in with both hands on the handles, taking her down the hallway slow. We go out the doorway to get into the truck, which make sure there’s nothing - - no obstacles or anything blocking anything.
As we’re walking down the aisle to go to the truck - - which is flat land, ain’t no hills there or nothing, it’s just all flat. She says she’s slipping a little bit. So both hands on the wheel, we slowed the wheelchair down a little bit more. . .
I slowed the chair down a little bit even more so - - and right in, like, halfway down the aisle thing on the sidewalk, she slides out real slowly and goes on the ground. Which, like, the wheelchair’s not very far off the ground in the first place. So I mean, she didn’t slip that far out of the wheelchair.
{¶10} When asked if he observed appellee fall out of the
wheelchair, Roush said:
I mean, I didn’t actually see her slip out of the thing. She said she was slipping. So when I was slowing the wheelchair down, then, next thing, she’s, like, laying on the ground.
Then the nurse’s aides and stuff that were outside came over and checked her, checked her side, and make sure she was all right. She said she was fine, that she didn’t have no pain at that time. And they went in and got the blood pressure machine and stuff, checked her blood pressure, LAWRENCE, 24CA11 7
pulse, all that, made sure she was good.
Nurse’s aides that were out there said she was fine to be transported to the hospital or her doctor’s appointment. Put her back in her chair, made sure she was able to hold her feet up, she was.
{¶11} Roush stated that a “nurse’s aide outside” placed
appellee in the wheelchair. After the incident, appellee held her
feet up “and didn’t drag them at all,” while he transported her to
her doctor’s office. Also, appellee did not complain of pain. At
the time of the accident, Roush did not know that appellee had
recently undergone a total knee replacement.
{¶12} Even though medical records stated, “her cheek is red
from the concrete,” and documented bruising on appellee’s face,
Roush stated that he did not see how she could have injured her
face and “I didn’t see no red and bruised checks (sic.) on her.”
Roush said appellee was “laying on her left side” on the sidewalk.
When medical staff asked appellee what happened, appellee said she
slid out of the chair.
{¶13} The nursing record from appellee’s Heartland medical file
states, “took a statement from the ambulance driver.” Roush,
however, denied that he gave a statement to anyone at Heartland.
Roush stated that he sent an email to “Jess” at Patriot, which he
reviewed:
Went to Heartland to pick up a patient yesterday to take to Huntington for appointment. Was pushing her to the van talking on the way, then heard, “Help.” Looked down, and LAWRENCE, 24CA11 8
she was on the ground. They came out to check her BP, blood pressure, and stuff. Asked her if she was okay, and she told them that she had a little pain in her face and arm but she was okay. Nurse said she may have got her foot caught in the crack of the sidewalk and pushed her forward in the chair.
{¶14} At Amber Rivera’s April 17, 2024 videotaped deposition,
Rivera stated that she worked at Heartland since 2015 and currently
is a social worker. In May 2021 Rivera worked as an admissions
assistant. While some wheelchairs are equipped with footrests,
Rivera did not know who determined which patients used which
wheelchairs. Rivera did not recall her interactions with appellee
and did not observe appellee’s June 1, 2021 injury.
{¶15} Typically, staff completes admissions paperwork within 24
hours after a patient arrives. In Rivera’s training, Heartland
instructed her to review the contract with the patient, answer
questions, and explain the arbitration agreement. Rivera stated
that the arbitration agreement “is voluntary, it is not necessary
for them to sign. Their condition -or their admission to the
facility is not contingent upon them actually signing this.”
Rivera explained that she would read the Introduction to Our
Voluntary Arbitration Program to the patient, but not read “the
entire agreement,” and instead read the bullet points in the
agreement, “pretty much verbatim.”
{¶16} With respect to appellee, Rivera said the arbitration
agreement could have been a paper contract, or could have been LAWRENCE, 24CA11 9
completed through an iPad if they used them at that time, which she
could not recall. When asked if appellee signed the agreement on
an iPad, Rivera replied, “[I]t could have been, but I don’t believe
hers was, but I honestly can’t recall.” Rivera explained that when
a patient signs an iPad “it can be a little difficult to write with
your finger, so the signature may not look as it would if it was
written with a pen.”
{¶17} When asked if she told patients that the arbitration
agreement meant that the patient waived their right to a jury
trial, Rivera stated, “No, I don’t believe so. I mean the way that
it’s worded in here, it does say that they will forego or they may
forego, you know, using arbitrator instead of a judge and jury. So
I mean technically I guess, yes, I may say that because I am
reading the bulletin (sic) points, but it’s not verbiage that I
would use and it’s not a side conversation that I would have.”
When asked if she understood punitive damages or the right to
recover attorney fees, Rivera said, “I don’t know that.” In
addition, when asked if a patient can appeal an arbitrator’s
decision, Rivera replied, “I honestly don’t know.” Rivera told
patients that “it is voluntary, they don’t have to sign it, and if
they chose to rescind the arbitration that they could do so within
30 days in writing.”
{¶18} Although Rivera could not recall or attest directly
regarding appellee, she stated that if she observed cognition LAWRENCE, 24CA11 10
issues or believed a patient “confused in any way,” or incapable of
completing this on their own, she would have “reached out to
somebody else, but being that she did sign it, you know, with me
together that I wouldn’t have had her sign it if I had questions on
her cognition or ability to understand any of this.” “If there was
a question to cognition, if a patient exhibited signs that they
were not their own person, if there was any reason to suspect they
were maybe confused, disoriented, maybe recovering from a surgery,
altered mental status,” she “would have looked at the record to see
if there was anything existing and then to find a contact to reach
out to to complete this . . . on her behalf.” She conceded,
however, that no way exists to determine exactly what occurred with
respect to appellee.
{¶19} Tom Kelley stated at his April 17, 2024 videotaped
deposition that he is an administrator with Legacy Health Services,
a nursing home operating company. At the time of the accident,
Heartland owned the facility and the facility had, and still has, a
contract with Patriot for ambulance service. Kelley did not
observe the accident. When Kelley arrived at Heartland, staff told
him, “she just fell out of the chair.” Kelley elaborated, “I asked
did they hit something on the sidewalk, was there an uneven place
in the sidewalk, was there a rock or something on the sidewalk, and
they said no, she just fell forward out of the chair.” LAWRENCE, 24CA11 11
{¶20} Kelley described the wheelchair in question as “a
standard wheelchair,” and he did not believe it had footrests.
Most Heartland residents use wheelchairs to ambulate about the
facility and do not need footrests. Most of Heartland’s
wheelchairs do not have footrests, but footrests are available if
needed. Kelley was unaware of how or who determined what type of
wheelchair to use to transport appellee.
{¶21} At appellee’s April 26, 2024 oral deposition, she
explained that, after she underwent total knee replacement surgery,
the hospital discharged her to her home. However, she became
dehydrated and needed to be readmitted. After that, she “needed to
go to a facility for rehab, so I picked Heartland.” Appellee
recalled her 2021 gurney transport to Heartland and said, “[t]hey
would not let my daughter go. She was never allowed in my room
there. No, no one.”
{¶22} Appellee described her general condition at Heartland as,
confused, “but I don’t think I knew I was confused. . . It was just
different there. It was - I remember I asked to speak to the
doctor and I wanted to know what medication they had me on, but I
didn’t get to speak to him until probably three or four days
later.” Appellee stated that the hospital knew she was confused
and checked on her often, but “at Heartland no one checked. They
brought your pills in and brought your lunch.” LAWRENCE, 24CA11 12
{¶23} When asked if she recalled signing paperwork upon her
arrival at Heartland, appellee replied, “no.” When asked if she
recalled anyone at Heartland going over paperwork with her,
appellee replied, “They didn’t.” She explained, “I wasn’t – - I
wasn’t right. I didn’t feel - - I didn’t feel normal.” When asked
if the signature on the “Signature of Patient or Responsible
Party,” was hers, appellant replied, “I don’t know. It doesn’t - -
it doesn’t look like it, and I don’t remember signing it, so I
would have to say no.” When asked if someone else signed her
signature, appellee replied, “I didn’t see anyone sign it, but I
didn’t sign it, so someone had to.” Appellee added that the date
did not look like her handwriting either, “because I don’t make my
letters that way, my numbers.”
{¶24} When again asked if the Arbitration Agreement signature
is hers, appellee said, “No. And all three of these signatures are
different that you have showed me today. . . [t]hey don’t look like
my handwriting.” When asked if she took any medication that would
affect her memory or ability to understand, appellee replied, “no.”
Appellee also said that she had a wheelchair in her room, and her
physical therapist would take her to physical therapy in the
wheelchair. When asked if she used footrests on wheelchairs at
Heartland, appellee stated, “I don’t remember.”
{¶25} Turning to the date of the incident, appellee said that
“the girl that works at Heartland” put her in the wheelchair in her LAWRENCE, 24CA11 13
room and:
took me outside and that’s where the guy was waiting. And either he was late or they were late getting me out there, but my appointment was at 2:00, so - - and it was almost 2:00 I think when I got out there. And he was fussing that he had to be in Ironton at 5:00 and he was going to be late.
And then he had ear buds or something in his ears and he told me, he said, “We’re going to go fast because I’m in a hurry.” And he started pushing that wheelchair really fast and I was yelling for him to stop, and I screamed, I remember I screamed, and he didn’t hear me, he didn’t stop, and then I was just pitched right out on the concrete.”
I remember laying on the sidewalk and I was bleeding and then there was an LPN there, I don’t know her name, and she said, “You’ve got to turn over so we can get you up.” And I said, “I can’t. My leg hurts. I can’t move my leg.” Well, my leg was broken and they had to put a plate in it, so that’s - - at the hospital I found that out. That’s why I couldn’t move my leg.”
My leg was throbbing because they had also broken my new kneecap, my new artificial knee, plus my leg. I was in a lot of pain and my head hurt because my head hit the concrete.
{¶26} At Jodie Barker’s April 26, 2024 oral deposition, Barker
explained that she is appellee’s daughter. After appellee’s May
18, 2021 knee replacement, appellee went home, but later developed
a urinary tract infection, became dehydrated and “very weak and
went back to Cabell [the hospital].” At home, prior to being
hospitalized for the infection, appellee “would tell me off-the
wall-things that were not correct.” In addition, appellee fell a
few times, “she would just slide out of her bed. She thought she
could walk. . . because of the hallucinations.” LAWRENCE, 24CA11 14
{¶27} At the hospital, Barker spoke with medical staff about
her mother’s cognitive issues and the staff recommended a
rehabilitation facility. Barker said that medical staff “told me a
UTI can cause them to have some cognitive brain fog.” Later, when
the hospital transferred appellee to Heartland, “[s]he wasn’t
really in her - - I don’t feel my mom was a hundred percent at that
time. . . . her memory from the infection, she was very weak, she
wasn’t understanding things that she normally does. . . I just
remember I would have to explain things a few times to her. . . It
took a very long process to get her to understand.”
{¶28} At the time of her mother’s transfer to Heartland,
Heartland did not permit Barker to enter the facility “because they
were not letting visitors in” due to COVID restrictions. Heartland
permitted Barker one visit and, when Barker visited, “[s]he did not
seem like my Mom. She - - something was off. . . [s]he was very
agitated.” Barker “did not get much information from her because
she was not a hundred percent. She wasn’t like Mom.” When Barker
visited with her mother, someone from the facility brought her to
the room in a wheelchair with footrests.
{¶29} On the day of the accident, Barker waited for her mother
at her mother’s doctor’s office because she did not have permission
to travel with her. At some point, “someone from Heartland called
me and told me my mom had a little accident and was running late.”
After the fall, appellee called Barker and said, “Call an LAWRENCE, 24CA11 15
ambulance. I’m on the floor bleeding.” When appellee arrived at
the hospital, she told Barker “that she was dumped out of the
wheelchair.”
{¶30} At Krista Ellison’s May 30, 2024 oral deposition,
Ellison, a co-owner of Patriot EMS, spoke with David Roush, Tom
Kelley, and appellee’s daughter about the accident and testified
that the facility selects the wheelchair for patient transport.
After speaking with Kelley, Patriot employee Roush, and appellee’s
daughter, Ellison concluded, “Ms. Handy could not hold her feet up
and her feet got hung under the wheelchair, which would cause her
to come out of the wheelchair.” In addition, Ellison recalled that
Kelley told her “there was an incident that had occurred and that .
. . Ms. Handy had an incident outside the nursing home, she
couldn’t hold her feet up. I don’t know if he said she couldn’t
hold her feet up. He just said that they believe - - there was a
nurse outside that witnessed the whole thing, so they believe that
she could not hold her feet up, her foot got hung under the
wheelchair and that she came out of the chair.”
{¶31} When asked if David Roush had been “running late” for
appellee’s transport, Ellison stated, “running late in our
profession is [the] norm. I’m just being honest with you.”
Although the “run sheet” reflected that Roush was late, Ellison
testified, “we had a lot of issues with the system that we was
using at the time. . . I don’t think they’re accurate, no.” LAWRENCE, 24CA11 16
Ellison stated that Roush would not have been aware that appellee
had a recent knee surgery.
{¶32} Additionally, the June 2, 2021 management incident
investigation report from the CEO of Patriot states:
After discussions with the Administrator at Heartland and the daughter of Beulah Handy, we know that Ms. Handy could not hold her feet up during transfer (riding) in the wheelchair. Mr Roush was pushing Beulah to the wheelchair van when her feet got hung up under the wheelchair causing her to fall forward. Nursing staff was outside when this happened. They rushed over and checked Beulah out. Nursing staff and the patient stated she was fine. Patient stated she wanted to go on to her Dr. Appointment, so that’s what Mr. Roush did. The next day is when I (Krista Ellison) received a phone call from the Administrator and the patient’s daughter stating Beulah was injured. I was told Beulah had a previous injury to the leg she was claiming was injured during this fall.
Recommendation Plan if appropriate: Mandatory Education and training with staff on proper safety restraints for wheelchair patients and educational talks with Heartland over medical necessity and which patients can go by wheelchair van. The majority of wheelchairs from nursing homes do not have leg rests on them. Patriot EMS does not dictate how the patients go out. Heartland tells our Dispatch either wheelchair van or cot.
{¶33} At the May 22, 2024 videoconferencing deposition of
Anthony J. McEldowney, M.D., McEldowney explained that he treated
appellee on July 13, 2021 to irrigate and debride tissue due to a
patellar tendon injury. McEldowney opined that the July 13
procedure was related to appellee’s June 1, 2021 fall. Appellee
told McEldowney that she sustained a fall forward in a wheelchair
being transferred for a postoperative appointment to an orthopedic LAWRENCE, 24CA11 17
specialist. McEldowney read from his notes: [Appellee] said, “On
June 1, 2021, I was tossed out of a wheelchair by a contracted
transport service at Heartland Nursing Home. They placed me in a
wheelchair with no foot rests and the transport driver was
rushing.” McEldowney opined that “if it were my patient and my
patient were transferred to a rehabilitation facility, I would say
that you have to provide all precautions, including seat belts, for
that patient the first few weeks because these things do
unfortunately happen.. . a foot rest should have been there. And
she should have even had a seat belt on during that time.”
McEldowney conceded, however, that he was unaware of peer-reviewed
literature that requires foot rests and seat belts on wheelchairs,
but noted that the Cleveland Clinic trained him that way.
{¶34} On May 30, 2024 the trial court held a hearing on the
motion to stay pending arbitration. Handwriting expert Vickie
Willard testified on behalf of Heartland that all of the signatures
on the admissions paperwork were those of “the same writer,” “all
written by one individual.”
{¶35} Appellee testified at the same hearing that she has the
following diagnoses: (1) hypertension, (2) gastroesophageal reflux
disease, (3)gout, (4) malignant neoplasm in one or both breasts,
and (5) muscle atrophy. However, appellee had not been diagnosed
with any mental or cognitive disorders at the time of the incident,
and was not under the treatment of a psychiatrist or psychologist LAWRENCE, 24CA11 18
in May 2021, but hospital staff prescribed an antidepressant.
{¶36} Appellee believed that she had been given medication the
night she arrived at Heartland, but did not know which medication.
Heartland did not permit appellee’s daughter in her room and she
could only see her once briefly in a different room for a few
minutes [due to COVID restrictions]. When asked if she disputed
the signature on the arbitration agreement, appellee replied,
“Yeah, I don’t remember signing anything.” When asked whether
anyone at Heartland talked to her about an arbitration agreement,
appellee replied, “No, and I didn’t know what arbitration was.”
When asked if anyone asked her to sign any documents while at
Heartland, appellee replied, “No.” When asked if she knew Amber
Rivera, appellee said, “No.” When asked if Amber Rivera spoke with
her about any documents, appellee replied, “No.” Appellee stated
that when she arrived at Heartland, she was “scared. . . [n]othing
was clear. It was - - it was like everything was uh, was in a fog.
I - - I just remember going down this dark hall on that gurney, and
I was scared.” When asked if she was taking pain medications, she
replied, “definitely,” and appellee later asked staff at Heartland
not to prescribe this heavy pain medication “because . . . I said I
don’t feel right.”
{¶37} Jodi Barker, appellee’s daughter, testified at the May
30, 2024 hearing that when her mother stayed at Heartland from May
27, 2021 to June 1, 2021, Barker could not enter her mother’s room LAWRENCE, 24CA11 19
and could only visit with her one time. Barker did not sign any
documents on her mother’s behalf at Heartland. Barker agreed that
her mother had not been diagnosed with Alzheimer’s or dementia, but
stated that when her mother left the hospital to go to Heartland,
“[s]he was confused. She was confused the whole time she was in
the hospital. . . she would mumble a lot and then she would take
her blankets and tell me she was knitting. I later learned that
the infection in older people works that way to cause confusion.”
Barker said her mother had received a low dose of an unknown pain
medicine, and Barker did not believe her mother “was herself
mentally” when the hospital transferred her to Heartland. When
Barker saw her mother at Heartland, “[s]he didn’t seem like she was
herself. She just didn’t seem like my mom always seemed . . . she
was still very weak. Said things that I would look at her and
question, and then she would get agitated because I wasn’t
understanding what she was trying to tell me. She would say things
that - - out of her mind a little bit.”
{¶38} Barker spoke to appellee on the evening of May 28 when
the hospital transferred appellee to Heartland. “She didn’t want
to talk long. I had just called to make sure she made it okay.
She still was not clearly in her right mind.” Barker stated that
at the time of the incident, her mother was 72 years old. No one
discussed an arbitration agreement with Barker. LAWRENCE, 24CA11 20
{¶39} Appellee’s Exhibit 1 from the May 30, 2024 hearing showed
a mostly blank 27-page medical record entitled, “Minimum Data Set
(MDS) Version 3.0 Resident Assessment and Care Screening Nursing
Home Discharge (ND) Item set.” Only page 27 had been completed
with signatures, titles and dates that staff providing dietary,
social services, speech therapy, and RN services from June 2, 2021
to June 15, 2021.
{¶40} Appellee’s Exhibit 2, Heartland History and Physical
medical form, is a May 29, 2021 document completed by David Apgar,
D.O., under “History of Present Illness.” The document noted that,
while at the hospital, appellee “was taking oxycodone and it was
causing her to feel confused of hallucinations and experience
nausea and vomiting.” It documents that appellee “does not want
pain medication during the night.” Diagnoses include: (1) Left
knee pain due to osteoarthritis, (2) tachycardia, (3) presence of
left artificial knee joint, (4) muscle wasting and atrophy, (5)
post-procedural kidney failure, (6) essential primary hypertension,
(7) obesity, (8) gout, (9) history of treated cancer of the breast
in 2009, (10) GERD, (11) depressive disorder, and (12) edema of the
lower extremities. Under “plan,” the document included: “Norco
5/325 mg will be given q.i.d. and an extra half tablet will be
given prior to therapy.”
{¶41} Appellee’s Exhibit 5, a Resident Controlled Substance
Record, reflects that on May 27, 2021 and May 28, 2021 at 9 p.m., LAWRENCE, 24CA11 21
appellee received (1) 10 mg of zolpidem (Ambien, a sedative-
hypnotic medication for insomnia), (2) 5/325 mg of hydrocodone-
acetaminophen on May 29 at 9:30 a.m., 1:00 p.m., 4:00 p.m., and
8:00 p.m., (3) 5/325 mg tablets of Norco (combination of opioid
pain reliever hydrocodone with the analgesic acetaminophen) on May
27 at 9:00 p.m., on May 28, 2021 at 2:45 p.m., May 30 at 8:00 a.m.,
12:00 p.m., 4:00 p.m., and 8:00 p.m., May 31 at 8:00 a.m. and 12:00
p.m., and on June 1, 2021 at 12 p.m. In addition, defendants
Riverview and ProMedica admitted exhibits A through H into
evidence.
{¶42} On June 11, 2024, the trial court issued an order
regarding the motion to stay proceedings pending arbitration. The
court noted that appellee’s response to the motion to stay
proceedings pending arbitration contained an affidavit from
appellee attesting, in relevant part, “I have never seen the
arbitration agreement referred to in Exhibit ‘A’ of the defendant’s
motion prior to it being given to me by my attorney to review,” and
“after reviewing the arbitration agreement, I did not sign such an
agreement and do not believe the purported signature on the
document is mine.” The court noted that, after the court issued an
order holding Heartland’s motion in abeyance, the court heard
testimony from Vickie Willard, expert witness in forensic document
examination, appellee, and appellee’s daughter, Jodi Barker.
Appellee’s counsel also announced that they intended to call LAWRENCE, 24CA11 22
Heartland’s former employee, Amber Rivera, to testify, but she did
not appear.
{¶43} After consideration, the trial court denied Heartland’s
motion to stay proceedings pending arbitration. The court found:
[D]efendant [Heartland] supplied uncontroverted expert testimony establishing that the signature on the disputed arbitration agreement is that of plaintiff Beulah Handy, but . . . failed to establish that there was a meeting of the minds with the plaintiff in the execution of the agreement.
{¶44} The trial court observed that Heartland’s facility
doctor, Dr. David Apgar, prepared a medical note on May 29, 2021,
and admitted into evidence at the hearing as plaintiff’s Exhibit 2,
that stated:
She had gone home and had difficulty bearing weight at home and experienced nausea and vomiting, acute kidney injury and troponin elevation and was readmitted to the hospital. She was taking oxycodone and it was causing her to feel confused of [sic] hallucinations and experiencing nausea and vomiting.
In addition, the trial court noted that appellee’s daughter, Jodi
Barker, testified on cross-examination that her mother had been
confused while in the hospital and “not herself mentally.”
Further, the court noted that, although defense counsel argued that
no indication existed that appellee continued to receive opioid
pain relievers when she executed the arbitration agreement,
appellee produced evidence to the contrary. Specifically, Exhibit
5 contained Heartland’s “Resident Controlled Substance Record,” LAWRENCE, 24CA11 23
disclosed within documents the facility provided to appellee’s
counsel, that established that Heartland “administered Norco
(controlled substance) to Ms. Handy on May 27, 2021, and May 28,
2021.”
{¶45} The trial court opined that, at its essence, R.C.
2711.02(B) requires the court to be “satisfied that the issue
involved in the action is referable to arbitration under an
agreement in writing for arbitration,” Dodeka v. Keith, 2012-Ohio-
6216 (11th Dist.). The court concluded that Heartland did not meet
its burden to establish the existence of a meeting of the minds
with appellee as it pertained to (1) the validity and
enforceability of the arbitration agreement, and (2) appellee’s
capacity to contract.
{¶46} Therefore, the trial court wrote:
Based on the foregoing, the court FINDS:
1. Plaintiff produced evidence, some of which was derived from defendant Riverview’s own files on the plaintiff, that Ms. Handy had experienced hallucinations and confusion prior to her admission at Heartland as a result of taking prescribed opioid pain medication.
2. Plaintiff produced a medication log prepared by Riverview establishing that Ms. Handy continued to receive opioid pain medication on May 27, 2021, and May 28, 2021, which was administered by the Riverview nursing staff.
3. At the hearing on May 30, 2024, counsel for Riverview was not aware that the plaintiff continued to receive opioid pain medication after her admission to the facility, but before the arbitration agreement was signed.
4. Plaintiff attested that she did not remember discussing LAWRENCE, 24CA11 24
the arbitration agreement with Amber Rivera (who was not available for examination at the hearing on this motion) or signing the arbitration agreement.
5. According to the deposition testimony of Amber Rivera, she did not have an independent recollection of her meeting with the plaintiff, but rather, testified to her normal course and procedure when discussing the arbitration agreement with a patient.
6. While Dr. Apgar noted that the patient was alert and oriented during his initial examination, he did not see the plaintiff until May 29, 2021, which was the day after the arbitration agreement was executed.
7. Finally, the court found the testimony of Ms. Handy and Ms. Barker to be credible, honest, and sincere.
{¶47} Thus, the trial court denied appellant’s motion
concerning the arbitration issue and this appeal followed.
{¶48} In its sole assignment of error, appellant asserts that
the trial court erred when it denied appellant’s motion to stay the
proceedings pending arbitration.
{¶49} “An appellate court reviews a trial court’s decision to
grant or deny a motion to compel arbitration or stay the
proceedings under the abuse of discretion standard.” Ohio Valley
Electric Corp. v. First Energy Corp., 2025-Ohio-938 (4th Dist.),
citing Primmer v. Healthcare Industries Corp., 2015-Ohio-4104, ¶ 8
(4th Dist.), quoting Fields v. Herrnstein Chrysler, Inc., 2013-
Ohio-693, ¶ 12 (4th Dist.), citing K.M.P., Inc. v. Ohio Historical
Society, 2003-Ohio-4443, ¶ 14 (4th Dist.). An abuse of discretion
implies that a court acted arbitrarily, unreasonably or LAWRENCE, 24CA11 25
unconscionably. However, on issues of law, such as issues of
contractual interpretation, a trial court’s decision to grant or to
deny a stay of proceedings pending arbitration is generally subject
to de novo review on appeal. Primmer, supra, quoting McFarren v.
Emeritus at Canton, 2013-Ohio-3900, ¶ 13 (5th Dist.), quoting
Hudson v. John Hancock Fin. Servs., 2007-Ohio-6997, ¶ 8 (10th
Dist.). See also Alford v. Arbors at Gallipolis, 2018-Ohio-4653, ¶
9 (4th Dist.).
{¶50} Both the Ohio General Assembly and Ohio courts have
expressed a strong public policy to favor arbitration. Taylor v.
Ernst & Young, L.L.P., 2011-Ohio-5262, ¶ 18; Alford, supra, at ¶
11, citing Primmer, supra, at ¶ 10, quoting Hayes v. Oakridge Home,
2009-Ohio-2054, ¶ 15, citing R.C. Chapter 2711. Arbitration is
favored because it provides an expeditious and economical means to
resolve a dispute and has the added benefit of lessening the burden
on crowded court dockets. Primmer, supra; Hayes at ¶ 15. This
court has observed that “‘”[i]n light of the strong presumption
favoring arbitration, all doubts should be resolved in its
favor.’”” Alford, supra, at ¶ 14, quoting Primmer, supra, at ¶ 12,
quoting Hayes at ¶ 15.
{¶51} Under the Ohio Arbitration Act, R.C. Chapter 2711, a
court may stay an action pending arbitration upon application of
any party when the court is “satisfied that the issue involved in
the action is referable to arbitration under an agreement in LAWRENCE, 24CA11 26
writing for arbitration[.]” Kar v. TN Dental Management, LLC,
2024-Ohio-6075, ¶ 35 (7th Dist.). “The Ohio Arbitration Act sets
forth a trial court’s role in construing and enforcing arbitration
agreements.” Younce v. Heartland of Centerville, 2016-Ohio-2965, ¶
34 (2d Dist.), quoting Lindsey v. Sinclair Broadcast Group, Inc.,
2003-Ohio-6898, ¶ 15 (2d Dist.). R.C. 2711.01(A) provides:
A provision in any written contract . . . to settle by arbitration a controversy that subsequently arises out of the contract, . . . or any agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, or arising after the agreement to submit, from a relationship then existing between them or that they simultaneously create, shall by valid, irrevocable, and enforceable, except upon grounds that exist at law or in equity for the revocation of any contract. See also Younce, supra, at ¶ 35.
{¶52} In the case sub judice, appellant contends that, not only
is arbitration a protected right encouraged under both Ohio and
federal law, but also that R.C. 2711.02 requires a stay of
proceedings in the case at bar. R.C. 2711.02(B) provides:
If any action is brought upon 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.
{¶53} Specifically, appellant argues that the trial court erred
because the purported arbitration agreement is neither procedurally LAWRENCE, 24CA11 27
nor substantively unconscionable. However, as appellee points out,
because an arbitration agreement is a matter of contract, Academy
of Medicine of Cincinnati v. Aetna Health, Inc., 2006-Ohio-657, ¶
11, if the parties did not, in fact, form a contract, no need
exists to then address the unconscionability issue. Here, the
appellee contends that no contract exist because, at the time
appellee allegedly signed the purported agreement, appellee lacked
the capacity to enter into a contract.
{¶54} The Eighth District has explained:
Whether a party has agreed to arbitration is a matter of contract. Maestle v. Best Buy Co., 8th Dist. Cuyahoga No. 79827, 2005-Ohio-4120, 2005 WL 1907282, ¶ 10, citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995); Palumbo v. Select Mgt. Holdings, Inc., 8th Dist. Cuyahoga No. 82900, 2003-Ohio- 6045, 2003 WL 22674397, ¶ 18. 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, 2017-Ohio-286, 81 N.E.3d 961, ¶ 19 (8th Dist.), citing First Options at 944, 115 S.Ct. 1920; Roberts v. KND Dev. 51, L.L.C., 8th Dist. Cuyahoga No. 108473, 2020-Ohio-4986, 2020 WL 6193635, ¶ 10, citing Avery v. Academy Invests., L.L.C., 8th Dist. Cuyahoga No. 107550, 2019-Ohio-3509, 2019 WL 4131125, ¶ 9. “ ‘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, 2020-Ohio-5002, 2020 WL 6196168, ¶ 8, quoting Corl v. Thomas & King, 10th Dist. Franklin No. 05AP-1128, 2006- Ohio-2956, 2006 WL 1629740, ¶ 8. A party with a unilateral right to modify a contract does not have the right to make any kind of change whatsoever. Maestle at ¶ 20.
Gibbs v. Firefighters Community Credit Union, 2021-Ohio-2679, ¶ 14
(8th Dist.). The Eleventh District also explained: LAWRENCE, 24CA11 28
When a party lacks contractual capacity, there can be no contract regardless of the terms as capacity pertains to formation . . . Resultantly, lack of capacity dispenses with any need to determine unconscionability. Substantive unconscionability, on the other hand, involves the fairness of the contractual terms.
Pearson v. ManorCare Health Servs., 2015-Ohio-5460, ¶ 77 (11th
Dist.). See, also, Keybank, N.A. v. David, 2024-Ohio-5333 (7th
Dist.)
{¶55} As appellee points out, the trial court in the case at
bar determined that no valid and enforceable arbitration agreement
exists because the parties lacked a meeting of the minds. As
appellee further points out, whether a party has the mental
capacity to form a contract is a threshold question that a court
must resolve before it determines whether an arbitration agreement
is enforceable. See Melaas v. Diamond Resorts U.S. Collections
Dev., LLC, 2021 ND 1 (2021). “If the contract containing the
arbitration agreement was never formed and therefore does not
exist, then the parties never agreed to arbitrate.” Id.
{¶56} As noted above, essential elements of a contract include
an offer, acceptance, contractual capacity, consideration (the
bargained-for legal benefit and/or detriment), a manifestation of
mutual assent and legality of object and of consideration.’ ”
Westerfield v. Three Rivers Nursing & Rehab. Ctr., LLC, 2013-Ohio-
512, ¶ 20 (2d Dist.), quoting Minster Farmers Coop. Exchange Co.,
Inc. v. Meyer, 2008-Ohio-1259, ¶ 28; Kostelnik v. Helper, 96 Ohio LAWRENCE, 24CA11 29
St.3d 1, ¶ 16, quoting Perlmuter Printing Co. v. Strome, Inc., 436
F.Supp. 409, 414 (N.D. Ohio 1976).
{¶57} In addition to being definite and certain, Norman v.
Schumacher Homes of Circleville, Inc., 2013-Ohio-2687, ¶ 18 (4th
Dist.), “a meeting of the minds as to the essential terms of the
contract is a requirement to enforcing the contract.” Kostelnik,
supra, at ¶ 16. “The parties must have a ‘meeting of the minds’ as
to the essential terms of the contract in order to enforce the
contract.” Id., citing Episcopal Retirement Homes, Inc. v. Ohio
Dept. of Indus. Relations, 61 Ohio St.3d 366, 369 (1991). Ohio law
requires mutual assent for a valid and enforceable contract,
including arbitration agreements, and mutual assent is demonstrated
when both parties agree to the essential terms of the contract.
See also Kar, supra, 2024-Ohio-6075 at ¶ 38 (meeting of the minds
regarding essential contract terms is requirement to contract
enforcement.).
{¶58} In the case sub judice, the trial court determined that a
meeting of the minds did not occur between the parties. The test
for mental capacity to contract is “whether the person understood
the nature of the transaction and the effects of her or his own
actions and is similar to the test used to determine testamentary
capacity.” Webb v. Anderson Children Trust, 2020-Ohio-4975, ¶ 34
(1st Dist.), citing Giurbino v. Giurbino, 89 Ohio App.3d 646, 658
(8th Dist.1993). In the case at bar, the trial court found: (1) LAWRENCE, 24CA11 30
appellee produced evidence that she had experienced hallucinations
and confusion prior to her admission at appellant’s facility as a
result of taking prescription opioid pain medication, (2) appellee
produced appellant’s medication log that established that appellant
continued to administer opioid pain medication to appellee on May
27, 2021 and May 28, 2021, (3) appellee attested that she did not
remember discussing the arbitration agreement with appellant’s
employee and she did not remember signing the agreement, (4)
appellant’s employee, Amber Rivera, did not have an independent
recollection of her meeting with appellee, (5) while Dr. Apgar
described appellee as alert and oriented during his initial
examination, he did not see appellee until May 29, 2021, the day
after the execution of the arbitration agreement, and (6) appellee
and Ms. Barker’s testimony is “credible, honest, and sincere.”
{¶59} Additionally, as outlined in appellee’s brief Dr. Apgar’s
medical record noted that the hospital administered oxycodone to
appellee, and it caused her “to feel confused of [sic]
hallucinations and experiencing nausea and vomiting.” Appellee’s
daughter, Jodi Barker, testified that appellee had been confused
while in the hospital and “was not herself mentally.” Although
appellant did not administer oxycodone to appellee, Exhibit 5,
“Resident Controlled Substance Record,” documented that appellant
administered opioid pain medication Norco and one and a half doses
of Ambien to appellee on May 27, 2021 and Norco on May 28, 2021, LAWRENCE, 24CA11 31
the day appellant presented the arbitration agreement to appellee
to sign. Moreover, as appellee points out, appellant’s employee,
Amber Rivera, had no memory of appellee, did not recall if appellee
asked questions, did not recall what medications appellee took, did
not know the status of appellee’s cognitive ability, and attested
that the BIM (Brief Interview for Mental Status) score in
appellee’s medical record, as recorded by appellant, is blank.
{¶60} After our review, we conclude that the trial court did
not abuse its discretion when it denied appellant’s motion to stay
this case pending arbitration. The evidence adduced during the
trial court proceeding supports the court’s findings that appellee
did, in fact, lack the capacity to contract. Appellee did not
understand the nature of the transaction and the terms of the
purported agreement. Malone v. Courtyard by Marriott L.P., 74 Ohio
St.3d 440 (1996) (“trial judge is better situated than a reviewing
court to pass on questions of witness credibility and the
surrounding circumstances and atmosphere of the trial.”) Moreover,
this finding dispenses with the need to address the
unconscionability issue.
{¶61} Accordingly, for all of the foregoing reasons, we
overrule appellant's assignment of error and affirm the trial
court's judgment.
JUDGMENT AFFIRMED. LAWRENCE, 24CA11 32
JUDGMENT ENTRY
It is ordered that the judgment be affirmed. Appellee shall recover of appellant the 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 Lawrence County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:_____________________________ Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 22, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.