[Cite as Kolosai v. Azem, 2014-Ohio-4474.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 100890
PAULETTE KOLOSAI, ADMINISTRATOR OF THE ESTATE OF NICHOLAS GIANCOLA
PLAINTIFF-APPELLANT
vs.
HAITHAM MOUAID AZEM, M.D., ET AL. DEFENDANTS-APPELLEES
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-13-806065
BEFORE: Stewart, J., Blackmon, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: October 9, 2014 ATTORNEYS FOR APPELLANT
Mark A. DiCello Robert F. DiCello John W. Burnett The DiCello Law Firm 7556 Mentor Avenue Mentor, OH 44060
Jacques G. Balette Marks, Balette & Giessel, P.C. 10000 Memorial Drive, Suite 760 Houston, TX 77024
ATTORNEYS FOR APPELLEE WALTON MANOR HEALTH CARE
Leslie Moore Jenny Jason P. Ferrante Marshall, Dennehey, Warner, Coleman & Goggin 127 Public Square, Suite 3510 Cleveland, OH 44114
ATTORNEYS FOR DEFENDANT HAITHAM MOUAID AZEM, M.D.
Rita A. Maimbourg Jane F. Warner Tucker Ellis, L.L.P. 950 Main Avenue, Suite 1100 Cleveland, OH 44113 MELODY J. STEWART, J.:
{¶1} Decedent Nicholas Giancola died while committed to the care of Walton
Manor Nursing Home. The administrator of his estate, Paulette Kolosai, brought this
wrongful death and negligence action against Cleveland Health Care Group, Inc.; Saber
Healthcare Group, L.L.C.; Saber Healthcare Holdings, L.L.C.; and Haitham Mouaid
Azem, M.D. (collectively “Walton Manor”), alleging that their care and treatment caused
Giancola’s death. Walton Manor filed a motion to stay the proceedings on behalf of all
defendants but Azem, asking the court to refer the matter to arbitration consistent with a
“Resident and Facility Arbitration Agreement” Giancola entered into with Walton Manor.
The estate opposed the motion, arguing that Giancola’s mother signed the arbitration
agreement for Giancola, but lacked authority to bind Giancola to arbitration. The court
found that the mother had apparent authority to bind Giancola based on the testimony of a
representative from Walton Manor who said that Giancola was present when his mother
signed the agreement. The court thus stayed the action and referred it to arbitration.
The estate’s two assignments of error collectively challenge the court’s order.
{¶2} Arbitration is a matter of contract, and a party cannot be forced to arbitrate
that which the party has not agreed to arbitrate. AT&T Technologies, Inc. v.
Communications Workers of Am., 475 U.S. 643, 648-649, 106 S.Ct. 1415, 89 L.Ed.2d 648
(1986). When the parties dispute whether an agreement to arbitrate exists, that dispute
presents a mixed question of fact and law — the courts determine whether a contract to
arbitrate exists as a matter of fact, Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 73 Ohio St.3d 107, 108, 652 N.E.2d 684 (1995), but once an agreement to arbitrate is
found to exist, the terms of that agreement are construed as a matter of law. Alexander v.
Buckeye Pipe Line Co., 53 Ohio St.2d 241, 374 N.E.2d 146 (1978), paragraph one of the
syllabus.
{¶3} Walton Manor argues that it was Giancola, not the mother, who signed the
arbitration agreement. In support of that argument, it points to admission documents
signed by the mother at the time of her admission to Walton Manor and attached to its
appellate brief as Appendix B. It claims that her signature is significantly different from
the signature on the arbitration agreement at issue in this appeal, thus proving that
Giancola, not the mother, signed the arbitration agreement at the time of his admission.
{¶4} Walton Manor candidly states that the mother’s admission papers were “not
available due to the lack of discovery prior to the Motion to Stay.” Appellee’s Brief at 2.
It maintains, however, that “the new evidence completely clarifies the primary issue
which Ms. Kolosai relies upon on this appeal; the identity of the signature that is on the
Arbitration Agreement” and that “[i]t has never been clearer that Ms. Giancola did not
sign the Arbitration Agreement and the signature does in fact belong to Nicholas
Giancola.” Id. at 3.
{¶5} As Walton Manor concedes, we cannot consider Appendix B because a
reviewing court cannot add matter to the record and decide an appeal based upon that new
matter. State ex rel. Cotton v. Ghee, 84 Ohio St.3d 54, 55-56, 701 N.E.2d 989 (1998).
In addition, we note that Walton Manor has not authenticated the mother’s admission documents in any way. So even if that documentation was properly before us, it has no
evidentiary value from which we could decide the appeal.
{¶6} Our inability to consider the substance of Appendix B in deciding the merits
of this appeal does not, however, mean that we must disregard it entirely — by claiming
that Giancola actually signed the arbitration agreement, Walton Manor has repudiated the
rationale for the court’s decision to refer the matter to arbitration. The court found that
“decedent’s mother had apparent authority to sign the admission paperwork, including the
arbitration agreement, on decedent’s behalf.”
{¶7} Walton Manor states that it did not argue the theory of apparent authority
below. In its motion to stay, Walton Manor stated that Giancola “entered into a Resident
and Facility Arbitration Agreement” with Walton Manor — an assertion that would
suggest Giancola signed the agreement. However, a Walton Manor employee testified at
deposition that she personally witnessed the mother sign the arbitration agreement on
Giancola’s behalf. The estate made the Walton Manor representative’s testimony the
cornerstone of its argument and asserted that the mother lacked authority to bind
Giancola. Walton Manor did not contradict its employee’s deposition testimony.
Furthermore, Walton Manor did not attempt to correct the court’s analysis by pointing out
that Giancola signed the arbitration agreement. We are left with no other choice but to
conclude that Walton Manor allowed error to occur by its acquiescence to the court’s
finding that the mother signed the arbitration agreement on Giancola’s behalf, and that
she had apparent authority to do so. {¶8} What this means is that Walton Manor’s present argument — that Giancola
signed the arbitration agreement — is fundamentally at odds with the court’s decision.
We thus view Walton Manor’s use of Appendix B as a concession that the court’s
judgment rests on an erroneous proposition.
{¶9} Walton Manor hedges its argument by claiming that even if we ignore its new
evidence on appeal, the apparent agency theory was appropriately relied upon by the court
under the circumstances, thus providing sufficient justification for its decision to enforce
the arbitration agreement. We decline to adopt that approach because it urges us to
affirm the court on a ground that Walton Manor insists is erroneous. Although a party
can urge an alternative basis for affirmance on appeal, it cannot do so when that basis is
diametrically opposed to its primary position. Republic Steel Corp. v.
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[Cite as Kolosai v. Azem, 2014-Ohio-4474.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 100890
PAULETTE KOLOSAI, ADMINISTRATOR OF THE ESTATE OF NICHOLAS GIANCOLA
PLAINTIFF-APPELLANT
vs.
HAITHAM MOUAID AZEM, M.D., ET AL. DEFENDANTS-APPELLEES
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-13-806065
BEFORE: Stewart, J., Blackmon, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: October 9, 2014 ATTORNEYS FOR APPELLANT
Mark A. DiCello Robert F. DiCello John W. Burnett The DiCello Law Firm 7556 Mentor Avenue Mentor, OH 44060
Jacques G. Balette Marks, Balette & Giessel, P.C. 10000 Memorial Drive, Suite 760 Houston, TX 77024
ATTORNEYS FOR APPELLEE WALTON MANOR HEALTH CARE
Leslie Moore Jenny Jason P. Ferrante Marshall, Dennehey, Warner, Coleman & Goggin 127 Public Square, Suite 3510 Cleveland, OH 44114
ATTORNEYS FOR DEFENDANT HAITHAM MOUAID AZEM, M.D.
Rita A. Maimbourg Jane F. Warner Tucker Ellis, L.L.P. 950 Main Avenue, Suite 1100 Cleveland, OH 44113 MELODY J. STEWART, J.:
{¶1} Decedent Nicholas Giancola died while committed to the care of Walton
Manor Nursing Home. The administrator of his estate, Paulette Kolosai, brought this
wrongful death and negligence action against Cleveland Health Care Group, Inc.; Saber
Healthcare Group, L.L.C.; Saber Healthcare Holdings, L.L.C.; and Haitham Mouaid
Azem, M.D. (collectively “Walton Manor”), alleging that their care and treatment caused
Giancola’s death. Walton Manor filed a motion to stay the proceedings on behalf of all
defendants but Azem, asking the court to refer the matter to arbitration consistent with a
“Resident and Facility Arbitration Agreement” Giancola entered into with Walton Manor.
The estate opposed the motion, arguing that Giancola’s mother signed the arbitration
agreement for Giancola, but lacked authority to bind Giancola to arbitration. The court
found that the mother had apparent authority to bind Giancola based on the testimony of a
representative from Walton Manor who said that Giancola was present when his mother
signed the agreement. The court thus stayed the action and referred it to arbitration.
The estate’s two assignments of error collectively challenge the court’s order.
{¶2} Arbitration is a matter of contract, and a party cannot be forced to arbitrate
that which the party has not agreed to arbitrate. AT&T Technologies, Inc. v.
Communications Workers of Am., 475 U.S. 643, 648-649, 106 S.Ct. 1415, 89 L.Ed.2d 648
(1986). When the parties dispute whether an agreement to arbitrate exists, that dispute
presents a mixed question of fact and law — the courts determine whether a contract to
arbitrate exists as a matter of fact, Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 73 Ohio St.3d 107, 108, 652 N.E.2d 684 (1995), but once an agreement to arbitrate is
found to exist, the terms of that agreement are construed as a matter of law. Alexander v.
Buckeye Pipe Line Co., 53 Ohio St.2d 241, 374 N.E.2d 146 (1978), paragraph one of the
syllabus.
{¶3} Walton Manor argues that it was Giancola, not the mother, who signed the
arbitration agreement. In support of that argument, it points to admission documents
signed by the mother at the time of her admission to Walton Manor and attached to its
appellate brief as Appendix B. It claims that her signature is significantly different from
the signature on the arbitration agreement at issue in this appeal, thus proving that
Giancola, not the mother, signed the arbitration agreement at the time of his admission.
{¶4} Walton Manor candidly states that the mother’s admission papers were “not
available due to the lack of discovery prior to the Motion to Stay.” Appellee’s Brief at 2.
It maintains, however, that “the new evidence completely clarifies the primary issue
which Ms. Kolosai relies upon on this appeal; the identity of the signature that is on the
Arbitration Agreement” and that “[i]t has never been clearer that Ms. Giancola did not
sign the Arbitration Agreement and the signature does in fact belong to Nicholas
Giancola.” Id. at 3.
{¶5} As Walton Manor concedes, we cannot consider Appendix B because a
reviewing court cannot add matter to the record and decide an appeal based upon that new
matter. State ex rel. Cotton v. Ghee, 84 Ohio St.3d 54, 55-56, 701 N.E.2d 989 (1998).
In addition, we note that Walton Manor has not authenticated the mother’s admission documents in any way. So even if that documentation was properly before us, it has no
evidentiary value from which we could decide the appeal.
{¶6} Our inability to consider the substance of Appendix B in deciding the merits
of this appeal does not, however, mean that we must disregard it entirely — by claiming
that Giancola actually signed the arbitration agreement, Walton Manor has repudiated the
rationale for the court’s decision to refer the matter to arbitration. The court found that
“decedent’s mother had apparent authority to sign the admission paperwork, including the
arbitration agreement, on decedent’s behalf.”
{¶7} Walton Manor states that it did not argue the theory of apparent authority
below. In its motion to stay, Walton Manor stated that Giancola “entered into a Resident
and Facility Arbitration Agreement” with Walton Manor — an assertion that would
suggest Giancola signed the agreement. However, a Walton Manor employee testified at
deposition that she personally witnessed the mother sign the arbitration agreement on
Giancola’s behalf. The estate made the Walton Manor representative’s testimony the
cornerstone of its argument and asserted that the mother lacked authority to bind
Giancola. Walton Manor did not contradict its employee’s deposition testimony.
Furthermore, Walton Manor did not attempt to correct the court’s analysis by pointing out
that Giancola signed the arbitration agreement. We are left with no other choice but to
conclude that Walton Manor allowed error to occur by its acquiescence to the court’s
finding that the mother signed the arbitration agreement on Giancola’s behalf, and that
she had apparent authority to do so. {¶8} What this means is that Walton Manor’s present argument — that Giancola
signed the arbitration agreement — is fundamentally at odds with the court’s decision.
We thus view Walton Manor’s use of Appendix B as a concession that the court’s
judgment rests on an erroneous proposition.
{¶9} Walton Manor hedges its argument by claiming that even if we ignore its new
evidence on appeal, the apparent agency theory was appropriately relied upon by the court
under the circumstances, thus providing sufficient justification for its decision to enforce
the arbitration agreement. We decline to adopt that approach because it urges us to
affirm the court on a ground that Walton Manor insists is erroneous. Although a party
can urge an alternative basis for affirmance on appeal, it cannot do so when that basis is
diametrically opposed to its primary position. Republic Steel Corp. v. Bd. of Rev. of
Cuyahoga Cty., 175 Ohio St. 179, 184-185, 192 N.E.2d 47 (1963). We will not affirm
the court on a basis that an appellee concedes is factually wrong.
{¶10} With Walton Manor being deemed to have withdrawn any argument that the
court did not err by finding that the mother had apparent authority to bind Giancola to
arbitrate any disputes arising from his care and treatment as a patient at the nursing home,
we sustain the first assignment of error. The second assignment of error is moot.
{¶11} This cause is reversed and remanded to the trial court for further
proceedings consistent with this opinion.
It is ordered that appellant recover of appellee her 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 Cuyahoga
County Court of Common Pleas 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.
MELODY J. STEWART, JUDGE
PATRICIA ANN BLACKMON, P.J., and TIM McCORMACK, J., CONCUR