Yormick v. King David Post Acute Nursing & Rehab., L.L.C.

• Court: Ohio Court of Appeals
• Decided: May 14, 2026
• Docket: 115662
• Status: Published

Opinion

[Cite as Yormick v. King David Post Acute Nursing & Rehab., L.L.C., 2026-Ohio-1776.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

ILONA YORMICK, :

Plaintiff-Appellee, : No. 115662 v. :

KING DAVID POST ACUTE NURSING : & REHABILITATION LLC, ET AL., : Defendants-Appellants.

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: May 14, 2026

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-24-108123

Appearances:

Haber LLP, Richard C. Haber, Natalie D. Davis, and Lindsey K. Self, for appellee.

Frantz Ward LLP, Ryan T. Smith, Angela D. Lydon, and Katherine E. McLaughlin, for appellant King David Post Acute Nursing & Rehabilitation LLC.

SEAN C. GALLAGHER, J.:

Defendant-appellant King David Post Acute Nursing &

Rehabilitation, LLC (“King David”), appeals from the trial court’s decision denying its motion to stay pending arbitration. Upon review, we affirm the trial court’s

ruling.

On December 3, 2024, plaintiff-appellee Ilona Yormick filed a

complaint against King David, Outcome Healthcare, LLC (“Outcome”), Diane

Liliestedt, Tara Miller, and unnamed defendants.1 Yormick alleged that King David

and Outcome “are a single employer or integrated enterprises” that employed her.

She raised claims of age discrimination and retaliation arising from her employment

and the termination of her employment, which occurred on July 2, 2024, as alleged

in her complaint.

On February 13, 2025, King David, Liliestedt, and Miller filed an

answer to the complaint. Outcome filed a motion to dismiss pursuant to Civ.R.

12(B)(2) for lack of personal jurisdiction, which was opposed by Yormick. Outcome

submitted as an exhibit to its reply brief an affidavit of H. Jason Black, the nursing

home administrator for King David, who submitted “a true and accurate copy of the

documentation that [Yormick] executed in connection with her onboarding for King

David,” which documents included an arbitration agreement. After the trial court

denied Outcome’s motion to dismiss, Outcome filed an answer to the complaint.

In the meantime, the trial court held a case-management conference

and scheduled discovery and dispositive-motion deadlines, as well as pretrial and

trial dates. Between March and July 2025, Yormick propounded her first set of

1 The unnamed defendants were designated as John/Jane Doe 1-5 and ABC Corporation 1-2. discovery requests to the defendants, supplemental requests were sent, email

exchanges occurred between counsel regarding discovery, extensions were

requested by the defendants, King David and Outcome collectively submitted

responses, Yormick propounded a second set of discovery requests to the

defendants, and deposition dates were discussed.

King David, Outcome, Liliestedt, and Miller were all represented by

the same counsel in the case. There was a substitution of counsel that occurred for

these defendants, as well as the appearance of additional counsel for them. On

July 21, 2025, which was more than a year after Yormick was terminated from her

employment and seven and a half months after Yormick’s complaint was filed, King

David filed a motion to stay pending arbitration and also filed a motion to stay

discovery pending a ruling on the motion to stay or alternatively to extend the

discovery deadline. Yormick opposed those motions. A pretrial was held on

August 12, 2025, at which all parties appeared through counsel.

On September 25, 2025, the trial court issued a detailed journal entry

in which it denied King David’s motion to stay pending arbitration, denied the

motion to stay discovery as moot, and granted an extension of the discovery

deadline. In denying King David’s request to stay the matter pending arbitration,

the trial court ruled that the request “is untimely pursuant to the terms of the

arbitration agreement itself.” The trial court referenced Section E of the arbitration

agreement, which sets forth a “Time Limitation for Claims Arbitration,” and

determined that King David’s request to stay the matter pending arbitration was “clearly barred by the one-year limitation contained in the agreement.” The trial

court also effectively determined waiver occurred and set forth the factual basis for

this determination in its decision. The trial court noted relevant dates in the matter,

recognized King David’s participation in the case, observed that the arbitration

agreement was submitted with the affidavit of the administrator for King David,

considered the delay in asserting a right to arbitration, and found from the totality

of the circumstances that “the defendants have acted inconsistently with their right

to arbitration.”

King David timely appealed. King David claims that (1) the trial court

erred by interpreting and relying on the arbitration agreement’s one-year

limitations clause, and (2) the trial court abused its discretion by concluding King

David waived its right to arbitration.

When reviewing the trial court’s decision granting or denying a stay

of proceedings pending arbitration pursuant to R.C. 2711.02(B), our standard of

review varies based on the nature of the issues raised. Crosscut Capital, LLC v.

DeWitt, 2021-Ohio-1827, ¶ 14 (10th Dist.). We review issues involving contractual

interpretation or statutory construction de novo. Id. Generally, we apply an abuse-

of-discretion standard to the waiver issue because of the fact-driven nature of the

inquiry. See id. at ¶ 15; Gertson v. Parma VTA, L.L.C., 2020-Ohio-3455, ¶ 14 (8th

Dist.), citing Vining v. Logan Clutch Corp., 2020-Ohio-675, ¶ 10 (8th Dist.).

Insofar as King David presents arguments that were not raised in the

trial court, we will not address issues raised for the first time on appeal. See Murfey v. Muth, 2025-Ohio-1184, ¶ 10 (8th Dist.), citing State v. Wintermeyer, 2019-Ohio-

5156, ¶ 10. Further, we need not and will not address issues that were not addressed

by the trial court in the first instance. See Leaffilter N., LLC v. Dunphy, 2025-Ohio-

3260, ¶ 14 (9th Dist.).

Under its first assignment of error, King David argues that the trial

court erred as a matter of law by deciding the timeliness of its arbitration demand

under the arbitration agreement’s time-limitation clause. King David asserts that

the timeliness of an arbitration demand is a question of procedural arbitrability

reserved to the arbitrator once the court determines that the parties agreed to

arbitrate the dispute. The Supreme Court of Ohio, in a case where a legitimate

dispute existed over whether an arbitration demand was timely, recognized the

general observation that “matters regarding procedural questions growing out of the

parties’ dispute and bearing on its final disposition are best left to the determination

of the arbitrator.” Council of Smaller Ents. v. Gates, McDonald & Co., 80 Ohio St.3d

661, 669 (1998), citing John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557

(1964). Although Yormick claims the cases cited by King David in support of its

argument are distinguishable and maintains that the agreement herein is clear and

that no dispute exists, we do not find either party has provided authority directly on

point. We recognize that some courts have found the issue of whether a party

seeking arbitration of a claim has failed to comply with specific time limits contained

in the arbitration agreement is presumptively a matter for the arbitrator, rather than

the court, to decide. See Alliance Health & Life Ins. Co. v. Am. Natl. Ins. Co., 2022 U.S. App. LEXIS 20300, *5-6 (6th Cir. July 22, 2022). Though there may be

instances where a court may pass upon the time-limitation question, we are not

convinced whether this is such a case. Regardless, we need not definitively

determine the time-limit issue because our review of the trial court’s determination

that King David waived its asserted right to arbitration is dispositive of this appeal.

Pursuant to R.C. 2711.01(A), a provision in a written contract for

arbitration of a controversy arising out of the contract “shall be valid, irrevocable,

and enforceable, except upon grounds that exist at law or in equity for the revocation

of any contract.” When an issue is referable to arbitration under the contract, a party

may seek a stay pending arbitration under R.C. 2711.02(B), which states as follows:

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.

(Emphasis added.)

“The right to arbitration may be waived just like any other contractual

right.” (Cleaned up.) Blue Technologies Smart Solutions, L.L.C. v. Ohio

Collaborative Learning Solutions, Inc., 2020-Ohio-806, ¶ 13 (8th Dist.). “‘To

establish waiver, the party seeking waiver must demonstrate (1) that the party knew

of its right to assert an argument or defense and (2) that the totality of the

circumstances establish that the party acted inconsistently with that right.’” Id., quoting Gembarski v. PartsSource, Inc., 2019-Ohio-3231, ¶ 25. “A party may

explicitly waive its right to arbitration or may implicitly waive its right by failing to

assert it or by participating in litigation to such an extent that its actions are

‘completely inconsistent with any reliance’ on this right, resulting in prejudice to the

opposing party.” Bass Energy Inc. v. Highland Hts., 2010-Ohio-2102, ¶ 33 (8th

Dist.), quoting Gen. Star Natl. Ins. Co. v. Administratia Asigurarilor de Stat, 289

F.3d 434, 438 (6th Cir. 2002). Ohio has a strong public policy favoring arbitration,

and a party’s waiver of a right to arbitration will not lightly be inferred. See Gertson,

2020-Ohio-3455, at ¶ 16.

This court has outlined several factors that may be considered in

determining whether the totality of the circumstances supports a finding of waiver,

including the following:

(1) whether the party seeking arbitration invoked the jurisdiction of the trial court by filing a complaint, counterclaim, or third-party complaint without asking for a stay of proceedings; (2) the delay, if any, by the party seeking arbitration in requesting a stay of proceedings or an order compelling arbitration; (3) the extent to which the party seeking arbitration participated in the litigation, including the status of discovery, dispositive motions, and the trial date; and (4) any prejudice to the nonmoving party due to the moving party’s prior inconsistent actions.

Id. at ¶ 17, citing Academic Support Servs., L.L.C. v. Cleveland Metro. School Dist.,

2013-Ohio-1458, ¶ 8. This is not a “four-factor test” as suggested by King David.

“When determining waiver, the ‘essential question is whether, based on the totality

of the circumstances, the party seeking arbitration has acted inconsistently with the

right to arbitrate.’” Debois, Inc. v. Guy, 2020-Ohio-4989, ¶ 24 (8th Dist.), quoting Phillips v. Lee Homes, 1994 Ohio App. LEXIS 596, *8 (8th Dist.). “Waiver of the

right to arbitration depends on the facts of each particular case[,]” and the trial court

is in the best position to assess whether a party acted inconsistently with its right to

arbitrate. Philips at *10-11. Further, no one factor controls, and trial courts have

discretion to weigh the factors considered in determining whether the totality of the

circumstances support a finding that the party acted inconsistently with the right to

arbitrate. See Murfey, 2025-Ohio-1184, at ¶ 16 (8th Dist.).

An “abuse of discretion” means that the trial court’s ruling “is

unreasonable, arbitrary, or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d

217, 219 (1983). As this court has previously recognized, the abuse-of-discretion

standard “‘is a high standard to satisfy and we cannot simply substitute our

judgment for that of the trial court.’” Adkins v. Women’s Welsh Club of Am. Found.,

2021-Ohio-1084, ¶ 16 (8th Dist.), quoting Beegle v. S. Pointe Hosp., 2011-Ohio-

3591, ¶ 15 (8th Dist.). Furthermore, prior decisions based on claims of waiver do

not create a standard demanding a particular outcome but instead demonstrate a

range of decisions based on the weighing of factors by the trial court. See Murfey at

¶ 19.

In this case, the record shows that Yormick demonstrated that King

David knew of its right to arbitration. As argued by Yormick and found by the trial

court, on March 13, 2025, Outcome filed with a reply brief the affidavit of H. Jason

Black, the administrator for King David, which affidavit was submitted with

onboarding documents that Yormick executed in connection with her employment, including the arbitration agreement at issue. This evinces that the arbitration

agreement was in the possession of King David. As this court has recognized, “‘[A]

contracting party is presumed to know the reasonable import of the contents of a

signed agreement, including the existence and scope of an arbitration clause.’” Blue

Technologies, 2020-Ohio-806, ¶ 16 (8th Dist.), quoting Garcia v. Wayne Homes,

2002-Ohio-1884, ¶ 64 (2d Dist.).

Also, upon considering the totality of the circumstances presented,

the trial court found “the defendants have acted inconsistent with their right to

arbitration.” King David argued in its motion that the employment-related claims

raised by Yormick fell within the scope of the arbitration and that neither King David

nor its codefendants had filed a claim against the plaintiff, engaged in any motion

practice directed at the merits of the suit, or sought discovery from Yormick. King

David further asserted that only a few months had passed since the action was

brought and its answer was filed, that no trial-related deadlines were imminent, and

that Yormick would not be prejudiced. Further, King David asserted that there was

a substitution of counsel for the defendants, and their new counsel promptly filed

the request to stay pending arbitration upon learning of the applicability of the

arbitration agreement. However, Yormick showed there was a delay of almost a year

from the time she provided notice of her intent to take legal action until King David

asserted a right to arbitrate. Yormick argued that in the seven and a half months

since the action was filed, the defendants had consistently and actively engaged in

the litigation process, including filing answers, the filing of the motion to dismiss by Outcome along with the affidavit by King David’s administrator and attached

onboarding documents, participating in the case-management conference, and

engaging in the discovery process through correspondence and providing discovery

responses, all without asserting any right to arbitration. Additionally, Yormick

asserted that King David was in possession of the arbitration agreement and that

Outcome and King David were represented by the same counsel in the matter. Other

arguments were made by the parties.

In considering the totality of the circumstances presented, the trial

court recognized that Yormick was terminated on July 2, 2024, the defendants were

notified on July 29, 2024, that Yormick had retained counsel and intended to take

legal action, that Yormick filed a charge of discrimination with the Ohio Civil Rights

Commission on August 9, 2024, that Yormick filed the instant lawsuit on

December 3, 2024, and that the defendants participated in the litigation since that

time without seeking to enforce the arbitration agreement.2 Although the trial court

noted the filing of the motion to dismiss for lack of personal jurisdiction by Outcome,

King David’s active participation in the litigation is otherwise supported by the

record. The trial court further observed that a copy of the arbitration agreement was

submitted with the affidavit of King David’s administrator on March 13, 2025, and

no right to arbitration was asserted until the filing of King David’s motion to stay.

2 “Although it is not necessary to affirmatively plead arbitration as a defense in

order to avoid waiver, the failure to plead such right may be considered as a factor under the totality of the circumstances.” Crosscut Capital, LLC, 2021-Ohio-1827, at ¶ 23 (10th Dist.). Though the trial court misstated that it had been “almost two years” since the

defendants were notified of the dispute before the request to stay pending

arbitration was filed, the trial court was aware of the actual delay that occurred and

reiterated that it was not until July 21, 2025, that King David sought to assert its

right to arbitration. Also, contrary to King David’s argument, the delay was not the

sole basis for the trial court’s decision. Further, the trial court did not find the

defendants’ substitution of counsel in the matter excused the delay in asserting its

rights under the arbitration clause. Though a substitution of counsel occurred, as

the trial court aptly recognized in distinguishing a case cited by King David, “here,

at no point were the defendants, commercial entities and their agents or employees,

without counsel” in the action. The trial court’s determination that the defendants

acted inconsistently with their right to arbitration was not arbitrary, unreasonable,

or unconscionable.

Upon our review, we find that there was no abuse of discretion by the

trial court regarding the waiver issue. We are not persuaded by any other argument

raised by King David. King David’s second assignment of error is overruled.

Finally, we are cognizant that the trial court’s denial of King David’s

motion to stay pending arbitration was made upon determinations of untimeliness

and waiver and that the trial court did not make any determination regarding

Yormick’s alternative argument asserting unconscionability of the arbitration agreement. We shall not determine the issue in the first instance, and we need not

consider the issue to affirm the trial court’s decision.3

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

______________________ SEAN C. GALLAGHER, JUDGE

EMANUELLA D. GROVES, P.J., CONCURS; MARY J. BOYLE, J., CONCURS (WITH SEPARATE OPINION)

MARY J. BOYLE, J., CONCURRING:

I concur with the majority’s decision affirming the trial court’s denial

of King David’s motion to stay pending arbitration. I further concur with the

majority’s decision to decline to address issues that were not addressed by the trial

court in the first instance and to not determine the time-limit issue because King

David’s waiver of its right to arbitration is dispositive of this appeal. I write

3 We note also that, arguably, because King David did not raise an assignment of

error regarding the unconscionability issue and no appeal was filed by Yormick on the issue, it has been forfeited for review. separately, however, to distinguish Morris v. Morris, 2010-Ohio-4750 (10th Dist.),

a case that King David contends is directly on point.

According to King David, the Tenth District Court of Appeals in

Morris found that non-merits jurisdictional filings, such as a motion to dismiss for

lack of personal jurisdiction, do not constitute waiver of the right to arbitrate

because this type of motion is a procedural tool testing the sufficiency of a pleading.

King David contends that the trial court’s waiver finding, in the matter before us,

relied in substantial part on Outcome’s Civ.R. 12(B)(2) personal jurisdiction motion,

not by King David, the party seeking arbitration, and this motion is the type of non-

merits motion that the Morris Court held is consistent with preserving arbitration.

I disagree and find Morris distinguishable.

In Morris, the analysis focused on whether affirmative defenses are

waived if not raised in the initial pleading or an amended pleading. One of the

appellants in Morris argued that the trial court erred in refusing to allow him to

assert the new affirmative defense of arbitration in response to the appellees’

amended pleadings. The trial court concluded that the appellant waived the

defense because he did not raise it in his initial responsive pleading. The Morris

Court reversed the trial court’s judgment and remanded the matter for the court to

enter a stay of proceedings pending arbitration. The Morris Court found that by

filing amended pleadings, the appellees opened the door for the appellant to raise

new affirmative defenses in his responsive pleadings. Id. at ¶ 32. The court further

found that the right to arbitrate, as protected by R.C. 2711.02, is not a Civ.R. 8(C) affirmative defense and, thus, the appellant’s failure to include it in his initial

responsive pleading did not result in waiver. Id. Ultimately, the Morris Court

concluded that a request to file a cross-claim was not inconsistent with the

contractual right to arbitrate, because the cross-claim was never actually filed and

because the proposed cross-claim would not have been subject to arbitration. Id.

at ¶ 30-32. The motion to stay arbitration was filed within the stipulated time to

file a responsive pleading to appellees’ amended counterclaims and cross-claims

and after a previous non-merits motion to dismiss was denied. Id.

Whereas in this case, the question is not solely whether King David

waived the defense of the right to arbitrate by not raising it in its original answer.

The question here is whether, during the course of litigation, King David acted

inconsistently with its right to arbitrate. While resolving that question includes

consideration of whether King David omitted the arbitration defense from its

original answer, the absence of the defense merely contributes to the overall

analysis. Here, there are multiple factors supporting the conclusion that King

David acted inconsistently with its right to arbitrate, including King David’s

participation in the litigation since Yormick filed her complaint and the attachment

of the arbitration agreement with the affidavit of King David’s nursing home

administrator to Outcome’s March 2025 reply in support of its motion to dismiss.

Additionally, King David did not move to assert its right to arbitrate until seven

and a half months after Yormick’s complaint was filed. Together, all these factors

distinguish this case from Morris.