[Cite as Kick v. Smithville W. Care Ctr., 2013-Ohio-2034.]


STATE OF OHIO                     )                          IN THE COURT OF APPEALS
                                  )ss:                       NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

KATHRYN KICK                                                 C.A. No.   12CA0032

        Appellant

        v.                                                   APPEAL FROM JUDGMENT
                                                             ENTERED IN THE
SMITHVILLE WESTERN CARE                                      COURT OF COMMON PLEAS
CENTER, et al.                                               COUNTY OF WAYNE, OHIO
                                                             CASE No.   12-CV-0124
        Appellees

                                 DECISION AND JOURNAL ENTRY

Dated: May 20, 2013



        HENSAL, Judge.

        {¶1}     Kathryn Kick, personal representative of the estate of Alice Ritzi, appeals a

judgment of the Wayne County Common Pleas Court that granted Smithville Western Care

Center’s (hereinafter “the care center” or “the center”) motion to stay proceedings and

compel/enforce arbitration. For the following reasons, this Court reverses.

                                                       I.

        {¶2}     According to Ms. Kick, Ms. Ritzi was a resident of the care center when one or

more of its employees dropped her while they were attempting to transfer her with a Hoyer lift.

The fall broke Ms. Ritzi’s hip, which led to her death a couple of weeks later. As Ms. Ritzi’s

personal representative, Ms. Kick filed a complaint against the care center, Smithville Western

Care, Inc., CMS & Co. Management Services, Inc., Sprenger Retirement Centers, Bluesky

Healthcare, Inc., Sprenger Enterprises, Inc., Grace Management Services, Inc., Infinity Health
                                                 2


Care, LLC, Therapy Partners, Inc., Wallace Management Corp., and numerous John Does,

pursuing both survivorship and wrongful death claims.

       {¶3}    Before filing its answer, the care center and several other, allegedly related,

defendants filed a motion to stay the proceedings and enforce an arbitration provision that was in

Ms. Ritzi’s residency agreement. According to the care center, at the time Ms. Ritzi was

admitted, Ms. Kick signed an agreement as Ms. Ritzi’s personal representative, in which she

agreed to resolve any disputes that she or Ms. Ritzi might have against the center or its affiliates

through binding arbitration.    Ms. Kick opposed the care center’s motion, arguing that the

arbitration provision did not apply to the estate’s wrongful death claims. She also argued that the

arbitration provision was not binding on Ms. Ritzi’s beneficiaries, that the residency agreement

was not properly authorized, that the only defendant who was a party to the agreement was

Smithville Western, Inc., that the arbitration provision was void under Revised Code Section

3721.13, that the arbitration provision was procedurally and substantively unconscionable, and

that the residency agreement violated Section 1396r of Title 42 of the United States Code.

       {¶4}    Following a reply brief by the care center and a sur reply brief by Ms. Kick, the

trial court granted the motion to stay. It determined that Ms. Kick had authority to enter into the

arbitration agreement on behalf of Ms. Ritzi and that the arbitration provision was not

procedurally or substantively unconscionable. Ms. Kick has appealed, assigning four errors.

                                                II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN GRANTING THE SPRENGER
       DEFENDANTS’ MOTION TO STAY PROCEEDINGS AND COMPEL
       ARBITRATION BECAUSE THE HEALTH CARE CENTER RESIDENCY
       AGREEMENT AT ISSUE, BY ITS OWN TERMS, TERMINATED UPON
       ALICE RITZI’S DEATH. THEREFORE, THE TRIAL COURT SHOULD NOT
                                                 3


       HAVE GIVEN ANY EFFECT TO THE                          ARBITRATION        CLAUSE
       CONTAINED WITHIN THAT AGREEMENT.

                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN GRANTING THE SPRENGER
       DEFENDANTS’ MOTION TO STAY PROCEEDINGS AND COMPEL
       ARBITRATION AND STAYING ALL PROCEEDINGS BECAUSE THE
       HEALTH CARE RESIDENCY AGREEMENT AND ITS ARBITRATION
       CLAUSE DO NOT APPLY TO PLAINTIFF’S WRONGFUL DEATH CLAIMS.
       THE TRIAL COURT SHOULD NOT HAVE STAYED PROCEEDINGS ON
       PLAINTIFF’S WRONGFUL DEATH CLAIMS AGAINST ANY OF THE
       DEFENDANTS.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED IN GRANTING THE SPRENGER
       DEFENDANTS’ MOTION TO STAY PROCEEDINGS AND COMPEL
       ARBITRATION AND STAYING ALL PROCEEDINGS BECAUSE EACH
       DEFENDANT WAS NOT A PARTY TO THE HEALTH CARE CENTER
       RESIDENCY AGREEMENT. THE TRIAL COURT SHOULD NOT HAVE
       STAYED PROCEEDINGS ON PLAINTIFF’S SURVIVAL CLAIMS AGAINST
       THE DEFENDANTS WHO WERE NOT PARTIES TO THE AGREEMENT.

       {¶5}    In her first assignment of error, Ms. Kick argues that, because the residency

agreement provided that it terminated “upon the death of the Resident,” any claims that she filed

after Ms. Ritzi’s death were not subject to the arbitration provision. In her second assignment of

error, Ms. Kick argues that, under Ohio law, a survival action for a decedent’s own injuries is a

separate cause of action from a wrongful death action brought by the decedent’s heirs.

Accordingly, she maintains that, just because Ms. Ritzi may have agreed to arbitrate her own

claims against the care center, it does not mean that her heirs’ wrongful death claims are also

subject to arbitration. In her third assignment of error, Ms. Kick argues that, since Smithville

Western, Inc. was the only defendant that was a party to the residency agreement, it is the only

one that can seek to enforce the arbitration provision.
                                                4


       {¶6}    Although Ms. Kick raised each of the above arguments before the trial court, the

court did not address any of them in its decision. This Court will not consider the issues in the

first instance. See Ward v. Ohio State Waterproofing, 9th Dist. No. 26203, 2012-Ohio-4432, ¶

10. We, therefore, conclude that this matter must be remanded to the trial court so that it may

consider the arguments Ms. Kick made regarding whether the arbitration provision survived Ms.

Ritzi’s death, whether the arbitration provision does not apply to Ms. Ritzi’s heirs’ wrongful

death claims, and whether the defendants who were not a party to the residency agreement can

enforce the arbitration provision. Id. Ms. Kick’s first, second and third assignments of error are

sustained.

                                    ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED IN GRANTING THE SPRENGER
       DEFENDANTS’ MOTION TO STAY PROCEEDINGS AND COMPEL
       ARBITRATION BECAUSE THE ARBITRATION CLAUSE CONTAINED IN
       THE HEALTH CARE CENTER RESIDENCY AGREEMENT AT ISSUE IS
       PROCEDURALLY AND SUBSTANTIVELY UNCONSCIONABLE.

       {¶7}    In her fourth assignment of error, Ms. Kick argues that the trial court incorrectly

determined that the arbitration provision is not procedurally and substantively unconscionable.

We note that, in light of our resolution of the other assignments of error, this issue may become

moot if the trial court resolves those issues in Ms. Kick’s favor. Accordingly, we decline to

address Ms. Kick’s unconscionability arguments because they are premature at this time. See

Johnsen v. Johnsen, 9th Dist. No. 16023, 1993 WL 392077, *2 (Oct. 6, 1993). Ms. Kick’s fourth

assignment of error is overruled.

                                               III.

       {¶8}    The trial court did not consider all of the arguments that Ms. Kick made in

opposition to the care center’s motion to stay proceedings and compel/enforce arbitration. The
                                                 5


judgment of the Wayne County Common Pleas Court is reversed, and this matter is remanded for

further proceedings consistent with this decision.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellees.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT


BELFANCE, P. J.
CARR, J.
CONCUR.

APPEARANCES:

BLAKE A. DICKSON and MARK D. TOLLES, Attorneys at Law, for Appellant.

LESLIE M. JENNY, Attorney at Law, for Appellee.
