[Cite as Patrick v. Dixie Imports, Inc., 2017-Ohio-9093.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




ASHLEY PATRICK,                                             :

        Plaintiff-Appellee,                                 :   CASE NO. CA2017-05-063

                                                            :        OPINION
    - vs -                                                           12/18/2017
                                                            :

DIXIE IMPORTS, INC.,                                        :

        Defendant-Appellant.                                :



          CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                            Case No. CV2016-10-2255



Elizabeth A. Wells, Ronald L. Burdge, Scarlett M. Steuart, 8250 Washington Village Drive,
Dayton, Ohio 45458, for plaintiff-appellee

Richard L. Hurchanik, Timothy R. Evans, 110 North Third Street, Hamilton, Ohio 45011, for
defendant-appellant



        HENDRICKSON, P.J.

        {¶ 1} Defendant-appellant, Dixie Imports, Inc., appeals from a decision of the Butler

County Court of Common Pleas denying its motion to stay proceedings pending arbitration in

a suit brought by plaintiff-appellee, Ashley Patrick. For the reasons set forth below, we affirm

the decision of the trial court.

        {¶ 2} On October 17, 2016, Patrick filed a complaint against Dixie Imports, alleging
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violations of the Ohio Consumer Sales Practices Act, violation of the Motor Vehicle Sales

Rule, and violations of the FTC Used Car Window Sticker Rule. According to the allegations

set forth in Patrick's complaint, Patrick entered into a contract with Dixie Imports on March

16, 2016, to purchase a used 2008 BMW X5 motor vehicle. At the time of purchase, Patrick

signed a Buyer's Guide, a Retail Purchase Agreement (Buyers Order), and Retail Installment

Sale Contract.

       {¶ 3} The Retail Purchase Agreement set forth that the vehicle was being sold "as-is"

and that Dixie Imports "disclaim[ed] all warranties, express and implied, including any implied

warranties of merchantability and fitness for a particular purpose." The Retail Purchase

Agreement also contained a box that provided "IF MARKED, PLEASE SEE ATTACHED

ARBITRATION AGREEMENT – FEX-f44 Formerly 818199-14462." This box was not

marked. Finally, the Retail Purchase Agreement contained an integration clause, which

provided:

              The front and back of this Agreement and any documents which
              are part of this transaction or incorporated herein comprise the
              entire agreement affecting this Retail Purchase Agreement
              (Buyers Order) and no other agreement or understanding of any
              nature concerning the same has been made or entered into, or
              will be recognized. I have read the terms and conditions of this
              Agreement, including the terms and conditions that appear on
              the reverse side, and agree to them as if they were printed above
              my signature. I further acknowledge receipt of a copy of this
              Agreement.

The Retail Purchase Agreement was signed by Patrick and an authorized representative of

Dixie Imports.

       {¶ 4} Patrick also signed a five-page Retail Installment Sales Contract, which

provided that Patrick was purchasing the motor vehicle on credit. The Retail Installment

Sales Contract included an arbitration clause on page five of the agreement, which stated:

              Any claim or dispute, whether in contract, tort, statute or
              otherwise (including the interpretation and scope of this

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              Arbitration Clause, and the arbitrability of the claim or dispute),
              between you and us or our employees, agents, successors or
              assigns, which arises out of or relates to your credit application,
              purchase or condition of this vehicle, this contract or any
              resulting transaction or relationship (including any such
              relationship with third parties who do not sign this contract) shall,
              at your or our election, be resolved by neutral, binding arbitration
              and not by a court action.

The Retail Installment Contract also contained a provision informing Patrick that Dixie

Imports, as the seller, "may assign this contract and retain its right to receive a part of the

Finance Charge" associated with the financing of the vehicle. The contract then provided

that Dixie Imports assigned its interest in the contract to G.O.L.F. "without or with limited

recourse."

       {¶ 5} Patrick initialed all five pages of the Retail Installment Sales Contract and

signed the contract on page four, underneath the following provision:

              You agree to the terms of this contract. You confirm that before
              you signed this contract, we gave it to you, and you were free to
              take it and review it. You acknowledge that you have read all
              pages of this contract, including the arbitration clause on page 5,
              before signing below. You confirm that you received a
              completely filled-in copy when you signed it.

       {¶ 6} According to the allegations set forth in Patrick's complaint, after taking

possession of the vehicle, Patrick discovered an undisclosed open safety recall existed for

the vehicle and that the vehicle had irreparable internal engine damage. Patrick alleged the

internal engine damage had been caused by Dixie Imports when it changed the vehicle's oil

and filter in a shoddy and unworkmanlike manner.

       {¶ 7} Patrick's complaint was served on Dixie Imports by certified mail on October

24, 2016. On December 9, 2016, counsel for Dixie Imports filed an appearance and a

motion for a more definite statement in accordance with Civ.R. 12(E). The motion was

granted in part and denied in part by the trial court on December 21, 2016. Patrick was

instructed to attach all of the contract documents identified in her allegations to her
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complaint, but the court denied Dixie Imports' request to have Patrick specifically identify the

administrative code provisions under which her claims fell. The court stated that Dixie

Imports could "avail itself of available discovery rules to advance its defense" against the

lawsuit.

       {¶ 8} On January 9, 2017, Patrick filed her amended complaint. Thereafter, on

January 13, 2017, Dixie Imports filed a notice to depose Patrick. On January 18, 2017, Dixie

Imports filed a second memorandum in support of its motion for a more definite statement,

again arguing that the administrative code provisions should be identified in Patrick's

complaint, as that was the "better practice."

       {¶ 9} On February 16, 2017, Dixie Imports attended and participated in a status

conference before the court. A few days later, on February 21, 2017, Dixie Imports filed its

answer with a jury demand. Dixie Imports' answer denied the allegations set forth in the

complaint, and asserted as an affirmative defense that Patrick's claims were subject to an

arbitration agreement. On February 27, 2017, Dixie Imports simultaneously filed another

notice to depose Patrick and a "Motion to Stay Case Until Arbitration [is] Completed." On

March 1, 2017, subsequent to filing its motion to stay proceedings pending arbitration, Dixie

Imports filed an amended notice to depose Patrick.

       {¶ 10} On May 1, 2017, the trial court denied Dixie Imports' motion to stay

proceedings pending arbitration of the dispute. The court examined the language set forth in

the Retail Purchase Agreement and the Retail Installment Contract and determined that the

Retail Purchase Agreement did not provide for arbitration, as the arbitration box was not

marked. The court further determined that Patrick's initials on the arbitration-clause page of

the Retail Installment Contract did not necessarily indicate Patrick's assent to arbitration.

Rather, the court held, it may have only signified that Patrick had read that page.

Alternatively, the court determined that even if Patrick's initials on the arbitration-clause page
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of the Retail Installment Contract were construed as an agreement to arbitrate, an ambiguity

existed as there was no indication in the Retail Purchase Agreement that the parties

intended to agree to arbitration, given the unmarked box. The court concluded that this

ambiguity had to be construed in Patrick's favor, as Dixie Imports had drafted the

documents, and it held that there was no agreement to arbitrate.

       {¶ 11} The trial court further held that even if there was a contractual agreement to

arbitrate the dispute, Dixie Imports had waived its right to arbitration based on the four-month

delay that occurred between Patrick's filing of the complaint and Dixie Imports' demand for

arbitration. The trial court noted that during this four-month delay, Dixie Imports "acted

inconsistently with * * * the right to arbitrate" by filing responsive pleadings, seeking

discovery, and otherwise participating in the litigation.

       {¶ 12} Dixie Imports timely appealed the trial court's denial of its motion to stay

proceedings pending arbitration, raising the following as its sole assignment of error:

       {¶ 13} THE COURT ERRED IN FAILING TO GRANT THE DEFENDANT'S MOTION

TO STAY THE CASE PENDING THE COMPLETION OF ARBITRATION.

       {¶ 14} In its assignment of error, Dixie Imports contends the trial court erred in denying

its motion to stay the case pending arbitration as (1) the Retail Installment Sales Contract

was unambiguous and called for arbitration, (2) it did not waive its right to arbitrate, and (3)

any question of arbitrability should have been decided by an arbitrator, not the trial court.

                                          Ambiguity

       {¶ 15} Ohio has a strong public policy favoring arbitration, as expressed in the Ohio

Arbitration Act codified in R.C. Chapter 2711. Taylor v. Ernst & Young, L.L.P., 130 Ohio

St.3d 411, 2011-Ohio-5262, ¶ 18. Pursuant to R.C. 2711.02(B),

              [i]f 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
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              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.) "An arbitration clause in a contract is generally viewed as an expression

that the parties agree to arbitrate disagreements within the scope of the arbitration clause,

and, with limited exceptions, an arbitration clause is to be upheld just as any other provision

in a contract should be respected." Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 471

(1998).

       {¶ 16} The primary role of the court in reviewing a contract is to ascertain and give

effect to the intent of the parties. Hamilton Ins. Services. v. Nationwide Ins. Co., 86 Ohio

St.3d 270, 273 (1999). "A contract that is, by its terms, clear and unambiguous requires no

real interpretation or construction and will be given the effect called for by the plain language

of the contract." Cooper v. Chateau Estate Homes, 12th Dist. Warren No. CA2010-07-061,

2010-Ohio-5186, ¶ 12. A contract is ambiguous, however, if its provisions are susceptible to

two or more reasonable interpretations. Id. Whether a contract's terms are clear or

ambiguous is a question of law for the court. Id., citing Westfield Ins. Co. v. Huls Am., 128

Ohio App.3d 270, 291 (10th Dist.1998).           Thus, when reviewing issues of contract

interpretation, an appellate court applies a de novo standard of review. Merritt v. Anderson,

12th Dist. Fayette No. CA2008-04-010, 2009-Ohio-1730, ¶ 18.

       {¶ 17} Contrary to the trial court's determination, we conclude that the Retail

Installment Contract signed by Patrick and Dixie Imports set forth an unambiguous

agreement to arbitrate "[a]ny claim or dispute, whether in contract, tort, statute or otherwise *

* * which arises out of or relates to your * * * purchase or condition of this vehicle, this

contract or any resulting transaction or relationship." (Emphasis added.) Not only did Patrick

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acknowledge that she had received page five of the Retail Installment Contract containing the

arbitration clause when she initialed the page, but she signed page four of the agreement,

which specifically stated:

                You agree to the terms of this contract. You confirm that before
                you signed this contract, we gave it to you, and you were free to
                take it and review it. You acknowledge that you have read all
                pages of this contract, including the arbitration clause on page 5,
                before signing below. You confirm that you received a
                completely filled-in copy when you signed it.

(Emphasis added.)

        {¶ 18} The fact that the Retail Purchase Agreement contains an "unmarked" box

referencing an unattached arbitration agreement (FEX-f44 Formerly 818199-14462) does not

create an ambiguity. Rather, by not marking the box for an arbitration agreement and not

attaching form "FEX-f44 Formerly 818199-14462," the Retail Purchase Agreement's express

terms do not contain an agreement to arbitrate. In contrast, the express terms of the Retail

Installment Contract, which was part of the transaction to purchase the 2008 BMW X5, sets

forth the parties' intent to arbitrate any dispute arising from the purchase or condition of the

vehicle.1 We therefore conclude that the trial court erred when it determined that the

arbitration clause did not apply to the parties' transaction.

                                       Waiver and Arbitrability

        {¶ 19} However, although we find that the parties had entered into an unambiguous

agreement to arbitrate, we find no prejudicial error in the trial court's denial of Dixie Imports'

motion to stay the case pending arbitration as the record supports the trial court's

determination that Dixie Imports waived its right to arbitration by participating in the litigation

in a manner inconsistent with its right to arbitrate.




1 The Retail Installment Contract was integrated into the transaction to purchase the 2008 BMW X5 pursuant to
the terms of the Retail Purchase Agreement, which stated that "[t]he front and back of this Agreement and any
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        {¶ 20} A trial court's determination that the right to arbitrate has been waived is

reviewed on appeal under an abuse-of-discretion standard of review.                           Georgetowne

Condominium Owners Assn. v. Georgetowne Ltd. Partnership, 12th Dist. Warren No.

CA2002-02-010, 2002-Ohio-6683, ¶ 6. An abuse of discretion is more than an error of law or

judgment; it implies that the trial court acted unreasonably, arbitrarily, or unconscionably.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). "When applying the abuse-of-

discretion standard, a reviewing court may not substitute its judgment for that of the trial

court." Georgetowne at ¶ 6, citing Berk v. Matthews, 53 Ohio St.3d 161, 169 (1990).

        {¶ 21} Either party to a contract may waive the right to arbitrate. Georgetowne at ¶ 7.

A plaintiff may waive its right to arbitration by filing suit. Harsco Corp. v. Crane Carrier Co.,

122 Ohio App.3d 406, 412 (3d Dist.1997). "When the opposite party is confronted with a

filed lawsuit, the right to arbitrate can be saved by seeking enforcement of the arbitration

clause by application to stay the legal proceedings pending the arbitration." Georgetowne at

¶ 7, citing R.C. 2711.02. The "[f]ailure to move for a stay, coupled with responsive pleadings,

will constitute a defendant's waiver." Harsco Corp. at 412, quoting Mills v. Jaguar-Cleveland

Motors, Inc., 69 Ohio App.2d 111, 113 (8th Dist.1980). Further, an arbitration provision may

be waived by a defendant's express words or by necessary implication. Georgetowne at ¶

12.

        {¶ 22} To prove waiver, the complainant must demonstrate, based on the totality of the

circumstances, that the defending party (1) knew of an existing right to arbitration and (2)

acted inconsistently with that right. Id. at ¶ 11, citing Harsco Corp. at 413-414; Hilton v. Mill

Rd. Constr. II, Ltd., 1st Dist. Hamilton No. C-030200, 2003-Ohio-7107, ¶ 7. "There are no

talismanic formulas for determining the existence of an implicit waiver, and no one factor can


documents which are part of this transaction or incorporated herein comprise the entire agreement affecting the
Retail Purchase Agreement (Buyers Order) * * *." (Emphasis added.)
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be isolated or singled out to achieve controlling weight." Georgetowne, 2002-Ohio-6683 at ¶

12. "Instead, courts often must undertake a case-by-case review of all relevant facts and

circumstances to examine the nature and extent of a particular party's participation in the

litigation to determine whether it should be held to prevent the assertion of a right to

arbitration." Atkinson v. Dick Masheter Leasing II, Inc., 10th Dist. Franklin No. 01AP-1016,

2002-Ohio-4299, ¶ 21. In determining whether a defendant acted inconsistently with the right

to arbitrate, a court may consider the following circumstances: (1) whether there were any

delays in the demand for arbitration; (2) the extent of the requesting party's participation in

the litigation prior to filing its motion to stay the judicial proceeding, including a determination

of the status of discovery, dispositive motions, and the trial date; (3) whether the requesting

party invoked the jurisdiction of the court by filing a counterclaim or third-party claim without

asking for a stay of the proceedings; and (4) whether the non-requesting party has been

prejudiced by the requesting party's inconsistent acts. Georgetowne at ¶ 13.

       {¶ 23} The trial court determined Dixie Imports was aware of the right to arbitrate the

dispute as the arbitration clause was contained within the contract documents prepared and

used by Dixie Imports.        The court further determined that Dixie Imports had acted

inconsistently with its right to arbitrate as it did not assert its right until four months after the

filing of the complaint. In between the filing of Patrick's complaint and Dixie Imports' motion

to stay pending arbitration, Dixie Imports had filed a motion for a more definite statement,

initiated discovery by filing a notice of deposition, filed a second memorandum supporting its

motion for a more definite statement, attended a status conference, filed an answer with a

jury demand, and filed a second notice of deposition. Then, after filing its motion to stay the

case pending arbitration, Dixie Imports filed an amended notice to depose Patrick. The trial

court took issue with Dixie Imports' discovery actions, stating:

               [Dixie Imports'] initial Notice of Deposition was not simply
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              responding to requests from [Patrick], it was an assertion of the
              discovery process by [Dixie Imports'] own hand. The amended
              notice is even further removed from any action consistent with an
              attempt to arbitrate: on the same day [Dixie Imports] sought to
              stay the case for arbitration it issued a directive for [Patrick] to
              appear at his [sic] office for deposition by mailing an Amended
              Notice of Deposition to [Patrick's] counsel * * *. [Dixie Imports]
              went even further still, in that although that Amended Notice of
              Deposition was mailed to counsel on February 27, 2017, [Dixie
              Imports] filed with the Clerk of Courts a different Amended Notice
              of Deposition on March 1, 2017 (changing the time from 1:00
              p.m. in the February 27 notice to 11 a.m. in the March 1 notice)
              and mailed that amendment to counsel as well on the same
              date, pursuant to the Certification of Service. So [Dixie Imports]
              even after attempting to assert arbitration rights on February 27,
              2017 continued to push forward with the discovery process in this
              Court by filing a Notice of Deposition two days later.

(Emphasis sic.)

       {¶ 24} In support of its argument that participating in discovery and waiting four

months after the filing of the complaint to seek arbitration does not amount to a waiver of the

right to arbitrate, Dixie Imports cites to a number of cases in which appellate courts have

found error in the trial court's denial of a motion to stay pending arbitration. See, e.g., Harsco

Corp., 122 Ohio App.3d at 416; Glenmoore Builders v. Kennedy, 11th Dist. Portage No.

2001-P-0007, 2001 Ohio App. LEXIS 5449 (Dec. 7, 2001). We note that we have reviewed

the case law cited by both parties on the issue of waiver and, after considering the totality of

the circumstances in the present case, conclude that the trial court did not abuse its

discretion in finding that Dixie Imports had waived its right to arbitration. The trial court's

decision was not arbitrary, unreasonable, or unconscionable. While a four-month delay in

asserting one's right to arbitration is not exceedingly long, this delay combined with Dixie

Imports' knowledge of the arbitration clause and its participation in the litigation process

demonstrates a waiver of the right to arbitrate. See, e.g., Land v. J.D. Byrider, Inc., 12th Dist.

Butler No. CA2006-02-038, 2007-Ohio-1222. The resolution of Patrick's claims was delayed

by Dixie Imports' actions, and Patrick incurred attorney fees in responding to the various
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motions filed by Dixie Imports and by participating in the status conference before the court –

actions which would not have been necessary had Dixie Imports timely moved to stay

proceedings pending arbitration.

        {¶ 25} Accordingly, for the reasons stated above, we find no error in the trial court's

determination that Dixie Imports waived the right to arbitration by participating in the litigation

in a manner inconsistent with its right to arbitrate. We further find, contrary to Dixie Imports'

arguments, that this waiver precludes an arbitrator from deciding "any claim or dispute,

including the interpretation and scope of the arbitration clause." The right to have an

arbitrator determine the arbitrability was likewise waived by Dixie Imports' delay in asserting

its right to arbitration.

        {¶ 26} Dixie Imports' sole assignment of error is, therefore, overruled.

        {¶ 27} Judgment affirmed.


        RINGLAND and M. POWELL, JJ., concur.




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