[Cite as Goerlitz v. SCCI Hosps. of Am., Inc., 2018-Ohio-633.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY


JOHN A. GOERLITZ, EXECUTOR
OF THE ESTATE OF JOANNE M.
GOERLITZ, DECEASED, ET AL.,

        PLAINTIFFS-APPELLEES,                                    CASE NO. 1-17-43

        v.

SCCI HOSPITALS OF AMERICA, INC., ET AL.,

        DEFENDANTS-APPELLANTS,
        -and-                                                    OPINION

ST. RITA’S MEDICAL CENTER, ET AL.,

        DEFENDANTS-APPELLEES.



                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CV 2017 0161

                                      Judgment Affirmed

                          Date of Decision:         February 20, 2018



APPEARANCES:

        Paul W. McCartney for Appellant

        Meghan C. Lewallen for Appellee
Case No. 1-17-43


SHAW, J.

      {¶1} Defendants-Appellants, SCCI Hospitals of America, Inc., et al., appeal

the September 13, 2017 judgment of the Allen County Court of Common Pleas

overruling their “Motion to Stay Proceedings and Compel/Enforce the Alternative

Dispute Resolution.”

      {¶2} On November 29, 2016, Plaintiffs-Appellees, John A. Goerlitz, as

Executor of his wife Joanne M. Goerlitz’s estate and John A. Goerlitz in his

individual capacity, filed a complaint against sixteen (16) different defendants in

Cuyahoga County, including the five parties who are Appellants in this case, SCCI

Hospitals of America, Inc. dba Kindred Hospital Lima, Kindred Healthcare

Operating, Inc., Angela Miller, RN, Constance J. Youngpeter, RN, and Sandra

Kirwan, RN.

      {¶3} Appellees alleged claims of wrongful death, loss of consortium, and a

survival claim for Joanne’s pain and suffering prior to her death. The facts alleged

in the complaint stated that Joanne was admitted to SCCI Hospitals of America, Inc.

dba Kindred Hospital of Lima, on October 6, 2015 following a surgery, and that

Appellants were negligent in their treatment of Joanne, which caused her to suffer

permanent and substantial injuries, to endure agonal pain and suffering, and to no

longer be able to independently perform life sustaining functions, which required

intensive medical care and treatment. Joanne died on December 2, 2015. The


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complaint asserted that Appellants’ negligence was the direct and proximate cause

of her death.

       {¶4} Appellees also propounded written requests for discovery to Appellants

at the time they filed the complaint.

       {¶5} On December 27 and 28, 2016, Appellants filed their answers with

numerous affirmative defenses stated and specifically asserting as their final and

sixteenth defense, that Appellees’ claims were subject to a binding arbitration

agreement requiring the trial court proceedings to be stayed, as well as asserting that

the case had been filed in an improper venue. Appellants attached a copy of the

arbitration agreement to their answers.

       {¶6} On January 11, 2017, Appellants filed a motion to transfer venue to

Allen County, where the alleged conduct of Appellants giving rise to the claims for

relief occurred. The Cuyahoga County trial court granted Appellants’ motion and

transferred the case to Allen County.

       {¶7} On August 24, 2017, Appellants filed a Motion to Stay Proceedings and

Compel/Enforce the Alternative Dispute Resolution.

       {¶8} On September 13, 2017, the trial court overruled Appellants’ motion to

stay the proceedings and compel arbitration. The trial court distinguished the

decedent’s survival claim of pain and suffering brought by John as the nominal

representative (i.e. executor) of Joanne’s estate from the wrongful death and loss of


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consortium claims brought by John in his individual capacity, which were personal

to him. The trial court relied on Peters v. Columbus Steel Castings Co., in which

the Supreme Court of Ohio stated that “[a] decedent cannot bind his or her

beneficiaries to arbitrate their wrongful-death claims” to conclude that John’s

personal claims were not subject to any arbitration agreement. Id., 115 Ohio St. 3d

134, 2007-Ohio-4787, ¶ 19.

       {¶9} The trial court also found that even if there were at one time an

enforceable arbitration agreement, Appellants had waived their right to arbitration

by taking actions inconsistent with that right. In reaching its conclusion, the trial

court highlighted a portion of Appellants’ own arbitration agreement, which

provides that the “arbitration shall convene not later than sixty (60) days after the

conclusion or termination of mediation.” See Voluntary Alternative Dispute

Resolution Agreement Between Patient and Hospital, ¶ I.(F). The trial court noted

that mediation of the case had been unsuccessfully terminated on June 29, 2016 and

none of the parties convened arbitration within sixty days of that date.

       {¶10} Rather, five months later Appellees initiated a lawsuit in Cuyahoga

County. The trial court also pointed to the Appellants’ decision to invoke the Allen

County trial court’s jurisdiction by filing a motion to transfer venue, rather than

filing a motion for a stay and to compel arbitration when the litigation had

commenced in Cuyahoga County. The trial court acknowledged that Appellants


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had raised the affirmative defense of arbitration in their answers filed in the

Cuyahoga County case on December 27 and 28, 2016. However, the trial court

found it significant that Appellants had nevertheless waited nearly eight months

after filing their answers, and nearly a year after the sixty-day timeline to convene

arbitration had expired before attempting to convene arbitration by filing a motion

for a stay and to compel arbitration on August 24, 2017.

       {¶11} Appellants subsequently filed this appeal, asserting the following

assignment of error.

       THE TRIAL COURT ERRED IN DENYING DEFENDANT’S-
       APPELLANT’S [SIC] MOTION TO STAY PROCEEDINGS
       AND COMPEL/ENFORCE ALTERNATIVE DISPUTE
       RESOLUTION AGREEMENT.

       {¶12} In their sole assignment of error, Appellants challenge the trial court’s

decision to overrule their motion to stay the proceedings and compel arbitration. As

previously discussed, the trial court overruled the motion on the grounds that John’s

personal claims of wrongful death and loss of consortium were not subject to

arbitration and that Appellants waived the right to arbitration as to the remaining

claim by acting inconsistent with that right. We note that despite Appellants

devoting the majority of their brief to the contention that the underlying arbitration

agreement in this case was valid due to John’s actual and/or apparent authority to

consent to arbitration when he signed the agreement on his wife’s behalf, the trial

court did not address the issue of authorization or other matters affecting

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enforceability of the arbitration agreement because it found the issue of waiver to

be dispositive.

       {¶13} We further note that Appellants appear to concede that the wrongful

death claim and loss of consortium claims are not subject to the arbitration

agreement. See Appellants’ Reply Brief, at 3, citing Peters, 115 Ohio St. 3d 134,

2007-Ohio-4787 at ¶ 2. Therefore, the only issue before us is whether the trial court

erred in concluding that Appellants waived their right to arbitration of the survival

claim asserted by Joanne’s estate.

                                 Standard of Review

       {¶14} The issue of whether Appellants have waived any right to arbitration

is fact driven and reviewed by an abuse of discretion standard. Glass v. Kindred

Transitional Care & Rehab, 10th Dist. Franklin No. 15AP-940, 2016-Ohio 3188, ¶

16, citing Pinnell v. Cugini & Cappoccia Builders, Inc., 10th Dist. No. 13AP-579,

2014-Ohio-669, ¶ 17; see also Hunter v. Rhino Shield, 10th Franklin Dist. No.

15AP-172, 2015-Ohio-4603, ¶ 17 (“The standard under which an appellate court

reviews an order granting or denying a stay pending arbitration depends on the

nature of the issues involved.”). Appellate courts apply this standard because

resolution of the waiver issue requires a fact-intensive analysis. Pinnell at ¶ 17; The

term “abuse of discretion” connotes that the trial court’s attitude was arbitrary,




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unreasonable or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983).1

         {¶15} “A party asserting waiver must prove that the waiving party knew of

the existing right to arbitrate and, based on the totality of the circumstances, acted

inconsistently with that known right.” U.S. Bank Natl. Assn. v. Allen, 3d Dist.

Paulding No. 11-15-09, 2016-Ohio-2766, ¶ 13, citing Dispatch Printing Co. v.

Recovery Ltd. Partnership, 10th Dist. Franklin No. 10AP-353, 2011-Ohio-80, ¶ 21.

In determining whether the totality of the circumstances includes actions

inconsistent with the right to arbitrate, a court may consider: (1) whether the party

seeking arbitration invoked the court’s jurisdiction by filing a complaint or claim

without first requesting a stay, (2) the length of the delay, if any, in seeking

arbitration, (3) the extent to which the party seeking arbitration has participated in

the litigation, and (4) whether prior inconsistent acts by the party seeking arbitration

would prejudice the party asserting waiver. Dispatch Printing Co., 2011-Ohio-80 at

¶ 21.

         {¶16} In the case at bar, the parties do not dispute that Appellants knew of

their right to arbitrate. The trial court, therefore, focused its attention on whether




1
  We note that Appellants contend on appeal that the correct standard of review in this instance is de novo.
The question whether the arbitration agreement is valid or enforceable is a matter of law for de novo review.
See Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St.3d 352, 2008-Ohio-938, ¶ 37. However, because we
concur with the trial court’s conclusion that the issue of waiver is dispositive in this case, we do not reach
the de novo review of the agreement itself, but rather presume arguendo its validity as to the survival claim.

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Appellants acted inconsistently with their known right. The trial court answered

that question affirmatively because Appellants: (1) failed to abide by its own terms

set forth in the Arbitration Agreement, which required that “[t]he Arbitration shall

convene not later than sixty (60) days after the conclusion or termination of

mediation,” which the record indicates occurred on June 29, 2016,2 (2) invoked the

trial court’s jurisdiction by filing a motion to transfer venue, despite referencing

arbitration in its answer and without first requesting a stay of the litigation, and (3)

waited nearly eight months before filing the motion for a stay after they filed their

answer and successfully transferred the case to Allen County.

           {¶17} It is our conclusion that considering the totality of the circumstances

in this particular case, the trial court’s decision with regard to Appellants’ right to

arbitrate is not unreasonable, arbitrary, or unconscionable. Thus, in addition to the

reasons articulated by the trial court in its judgment entry, we also find it compelling

that there are eleven other defendants in the case whom the record suggests have

continued to work towards a resolution on the same claims based upon the same

facts asserted against Appellants through the judicial proceedings with Appellees in

Allen County. In sum, the record indicates that enforcement of the arbitration

agreement, assuming it to be valid, would engender contemporaneous proceedings




2
    Arbitration Agreement, at ¶ F

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in two different forums not only with respect to the non-arbitrable claims, but also

with respect to the multiple parties involved in the case.

       {¶18} Based on the forgoing, we conclude that the trial court acted within its

discretion in denying the stay pending arbitration based upon waiver, and we refuse

to substitute our judgment for that of the trial court. Accordingly, the assignment

of error is overruled and the trial court’s judgment is affirmed.

                                                                Judgment Affirmed

ZIMMERMAN and PRESTON, J.J., concur.

/jlr




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