         [Cite as Vogt v. Indianspring of Oakley, 2012-Ohio-4124.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



SUSAN A. VOGT, Individually and as :                                 APPEAL NO. C-110864
Executor of the Estate of Gail Bingham,                              TRIAL NO. A-1103060
deceased,                               :
                                                                        O P I N I O N.
        Plaintiff-Appellee,                       :

  vs.                                             :

INDIANSPRING OF OAKLEY,                           :

INDIANSPRING             HEALTH         CARE :
CENTER, LLC,
                                                  :
CARESPRING   HEALTH                     CARE
MANAGEMENT, LLC.,                                 :

   and                                            :

JOHN DOES I-X,                                    :

    Defendants-Appellants.                        :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: September 12, 2012


Mark B. Smith Co., L.P.A., and Mark B. Smith, for Plaintiff-Appellee,

Rendigs, Fry, Kiely & Dennis, LLP, Jeffrey M. Hines, Paul W. McCartney and C.
Jessica Pratt, for Defendants-Appellants.




Please note: This case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




S UNDERMANN , Presiding Judge.

       {¶1}    Indianspring of Oakley, Indianspring Healthcare Center, LLC, and

Carespring Healthcare Management, LLC., (collectively “Indianspring”) appeal from

the judgment of the trial court that denied their motion to stay proceedings and to

refer the matter to arbitration. We conclude that the trial court erred when it denied

the motion, so we reverse the judgment and remand the case to the trial court.

       {¶2}    Indianspring of Oakley is a long-term-care facility.      Susan Vogt’s

mother, Gail Bingham, was a resident at the facility. In October 2010, Bingham

accidently caught herself on fire while smoking a cigarette.         Bingham filed a

complaint against Indianspring alleging that its negligence in caring for her was the

proximate cause of her injuries and damages. When Bingham died in August 2011,

Vogt was substituted as the plaintiff. Vogt amended the complaint to include a

wrongful-death claim in addition to the claim first alleged by Bingham. Indianspring

filed a motion seeking to stay the proceedings and refer the matter to arbitration

pursuant to an arbitration agreement signed by Vogt, as Bingham’s legal

representative. Following a hearing, the trial court denied the motion. The trial

court’s judgment denying the motion is appealable under R.C. 2711.02.

       {¶3}    Because they are dispositive, we consider Indianspring’s first two

assignments of error together. In the first, Indianspring asserts that the trial court

erred when it failed to find that the arbitration agreement was valid. And in the

second, Indianspring asserts that the trial court erred when it failed to find that the

arbitration agreement was enforceable.

       {¶4}    The Ohio Supreme Court has recognized Ohio’s policy favoring

arbitration. Taylor Bldg. Corp. of America v. Benfield, 117 Ohio St.3d 352, 2008-




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                     OHIO FIRST DISTRICT COURT OF APPEALS



Ohio-938, 884 N.E.2d 12, ¶ 26.         “In light of the strong presumption favoring

arbitration, all doubts should be resolved in its favor.” Hayes v. The Oakridge

Home, 122 Ohio St.3d 63, 2009-Ohio-2054, 908 N.E.2d 408, ¶ 15, citing Ignazio v.

Clear Channel Broadcasting, Inc., 113 Ohio St.3d 276, 2007-Ohio-1947, 865 N.E.2d

18, ¶ 18. We review a trial court’s decision not to stay proceeding for referral to

arbitration de novo. Taylor at ¶ 36.

       {¶5}    An arbitration agreement “shall be valid, irrevocable, and enforceable,

except upon grounds that exist at law or in equity for the revocation.”           R.C.

2711.01(A).    One ground for revocation that is commonly recognized is

unconscionability. Taylor at ¶ 32. To successfully assert unconscionability as a

ground for revoking an arbitration agreement, a party must demonstrate both

substantive and procedural unconscionability.         Id. at ¶ 33.   “An assessment of

whether a contract is substantively unconscionable involves consideration of the

terms of the agreement and whether they are commercially reasonable.” Hayes at ¶

33.   “Procedural unconscionability considers the circumstances surrounding the

contracting parties’ bargaining[.]” Taylor at ¶ 43.

       {¶6}    Due to the presumption in favor of arbitrability, Vogt had the burden

to demonstrate unconscionability. Having reviewed the record, we conclude that she

did not.   During the hearing before the trial court, Vogt presented no evidence that

the terms of the agreement were not commercially reasonable or that any

circumstances in the bargaining made the process unconscionable. And our review

of the agreement does not expose any indications of either substantive or procedural

unconscionability.

       {¶7}    Rather than focus on the question of substantive and procedural

unconscionability, Vogt instead challenged the validity of the arbitration agreement



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based on the fact that Vogt, not Bingham, had signed the agreement. In signing the

agreement (and initialing various clauses of the agreement), Vogt held herself out as the

legal representative of Bingham. Vogt points to a statement in the agreement that

states: “If Resident is unable to sign this Agreement, then a legal representative of the

resident may sign on his/her behalf. The person signing below certifies that he/she has

the legal authority to enter into this Agreement on Resident’s behalf with the Facility

either through a valid Power of Attorney or a guardianship appointment.”              Vogt

contends that this language put the burden on Indianspring to demonstrate that

Bingham was unable to sign the agreement.            But Vogt’s contention ignores the

presumption in favor of arbitrability. As the burden was on Vogt to show that the

agreement was unenforceable, she had to demonstrate that she had not validly exercised

her authority as Bingham’s legal representative when she signed the agreement. She did

not make such a demonstration.

       {¶8}     Because we conclude that Vogt did not demonstrate any grounds for

revoking the arbitration agreement, we conclude that the trial court erred when it

refused to grant Indianspring’s motion for a stay of proceedings for a referral to

arbitration. The first two assignments of error are sustained. Given our disposition of

these assignments of error, the third assignment of error is moot.

       {¶9}     We therefore reverse the judgment of trial court and remand the cause to

the trial court with instructions to stay the proceedings pursuant to R.C. 2711.02.

                                                 Judgment reversed and cause remanded.



H ENDON and F ISCHER , JJ., concur.


Please note:
       The court has recorded its own entry this date.



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