[Cite as Glass v. Kindred Transitional Care & Rehab., 2016-Ohio-3188.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Lettie Glass, as the Personal                       :
Representative of the Estate of
Doris Glass, Deceased,                              :

                Plaintiff-Appellee,                 :
                                                                           No. 15AP-940
v.                                                  :                    (C.P.C. No. 14CV-8021)

Kindred Transitional Care and                       :               (REGULAR CALENDAR)
Rehabilitation – Winchester Place et al.,
                                                    :
                Defendants-Appellants.
                                                    :


                                           D E C I S I O N

                                      Rendered on May 26, 2016


                On brief: The Dickson Firm, L.L.C., Blake A. Dickson, and
                Daniel Z. Inscore. Argued: Blake A. Dickson

                On brief: Bonezzi Switzer Polito & Hupp Co. L.P.A., Paul W.
                McCartney, and Jennifer R. Becker. Argued: Jennifer R.
                Becker

                  APPEAL from the Franklin County Court of Common Pleas
HORTON, J.
        {¶ 1} Defendants-appellants, Kindred Transitional Care and Rehabilitation –
Winchester Place, Kindred Healthcare Operating, Inc., Kindred Nursing Centers East,
LLC and Kindred Healthcare, Inc. (hereinafter "Kindred" or "appellants"), appeal from a
decision of the Franklin County Court of Common Pleas denying its motion to stay
proceedings and compel/enforce the alternative dispute agreement. Plaintiff-appellee,
Lettie Glass, as the Personal Representative of the Estate of Doris Glass, deceased
(hereinafter "appellee"), has filed motions to dismiss this appeal and for sanctions. For
the following reasons, we affirm the judgment of the trial court and deny appellee's
motions.
No. 15AP-940                                                                            2

I. FACTS AND PROCEDURAL HISTORY
       {¶ 2} Appellee alleges that Doris Glass ("decedent") was a resident of Kindred's
nursing home, and on August 3, 2013, while under Kindred's care and supervision, fell
and broke her femur bone. Appellee claims the broken femur bone went undiscovered by
Kindred which caused it to heal improperly. Over 11 months later decedent died, and
appellee is asserting that her death was a direct and proximate result of the injuries she
suffered at Kindred. On August 1, 2014, appellee filed a complaint against Kindred for
negligence, wrongful death, and a survivorship claim. (Compl. ¶ 1, 5 and 10.)
       {¶ 3} On September 4, 2014, Kindred filed an answer and raised several defenses,
including the "fifteenth defense," which states: "Plaintiff's claims are subject to the
binding Arbitration Agreement, pursuant to R.C. 2711.02 and, thus, this matter should be
stayed." (Answer, ¶ 16.) However, in the year following the filing of this action, Kindred
did not move the trial court for a stay, or provide it with any documentation of a binding
arbitration agreement, or even mention the possibility of moving for a stay pending
arbitration. (Decision, 2-4.)
       {¶ 4} Instead, litigation between the parties became very contentious with
numerous motions to compel discovery and depositions, for protective orders and
sanctions, and to strike motions or briefs. In the June 17, 2015 "Order to Compel
Discovery and Notice of Status Conference and/or Hearing on Sanctions," the trial court
addressed the issue of counsel's actions and the parties competing requests for sanctions
in no uncertain terms:
              In this case, much time and expense has needlessly been
              wasted by counsel and the Court in addressing discovery
              issues. Generally, this Court would be inclined to immediately
              impose sanctions * * * however, it is apparent from the
              pending motions that both sides have wholly failed to comply
              with the April 21st Discovery Order. Unfortunately, the
              discovery issues in this matter are the product of delay and
              unnecessary gamesmanship by counsel which is to the
              detriment of the parties themselves.

              Already, the Court has on three occasions, conferred with
              counsel in an attempt to resolve outstanding discovery. * * *

              The April 21st Discovery Order was clear, precise, and
              unambiguous. * * * However, now the Court is again faced
No. 15AP-940                                                                             3

                with motions where counsel are pointing the finger at each
                other and seeking Court intervention for discovery disputes
                which should have been resolved * * *. The adolescent
                behavior of counsel in this matter is a waste of the Court's
                resources and is not well received.

(Order, 4.)
        {¶ 5} Finally, on August 5, 2015, slightly over one year after the complaint was
filed, Kindred moved to stay proceedings and compel/enforce the alternative dispute
agreement. (Decision, 4.) In response to the motion for stay, appellee argued that the
right to arbitrate had been waived, and that the arbitration provision is unenforceable and
illegal. Id. at 5.
        {¶ 6} Appellee also urged the Court to impose sanctions against Kindred for filing
the alleged "frivolous" motion to stay. Appellee argues Kindred's late filing of the motion
to stay is a tactic implemented by Kindred for the purpose of delay. In support of this
argument, appellee directed the trial court to the Franklin County Court of Common Pleas
case of Fravel v. Columbus Rehab. & Subacute Inst., case No. 14CV-7216. (Decision, 7.)
        {¶ 7} In the Decision and Entry of October 14, 2015, the trial court reviewed the
motion for sanctions and noted that:
                [Fravel] is similar to the present action in the following ways:
                (1) the plaintiff is a representative of a former nursing home
                resident, (2) the plaintiff alleges the nursing home's
                negligence caused the death of its former resident, (3) the
                Dickson Firm of Beachwood, Ohio is representing the
                plaintiff, (3) the firm of Bonezzi Switzer Polito & Hupp Co.
                LPA from Cincinnati, Ohio is representing the defendant
                nursing homes, (4) the defendants raised arbitration as a
                defense in their answer but waited several months to move
                the court for a stay, and (5) after the court denied the
                defendants' motion to stay for arbitration, they filed an appeal
                which effectively stayed the entire litigation.


                The similarities between [Fravel] and the instant matter are
                eerily unsettling. A review of the proceedings from [Fravel],
                when compared to the case at hand, on its face suggests that
                counsel from the [defendants] firm * * * have an established
                method of trying this type of case, and that one of the
                methods implemented is to file an untimely motion to stay.
No. 15AP-940                                                                      4

              Yet, at this point, the Court will not draw such a broad
              conclusion.

              Upon cursory review, it appears Plaintiff's Motion for
              Sanctions has some merit. However, rather than distracting
              the attention of counsel away from the underlying claims, the
              Court will hold in abeyance its decision on Plaintiff's request
              for sanctions * * *. Once the primary claims in this matter are
              resolved, counsel for Plaintiff may move the Court for a ruling
              on the August 18, 2015 Motion for Sanctions.

(Emphasis sic.) Id. at 7-8.
       {¶ 8} The trial court reviewed Kindred's motion for stay, and held:
              Based upon the totality of the circumstances, the Court finds
              Defendants acted inconsistently with their right to arbitrate,
              and have thus waived arbitration. * * * Although Defendants
              knew of their right to arbitration back in September 2014,
              they did nothing to assert that right. Instead, they waited
              more than a year after the Complaint was filed and eleven (11)
              months after their Answer was filed to assert their right to
              arbitration. During this year long delay, Defendants and
              Plaintiff exchanged written discovery, participated in
              depositions, disclosed and supplemented witness lists, and
              have on at least three occasions come before the Court for a
              Status Conference to discuss issues impeding litigation of this
              matter.

              Notably, Defendants also filed a Motion for Partial Summary
              Judgment before the right to arbitration was asserted. * * *.
              Accordingly, Defendants have acted inconsistently with their
              right to arbitrate by submitting this issue to the Court for a
              resolution on the merits. See Griffith v. Linton, 130 Ohio App.
              3d 746, 753, 721 N.E.2d 146 (10th Dist.1998) * * *

              It would cause Plaintiff prejudice if this matter were now to be
              referred to arbitration given Defendants' motion practice and
              substantial participation in the litigation thus far. Defendants'
              Motion to Stay is therefore not well-taken, and hereby is
              DENIED.

(Emphasis sic.) Id. at 6-7.
       {¶ 9} The trial court concluded that "[f]or the aforementioned reasons,
Defendants' Motion to Stay is DENIED. The Court holds in ABEYANCE a decision on
Plaintiffs' Motion for Sanctions." (Emphasis sic.) Id. at 8.
No. 15AP-940                                                                                5

II. APPELLEE'S MOTIONS ARE DENIED
       {¶ 10} As an initial matter, we note that the appeal of the Fravel case was decided
by this court on December 10, 2015. Fravel v. Columbus Rehab. & Subacute Inst., 10th
Dist. No. 15AP-792, 2015-Ohio-5125. The Fravel case dealt with, in part, the same issues
presented here. Like the present case, appellee in Fravel filed motions to dismiss and for
sanctions based on the same arguments as in the instant case.
       {¶ 11} Like Fravel, appellee moves to dismiss the appeal and argues that no final
appealable order has been entered pursuant to R.C. 2505.02. Appellee argues that even
though appellee Lettie Glass signed the arbitration agreement on behalf of her mother-in-
law Doris Glass, as the authorized representative, she did not have legal authority to bind
appellees in this matter. Specifically, appellee argues that "[t]here was no valid arbitration
agreement in writing in this case. As a result, the Trial Court's Order is not a final order
and this appeal should be dismissed" and sanctions should be imposed. (Appellee's Mot.
to Dismiss, 3; Appellee's Merit Brief and Mot. for Sanctions, 55.) Kindred counters that "a
valid and enforceable Agreement exists" and "[t]he evidence shows that Appellee had
authority to sign the Agreement."       (Appellants' Resp. in Opp. to Appellee's Mot. to
Dismiss, 14.)
       {¶ 12} Appellee did argue that there was no valid agreement to the trial court.
However, as the trial court found that Kindred had waived its right to arbitration, it did
not address this issue. In light of our decision affirming the trial court, this issue is not
relevant to our analysis.
       {¶ 13} Subsequent to the parties briefing on appellee's motion to dismiss, we
decided and denied appellee's motion to dismiss and for sanctions in Fravel. Id. at ¶ 3-5 &
7. We agree with and follow our prior decision. R.C. 2711.02(C) provides:
                [A]n order * * * that grants or denies a stay of a trial of any
                action pending arbitration, including, but not limited to, an
                order that is based upon a determination of the court that a
                party has waived arbitration under the arbitration agreement,
                is a final order and may be reviewed, affirmed, modified, or
                reversed on appeal pursuant to the Rules of Appellate
                Procedure and, to the extent not in conflict with those rules,
                Chapter 2505 of the Revised Code.
No. 15AP-940                                                                             6

       {¶ 14} The trial court denied the motion to stay solely on the ground that Kindred
had waived its right to pursue arbitration. The trial court's disposition of the motion for
stay fell squarely within the description of a final order pursuant to R.C. 2711.02(C). For
the foregoing reasons, appellee's motions to dismiss and for sanctions are denied.
III. ASSIGNMENT OF ERROR
       {¶ 15} Kindred appeals, assigning a single error:
              THE TRIAL COURT ERRED IN DENYING DEFENDANTS'-
              APPELLANTS' MOTION TO STAY PROCEEDINGS AND
              COMPEL/ENFORCE THE ADR AGREEMENT.

IV. ASSIGNMENT OF ERROR–APPELLANTS WAIVED ARBITRATION
       {¶ 16} The issue whether appellants have waived any right to arbitration is fact
driven and reviewed by an abuse of discretion standard. Pinnell v. Cugini & Cappoccia
Builders, Inc., 10th Dist. No. 13AP-579, 2014-Ohio-669, ¶ 17. The phrase "abuse of
discretion" implies that the trial court's attitude was arbitrary, unreasonable or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
       {¶ 17} The right to arbitrate may be waived. Murtha v. Ravines of McNaughton
Condominium Assn., 10th Dist. No. 09AP-709, 2010-Ohio-1325, ¶ 20. "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." Dispatch
Printing Co. v. Recovery Ltd. Partnership, 10th Dist. No. 10AP-353, 2011-Ohio-80, ¶ 21,
citing Murtha at ¶ 21. In Hunter v. Rhino Shield, 10th Dist. No. 15AP-172, 2015-Ohio-
4603, ¶ 16, we stated:
              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 the inconsistent acts of the party seeking arbitration
              prejudiced the party asserting waiver. Pinnell at ¶ 18;
              Dispatch Printing Co. at ¶ 21. In short, waiver occurs when a
              party's active participation in a lawsuit evinces an
              acquiescence to proceeding in a judicial forum. Pinnell at ¶ 18.
No. 15AP-940                                                                              7

       {¶ 18} There is no dispute that appellants knew of the existing right to arbitrate.
Instead, the disputed issue is whether, under the totality of the circumstances, appellants
acted inconsistently with its right to arbitrate.     As in Fravel, appellants argue that
"[b]efore Appellants could file a motion to stay the matter and to enforce the [Agreement],
it was necessary for Appellants to conduct the depositions of Appellee, to establish that
Appellee had authority to sign the Agreement on behalf of the decedent." (Appellants'
Brief, 2-3.)
       {¶ 19} Appellants' argument is wholly unpersuasive. Appellants' argument would
lead one to believe that appellants only participated in the litigation as a means to compel
and/or enforce the arbitration agreement. Our review of the evidence in the record shows
otherwise.
       {¶ 20} This lawsuit was filed on August 1, 2014. By appellants' own admission,
Kindred waited over five months, until January, 2015, before beginning to request
appellee's deposition. (Appellants' Brief in Opp. to Pls. Mot., 4.) The arbitration
agreement was not presented to the trial court until the August 5, 2015, one year after the
action was filed, as an attachment to the motion for stay. Yet, during the year after this
lawsuit was filed, in addition to the substantial evidence recited in the trial court's
decision, appellant invoked the court's assistance in filing two motions for protective
orders, and a successful motion for continuance of the dispositive motions deadline and
trial date.
       {¶ 21} Our review of the record shows that, based upon the totality of the
circumstances, the evidence is overwhelming that Kindred acted inconsistently with its
right to arbitrate, and have thus waived arbitration. Therefore, the trial court did not
abuse its discretion. Appellants' single assignment of error is overruled.
V. DISPOSITION
       {¶ 22} We overrule appellants' single assignment of error and affirm the trial
court's decision denying appellants' motion to stay proceedings. We further deny
appellee's motions to dismiss and for sanctions.
                                                             Judgment affirmed; motion to
                                                          dismiss and for sanctions denied.

                      SADLER and LUPER SCHUSTER, JJ., concur.
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