[Cite as Donnell v. Parkcliffe Alzheimer's Community, 2017-Ohio-7982.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     WOOD COUNTY


Noel Donnell, as Personal Representative                  Court of Appeals No. WD-17-001
of the Estate of Helen Donnell, Deceased
                                                          Trial Court No. 16 CV 219
        Appellant

v.

Parkcliffe Alzheimer's Community, et al.                  DECISION AND JUDGMENT

        Appellees                                         Decided: September 29, 2017

                                                *****

        Blake A. Dickson, for appellant.

        Rudolph A. Peckinpaugh, Jr. and Mark W. Sandretto, for appellees.

                                                *****

        PIETRYKOWSKI, J.

        {¶ 1} This is an appeal from the judgment of the Wood County Court of Common

Pleas, granting appellees’, Parkcliffe, Inc., Parkcliffe Development LLC, and its

unincorporated trade names Parkcliffe Alzheimer’s Community and Parkcliffe
Community Northwood, motion to compel arbitration. For the reasons that follow, we

affirm.

                            I. Facts and Procedural Background

          {¶ 2} The undisputed facts for purposes of this appeal are as follows. On April 14,

2016, appellant, Noel Donnell, as the Personal Representative of the Estate of Helen

Donnell, Deceased, filed a complaint against appellees, asserting survivorship claims and

wrongful death claims. In the complaint, appellant alleged that Mrs. Donnell was a

resident of appellees when she suffered injuries, including a hip fracture. Appellant

alleged that the injuries were caused by appellees’ negligence. Mrs. Donnell died on

November 19, 2015.

          {¶ 3} On June 16, 2016, appellees filed an answer denying the allegations, and

asserting as an affirmative defense that the claims are subject to mandatory alternative

dispute resolution, including binding arbitration if necessary. Appellees attached to the

answer a copy of an “Amendment to the Admission Agreement,” which provides,

                The resident and Parkcliffe agree to attempt to resolve informally

          through mediation all disputes between them, including those that arise

          under this Agreement and any other claims of any kind or type whatsoever

          that Resident makes against Parkcliffe (all such disputes and claims are

          referred to in this Agreement as “Claims”.) To the fullest extent permitted

          by applicable law, any Claim that cannot be resolved informally by




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       mediation within sixty days from the date of initiation of the mediation

       shall be determined by binding arbitration conducted in Lucas County,

       Ohio by the American Arbitration Association or by any method of private

       arbitration upon which the Resident and Parkcliffe agree; provided,

       however, that any such private arbitration shall proceed in accordance with

       the procedural rules of the American Arbitration Association then in effect

       (the “Rules”).

       {¶ 4} Thereafter, the parties engaged in some discovery. Appellees served

their first set of interrogatories, request for production of documents, and requests

for admissions. Appellees also responded to appellant’s first and second sets of

interrogatories, requests for admissions, and request for production of documents.

       {¶ 5} On July 19, 2016, the trial court held a scheduling pretrial. The court

established deadlines for discovery, and scheduled a settlement pretrial for January 31,

2017, and a trial for March 28, 2017.

       {¶ 6} On August 10, 2016, appellees moved to compel arbitration on the Estate of

Helen Donnell’s survivorship claims, and to stay the proceedings, including appellant’s

wrongful death claim, pending the conclusion of arbitration. Attached to the motion was

a “Durable General and Health Care Power of Attorney,” in which Mrs. Donnell named

appellant as her lawful agent. Notably, the power of attorney was executed in 1992, and

the health care powers expired after seven years. Also attached to the motion was the




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“Admission Agreement” and “Amendment to the Admission Agreement.” The

“Admission Agreement” was signed by appellant under the “Resident’s Sponsor” line,

but the “Amendment to the Admission Agreement” contained appellant’s signature under

the “Resident” line. On October 25, 2016, appellant filed his brief in opposition to the

motion to compel arbitration. A reply brief and a sur-reply brief were also filed.

       {¶ 7} On December 6, 2016, the trial court granted appellees’ motion to compel

arbitration, and stayed all of the actions in the case pending the results of arbitration.

                                 II. Assignments of Error

       {¶ 8} Appellant has timely appealed the trial court’s December 6, 2016 judgment

entry, and asserts six assignments of error for our review:

              I. None of the appellees are parties to the arbitration clause.

              II. The arbitration clause is not enforceable against Helen Donnell

       because it was never signed by Helen Donnell nor by anyone with authority

       to sign on her behalf.

              III. Appellees waived their right to arbitration.

              IV. The trial court erred in finding that Ohio Revised Code §

       2711.22 through § 2711.24 were not applicable. The arbitration clause in

       this case is void under Ohio law.

              V. The arbitration clause in this case is both procedurally and

       substantively unconscionable and therefore unenforceable.




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              VI. The trial court erred in staying the wrongful death claims

       pending the resolution of arbitration.

                                        III. Analysis

       {¶ 9} This appeal concerns whether the arbitration clause is enforceable.

“Arbitration agreements are ‘valid, irrevocable, and enforceable, except upon grounds

that exist at law or in equity for the revocation of any contract.’” Taylor Bldg. Corp. of

Am. v. Benfield, 117 Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12, ¶ 32. “[I]n

reviewing whether an arbitration clause is enforceable, we apply a de novo standard of

review.” Norman v. Schumacher Homes of Circleville, Inc., 2013-Ohio-2687, 994

N.E.2d 865, ¶ 11 (4th Dist.).

                           A. Parties to the Arbitration Clause

       {¶ 10} In his first and second assignments of error, appellant argues that the

arbitration clause is unenforceable because it was not signed by the parties.

       {¶ 11} Specifically, in his first assignment of error, appellant argues that the

arbitration clause was signed on behalf of “Parkcliffe Community,” which is not a legal

entity or registered trade name.

       {¶ 12} R.C. 1329.01(A)(2) provides that “a name used in business or trade that is

fictitious and that the user has not registered or is not entitled to register as a trade name”

is a “fictitious name.” “Corporations in Ohio have the right to adopt fictitious names ‘so

long as it is not done with fraudulent purpose or against public policy.’” Green Tree




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Servicing LLC v. Luce, 11th Dist. Ashtabula No. 2015-A-0022, 2016-Ohio-1011, ¶ 21,

quoting McCaskey v. Sanford-Brown College, 8th Dist. Cuyahoga No. 97261, 2012-

Ohio-1543, ¶ 15; see also Plain Dealer Publishing Co. v. Worrell, 178 Ohio App.3d 485,

2008-Ohio-4846, 898 N.E.2d 1009, ¶ 16 (9th Dist.), quoting Baldwin’s Ohio Practice

Business Organizations, Section 17:9 (“A corporation may use a name other than its

corporate name in the conduct of its business.”). “[A]n action may be commenced or

maintained against the user of a fictitious name whether or not the name has been

reported.” Plain Dealer Publishing at ¶ 16. Here, appellant does not identify, and we

cannot find, anything in the record that would support a conclusion that the fictitious

name was adopted with fraudulent purpose or against public policy. Therefore, we hold

that appellees’ use of a fictitious name does not render the arbitration provision

unenforceable as between the parties to the litigation.

       {¶ 13} Accordingly, appellant’s first assignment of error is not well-taken.

       {¶ 14} In his second assignment of error, appellant argues that the arbitration

provision is unenforceable because it was not signed by Mrs. Donnell or anyone

authorized to sign on her behalf. In particular, appellant argues that the power of attorney

that was granted to him by Mrs. Donnell had expired. Section B of the power of attorney

provides that appellant is authorized to make health care decisions on behalf of Mrs.

Donnell. Subsection 3 of Section B states,




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              This durable power of attorney for health care shall expire seven

       years after the date of its execution, or such later time as may be permitted

       by law (this power of attorney for health care shall continue even after

       seven years, if allowed by law, until terminated by the undersigned or by

       applicable law) unless at such expiration date I lack the capacity to make

       health care decisions for myself, in which case this durable power of

       attorney for health care shall continue in effect until the time when I regain

       the capacity to make health care decisions for myself.

Because the power of attorney was executed in 1992, appellant argues that it expired in

1999, and thus he did not have authority to bind Mrs. Donnell to the arbitration

agreement.

       {¶ 15} In opposition, appellees do not contest that the health care power of

attorney expired after seven years. Instead, they argue that as an adult group home

licensed under R.C. Chapter 5119, they only provided Mrs. Donnell with living quarters,

meals, and assistance with activities of daily living, such as walking, moving, bathing,

grooming, toileting, oral hygiene, hair care, dressing, eating, and nail care. Appellees

stress that Mrs. Donnell did not reside in a nursing home, nor did they provide health care

or nursing care to Mrs. Donnell, or any other type of procedure requiring informed

consent. Thus, they contend that appellant’s authority to sign on behalf of Mrs. Donnell

did not arise under the health care powers, but instead was founded in the “Other Powers”




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enumerated in section C of the power of attorney. Subsection 12 of section C provides

that appellant shall have the authority to “prepare, draw, make, sign, execute, seal,

acknowledge, verify, * * * on my behalf, any and all * * * contracts, * * * agreements, *

* * and any other papers, documents, or writings or things.”

       {¶ 16} We agree with appellees that appellant was not exercising authority under

the health care powers when he signed the “Admission Agreement” and the “Amendment

to the Admission Agreement.” The “Admission Agreement” clearly states that

“Parkcliffe, by law, cannot provide skilled nursing care. However, if the resident

develops a medical condition that requires skilled nursing care on a periodic, scheduled

basis for no more than 120 days, the resident may contract with a Home Health agency or

a Hospice organization.” Further, the “Admission Agreement” provides that

              Parkcliffe provides medication storage, reminders to take, assistance

       opening containers, helping to prevent spilling and assistance with ordering

       of medication from Swanton Pharmacy. Medication management should

       not be confused with medication administration that is performed by a

       nurse and based on a doctor’s specific order. We will make a good faith

       effort to prompt residents, but cannot ensure that all medication will be

       taken. Any skilled nursing care cannot be provided by Parkcliffe staff and

       must be performed by a family member or a third-party agency.




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Thus, because appellees were not providing health care or nursing care to Mrs.

Donnell, appellant was exercising his powers under the general powers conferred

in section C of the power of attorney when he signed the “Amendment to the

Admission Agreement.” Those powers were not subject to an expiration date.

Furthermore, the power of attorney provides in section H that “If any power or

authority hereby sought to be conferred upon my attorney should be invalid or

unexercisable (sic) for any use or not recognized by any person or organization

dealing with my attorney, the remaining powers and authorities given to my

attorney hereunder shall nevertheless continue in full force and effect.” Therefore,

the general powers conferred by the power of attorney were not affected by the

expiration of the powers under the health care provision. As a result, we hold that

appellant was acting within the authority conferred upon him by Mrs. Donnell

when he entered into the “Amendment to the Admission Agreement” containing

the arbitration provision.

       {¶ 17} Alternatively, appellant argues that the arbitration provision is

unenforceable because appellant signed the agreement using only his name, and not as

“Helen M. Donnell, by Noel A. Donnell, Attorney-in-Fact” as provided in the power of

attorney. Further, appellant signed his name on the “Resident” line, and not on the

“Sponsor” line.




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       {¶ 18} However, the power of attorney provides that in addition to signing as

“Helen M. Donnell, by Noel A. Donnell, Attorney-In-Fact,” the attorney may sign “in

any other legally effective manner.” Here, the “Amendment to the Admission

Agreement” is expressly between Parkcliffe Community and Mrs. Donnell:

              The undersigned resident Helen Donnell and Parkcliffe Community

       hereby agree to amend the Admission Agreement entered into between

       them on the date of 8/26/14, by inserting the attached new dispute

       resolution provision at the end of the Agreement and incorporating that

       provision in the Agreement.

Although appellant signed only his name, he had actual authority to bind Mrs. Donnell to

the agreement, and his signature was legal to do so. Therefore, we hold that the

arbitration provision is not unenforceable based on appellant’s signature.

       {¶ 19} Accordingly, appellant’s second assignment of error is not well-taken.

                                         B. Waiver

       {¶ 20} In his third assignment of error, appellant argues that appellees waived

their right to enforce the arbitration clause. “Like any other contractual right, * * * the

right to arbitrate may be implicitly waived.” Travelers Cas. & Sur. Co. v. Aeroquip-

Vickers, Inc., 6th Dist. Lucas No. L-06-1201, 2007-Ohio-5305, ¶ 34. “Whether the

contractual right to arbitration has been waived is a mixed question of both factual issues

and the weight to be given those facts under the applicable legal standard.” Buyer v.




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Long, 6th Dist. Fulton No. F-05-012, 2006-Ohio-472, ¶ 7. “[A]lthough questions of law

may be reviewed de novo, the trial court’s ultimate determination of whether the right to

demand arbitration has been waived will be reviewed under an abuse of discretion

standard.” Id.

       {¶ 21} “Waiver may attach where there is active participation in a lawsuit

demonstrating an acquiescence to proceeding in a judicial forum.” Id. at ¶ 13. “A party

asserting waiver must establish that (1) the waiving party knew of the existing right to

arbitrate; and (2) the totality of the circumstances demonstrate the party acted

inconsistently with the known right.” Id. at ¶ 11, citing Atkinson v. Dick Masheter

Leasing II, Inc., 10th Dist. Franklin No. 01AP-1016, 2002-Ohio-4299, ¶ 20. When

considering the totality of the circumstances, the court may be guided by:

              [W]hether the party seeking arbitration invoked the jurisdiction of

       the court by filing a complaint, counterclaim, or third-party complaint

       without asking for a stay of the proceedings; (2) the delay, if any, by the

       party seeking arbitration to request a stay of the judicial proceedings, or an

       order compelling arbitration; (3) the extent to which the party seeking

       arbitration has participated in the litigation, including a determination of the

       status of discovery, dispositive motions, and the trial date; and (4) whether

       the nonmoving party would be prejudiced by the moving party’s prior

       inconsistent actions. Id. at ¶ 12.




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“[A] waiver of the right to arbitrate is not to be lightly inferred.” Id. at ¶ 13, citing

Griffith v. Linton, 130 Ohio App.3d 746, 751, 721 N.E.2d 146 (10th Dist.1998).

       {¶ 22} Appellant argues that appellees waived the right to arbitrate the dispute

because they filed an answer with a jury demand, and participated in the litigation by

propounding and responding to discovery requests, filing and responding to motions, and

engaging in a status conference with the trial court.

       {¶ 23} Appellees, on the other hand, argue that they raised the issue of arbitration

as an affirmative defense in their answer, and filed the motion to compel within four

months of filing their answer. Further, although they participated in limited discovery,

appellees note that there were additional claims for wrongful death, which were not

subject to the arbitration agreement. Appellees also argue that limited discovery was

consistent with the rights they have under the arbitration process. Finally, appellees

argue that appellant has not demonstrated any prejudice since the trial date was still seven

months away at the time the motion to compel was filed, and there is nothing to

demonstrate that appellees’ actions caused the loss of any evidence or duplication of

efforts.

       {¶ 24} In its decision, the trial court concluded:

              On balance, the totality of the circumstances does not demonstrate

       that Parkcliffe’s actions were inconsistent with its right to arbitrate Mr.

       Donnell’s claims against it. Parkcliffe did not invoke the court’s




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       jurisdiction by filing any type of claim against Mr. Donnell, Parkcliffe’s

       four-month delay in filing its motion to stay was not unreasonable and was

       not done at a time that would disrupt a scheduled trial or avoid the

       consequences of a dispositive motion, its participation in the litigation to

       this point was not substantively different than its participation would have

       been if the case had gone directly to arbitration, and Mr. Donnell has not

       shown any prejudice due to Parkcliffe’s actions to this point.

We agree, and hold that the trial court did not abuse its discretion when it found that

appellees had not waived their right to arbitration. See, e.g., Milling Away, LLC v.

Infinity Retail Environments, Inc., 9th Dist. Summit No. 24168, 2008-Ohio-4691, ¶ 14

(no waiver where motion for a stay was filed six months after the complaint, the parties

exchanged motions regarding the proceedings, minimal discovery had occurred, and the

trial court had not yet set a trial date).

       {¶ 25} Accordingly, appellant’s third assignment of error is not well-taken.

                                 C. Void under R.C. 2711.23

       {¶ 26} In his fourth assignment of error, appellant argues that the arbitration

agreement is void because it fails to satisfy any of the conditions of R.C. 2711.23. R.C.

2711.23 governs “arbitration agreements pursuant to sections 2711.01 and 2711.22 of the

Revised Code for controversies involving a medical, dental, chiropractic, or optometric

claim that is entered into prior to a patient receiving any care, diagnosis, or treatment.” It




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sets forth ten requirements that must be met for those arbitration agreements to be valid

and enforceable.

       {¶ 27} However, as identified by appellees, and recognized by the trial court, R.C.

2711.23 applies to contracts “between a patient and a hospital or healthcare provider.”

R.C. 2711.22. “Hospital” is defined as “any person, corporation, association, board, or

authority that is responsible for the operation of any hospital licensed or registered in the

state.” R.C. 2711.22(B)(2) and 2305.113(E)(1). “Healthcare provider” is defined as “a

physician, podiatrist, dentist, licensed practical nurse, registered nurse, advanced practice

registered nurse, chiropractor, optometrist, physician assistant, emergency medical

technician-basic, emergency medical technician-intermediate, emergency medical

technician-paramedic, or physical therapist.” R.C. 2711.22(B)(1). Here, appellees are

not licensed or registered as a hospital, but instead are licensed as an adult group home

under R.C. Chapter 5119. Further, appellant has not alleged or provided any evidence

that any of appellees’ employees are health care providers. Therefore, the requirements

of R.C. 2711.23 do not apply to the arbitration agreement between the parties.

       {¶ 28} Accordingly, appellant’s fourth assignment of error is not well-taken.

                                   D. Unconscionability

       {¶ 29} In his fifth assignment of error, appellant argues that the arbitration

agreement is unenforceable because it is unconscionable. We review the trial court’s




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contrary determination that the arbitration agreement is not unconscionable de novo.

Hayes v. Oakridge Home, 122 Ohio St.3d 63, 2009-Ohio-2054, 908 N.E.2d 408, ¶ 21.

       {¶ 30} “Unconscionability includes both an absence of meaningful choice on the

part of one of the parties together with contract terms which are unreasonably favorable

to the other party.” (Internal quotes omitted.) Id. at ¶ 20. “The party asserting

unconscionability of a contract bears the burden of proving that the agreement is both

procedurally and substantively unconscionable.” Id.

                            1. Procedural Unconscionability

       {¶ 31} “Procedural unconscionability considers the circumstances surrounding the

contracting parties’ bargaining, such as the parties’ ‘age, education, intelligence, business

acumen and experience, * * * who drafted the contract, * * * whether alterations in the

printed terms were possible, [and] whether there were alternative sources of supply for

the goods in question.’” Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St.3d 352,

2008-Ohio-938, 884 N.E.2d 12, ¶ 43, quoting Collins v. Click Camera & Video, 86 Ohio

App.3d 826, 834, 621 N.E.2d 1294 (2d Dist.1993).

              Factors which may contribute to a finding of unconscionability in

       the bargaining process [i.e., procedural unconscionability] include the

       following: belief by the stronger party that there is no reasonable

       probability that the weaker party will fully perform the contract; knowledge

       of the stronger party that the weaker party will be unable to receive




15.
       substantial benefits from the contract; knowledge of the stronger party that

       the weaker party is unable reasonably to protect his interests by reason of

       physical or mental infirmities, ignorance, illiteracy or inability to

       understand the language of the agreement, or similar factors. Id., quoting

       Restatement of the Law 2d, Contracts (1981), Section 208, Comment d.

“When a trial court makes factual findings * * * supporting its determination that a

contract is or is not unconscionable, such as any findings regarding the circumstances

surrounding the making of the contract, those factual findings should be reviewed with

great deference.” Id. at ¶ 37.

       {¶ 32} Here, the trial court found that appellant was an elderly man, but that the

evidence did not indicate his level of education, intelligence, business acumen, or

experience. The court also found that while appellant had recently been released from

the hospital and was experiencing stress and anxiety about placing Mrs. Donnell into

appellees’ facility, two of appellant’s adult children were with him at the time he signed

the “Amendment to the Admission Agreement,” and at least one of the children had

communicated extensively with appellees’ Program Director of Health and Wellness

prior to Mrs. Donnell’s admission. Further, the trial court found that appellees drafted

the agreement, but the care manager who signed on behalf of appellees could not

correctly and satisfactorily explain the impact of the arbitration clause. As to the ability

to make alterations to the terms, the care manager stated that previous residents had




16.
altered the admission agreement, but not the arbitration provision. She did testify in her

deposition, however, that signing the “Amendment to the Admission Agreement” was not

a condition of acceptance into the facility, and she was aware of other residents who had

been admitted without signing the amendment. Finally, the trial court found that there

was no evidence that appellees anticipated that Mrs. Donnell would fail to perform her

duties under the agreement, nor was there any evidence that Mrs. Donnell would not

receive substantial benefits because of the agreement.

       {¶ 33} In his brief, appellant argues that the present situation is similar to two

cases where the court held that the arbitration provision in a nursing care facility

admission agreement was procedurally unconscionable. In Small v. HCF of Perrysburg,

Inc., 159 Ohio App.3d 66, 2004-Ohio-5757, 823 N.E.2d 19 (6th Dist.), the wife signed

the agreement on behalf of her husband. At the time, the wife was concerned for her

husband’s health because he appeared to be unconscious, and the wife was approached

and asked to sign the admission agreement shortly after she learned that her husband was

going to be transported to the hospital. The agreement was not explained to her, she did

not have an attorney present, she did not have any particularized legal expertise, and she

was 69 years old when the agreement was signed. The wife testified that she was under

considerable stress when she signed the agreement, and that the whole process, from their

arrival at the facility until the ambulance left, took approximately 30 minutes. We held




17.
that under these circumstances, the arbitration agreement was procedurally

unconscionable. Id. at ¶ 27-30.

       {¶ 34} Likewise, in Manley v. Personacare of Ohio, 11th Dist. Lake No. 2005-L-

174, 2007-Ohio-343, ¶ 30, the court held that the arbitration agreement was procedurally

unconscionable where, “[the resident] was 66 years old, entering a nursing home directly

from a hospital, without an attorney, friend, or family member to assist her in the process.

She had fears due to a recent assault, had no legal expertise, had numerous physical

problems, had a mild cognitive impairment, and had bouts of confusion.”

       {¶ 35} We find the present situation to be distinguishable. Unlike the signers in

Small and Manley, there is no evidence in the record that appellant had any cognitive

impairment or confusion, or that he was under a great deal of stress precipitated by Mrs.

Donnell needing to be rushed to the hospital. Further, appellant was not alone when he

signed the agreement, but was joined by his two adult children, and there is no indication

that the admission procedure was rushed or truncated. Finally, there was testimony from

the care manager that the arbitration provision was not presented as a condition of

admission, and that she was aware of other residents who did not sign the arbitration

provision. While it is concerning that the care manager was not able to accurately

describe the consequences of arbitration, we hold that under the totality of the

circumstances of this case, the arbitration provision is not procedurally unconscionable.




18.
                              2. Substantive Unconscionability

       {¶ 36} “An assessment of whether a contract is substantively unconscionable

involves consideration of the terms of the agreement and whether they are commercially

reasonable.” Hayes, 122 Ohio St.3d 63, 2009-Ohio-2054, 908 N.E.2d 408, at ¶ 33.

“Factors courts have considered in evaluating whether a contract is substantively

unconscionable include the fairness of the terms, the charge for the service rendered, the

standard in the industry, and the ability to accurately predict the extent of future liability.”

Id. “No bright-line set of factors for determining substantive unconscionability has been

adopted by this court.” Id.

       {¶ 37} We hold that the arbitration provision is not substantively unconscionable

in this case. The arbitration provision does purport to waive the parties’ right to trial by

jury, but as recognized by the Ohio Supreme Court, “waiver of the right to trial by jury is

a necessary consequence of agreeing to have an arbitrator decide a dispute, and this

aspect of an arbitration clause is not substantively unconscionable.” Id. at ¶ 34. In

addition, the arbitration agreement does not speak to or provide for a shifting of attorney

fees or costs of arbitration, and it allows for discovery. Finally, we note that arbitration is

triggered only when informal mediation is unsuccessful, and that the parties can agree to

any private arbitration provided that the procedural rules of the American Arbitration

Association are used. Therefore, we do not find that the terms of the agreement are so

one-sided or unfair as to render the arbitration provision substantively unconscionable.




19.
       {¶ 38} Accordingly, because appellant has failed to demonstrate that the

arbitration provision is both procedurally and substantively unconscionable, his fifth

assignment of error is not well-taken.

                                E. Wrongful Death Claims

       {¶ 39} In his sixth assignment of error, appellant argues that the wrongful death

claims of the beneficiaries of Mrs. Donnell’s estate should not be stayed pending

arbitration. Notably, the parties do not dispute that the wrongful death claims are

separate from the survival claims, and are not subject to the arbitration agreement.

       {¶ 40} R.C. 2711.02(B) provides,

              If 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 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.

“[W]hen an action involves both arbitrable and non-arbitrable claims, the entire

proceeding must be stayed until the issues that are subject to arbitration are resolved.”

Hussein v. Hafner & Shugarman Ents., 176 Ohio App.3d 127, 2008-Ohio-1791, 890




20.
N.E.2d 356, ¶ 47 (6th Dist.), quoting Cheney v. Sears, Roebuck & Co., 10th Dist.

Franklin No. 04AP-1354, 2005-Ohio-3283, ¶ 12. Therefore, we hold that the trial court

did not err when it stayed the entire proceedings pending the results of arbitration.

       {¶ 41} Accordingly, appellant’s sixth assignment of error is not well-taken.

                                  F. Additional Authority

       {¶ 42} As a final matter, we will address several motions filed by the parties after

their appellate briefs had been submitted. On July 12, 2017, one week before oral

arguments were held on this matter, appellees moved for leave to file additional authority

pursuant to App.R. 21(I), which provides, “If counsel on oral argument intends to present

authorities not cited in the brief, counsel shall, at least five days prior to oral argument,

present in writing such authorities to the court and to opposing counsel, unless there is

good cause for a later presentment.” Appellant did not object to this motion. Thus, upon

due consideration, appellees’ motion to file additional authority is granted.

       {¶ 43} After oral arguments, on September 7, 2017, appellees filed a second

motion for leave to file additional authority. Appellant opposed this second motion, and

alternatively filed a motion for leave to file a response to the authority. The additional

authority cited by appellees is Kindred Nursing Ctrs. Ltd. Partnership v. Clark, Slip

Opinion No. 16-32, 137 S.Ct. 1421, 197 L.Ed.2d 806 (May 15, 2017), in which the

United States Supreme Court overturned the decision of the Kentucky Supreme Court

that held that a power of attorney must specifically entitle the agent to enter into an




21.
arbitration agreement on behalf of the principal for the arbitration provision to be

enforceable when signed by the agent. Here, however, appellant does not argue that the

power of attorney must specifically state that he has the authority to enter into an

arbitration agreement. Thus, the additional authority is not applicable. Therefore, upon

due consideration, appellees’ second motion to file additional authority is hereby denied,

and appellant’s motion for leave to file a response is denied as moot.

                                      IV. Conclusion

       {¶ 44} For the foregoing reasons we find that substantial justice has been done the

party complaining and the judgment of the Wood County Court of Common Pleas is

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

                                                                         Judgment affirmed.

       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Mark L. Pietrykowski, J.                        ____________________________
                                                        JUDGE
Arlene Singer, J.
                                                ____________________________
Thomas J. Osowik, J.                                    JUDGE
CONCUR.
                                                ____________________________
                                                        JUDGE




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