[Cite as Raber v. Emeritus at Marietta, 2016-Ohio-1531.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                   WASHINGTON COUNTY

DAVID E. RABER,                                    :       Case No. 15CA18
Individually and as Co-Personal
Representative of the Estate of                    :
Monna Ann Raber, ET AL.,

        Plaintiffs-Appellees.                      :

        v.                                         :       DECISION AND
                                                           JUDGMENT ENTRY
EMERITUS AT MARIETTA,                              :
ET AL.,
                                                   :       RELEASED: 4/8/2016
        Defendants-Appellants.

                                            APPEARANCES:

Keith Hansbrough, Kenneth W. McCain, and Jason P. Ferrante, Marshall, Dennehy,
Warner, Coleman & Goggin, Cleveland, Ohio, for appellants.

Jeremy M. Burnside, Portsmouth, Ohio, for appellees.

Harsha, J.
        {¶1}     Emeritus at Marietta, Emeritus Corporation, and HCP EMOH, LLC

(“Emeritus et al.”) appeal from a judgment that partially denied their Motion to Stay

Proceedings and Compel Arbitration by permitting wrongful-death claims against them

to proceed. David E. Raber and Thomas E. Raber, individually and as co-executors of

the estate of their deceased mother, Monna Ann Raber, filed the wrongful-death claims,

along with several other claims, against Emeritus et al. The Rabers’ action stemmed

from the alleged maltreatment and death suffered by their mother at a residential-care

facility owned by Emeritus Corporation and operated by Emeritus at Marietta on

property owned by HCP EMOH, LLC.
Washington App. No. 15CA18                                                              2


       {¶2}   Emeritus et al. initially assert that the trial court erred by denying their

motion to stay the wrongful-death proceedings and compel arbitration on their wrongful-

death claims because the Federal Arbitration Act (“FAA”) required that these claims be

arbitrated under an agreement Monna Ann Raber signed. Emeritus et al.’s contention is

meritless because a decedent cannot bind his or her beneficiaries to arbitrate their

wrongful-death claims. Peters v. Columbus Steel Castings Co., 115 Ohio St.3d 134,

2007-Ohio-4787, 873 N.E.2d 1258, paragraph two of the syllabus. Appellants are

correct that the FAA preempts state law when state law prohibits the arbitration of a

particular type of claim. However, Ohio law that precludes application of an arbitration

agreement to third parties does not create a categorical rule prohibiting arbitration of

wrongful-death claims. And nothing in the FAA alters background principles of state

contract law regarding the scope of agreements, including the question of who is bound

by them. We reject appellants’ initial assertion.

       {¶3}   Appellants next contend that the trial court erred by not staying the entire

case, including the wrongful-death claims, pending the completion of arbitration of the

claims it determined were subject to the arbitration agreement. We agree. Under the

plain language of R.C. 2711.02(B), when a trial court determines that certain claims are

subject to arbitration, upon a request by a party the court must stay the entire

proceeding until those claims have been arbitrated, even though the action may include

both arbitrable and non-arbitrable claims.

       {¶4}   Therefore, we sustain appellants’ second assignment of error, reverse the

judgment of the trial court, and remand the cause to that court so that it can enter a new
Washington App. No. 15CA18                                                              3


order staying the entire proceeding until the parties arbitrate the claims subject to

arbitration.

                                         I. FACTS

       {¶5}    Monna Ann Raber was a resident of an assisted-living community known

as Emeritus at Marietta from August 2010 to May 2013. According to appellants,

Emeritus at Marietta is the Ohio registered trade name for Emeritus Corporation, which

operated and managed Emeritus at Marietta and provided care to Monna Ann Raber at

the facility. The care, services, and treatment of Monna Ann Raber were subject to a

resident agreement, prepared by Emeritus Corporation, that she signed. HCP EMOH,

LLC owns the real property on which the facility is located.

       {¶6}    Monna Ann Raber also executed an agreement with Emeritus at Marietta

to resolve disputes between them by binding arbitration:

       The Parties agree that in the event that such disputes cannot be resolved
       as contemplated in Paragraph 1, that unless expressly prohibited by
       applicable law, any action, dispute, claim or controversy of any kind,
       whether in contract or in tort, statutory or common law, personal injury,
       property damage, legal or equitable or otherwise, arising out of the
       provision of assisted living services, healthcare services, or any other
       goods or services provided under the terms of any agreement between
       the Parties, including disputes involving the scope of this Arbitration
       Agreement, or any other dispute involving acts or omissions that cause
       damage or injury to either Party, except for matters involving evictions,
       shall be resolved exclusively by binding arbitration and not by lawsuit
       or resort to the judicial process, except to the extent that applicable law
       provides for judicial review of arbitration proceedings. To the fullest extent
       permitted by law, this Arbitration Agreement shall apply to third parties not
       signatories to this Agreement, including any spouse, heirs, or persons
       claiming through the Resident. Any claims or grievances against the
       Community’s corporate parent, subsidiaries, affiliates, employees, officers
       or directors shall also be subject to and resolved in accordance with this
       Arbitration Agreement.

(Emphasis sic.)
Washington App. No. 15CA18                                                             4


       {¶7}   The arbitration agreement also provided that it “shall be governed and

interpreted under the Federal Arbitration Act, 9 U.S.C. Sections 1-16,” that admission to

the facility was not contingent upon signing the arbitration agreement, and that it could

be revoked by written notice delivered to Emeritus at Marietta by certified mail within 15

days of signature.

       {¶8}   After Monna Ann Raber died a West Virginia official appointed her sons,

David E. Raber and Thomas E. Raber (“the Rabers”), her only surviving children and

her beneficiaries under the Ohio wrongful-death statute, as co-executors of her estate.

The Rabers, individually and in their capacity as co-executors of their deceased

mother’s estate, filed a complaint in the Washington County Common Pleas Court

raising claims of wrongful death, negligence, violations of the R.C. 3721.13 nursing

home patients’ bill of rights, additional statutory and regulatory violations, survivorship,

and punitive damages relating to appellants’ care of the decedent during her residence

at the facility. The Rabers named Emeritus at Marietta, Emeritus Corporation, HCP

EMOH, LLC, and ten John Doe parties as defendants.

       {¶9}    Ultimately, Emeritus et al. filed a motion to stay proceedings and compel

arbitration, which the trial court granted in part and denied it in part. The trial court ruled

the Rabers’ wrongful-death claims were not subject to arbitration and it would not stay

proceedings on these claims. But the trial court stayed proceedings on all of the Rabers’

remaining claims and submitted them to arbitration. This appeal ensued.

                              II. ASSIGNMENTS OF ERROR

       {¶10} Appellants assign the following errors for our review:
Washington App. No. 15CA18                                                            5


       1. THE TRIAL COURT ERRED BY FAILING TO DETERMINE THAT ALL
          CLAIMS BROUGHT BY PLAINTIFFS, INCLUDING THE WRONGFUL
          DEATH CLAIMS, ARE SUBJECT TO THE ARBITRATION
          AGREEMENT.

       2. IN THE ALTERNATIVE, THE TRIAL COURT ERRED BY NOT
          STAYING THE ENTIRE MATTER PENDING COMPLETION OF
          ARBITRATION OF THE CLAIMS IT DETERMINED WERE SUBJECT
          TO THE ARBITRATION AGREEMENT, AS REQUIRED BY R.C.
          2711.02 AND MARQUEZ V. KOCH, 4TH DIST. ROSS APP. 11CA3283,
          2012-OHIO-5466.

                               III. STANDARD OF REVIEW

       {¶11} In general “ ‘[a]n appellate court reviews a trial court's decision to grant or

deny a motion to compel arbitration or stay the proceedings under the abuse of

discretion standard.’ ” Primmer v. Healthcare Indus. Corp., 2015-Ohio-4104, 43 N.E.3d

788, ¶ 8 (4th Dist. 2015), quoting Fields v. Herrnstein Chrysler, Inc., 4th Dist. Pike No

12CA827, 2013-Ohio-693, ¶ 12; K.M.P., Inc. v. Ohio Historical Society, 4th Dist.

Jackson No. 03CA2, 2003-Ohio-4443, ¶ 14.

       {¶12} Nevertheless, “ ‘[a] trial court's decision granting or denying a stay of

proceedings pending arbitration is * * * subject to de novo review *** on issues of law,

which will commonly predominate because such cases generally turn on issues of

contractual interpretation * * *.’ ” McFarren v. Emeritus at Canton, 2013-Ohio-3900, 997

N.E.2d 1254, ¶ 13 (5th Dist.), quoting Hudson v. John Hancock Fin. Servs., 10th Dist.

Franklin No. 06AP-1284, 2007-Ohio-6997, ¶ 8; see also Duncan v. Wheeler, 4th Dist.

Scioto No. 09CA3296, 2010-Ohio-4836, ¶ 5 (in appeal from denial of motion to stay

proceedings and to compel arbitration, we observed that “appellate courts employ a de

novo standard when reviewing a trial court's interpretation of contract provisions,

including arbitration provisions”); Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St.3d
Washington App. No. 15CA18                                                             6


352, 2008-Ohio-938, 884 N.E.2d 12, ¶ 37 (rejecting an abuse-of-discretion standard of

review and applying a de novo standard of review in reviewing decision granting motion

to stay litigation and compel arbitration when the underlying issue was whether the

arbitration provision was unenforceable because of alleged unconscionability).

       {¶13} The issues raised here are legal ones: (1) whether the FAA requires that

the Rabers’ wrongful-death claims be arbitrated under the terms of the arbitration

agreement signed only by their deceased mother; and (2) whether a case that includes

arbitrable and non-arbitrable claims, upon request of one of the parties, requires staying

the entire case until the arbitration of the arbitrable claims has concluded. Therefore,

we review the trial court’s decision using a de novo standard of review.

                                IV. LAW AND ANALYSIS

    A. Does the FAA Preempt Peters v. Columbus Steel Castings Co., 115 Ohio St.3d

                         134, 2007-Ohio-4787, 873 N.E.2d 1258 ? No.

       {¶14} The trial court determined that the Rabers’ wrongful-death claims against

appellants were not subject to arbitration under Monna Ann Raber’s arbitration

agreement with Emeritus at Marietta.

       {¶15} In their opposition to the motion to compel arbitration, the Rabers cited

Peters v. Columbus Steel Castings Co., 115 Ohio St.3d 134, 2007-Ohio-4787, 873

N.E.2d 1258, to support their contention that the arbitration agreement that their mother

signed did not apply to their wrongful-death claims. In Peters the court held that “[a]

decedent cannot bind his or her beneficiaries to arbitrate their wrongful-death claims.”

Id. at paragraph two of the syllabus. At ¶ 17-19 the court rejected a provision in a

dispute-resolution plan binding the beneficiaries of the employee agreeing to mediation,
Washington App. No. 15CA18                                                             7


and if unsuccessful, arbitration of any legal claim or dispute the beneficiaries had

against the company:

       Given the statutory language and our precedents, it is clear that survival
       claims and wrongful-death claims are distinct claims that belong to
       separate individuals, even though they are generally brought by the same
       nominal party (the personal representative of the estate). While we have
       allowed collateral estoppel to apply to such claims, given the deep
       similarity between the two and the privity between a decedent and his or
       her beneficiaries, there is no mistaking the independent nature of these
       actions.
       When Peters signed the arbitration agreement, he agreed to arbitrate his
       claims against the company, whether brought during his life or after his
       death. Thus, the provision in the agreement binding Peters's heirs,
       beneficiaries, successors, and assigns applies to a survival action, which
       is the vessel used to pursue his claims after his death.
       However, Peters could not restrict his beneficiaries to arbitration of their
       wrongful-death claims, because he held no right to those claims; they
       accrued independently to his beneficiaries for the injuries they personally
       suffered as a result of the death. See Thompson [v. Wing], 70 Ohio St.3d
       [176] at 182–183, 637 N.E.2d 917[, 1994]. Thus, a decedent cannot bind
       his or her beneficiaries to arbitrate their wrongful-death claims. Id. The
       beneficiaries can agree to arbitrate these claims themselves, but they are
       not required to do so. Because Peters's beneficiaries did not sign the plan
       or any other dispute-resolution agreement, they cannot be forced into
       arbitration.
       {¶16} The parties agree that under Peters, the Rabers’ wrongful-death claims

against Emeritus et al. would not be subject to the arbitration agreement because they

did not sign it. Nevertheless, Emeritus et al. assert in their first assignment of error that

the FAA required arbitration of the wrongful-death claims, i.e. the FAA preempted the

Supreme Court of Ohio’s conflicting decision in Peters. Emeritus et al. rely upon Marmet

Health Care Center, Inc. v. Brown, __ U.S. __, 132 S.Ct. 1201, 182 L.Ed.2d 42 (2012),

in support of that contention. In Marmet family members of patients who died while in a

nursing home brought separate suits against the nursing home alleging that its

negligence resulted in the patients’ deaths. In each case a family member of the patient
Washington App. No. 15CA18                                                            8


had signed an agreement with the nursing home on behalf of the patient that included a

clause requiring the arbitration of all disputes. The Supreme Court of Appeals of West

Virginia held all predispute arbitration agreements that apply to claims alleging personal

injury or wrongful death against nursing homes were unenforceable because “ ‘as a

matter of public policy under West Virginia law, an arbitration clause in a nursing home

admission agreement adopted prior to an occurrence of negligence that results in a

personal injury or wrongful death, shall not be enforced to compel arbitration of a

dispute concerning the negligence.’ ” Marmet, __ U.S. at ___, 132 S.Ct. at 1203, 182

L.Ed.2d 42, quoting Brown v. Genesis Healthcare Corp., 228 W.Va. 646, 724 S.E.2d

250, 292 (2011).

       {¶17} But the Supreme Court of the United States held that the FAA preempted

the West Virginia court’s prohibition against predispute agreements to arbitrate

personal-injury or wrongful-death claims:

       As this Court reaffirmed last Term, “[w]hen state law prohibits outright the
       arbitration of a particular type of claim, the analysis is straightforward: The
       conflicting rule is displaced by the FAA.” AT&T Mobility LLC v.
       Concepcion, 563 U.S. __, __, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011).
       That rule resolves these cases. West Virginia’s prohibition against
       predispute agreements to arbitrate personal-injury or wrongful-death
       claims against nursing homes is a categorical rule prohibiting arbitration of
       a particular type of claim, and that rule is contrary to the terms and
       coverage of the FAA. Id. __ U.S. at ___, 132 S.Ct. at 1203-1204, 182
       L.Ed.2d 42.

       {¶18} However, the FAA does not preempt the holding in the Peters syllabus

because unlike the holding in Brown, Peters does not establish a categorical rule

prohibiting the arbitration of wrongful-death claims. As the Supreme Court of Ohio

recognized, “[t]he beneficiaries can agree to arbitrate these claims themselves, but they

are not required to do so.” Peters at ¶ 19.
Washington App. No. 15CA18                                                          9


       {¶19} Recently our colleagues in the Fifth District Court of Appeals rejected a

similar contention by a nursing home that under Marmet, the FAA preempted Peters

and required the arbitration of wrongful-death claims even though the beneficiaries did

not sign the arbitration agreement in their individual capacities:

       Unlike the ruling by the West Virginia Supreme Court in Brown ex rel.
       Brown, the ruling by the Ohio Supreme Court in Peters did not create a
       categorical rule that prohibited pre-dispute agreements to arbitrate
       wrongful death claims against nursing homes. Rather, the holding in
       Peters was based on common law principles governing contracts and
       found that only signatories to an arbitration agreement are bound by its
       terms. This holding comports with the general rule that “arbitration is a
       matter of contract and a party cannot be required to submit to arbitration
       any dispute which he has not agreed so to submit.” Council of Smaller
       Ents. v. Gates, McDonald & Co., 80 Ohio St.3d 661, 665, 687 N.E.2d
       1352 (1998). The language used in the Peters opinion by the Supreme
       Court of Ohio indicates their holding does not create a categorical rule
       prohibiting arbitration agreements in wrongful death cases as the Court
       specifically stated that while a decedent cannot bind his or her
       beneficiaries to arbitrate their wrongful death claims, “the beneficiaries can
       agree to arbitrate these claims themselves, but they are not required to do
       so.” Peters, 115 Ohio St.3d at 138, 873 N.E.2d 1258. The holding in
       Peters requiring a real party in interest to sign an arbitration agreement for
       such agreement to be enforceable is not in conflict with the FAA as the
       FAA states arbitration agreements are enforceable except “upon such
       grounds as exist at law or in equity for the revocation for any contract.” 9
       U.S.C. § 2.


       Accordingly, we find Peters to be controlling in that arbitration agreements
       are not enforceable against non-signing beneficiaries to a wrongful death
       claim. Here, the only one of Rinker's beneficiaries to sign the arbitration
       agreement was Gerber. However, Gerber did not sign the arbitration
       agreement in his individual capacity, but signed as the purported
       “representative” of Rinker. Pursuant to Peters, the arbitration agreement in
       the instant case, as it pertains to the wrongful death claim, is not
       enforceable against Rinker's beneficiaries. Appellant's second assignment
       of error is sustained. McFarren, 2013-Ohio-3900, 997 N.E.2d 1254, at ¶
       29-30 (5th Dist.)

       {¶20} We agree with the rationale in McFarren and similarly hold that the FAA

does not preempt the Supreme Court of Ohio’s holding in Peters. This result is
Washington App. No. 15CA18                                                            10


supported by the plain language of the FAA, which in Section 2 makes written

arbitration agreements “valid, irrevocable, and enforceable, save upon such grounds as

exist at law or in equity for the revocation of contract,” and which in Section 3 allows

litigants already in federal court to invoke agreements made enforceable by Section 2.

See 9 U.S.C. 2 and 3. As the Supreme Court of the United States has emphasized,

“[n]either provision purports to alter background principles of state contract law

regarding the scope of agreements (including the question of who is bound by them).”

Arthur Anderson LLP v. Carlisle, 556 U.S. 624, 630, 129 S.Ct. 1896, 173 L.Ed.2d 832

(2009). Peters applies traditional principles of state contract law to hold that arbitration

agreements do not bind nonparties who did not agree to arbitrate wrongful-death

claims. Thus it is not preempted by the FAA. Peters at ¶ 8 (arbitration is a matter of

contract and a party cannot be required to submit to arbitration any dispute which he

has not agreed to submit). There is no argument by appellants that traditional principles

of Ohio law, e.g., assumption, piercing the corporate veil, alter ego, incorporation by

reference, third-party beneficiary theories, waiver, and estoppel, allow the arbitration

agreement to be enforced against the Rabers as nonparties. See Boyd v. Archdiocese

of Cincinnati, 2d Dist. Montgomery No. 25950, 2015-Ohio-1394, ¶ 27, citing Arthur

Andersen.

       {¶21} Therefore, the trial court correctly determined that the Rabers’ wrongful-

death claims were not arbitrable under their deceased mother’s arbitration agreement.

We overrule appellants’ first assignment of error.

    B. Did The Trial Court Err by Not Staying the Entire Case Pending the Arbitration of

                                   the Arbitrable Claims? Yes.
Washington App. No. 15CA18                                                              11


       {¶22} In their second assignment of error appellants argue that the trial court

erred by not staying the entire case, including the wrongful-death claims, pending

completion of the arbitration of the claims that were subject to the agreement. The trial

court stayed all of the Rabers’ claims, except their wrongful-death claims, based on the

arbitration agreement, but concluded that the wrongful-death claims could proceed.

       {¶23} R.C. 2711.02(B) mandates that if an issue in an action is referable to

arbitration, upon application of one of the parties, the trial court must stay the trial of the

remaining issues until the completion of arbitration on the referable issue:

        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.

       {¶24} “Where any claim in an action is subject to arbitration under R.C.

2711.02(B), a court must stay the entire proceeding, although nonarbitrable claims

exist.” Jarvis v. Lehr, 1st Dist. Hamilton No. C-130832, 2014-Ohio-3567, ¶ 11; Maclin v.

Greens Nursing and Assisted Living, L.L.C., 8th Dist. Cuyahoga No. 101085, 2014-

Ohio-2538, ¶ 9 (“when a trial court determines that certain claims are subject to

arbitration, it must stay the entire proceeding until those claims have been arbitrated,

even though the action may involve both arbitrable and non-arbitrable claims”); Villas Di

Tuscany Condominium Assoc., Inc. v. Villas Di Tuscany, 7th Dist. Mahoning No. 12 MA

165, 2014-Ohio-776, ¶ 20 (“when an action contains both arbitrable and nonarbitrable

claims, the court must stay the entire action until the arbitrable claims are resolved”).
Washington App. No. 15CA18                                                              12


       {¶25} As we held in Marquez v. Koch, 4th Dist. Ross No. 11CA3283, 2012-Ohio-

5466, at ¶ 11, “the presence of non-arbitrable claims and parties not subject to an

arbitration agreement does not justify the denial of [a] motion to stay.” See also

Harrison v. Winchester Place Nursing & Rehabilitation Center, 2013-Ohio-3163, 996

N.E.2d 1001, ¶ 24 (10th Dist.), citing Marquez at ¶ 11. Therefore, “[o]nce a court

determines an issue in the proceeding is covered by a written arbitration agreement,

even claims involving nonsignatories to the arbitration agreement will be stayed under

R.C. 2711.02(B).” Jarvis at ¶ 11, citing Murray v. David Moore Home Builders, 177

Ohio App.3d 62, 2008–Ohio–2960, 893 N.E.2d 897, ¶ 11 (9th Dist.).

       {¶26} The Rabers do not dispute this precedent, but instead argue that staying

their wrongful-death claims pending the arbitration of their remaining claims would

prevent them from engaging in meaningful discovery. In effect they request that we

adopt a policy-based exception to the mandate of R.C. 2711.02(B) in the interests of

justice. We reject this request because the General Assembly is the final arbiter of

public policy; it is not the role of courts to second-guess these legislative policy choices.

See State ex rel. Cydrus v. Ohio Pub. Employees Retirement Sys., 127 Ohio St.3d 257,

2010-Ohio-5770, 938 N.E.2d 1028, ¶ 24.

       {¶27} In light of the plain language of R.C. 2711.02(B) and the precedent

interpreting it, the trial court erred in failing to stay the Rabers’ nonarbitrable wrongful-

death claims pending the arbitration of the referable claims. We sustain appellants’

second assignment of error.

                                      V. CONCLUSION
Washington App. No. 15CA18                                                         13


       {¶28} Having sustained appellants’ second assignment of error, we reverse the

judgment of the trial court insofar as it ordered the Rabers’ wrongful-death claims to

proceed. We remand the cause to the court to enter an order staying the entire

proceeding until completion of the arbitrable issues subject to referral.

                                                       JUDGMENT REVERSED IN PART
                                                            AND CAUSE REMANDED.
Washington App. No. 15CA18                                                        14


                                  JUDGMENT ENTRY

     It is ordered that the JUDGMENT IS REVERSED IN PART and that the CAUSE
IS REMANDED. Appellees shall pay the costs.

      The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the
Washington County Court of Common Pleas to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

McFarland, J. & Hoover, J.: Concur in Judgment and Opinion.



                                  For the Court




                                  BY: ________________________________
                                      William H. Harsha, Judge




                                NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
