Glass v. Kindred Transitional Care & Rehab., 2016 Ohio 3188

Plaintiff Lettie Glass, as personal representative of Doris Glass's estate, sued Kindred for negligence and wrongful death after Doris suffered a femur fracture at a Kindred nursing facility and later died. Complaint filed August 1, 2014.
Kindred asserted an arbitration agreement as an affirmative defense in its September 2014 answer but did not move to stay the litigation or submit the agreement to the court for over a year.
During the year before Kindred sought to compel arbitration, both parties engaged in extensive litigation: written discovery, depositions, motion practice (including a motion for partial summary judgment by Kindred), status conferences, and discovery disputes that the trial court criticized.
On August 5, 2015, Kindred moved to stay proceedings and enforce the arbitration agreement; the trial court denied the motion, finding Kindred had waived its right to arbitrate based on its prior conduct and participation in litigation.
The trial court held in abeyance plaintiff’s request for sanctions against Kindred for the late arbitration motion. Kindred appealed the denial of the stay; plaintiff moved to dismiss the appeal as nonfinal and sought sanctions.
The appellate court affirmed: it held the trial court did not abuse its discretion in finding waiver and rejected plaintiff’s motions to dismiss and for sanctions, treating the denial of a stay under R.C. 2711.02(C) as a final, appealable order.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Kindred waived the right to arbitrate	Kindred waited over a year, participated substantially in litigation, and thus waived arbitration; referral to arbitration now would prejudice Glass	Kindred needed to develop facts (depositions) to prove plaintiff lacked authority to sign agreement before moving to stay; delay was justified	Trial court did not abuse discretion: totality of circumstances shows Kindred acted inconsistently with arbitration right and waived it; denial of stay affirmed
Whether the trial court's denial of the stay is a final, appealable order	The order is not final because plaintiff contends there was no valid written arbitration agreement; therefore appeal should be dismissed and sanctions imposed	Kindred contends a valid, enforceable agreement exists and appeal proceeds	Appellate court held denial of stay under R.C. 2711.02(C) is final and appealable; plaintiff's motions to dismiss and for sanctions denied

Griffith v. Linton, 130 Ohio App. 3d 746 (10th Dist. 1998) (participation in litigation can constitute waiver of arbitration)
Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (standard for abuse of discretion review)