Hunter v. Rhino Shield
2015 Ohio 4603
Ohio Ct. App.2015Background
- David and Ruth Hunter sued Tri-State Coating alleging defective application of Rhino Shield and asserted breach of contract, misrepresentation, and consumer protection claims.
- Tri-State initially answered, admitting the trial court had proper jurisdiction and venue, but did not mention arbitration.
- Over seven months the parties engaged in discovery: exchanged responses, scheduled then canceled depositions, Tri-State disclosed witnesses, filed discovery motions and a protective order request, and sought a jury view.
- Tri-State filed a motion for partial summary judgment seeking enforcement of an exculpatory clause limiting damages to the contract price.
- After months of litigation activity, Tri-State moved to stay the case pending arbitration under a contract arbitration clause; it later withdrew any motion to compel arbitration and relied only on a stay.
- The trial court denied the stay, finding Tri-State waived the right to arbitrate by its litigious conduct; the court of appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tri-State waived its contractual right to arbitration by participating in litigation | Hunter: Tri-State knowingly litigated (admitted jurisdiction/venue, discovery, witness disclosures, jury view, motion for summary judgment) and prejudiced Hunters, so arbitration was waived | Tri-State: Any omission was cured by timely amended answer asserting arbitration; amended pleading supersedes original so arbitration was not waived | Court: No abuse of discretion—totality of circumstances (including original answer, delay, discovery, motion for summary judgment) shows Tri-State acted inconsistently with right to arbitrate and waived it |
Key Cases Cited
- Jim's Steak House, Inc. v. Cleveland, 81 Ohio St.3d 18 (Ohio 1998) (discusses interplay of amended pleadings and affirmative defenses)
- Griffith v. Linton, 130 Ohio App.3d 746 (10th Dist. 1998) (filing summary judgment is inconsistent with right to arbitrate)
- Khan v. Parsons Global Servs., 521 F.3d 421 (D.C. Cir. 2008) (moving for summary judgment indicates election to litigate and weighs against compelled arbitration)