*1 341 ¶ victim); 810 (12-year-old N.E.2d 119 Lynch, State v. 98 Ohio St.3d victim); Smith, 787 N.E.2d (six-year-old State v. (six-month-old victim). 97 Ohio St.3d 780 N.E.2d We have also upheld penalty the death for aggravated murder during an aggravated burglary and aggravated murder during kidnapping under R.C. 2929.04(A)(7). (1996), State Hill 1068; Ohio St.3d v. Waddy State
Judgment affirmed. JJ., Stratton, O’Connor, O’Donnell, Cupp, Lanzinger, concurs separately. Pfeifer, J., concurring. trial, At the prosecutor presented and the trial court allowed unneces- evidence,
sary including 19 firearms that were not involved the murders and dozens of pictures that repetitive. were I am troubled by the inclusion of evidence that was so rife with potential prejudice. See Evid.R. 401 and 403. Although whether jury was prejudiced by call, this evidence is close I reach the same conclusion as the majority and therefore concur in affirming the sentence of death.
Victor V. Vigluicci, Portage County Prosecuting Attorney, and Pamela J. Holder, Assistant Prosecuting Attorney, for appellee.
Nathan A. Ray and Lawrence Whitney,
for appellant.
Appellant.
Alexander, Appellee,
Inc.,
Financial Ohio
Coleman, Appellee,
v. American General
Appellant.
Services,
[Cite as Alexander v. Wells
Financial Ohio
1, Inc.,
24, 2009 Decided June Lanzinger, cases, sponte, two consolidated sua these question presented The of loans and the satisfaction delay claims agreements signed by governed by
discharge mortgages apply parties’ that agreements we hold the arbitration parties. Because claims, we reverse. Background
I. Case A. Lillie Alexander 5, 2000, a mortgage Lillie Alexander entered into appellee On December 2}{¶ (“Wells 1, Fargo”) Financial Ohio Inc. and appellant Fargo Wells an Fargo Wells filed accompanying mandatory-arbitration agreement. signed January on 2002. entry of satisfaction of the action, alleging July filed a class that on May On Alexander that failed to file the off the Wells R.C. days prescribed of satisfaction of the within the entry 5301.36(A). entry The failure to 5301.36(C). compel a motion to penalty. a R.C. filed
triggers $250 arbitration, trial court granted. which the that Appeals held the arbitration Cuyahoga County Court dispute to this and reversed. Alexander Wells apply does WL 8th Dist. No.
Fargo Financial Ohio
B. Shelton Coleman a agree- Coleman entered into April appellee On Shelton 5} (“AGFS”) Services, appellant ment with American General that his the collateral secured financing evidencing a statement signed UCC-1 loan. The loan mandatory-arbitration July contained provision. 2003, Coleman his loan in full. action, On June Coleman filed a class alleging AGFS failed
to file a termination of the financing days statement within the 30 prescribed by 1309.625(E)(4), R.C. 1309.513. According R.C. failure to timely file the statement triggers penalty. answered the complaint AGFS and also filed $500 a motion to compel which the trial court denied. The Cuyahoga County Court of trial Appeals holding affirmed the court’s against Coleman’s claim AGFS was not to the arbitration agreement. Servs.,
Coleman Am. Gen. Financial 8th Dist. No.
WL 803039. sponte This court sua consolidated the two cases for determination of *3 whether the arbitration agreements apply to the claims. parties’ Legal Analysis
II.
We
look at
first
of the
language
individual arbitration agreements
to
determine
parties
whether the
to
agreed
disputed
arbitrate the
issue. We then
use the standard
articulated
Academy Medicine
Cincinnati v. Aetna
of
of
Health, Inc.,
185,
A. Alexander The issue between Alexander and Wells Fargo they whether agreed to arbitrate timely the failure to an entry of satisfaction mortgage. of the The agreement signed by Alexander states: “RIGHT TO ELECT TO ARBITRATE: Any party by covered this Agreement may claim, (‘Claim’) elect to have any dispute or controversy of any (whether otherwise) contract, tort, kind or arising out of or relating your to Loan Agreement, any or or prior us, future dealings between resolved by binding A include, arbitration. Claim may to, but shall not be limited the issue of any particular Claim must be submitted to or the facts and circumstances your involved with signing of this or Agreement, your willingness abide the terms of this Agreement validity of this Agreement.” Fargo Wells stresses Ohio has a strong presumption in favor of Farms, (1998), arbitration. ABM 498, 500, Inc. v. Woods 81 Ohio St.3d 574; (1998), N.E.2d 464, Williams v. Aetna Fin. 471, Co. N.E.2d 859. points also out that any covers claim out “arising relating Health, of or to” the mortgage. We held in Aetna 108 Ohio ¶ St.3d phrase that the claim “any controversy arising out of the agreement” paradigm is the of a broad clause. The “ ‘ positive assurance “it be said enforced unless must be that covers the interpretation susceptible clause is that the arbitration ’ ” at coverage.” Id. resolved favor should be dispute. Doubts asserted Am. Inc. v. Communications Workers Technologies, AT T quoting & United quoting 89 L.Ed.2d 106 S.Ct. 475 U.S. (1960), 363 U.S. 582- Navigation Co. Am. v. Warrior & Steelworkers Gulf 1347, 4 L.Ed.2d 80 S.Ct. extinguished was before that since the argues arose, out of claim does not arise release duty to file the statutory However, noted in the court as the dissent mortgage agreement. to the or relate agreements until the loan cannot arise unless and “statutory duties appeals, words, precise In other reason full of the note. extinguished by payment namely are not finding that the claims gives the court arbitration — before the claimed happen what must precisely full of the loan—is payment Dist. No. Fargo, Alexander v. Wells 8th duties manifest.” J., (Stewart, dissenting). 2008 WL of and relates to the claim under R.C. 5301.36 arises out Her signing mortgage. It from her initial agreement. stems claim. duties that underlie her triggered
full of the note payment and that the recover, that she off the loan prove To she must timely was not filed. release language demonstrates We therefore hold and Wells to arbitrate the failure between Alexander *4 mortgage. an satisfaction of the entry
file
B. Coleman above, we hold that the arbitration For the same reasons articulated {¶ 17} Coleman and AGFS to arbitrate agreement demonstrates between language by timely agreement signed failure to file a termination statement. The the states: Coleman may disputes you or that certain between you require “Either Lender to binding
and Lender be submitted arbitration.” include, limitation, all disputes Claims without claims and “Covered of, with, your today to loan from Lender relating out in connection or arising * * *; documents, actions, this or loan relating any previous all or omissions to * * * * * collection, *; or closing, servicing, claim or based on the any dispute * * * Provisions; by any covered the Arbitration any enforcement of transaction or any under federal or state statute rule dispute arising claim or based on or [*] [*] [*] ” applies arbitration mandatory states that agreement specifically The * * * has in full.” if been your
“even than stronger the even agreement in this arbitration language arise out of to that claims requirement In addition the Alexander’s. language any federal loan, claims that “arise under mentions or to the the relate if loan has been even the applies or and that arbitration state statute rule” in full. language by Coleman signed that the arbitration We therefore hold to the failure to Coleman and AGF arbitrate demonstrates between timely file a termination statement. The Aetna Standard
C. Academy standard articulated comports Our the holding {¶23} Health, Inc., v. Aetna Medicine Cincinnati case, whether a we held that courts determine based scope of action is within the an arbitration
cause o.n Bros., 2003), (C.A.6, in Fazio v. Lehman F.3d federal standard found if an to ask action proper analysis Fazio held that method of here is “[a] at issue. If relationship maintained without reference to the contract could be Fazio, could, agreement.” it likely scope it is outside the can continued: real torts be paragraph, at 395. Later in that Fazio “Even F.3d the claims “touch by allegations underlying arbitration clauses ‘[i]f covered Co., Ltd., Genesco, T. Inc. v. Kakiuchi & [agreement].’ covered matters” (2d Cir.1987).” (Brackets sic.) Fazio, id. F.2d an action can maintained without The Aetna standard asks whether be Alexan- relationship to the contract or at issue. We hold that neither reference file an of satisfaction nor timely entry der’s action for failure to timely can be Coleman’s action for failure termination statement relationship maintained without reference to the contract or at issue. of action her requires cause demonstrate into and that the statement of agreement was entered and satisfied require was not filed under R.C. 5301.36. Those elements be- mortgagor/mortgagee
reference both
parties
govern
and to the
duties that
them.
tween
*5
Alexander
that the action can be maintained without reference
argues
issue
a
of the statute
relationship
proving
contract or
at
because
violation
the
the
the date
a
the date
was satisfied and
the
requires only showing of
which the
disagree. To establish the date on
release was recorded. We
satisfied,
must first demonstrate the existence
the
was
Indeed,
mortgage requires
itself.
a
of satisfaction of the
showing
parties to
action.
identifying
relationship
the
of the
the
mortgagor/mortgagee
him
that
loan
Similarly, Coleman’s action
to demonstrate
the
requires
28}
{¶
AGFS, that
was
was entered into between himself and
the loan
agreement
full,
in
and that the termination statement was not
by payment
terminated
require
filed under R.C.
Those elements
reference to both the
1309.513.
that attend
relationship.
the
duties
the lender/borrower
The Eighth
Analysis
D.
District’s
holdings
The court
in
cases on
based its
the instant
Pinchot
F.S.B.,
Bank,
390,
WL 11. we of a mortgage held satisfaction or real estate lien is not an integral part lending release process However, because it occurs after is at the debt satisfied. Id. lending whether the recording integral part process is not the standard. Aetna asks Health whether cause of action can be maintained without reference to contract Regardless at issue. of whether of a finance-termination is an statement part of integral process, of action be cause still related to the relationship that was created when the instrument was signed. We also note Pinchot concerned federal regulation
preempted a state
governing mortgage-satisfaction
statute
recording require-
Id.,
However,
syllabus.
ments.
there is presumption against
preemp-
federal
Medtronic,
tion,
Lohr
Inc. v.
518 U.S.
116 S.Ct.
Farms,
L.Ed.2d
while
is a
in
presumption
there
favor of
ABM
at
St.3d
articulated Aetna Health must be used to determine whether the arbitration agreements signed by Alexander and Coleman cover their claims. Dispositions
III. in both judgments cases must be reversed. The trial court case, 2008-1009, Coleman’s No. found that the not did action, apply the cause of did not therefore rule on whether the agreement was unconscionable or void as against public policy. Although the trial court case, 2008-0905, No. found that the was not unconsciona- ble, court appeals, reversing, Accordingly, did address that issue. *6 2008- (Coleman) court and case No. to the trial is remanded No. 2008-1009
case (Alexander) for further determinations. to the court of reversed Judgments and causes remanded. JJ., and Moyer, C.J., and O’Connor, Stratton, O’Donnell, Cupp, dissents. Pfeifer, J., dissenting. Bank, F.S.B., 2003-Ohio- One Pinchot Charter stated, “The this court integral part lending lien release is not
satisfaction or real estate of credit is and the extension as it occurs after the debt satisfied process, mort- begin cannot even until the recording requirement extinguished. Such statement, applicable which is as This already has been terminated.” gage issue before and resolves the mortgages, loans as to real estate liens consumer and Wells between Lillie Alexander mortgage relationship us. The Shelton 1, Inc., consumer-loan between Financial and the Services, the loans Inc. ended when and American General Coleman whether Wells and question in full. Accordingly, were to file statements statutory obligations satisfied their American General 5301.36(B) 1309.513, is not respectively, and termination under R.C. loan agreements. out of or relate to the arbitration because it does not arise 5301.36(C) and matter, R.C. provided As a the remedies practical 1309.625(E)(4) if are forced into arbitration. meaningless plaintiffs counsel, they if plaintiffs engage too small to allow amounts involved are cannot a class action. pursue I dissent. Perroti; Ruschel, Co., L.P.A., and Brian and Patrick J.
Dworken & Bernstein appellee for case No. 2008-0905. Wilkinson, D. Hiñe, L.L.P., King, Cooper, Scott A. Chad William C.
Thompson Jr., for in case No. 2008-0905. Terry Posey appellant W. Ruschel, in case No. 2008-1009. appellee Brian for Stafford, P.L.L.C., McGlinchey Yaksic, Barbara Friedman A. Richard Fresh- water, Lacks, and Monica Levine appellant case No. 2008-1009. L.L.P.,
Ballard Spahr Ingersoll, Andrews & Alan Kaplinsky, S. and Mark J. Levin; L.L.P., McLaughlin McCaffrey, & Patrick M. McLaughlin, and *7 Kirshner, Adrienne B. amici urging reversal for curiae American Financial Services Association and Consumer Bankers Association. Hiñe, L.L.P.,
Thompson Bollin, DeFeo, T.Kip and James L. urging reversal CitiFinancial, for amicus curiae Inc.
Kirchner, Admr., Appellant,
v. Shooters
on
Appellees.
Water,
al.,
et
Inc.
Water,
[Cite
as Kirchner
v. Shooters on the
Holly Hill Co., Paul L.P.A., W. Flowers Flowers; and Paul W. and Law Offices of Frank Plevin, Gallucci and Leon M. appellant. Co., L.P.A.,
Valore & Cruse Jeffrey Elzeer, M. Kerka; and Kathryn A. Taft, Hollister, L.L.P., Stettinius & and Mark Valponi, for appellees Shooters Water, Inc., on the and Roger Loecy.