KAREN M. METZGER, ADMINISTRATRIX, ET AL., Plaintiffs-Appellants, v. STRONGSVILLE CARE GROUP, LLC, ET AL., Defendants-Appellees.
No. 114290
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 15, 2025
2025-Ohio-1732
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: May 15, 2025
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-23-981011
Appearances:
The Mellino Law Firm LLC, Christopher M. Mellino, and Calder C. Mellino, for appellants.
Reminger Co., L.P.A., Daniel C. Egger, and Brianna M. Prislipsky, for appellees.
MARY J. BOYLE, J.:
{¶ 1} In this appeal, plaintiffs-appellants Karen M. Metzger (“Karen“), individually and as administratrix of the estate of John E. Metzger (“John“); Deana Balogh (“Deana“); and Doreen E. Cannon (“Doreen“) (collectively referred to as
I. Facts and Procedural History
{¶ 2} On June 13, 2022, Karen, John‘s wife, completed paperwork on John‘s behalf admitting him to Cardinal Court Alzheimer‘s Special Care Center (“Cardinal Court“), a residential care and memory care facility in Strongsville, Ohio. John was in the hospital at that time and was transferred to Cardinal Court on June 14, 2022. The next day, less than 24 hours into his stay at Cardinal Court, a family member came to visit John and was unable to find him. When the family member tried to open the door to his room, the door was locked. After locating a Cardinal Court emрloyee to unlock the door, the family member found John face
{¶ 3} In their complaint, Karen, and Deana and Doreen, John and Karen‘s daughters, brought a survivorship claim and a wrongful-death claim. In their survivorship claim, Karen, as the administratrix of John‘s estate, alleges that Cardinal Center was negligent in their treatment of John while he was under their care and as a “direct and proximate result of the negligence of all Defendants, [John] fell while unmonitored, unattended, and locked in his room causing him to sustain blunt force trauma to his head on June 15, 2022 and death.” (Plaintiffs’ amended complaint, June 15, 2023.) Plaintiffs allege that John suffered “permanent and substantial injuries, loss of bodily organ systems, was no longer able to independently perform life sustaining functions, endured agonal pain and suffering prior to his death on June 17, 2022.” (Plaintiffs’ amended complaint, June 15, 2023.) Plaintiffs further allege that Karen, Deana, and Doreen sustained “pecuniary injury . . ., including loss of companionship, consortium, care, assistance, attention,
{¶ 4} In response, defendants filed their answer to plaintiffs’ complaint on August 11, 2023. While one of defendants’ affirmative defenses asserted that a binding arbitration agreement governed the dispute, defendants did not include a copy of the agreement with their answer. Thirteen days later, on August 24, 2023, defendants filed an amended answer, wherein they again asserted that a binding arbitration agreement govеrned the dispute but also included a copy of the agreement as an exhibit.
{¶ 5} Then, four days later, defendants filed a motion to stay proceedings and compel mediation and arbitration. Defendants argued that, prior to John‘s admission to Cardinal Court, Karen, on John‘s behalf, entered into an alternative dispute resolution agreement (“Agreement“) with Cardinal Court. According to this Agreement, “[a]ll claims or disputes arising out of or in any way relating to the admission agreement, the health care services and other services provided to the Resident by the Facility, (referred to in this Agreement individually as a ‘Claim’ and collectively as ‘Claims‘) shall be resolved first by Mediation and thereafter if
- That is not my handwritten signature on the [Agreement].
- I do not recall ever seeing this document.
- I do not recall ever reviewing this document.
- I do not recall having this document explained to me.
- I do not recall signing this document.
- I have no record of this document, in paper or electronic form.
- I have no record of signing this document.
- I do not recall signing any documents for Cardinal Court electronically.
- I am not aware of any authority to waive my husband‘s constitutional rights to a trial by jury аnd open courts.
- I have never had any intent to waive either my husband‘s nor my constitutional rights to a trial by jury and open courts.
(Karen‘s affidavit, Sept. 11, 2023.)
{¶ 6} An affidavit from Doreen was also attached, wherein she similarly stated that she did not recall her mother signing the arbitration agreement. Doreen stated:
- On June 13, 2022, my mother only signed documents for my father‘s admission to Cardinal Court in pen and ink, not electronically.
- To the best of my knowledge, my mother only ever signed documents in person and in writing for Cardinal Court. I am not aware of my mother еver signing anything electronically for my father‘s admission to Cardinal Court.
(Doreen‘s affidavit, Sept. 11, 2023.)
{¶ 7} In defendants’ reply brief, they provided an affidavit of Kimberly Wilfong (“Wilfong“), the Executive Director of Cardinal Court, who stated that she provided Karen with “a physical copy of the [Agreement], which [Karen] reviewed and signed digitally using a DocuSign signature, which [Wilfong] personally witnessed.” (Wilfong affidavit, Sept. 15, 2023.) Also included was a report Wilfing received from DocuSign, which she stated confirms the time and date that Karen digitally signed the Agreement. Defendants also provided copies of John‘s health care power of attorney and general durable power of attorney agreements.
{¶ 8} Plaintiffs filed a surreply to defendants’ reply. In their surreply, plaintiffs argued that defendants attached new documents to their reply that had never been produced to plaintiffs. Furthermore, plaintiffs argued that “it makes no sense that defendant‘s employee would present [Karen] with a hard copy of documents and have her sign all of them in ink, excеpt this particular one. Defendant has still not explained why, or where, or how this document was signed.
{¶ 9} On November 21, 2023, the trial court held an evidentiary hearing on defendants’ motion to stay proceedings and compel mediation and arbitration. The following evidence was adduced at the hearing.
{¶ 10} Cardinal Court called Wilfong as its only witness. Wilfong testified that some of her responsibilities as executive director of Cardinal Court include signing documents with the family upon admission. According to Wilfong, she met with Karen and one of her daughters on June 13, 2022, to review and sign documents necessary for John‘s admission into Cardinal Court. They met in the conference room where she sits down with the family. At these meetings, Wilfong “will have a hard copy of the arbitration agreement, the resident agreement for them to review, since it is DocuSign, and then we have additional documents that they will sign in person, consent forms and things that are required.” (Tr. 7-8.)
{¶ 11} Wilfong testified that she usually reviews copies of the incoming resident‘s durable power of attorney and healthcare power of attorney as well as medical paperwork prior to meeting with the family. Wilfong testified that it is Cardinal Court‘s general policy for her to “offer the family the document hard copy for them to review because it does have to be signed via DocuSign, and at that time we will usually sign the additional paperwork that is in person, and then [she] will bring [her] laptop over and have the representative go through and do the document through the DocuSign.” (Tr. 9.) According to Wilfong, it was her understanding
{¶ 12} On cross-examination, Wilfong testified that Karen did not actually sign the ADR agreement, but rather signed the document electronically through DocuSign by pressing a button on her laptop. According to Wilfong, the Agreement “is in a green binder, and it is given to every family so they can sit down and review it.” (Tr. 26.) Wilfong аcknowledged that the IP address for Karen‘s electronic signature came from her laptop and her IP address and not Karen‘s IP address. Wilfong explained that it came from her IP address because Karen “signed it in person with [her.]” (Tr. 15.) Wilfong testified that she did not “remember much of anything else about that day,” other than remembering that Karen electronically signed the Agreement. (Tr. 17.) Wilfong testified that she entered Karen‘s name and the admission date into DocuSign, but acknowledged that if she pressed the button, the audit trail would still indicate that Karen signed the document. Wilfong further acknowledged that the DocuSign audit trail indicates that John also electronically signed documents at her IP address at her meeting with Karen and her daughter,
{¶ 13} Wilfong further testified on cross-examination that the Agreement “is not a condition of admission, but it is part of the contract. If they choose not to sign, it would be removed.” (Tr. 23.) Wilfong acknowledged that she received a letter from Michael Czack (“Czack“), an attorney on behalf of the plaintiffs, in January 2023 informing her that the plaintiffs were bringing a claim against Cardinal Court. Her response to that letter was handled through the home office. She did not personally provide the executed Agreement to Cardinal Court‘s risk management team. She did give her lawyer the agreement, but could not recall when she did. When asked by the court, Wilfong acknоwledged that Karen did not sign the physical copy of the Agreement that she reviewed.
{¶ 14} Plaintiffs first called Czack, who testified that he submitted a claim against Cardinal Court in November 2022. He sent a letter to Cardinal Court requesting John‘s file. He testified that Wilfong responded to him in November and “she sent [him] supposedly all of [John‘s] file.” (Tr. 34.) According to Czack, the initial documents Wilfong sent him did not include the Agreement. Cardinal Court‘s attorney reached out to him in January 2023. Cardinal Court‘s attorney never informed him of an ADR agreement during their communications.
{¶ 15} Karen testified that the signature on the Agreement was not hers. When asked if she signed anything electronically at Cardinal Court, Karen replied,
{¶ 16} Doreen testified that she was with Karen and Wilfong while Karen was signing the documents. John was at the hospital the day they met with Wilfong. Doreen further testified that Karen signed all the documents by “[p]en аnd ink.” (Tr. 45.) She was at the meeting the entire time and did not observe her mother sign anything electronically. Doreen further testified that the signature on the last page of the Agreement was not her mother‘s.
{¶ 17} Following the hearing and prior to the trial court issuing a decision, the trial judge was replaced by another judge in February 2024. Subsequent to this new appointment, in March 2024, plaintiffs voluntarily dismissed their survivorship claim under
{¶ 18} According to the docket, a third judge was assigned to oversee these proceedings in June 2024. At that time, this successor judge ruled on defendants’ motion for reconsideration. The successor judge granted the motion in part, finding that the “proper procedure for a plaintiff to dismiss fewer than all claims against a single defendant is to amend the complaint pursuant to
The court has reviewed the briefs, as well as the transcript of the full heаring held before Judge . . . on November 21, 2023. The court finds that the testimony of the Executive Director of Cardinal Court Alzheimer‘s Care Center, Kimberly Wilfong, processed the admittance of decedent John E. Metzger according to the regular scope and procedure of the care facility. While the testimony of Plaintiff and Plaintiff‘s daughter indicates they did not recall the signing of the arbitration provision, there was no testimony elicited that Ms. Wilfong made any misrepresentations regarding the arbitration рrovision, nor was there testimony to establish that the signing of the document was induced in a fraudulent manner. Moreover, the testimony and a review of the provision indicates that signing the ADR provision was not a condition precedent to admittance to the facility. Accordingly, the court finds that the motion to stay is well-taken and granted. The motion to compel arbitration with respect to the survivorship claim is well-taken and granted.
(Journal entry, Aug. 1, 2024.)
{¶ 19} It is from this order that plaintiffs now appeal, raising the following two assignments of error for review:
Assignment of Error I: The trial court erred procedurally where a successor judge rendered judgment based upon a transcript of a prior proceeding he did not witness and where witness credibility is a factor, instead of holding his own hearing.
Assignment of Error II: The trial court erred substantively by enforcing an invalid contract that will create piecemeal litigation that wastes judicial time and resources.
II. Law and Analysis
{¶ 20} Within both assigned errors, plaintiffs challenge the court‘s ruling on defendants’ motion to compel arbitration, arguing that (1) it was error for the successor judge to grant defendants’ motion to compel arbitration because the successor judge did not preside over the arbitration hearing and credibility was at issue, and (2) the arbitration clause is invalid.
A. Successor Judge Rendering Judgment on a Transcript
{¶ 21} In the first assignment of error, plaintiffs contend that it was error for the court to grant defendants’ renewed motion to stay proceedings and motion to compel enforcement of the Agreement when the successor judge did not hear the evidence at the motion hearing but, instead, based the decision on a consideration of the hearing transcript. Relying on Vergon v. Vergon, 87 Ohio App.3d 639 (8th Dist. 1993), and the cases cited therein, plaintiffs maintain that “it is reversible error for a successor judge to make findings of fact and conclusions of law based solely upon the transcript of live testimony they did not witness.” (Appellant‘s brief, p. 8.) As a result, plaintiffs request that “[a]t a minimum, the successor judge must hold a
{¶ 22} In Vergon, a trial was held in divorce proceedings on the same day the trial judge retired. The judge signed and journalized an opinion after his retirement date. Thereafter, a successor judge signed a journal entry and granted the divorce. This journal entry adopted verbatim the wife‘s proposed findings of fact and conclusions of law. Husband appealed from this entry and argued that the successor judge did not have jurisdiction to grant the divorce and that judgment was void.
{¶ 23} This court held that the predecessor trial judge‘s opinion was void because once his term expired he was without authority to act. Id. We found that the successor judge‘s judgment was void because credibility was a vital factor in rendering judgment and the “record is full of conflicting testimony which would be difficult to evaluate absent observation of the witnesses.” Id. Relying on Welsh v. Brown-Graves Lumber Co., 58 Ohio App.2d 49 (9th Dist. 1978), and Arthur Young & Co. v. Kelly, 68 Ohio App.3d 287 (10th Dist. 1990), we stated “[t]he successor judge cannot render a judgment on the transcript when witness credibility is a faсtor. Credibility determinations require the trier of fact to observe the testimony.” Vergon at 643.
{¶ 24} In Welsh, the Ninth District Court of Appeals held that a successor judge could not render judgment if the judge‘s predecessor had not filed findings of
The clear implication of part (B) [of
Civ.R. 63 ] is, that when the trial judge acts in the capacity of the trier-of-fact, a successor judge cannot take over the case if the predecessor judge has not filed findings of fact and conclusions of law. This prohibition is clearest in a case such as this, where the predecessor judge has not rendered a judgment. SeeCiv.R. 52 .
{¶ 25} After discussing Ohio case law supporting this view, the Welsh Court noted that in the “rarely encountered” situation where witness credibility was not a factor before the trier of fact, it would not be an error for the successor judge to render judgment. Id. In that situation, it is nоt troublesome that the successor judge did not observe the witnesses. Id., citing Annotation, Power of Successor or Substituted Judge, in Civil Case, to Render Decision or Enter Judgment on Testimony Heard by Predecessor, 22 A.L.R.3d 922 (1968); see also State v. McKinley, 7 Ohio App.3d 255 (8th Dist. 1982) (applying
{¶ 26} In Arthur Young, the Tenth District Court of Appeals addressed the issue of a successor judge rendering a judgment on a transcript involving witness credibility in the context of a contempt hearing. The Arthur Young Court found that the principle of Welsh, 58 Ohio App.2d 49 (9th Dist. 1978), applied to the matter before it and concluded that “[w]hen credibility is involved, a fair hearing requires
{¶ 27} Defendants argue that Vergon, 87 Ohio App.3d 639 (8th Dist. 1993), is problematic because it involves a judgment rendered by a successor judge in a bench trial. Defendants further argue that the successor judge did not make a credibility determination; therefore, plaintiffs failed to demonstrate that “a successor judge abuses his discretion when he — upon proper review of a hearing transcriрt — issues a ruling on a pending motion without making determinations as to credibility.” (Defendants’ brief, p. 13.)
{¶ 28} Defendants’ arguments are unpersuasive. We are compelled to conclude that the principles of Vergon, Welsh, and Arthur Young apply to the matter before us. Contrary to defendants’ assertion, credibility is a vital factor in rendering judgment in the instant case. Indeed, the crux of the case is whether Karen electronically signed the Agreement. The transcript is full of conflicting testimony, which would be difficult to evaluate absent observation of the witnesses. Thus, a credibility determination is implicit within the analysis of whether Karen agreed to be bound by an ADR to resolve any claims.
{¶ 29} Here, Karen testified that she never received a copy of the Agreement, that was not her signature on the Agreement, and that she does not believe she signed anything electronically at Cardinal Court. Doreen testified that her mother signed all the documents by “[p]en and ink.” (Tr. 45.) She was at the meeting the entire time and did not observe her mother sign anything еlectronically. Whereas,
{¶ 30} For the foregoing reasons, this court finds that credibility issues were involved at the hearing on the motion to stay proceedings and compel mediation and arbitration, and the court erred in granting defendants’ motion on the basis of the transcript. The factfinder must weigh the credibility of the witnesses’ testimony in order to make a determination in this case. Therefore, the matter is remanded for a new hearing on defendants’ motion.
{¶ 31} Although the plaintiffs urge this court to render a decision in the interest of judicial economy, we cannot review the trial court‘s determination without the trial court first holding a new hearing in order to personally assess the witnesses’ credibility.
{¶ 32} Therefore, the first assignment of error is sustained.
{¶ 33} In plaintiffs’ second assignment of error, they argue that the court erred by enforcing an invalid contract that will create piecemeal litigation and wastes judicial time and resources. Our disposition of the first assignment of errоr, however, renders the second assignment of error moot.
{¶ 34} Accordingly, judgment is reversed and the matter is remanded for a hearing on defendants’ motion to stay the proceedings and compel arbitration.
It is ordered that appellants recover from appellees costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
MARY J. BOYLE, JUDGE
EILEEN A. GALLAGHER, A.J., and MICHELLE J. SHEEHAN, J., CONCUR