BETHANY ZELLNER, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF GLENNA A. ZELLNER v. PRESTIGE GARDENS REHABILITATION AND NURSING CENTER, ET AL.
CASE NO. 14-18-14
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
February 19, 2019
[Cite as Zellner v. Prestige Gardens Rehab. & Nursing Ctr., 2019-Ohio-595.]
Appeal from Union County Common Pleas Court Trial Court No. 2018-CV-0062 Judgment Affirmed
Blake A. Dickson for Appellant
Keona Padgett for Appellees
PRESTON, J.
{¶1} Plaintiff-appellant, Bethany Zellner (“Zellner“), as the personal representative of the estate of Glenna Zellner (“Glenna“), appeals the July 3, 2018 judgment of the Union County Court of Common Pleas granting the motion to stay pending arbitration of defendants-appellees, Prestige Gardens Rehabilitation and Nursing Center, Marysville Gardens Rehabilitation and Health Care LLC, Chickiestrong Marysville Gardens LLC, Garden Healthcare Group LLC, Joshua Farkovitz, David Gamzeh, Akiva Glatzer, and various John Does (collectively the “defendants“). For the reasons that follow, we affirm.
{¶2} This case arises from Glenna‘s death following her admission to Prestige Gardens Rehabilitation and Nursing Center (“Prestige Gardens“). Glenna was admitted to Prestige Gardens on April 18, 2017.1 (See Doc. No. 26). (See also Doc. No. 23, Defendants’ Ex. A). Glenna suffered from dementia and Parkinson‘s disease, and as a result, she needed assistance performing basic daily tasks, including bathing and dressing. (See Doc. No. 26). She also required “extensive assistance to walk and transfer herself.” (Id.). According to Zellner, although Glenna was identified “as a high fall risk” by Prestige Gardens‘s staff, “no individualized interventions were put in place to prevent [Glenna] from suffering
{¶3} On April 9, 2018, Zellner filed a complaint asserting various claims for personal injury, wrongful death, medical negligence, ordinary negligence, and violations of Ohio‘s Nursing Home Residents’ Bill of Rights. (Doc. No. 2). The defendants filed their answer on May 9, 2018. (Doc. No. 21). On May 16, 2018, Zellner filed an affidavit of merit. (Doc. No. 22). On May 31, 2018, the defendants filed a motion to stay the proceedings pending arbitration pursuant to an arbitration agreement signed by Glenna‘s power of attorney, her husband, Jack Zellner (“Jack“), in the course of admitting Glenna to Prestige Gardens on April 18, 2017. (Doc. No. 23). (See Doc. No. 23, Defendants’ Ex. A).
{¶4} On June 11, 2018, the defendants filed a motion for a protective order. (Doc. No. 25). On June 13, 2018, Zellner filed a combined motion for extension of time to respond to the defendants’ motion to stay proceedings pending arbitration, motion to compel, and brief in opposition to the defendants’ motion for a protective order. (Doc. No. 26). On June 26, 2018, the defendants filed a combined
{¶5} On July 3, 2018, the trial court granted the defendants’ motion to stay the proceedings pending arbitration and stayed Zellner‘s action pending arbitration. (Doc. No. 28).
{¶6} On August 1, 2018, Zellner filed a notice of appeal. (Doc. No. 33). She raises three assignments of error.
Assignment of Error No. I
The Trial Court erred in permanently staying this case in favor of binding arbitration because the arbitration clause2 is void, invalid, and unenforceable.
{¶7} In her first assignment of error, Zellner argues that the trial court erred by staying the entire proceedings pending arbitration. Zellner advances five distinct arguments in support of this assignment of error. First, Zellner argues that the trial court erred by staying the action because the arbitration agreement is void, invalid, and unenforceable as it is procedurally and substantively unconscionable and because it fails to comply with
{¶8} “Typically, a decision to grant or deny a stay of proceedings pending arbitration is reviewed under an abuse-of-discretion standard.” Kellogg v. Griffiths Health Care Group, 3d Dist. Marion No. 9-10-59, 2011-Ohio-1733, ¶ 9, citing Morris v. Morris, 189 Ohio App.3d 608, 2010-Ohio-4750, ¶ 15 (10th Dist.). An abuse of discretion suggests the trial court‘s decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). “‘Furthermore, when a trial court makes factual findings, such as any findings regarding the circumstances surrounding the making of the contract, those factual findings should be reviewed with great deference.‘” Loyer v. Signature Healthcare of Galion, 3d Dist. Crawford No. 3-16-09, 2016-Ohio-7736, ¶ 7, quoting Kellogg at ¶ 9, citing Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St.3d 352, 2008-Ohio-938, ¶ 38 and Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 73 Ohio St.3d 107, 108 (1995) (contract interpretation, a question of law, is reviewed de novo, “[u]nlike determinations of fact which are given great deference“). “’ “However, a de novo standard of review is appropriate when the appeal presents a question of law.” ’ ” Id., quoting Spearman v. Am. Elec. Power Co., Inc., 3d Dist. Hardin No. 6-14-13, 2015-Ohio-928, ¶ 13, quoting Kellogg at ¶ 9, citing Morris at ¶ 15 and Barhorst, Inc. v. Hanson Pipe & Prods. Ohio, Inc., 169 Ohio App.3d 778, 2006-Ohio-6858, ¶ 10 (3d Dist.).
{¶9} “‘Both the Ohio General Assembly and Ohio courts have expressed a strong public policy favoring arbitration.‘” U.S. Bank Natl. Assn. v. Allen, 3d Dist. Paulding No. 11-15-09, 2016-Ohio-2766, ¶ 24, quoting Hayes v. Oakridge Home, 122 Ohio St.3d 63, 2009-Ohio-2054, ¶ 15, citing
{¶10} “The General Assembly has endorsed the strong policy in favor of arbitration of disputes in
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.
“[A]n order under
{¶12} “Unconscionability is a ground for revocation of an arbitration agreement.” Hayes, 122 Ohio St.3d 63, 2009-Ohio-2054, at ¶ 19, citing Taylor Bldg., 117 Ohio St.3d 352, 2008-Ohio-938, at ¶ 33. “A contract is unconscionable when it is created through ‘an absence of meaningful choice on the part of one of the parties to a contract, combined with contract terms that are unreasonably favorable to the other party.‘” Yellow Book Sales v. Beamer, 3d Dist. Union No. 14-11-18, 2012-Ohio-654, ¶ 24, quoting Collins v. Click Camera & Video, Inc., 86 Ohio App.3d 826, 834 (2d Dist.1993)both procedurally and substantively unconscionable.‘” (Emphasis added.) Hayes at ¶ 20, quoting Taylor Bldg. at ¶ 34, citing Ball v. Ohio State Home Servs., Inc., 168 Ohio App.3d 622, 2006-Ohio-4464, ¶ 6 (9th Dist.) and Collins at 834, citing White & Summers, Uniform Commercial Code, Section 4-7, 219 (3d Ed.1988). See Hayes at ¶ 30 (“A party challenging an arbitration agreement must prove a quantum of both procedural and substantive unconscionability.“), citing Taylor Bldg. at ¶ 34. This court reviews de novo whether an arbitration agreement is unconscionable. Hayes at ¶ 21.
{¶13} “In determining whether an arbitration agreement is procedurally unconscionable, courts consider ‘the circumstances surrounding the contracting parties’ bargaining, such as the parties’ “‘age, education, intelligence, business acumen and experience, * * * who drafted the contract, * * * whether alterations in the printed terms were possible, [and] whether there were alternative sources of supply for the goods in question.‘“‘” Id. at ¶ 23, quoting Taylor Bldg. at ¶ 44, quoting Collins at 834, quoting Johnson v. Mobil Oil Corp., 415 F.Supp. 264, 268 (E.D.Mich. 1976). Additional factors that may contribute to a finding of procedural unconscionability include:
“‘belief by the stronger party that there is no reasonable probability that the weaker party will fully perform the contract; knowledge of the stronger party that the weaker party will be unable to receive substantial benefits from the contract; knowledge of the stronger party that the weaker party is unable reasonably to protect his interests by reason of physical or mental infirmities, ignorance, illiteracy or inability to understand the language of the agreement, or similar factors.‘”
Id. at ¶ 24, quoting Taylor Bldg. at ¶ 44, quoting 2 Restatement of the Law 2d, Contracts, Section 208, Comment d (1981). “All of the factors must be examined and weighed in their totality in determining whether an arbitration agreement is procedurally unconscionable.” Id. at ¶ 30.
{¶14} On the other hand, “[a]n assessment of whether a contract is substantively unconscionable involves consideration of the terms of the agreement and whether they are commercially reasonable.” Id. at ¶ 33, citing John R. Davis Trust 8/12/05 v. Beggs, 10th Dist. Franklin No. 08AP-432, 2008-Ohio-6311, ¶ 13 and Dorsey v. Contemporary Obstetrics & Gynecology, Inc., 113 Ohio App.3d 75, 80 (2d Dist.1996).
{¶15} The arbitration agreement in this case provides, in relevant part, as follows:
ATTACHMENT D: VOLUNTARY ARBITRATION AGREEMENT
* * *
1. General Provisions. By signing this Agreement, the Parties agree that, except as otherwise set forth herein, any action, claim, dispute or controversy of any kind, whether in contract, tort, statutory, common law, legal, equitable, or otherwise, during the term of the Admissions Agreement or hereafter arising between the parties in any way arising out of, pertaining to, or in connection with, the provision of health care services or any agreement between the Parties including, but not limited to, the scope of this Agreement with, and the arbitrability of,
any claim or dispute, against whomever made (including, to the full extent permitted by applicable laws, third parties who are not signatories to this Agreement) shall be resolved by binding arbitration administered by the American Arbitrators Association (“AAA“), under the AAA Rules and Procedures then in effect. * * * * * *
4. Arbitration Award and Fees. The award of costs of the arbitration shall be determined by the arbitrator in accordance with all applicable laws. The administrative fee and arbitrator‘s compensation shall be initially advanced by the party requesting arbitration, but shall be allocated on the ratio of final award to each party over the total award in the final arbitration order.
* * *
8. Right to Cancel Agreement. I understand that I do not have to sign this Agreement to receive health care services and that I may cancel by providing written notice of cancellation to the facility within thirty (30) days after signing this agreement. Following such thirty day revocation period, revocation or cancellation of this agreement may only be made by mutual agreement of the parties in writing.
THE RESIDENT UNDERSTANDS AND ACKNOWLEDGES THAT BY THE RESULT OF ENTERING INTO THIS AGREEMENT IS THAT ALL DISPUTES OR CLAIMS WHICH HE OR SHE MAY HAVE AGAINST THE FACILITY, CANNOT BE BROUGHT AS A LAWSUIT IN COURT OF LAW BEFORE A JUDGE OR JURY, AND INSTEAD AGREES THAT ALL SUCH DISPUTES OR CLAIMS WILL BE RESOLVED BY BINDING ARBITRATION.
THE UNDERSIGNED HAS READ, UNDERSTANDS AND AGREES TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS AS SET FORTH HEREIN.
(Underlining, capitalization, and boldface sic.) (Doc. No. 23, Defendants’ Ex. A).
{¶16} Under the facts presented here, we conclude that the arbitration agreement is not unconscionable. Specifically, because the arbitration agreement is comparable to arbitration agreements that various Ohio courts have sustained against claims of substantive unconscionability, we conclude that Zellner has failed to carry her burden of showing that the arbitration agreement is substantively unconscionable.
{¶17} First, rather than being a short clause buried in a larger contract, the arbitration agreement in this case is a separate, stand-alone document consisting of
{¶19} Finally, Zellner argues that the arbitration agreement is substantively unconscionable because she would be required to advance the costs of arbitration up front and could ultimately be responsible for paying all of those costs. This argument is unavailing. Although she does not phrase her argument as such, Zellner appears to suggest that the arbitration agreement‘s provision for the payment of costs and fees is effectively a “loser pays” provision.
{¶20} Ohio courts of appeals have consistently concluded that “loser pays” provisions in arbitration agreements are unenforceable as being against public policy or that they are a factor weighing in favor of finding substantive unconscionability. See, e.g., Gaither v. Wall & Associates, Inc., 2d Dist. Montgomery No. 26959, 2017-Ohio-765, ¶ 50-51, 65, citing DeVito v. Autos Direct Online, Inc., 8th Dist. Cuyahoga No. 100831, 2015-Ohio-3336, ¶ 36-46; Fortune, 164 Ohio App.3d 689, 2005-Ohio-6195, at ¶ 27-30, 34; Small v. HCF of Perrysburg, Inc., 159 Ohio App.3d 66, 2004-Ohio-5757, ¶ 24-26 (6th Dist.). However, we conclude that the disputed provision is not a “loser pays” provision that renders the
{¶21} More importantly, the agreement provides that only “[t]he administrative fee and arbitrator‘s compensation” shall be allocated in this fashion. The award of other, potentially exorbitant costs of arbitration, which may include attorneys’ fees, discovery expenses, and costs associated with motion practice, “shall be determined by the arbitrator in accordance with all applicable laws.” Such “applicable laws” could include, for example, the general rule that “a prevailing party in a civil action may not recover attorney fees as a part of the costs of litigation.” Wilborn v. Bank One Corp., 121 Ohio St.3d 546, 2009-Ohio-306, ¶ 7, citing Nottingdale Homeowners’ Assn., Inc. v. Darby, 33 Ohio St.3d 32, 33-34 (1987) and State ex rel. Beebe v. Cowley, 116 Ohio St. 377, 382 (1927). Thus, this clause does not necessarily require the losing party to pay all of the prevailing party‘s expenses and is distinguishable from the “loser pays” provisions that have
{¶22} In addition, Zellner contends that this clause renders the arbitration agreement substantively unconscionable because, by making arbitration prohibitively expensive, it “deter[s] a potential plaintiff who has been the victim of negligence from moving forward with arbitration * * *.” (See Appellant‘s Brief at 10-11, 17). “There is a point at which the costs of arbitration could render a clause unconscionable as a matter of law.” Neel v. A. Perrino Constr., Inc., 8th Dist. Cuyahoga No. 105366, 2018-Ohio-1826, ¶ 18, citing Arnold v. Burger King, 8th Dist. Cuyahoga No. 101465, 2015-Ohio-4485, ¶ 89, citing Taylor Bldg., 117 Ohio St.3d 352, 2008-Ohio-938, at ¶ 60. However, “an arbitration clause will not be held unenforceable based on unsupported allegations of prohibitive costs.” Taylor Bldg. at ¶ 59, citing Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 121 S.Ct. 513 (2000). The party seeking to avoid arbitration because of prohibitive cost “must provide more than unsupported allegations of prohibitive costs, because ‘the mere risk that a plaintiff would be forced to pay exorbitant costs is too speculative to justify invalidation of the arbitration agreement.‘” Neel at ¶ 19, quoting Taylor Bldg. at ¶ 57.
{¶23} Here, Zellner did not present any evidence whatsoever demonstrating that the costs of arbitration would be prohibitive, unreasonable, or unfair as applied to her. See Rinderle v. Whispering Pines Health Care Ctr., 12th Dist. Fayette No. CA2007-12-041, 2008-Ohio-4168, ¶ 19, citing Taylor Bldg. at ¶ 56-57. See also Harrison, 2013-Ohio-3163, at ¶ 42-44. The arbitration agreement clearly identifies both the organization that would be responsible for administering arbitration and the rules and procedures under which such arbitration would be conducted.3 Yet, Zellner did not present a fee schedule from the organization, offer an explanation as to why such a schedule could not be obtained, or attempt to provide a calculation of the total expected costs of arbitration beyond initial administrative and filing fees. Additionally, Zellner provided no evidence of the estate‘s financial position or of her individual financial position. Thus, even if Zellner had put on evidence of the expected costs of arbitration, the trial court would not have been capable of
{¶24} In light of the foregoing, we conclude that Zellner has not carried her burden of demonstrating that the arbitration agreement is substantively unconscionable. Because the party alleging unconscionability must demonstrate both substantive and procedural unconscionability, we need not address whether the arbitration agreement is procedurally unconscionable. See Shearer v. VCA Antech, Inc., 10th Dist. Franklin No. 11AP-44, 2011-Ohio-5171, ¶ 29 (“The failure to demonstrate either type of unconscionability alleviates the need to address the other.“), citing John R. Davis Trust, 2008-Ohio-6311, at ¶ 21, Reno v. Bethel Village Condominium Assn., Inc., 10th Dist. Franklin No. 08AP-10, 2008-Ohio-4462, ¶ 13, and Corl v. Thomas & King, 10th Dist. Franklin No. 05AP-1128, 2006-Ohio-2956, ¶ 37. Therefore, the trial court did not abuse its discretion by staying the proceedings despite Zellner‘s claims of unconscionability.
{¶25} We also consider Zellner‘s argument that the arbitration agreement is unenforceable for failure to comply with
[A] written contract between a patient and a hospital or healthcare provider to settle by binding arbitration any dispute or controversy arising out of the diagnosis, treatment, or care of the patient rendered by a hospital or healthcare provider, that is entered into prior to the diagnosis, treatment, or care of the patient is valid, irrevocable, and enforceable once the contract is signed by all parties. The contract remains valid, irrevocable, and enforceable until or unless the patient or the patient‘s legal representative rescinds the contract by written notice within thirty days of the signing of the contract.
To be valid and enforceable any arbitration agreements pursuant to sections
2711.01 and2711.22 of the Revised Code for controversies involving a medical, dental, chiropractic, or optometric claim that is entered into prior to a patient receiving any care, diagnosis, or treatment shall include or be subject to the following conditions:* * *
(C) The agreement shall provide that the decision whether or not to sign the agreement is solely a matter for the patient‘s determination without any influence;
* * *
(E) The agreement shall provide that the arbitration expenses shall be divided equally between the parties to the agreement;
* * *
(G) The arbitration agreement shall be separate from any other agreement, consent, or document[.]
{¶26} We conclude that the trial court did not abuse its discretion by staying the entire proceedings because, even assuming that the arbitration agreement does not comply with
{¶27} Here, in addition to bringing various medical claims against the defendants, Zellner‘s complaint also includes a claim for ordinary negligence. Zellner‘s complaint provides as follows:
56. The claims against the Defendants in this case include claims for ordinary negligence that do not involve a decision, act, or omission
requiring knowledge of medical science or specialized training or skill. 57. Some of the acts or omissions complained of herein regarding the Defendants may be assessed by the trier of fact on the basis of common, everyday experiences and the common knowledge of a lay person.
58. In other words, some of the acts or omissions complained of do not implicate questions of medical competence nor involve matters of medical science nor art requiring specialized knowledge, training, or skills not ordinarily possessed by lay persons.
59. Moreover, the acts or omissions complained of herein involve custodial neglect perpetuated [sic] by persons who were not medical professionals and/or the acts and omissions complained of herein resulted from the dangerous administrative policies, systems, directives, and/or practices engaged in by the Defendants which affected not only Glenna A. Zellner, who is now deceased, but an entire group of residents in the facility.
60. Accordingly, some of the claims set forth herein sound in ordinary negligence, not medical negligence.
{¶28} As will be discussed in detail below, because at least one claim in Zellner‘s action against the defendants is subject to the arbitration agreement, Zellner‘s entire action against the defendants must be stayed pending arbitration. U.S. Bank Natl. Assn. v. George, 2016-Ohio-2766, at ¶ 42 (“[W]hen 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.“). Thus, assuming without deciding that the arbitration agreement does not comply with {¶29} Next, we address Zellner‘s argument that the trial court erred by staying the proceedings pending arbitration because the defendants waived their rights to enforce the arbitration agreement. Specifically, Zellner argues that although the defendants “clearly knew of their alleged right to arbitration,” they “did not move to stay the case in response to [Zellner‘s] Complaint,” “demanded a jury trial in their Answer,” and “propounded written discovery requests” to which {¶30} “‘Like any other contractual right, * * * the right to arbitrate may be implicitly waived.‘” Donnell, 2017-Ohio-7982, at ¶ 20, quoting Travelers Cas. & Sur. Co. v. Aeroquip-Vickers, Inc., 6th Dist. Lucas No. L-06-1201, 2007-Ohio-5305, ¶ 34. “‘“Whether the contractual right to arbitration has been waived is a mixed question of both factual issues and the weight to be given those facts under the applicable legal standard.”‘” Alford v. Arbors at Gallipolis, 4th Dist. Gallia No. 17CA11, 2018-Ohio-4653, ¶ 52, quoting Donnell at ¶ 20, quoting Buyer v. Long, 6th Dist. Fulton No. F-05-012, 2006-Ohio-472, ¶ 7. “‘“[A]lthough questions of law may be reviewed de novo, the trial court‘s ultimate determination of whether the right to demand arbitration has been waived will be reviewed under an abuse of discretion standard.”‘” Id., quoting Donnell at ¶ 20, quoting Buyer at ¶ 7. {¶31} “‘Waiver may attach where there is active participation in a lawsuit demonstrating an acquiescence to proceeding in a judicial forum.‘” Donnell at ¶ 21, quoting Buyer at ¶ 13. “‘A party asserting waiver must establish that (1) the waiving party knew of the existing right to arbitrate; and (2) the totality of the circumstances demonstrate the party acted inconsistently with the known right.‘” Id., quoting Buyer at ¶ 11, citing Atkinson v. Dick Masheter Leasing II, Inc., 10th Dist. Franklin No. 01AP-1016, 2002-Ohio-4299, ¶ 20. In determining whether the totality of the circumstances supports a finding of waiver, courts may consider such factors as: (1) any delay in the requesting party‘s demand to arbitrate via a motion to stay judicial proceedings and an order compelling arbitration; (2) the extent of the requesting party‘s participation in the litigation prior to its filing a motion to stay the judicial proceeding, including a determination of the status of discovery, dispositive motions, and the trial date; (3) whether the requesting party invoked the jurisdiction of the court by filing a counterclaim or third-party complaint without asking for a stay of the proceedings; and (4) whether the non-requesting party has been prejudiced by the requesting party‘s inconsistent acts. U.S. Bank Natl. Assn., 2016-Ohio-2766, at ¶ 14, citing Harsco Corp. v. Crane Carrier Co., 122 Ohio App.3d 406, 414 (3d Dist.1997). “‘Because of the strong public policy in favor of arbitration, the heavy burden of proving waiver of the right to arbitration is on the party asserting waiver.‘” Id., quoting Griffith v. Linton, 130 Ohio App.3d 746, 751 (10th Dist.1998). “Therefore, a court will not lightly infer waiver of a right to arbitrate.” Id., citing Harsco Corp. at 415. {¶32} Based on the totality of the circumstances, we conclude that the defendants did not waive their rights to arbitrate. Zellner argues that the defendants’ {¶33} Likewise, Zellner‘s argument that the defendants waived their rights to arbitrate because they “propounded written discovery requests” fails to account for the limited extent of the defendants’ participation in the discovery process. On May 8, 2018, a day before their answer was filed, the defendants propounded to Zellner their “First Set of Interrogatories and Request for Production of Documents and Things.” (See Doc. No. 27, Defendants’ Ex. A). However, the defendants withdrew this initial request for discovery less than a week later on the morning of May 14, 2018. (Id.). Nevertheless, despite the defendants’ notice of withdrawal of their requests for discovery, Zellner responded to the defendants’ withdrawn requests on the evening of May 14, 2018 by sending the defendants copies of Glenna‘s medical records and bills. (See Doc. No. 27, Defendants’ Ex. B). Aside from this sequence of events, the defendants did not participate in discovery with Zellner. (See Doc. No. 26) (“Defendants have absolutely refused to participate in {¶34} Moreover, Zellner‘s argument that the defendants waived their rights to arbitrate because they did not move to stay the proceedings in response to Zellner‘s complaint is unpersuasive. The defendants filed their motion to stay on May 31, 2018—less than two months after Zellner filed her complaint on April 9, 2018 and less than one month after filing their answer on May 9, 2018. (Doc. Nos. {¶35} Additional factors weigh against a finding of waiver. First, the defendants affirmatively pleaded the right to arbitrate in their answer. (See Doc. No. 21). Although a party is not required to affirmatively plead the right to arbitrate in order to preserve the right, doing so is a factor that weighs against a finding of waiver. Alford, 2018-Ohio-4653, at ¶ 56-58; Donnell at ¶ 22-24; Harsco Corp. at 415-416. See U.S. Bank Natl. Assn., 2016-Ohio-2766, at ¶ 18, citing Hudson v. Ernst & Young, L.L.P., 189 Ohio App.3d 60, 2010-Ohio-2731, ¶ 37 (10th Dist.). Furthermore, the defendants’ answer did not set forth a counterclaim against Zellner or a third-party complaint. (Doc. No. 21). See Harsco Corp. at 416 (noting that the filing of a complaint, counterclaim, or summary judgment motion by the party {¶36} Lastly, Zellner has not demonstrated that she was prejudiced by any of the defendants’ actions that she claims are inconsistent with the right to arbitrate. A trial date had not been set and the parties had not met for a status conference or conducted a pretrial hearing. See Alford at ¶ 57. Furthermore, any prejudice Zellner may have suffered because she responded to the defendants’ written discovery requests was at least partially self-inflicted as the defendants clearly retracted their requests before Zellner submitted a response. Thus, the totality of the circumstances does not support a finding of waiver. Accordingly, the trial court did not abuse its discretion by staying the proceedings despite Zellner‘s claims of waiver. {¶37} Finally, we address whether the trial court erred by staying litigation on all of Zellner‘s claims, and as to all the defendants, pending arbitration. Zellner argues that the trial court erred by staying litigation on her wrongful-death claim because “[t]he arbitration clause in this case cannot subject [her] wrongful death claims to binding arbitration.” (Appellant‘s Brief at 11). As a result, Zellner contends, “the Trial Court erred when it required Glenna Zellner‘s next-of-kin to arbitrate their wrongful death claims.” (Id. at 12). In addition, Zellner argues that she “cannot be required to arbitrate her claims against” six of the defendants because those six defendants “were not parties to the Arbitration Clause.” (Id. at 6). She {¶38} At the outset, we note that Zellner mischaracterizes the trial court‘s judgment in this case. The defendants sought a stay of the proceedings under {¶39} First, Zellner argues that the trial court erred by granting the stay because her wrongful-death claim against the defendants is not arbitrable. Under the facts of this case, Zellner is probably correct that her wrongful-death claim is {¶40} Here, Glenna‘s beneficiaries did not sign the arbitration agreement. Although the arbitration agreement was signed by Glenna‘s husband, Jack, he did so in his capacity as Glenna‘s power of attorney rather than in his individual capacity. (See Doc. No. 23, Defendants’ Ex. A). Additionally, neither Zellner‘s {¶41} However, as indicated above, the trial court did not compel Zellner to arbitrate her wrongful-death claim against any of the defendants; instead, the trial court merely stayed the proceedings pending arbitration. Although Zellner‘s wrongful-death claim is likely not subject to the arbitration agreement, this does not mean that the trial court abused its discretion by staying the entire litigation, including litigation as to the wrongful-death claim. “‘Where any claim in an action is subject to arbitration under {¶42} Similarly, we reject Zellner‘s argument that the trial court erred by staying the entire proceedings because some of the defendants were neither a party to the arbitration agreement nor in privity with a signatory to the agreement. Zellner does not argue that all of the defendants were nonparties to the arbitration agreement; rather, Zellner argues that some of the defendants were not a party to the agreement. (See Appellant‘s Brief at 6-9). However, it is well-established that if “any of the claims are subject to an arbitration agreement, {¶43} Zellner‘s first assignment of error is overruled. {¶44} In her second assignment of error, Zellner argues that the trial court erred by staying the proceedings without allowing her to conduct discovery relevant to determining whether the arbitration agreement is valid and enforceable. In particular, Zellner argues that “it is reversible error to grant a motion to stay pending arbitration without affording the nonmoving party the opportunity to conduct discovery and to present their findings on whether the arbitration clause is valid and enforceable.” (Appellant‘s Brief at 19-20). Additionally, she argues that because the trial court did not issue a decision on her motion to compel, the trial court “never {¶45} We first address Zellner‘s contention that the trial court never decided her motion to compel discovery. “It has generally been held that ‘a trial court‘s failure to rule gives rise to a presumption that the trial court has denied the motion.‘” Alford, 2018-Ohio-4653, at ¶ 72, quoting GMAC Mtge., L.L.C. v. Jacobs, 196 Ohio App.3d 167, 2011-Ohio-1780, ¶ 9 (9th Dist.). Here, although the trial court did not expressly deny Zellner‘s motion on the record, it is clear that the trial court granted the defendants’ motion to stay after duly considering Zellner‘s motion, effectively denying Zellner‘s motion. (See Doc. No. 28) (“Plaintiff filed a Motion for Extension of Time to Respond to Defendants’ Motion to Stay Proceedings * * * [and] Motion to Compel * * *. Plaintiff argues that additional discovery and time are required to permit her to * * * attack[] the validity of the arbitration clause.“). Zellner does not cite to any evidence in the record suggesting otherwise. Thus, we presume that the trial court denied Zellner‘s motion to compel discovery. {¶46} “A decision to grant or deny a discovery motion rests within the sound discretion of the trial court.” Alford at ¶ 70, citing Stephens v. Marietta Mem. Hosp., 4th Dist. Washington No. 95CA46, 1996 WL 551405, *6 (Sept. 23, 1996), citing Mauzy v. Kelly Servs., Inc., 75 Ohio St.3d 578 (1996); Zimpfer v. Roach, 3d Dist. Shelby No. 17-17-03, 2017-Ohio-8437, ¶ 27, citing State ex rel. Grandview Hosp. & Med. Ctr. v. Gorman, 51 Ohio St.3d 94, 96 (1990). “The trial court has discretion to manage the discovery process.” Alford at ¶ 70, citing State ex rel. Daggett v. Gessaman, 34 Ohio St.2d 55 (1973). As previously indicated, an abuse of discretion suggests the trial court‘s decision is unreasonable, arbitrary, or unconscionable. Blakemore, 5 Ohio St.3d at 219. {¶47} As discussed in detail under Zellner‘s first assignment of error, she raises five specific arguments attacking the trial court‘s decision to stay the entire proceedings pending arbitration. These five arguments were also presented in some form to the trial court alongside Zellner‘s motion to compel as reasons to deny the defendants’ motion to stay. (See Doc. No. 26). Four of these arguments—that the arbitration agreement fails to comply with {¶48} We conclude that, under the particular facts and circumstances of this case, the trial court did not abuse its discretion by denying Zellner‘s motion to compel discovery. As previously discussed, a party must demonstrate both procedural unconscionability and substantive unconscionability. Hayes v. Oakridge Home, 122 Ohio St.3d 63, 2009-Ohio-2054, at ¶ 20, 30. Substantive unconscionability involves a consideration of the terms of the agreement and whether those terms are commercially reasonable. Id. at ¶ 33. Here, the parties provided the trial court with a copy of the arbitration agreement. The trial court was thus in a position to examine the terms of the agreement to determine whether they were so unfair or unreasonable as to render the agreement substantively unconscionable. As we determined above, the trial court did not err in determining that the agreement was substantively {¶49} Zellner‘s second assignment of error is overruled. {¶50} In her third assignment of error, Zellner argues that the trial court erred by staying the proceedings because she “was not given the opportunity to file a Brief in Opposition to Appellees’ Motion to Stay.” (Appellant‘s Brief at 23). Zellner asserts that the “Trial Court never ruled on [her] Motion for Extension and did not give [her] notice that it would be ruling on [the defendants‘] Motion to Stay.” (Id.). She argues that “[e]ven if the Trial Court was inclined to deny [her] additional time to conduct discovery, it should have given [her] formal notice though [sic] the grant of a limited continuance, that [she was] running out of time and that the court was about to render judgment in the case.” (Id. at 25). She concludes that, in the absence of “the opportunity to respond, [the defendants‘] Motion to Stay went unchallenged.” (Id.). {¶51} We reiterate that “‘a trial court‘s failure to rule gives rise to a presumption that the trial court has denied the motion.‘” Alford, 2018-Ohio-4653, at ¶ 72, quoting GMAC Mtge., L.L.C., 196 Ohio App.3d 167, 2011-Ohio-1780, at ¶ 9. Again, because Zellner has not demonstrated that the trial court failed to render a decision on her motion for an extension of time to respond to the defendants’ motion to stay, we presume that the trial court denied her motion. {¶53} Zellner‘s third assignment of error is overruled. {¶54} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court. Judgment Affirmed ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur. /jlr
Assignment of Error No. II
The Trial Court erred in not permitting Appellant to conduct discovery in relation to Appellees’ Motion to Stay Pending Arbitration
The Trial Court erred in ruling on Appellees’ Motion to Stay Pending Arbitration without giving Appellant an opportunity to oppose Appellees’ Motion.