Roberts v. KND Dev. 51, L.L.C.

[Cite as Roberts v. KND Dev. 51, L.L.C., 2020-Ohio-4986.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

MARY ROBERTS, :

Plaintiff-Appellant, : No. 108473

v. :

KND DEVELOPMENT 51, L.L.C., ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 22, 2020

Civil Appeal from the Cuyahoga County Common Pleas Court
Case No. CV-18-895624

Appearances:

The Dickson Firm, L.L.C., Blake A. Dickson, Danielle M.
Chaffin, and Tristan R. Serri, for appellant.

Bonezzi, Switzer, Polito, & Hupp Co., L.P.A., Paul W.
McCartney, Diane L. Feigi, and Christopher F. Mars, for
appellees.

MICHELLE J. SHEEHAN, J.:

Plaintiff-appellant Mary Roberts (“Roberts”) appeals the trial court’s

decision to grant defendants-appellees, KND Development 51, L.L.C., Kindred

Transitional Care and Rehab — Stratford, Kindred Nursing & Rehab — Stratford,
Kindred Healthcare Operating, Inc., Kindred Healthcare, Inc., and Amanda

Eberhart’s (collectively referred to as “Kindred”) motion to stay pending arbitration.

Finding the arbitration agreement enforceable, we affirm.

In March 2016, Roberts was admitted to one of Kindred’s nursing

homes. She was labeled a fall risk and a care plan was established to prevent falls.

Under the care plan, a mechanical Hoyer lift was required to transfer Roberts and

she required at least two attendants to assist with lifts and transfers.

On January 29, 2017, Roberts and Kindred entered into an alternative

dispute resolution agreement (“arbitration agreement” or “Agreement”), which

provided, in part:

B. Scope of ADR. Any and all claims or controversies arising out of
or in any way relating to this Agreement or the Resident’s stay at the
Facility * * * shall be submitted to alternative dispute resolution as
described in this Agreement. This Agreement includes claims against
the Facility, its employees, agents, officers, directors, any parent,
subsidiary or affiliate of the Facility, and/or its medical director.

In February 2017, Roberts was transferred to a Kindred assisted living

unit. Roberts alleged that she should have not been transferred to the assisted living

unit because one of the requirements was that she require the assistance of only one

person to lift her and, at all times, she remained a two-person lift assist. Two months

later, in April 2017, Roberts complained during a visit with her daughter that she

could not move her legs because she had been dropped from a Hoyer lift. Roberts

was taken to the emergency room and was diagnosed with a broken femur in both

of her legs.
 Roberts filed suit against Kindred for her injuries in April 2018.

Kindred answered the complaint, requested a jury trial and asserted as an

affirmative defense that the claims are subject to “Arbitration Agreements (attached

as Exhibit A), pursuant to R.C. §2711.02 and, thus, this matter should be stayed.”

Roberts served discovery and a deposition notice that was opposed by Kindred.

Kindred requested a stay pending submission of a Civ.R. 10 affidavit of merit. In the

alternative, Kindred requested to limit discovery to the issue of whether a valid

arbitration agreement existed between the parties. Kindred also requested a

protective order to preclude depositions until Roberts filed her Civ.R. 10 affidavit of

merit and the court determined the validity of the arbitration agreement.

In August 2018, Roberts filed affidavits of merit pursuant to Civ.R. 10,

averring that the injuries were proximately caused by the Hoyer lift fall. Kindred

moved to stay the proceedings and enforce the arbitration agreement pursuant to

R.C. 2711.02. The trial court held the ruling in abeyance pending attempts by the

parties to mediate the case.

In February 2019, Kindred filed a renewed motion to stay and enforce

the arbitration agreement. According to Kindred, the parties had not been able to

schedule mediation and Roberts’s continued attempts to conduct discovery were in

contravention of the arbitration agreement. Roberts argued that Kindred refused to

mediate.

In March 2019, the trial court granted Kindred’s motion and issued

the following order:
 Defendants’ renewed motion to stay the proceedings and enforce the
alternative dispute resolution agreement, filed 02/20/2019, is granted.
Pursuant to the alternative dispute resolution agreement, attached as
exhibit A to defendants’ motion to stay, filed 10/17/2018, and R.C.
2711.02(B), case is stayed for arbitration in accordance with the
alternative dispute resolution agreement, and removed from the
court’s active docket. Case may be returned to the pending docket only
upon completion of arbitration and by motion.

Roberts filed a timely notice of appeal and raises one assignment of error for our

review:

I. The trial court erred in permanently staying this case and forcing it
to binding arbitration.

In her sole assignment of error, Roberts contends that the trial court

erred in granting Kindred’s motion to stay the case and forcing the parties into

binding arbitration.

Standard of Review

“This court reviews a trial court’s decision to grant a motion to stay

pending arbitration for an abuse of discretion.” Avery v. Academy Invests., L.L.C.,

8th Dist. Cuyahoga No. 107550, 2019-Ohio-3509, ¶ 9, citing McCaskey v. Sanford-

Brown College, 8th Dist. Cuyahoga No. 97261, 2012-Ohio-1543, ¶ 7. Regarding

questions of whether an arbitration agreement is unconscionable, however, we

review them under a de novo standard of review. Taylor Bldg. Corp. of Am. v.

Benfield, 117 Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12. Moreover, to

determine “whether a party has agreed to arbitrate, we apply ordinary principles of

contract formation.” Avery at ¶ 9, citing Seyfried v. O’Brien, 2017-Ohio-286, 81

N.E.3d 961, ¶ 18 (8th Dist.), and Palumbo v. Select Mgt. Holdings, Inc., 8th Dist.
Cuyahoga No. 82900, 2003-Ohio-6045, ¶ 18 (“The question whether the parties

agreed to arbitrate their dispute is * * * a matter of contract. The terms of a contract

are a question of fact.”).

R.C. 2711.02 Motion to Stay

“When a party requests a stay under [R.C. 2711.02], the first issue

before the trial court is whether there is a valid written agreement to arbitrate.”

Reedy v. The Cincinnati Bengals, Inc., 143 Ohio App.3d 516, 520, 758 N.E.2d 678

(1st Dist.2001). “Courts apply state contract law to determine whether a binding

agreement to arbitrate exists.” Maestle v. Best Buy Co., 8th Dist. Cuyahoga

No. 79827, 2005-Ohio-4120, ¶ 10.

R.C. 2711.01(A) provides:

(A) A provision in any written contract, except as provided in
division (B) of this section, to settle by arbitration a controversy that
subsequently arises out of the contract, or out of the refusal to perform
the whole or any part of the contract, or any agreement in writing
between two or more persons to submit to arbitration any controversy
existing between them at the time of the agreement to submit, or
arising after the agreement to submit, from a relationship then existing
between them or that they simultaneously create, shall be valid,
irrevocable, and enforceable, except upon grounds that exist at law or
in equity for the revocation of any contract.

Analysis

Within her assignment of error, Roberts contends: (1) the Agreement

is unenforceable because it was not properly executed. Specifically, the named

Kindred defendants did not execute the Agreement; (2) the Agreement is void under

Ohio law; (3) the Agreement is procedurally and substantively unconscionable; and
(4) Kindred waived its right to arbitration by acting inconsistently with its alleged

right to arbitrate.

1. Parties to the Agreement

Roberts contends that the Agreement cannot be enforced because the

document was not properly executed and none of the named defendants were

named in, or signed, the Agreement.

Agreements to arbitrate are matters of contract; therefore, a person

who was not a party to an arbitration agreement cannot be forced to arbitrate, or

benefit from the agreement. N. Park Retirement Community Ctr., Inc. v. Sovran

Cos., 8th Dist. Cuyahoga No. 96376, 2011-Ohio-5179, ¶ 17, citing Cleveland-Akron-

Canton Advertising Coop. v. Physician’s Weight Loss Ctrs. of Am., Inc., 184 Ohio

App.3d 805, 2009-Ohio-5699, 922 N.E.2d 1012, ¶ 14 (8th Dist.). “Nonetheless, in

some circumstances non-signatories to contracts can be contractually bound by

ordinary contract and agency principles.” Id.

The Agreement is one of many documents between Kindred and

Roberts. The Agreement is titled: “Alternative Dispute Resolution Agreement

between Resident and Facility (Optional).” It states:
 ***

Roberts did not sign the Agreement, rather her daughter, Phyllis

Burks, signed on her behalf as her legal representative. An admissions coordinator

for Kindred Transitional Care and Rehab — Stratford, Erica Yan, signed as the

facility’s authorized agent. Roberts does not dispute that her daughter, who had
durable power of attorney over her, was her proper legal representative and

authorized to sign the Agreement on behalf of Roberts.

Roberts argues that the Agreement is unenforceable because it does

not name the defendants as parties nor was it signed by the defendants. The entity

identified in the Agreement above the signature line for the “Facility Name &

Number” is “0875 — Kindred Transitional Care and Rehab — Stratford.” Roberts

contends that “0875 — Kindred Transitional Care and Rehab — Stratford” does not

encompass the named defendants. We find this claim to be without merit. Roberts’s

complaint expressly alleged that “Kindred Transitional Care and Rehab — Stratford”

was owned and/or operated by one or more of the named defendants. The named

defendants in this case — KND Development 51, L.L.C.; Kindred Transitional Care

and Rehab — Stratford; Kindred Nursing & Rehab — Stratford; Kindred Healthcare

Operating, Inc.; Kindred Healthcare, Inc.; and Amanda Eberhart — can enforce the

Agreement as each person or entity qualifies as a “[f]acility, employees, agents,

officers, directors, any parent, subsidiary or affiliate of the Facility and/or its

medical director.” See Donnell v. Parkcliff Alzheimer Community, 6th Dist. Wood

No. WD-17-001, 2017-Ohio-7982; see also N. Park Retirement Community Ctr.,

Inc., 8th Dist. Cuyahoga No. 96376, 2011-Ohio-5179.

In addition, the Agreement provides, in pertinent part:

(H) Binding Effect of Agreement.

It is the intention of the parties to this Agreement that it shall
inure to the benefit of and bind the parties, their successors and
assigns, including the agents, employees, servants, officers, directors,
 and any parent, subsidiary or affiliate of the Facility, and all persons
whose claim is derived through or on behalf of the Resident, including
any parent, spouse, child, guardian, executor, agent administrator,
legal representative, or heir of the Resident.

Thus, the Agreement was entered into by Kinder on behalf of its parents, affiliates,

and subsidiaries. Alford v. Arbors at Gallipolis, 2018-Ohio-4653, 123 N.E.3d 305

(4th Dist.). We find no merit to the argument that because the other defendants

did not sign the agreement, it is unenforceable pursuant to R.C. 2711.22(A).

2. Void Under Ohio Law

Roberts next contends that the Agreement was void pursuant to

R.C. 2711.23. R.C. 2711.23 governs arbitration agreements provisions required for

“controversies involving a medical, dental, chiropractic, or optometric claim that is

entered into prior to a patient receiving any care, diagnosis, or treatment” and

provides that for an arbitration agreement to be “valid and enforceable” it “shall”

include or be subject to a set of certain conditions contained in the statute. Roberts

contends that the Agreement violates the following provisions of R.C. 2711.23:

(A) The agreement shall provide that the care, diagnosis, or
treatment will be provided whether or not the patient signs the
agreement to arbitrate;

***

(F) Any arbitration panel shall consist of three persons, no more
than one of whom shall be a physician or the representative of a
hospital;
 (G) The arbitration agreement shall be separate from any other
agreement, consent, or document.

Roberts contends that the Agreement is unenforceable because it did

not expressly state that “care, diagnosis, or treatment” would be provided whether

or not she signed the document and therefore does not comport with

R.C. 2711.23(A). We disagree. This requisite is satisfied by Section L of the

Agreement, which provided, in part:

L. Understanding of the Resident. By signing this Agreement, the
Resident is acknowledging that he/she understands the following: * * *
(2) the execution of this Agreement is not a precondition of admission
or to the furnishing of services to the Resident by Facility, and the
decision of whether to sign the Agreement is solely a matter for the
Resident’s determination without any influence; * * *.

Next, Roberts claims that the Agreement is unenforceable because it

did not provide that the arbitration panel would consist of three members, no more

than one of whom shall be a physician or the representative of a hospital, in

contravention of R.C. 2711.23(F).

The Agreement stated provided, in pertinent part:

D. Process. The parties shall attempt to resolve any dispute
arising out of or relating to the Agreement or the Resident’s stay at the
Facility, by mediation. The mediator and arbitrator will be selected as
described in Rule 2.03 of the Rules of Procedure. * * * Any claim or
controversy that remains unresolved after the conclusion or
termination of the mediation shall be settled by binding arbitration in
accordance with the Agreement.

Rule 2.03 of the Kindred Healthcare Alternative Dispute Resolution

Rules of Procedure stated that “parties may agree to resolve their dispute before a
panel of three (3) arbitrators or a single arbitrator. The arbitration shall proceed

before a single arbitrator unless one or both parties request a panel of arbitrators.”

While these rules, presumably promulgated under Kentucky law where Kindred is

headquartered, do not specifically set forth the language utilized in the Ohio statute,

nothing in Rule 2.03 prohibits a panel of three arbitrators. Alford, 2018-Ohio-4653,

123 N.E.3d 305, at ¶ 41.

Pursuant to the plain language of the statute, to be enforceable an

arbitration agreement “shall include or be subject to the following conditions”

(emphasis added) R.C. 2711.23; therefore, there is no requirement that an

arbitration agreement mirror the language of the statute. Although the Agreement

does not expressly state that the arbitration panel would consist of three members,

no more than one of whom shall be a physician or the representative of a hospital,

the Agreement also does not prohibit an arbitration panel of such a composition.

And, as stated, in order for the Agreement to be enforceable, any panel would have

to comport with the R.C. 2711.23.

In addition, the Agreement contains a severability clause. “A court

will not lightly conclude that the invalidity of a particular contract term requires

invalidation of the entire agreement.” Alford at ¶ 42, citing Taylor, 117 Ohio St.3d

352, 2008-Ohio-93, 884 N.E.2d 12, at ¶ 63. We find that the language of the

Agreement suffices to allow compliance with R.C. 2711.23(F). However, even if it

can be said to be insufficient, Section D is severable and does not require

invalidation of the entire arbitration agreement.
 Roberts next argues that the Agreement does not comply with

R.C. 2711.23(G) because it was not given to her as a document “separate from any

other agreement, consent, or document.” Upon review, the arbitration agreement

appears to be a “stand alone” document attached to the admissions agreements.

Although it was one of several attachments, the evidence does not suggest it was

anything other than a “stand alone” document.

Given our above analysis of the R.C. 2711.23 factors, we do not find

the arbitration agreement in this case to be void and unenforceable on the basis of

failure to comply with the R.C. 2711.23. Therefore, Roberts’s argument in this regard

is also without merit.

3. Substantive and Procedural Unconscionability

Roberts argues that the Agreement is unconscionable and, therefore,

cannot be enforced.

Unconscionability embodies two separate concepts: (1) unfair and

unreasonable contract terms, i.e., substantive unconscionability; and (2) an absence

of meaningful choice on the part of one of the parties, i.e., procedural

unconscionability. Taylor Bldg., 117 Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d

12, at ¶ 34. A party asserting the unconscionability of a contract “must prove a

quantum of both substantive and procedural unconscionability.” Hayes v.

Oakridge Home, 122 Ohio St.3d 63, 2009-Ohio-2054, 908 N.E.2d 408, ¶ 30; Taylor

Bldg. at id. In other words, these two concepts create a two-prong conjunctive test

for unconscionability. Gates v. Ohio Sav. Assn., 11th Dist. Geauga No. 2009-G-
2881, 2009-Ohio-6230, ¶ 47; Strack v. Pelton, 70 Ohio St.3d 172, 637 N.E.2d 914

(1994). Again, we review whether an arbitration agreement is enforceable in light

of a claim of unconscionability using de novo standard of review. Hayes at ¶ 21,

citing Taylor Bldg. at ¶ 37.

In determining whether an agreement is procedurally unconscionable,

courts consider the relative bargaining positions of the parties including each party’s

age, education, intelligence, experience, and who drafted the contract. Taylor Bldg.

at ¶ 44. Additional factors that may contribute to a finding of procedural

unconscionability include the following:

“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 [or her]
interests by reason of physical or mental infirmities, ignorance,
illiteracy or inability to understand the language of the agreement, or
similar factors.”

Id., quoting Restatement of the Law 2d, Contracts (1981), Section 208, Comment d.

“‘A determination of unconscionability is a fact-sensitive question

that requires a case-by-case review of the surrounding circumstances.’” Brunke v.

Ohio State Home Servs., Inc., 9th Dist. Lorain No. 08CA009320, 2008-Ohio-5394,

¶ 8, quoting Featherstone v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 159 Ohio

App.3d 27, 2004-Ohio-5953, 822 N.E.2d 841 (9th Dist.); Wallace v. Ganley Auto

Group, 8th Dist. Cuyahoga No. 95081, 2011-Ohio-2909, ¶ 44.
 Thus, though guided by a strong presumption in favor of arbitration,

Ohio also recognizes that principles of equity and fairness require that greater

scrutiny be given to arbitration provisions that do not involve parties of equal

sophistication and bargaining power:

To be sure, an arbitration clause in a consumer contract with
some characteristics of an adhesion contract “necessarily engenders
more reservations than an arbitration clause in a different setting,”
such as a collective-bargaining agreement or a commercial contract
between two businesses.

Taylor Bldg., 117 Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12, at ¶ 50.

Roberts argues that the Agreement was procedurally unconscionable

because Roberts was 84 years old at the time of admission; Burks signed the

Agreement as Roberts’s power of attorney and was under a great deal of stress at the

time she signed the contract; there is no evidence that Roberts or Burks were given

time to read the lengthy admissions documents before signing; and there is no

evidence that anyone with knowledge of arbitration met with Roberts or Burks

before Roberts was admitted into the nursing home facility.

One of the cases Roberts cites in this appeal is Manley v. Personacare

of Ohio, 11th Dist. Lake No. 2005-L-174, 2007-Ohio-343. In Manley, the Eleventh

District Court of Appeals found an arbitration agreement signed by a 66-year-old

resident upon admission to a nursing home was procedurally unconscionable when

the resident entered the nursing home directly from the hospital, did not have

anyone present with her upon admission, was college educated but had no legal

experience, did not have an attorney with her when she entered into the arbitration
agreement, and had a mild cognitive impairment. The Manley court noted the

following:

The fact that a resident is signing an arbitration agreement
contemporaneously with being admitted into a nursing home is
troubling. By definition, an individual being admitted into a nursing
home has a physical or mental detriment that requires them to need
the assistance of a nursing home. Further, the reality is that, for many
individuals, their admission to a nursing home is the final step in the
road of life. As such, this is an extremely stressful time for elderly
persons of diminished health. In most circumstances, it will be difficult
to conclude that such an individual has equal bargaining power with a
corporation that, through corporate counsel, drafted the form contract
at issue.

In the case at bar, Patricia Manley was 66 years old, entering a
nursing home directly from a hospital, without an attorney, friend, or
family member to assist her in the process. She had fears due to a recent
assault, had no legal expertise, had numerous physical problems, had a
mild cognitive impairment, and had bouts of confusion. In light of these
factors, we conclude her bargaining power was substantially
outweighed by the relative bargaining power of Personacare.

Manley at ¶ 29-30.

Upon review, we find Manley to be distinguishable. Although

Roberts, at 84, was significantly older than the resident in Manley, Roberts’s

daughter was with her when she was admitted and executed the Agreement as

Roberts’s legal representative. While we agree with the Manley court that a resident

signing an arbitration agreement contemporaneously with being admitted into a

nursing home may be troubling and do not doubt the stress Burks may have felt

placing her mother in a nursing home, that alone is not enough to establish

procedural unconscionability.
 Further, while Roberts claims that there was no evidence that she and

Burks were given sufficient time to review the documents or that anyone with

knowledge of arbitration explained the concept to them, at this juncture, there is

also no evidence that the admission procedure was rushed or truncated or that the

documents were not adequately explained.

Thus, under the totality of the circumstances of this case, the

arbitration provision is not procedurally unconscionable. Because Roberts bore the

burden of proving that the arbitration agreement was both procedurally and

substantively unconscionable and we have found that the Agreement was not

procedurally unconscionable, we need not consider whether it was also

substantively unconscionable.

4. Waiver

Finally, Roberts argues that Kindred waived its right to arbitrate the

matter. Whether a party has waived the right to arbitrate a dispute is a mixed

question of law and fact. Gembarski v. PartsSource, Inc., 157 Ohio St.3d 255, 2019-

Ohio-3231, 134 N.E.3d 1175, ¶ 26 (“This court reviews de novo the legal question

whether PartsSource’s conduct amounts to a waiver of the argument, but we review

the factual findings underlying the trial court’s determination only for clear error.”).

Arbitration is a matter of contract and can be enforced unless

explicitly or implicitly waived. Bass Energy, Inc. v. Highland Hts., 193 Ohio App.3d

725, 2010-Ohio-2102, 954 N.E.2d 130, ¶ 33 (8th Dist.). Implicit waiver occurs when

a party fails to assert its rights or participates in the litigation “to such an extent that
its actions are ‘completely inconsistent with any reliance’ on this right, resulting in

prejudice to the opposing party.” Id., quoting General Star Natl. Ins. Co. v.

Adminstratia Asigurarilor De Stat, 289 F.3d 434, 438 (6th Cir.2002), and Gordon

v. OM Fin. Life Ins. Co., 10th Dist. Franklin No. 08AP-480, 2009-Ohio-814.

We are mindful, however, that there is a strong public policy that

favors arbitration of disputes; therefore, we do not lightly infer that a party who has

initiated litigation on a matter has waived the right to arbitration. Harsco Corp. v.

Crane Carrier Co., 122 Ohio App.3d 406, 414, 701 N.E.2d 1040 (3d Dist.1997). The

party contending that waiver occurred has a “heavy burden” of demonstrating that

the party requesting arbitration acted inconsistently with the right to arbitrate. U.S.

Bank v. Wilkens, 8th Dist. Cuyahoga No. 93088, 2010-Ohio-262, ¶ 32.

Some of the factors that courts consider in determining whether the

totality of the circumstances supports a finding of waiver include the following:

(1) whether the party seeking arbitration invoked the jurisdiction of
the trial court by filing a complaint, counterclaim or third-party
complaint without asking for a stay of proceedings; (2) the delay, if
any, by the party seeking arbitration in requesting a stay of
proceedings or an order compelling arbitration; (3) the extent to
which the party seeking arbitration participated in the litigation,
including the status of discovery, dispositive motions and the trial
date; and (4) any prejudice to the nonmoving party due to the moving
party’s prior inconsistent actions.

Academic Support Servs., L.L.C. v. Cleveland Metro. School Dist., 8th Dist.

Cuyahoga No. 99054, 2013-Ohio-1458, ¶ 8.

Roberts contends that Kindred waived its right to arbitrate the case

because Kindred moved the court to enforce Civ.R. 10, sought a protective order,
waited six months after Roberts filed her complaint to file its motion to stay, and

asked for a jury trial. These actions, Roberts argues, evidence a desire to litigate

instead of arbitrating the case.

We disagree with Roberts’s contention; Kindred did not waive their

right to arbitration through its participation in the case. We find Milling Away,

L.L.C. v. Infinity Retail Environments, Inc., 9th Dist. Summit No. 24168,

2008-Ohio-4691, persuasive. In Milling Away, the court found that the waiver

doctrine did not apply when the party seeking arbitration waited six months after

the complaint was filed to move for a stay. The court considered that even though

the party seeking arbitration had filed a counterclaim, the parties had not conducted

extensive discovery and no trial date had been set. Id. at ¶ 14.

Here, although Kindred did not file its motion for stay until six

months after Roberts filed her complaint, the parties had not conducted extensive

discovery and no trial date had been set. Rather a majority of the delay appears to

involve attempted mediation and limited discovery ordered by the trial court.

Kindred did not file a counterclaim or third-party complaint in the suit. Although

we recognize that any delay in the proceedings may cause prejudice to the non-

moving party, Roberts has not shown undue prejudice. Under the totality of the

circumstances, arbitration was not waived.

For the foregoing reasons, Roberts’s sole assignment of error is

overruled.

Judgment affirmed.
 It is ordered that appellees recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

_____________________________
MICHELLE J. SHEEHAN, JUDGE

PATRICIA ANN BLACKMON, P.J., and
RAYMOND C. HEADEN, J., CONCUR