Kick v. Smithville W. Care Ctr.

SUPREME COURT CASES

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State: Ohio

Court: Ohio Southern District Court

Docket No: 2013-Ohio-2034

Case Date: 05/20/2013

Plaintiff: Kick

Defendant: Smithville W. Care Ctr.

Preview:[Cite as Kick v. Smithville W. Care Ctr., 2013-Ohio-2034.]
STATE OF OHIO                                                                                                                )                                                                                      IN THE COURT OF APPEALS
                                                                                                                             )ss:                                                                                   NINTH JUDICIAL DISTRICT
                                                                                                   COUNTY OF WAYNE           )
KATHRYN KICK                                                                                                                 C.A. No.                                                                               12CA0032
                                                                                                   Appellant
v.                                                                                                                                                                                                                  APPEAL FROM JUDGMENT
                                                                                                                                                                                                                    ENTERED IN THE
                                                                                                   SMITHVILLE WESTERN CARE                                                                                          COURT OF COMMON PLEAS
CENTER, et al.                                                                                                                                                                                                      COUNTY OF WAYNE, OHIO
                                                                                                                             CASE No.                                                                               12-CV-0124
                                                                                                   Appellees
                                                                                                                             DECISION AND JOURNAL ENTRY
Dated: May 20, 2013
                                                                                                   HENSAL, Judge.
                                                                                                                             {¶1}   Kathryn Kick, personal representative of the estate of Alice Ritzi, appeals a
                                                                                                                             judgment of the Wayne County Common Pleas Court that granted Smithville Western Care
Center’s                                                                                           (hereinafter              “the  care  center”  or                                                                “the  center”)  motion  to  stay  proceedings  and
                                                                                                                             compel/enforce arbitration.  For the following reasons, this Court reverses.
                                                                                                                             I.
{¶2}   According to Ms. Kick, Ms. Ritzi was a resident of the care center when one or
more of its employees dropped her while they were attempting to transfer her with a Hoyer lift.
The fall broke Ms. Ritzi’s hip, which led to her death a couple of weeks later.   As Ms. Ritzi’s
personal representative, Ms. Kick filed a complaint against the care center, Smithville Western
Care, Inc., CMS & Co. Management Services, Inc., Sprenger Retirement Centers, Bluesky
Healthcare, Inc., Sprenger Enterprises, Inc., Grace Management Services, Inc., Infinity Health

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Care, LLC, Therapy Partners, Inc., Wallace Management Corp., and numerous John Does,
pursuing both survivorship and wrongful death claims.
{¶3}   Before filing its answer, the care center and several other, allegedly related,
defendants filed a motion to stay the proceedings and enforce an arbitration provision that was in
Ms. Ritzi’s residency agreement.    According to the care center, at the time Ms. Ritzi was
admitted, Ms. Kick signed an agreement as Ms. Ritzi’s personal representative, in which she
agreed to resolve any disputes that she or Ms. Ritzi might have against the center or its affiliates
through binding arbitration.    Ms. Kick opposed the care center’s motion, arguing that the
arbitration provision did not apply to the estate’s wrongful death claims.  She also argued that the
arbitration provision was not binding on Ms. Ritzi’s beneficiaries, that the residency agreement
was not properly authorized, that the only defendant who was a party to the agreement was
Smithville Western, Inc., that the arbitration provision was void under Revised Code Section
3721.13, that the arbitration provision was procedurally and substantively unconscionable, and
that the residency agreement violated Section 1396r of Title 42 of the United States Code.
{¶4}   Following a reply brief by the care center and a sur reply brief by Ms. Kick, the
trial court granted the motion to stay.   It determined that Ms. Kick had authority to enter into the
arbitration  agreement  on  behalf  of  Ms.  Ritzi  and  that  the  arbitration  provision  was  not
procedurally or substantively unconscionable.  Ms. Kick has appealed, assigning four errors.
II.
ASSIGNMENT OF ERROR I
THE   TRIAL   COURT   ERRED   IN   GRANTING   THE   SPRENGER
DEFENDANTS’  MOTION  TO  STAY  PROCEEDINGS  AND  COMPEL
ARBITRATION  BECAUSE  THE  HEALTH  CARE  CENTER  RESIDENCY
AGREEMENT  AT  ISSUE,  BY  ITS  OWN  TERMS,  TERMINATED  UPON
ALICE RITZI’S DEATH.   THEREFORE, THE TRIAL COURT SHOULD NOT

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HAVE   GIVEN   ANY   EFFECT   TO   THE   ARBITRATION   CLAUSE
CONTAINED WITHIN THAT AGREEMENT.
ASSIGNMENT OF ERROR II
THE   TRIAL   COURT   ERRED   IN   GRANTING   THE   SPRENGER
DEFENDANTS’  MOTION  TO  STAY  PROCEEDINGS  AND  COMPEL
ARBITRATION  AND  STAYING  ALL  PROCEEDINGS  BECAUSE  THE
HEALTH  CARE  RESIDENCY  AGREEMENT  AND  ITS  ARBITRATION
CLAUSE DO NOT APPLY TO PLAINTIFF’S WRONGFUL DEATH CLAIMS.
THE TRIAL COURT SHOULD NOT HAVE STAYED PROCEEDINGS ON
PLAINTIFF’S  WRONGFUL  DEATH  CLAIMS  AGAINST  ANY  OF  THE
DEFENDANTS.
ASSIGNMENT OF ERROR III
THE   TRIAL   COURT   ERRED   IN   GRANTING   THE   SPRENGER
DEFENDANTS’  MOTION  TO  STAY  PROCEEDINGS  AND  COMPEL
ARBITRATION  AND  STAYING  ALL  PROCEEDINGS  BECAUSE  EACH
DEFENDANT WAS  NOT A PARTY  TO THE HEALTH  CARE CENTER
RESIDENCY AGREEMENT.    THE TRIAL COURT SHOULD NOT HAVE
STAYED PROCEEDINGS ON PLAINTIFF’S SURVIVAL CLAIMS AGAINST
THE DEFENDANTS WHO WERE NOT PARTIES TO THE AGREEMENT.
{¶5}   In her first assignment of error, Ms. Kick argues that, because the residency
agreement provided that it terminated “upon the death of the Resident,” any claims that she filed
after Ms. Ritzi’s death were not subject to the arbitration provision.   In her second assignment of
error, Ms. Kick argues that, under Ohio law, a survival action for a decedent’s own injuries is a
separate  cause  of  action  from  a  wrongful  death  action  brought  by  the  decedent’s  heirs.
Accordingly, she maintains that, just because Ms. Ritzi may have agreed to arbitrate her own
claims against the care center, it does not mean that her heirs’ wrongful death claims are also
subject to arbitration.   In her third assignment of error, Ms. Kick argues that, since Smithville
Western, Inc. was the only defendant that was a party to the residency agreement, it is the only
one that can seek to enforce the arbitration provision.

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{¶6}     Although Ms. Kick raised each of the above arguments before the trial court, the
court did not address any of them in its decision.   This Court will not consider the issues in the
first instance.   See Ward v. Ohio State Waterproofing, 9th Dist. No. 26203, 2012-Ohio-4432, ¶
10.   We, therefore, conclude that this matter must be remanded to the trial court so that it may
consider the arguments Ms. Kick made regarding whether the arbitration provision survived Ms.
Ritzi’s death, whether the arbitration provision does not apply to Ms. Ritzi’s heirs’ wrongful
death claims, and whether the defendants who were not a party to the residency agreement can
enforce the arbitration provision.   Id.   Ms. Kick’s first, second and third assignments of error are
sustained.
ASSIGNMENT OF ERROR IV
THE   TRIAL   COURT   ERRED   IN   GRANTING   THE   SPRENGER
DEFENDANTS’  MOTION  TO  STAY  PROCEEDINGS  AND  COMPEL
ARBITRATION BECAUSE THE ARBITRATION CLAUSE CONTAINED IN
THE HEALTH CARE CENTER RESIDENCY AGREEMENT AT ISSUE IS
PROCEDURALLY AND SUBSTANTIVELY UNCONSCIONABLE.
{¶7}   In her fourth assignment of error, Ms. Kick argues that the trial court incorrectly
determined that the arbitration provision is not procedurally and substantively unconscionable.
We note that, in light of our resolution of the other assignments of error, this issue may become
moot if the trial court resolves those issues in Ms. Kick’s favor.   Accordingly, we decline to
address Ms. Kick’s unconscionability arguments because they are premature at this time.   See
Johnsen v. Johnsen, 9th Dist. No. 16023, 1993 WL 392077, *2 (Oct. 6, 1993).  Ms. Kick’s fourth
assignment of error is overruled.
III.
{¶8}   The trial court did not consider all of the arguments that Ms. Kick made in
opposition to the care center’s motion to stay proceedings and compel/enforce arbitration.   The

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judgment of the Wayne County Common Pleas Court is reversed, and this matter is remanded for
further proceedings consistent with this decision.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, State of Ohio, to carry this judgment into execution.   A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run.   App.R. 22(C).   The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellees.
JENNIFER HENSAL
FOR THE COURT
BELFANCE, P. J.
CARR, J.
CONCUR.
APPEARANCES:
BLAKE A. DICKSON and MARK D. TOLLES, Attorneys at Law, for Appellant.
LESLIE M. JENNY, Attorney at Law, for Appellee.

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