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IN THE COURT OF COMMON PLEAS
WAYNE COUNTY, OHIO
KATHRYN KICK, as the personal
representative of the Estate of
ALICE RITZI (deceased),
) CASE NO. 12-CV-0124
)
) JUDGE MARK K. WIEST
)
Plaintiff. ) PLAINTIFF’S MOTION FOR LEAVE TO
) FILE SUR REPLY BRIEF. INSTANTER. IN
vs. ) RESPONSE TO DEFENDANTS’ REPLY
) BRIEF FILED IN SUPPORT OF
) DEFENDANTS’ MOTION TO FOREVER
) STAY THIS CASE AND SEND IT TO
) BINDING ARBITRATION IN LIEU OF
) TRYING THIS CASE TO A JURY.
SMITHVILLE WESTERN CARE
CENTER, et al.,
Defendants.
Now comes Plaintiff Kathryn Kick. as the personal representative of the Estate of Alice Ritzi
(deceased), by and through her attorneys, Blake A. Dickson and Mark D. Tolles. Il of The Dickson
Firm, L.L.C., and respectfully requests leave from this Honorable Court to file the Within Reply
Brief, Instanter, in response to the Reply Brief filed by the Defendants in response to Plaintiffs Brief
in Opposition to Defendants’ Motion to Stay this case forever. and send it to binding arbitration in
lieu of trying it to a jury.
Defendants Smithville Western Care Center. Smithville Western Care, Inc., Smithville
Western, Inc.. CMS & Co. Management Services. Inc.. Sprenger Retirement Centers, Bluesky
Healthcare, Inc., Sprenger Enterprises Inc., and Grace Management Services, Inc., have moved this
Honorable Court, pursuant to O.R.C. § 2711. for a permanent stay of this case, pending binding
arbitration. The Defendants have asked this Court to forever deny Plaintiff Kathryn Kick, and the
Estate of Alice Ritzi, and Alice Ritzi’s family their constitutional right to a jury trial. in favor of the
woefully inadequate alternative of binding arbitration. Nowhere in Defendants’ Motion to Stay is
there any mention of the Federal Arbitration Act. Now, in their Reply Brief, the Defendants claim
that the Court has to enforce the Federal Arbitration Act.
S)A. Defendants’ Reply Brief should not be considered by this Court.
Local Rule 4(C)(2) provides. “Reply or additional briefs or memorandums shall be submitted
only with the approval of the Court.” The Defendants did not ask for nor obtain approval from this
Court to file a Reply Brief. As a result, pursuant to Local Rule 4(C)(2) their Reply Brief is not
properly before this Court and should not be considered.
If this Court is inclined to consider Defendants’ Reply Brief, Plaintiff asks this Court to
permit Plaintiff to file the within Sur Reply Brief. Instanter.
B. The subject Residency Agreement Automatically Terminated
when Alice Ritzi died on March 11, 2011.
Section III of the subject “Health Care Center Residency Agreement” is entitled
“TERMINATION”. Paragraph B. reads as follows (emphasis added):
B. Termination by Resident. You may terminate this Agreement at any
time; however, Facility requests that You provide it with at least three
(3) days advance notice so that it can conduct proper discharge
planning. This Agreement shall automatically terminate upon the
death of the Resident.
Alice Ritzi died on March 1, 2011. A copy of her Death Certificate is attached hereto as Exhibit
“A”. The Health Care Center Residency Agreement that contains the Arbitration Clause that the
Defendants are relying on terminated on March 1, 2011. The complaint in this case was filed on
February 17, 2012. The Health Care Residency Agreement was terminated long before the
complaint was even filed in this case. The Court need read no further. The subject agreement
terminated back on March 1. 2012 and is not in effect. Defendants” Motion to Stay based on this
terminated agreement must clearly be denied.
Cc. There is no basis to stay the wrongful death claims.
Plaintiff Kathryn Kick. as the personal representative of the Estate of Alice Ritzi (deceased).
twis pursuing both wrongful death claims and survivorship claims in this case. The Ohio Supreme
Court held in Peters v. Columbus Steel Castings Co., (2007). 115 Ohio St.3d 134, 2007-Ohio-4787.
in {1 of the Syllabus that, “A survival action brought to recover for a decedent’s own injuries before
his or her death is independent from a wrongful-death action seeking damages for the injuries that
the decedent's beneficiaries suffer as the result of the death, even though the same nominal party
prosecutes both actions.” The Court went on to say. in numbered {2 of the Syllabus, “A decedent
cannot bind his or her beneficiaries to arbitrate their wrongful-death claims.”
In response to this argument Defendants cite the U.S. Supreme Court’s decision in Marmet
Health Care Center, Inc., et al. v. Clayton Brown.
There is nothing in the Marmet case that would compel this Court to enforce the arbitration
clause in this case. Defendants did not move to stay this case pursuant to the Federal Arbitration
Act. Even if they had, there is no basis to stay the wrongful death claims in this case as Alice Ritzi*s
next of kin are not parties to any arbitration clause.
Ina decision concerning all three cases. the state court held that, “as a matter
of public policy under West Virginia law, an arbitration clause in a nursing home
admission agreement adopted prior to an occurrence of negligence that results ina
personal injury or wrongful death. shall not be enforced to compel arbitration of a
dispute concerning the negligence.” Brown v. Genesis Healthcare Corp., No. 35494
(W.Va.. June 29, 2011), App. to Pet. for Cert. in No. 11-391, pp. 85a-86a (hereinafter
Pet. App.).
Marmet at page 2. The Court in Marmet went on to say, “The FAA provides that a ‘written
provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a
controversy thereafter arising out of such contract or transaction . . . shall be valid. irrevocable. and
enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”
9 U.S.C. §2.” Marmet at page 3. That is the whole point made in Perers. None of Alice Ritzi’s next
weHarmon v. Phillip Morris Inc. (1997). 120 Ohio App. 3d 187, 189.
The issue of whether or not a party has agreed to arbitrate is determined on
the basis of ordinary contract principles. Kegg v. Mansfield (Jan. 31 2000), Stark
App. No. 1999 CA 00167. citing Fox v. Merrill Lynch & Co.. Inc. (1978), 453
F.Supp. 561. See, also, Council of Smaller Enters.. supra: AT&T Technologies, Inc.
y. Communications Workers of America (1986), 475 U.S. 643. In order to have a
valid contract, there must be a “meeting of the minds” on the essential terms of the
agreement, which is usually demonstrated by an offer. acceptance, and consideration.
Reedy v. The Cincinnati Bengals. Inc. (2001), 143 Ohio App. 3d 516, 521. An offer
is defined as “the manifestation of willingness to enter in a bargain. so made as to
justify another person in understanding that his assent to that bargain is invited and
will conclude it.” Id. Further, the essential terms of the contract, usually contained
in the offer, must be definite and certain. Id.
“Ohio law continues to hold that the parties bind themselves by the plain and
ordinary language used in the contract unless those words lead to a manifest
absurdity.” Convenient Food Mart, Inc. v. Countrywide Petroleum Co., et al.,
Cuyahoga App. No. 84722. 2005-Ohio-1994. This is an objective interpretation of
contractual intent based on the words the parties chose to use in the contract. Id.,
citing Kelly v. Medical Life Ins. Co. (1987), 31 Ohio St. 3d 130, paragraph one of the
syllabus.
Alice Ritzi did not sign the arbitration clause. This is not in dispute.
In Council of Smaller Enters. v. Gates. McDonald & Co., 80 Ohio St.3d 661, 1998 Ohio 172.
687 N.E.2d 1352 (1998), the Supreme Court of Ohio reaffirmed the first principle to be analyzed
when considering the applicability of any arbitration clause or agreement. The Court stated that
“arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute
which he has not agreed so to submit.’ * * * This axiom recognizes the fact that arbitrators derive
their authority to resolve disputes only because the parties have agreed to submit such grievances to
arbitration.” Council of Smaller Enters.. 80 Ohio St.3d at 665, quoting AT&T Technologies, Inc. v.
Communications Workers of Am., 475 U.S. 643, 648-49, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986).
quoting Steelworkers v. Warrior & Gulf Navigation Co. 363 U.S. 574, 582. 80S. Ct. 1347, 4 L. Ed.
2d 1409 (1960). The Court went on to hold that there is a presumption against arbitrability when“there is serious doubt that the party resisting arbitration has empowered the arbitrator to decide
anything”. /d. at 667-68. citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 8. Ct.
1920, 131 L. Ed. 2d 985 (1995) (In First Options. the Supreme Court of the United States held that
the since the Kaplans had not personally signed the document containing the alleged arbitration
clause, they were not required to arbitrate the underlying dispute).
In the present case. Decedent Alice Ritzi did not sign any agreement requiring her to arbitrate
any claims that may arise against the Defendants. Her daughter apparently signed the clause
pursuant to a Power of Attorney. That Agreement automatically terminated on March 1, 2011.
Defendants’ Motion must clearly be denied.
D. The only party to the alleged “agreement” is Smithville Western,
Inc. Therefore, it does not apply to Defendants Smithville
Western Care Center, Smithville Western Care, Inc., CMS & Co.
Management Services, Inc., Sprenger Retirement Centers,
Bluesky Healthcare, Inc., Sprenger Enterprises Inc., and Grace
Management Services, Inc.
In addition to the fact that this “Agreement” automatically terminated on March 1, 2011, the
only party to this alleged “agreement” is Smithville Western, Inc. Therefore, it does not apply to
Defendants Smithville Western Care Center. Smithville Western Care, Inc., CMS & Co.
Management Services, Inc., Sprenger Retirement Centers. Bluesky Healthcare, Inc., Sprenger
Enterprises Inc., and Grace Management Services. Inc. There is no arbitration agreement which
applies to Defendants Smithville Western Care Center. Smithville Western Care, Inc.. CMS & Co.
Management Services, Inc., Sprenger Retirement Centers. Bluesky Healthcare, Inc., Sprenger
Enterprises Inc., and Grace Management Services. Inc. so there is no argument that any part of this
case should be stayed as to these Defendants.As stated above, this clause should be evaluated like any other contract. The contract
automatically terminated on March 1.2011. so Defendants’ Motion to Stay must be denied. Alice
Ritzi’s next of kin are not parties to the “Agreement” so the clause is not valid against them.
Defendants Smithville Western Care Center, Smithville Western Care, Inc.. CMS & Co.
Management Services, Inc.. Sprenger Retirement Centers. Bluesky Healthcare, Inc., Sprenger
Enterprises Inc., and Grace Management Services. Inc. are not parties to the “Agreement” so the
“Agreement” is not valid against them.
Not surprisingly, O.R.C. § 2711.01(A) defines a valid arbitration agreement, in pertinent part,
as “any agreement in writing between two or more persons to submit to arbitration any controversy
existing between them”. See also O.R.C. § 2711.22(A).
O.R.C. §1335.05 provides in part (emphasis added):
§ 1335.05. Certain agreements to be in writing
No action shall be brought whereby to charge the defendant, upon a special
promise, to answer for the debt. default. or miscarriage of another person: nor to
charge an executor or administrator upon a special promise to answer damages out
of his own estate; nor to charge a person upon an agreement made upon consideration
of marriage, or upon a contract or sale of lands, tenements, or hereditaments, or
interest in or concerning them, or upon an agreement that is not to be performed
within one year from the making thereof; unless the agreement upon which such
action is brought, or some memorandum or note thereof, is in writing and
signed by the party to be charged therewith or some other person thereunto by
him or her lawfully authorized.
In their Reply Brief Defendants argue that the arbitration clause provides that Decedent Alice
Ritzi agreed to arbitrate all “claims against Facility, its employees. agents, officers, directors. any
parent, subsidiary or affiliate of Facility.” Defendants go on to argue in a completely conclusory
fashion on page 6 of their Reply Brief, “Thus, the agreement as enforced against Plaintiff requiresof kin had a contract with any of the Defendants in this case. Therefore, their claims, the wrongful
death claims, are not barred by the arbitration clause in this case, as they are clearly not parties to it.
The Ohio Supreme Court held in its conclusion in the Peters case, at {20, “Although we have
long favored arbitration and encourage it as a cost-effective proceeding that permits parties to
achieve permanent resolution of their disputes in an expedient manner, it may not be imposed on
the unwilling. Requiring Peters’ beneficiaries to arbitrate their wrongful-death claims without a
signed arbitration agreement would be unconstitutional, inequitable, and in violation of nearly a
century’s worth of established precedent. As such. the judgment of the court of appeals is hereby
affirmed.” (emphasis added)
The Peters case is the controlling authority on the issue of arbitration clauses as they apply
or do not apply in wrongful death cases in Ohio. Pursuant to Peters the arbitration clause in this case
is not binding on Alice Ritzi’s beneficiaries. There is no basis to stay the wrongful death claims in
this case. Kathryn Kick did not have the authority to bind Alice Ritzi’s heirs. There is no argument
that Kathryn Kick was asked to agree, on her own behalf, to arbitrate any disputes. Therefore, this
arbitration clause is not binding on Alice Ritzi’s next of kin. No member of Alice Ritzi’s family is
a party to any arbitration clause. Asa result. Plaintiff has requested that this Court deny the Motion
to Stay, filed by the Defendants, with respect to the wrongful death claims in this case, and otherwise
as articulated below.
In the Marmet case the Court remanded the case back to the West Virginia Trial Court
saying, “On remand, the West Virginia court must consider whether, absent that general public
policy, the arbitration clauses in Brown's case and Taylor's case are unenforceable under state
common law principles that are not specific to arbitration and pre-empted by the FAA.” Marmet onpage 5. So the U.S. Supreme Court clearly contemplated that certain arbitration clauses may not be
enforceable for many reasons.
9 U.S.C. §2 of the Federal Arbitration Act provides (emphasis added):
A written provision in any maritime transaction or a contract evidencing a
transaction involving commerce to settle by arbitration a controversy thereafter
arising out of such contract or transaction, or the refusal to perform the whole or any
part thereof, or an agreement in writing to submit to arbitration an existing
controversy arising out of such a contract. transaction, or refusal, shall be valid,
irrevocable, and enforceable, save upon such grounds as exist at law or in equity
for the revocation of any contract.
As Plaintiff argued in Plaintiff's Brief in Opposition to Defendant’s Motion to Stay. the
arbitration clause in this case is not enforceable against the next of kin as they are not parties to the
clause. No contract is enforceable against someone who is nota party to it. These are basic contract
principles and they apply to this case.
In Maestle v. Best Buy, 2005-Ohio-4120 (August 11. 2005), the Eighth Appellate District
Court of Appeals held:
Nevertheless, courts may not force parties to arbitrate disputes if the parties
have not entered into a valid agreement to do so. See Boedeker v. Rogers (1999),
136 Ohio App. 3d 425, 429; Painesville Twp. Local School District v. Natl. Energy
Met. Inst. (1996). 113 Ohio App. 3d 687. at 695. As the Supreme Court of the
United States has stressed. “arbitration is simply a matter of contract between the
parties; it is a way to resolve disputes - but only those disputes - that the parties have
agreed to submit to arbitration.” First Options of Chicago. Inc. v. Kaplan (1995), 514
US. 938, 943.
The Court went on to hold (emphasis added):
When there is a question as to whether a party has agreed to an arbitration
clause, there is a presumption against arbitration. Spalsbury v. Hunter Realty
Inc., et al, (Nov. 30, 2000), Cuyahoga App. No. 76874, citing Council of Smaller
Enters. v. Gates, McDonald & Co. (1997), 80 Ohio St. 3d 661. An arbitration
agreement will not be enforced if the parties did not agree to the clause. Henderson
vs. Lawyers Title Insurance Corp.. Cuyahoga App. No. 82654, 2004-Ohio-744, citing
wuarbitration of claims against all named Defendants.” This Court does not before it one shred of
evidence as to the identity, the structure nor the relationship to the subject nursing home of
Defendants Smithville Western Care Center, Smithville Western Care, Inc. CMS & Co.
Management Services, Inc.. Sprenger Retirement Centers, Bluesky Healthcare, Inc., Sprenger
Enterprises Inc., and Grace Management Services. Inc. There is no evidence before this Court that
these Defendants are employees. agents, officers. directors. parents, subsidiaries or affiliates of the
“Facility”. What is clear is that these Defendants are not parties to the Health Care Residency
Agreement. Only Smithville Western, Inc. is. Therefore. Defendants’ Motion should clearly be
denied as to Defendants Smithville Western Care Center, Smithville Western Care, Inc., CMS & Co.
Management Services, Inc., Sprenger Retirement Centers, Bluesky Healthcare, Inc., Sprenger
Enterprises Inc., and Grace Management Services, Inc.
E. The arbitration clause is void as a matter of law.
In Plaintiff's Brief in Opposition, Plaintiff argued that the subject Arbitration Clause is void
as a matter of law as it violates O.R.C. §3721.13(A)(15). In response the Defendants argue that the
US Supreme Court rejected this argument in Marmet. This is clearly untrue. In the Marmet case the
Court remanded the case back to the West Virginia Trial Court saying, “On remand, the West
Virginia court must consider whether, absent that general public policy, the arbitration clauses in
Brown’s case and Taylor’s case are unenforceable under state common law principles that are not
specific to arbitration and pre-empted by the FAA.” Marmer on page 5. So the U.S. Supreme Court
clearly contemplated that certain arbitration clauses may not be enforceable for many reasons. In
Ohio this clause is not enforceable as it seeks to deny Alice Ritzi a right promised to her by the Ohio
Revised Code, which right cannot be waived. The arbitration clause in this case specifically says,“Other than changing the forum for lawsuits. this Agreement does not waive any of your resident
rights as provided for in R.C. 3721.10 through 3721 .17:° If that is true then the clause is void
because one of the resident rights is provided in O.R.C. §3721.13(A)(15) which states that a resident
has the right to exercise all “civil rights”. which rights the resident may not waive. as provided by
O.R.C. §3721.13(C).
O.R.C. 3721.13(A)(15) guarantees to all Nursing Home residents:
(15) The right to exercise all civil rights, unless the resident has been
adjudicated incompetent pursuant to Chapter 2111. of the Revised Code and has not
been restored to legal capacity, as well as the right to the cooperation of the home's
administrator in making arrangements for the exercise of the right to vote:
O.R.C. 3721.13(C) provides:
(C) Any attempted waiver of the rights listed in division (A) of this section
is void.
As stated by the General Counsel for the Ohio Department of Health in his letter dated April
2, 2008, a Nursing Home resident's civil rights certainly include the rights set forth in O.R.C.
3721.17.
O.R.C. 3721.17(1) provides (emphasis added):
(1)(1)(a) Any resident whose rights under sections 3721.10 to 3721.17 of the
Revised Code are violated has a cause of action against any person or home
committing the violation.
O.R.C. 3721.10 to O.R.C. 3721.17, the exact same sections specifically mentioned in the
subject arbitration clause in this case set forth the rights guaranteed to nursing home residents.
Plaintiffs are alleging in this case that the Defendants violated Decedent Alice Ritzi’s rights as set
forth in O.R.C. 3721.10 to 3721.17. The Arbitration Clause in this case is an attempt on the part of
the nursing home to induce Decedent Alice Ritzi to waive her right to pursue a cause of action
10against the Defendants. Pursuant to O.R.C. §3721.1 3(C) (emphasis added), “Any attempted waiver
of the rights listed in division (A) of this section is void.” Therefore, since the arbitration clause
in this case attempts to induce Decedent Alice Ritzi to waive one of her rights, as listed in Section
(A) of O.R.C. §3721.13, the clause is void as a matter of law and Defendants’ Motion to Stay should
be denied.
The Ohio Supreme Court has only addressed the enforceability of arbitration clauses
contained in nursing home admission agreements in one case, Hayes v. The Oakridge Home, (2009)
122 Ohio St. 3d 63, 2009 Ohio 2054, 908 N.E. 2d 408. The Ohio Supreme Court overruled the
decision of the Eighth Appellate District Court of Appeals in that decision, and enforced the
arbitration clause in that case. However, the Court did not change the law in the area. Instead. the
Ohio Supreme Court in Hayes confirmed that arbitration clauses. like the one in this case, can be
found to be unenforceable. if they are procedurally and substantively unconscionable. The
arbitration clause in this case is both procedurally and substantively unconscionable, as will be
discussed in detail below. In the Hayes case. Justice Pfeiffer said in his dissent:
I dissent for several reasons. First, | would hold that any nursing-home
preadmission arbitration agreement is unconscionable as a matter of public policy.
Alternatively, I would hold that the specific agreements in this case were
unconscionable as a matter of public policy. More narrowly, I would hold that the
arbitration agreements in this case were both substantively and procedurally
unconscionable.
Hayes v. The Oakridge Home, (2009) 122 Ohio St. 3d 63. 72. 2009 Ohio 2054, 908 N.E. 2d 408.
417. Justice Pfeiffer went on to say in his dissent (emphasis added);
In its analysis of the details of this particular matter, the majority ignores the
big picture. This is an important case. This court should declare all nursing home
preadmission arbitration agreements unenforceable as a matter of public policy.
Arbitration clauses that limit elderly or special-needs patients’ access to the
1courts for claims of negligence or abuse in their care should simply not be
honored or enforced by the courts of this state. The General Assembly has
enunciated a public policy in favor of special protection of nursing-home residents
through its passage of the Ohio Nursing Home Patients’ Bill of Rights, R.C. 3721.10
et seq. "[W Jhere there is a strong public policy against a particular practice. a contract
or clause inimical to that policy will likely be declared unconscionable and
unenforceable unless the policy is clearly outweighed by some legitimate interest in
favor of the individual benefitted by the provision." 8 Williston on Contracts (4th
Ed.1998) 43, Section 18:7.
Hayes, 122 Ohio St. 3d at 72. 2009 Ohio 2054, 908 N.E. 2d at 417. There is no legitimate interest
that outweighs the public policy in favor of protecting nursing home residents. Nursing Homes
attempt to impose these clauses on their residents to protect themselves from liability. Justice
Pfeiffer went on to say;
A public policy against preadmission arbitration agreements is reflected in the
Ohio Nursing Home Patients' Bill of Rights. Further. this court should recognize a
public policy against preadmission arbitration agreements based upon the practical
inappropriateness of such agreements for nursing-home residents.
By enacting the Ohio Nursing Home Patients’ Bill of Rights, R.C. 3721.10 et
seq..the General Assembly has demonstrated particular interest in ensuring the rights
of nursing-home patients and has provided statutory remedies for those patients
whose rights are violated. R.C. 3721.13(A) specifically enumerates 32 important
rights. including the right "to a safe and clean living environment" (B.C.
3721.13(A)(1)), the right "to be free from physical, verbal, mental, and emotional
abuse and to be treated at all times with courtesy. respect, and full recognition of
dignity and individuality” (R.C- 3721,13(A)(2)). "the right to adequate and
appropriate medical treatment and nursing care and to other ancillary services that
comprise necessary and appropriate care consistent with the program for which the
resident contracted" (R.C. 3721. 13(A)(3)). the right "to have all reasonable requests
and inquiries responded to promptly" (R.C, 3721, 13(A)(4)), the right "to have clothes
and bed sheets changed as the need arises, to ensure the resident's comfort or
sanitation," (R.C. 3721. 13(A)(5)), and the right "to voice grievances and recommend
changes in policies and services to the home's staff. to employees of the department
of health, or to other persons not associated with the operation of the home, of the
resident's choice, free from restraint. interference, coercion, discrimination, or
reprisal." (R.C. 3721.13(A)(31)).R.C. 3721.17 contains the enforcement provision of the Ohio Nursing Home
Patients’ Bill of Rights. Pursuant to R.C. 372/.17()(1)(a). "[a]ny resident whose
rights under sections 3721.10 to 3721.17 of the Revised Code are violated has a cause
of action against any person or home committing the violation." The use of injunctive
relief to achieve a proper level of care is clearly contemplated by the General
Assembly. The General Assembly calis for the award of attorney fees when residents
resort to injunctive relief. In cases "in which only injunctive relief is granted, [the
court] may award to the prevailing party reasonable attorney's fees limited to the
work reasonably performed.” R.C. 3721.17) (2)(c).
RC. 3721.17 also allows residents to employ other methods to ensure their
rights. Those include reporting violations of the Ohio Nursing Home Patients’ Bill
of Rights to the grievance committee established at the home pursuant to R.C.
3721.12(A)(2). The statute requires that a combination of residents, sponsors, or
outside representatives outnumber nursing home staff two to one on such
committees. Another statutory option for residents is to pursue a claim through the
Department of Health. R.C. 3721.031.
The General Assembly has given nursing-home residents rights and a
multitude of ways to preserve those rights. An agreement to arbitrate all disputes flies
in the face of the statutory protections of nursing-home residents and should be found
unconscionable as a matter of public policy.
Hayes, 122 Ohio St. 3d 63, at 74-75, 2009 Ohio 2054. 908 N.E. 2d at 417-418. Justice Pfeiffer goes
on to say:
The tactics employed by Oakridge and countenanced by the majority in this
case are appalling. This court today provides a roadmap for nursing-home facilities
to avoid the responsibilities of the Ohio Nursing Home Patients’ Bill of Rights.
Is it really acceptable to shove an arbitration agreement under the nose ofa
95-year-woman, newly arrived at the nursing home, as she goes through the signing
frenzy of the admission process? Does the majority really believe that Florence Hayes
knowingly and voluntarily gave up her statutory rights through a negotiation process?
The majority suggests that the Constitution demands today's result and that
it is this court's duty to defend the right to private contract. The majority writes: "Our
citizens do not lose their constitutional rights and liberties simply because they age."
Yes, somewhere in the penumbra of the penumbra of the right to contract, if you
squint just so, you can make out what the majority identifies today: the right of the
elderly to be "taken in" by nursing homes. This court's corollary right for nursing
homes is the right to say. "You signed it. Live with it! Ohio Nursing Home Patients’
Bill of Rights? You waived it! Your fundamental constitutional rights? You waived
them too! And don't forget to remind your son that we need next month's check for
13$ 5,500 by the first.”
Hayes, 122 Ohio St. 3d at 79, 2009 Ohio 2054. 908 N.E. 2d at 422-423.
Alice Ritzi’s right to sue the nursing home for its violation of her statutory rights cannot be
waived. Asa result, the arbitration clause in this case is void as a matter of law ans Defendants”
Motion to Stay should clearly be denied.
F. The AMA, the ABA and the AAA have all come out against clauses like the one
at issue in this case.
Asthe Court tries to determine if the arbitration clause at issue in this case is unconscionable.
Plaintiff urges the Court to consider that the American Medical Association, the leading national
organization of doctors and other health care providers, the American Bar Association, the leading
national organization of lawyers and the American Arbitration Association, the leading national
organization of Arbitrators, have all come out against arbitration clauses like the one at issue in this
case.
In the Fall of 1997, the American Arbitration Association, the American Bar Association and
the American Medical Association, the leading associations involved in alternative dispute
resolution, law, and medicine. collaborated to form a Commission on Health Care Dispute
Resolution (the Commission). The Commission's goal was to issue. by the Summer of 1 998, a Final
Report on the appropriate use of alternative dispute resolution (ADR) in resolving disputes in the
private managed health care environment. Their Final Report discusses the activities of the
Commission from its formation in September 1997 through the date of its report, and sets forth its
unanimous recommendations. The Commission issued its Final Report on July 27, 1998. ' That
’ The entire 46 page report is available at the web site for the American Arbitration
Association at the following address: http://www.adr.org/sp.asp?id=28633
14report concluded on page 15. in Principle 3 of a section entitled, “C. A Due Process Protocol for
Resolution of Health Care Disputes.” that: ~The agreement to use ADR should be knowing and
voluntary. Consent to use an ADR process should not be a requirement for receiving
emergency care or treatment. In disputes involving patients, binding forms of dispute
resolution should be used only where the parties agree to do so after a dispute arises.”
(Emphasis added.)
The arbitration clause at issue in the within case clearly violates the guidelines set forth
above. It should not be enforced. It cannot be over-emphasized that the American Arbitration
Association, the American Bar Association and the American Medical Association, the leading
associations involved in alternative dispute resolution. law, and medicine, have come together and
issued a joint report which argues against enforcing arbitration clauses like the one at issue in this
case.
The arbitration clause in this case is dated before Decedent Alice Ritzi or her family had a
claim. According to the report cited above. the clause should not be enforced. The arbitration clause
in this case was not entered into knowingly. nor was it entered into voluntarily, as will be
demonstrated below.
G. In addition to being void, the arbitration clause is also both procedurally and
substantively unconscionable.
Even if the Court does not find the arbitration clause in this case void as a matter of law since
it seeks to divest Alice Ritzi of the rights that are guaranteed to her by the Nursing Home Bill of
Rights as contained in the Ohio Revised Code. the Court should still deny Defendant's Motion to
Stay, in its entirety, since the arbitration clause in this case is both procedurally and substantivelyunconscionable. Attached hereto as Exhibit “B” is an Affidavit signed by Kathryn Kick attesting
to facts that are relevant to this Court's determination as to whether this clause is unconscionable.
Arbitration clauses were first used in business contracts, between sophisticated business
persons, as a means to save time and money should a dispute arise. As evidenced by the plethora of
recent cases involving the applicability of arbitration clauses. these clauses are now being used in
transactions between large corporations and ordinary consumers. This has been a significant cause
for concern for a number of courts that have considered this issue. The clause at issue in this case
is being applied in a negligence action. This should be of particular concern as negligence cases are
typically fact-driven, and benefit from the discovery process afforded in a civil action. Further.
negligence cases often hinge on the "reasonableness" of a particular action or inaction. Such a
subjective analysis is best left to a jury acting as the fact finder. As Justice Lanzinger said in her
concurring opinion in Hayes:
At least one appellate court has expressed unease over applying arbitration
clauses, which initially were designed to save time and money for sophisticated
business people involved in contract disputes, to situations where nursing-home
residents give up court trials in negligence actions. Small vy. HCF of Perrysburg, Inc.,
159 Ohio App.3d 66, 2004 Ohio 5757, 823 N.E.2d 19. Although the General
Assembly has not prohibited use of arbitration agreements in nursing-home settings,
there is movement at the federal level to do so. Two recently introduced
Congressional bills would invalidate pre-dispute arbitration agreements between
nursing homes and their residents. H.R. 1237, 111th Cong. (introduced Feb. 26,
2009); S. 512, 111th Cong. (introduced Mar. 3, 2009).
Hayes, 122 Ohio St. 3d at 72-73, 2009 Ohio 2054. 908 N.E. 2d at 417.
The majority in Hayes v. The Oakridge Home, (2009) 122 Ohio St. 3d 63, 72, 2009 Ohio
2054, 908 N.E. 2d 408, 417 held that an arbitration clause contained in a nursing home admission
agreement can be held to be unenforceable. if it is found to be procedurally and substantively
16unconscionable.
As noted above. an arbitration agreement is enforceable unless grounds exist
at law or in equity for revoking the agreement. R.C. 27//.01(A). Unconscionability
is a ground for revocation of an arbitration agreement. Taylor Bldg., 117 Ohio St. 3d
352, 2008 Ohio 938, P33. 884 N.E.2d 12. In Taylor, we recently explained
unconscionability in this context as follows:
"Unconscionability includes both "an absence of meaningful choice on the
part of one of the parties together with contract terms which are unreasonably
favorable to the other party."" Lake Ridge Academy v. Carney (1993), 66 Ohio St.3d
376, 383, 613 N.E.2d 183, quoting Williams v. Walker-Thomas Furniture Co.
(C.A.D.C.1965), 350 F.2d 445, 449, 121 U.S. App. D.C. 315: see also Collins v. Click
Camera & Video, Inc. (1993), 86 Ohio App.3d 826, 834, 621 N.E.2d 1294. The party
asserting unconscionability of a contract bears the burden of proving that the
agreement is both procedurally and substantively unconscionable. See generally Ball
v. Ohio State Home Servs.. Inc., 168 Ohio App. 3d 622, 2006 Ohio 4464, 861 N.E.2d
553; see also Click Camera, 86 Ohio App.3d at 834, 621 N.E.2d 1294, citing White
& Summers, Uniform Commercial Code (1988) 219. Section 4-7 (‘One must allege
and prove a "quantum" of both prongs in order to establish that a particular contract
is unconscionable’)." Taylor Bldg., 117 Ohio St. 3d 352, 2008 Ohio 938, P34. 884
N.E.2d 12.
Hayes, 122 Ohio St. 3d at 67. 2009 Ohio 2054. 908 N.E. 2d at 412. Plaintiff urges this Court to deny
Defendants’ Motion to Stay by finding that the arbitration clause in this case is both procedurally and
substantively unconscionable. As Justice Pfeiffer pointed out in his dissent in Hayes;
The party challenging a contract as unconscionable must prove a quantum of
both procedural and substantive unconscionability. Taylor Bldg. Corp. of Am. v.
Benfield, 117 Ohio St. 3d 352, 2008 Ohio 938, P34. 884 N.E.2d 12. However,
substantive and procedural unconscionability need not be present in equal measure
in the agreement in question:
Essentially a sliding scale is invoked which disregards the regularity of the
procedural process of the contract formation. that creates the terms, in proportion to
the greater harshness or unreasonableness of the substantive terms themselves.' (15
Williston on Contracts (3d ed. 1972) § 1763A, pp. 226-227 * * *. In other words, the
more substantively oppressive the contract term. the less evidence of procedural
unconscionability is required to come to the conclusion that the term is
unenforceable, and vice versa." Armendariz v. Found. Health Psychcare Servs., Inc.
(2000). 24 Cal.4th 83. 114, 99 Cal. Rptr. 2d 745, 6 P.3d 669.In other words. "[T]he substantive/procedural analysis is more of a sliding
scale than a true dichotomy. The harsher the clause, the less "bargaining
naughtiness" that is required to establish unconscionability."" Tillman v. Commercial
Credit Loans, Inc. (2008), 362 N.C. 93, 103, 655 S.E.2d 362, quoting Tacoma
Boatbuilding Co. v. Delta Fishing Co. (W.D.Wash. 1980), 28 U.C.C. Rep.Serv. (CBC)
26, 37, fn. 20. The seriousness of the substantive unconscionability of the arbitration
agreements in this case requires proof of only minor procedural unconscionability.
Hayes, 122 Ohio St. 3d 63 at 76-77. 2009 Ohio 2054, 908 N.E. 2d 420-421.
In Maestle v. Best Buy. (2005), 2005 Ohio 4120, 2005 Ohio App. LEXIS 3759, the Eighth
Appellate District Court of Appeals held (emphasis added):
When there is a question as to whether a party has agreed to an arbitration
clause, there is a presumption against arbitration. Spalsbury v. Hunter Realty.
Inc., etal, (Nov. 30, 2000), Cuyahoga App. No. 76874. citing Council of Smaller
Enters. v. Gates, McDonald & Co. (1997). 80 Ohio St. 3d 661. An arbitration
agreement will not be enforced if the parties did not agree to the clause. Henderson
vs. Lawyers Title Insurance Corp., Cuyahoga App. No. 82654, 2004-Ohio-744, citing
Harmon v. Phillip Morris Inc. (1997). 120 Ohio App. 3d 187, 189.
As stated by the Ohio Supreme Court in Branham v. Cigna Healthcare, 81 Ohio St. 3d 388.
390 692 N.E. 2d 137, 140 (1998). “While the law of this state favors arbitration, Council of Smaller
Enterprises, infra, 80 Ohio St. 3d [661] at 666. 687 N.E.2d [1352] at 1356; Schaefer v. Allstate Ins.
Co. (1992), 63 Ohio St. 3d 708, 711-712, 590 N.E.2d 1242, 1245. not every arbitration clause is
enforceable. R.C.2711.01(A); Schaefer, 63 Ohio St. 3d 708. 590 N.E.2d 1242.” (emphasis added).
As Justice Cook stated in the Dissent in. Williams v. Aetna Fin. Co., 83 Ohio St. 3d 464, 700
N.E.2d 859 (1998), though state and federal legislation favors enforcement of agreements to
arbitrate, both O.R.C. §2711.01(A) and Section 2. Title 9. U.S. Code permit a court to invalidate an
arbitration clause on equitable or legal grounds that would cause any agreement to be revocable. One
such ground is unconscionability.
‘Unconscionability has generally been recognized to include an absence of
18mm
meaningful choice on the part of one of the parties together with contract terms
which are unreasonably favorable to the other party.’ Williams v. Walker Thomas
Furniture Co, (C.A.D.C.1965), 121 U.S. App. D.C. 315. 350 F.2d 445.449." Lake
Ridge Academy v. Carney (1993). 66 Ohio St. 3d 376. 383, 613N.E.2d 183, 189.
Accordingly, unconscionability has two prongs: a procedural prong, dealing with the
parties’ relation and the making of the contract, and a substantive prong, dealing with
the terms of the contract itself. Both prongs must be met to invalidate an arbitration
provision.
In explaining the analogies between this case and Patterson, the majority
appears to stress the disparity of bargaining power between the parties and arbitration
costs as reasons for nullifying the agreement to arbitrate as unconscionable. These
factors. however, if by themselves deemed to render arbitration provisions of a
contract unconscionable. could potentially invalidate a large percentage of arbitration
agreements in consumer transactions.
The disparity of bargaining power between Williams and ITT would be one
factor tending to prove that the contract was procedurally unconscionable. A finding
of procedural unconscionability. or that the contract is one of adhesion, however,
requires more. "Black's Law Dictionary (5 Ed.1979) 38. defines a contract of
adhesion as a'standardized contract form offered to consumers of goods and services
on essentially "take it or leave it" basis without affording consumer realistic
opportunity to bargain and under such conditions that consumer cannot obtain desired
product or services except by acquiescing in form contract. *« * *'" Sekeres v.
Arbaugh (1987), 31 Ohio St. 3d 24. 31. 31 Ohio B. Rep. 75, 81, 508 N.E.2d 941,
946947 (H. Brown. J.. dissenting). citing Wheeler v. St. Joseph Hosp. (1976), 63 Cal.
App. 3d 345, 356, 133 Cal. Rptr. 775. 783: Std. Oil Co. of California v. Perkins
(C.A.9, 1965), 347 F.2d 379. 383. See. also, Nottingdale Homeowners’ Assn.. Inc.
v. Darby (1987). 33 Ohio St. 3d 32. 37. 514 N.E.2d 702, 707, fn. 7.
In Small v. HCF of Perrysburg, (2004) 159 Ohio App. 3d 66, a case cited in almost every
case that has been decided on this issue, since the Small opinion was issued. including the Ohio
Supreme Court’s decision in Hayes, the trial court ordered the plaintiffs in that case to submit their
claims of nursing home negligence against the Defendant to arbitration, and stayed the case until the
conclusion of the arbitration. The Plaintiffs appealed. On appeal. the Plaintiffs, now the Appellants.
argued that “the clause was unconscionable because Mrs. Small, at the time she signed the document.
was concerned about the immediate health of her husband and was in no position to review and fully
19appreciate the terms of the agreement.” Small at 69. The Sixth District Court of Appeals held the
arbitration clause unconscionable. In deciding this issue the Sixth District Court of Appeals held as
follows (emphasis added):
As set forth above. R.C. 2711.01(A) provides that an arbitration clause may
be unenforceable based on legal or equitable grounds. An arbitration clause may be
legally unenforceable where the clause is not applicable to the matter at hand, or if
the parties did not agree to the clause in question. Benson v. Spitzer Mgt., Inc., 8th
Dist. No. 83558, 2004 Ohio 4751, P13. citing Ervin v. Am. Funding Corp. (1993),
89 Ohio App.3d 519, 625 N.E.2d 635. Further. an arbitration clause is unenforceable
if it is found by a court to be unconscionable. Unconscionability refers to the absence
of a meaningful choice on the part of one of the parties to a contract, combined with
contract terms that are unreasonably favorable to one party. Collins v. C lick Camera
& Video, Inc. (1993). 86 Ohio App.3d 826. 834, 621 N.E.2d 1294. Accordingly.
unconscionability consists of two separate concepts: (1) _ substantive
unconscionability, which refers to the commercial reasonableness of the contract
terms themselves and (2) procedural unconscionability, which refers to the
bargaining positions of the parties. Id. Collins defines and differentiates the concepts
as follows:
“Substantive unconscionability involves those factors which relate to the
contract terms themselves and whether they are commercially reasonable. Because
the determination of commercial reasonableness varies with the content of the
contract terms at issue in any given case. no generally accepted list of factors has
been developed for this category of unconscionability. However, courts examining
whether a particular limitations clause is substantively unconscionable have
considered the following factors: the fairness of the terms. the charge for the service
rendered, the standard in the industry and the ability to accurately predict the extent
of future liability. See Chanda, supra; Berjian, supra.
“Procedural unconscionability involves those factors bearing on the relative
bargaining position of the contracting parties, e.g. ‘age. education, intelligence.
business acumen and experience. relative bargaining power, who drafted the contract,
whether the terms were explained to the weaker party. whether alterations in the
printed terms were possible, whether there were alternative sources of supply for the
goods in question.’ Johnson v. Mobil Oil Corp. (E.D.Mich.1976), 415 F. Supp. 264,
268." Id.
In order to negate an arbitration clause, a party must establish a quantum of
both substantive and procedural unconscionability. Id. In reviewing the arbitration
clause at issue, we will individually discuss each prong.
20"Substantive Unconscionability
Appellants contend that the arbitration clause is substantively unconscionable
because: (1) it gives The Manor the right to proceed in any forum its chooses for the
resolution of fees disputes while limiting residents’ claims to arbitration; (2) the
arbitration clause, despite the language in the agreement, was a condition of
admission; (3) the prevailing party is entitled to costs and reasonable attorney fees;
(4) the issue of whether a resident's claim is subject to arbitration is improperly to be
determined through the arbitration process: and (5) the clause requires that arbitration
be conducted at the facility rather than a neutral setting. Appellee counters each
assertion.
At the outset, we note that the arbitration clause does contain a sentence
which provides that admission is not conditioned on agreement to the clause.
However, the same clause states that any "controversy. dispute, disagreement or
claim" ofa resident "shall be settled exclusively by binding arbitration.” Further, and
most importantly, the bold print directly above the signature lines states that by
signing the agreement the parties agree to arbitrate their disputes and that the parties
agree to the terms of the agreement "in consideration of the facility's acceptance of
and rendering services to the resident." The residents or their representatives are
provided no means by which they may reject the arbitration clause. Accordingly, we
believe that the resident or representative is. by signing the agreement that is required
for admission, for all practical purposes being required to agree to the arbitration
clause.
On review of the arbitration clause and the arguments of the parties, we find
troubling the fact that the prevailing party is entitled to attorney fees. Typically,
attorney fees are not awarded to the prevailing party in a civil action unless ordered
by the court (such as following a finding of frivolous conduct.) Though the prevailing
party may be the resident or representative. individuals may be discouraged from
pursuing claims because. in addition to paying their attorney and, pursuant to the
arbitration clause, the costs of the arbitration. they may be saddled with the facility's
costs and attorney fees. Such a burden is undoubtedly unconscionable.
“Procedural unconscionability
Asstated above. procedural unconscionability involves an examination of the
bargaining position of the parties. In her affidavit. Mrs. Small stated that when she
arrived at The Manor she was concerned about her husband's health because he
appeared to be unconscious. Shortly after his arrival she was informed that Mr.
Small was going to be transported by ambulance to the hospital. Mrs. Small was then
approached by an employee of The Manor and asked to sign the Admission
Agreement. The agreement was not explained to her and Mrs. Small stated that she
21signed the agreement "while under considerable stress * * *." Mrs. Small stated that
the entire process, from their arrival at The Manor until the ambulance left, took
approximately 30 minutes.
After careful review of the particular facts of this case. we find procedural
unconscionability. When Mrs. Small signed the agreement she was under a great
amount of stress. The agreement was not explained to her; she did not have an
attorney present. Mrs. Small did not have any particularized legal expertise and was
69 years old on the date the agreement was signed.
In finding that The Manor's arbitration clause is unconscionable, we must
make a few observations. Though we firmly believe that this case demonstrates both
substantive and procedural unconscionability, there is a broader reason that
arbitration clauses in these types of cases must be closely examined. Arbitration
clauses were first used in business contracts. between sophisticated business persons,
as a means to save time and money should a dispute arise. As evidenced by the
plethora of recent cases involving the applicability of arbitration clauses, the clauses
are now being used in transactions between large corporations and ordinary
consumers, which is cause for concern. Particularly problematic in this case.
however. is the fact that the clause at issue had potential application in a negligence
action. Such cases are typically fact-driven and benefit from the discovery process
afforded in a civil action. Further. negligence cases often hinge on the
"reasonableness" of a particular action or inaction. Such a subjective analysis is often
best left to a jury acting as the fact finder. These observations are not intended to
prevent the application of arbitration clauses in tort cases, we merely state that these
additional facts should be considered in determining the parties’ intentions.
Based on the foregoing, we find that appellants’ first assignment of error is
well taken. Due to our disposition of appellants’ first assignment of error, we find that
appellants’ second assignm
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IN THE COURT OF COMMON PLEAS WAYNE COUNTY, OHIO KATHRYN KICK, as the personal representative of the Estate of ALICE RITZI (deceased), ) CASE NO. 12-CV-0124 ) ) JUDGE MARK K. WIEST ) Plaintiff. ) PLAINTIFF’S MOTION FOR LEAVE TO ) FILE SUR REPLY BRIEF. INSTANTER. IN vs. ) RESPONSE TO DEFENDANTS’ REPLY ) BRIEF FILED IN SUPPORT OF ) DEFENDANTS’ MOTION TO FOREVER ) STAY THIS CASE AND SEND IT TO ) BINDING ARBITRATION IN LIEU OF ) TRYING THIS CASE TO A JURY. SMITHVILLE WESTERN CARE CENTER, et al., Defendants. Now comes Plaintiff Kathryn Kick. as the personal representative of the Estate of Alice Ritzi (deceased), by and through her attorneys, Blake A. Dickson and Mark D. Tolles. Il of The Dickson Firm, L.L.C., and respectfully requests leave from this Honorable Court to file the Within Reply Brief, Instanter, in response to the Reply Brief filed by the Defendants in response to Plaintiffs Brief in Opposition to Defendants’ Motion to Stay this case forever. and send it to binding arbitration in lieu of trying it to a jury. Defendants Smithville Western Care Center. Smithville Western Care, Inc., Smithville Western, Inc.. CMS & Co. Management Services. Inc.. Sprenger Retirement Centers, Bluesky Healthcare, Inc., Sprenger Enterprises Inc., and Grace Management Services, Inc., have moved this Honorable Court, pursuant to O.R.C. § 2711. for a permanent stay of this case, pending binding arbitration. The Defendants have asked this Court to forever deny Plaintiff Kathryn Kick, and the Estate of Alice Ritzi, and Alice Ritzi’s family their constitutional right to a jury trial. in favor of the woefully inadequate alternative of binding arbitration. Nowhere in Defendants’ Motion to Stay is there any mention of the Federal Arbitration Act. Now, in their Reply Brief, the Defendants claim that the Court has to enforce the Federal Arbitration Act. S)A. Defendants’ Reply Brief should not be considered by this Court. Local Rule 4(C)(2) provides. “Reply or additional briefs or memorandums shall be submitted only with the approval of the Court.” The Defendants did not ask for nor obtain approval from this Court to file a Reply Brief. As a result, pursuant to Local Rule 4(C)(2) their Reply Brief is not properly before this Court and should not be considered. If this Court is inclined to consider Defendants’ Reply Brief, Plaintiff asks this Court to permit Plaintiff to file the within Sur Reply Brief. Instanter. B. The subject Residency Agreement Automatically Terminated when Alice Ritzi died on March 11, 2011. Section III of the subject “Health Care Center Residency Agreement” is entitled “TERMINATION”. Paragraph B. reads as follows (emphasis added): B. Termination by Resident. You may terminate this Agreement at any time; however, Facility requests that You provide it with at least three (3) days advance notice so that it can conduct proper discharge planning. This Agreement shall automatically terminate upon the death of the Resident. Alice Ritzi died on March 1, 2011. A copy of her Death Certificate is attached hereto as Exhibit “A”. The Health Care Center Residency Agreement that contains the Arbitration Clause that the Defendants are relying on terminated on March 1, 2011. The complaint in this case was filed on February 17, 2012. The Health Care Residency Agreement was terminated long before the complaint was even filed in this case. The Court need read no further. The subject agreement terminated back on March 1. 2012 and is not in effect. Defendants” Motion to Stay based on this terminated agreement must clearly be denied. Cc. There is no basis to stay the wrongful death claims. Plaintiff Kathryn Kick. as the personal representative of the Estate of Alice Ritzi (deceased). twis pursuing both wrongful death claims and survivorship claims in this case. The Ohio Supreme Court held in Peters v. Columbus Steel Castings Co., (2007). 115 Ohio St.3d 134, 2007-Ohio-4787. in {1 of the Syllabus that, “A survival action brought to recover for a decedent’s own injuries before his or her death is independent from a wrongful-death action seeking damages for the injuries that the decedent's beneficiaries suffer as the result of the death, even though the same nominal party prosecutes both actions.” The Court went on to say. in numbered {2 of the Syllabus, “A decedent cannot bind his or her beneficiaries to arbitrate their wrongful-death claims.” In response to this argument Defendants cite the U.S. Supreme Court’s decision in Marmet Health Care Center, Inc., et al. v. Clayton Brown. There is nothing in the Marmet case that would compel this Court to enforce the arbitration clause in this case. Defendants did not move to stay this case pursuant to the Federal Arbitration Act. Even if they had, there is no basis to stay the wrongful death claims in this case as Alice Ritzi*s next of kin are not parties to any arbitration clause. Ina decision concerning all three cases. the state court held that, “as a matter of public policy under West Virginia law, an arbitration clause in a nursing home admission agreement adopted prior to an occurrence of negligence that results ina personal injury or wrongful death. shall not be enforced to compel arbitration of a dispute concerning the negligence.” Brown v. Genesis Healthcare Corp., No. 35494 (W.Va.. June 29, 2011), App. to Pet. for Cert. in No. 11-391, pp. 85a-86a (hereinafter Pet. App.). Marmet at page 2. The Court in Marmet went on to say, “The FAA provides that a ‘written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid. irrevocable. and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. §2.” Marmet at page 3. That is the whole point made in Perers. None of Alice Ritzi’s next weHarmon v. Phillip Morris Inc. (1997). 120 Ohio App. 3d 187, 189. The issue of whether or not a party has agreed to arbitrate is determined on the basis of ordinary contract principles. Kegg v. Mansfield (Jan. 31 2000), Stark App. No. 1999 CA 00167. citing Fox v. Merrill Lynch & Co.. Inc. (1978), 453 F.Supp. 561. See, also, Council of Smaller Enters.. supra: AT&T Technologies, Inc. y. Communications Workers of America (1986), 475 U.S. 643. In order to have a valid contract, there must be a “meeting of the minds” on the essential terms of the agreement, which is usually demonstrated by an offer. acceptance, and consideration. Reedy v. The Cincinnati Bengals. Inc. (2001), 143 Ohio App. 3d 516, 521. An offer is defined as “the manifestation of willingness to enter in a bargain. so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.” Id. Further, the essential terms of the contract, usually contained in the offer, must be definite and certain. Id. “Ohio law continues to hold that the parties bind themselves by the plain and ordinary language used in the contract unless those words lead to a manifest absurdity.” Convenient Food Mart, Inc. v. Countrywide Petroleum Co., et al., Cuyahoga App. No. 84722. 2005-Ohio-1994. This is an objective interpretation of contractual intent based on the words the parties chose to use in the contract. Id., citing Kelly v. Medical Life Ins. Co. (1987), 31 Ohio St. 3d 130, paragraph one of the syllabus. Alice Ritzi did not sign the arbitration clause. This is not in dispute. In Council of Smaller Enters. v. Gates. McDonald & Co., 80 Ohio St.3d 661, 1998 Ohio 172. 687 N.E.2d 1352 (1998), the Supreme Court of Ohio reaffirmed the first principle to be analyzed when considering the applicability of any arbitration clause or agreement. The Court stated that “arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.’ * * * This axiom recognizes the fact that arbitrators derive their authority to resolve disputes only because the parties have agreed to submit such grievances to arbitration.” Council of Smaller Enters.. 80 Ohio St.3d at 665, quoting AT&T Technologies, Inc. v. Communications Workers of Am., 475 U.S. 643, 648-49, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986). quoting Steelworkers v. Warrior & Gulf Navigation Co. 363 U.S. 574, 582. 80S. Ct. 1347, 4 L. Ed. 2d 1409 (1960). The Court went on to hold that there is a presumption against arbitrability when“there is serious doubt that the party resisting arbitration has empowered the arbitrator to decide anything”. /d. at 667-68. citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 8. Ct. 1920, 131 L. Ed. 2d 985 (1995) (In First Options. the Supreme Court of the United States held that the since the Kaplans had not personally signed the document containing the alleged arbitration clause, they were not required to arbitrate the underlying dispute). In the present case. Decedent Alice Ritzi did not sign any agreement requiring her to arbitrate any claims that may arise against the Defendants. Her daughter apparently signed the clause pursuant to a Power of Attorney. That Agreement automatically terminated on March 1, 2011. Defendants’ Motion must clearly be denied. D. The only party to the alleged “agreement” is Smithville Western, Inc. Therefore, it does not apply to Defendants Smithville Western Care Center, Smithville Western Care, Inc., CMS & Co. Management Services, Inc., Sprenger Retirement Centers, Bluesky Healthcare, Inc., Sprenger Enterprises Inc., and Grace Management Services, Inc. In addition to the fact that this “Agreement” automatically terminated on March 1, 2011, the only party to this alleged “agreement” is Smithville Western, Inc. Therefore, it does not apply to Defendants Smithville Western Care Center. Smithville Western Care, Inc., CMS & Co. Management Services, Inc., Sprenger Retirement Centers. Bluesky Healthcare, Inc., Sprenger Enterprises Inc., and Grace Management Services. Inc. There is no arbitration agreement which applies to Defendants Smithville Western Care Center. Smithville Western Care, Inc.. CMS & Co. Management Services, Inc., Sprenger Retirement Centers. Bluesky Healthcare, Inc., Sprenger Enterprises Inc., and Grace Management Services. Inc. so there is no argument that any part of this case should be stayed as to these Defendants.As stated above, this clause should be evaluated like any other contract. The contract automatically terminated on March 1.2011. so Defendants’ Motion to Stay must be denied. Alice Ritzi’s next of kin are not parties to the “Agreement” so the clause is not valid against them. Defendants Smithville Western Care Center, Smithville Western Care, Inc.. CMS & Co. Management Services, Inc.. Sprenger Retirement Centers. Bluesky Healthcare, Inc., Sprenger Enterprises Inc., and Grace Management Services. Inc. are not parties to the “Agreement” so the “Agreement” is not valid against them. Not surprisingly, O.R.C. § 2711.01(A) defines a valid arbitration agreement, in pertinent part, as “any agreement in writing between two or more persons to submit to arbitration any controversy existing between them”. See also O.R.C. § 2711.22(A). O.R.C. §1335.05 provides in part (emphasis added): § 1335.05. Certain agreements to be in writing No action shall be brought whereby to charge the defendant, upon a special promise, to answer for the debt. default. or miscarriage of another person: nor to charge an executor or administrator upon a special promise to answer damages out of his own estate; nor to charge a person upon an agreement made upon consideration of marriage, or upon a contract or sale of lands, tenements, or hereditaments, or interest in or concerning them, or upon an agreement that is not to be performed within one year from the making thereof; unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith or some other person thereunto by him or her lawfully authorized. In their Reply Brief Defendants argue that the arbitration clause provides that Decedent Alice Ritzi agreed to arbitrate all “claims against Facility, its employees. agents, officers, directors. any parent, subsidiary or affiliate of Facility.” Defendants go on to argue in a completely conclusory fashion on page 6 of their Reply Brief, “Thus, the agreement as enforced against Plaintiff requiresof kin had a contract with any of the Defendants in this case. Therefore, their claims, the wrongful death claims, are not barred by the arbitration clause in this case, as they are clearly not parties to it. The Ohio Supreme Court held in its conclusion in the Peters case, at {20, “Although we have long favored arbitration and encourage it as a cost-effective proceeding that permits parties to achieve permanent resolution of their disputes in an expedient manner, it may not be imposed on the unwilling. Requiring Peters’ beneficiaries to arbitrate their wrongful-death claims without a signed arbitration agreement would be unconstitutional, inequitable, and in violation of nearly a century’s worth of established precedent. As such. the judgment of the court of appeals is hereby affirmed.” (emphasis added) The Peters case is the controlling authority on the issue of arbitration clauses as they apply or do not apply in wrongful death cases in Ohio. Pursuant to Peters the arbitration clause in this case is not binding on Alice Ritzi’s beneficiaries. There is no basis to stay the wrongful death claims in this case. Kathryn Kick did not have the authority to bind Alice Ritzi’s heirs. There is no argument that Kathryn Kick was asked to agree, on her own behalf, to arbitrate any disputes. Therefore, this arbitration clause is not binding on Alice Ritzi’s next of kin. No member of Alice Ritzi’s family is a party to any arbitration clause. Asa result. Plaintiff has requested that this Court deny the Motion to Stay, filed by the Defendants, with respect to the wrongful death claims in this case, and otherwise as articulated below. In the Marmet case the Court remanded the case back to the West Virginia Trial Court saying, “On remand, the West Virginia court must consider whether, absent that general public policy, the arbitration clauses in Brown's case and Taylor's case are unenforceable under state common law principles that are not specific to arbitration and pre-empted by the FAA.” Marmet onpage 5. So the U.S. Supreme Court clearly contemplated that certain arbitration clauses may not be enforceable for many reasons. 9 U.S.C. §2 of the Federal Arbitration Act provides (emphasis added): A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract. transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. As Plaintiff argued in Plaintiff's Brief in Opposition to Defendant’s Motion to Stay. the arbitration clause in this case is not enforceable against the next of kin as they are not parties to the clause. No contract is enforceable against someone who is nota party to it. These are basic contract principles and they apply to this case. In Maestle v. Best Buy, 2005-Ohio-4120 (August 11. 2005), the Eighth Appellate District Court of Appeals held: Nevertheless, courts may not force parties to arbitrate disputes if the parties have not entered into a valid agreement to do so. See Boedeker v. Rogers (1999), 136 Ohio App. 3d 425, 429; Painesville Twp. Local School District v. Natl. Energy Met. Inst. (1996). 113 Ohio App. 3d 687. at 695. As the Supreme Court of the United States has stressed. “arbitration is simply a matter of contract between the parties; it is a way to resolve disputes - but only those disputes - that the parties have agreed to submit to arbitration.” First Options of Chicago. Inc. v. Kaplan (1995), 514 US. 938, 943. The Court went on to hold (emphasis added): When there is a question as to whether a party has agreed to an arbitration clause, there is a presumption against arbitration. Spalsbury v. Hunter Realty Inc., et al, (Nov. 30, 2000), Cuyahoga App. No. 76874, citing Council of Smaller Enters. v. Gates, McDonald & Co. (1997), 80 Ohio St. 3d 661. An arbitration agreement will not be enforced if the parties did not agree to the clause. Henderson vs. Lawyers Title Insurance Corp.. Cuyahoga App. No. 82654, 2004-Ohio-744, citing wuarbitration of claims against all named Defendants.” This Court does not before it one shred of evidence as to the identity, the structure nor the relationship to the subject nursing home of Defendants Smithville Western Care Center, Smithville Western Care, Inc. CMS & Co. Management Services, Inc.. Sprenger Retirement Centers, Bluesky Healthcare, Inc., Sprenger Enterprises Inc., and Grace Management Services. Inc. There is no evidence before this Court that these Defendants are employees. agents, officers. directors. parents, subsidiaries or affiliates of the “Facility”. What is clear is that these Defendants are not parties to the Health Care Residency Agreement. Only Smithville Western, Inc. is. Therefore. Defendants’ Motion should clearly be denied as to Defendants Smithville Western Care Center, Smithville Western Care, Inc., CMS & Co. Management Services, Inc., Sprenger Retirement Centers, Bluesky Healthcare, Inc., Sprenger Enterprises Inc., and Grace Management Services, Inc. E. The arbitration clause is void as a matter of law. In Plaintiff's Brief in Opposition, Plaintiff argued that the subject Arbitration Clause is void as a matter of law as it violates O.R.C. §3721.13(A)(15). In response the Defendants argue that the US Supreme Court rejected this argument in Marmet. This is clearly untrue. In the Marmet case the Court remanded the case back to the West Virginia Trial Court saying, “On remand, the West Virginia court must consider whether, absent that general public policy, the arbitration clauses in Brown’s case and Taylor’s case are unenforceable under state common law principles that are not specific to arbitration and pre-empted by the FAA.” Marmer on page 5. So the U.S. Supreme Court clearly contemplated that certain arbitration clauses may not be enforceable for many reasons. In Ohio this clause is not enforceable as it seeks to deny Alice Ritzi a right promised to her by the Ohio Revised Code, which right cannot be waived. The arbitration clause in this case specifically says,“Other than changing the forum for lawsuits. this Agreement does not waive any of your resident rights as provided for in R.C. 3721.10 through 3721 .17:° If that is true then the clause is void because one of the resident rights is provided in O.R.C. §3721.13(A)(15) which states that a resident has the right to exercise all “civil rights”. which rights the resident may not waive. as provided by O.R.C. §3721.13(C). O.R.C. 3721.13(A)(15) guarantees to all Nursing Home residents: (15) The right to exercise all civil rights, unless the resident has been adjudicated incompetent pursuant to Chapter 2111. of the Revised Code and has not been restored to legal capacity, as well as the right to the cooperation of the home's administrator in making arrangements for the exercise of the right to vote: O.R.C. 3721.13(C) provides: (C) Any attempted waiver of the rights listed in division (A) of this section is void. As stated by the General Counsel for the Ohio Department of Health in his letter dated April 2, 2008, a Nursing Home resident's civil rights certainly include the rights set forth in O.R.C. 3721.17. O.R.C. 3721.17(1) provides (emphasis added): (1)(1)(a) Any resident whose rights under sections 3721.10 to 3721.17 of the Revised Code are violated has a cause of action against any person or home committing the violation. O.R.C. 3721.10 to O.R.C. 3721.17, the exact same sections specifically mentioned in the subject arbitration clause in this case set forth the rights guaranteed to nursing home residents. Plaintiffs are alleging in this case that the Defendants violated Decedent Alice Ritzi’s rights as set forth in O.R.C. 3721.10 to 3721.17. The Arbitration Clause in this case is an attempt on the part of the nursing home to induce Decedent Alice Ritzi to waive her right to pursue a cause of action 10against the Defendants. Pursuant to O.R.C. §3721.1 3(C) (emphasis added), “Any attempted waiver of the rights listed in division (A) of this section is void.” Therefore, since the arbitration clause in this case attempts to induce Decedent Alice Ritzi to waive one of her rights, as listed in Section (A) of O.R.C. §3721.13, the clause is void as a matter of law and Defendants’ Motion to Stay should be denied. The Ohio Supreme Court has only addressed the enforceability of arbitration clauses contained in nursing home admission agreements in one case, Hayes v. The Oakridge Home, (2009) 122 Ohio St. 3d 63, 2009 Ohio 2054, 908 N.E. 2d 408. The Ohio Supreme Court overruled the decision of the Eighth Appellate District Court of Appeals in that decision, and enforced the arbitration clause in that case. However, the Court did not change the law in the area. Instead. the Ohio Supreme Court in Hayes confirmed that arbitration clauses. like the one in this case, can be found to be unenforceable. if they are procedurally and substantively unconscionable. The arbitration clause in this case is both procedurally and substantively unconscionable, as will be discussed in detail below. In the Hayes case. Justice Pfeiffer said in his dissent: I dissent for several reasons. First, | would hold that any nursing-home preadmission arbitration agreement is unconscionable as a matter of public policy. Alternatively, I would hold that the specific agreements in this case were unconscionable as a matter of public policy. More narrowly, I would hold that the arbitration agreements in this case were both substantively and procedurally unconscionable. Hayes v. The Oakridge Home, (2009) 122 Ohio St. 3d 63. 72. 2009 Ohio 2054, 908 N.E. 2d 408. 417. Justice Pfeiffer went on to say in his dissent (emphasis added); In its analysis of the details of this particular matter, the majority ignores the big picture. This is an important case. This court should declare all nursing home preadmission arbitration agreements unenforceable as a matter of public policy. Arbitration clauses that limit elderly or special-needs patients’ access to the 1courts for claims of negligence or abuse in their care should simply not be honored or enforced by the courts of this state. The General Assembly has enunciated a public policy in favor of special protection of nursing-home residents through its passage of the Ohio Nursing Home Patients’ Bill of Rights, R.C. 3721.10 et seq. "[W Jhere there is a strong public policy against a particular practice. a contract or clause inimical to that policy will likely be declared unconscionable and unenforceable unless the policy is clearly outweighed by some legitimate interest in favor of the individual benefitted by the provision." 8 Williston on Contracts (4th Ed.1998) 43, Section 18:7. Hayes, 122 Ohio St. 3d at 72. 2009 Ohio 2054, 908 N.E. 2d at 417. There is no legitimate interest that outweighs the public policy in favor of protecting nursing home residents. Nursing Homes attempt to impose these clauses on their residents to protect themselves from liability. Justice Pfeiffer went on to say; A public policy against preadmission arbitration agreements is reflected in the Ohio Nursing Home Patients' Bill of Rights. Further. this court should recognize a public policy against preadmission arbitration agreements based upon the practical inappropriateness of such agreements for nursing-home residents. By enacting the Ohio Nursing Home Patients’ Bill of Rights, R.C. 3721.10 et seq..the General Assembly has demonstrated particular interest in ensuring the rights of nursing-home patients and has provided statutory remedies for those patients whose rights are violated. R.C. 3721.13(A) specifically enumerates 32 important rights. including the right "to a safe and clean living environment" (B.C. 3721.13(A)(1)), the right "to be free from physical, verbal, mental, and emotional abuse and to be treated at all times with courtesy. respect, and full recognition of dignity and individuality” (R.C- 3721,13(A)(2)). "the right to adequate and appropriate medical treatment and nursing care and to other ancillary services that comprise necessary and appropriate care consistent with the program for which the resident contracted" (R.C. 3721. 13(A)(3)). the right "to have all reasonable requests and inquiries responded to promptly" (R.C, 3721, 13(A)(4)), the right "to have clothes and bed sheets changed as the need arises, to ensure the resident's comfort or sanitation," (R.C. 3721. 13(A)(5)), and the right "to voice grievances and recommend changes in policies and services to the home's staff. to employees of the department of health, or to other persons not associated with the operation of the home, of the resident's choice, free from restraint. interference, coercion, discrimination, or reprisal." (R.C. 3721.13(A)(31)).R.C. 3721.17 contains the enforcement provision of the Ohio Nursing Home Patients’ Bill of Rights. Pursuant to R.C. 372/.17()(1)(a). "[a]ny resident whose rights under sections 3721.10 to 3721.17 of the Revised Code are violated has a cause of action against any person or home committing the violation." The use of injunctive relief to achieve a proper level of care is clearly contemplated by the General Assembly. The General Assembly calis for the award of attorney fees when residents resort to injunctive relief. In cases "in which only injunctive relief is granted, [the court] may award to the prevailing party reasonable attorney's fees limited to the work reasonably performed.” R.C. 3721.17) (2)(c). RC. 3721.17 also allows residents to employ other methods to ensure their rights. Those include reporting violations of the Ohio Nursing Home Patients’ Bill of Rights to the grievance committee established at the home pursuant to R.C. 3721.12(A)(2). The statute requires that a combination of residents, sponsors, or outside representatives outnumber nursing home staff two to one on such committees. Another statutory option for residents is to pursue a claim through the Department of Health. R.C. 3721.031. The General Assembly has given nursing-home residents rights and a multitude of ways to preserve those rights. An agreement to arbitrate all disputes flies in the face of the statutory protections of nursing-home residents and should be found unconscionable as a matter of public policy. Hayes, 122 Ohio St. 3d 63, at 74-75, 2009 Ohio 2054. 908 N.E. 2d at 417-418. Justice Pfeiffer goes on to say: The tactics employed by Oakridge and countenanced by the majority in this case are appalling. This court today provides a roadmap for nursing-home facilities to avoid the responsibilities of the Ohio Nursing Home Patients’ Bill of Rights. Is it really acceptable to shove an arbitration agreement under the nose ofa 95-year-woman, newly arrived at the nursing home, as she goes through the signing frenzy of the admission process? Does the majority really believe that Florence Hayes knowingly and voluntarily gave up her statutory rights through a negotiation process? The majority suggests that the Constitution demands today's result and that it is this court's duty to defend the right to private contract. The majority writes: "Our citizens do not lose their constitutional rights and liberties simply because they age." Yes, somewhere in the penumbra of the penumbra of the right to contract, if you squint just so, you can make out what the majority identifies today: the right of the elderly to be "taken in" by nursing homes. This court's corollary right for nursing homes is the right to say. "You signed it. Live with it! Ohio Nursing Home Patients’ Bill of Rights? You waived it! Your fundamental constitutional rights? You waived them too! And don't forget to remind your son that we need next month's check for 13$ 5,500 by the first.” Hayes, 122 Ohio St. 3d at 79, 2009 Ohio 2054. 908 N.E. 2d at 422-423. Alice Ritzi’s right to sue the nursing home for its violation of her statutory rights cannot be waived. Asa result, the arbitration clause in this case is void as a matter of law ans Defendants” Motion to Stay should clearly be denied. F. The AMA, the ABA and the AAA have all come out against clauses like the one at issue in this case. Asthe Court tries to determine if the arbitration clause at issue in this case is unconscionable. Plaintiff urges the Court to consider that the American Medical Association, the leading national organization of doctors and other health care providers, the American Bar Association, the leading national organization of lawyers and the American Arbitration Association, the leading national organization of Arbitrators, have all come out against arbitration clauses like the one at issue in this case. In the Fall of 1997, the American Arbitration Association, the American Bar Association and the American Medical Association, the leading associations involved in alternative dispute resolution, law, and medicine. collaborated to form a Commission on Health Care Dispute Resolution (the Commission). The Commission's goal was to issue. by the Summer of 1 998, a Final Report on the appropriate use of alternative dispute resolution (ADR) in resolving disputes in the private managed health care environment. Their Final Report discusses the activities of the Commission from its formation in September 1997 through the date of its report, and sets forth its unanimous recommendations. The Commission issued its Final Report on July 27, 1998. ' That ’ The entire 46 page report is available at the web site for the American Arbitration Association at the following address: http://www.adr.org/sp.asp?id=28633 14report concluded on page 15. in Principle 3 of a section entitled, “C. A Due Process Protocol for Resolution of Health Care Disputes.” that: ~The agreement to use ADR should be knowing and voluntary. Consent to use an ADR process should not be a requirement for receiving emergency care or treatment. In disputes involving patients, binding forms of dispute resolution should be used only where the parties agree to do so after a dispute arises.” (Emphasis added.) The arbitration clause at issue in the within case clearly violates the guidelines set forth above. It should not be enforced. It cannot be over-emphasized that the American Arbitration Association, the American Bar Association and the American Medical Association, the leading associations involved in alternative dispute resolution. law, and medicine, have come together and issued a joint report which argues against enforcing arbitration clauses like the one at issue in this case. The arbitration clause in this case is dated before Decedent Alice Ritzi or her family had a claim. According to the report cited above. the clause should not be enforced. The arbitration clause in this case was not entered into knowingly. nor was it entered into voluntarily, as will be demonstrated below. G. In addition to being void, the arbitration clause is also both procedurally and substantively unconscionable. Even if the Court does not find the arbitration clause in this case void as a matter of law since it seeks to divest Alice Ritzi of the rights that are guaranteed to her by the Nursing Home Bill of Rights as contained in the Ohio Revised Code. the Court should still deny Defendant's Motion to Stay, in its entirety, since the arbitration clause in this case is both procedurally and substantivelyunconscionable. Attached hereto as Exhibit “B” is an Affidavit signed by Kathryn Kick attesting to facts that are relevant to this Court's determination as to whether this clause is unconscionable. Arbitration clauses were first used in business contracts, between sophisticated business persons, as a means to save time and money should a dispute arise. As evidenced by the plethora of recent cases involving the applicability of arbitration clauses. these clauses are now being used in transactions between large corporations and ordinary consumers. This has been a significant cause for concern for a number of courts that have considered this issue. The clause at issue in this case is being applied in a negligence action. This should be of particular concern as negligence cases are typically fact-driven, and benefit from the discovery process afforded in a civil action. Further. negligence cases often hinge on the "reasonableness" of a particular action or inaction. Such a subjective analysis is best left to a jury acting as the fact finder. As Justice Lanzinger said in her concurring opinion in Hayes: At least one appellate court has expressed unease over applying arbitration clauses, which initially were designed to save time and money for sophisticated business people involved in contract disputes, to situations where nursing-home residents give up court trials in negligence actions. Small vy. HCF of Perrysburg, Inc., 159 Ohio App.3d 66, 2004 Ohio 5757, 823 N.E.2d 19. Although the General Assembly has not prohibited use of arbitration agreements in nursing-home settings, there is movement at the federal level to do so. Two recently introduced Congressional bills would invalidate pre-dispute arbitration agreements between nursing homes and their residents. H.R. 1237, 111th Cong. (introduced Feb. 26, 2009); S. 512, 111th Cong. (introduced Mar. 3, 2009). Hayes, 122 Ohio St. 3d at 72-73, 2009 Ohio 2054. 908 N.E. 2d at 417. The majority in Hayes v. The Oakridge Home, (2009) 122 Ohio St. 3d 63, 72, 2009 Ohio 2054, 908 N.E. 2d 408, 417 held that an arbitration clause contained in a nursing home admission agreement can be held to be unenforceable. if it is found to be procedurally and substantively 16unconscionable. As noted above. an arbitration agreement is enforceable unless grounds exist at law or in equity for revoking the agreement. R.C. 27//.01(A). Unconscionability is a ground for revocation of an arbitration agreement. Taylor Bldg., 117 Ohio St. 3d 352, 2008 Ohio 938, P33. 884 N.E.2d 12. In Taylor, we recently explained unconscionability in this context as follows: "Unconscionability includes both "an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party."" Lake Ridge Academy v. Carney (1993), 66 Ohio St.3d 376, 383, 613 N.E.2d 183, quoting Williams v. Walker-Thomas Furniture Co. (C.A.D.C.1965), 350 F.2d 445, 449, 121 U.S. App. D.C. 315: see also Collins v. Click Camera & Video, Inc. (1993), 86 Ohio App.3d 826, 834, 621 N.E.2d 1294. The party asserting unconscionability of a contract bears the burden of proving that the agreement is both procedurally and substantively unconscionable. See generally Ball v. Ohio State Home Servs.. Inc., 168 Ohio App. 3d 622, 2006 Ohio 4464, 861 N.E.2d 553; see also Click Camera, 86 Ohio App.3d at 834, 621 N.E.2d 1294, citing White & Summers, Uniform Commercial Code (1988) 219. Section 4-7 (‘One must allege and prove a "quantum" of both prongs in order to establish that a particular contract is unconscionable’)." Taylor Bldg., 117 Ohio St. 3d 352, 2008 Ohio 938, P34. 884 N.E.2d 12. Hayes, 122 Ohio St. 3d at 67. 2009 Ohio 2054. 908 N.E. 2d at 412. Plaintiff urges this Court to deny Defendants’ Motion to Stay by finding that the arbitration clause in this case is both procedurally and substantively unconscionable. As Justice Pfeiffer pointed out in his dissent in Hayes; The party challenging a contract as unconscionable must prove a quantum of both procedural and substantive unconscionability. Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St. 3d 352, 2008 Ohio 938, P34. 884 N.E.2d 12. However, substantive and procedural unconscionability need not be present in equal measure in the agreement in question: Essentially a sliding scale is invoked which disregards the regularity of the procedural process of the contract formation. that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves.' (15 Williston on Contracts (3d ed. 1972) § 1763A, pp. 226-227 * * *. In other words, the more substantively oppressive the contract term. the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa." Armendariz v. Found. Health Psychcare Servs., Inc. (2000). 24 Cal.4th 83. 114, 99 Cal. Rptr. 2d 745, 6 P.3d 669.In other words. "[T]he substantive/procedural analysis is more of a sliding scale than a true dichotomy. The harsher the clause, the less "bargaining naughtiness" that is required to establish unconscionability."" Tillman v. Commercial Credit Loans, Inc. (2008), 362 N.C. 93, 103, 655 S.E.2d 362, quoting Tacoma Boatbuilding Co. v. Delta Fishing Co. (W.D.Wash. 1980), 28 U.C.C. Rep.Serv. (CBC) 26, 37, fn. 20. The seriousness of the substantive unconscionability of the arbitration agreements in this case requires proof of only minor procedural unconscionability. Hayes, 122 Ohio St. 3d 63 at 76-77. 2009 Ohio 2054, 908 N.E. 2d 420-421. In Maestle v. Best Buy. (2005), 2005 Ohio 4120, 2005 Ohio App. LEXIS 3759, the Eighth Appellate District Court of Appeals held (emphasis added): When there is a question as to whether a party has agreed to an arbitration clause, there is a presumption against arbitration. Spalsbury v. Hunter Realty. Inc., etal, (Nov. 30, 2000), Cuyahoga App. No. 76874. citing Council of Smaller Enters. v. Gates, McDonald & Co. (1997). 80 Ohio St. 3d 661. An arbitration agreement will not be enforced if the parties did not agree to the clause. Henderson vs. Lawyers Title Insurance Corp., Cuyahoga App. No. 82654, 2004-Ohio-744, citing Harmon v. Phillip Morris Inc. (1997). 120 Ohio App. 3d 187, 189. As stated by the Ohio Supreme Court in Branham v. Cigna Healthcare, 81 Ohio St. 3d 388. 390 692 N.E. 2d 137, 140 (1998). “While the law of this state favors arbitration, Council of Smaller Enterprises, infra, 80 Ohio St. 3d [661] at 666. 687 N.E.2d [1352] at 1356; Schaefer v. Allstate Ins. Co. (1992), 63 Ohio St. 3d 708, 711-712, 590 N.E.2d 1242, 1245. not every arbitration clause is enforceable. R.C.2711.01(A); Schaefer, 63 Ohio St. 3d 708. 590 N.E.2d 1242.” (emphasis added). As Justice Cook stated in the Dissent in. Williams v. Aetna Fin. Co., 83 Ohio St. 3d 464, 700 N.E.2d 859 (1998), though state and federal legislation favors enforcement of agreements to arbitrate, both O.R.C. §2711.01(A) and Section 2. Title 9. U.S. Code permit a court to invalidate an arbitration clause on equitable or legal grounds that would cause any agreement to be revocable. One such ground is unconscionability. ‘Unconscionability has generally been recognized to include an absence of 18mm meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.’ Williams v. Walker Thomas Furniture Co, (C.A.D.C.1965), 121 U.S. App. D.C. 315. 350 F.2d 445.449." Lake Ridge Academy v. Carney (1993). 66 Ohio St. 3d 376. 383, 613N.E.2d 183, 189. Accordingly, unconscionability has two prongs: a procedural prong, dealing with the parties’ relation and the making of the contract, and a substantive prong, dealing with the terms of the contract itself. Both prongs must be met to invalidate an arbitration provision. In explaining the analogies between this case and Patterson, the majority appears to stress the disparity of bargaining power between the parties and arbitration costs as reasons for nullifying the agreement to arbitrate as unconscionable. These factors. however, if by themselves deemed to render arbitration provisions of a contract unconscionable. could potentially invalidate a large percentage of arbitration agreements in consumer transactions. The disparity of bargaining power between Williams and ITT would be one factor tending to prove that the contract was procedurally unconscionable. A finding of procedural unconscionability. or that the contract is one of adhesion, however, requires more. "Black's Law Dictionary (5 Ed.1979) 38. defines a contract of adhesion as a'standardized contract form offered to consumers of goods and services on essentially "take it or leave it" basis without affording consumer realistic opportunity to bargain and under such conditions that consumer cannot obtain desired product or services except by acquiescing in form contract. *« * *'" Sekeres v. Arbaugh (1987), 31 Ohio St. 3d 24. 31. 31 Ohio B. Rep. 75, 81, 508 N.E.2d 941, 946947 (H. Brown. J.. dissenting). citing Wheeler v. St. Joseph Hosp. (1976), 63 Cal. App. 3d 345, 356, 133 Cal. Rptr. 775. 783: Std. Oil Co. of California v. Perkins (C.A.9, 1965), 347 F.2d 379. 383. See. also, Nottingdale Homeowners’ Assn.. Inc. v. Darby (1987). 33 Ohio St. 3d 32. 37. 514 N.E.2d 702, 707, fn. 7. In Small v. HCF of Perrysburg, (2004) 159 Ohio App. 3d 66, a case cited in almost every case that has been decided on this issue, since the Small opinion was issued. including the Ohio Supreme Court’s decision in Hayes, the trial court ordered the plaintiffs in that case to submit their claims of nursing home negligence against the Defendant to arbitration, and stayed the case until the conclusion of the arbitration. The Plaintiffs appealed. On appeal. the Plaintiffs, now the Appellants. argued that “the clause was unconscionable because Mrs. Small, at the time she signed the document. was concerned about the immediate health of her husband and was in no position to review and fully 19appreciate the terms of the agreement.” Small at 69. The Sixth District Court of Appeals held the arbitration clause unconscionable. In deciding this issue the Sixth District Court of Appeals held as follows (emphasis added): As set forth above. R.C. 2711.01(A) provides that an arbitration clause may be unenforceable based on legal or equitable grounds. An arbitration clause may be legally unenforceable where the clause is not applicable to the matter at hand, or if the parties did not agree to the clause in question. Benson v. Spitzer Mgt., Inc., 8th Dist. No. 83558, 2004 Ohio 4751, P13. citing Ervin v. Am. Funding Corp. (1993), 89 Ohio App.3d 519, 625 N.E.2d 635. Further. an arbitration clause is unenforceable if it is found by a court to be unconscionable. Unconscionability refers to the absence of a meaningful choice on the part of one of the parties to a contract, combined with contract terms that are unreasonably favorable to one party. Collins v. C lick Camera & Video, Inc. (1993). 86 Ohio App.3d 826. 834, 621 N.E.2d 1294. Accordingly. unconscionability consists of two separate concepts: (1) _ substantive unconscionability, which refers to the commercial reasonableness of the contract terms themselves and (2) procedural unconscionability, which refers to the bargaining positions of the parties. Id. Collins defines and differentiates the concepts as follows: “Substantive unconscionability involves those factors which relate to the contract terms themselves and whether they are commercially reasonable. Because the determination of commercial reasonableness varies with the content of the contract terms at issue in any given case. no generally accepted list of factors has been developed for this category of unconscionability. However, courts examining whether a particular limitations clause is substantively unconscionable have considered the following factors: the fairness of the terms. the charge for the service rendered, the standard in the industry and the ability to accurately predict the extent of future liability. See Chanda, supra; Berjian, supra. “Procedural unconscionability involves those factors bearing on the relative bargaining position of the contracting parties, e.g. ‘age. education, intelligence. business acumen and experience. relative bargaining power, who drafted the contract, whether the terms were explained to the weaker party. whether alterations in the printed terms were possible, whether there were alternative sources of supply for the goods in question.’ Johnson v. Mobil Oil Corp. (E.D.Mich.1976), 415 F. Supp. 264, 268." Id. In order to negate an arbitration clause, a party must establish a quantum of both substantive and procedural unconscionability. Id. In reviewing the arbitration clause at issue, we will individually discuss each prong. 20"Substantive Unconscionability Appellants contend that the arbitration clause is substantively unconscionable because: (1) it gives The Manor the right to proceed in any forum its chooses for the resolution of fees disputes while limiting residents’ claims to arbitration; (2) the arbitration clause, despite the language in the agreement, was a condition of admission; (3) the prevailing party is entitled to costs and reasonable attorney fees; (4) the issue of whether a resident's claim is subject to arbitration is improperly to be determined through the arbitration process: and (5) the clause requires that arbitration be conducted at the facility rather than a neutral setting. Appellee counters each assertion. At the outset, we note that the arbitration clause does contain a sentence which provides that admission is not conditioned on agreement to the clause. However, the same clause states that any "controversy. dispute, disagreement or claim" ofa resident "shall be settled exclusively by binding arbitration.” Further, and most importantly, the bold print directly above the signature lines states that by signing the agreement the parties agree to arbitrate their disputes and that the parties agree to the terms of the agreement "in consideration of the facility's acceptance of and rendering services to the resident." The residents or their representatives are provided no means by which they may reject the arbitration clause. Accordingly, we believe that the resident or representative is. by signing the agreement that is required for admission, for all practical purposes being required to agree to the arbitration clause. On review of the arbitration clause and the arguments of the parties, we find troubling the fact that the prevailing party is entitled to attorney fees. Typically, attorney fees are not awarded to the prevailing party in a civil action unless ordered by the court (such as following a finding of frivolous conduct.) Though the prevailing party may be the resident or representative. individuals may be discouraged from pursuing claims because. in addition to paying their attorney and, pursuant to the arbitration clause, the costs of the arbitration. they may be saddled with the facility's costs and attorney fees. Such a burden is undoubtedly unconscionable. “Procedural unconscionability Asstated above. procedural unconscionability involves an examination of the bargaining position of the parties. In her affidavit. Mrs. Small stated that when she arrived at The Manor she was concerned about her husband's health because he appeared to be unconscious. Shortly after his arrival she was informed that Mr. Small was going to be transported by ambulance to the hospital. Mrs. Small was then approached by an employee of The Manor and asked to sign the Admission Agreement. The agreement was not explained to her and Mrs. Small stated that she 21signed the agreement "while under considerable stress * * *." Mrs. Small stated that the entire process, from their arrival at The Manor until the ambulance left, took approximately 30 minutes. After careful review of the particular facts of this case. we find procedural unconscionability. When Mrs. Small signed the agreement she was under a great amount of stress. The agreement was not explained to her; she did not have an attorney present. Mrs. Small did not have any particularized legal expertise and was 69 years old on the date the agreement was signed. In finding that The Manor's arbitration clause is unconscionable, we must make a few observations. Though we firmly believe that this case demonstrates both substantive and procedural unconscionability, there is a broader reason that arbitration clauses in these types of cases must be closely examined. Arbitration clauses were first used in business contracts. between sophisticated business persons, as a means to save time and money should a dispute arise. As evidenced by the plethora of recent cases involving the applicability of arbitration clauses, the clauses are now being used in transactions between large corporations and ordinary consumers, which is cause for concern. Particularly problematic in this case. however. is the fact that the clause at issue had potential application in a negligence action. Such cases are typically fact-driven and benefit from the discovery process afforded in a civil action. Further. negligence cases often hinge on the "reasonableness" of a particular action or inaction. Such a subjective analysis is often best left to a jury acting as the fact finder. These observations are not intended to prevent the application of arbitration clauses in tort cases, we merely state that these additional facts should be considered in determining the parties’ intentions. Based on the foregoing, we find that appellants’ first assignment of error is well taken. Due to our disposition of appellants’ first assignment of error, we find that appellants’ second assignm