[Cite as Gustinski v. Copley Health Ctr. , 2021-Ohio-4282.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

DONNA GUSTINSKI Appellee

v. COPLEY HEALTH CENTER Appellant C.A. No. 29996

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2020-03-0874

DECISION AND JOURNAL ENTRY Dated: December 8, 2021

HENSAL, Presiding Judge. {¶1} Copley Health Center appeals from the judgment of the Summit Co unty Court of Common Pleas, denying its motion to stay the case and to enforc e the alternative dispute resolution agreement. This Court reverses and remands for furt her proceedings.

I. {¶2} Donna Gustinski (“Plaintiff”), the administrator of the estate of Marian Gustinski (“the decedent”), re-filed a complaint against Copley Health Ce nter (“Copley”), claiming Copley was negligent in its management, care, and treatment of the dec edent. Plaintiff alleged that the decedent was admitted to Copley on June 17, 2016, discharged on September 1, 2016, and passed away on November 14, 2016. Plaintiff alleged that, as a result of Copley’s negligence, the decedent sustained personal injuries, incurred medical and hospital expenses, and endured pain and mental suffering.2

{¶3} Copley filed a motion to stay th e case and to enforce the alter native dispute resolution agreement (the “ADR A greement”). Copley argued that the decedent had appointed Plaintiff, the decedent’s daughter , as her durable power of att orney, and that Plaintiff signed the ADR Agreement on the decedent’s behalf. Copley argued that the ADR Agreement required the matter to be resolved through medi ation or, if mediation was un successful, through binding arbitration. Copley argued that the matter should be stayed, a nd that the ADR Agreement should

be enforced. {¶4} Copley attached a copy of the ADR Agreement and the durable po wer of attorney to its motion. The ADR Agreement is a six-page document. The first five pages contain the terms of the agreement, and the sixth page is the signature pag e. The signature page contains two signatures: one from a repr esentative of Copley, and one pu rportedly from Plaintiff. Next to each signature is the date “6-17-20[.]” {¶5} In response, Plaintiff argued that she did not sign the ADR Agr eement. Plaintiff asserted that she “clearly had authority to execute an agreemen t on behalf of [the decedent] since she had been appointed by the C uyahoga County Probate Court as the Guardian of [the decedent] on March 18, 2014.” She asserted, ho wever, that she never sign ed the ADR Agreement, and that the signature on the ADR Agreem ent was dated June 2020, which w as about four years after the decedent was discharged from Copley. In support of her respons e, Plaintiff attached an affidavit wherein she averred that she never signed the ADR Agreement. C opley filed a reply in support of its motion, attaching an affidavit from a forensic document examiner who opined that the signature on the ADR Agreement is Plaintiff’s signature. {¶6} Plaintiff then supplemented her response to Copley’s motion. I n it, Plaintiff indicated that she did “not dispute the authenticity of the sig nature * * * but denied the3

genuineness of the [ADR Agreement.]” She attached an affidavit from her own forensic

document examiner who identified several discrepancies between the first five pages of the ADR Agreement and the signature page (page six) including: (1) th e first page is dated June 17, 2016, while the signature page is dated June 17, 2020; (2) whomever w rote the date on the line next to the signature of the representative for Copley is the same pers on who wrote the date on the line next to Plaintiff’s signature; (3) unlike the first five pages, the signature page does not have justified margins; and (4) the logo on the top of the signature page is lower than the logo on the first five pages. Plaintiff’s expert opined that she had “high suspicions as to whether th[e] signature page * * * is the actual signature page that should b e attached to [the ADR Agreement] or if it is a signature page of a nother document [Plaintiff] ma y have signed.” {¶7} The trial court ultimately denied Copley’s motion to stay the c ase and to enforce the ADR Agreement. In doing so, the trial court did not reach the merits of whether Plaintiff signed the ADR Agreement. Instea d, it concluded that Plaintiff was not authorized to sign the ADR Agreement because it was beyond the scope of her powers as the decedent’s durable power of attorney. The trial court explained that, in executing the durable power of attorney, the decedent only authorized Plaintiff to act on her behalf for ban king and other financial institution

transactions. The trial court did not address Plaintiff’s asse rtion that she had authority to execute an agreement on behalf of the decedent since she had been appoi nted as the guardian of the decedent prior to the decedent’s admission to Copley. Copley n ow appeals, raising one assignment of error for this Court’s review.4

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING COPLEY’S MOTION TO STAY CASE AND ENFORCE ALTERNATIVE DISPUTE RESOLUTION AGREEMENT. {¶8} In its assignment of error, Copley argues that the trial court erred by denying its motion to stay the case and to enforce the ADR Agreement. It a rgues that, while a trial court’s denial of a motion to stay the proceedings and compel arbitrati on is reviewed for an abuse of discretion, the standard of review in this case is de novo beca use the issue is whether a contract exists, which is a matter of law. {¶9} “Generally, ‘[w]e review a trial court’s decision to stay proce edings and order the

matter to arbitration for an abuse of discretion.’” Discovery Resources, Inc. v. Ernst & Young

U.S. LLP , 9th Dist. Lorain No. 15CA010723, 2016-Ohio-1283, ¶ 10, quotin g Koch v. Keystone

Pointe Health & Rehab. , 9th Dist. Lorain No. 11CA010081, 2012-Ohio-5817, ¶ 7. “That standard of review[, however,] mus t yield when an issue of law is implicated.” Id. , quoting Koch at ¶ 7. “Before a party may be bound by the terms of an arbitr ation agreement, there must in fact be a contract which requires the arbitration of the parties’ di sputes and claims.” (Alteration omitted.) Kallas v. Manor Care of Barberton, OH, L.L.C. , 9th Dist. Summit No. 28068, 2017- Ohio-76, ¶ 8, quoting Koch at ¶ 9. “Whether a contract exi sts is a matter of law[,]” and is subject

to de novo review. Id. {¶10} Copley makes two primary arguments in support of its position t hat the trial court erred by denying its motion to stay the case and to enforce the ADR Agreement. First, it argues

that the trial court’s decision ignores the presumption in favo r of arbitrability and incorrectly places the burden on Copley to demonstrate that the ADR Agreeme nt is valid and enforceable.5

Second, it argues that the trial court erred by concluding that Plaintiff lacked authority to sign the ADR Agreement on behalf of the decedent. Copley argues that, e ven if Plaintiff lacked actual authority, she had apparent aut hority to sign the ADR Agreement

. {¶11} In response, Plaintiff again asserts that she “clearly had aut hority to execute an agreement on behalf of [the decedent] since she had been appoin ted by the Cuyahoga County Probate Court as Guardian of [th e decedent.]” Plaintiff mainta ins, as she did below, that the issue in this case is whether she signed the ADR Agreement. Pl aintiff points to the discrepancies in the ADR Agreement, which her forensic document examiner reli ed on to conclude that she had “high suspicions” as to whet her the signature page of the A DR Agreement was actually a signature page from another docum ent Plaintiff may have signed. Plaintiff argues that Copley – as the party seeking to uphold th e contract – bore the burden o f proving that a contract existed between the parties. Plaintiff argues that Copley failed to me et that burden because it provided no evidence to explain the discrepancies between the first five pages of the ADR Agreement and the signature page. {¶12} As previously noted, the trial court did not reach the merits o f whether Plaintiff signed the agreement proffered by Copley as the ADR Agreement g overning the matter. Instead, it determined that Plaintiff was not authorized to sign the ADR Agreement because it was beyond the scope of her powers as t he decedent’s durable power of attorney. It denied Copley’s motion to stay the case and to enforce the ADR Agreement solely on that basis. This Court

concludes that the tri al court erred by doing so. {¶13} The trial court failed to consider whether Plaintiff had author ity to sign the ADR Agreement by virtue of her allege d status as the guardian of th e decedent, or otherwise. Consequently, its decision puts this Court in the position of h aving to consider Copley’s6

arguments regarding whether Plai ntiff otherwise had authority t o sign the ADR Agreement in the first instance. This Court will not conduct that analysis in t he first instance. Mourton v. Finn , 9th Dist. Summit No. 26100, 2012-Ohio-3341, ¶ 9 (“This Court ha s consistently held that it is the trial court’s duty to resolve issues in the first instance. ”). Even if this Court were to determine that Plaintiff had authority to sign the ADR Agreemen t, which Plaintiff does not dispute, the issue of whether P laintiff signed the proffered AD R Agreement remains unresolved

at the trial court level. These issues must be resolved before a decision can be rendered as to whether to stay the case and to enforce the ADR Agreement. We, therefore, reverse and remand

the matter for the trial court to consider these issues in the first instance. Copley’s assignment of

error is sustained.

III. {¶14} Copley Health Center’s assignment of error is sustained. The j udgment of the Summit County Court of Common Pleas is reversed, and the cause is remanded for further proceedings consistent with this decision. Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, State o f Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file stamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is7

instructed to mail a notice of entry of this judgment to the pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. Costs taxed to Appellee.

JENNIFER HENSAL FOR THE COURT

TEODOSIO, J. CALLAHAN, J. CONCUR.

APPEARANCES:

JEFFREY W. VAN WAGNER and SHANNON R . LEAR, Attorneys at Law, fo r Appellant. GARY T. MANTKOWSKI, Attorney at Law, for Appellee.