[Cite as Am. Gen. Fin. v. Griffin, 2013-Ohio-2909.]

Court of Appeals of Ohio

 EIGHTH APPELLATE DISTRICT 

 COUNTY OF CUYAHOGA 

 JOURNAL ENTRY AND OPINION

 No. 99088 

AMERICAN GENERAL FINANCE, ET AL. 

PLAINTIFFS-APPELLANTS 

vs.

OPAL GRIFFIN

DEFENDANT-APPELLEE 

JUDGMENT:

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-685562 

BEFORE: Kilbane, J., Celebrezze, P.J., and McCormack, J. 

RELEASED AND JOURNALIZED: July 3, 2013
ATTORNEYS FOR APPELLANTS

Barbara Friedman Yaksic 

Maria C. Burnette 

James S. Wertheim 

McGlinchey Stafford, P.L.L.C. 

25550 Chagrin Boulevard 

Suite 406 

Cleveland, Ohio 44122 

ATTORNEYS FOR APPELLEE

Ellen L. Keller 

55 Public Square 

Suite 1510 

Cleveland, Ohio 44113 

Ronald I. Frederick 

Michael L. Berler 

Ronald Frederick & Associates 

1370 Ontario Street 

Suite 1240 

Cleveland, Ohio 44113 

John J. Roddy 

Elizabeth A. Ryan 

Bailey & Glasser, L.L.P. 

125 Summer Street 

Suite 1030 

Boston, MA 02110 
MARY EILEEN KILBANE, J.: 

{¶1} Plaintiff and counter-defendant-appellant, American General Financial n.k.a. 

American General Finance Services, Inc. (“AGFS”), appeals from the trial court’s 

opinion and order denying its motion to compel arbitration, stay court proceedings, and 

dismiss class claims. For the reasons set forth below, we affirm. 

{¶2} This appeal arises from a collection action brought by AGFS against 

defendant and counter-plaintiff/third-party plaintiff-appellee, Opal Griffin (“Griffin”). 

Griffin entered into eight loans with AGFS from July 2003 to March 2008, each of which 

contained an arbitration agreement and waiver of jury trial provision. Each subsequent 

loan refinanced a balance due on a previous loan and extended additional credit. With 

each loan, Griffin purchased multiple credit insurance policies written by third-party 

defendants Merit Life Insurance Company (“Merit Life”) and Yosemite Insurance 

Company (“Yosemite”).1

 These policies protect the borrower’s ability to repay the loan 

in the event of death (“credit life”), injury (“disability”), involuntary unemployment 

(“IUI”), or damage to any personal property securing the loan (“PPI”). The borrower 

then pays, in a single payment, a premium for each insurance product purchased and 

when the loan is paid in full, the borrower is entitled to a refund of any unearned 

insurance premium. With the March 2008 loan, the loan at issue, Griffin financed 

$6,750.29, with a calculated APR of 28.30 percent for a term of 30 months. $5,740.15 

 1 AGFS is owned by American General Finance Corporation (“AGFC”). 

AGFC is owned by American General Financial Incorporated (“AGFI”). Merit Life 

and Yosemite are owned by AGFC. 
of the total amount financed was used to pay off the balance of a previous loan from 

AGFS and $1,010.14 was applied as the single payment for the credit life, disability, IUI, 

and PPI premiums. Griffin claims that while her monthly payment on this loan was 

$316.57, which was $18.12 less per month than her previous loan, this benefit was 

illusory because the refinancing extended the loan agreement by many months, the APR 

increased, and she was assessed newly added costs in the amount of $260 ($250 loan 

origination fee and $10 credit investigation fee). 

{¶3} When Griffin allegedly defaulted on the March 2008 loan agreement, 

AGFS filed its complaint in Bedford Municipal Court against her in August 2008. 

AGFS alleges that Griffin owes it $7,289.48. In response, Griffin filed a series of 

answers and counterclaims. She initially filed an answer, pro se, in September 2008. In 

February 2009, Griffin, through counsel, filed an amended answer and counterclaim 

against AGFS seeking damages in excess of $61,000. The case was then transferred to 

the Cuyahoga County Common Pleas Court. AGFS replied to Griffin’s counterclaim in 

May 2009. In this reply, AGFS did not demand arbitration. 

{¶4} Then in October 2009, Griffin filed a third amended counterclaim and 

third-party complaint against AGFS and added third-party defendants AGFC, AGFI, 

Merit Life, and Yosemite. Griffin brought a class action, raising claims for usury in 

violation of the Ohio Mortgage Lending Act (“MLA”), unconscionability, violation of the 

Truth in Lending Act (“TILA”), breach of contract, breach of fiduciary duty, and civil 

conspiracy. Griffin alleges that AGFS failed to properly credit insurance premium 
refunds each time she refinanced her loan. Griffin sought a refund on the total amount of 

interest paid on the loans, a refund on any unearned credit insurance premiums with 

finance charges, statutory damages, attorney fees, and costs. In response, AGFS and the 

affiliated companies removed the matter to federal court in December 2009, claiming 

subject matter jurisdiction under the Class Action Fairness Act of 2005. The matter was 

eventually remanded to the common pleas court in May 2010. 

{¶5} In September 2010, AGFS and its affiliates filed an amended motion to 

compel arbitration, stay court proceedings, and dismiss class claims.2

 AGFS sought to 

compel Griffin to arbitration because each of the loan agreements she entered into 

contained an arbitration clause and all of her counterclaims fall within the scope of the 

agreement. AGFS further sought to dismiss Griffin’s class action claims, arguing that 

the arbitration agreement prohibits class actions. Griffin opposed the motion, arguing 

that AGFS waived its right to arbitration by filing a lawsuit on a claim that its arbitration 

clause excludes and by continuing the litigation. 

{¶6} Specifically, the arbitration agreement at issue provides that either AGFS or 

Griffin may file an “excluded damages lawsuit” for $5,000 or less, and if faced with a 

counterclaim in excess of $5,000, AGFS could demand that the counterclaim be 

arbitrated. AGFS replied to Griffin’s brief in opposition, claiming that Griffin failed to 

demonstrate prejudice, which it argues is required under federal law to find that AGFS 

 2According to the trial court and the parties, AGFS filed a motion to compel 

arbitration, stay court proceedings, and dismiss class claims while in federal court 

in December 2009. 
waived its right to arbitration. Griffin filed a surreply brief in response to AGFS’s reply 

brief. Griffin argued that Ohio law applies, and under Ohio law a showing of prejudice 

is not required. She further argued that AGFS’s 16-month delay in requesting arbitration 

and its filing for summary judgment in Bedford Municipal Court (which was withdrawn) 

resulted in prejudice and constitutes a waiver of its right to compel arbitration. The trial 

court found Griffin’s argument more persuasive and denied AGFS’s amended motion to 

compel arbitration. In its opinion, the court stated: 

Ohio law will be applied to this case that is brought in state court. This is 

not contrary to the FAA [Federal Arbitration Act] as there is not express 

language in the FAA that requires federal law to be applied to arbitration 

clause challenges brought in state court. 

Ohio courts recognize that the conduct of a party that is inconsistent with an 

arbitration provision may act as a waiver of that provision. Wishnosky v. 

Star-Lite Bldg. & Dev. Co., [8th Dist. No. 77245 (Sept. 7, 2000)]. In 

Checksmart v. Morgan, 8th Dist. No. 80856, 2003-Ohio-163, the Eighth 

District Court of Appeals found that Checksmart waived its right to 

arbitrate the dispute when it instituted its lawsuit against the defendant and 

acted inconsistently with its right to arbitrate. 

* * * 

[T]his Court agrees with Griffin that when AGFS chose to file a complaint 

seeking more than $5,000.00, thus taking the case out of its self-defined 

category of an “Excluded Damages Lawsuit,” also set forth in “Matters Not 

Covered by Arbitration,” AGFS waived its right to arbitration. AGFS’s 

conduct in litigating this suit indicates a waiver of any right to seek 

arbitration. The very specific language it used in the agreement shows that 

AGFS contemplated certain acts that would not constitute waiver. 

Therefore, AGFS cannot now claim where its conduct is inapposite of that 

specific language, the waiver would never apply. Here, AGFS expressly 

waived its right to arbitrate by filing suit on a claim excluded by its 

arbitration clause. 

* * * 
Also, this Court rejects AGFS’s argument that Griffin failed to address the 

affiliated companies’ request for arbitration and therefore, Griffin’s claims 

against them must be arbitrated. First, when AGFS filed suit in Bedford 

Heights it did not name its affiliated companies as parties entitled to relief. 

Second, as previously mentioned[,] AGFI owns AGFC and AGFC owns 

Yosemite, Merit Life and AGFS, therefore, all affiliated companies are 

owned and controlled by the same entity. Third, Griffin assigns any right 

to collect the insurance premiums to AGFS, thus, the arbitration clause 

applies to all of them and AGFS’s waiver applies to all of them as well. 

Finally, because this lawsuit does not fall within an “Excluded Damages 

Lawsuit” exception, the language pertaining to Griffin’s inability to pursue 

class claims does not apply. This Court will not dismiss the class claims. 

However, the issue of whether Griffin may represent a class still remains to 

be decided. Parties may file supplemental briefs on this issue. AGFS’s 

brief due on or before October 26, 2012. Griffin’s brief due on or before 

November 26, 2012. 

* * * 

The Amended Motion to Compel Arbitration, Stay Court Proceedings and 

Dismiss [Class Claims] is denied. 

{¶7} It is from this order that AGFS appeals, raising the following six 

assignments of error for review, which shall be discussed together and out of order where 

appropriate. 

Assignment of Error One 

The trial court erred in finding that the claims of [Griffin] against [AGFS] 

and Merit [Life], [Yosemite], [AGFC], [AGFI], were not subject to 

arbitration under the Arbitration Agreements between the parties, when 

there was no dispute that the Arbitration Agreements covered the claims 

asserted by Griffin. 

Assignment of Error Two 
The trial court erred in applying Ohio law on waiver of the right to arbitrate 

instead of federal law, as expressly provided for in the parties’ Arbitration 

Agreements. 

Assignment of Error Three 

Since application of the contractually-mandated federal law requires a 

finding of actual prejudice to Griffin in order to hold that there was a 

waiver of Appellants’ respective rights to compel arbitration and since 

Griffin proffered no evidence of any actual prejudice, the trial court erred in 

denying [AGFS’s] Motion to Compel Arbitration. 

Assignment of Error Four 

Even if Ohio law on waiver of [AGFS’s] rights to compel arbitration 

applies, the trial court applied that law improperly when it failed to consider 

whether Griffin suffered any actual prejudice. 

Assignment of Error Five 

The trial court erred in ruling that [AGFS’s] conduct waived the 

independent rights of Merit [Life], [Yosemite], [AGFC], [AGFI] under 

Arbitration Agreements, thereby denying those parties their separate rights 

to compel arbitration of the Third Party Complaint, which primarily 

addressed insurance refund activity unrelated to the original collection 

complaint [AGFS] filed. 

Assignment of Error Six 

The trial court erred in denying [AGFS’s] Motion to Dismiss Griffin’s 

Class Claims, as those claims are barred by the class waivers in each of the 

Agreements signed by the parties. 

Application of Ohio Law vs. Federal Law

{¶8} We first address AGFS’s second and third assignments of error. In the 

second assignment of error AGFS argues the trial court erred in applying Ohio law on the 

issue of waiver instead of federal law, as provided for in the arbitration agreements. In 

the third assignment of error, AGFS argues that federal law requires a finding of actual 
prejudice to Griffin in order to hold that there was a waiver of its rights to compel 

arbitration. 

{¶9} In the instant case, the arbitration agreements state that the FAA “applies to 

and governs this Agreement. State arbitration laws and procedures shall not apply to this 

Agreement.” Additionally, “[t]he loan and insurance transactions between Lender and 

[Griffin] and other applicable parties are transactions involving interstate commerce, 

using funds and other resources from outside the state.” Based on this language, AGFS 

maintains that federal law on arbitrability and waiver apply. AGFS further argues that 

under federal case law, the waiver of the right to arbitrate consists of three elements: 

(1) knowledge of the right to arbitrate; (2) acts inconsistent with that right; and (3) 

prejudice to the other party. 

{¶10} We find the court’s reasoning in Med. Imaging Network, Inc. v. Med. 

Resources, 7th Dist. No. 04 MA 220, 2005-Ohio-2783, persuasive. Med. Imaging 

involved an analogous situation in which appellants first sued appellees in federal court 

alleging breach of contract. After that suit was dismissed, the appellants tried to compel 

arbitration in common pleas court. In its analysis, the Seventh District Court of Appeals 

examined the FAA, stating that: 

In enacting the FAA, Congress withdrew the power of the states to force 

parties to utilize the court system to resolve certain claims where the 

contracting parties have agreed to arbitrate these claims instead. Southland 

Corp. v. Keating (1984), 465 U.S. 1, 10, 79 L.Ed.2d 1, 104 S.Ct. 852. The 

FAA’s basic purpose is to “ensure judicial enforcement of privately made 

agreements to arbitrate” on certain federally controlled topics. Dean Witter 

Reynolds, Inc. v. Byrd (1985), 470 U.S. 213, 219, 84 L.Ed.2d 158, 105 S.Ct. 
1238. The purpose of the Ohio Arbitration Act [OAA] is also to ensure 

judicial enforcement of privately made agreements to arbitrate. 

More specifically, the FAA provides that certain written arbitration 

agreements “shall be valid, irrevocable, and enforceable, save upon grounds 

as exist at law or in equity for the revocation of any contract.” 9 U.S.C. 2. 

Almost identically, the OAA provides that written arbitration agreements 

“shall be valid, irrevocable, and enforceable, except upon grounds that exist 

at law or in equity for the revocation of any contract.” R.C. 2711.01(A). 

The FAA only applies to state court proceedings where * * * transactions of 

interstate * * * commerce are involved. 9 U.S.C. 2. See also Southland, 

465 U.S. 1, 79 L.Ed. 2d 1, 104 S.Ct. 852. Here, it is not clear how the 

1997 agreement containing the arbitration agreement indicates the 

involvement of interstate commerce. * * * We note that the federal court 

found a lack of diversity of citizenship under these facts. * * * If interstate 

commerce is not involved, then the FAA is not applicable. 

Regardless, as can be seen in the above quoted statutes, both the FAA and 

the OAA state that written agreements to arbitrate are valid, irrevocable, 

and enforceable. And, both the FAA and the OAA provide an exception to 

the validity, irrevocability, and enforceability of arbitration agreements; that 

is, upon such grounds that exist at law or in equity for the revocation of any 

contract. 9 U.S.C. 2; R.C. 2711.01(A). 

Waiver is a ground that exists at law or in equity (in both Ohio and the 

federal system) for the revocation of any contract. Even if interstate 

commerce was involved and the FAA was thus applicable, federal law need 

not be utilized to define the basic concept of waiver. See, e.g., Jiang, 

Federal Arbitration Law and State Court Proceedings (Jan. 1990), 23 

Loy.L.A. L.Rev. 473, 492. See, also, World Source Coil Coating, Inc. v. 

McGraw Constr. Co. (C.A. 1991), 946 F.2d 473, 476-479 (where the 

federal court applied state law to determine that prejudice was not a 

required element for waiver of an arbitration agreement in that state). 

“State law, whether of legislative or judicial origin, is applicable if that law 

arose to govern issues concerning the validity, revocability, and 

enforceability of contracts generally.” Perry v. Thomas (1987), 482 U.S. 

483, 492-493, 96 L.Ed.2d 426, 107 S.Ct. 2520. It is only where the state 

created a special rule for finding arbitration agreements invalid, revocable, 

or unenforceable will federal law be applied on the issue. Id. As such, if 

Ohio’s law on waiving arbitration agreements is a ground existing at law or 
in equity for waiving the rights under any type of contract, then Ohio law 

can be applied to determine if a waiver of the right to arbitrate occurred. Id.

 See, also, Southland, 465 U.S. at 16. 

Id. at ¶ 16-21. 

{¶11} Here, AGFS urged the trial court that federal law applies, and Griffin was 

required to show prejudice in order to find AGFS waived its right to arbitration. AGFS 

did not argue that Ohio created a special rule for finding arbitration agreements invalid, 

revocable, or unenforceable. Just as in Med. Imaging, in the instant case regardless of 

the FAA’s applicability, federal law need not be utilized to define the basic concept of 

waiver. Ohio law can be applied to determine if a waiver of the right to arbitrate 

occurred because Ohio’s law on waiving arbitration agreements is a ground existing at 

law or in equity for waiving the rights under any type of contract. See also Great Earth 

Cos. v. Simons, 288 F.3d 878, 889 (6th Cir.2002), quoting Doctor’s Assocs., Inc. v. 

Casarotto, 517 U.S. 681, 686-687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996) (“‘state law 

may be applied if that law arose to govern issues concerning the validity, revocability, and 

enforceability of contracts[.]”’ Moreover, we note that the federal district court 

remanded the case to the common pleas court and the federal court of appeals denied the 

petition for AGFS’s remand appeal. Based on the foregoing, we find that Ohio law was 

properly applied to the issue of the waiver of the right to arbitration. 

{¶12} Therefore, the second assignment of error is overruled. 

{¶13} In its third assignment of error, AGFS argues that under federal law a 

finding of actual prejudice to Griffin is required in order to hold that there was a waiver 
of its right to compel arbitration. However, based on our disposition of the second 

assignment of error, the third assignment of error is moot. See App.R. 12(A)(1)(c). 

Waiver of the Right to Arbitration

{¶14} In the first, fourth, and fifth assignments of error, AGFS challenges the trial 

court’s decision, arguing that Griffin’s claims are subject to arbitration, Griffin did not 

suffer any actual prejudice under Ohio law, assuming it applies, and its conduct did not 

waive the independent rights of Merit Life, Yosemite, AGFC, and AGFI. 

{¶15} The parties dispute the applicable standard of review governing this case. 

AGFS, relying on federal law, argues that a de novo standard of review be applied by this 

court. Griffin, on the other hand, relying primarily on cases from this district, argues that 

an abuse of discretion standard of review be applied. 

{¶16} Having decided that Ohio law was properly applied to determine if a waiver 

to the right to arbitration occurred, we look to previous decisions by this court, which 

hold that an abuse of discretion standard of review applies in circumstances, such as a 

determination that a party has waived its right to arbitrate a given dispute. McCaskey v. 

Sanford-Brown College, 8th Dist. No. 97261, 2012-Ohio-1543, ¶ 7, citing Milling Away, 

L.L.C. v. UGP Properties, L.L.C., 8th Dist. No. 95751, 2011-Ohio-1103. See 

Checksmart, 8th Dist. No. 80856, 2003-Ohio-163, at ¶ 10 (where we held that “[i]n 

determining whether the trial court properly denied or granted a motion to stay the 

proceedings and compel arbitration, the standard of review is whether the order 

constituted an abuse of discretion.”). “The term ‘abuse of discretion’ connotes more 
than an error of law or judgment; it implies that the court’s attitude is unreasonable, 

arbitrary or unconscionable.’” (Citations omitted.) Blakemore v. Blakemore, 5 Ohio 

St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 404 

N.E.2d 144 (1980). 

{¶17} In Ohio, there is a strong presumption in favor of arbitration, and courts 

encourage arbitration to settle disputes. Wishnosky v. Star-Lite Bldg. & Dev. Co., 8th 

Dist. No. 77245 (Sept. 7, 2000); U.S. Bank, N.A. v. Wilkens, 8th Dist. No. 93088, 

2010-Ohio-262. However, the right to arbitration, like any other contractual right, may 

be waived. Rock v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 79 Ohio App.3d 126, 

606 N.E.2d 1054 (8th Dist.1992). A party asserting waiver must prove the waiving 

party (1) knew of the existing right to arbitrate; and (2) acted inconsistently with that 

right. Checksmart at ¶ 22; Milling at ¶ 8. “‘The essential question is whether, based 

upon the totality of the circumstances, the party seeking arbitration has acted 

inconsistently with the right to arbitrate.’” Checksmart at ¶ 22, quoting Wishnosky. 

{¶18} With regard to determining whether the totality of circumstances supports a 

finding of waiver, this court has set forth the following factors to consider: 

(1) whether the party seeking arbitration invoked the jurisdiction of the trial 

court by filing a complaint, counterclaim, or third-party complaint without 

asking for a stay of proceedings; (2) the delay, if any, by the party seeking 

arbitration in requesting a stay of proceedings or an order compelling 

arbitration; (3) the extent to which the party seeking arbitration participated 

in the litigation, including the status of discovery, dispositive motions, and 

the trial date; and (4) any prejudice to the non-moving party due to the 

moving party’s prior inconsistent actions. 
Ohio Bell Tel. Co. v. Cent. Transp., Inc., 8th Dist. No. 96472, 2011-Ohio-6161, ¶ 16, 

citing Wilkens. 

{¶19} In the instant case, there is no dispute that AGFS knew of its right to 

arbitrate because it drafted the arbitration agreement. Thus, we look to the second 

element — whether AGFS acted inconsistently with the right to arbitrate. AGFS argues 

that Griffin did not suffer from any prejudice as a result of its inconsistent actions. We 

note, however, that “‘there are no talismanic formulas for determining the existence of an 

implicit waiver, and no one factor can be isolated or singled out to achieve controlling 

weight.’” Middletown Innkeepers, Inc. v. Spectrum Interiors, 12th Dist. No. 

CA2004-01-020, 2004-Ohio-5649, ¶ 14, quoting Georgetowne Condominium Owners 

Assoc. v. Georgetowne Ltd. Partnership, 12th Dist. No. CA2002-02-010, 

2002-Ohio-6683. 

{¶20} When looking at the totality of circumstances, we find that AGFS acted 

inconsistently with the right to arbitrate. Despite knowing of its right to arbitrate, AGFS 

initiated the matter by filing a complaint against Griffin and then sat on its right to 

arbitrate for over two years before filing its motion to compel arbitration. AGFS drafted 

a specific arbitration agreement in which it defined certain claims that were either 

covered or excluded from arbitration. According to the terms of the agreement, either 

AGFS or Griffin may file an “excluded damages lawsuit” for $5,000 or less, and if faced 

with a counterclaim in excess of $5,000, AGFS could demand that the counterclaim be 

arbitrated. Instead of complying with its own terms, AGFS chose to initiate a collection 
action in Bedford Municipal Court against Griffin in the amount of $7,289.48, which 

exceeds the $5,000 threshold. AGFS’s conduct in litigating this matter, despite the 

specific language it drafted in the arbitration agreement, evidences a waiver of the right to 

arbitration. 

{¶21} Furthermore, when the case was removed to the Cuyahoga County Common 

Pleas Court, AGFS replied to Griffin’s counterclaim, but did not demand arbitration. 

After Griffin filed her third amended counterclaim and third-party complaint against 

AGFS and added AGFC, AGFI, Merit Life, and Yosemite, AGFS removed the case to the 

United States District Court for the Northern District of Ohio. When the district court 

remanded the case to common pleas court, AGFS appealed this order to the Sixth Circuit 

Court of Appeals. The court of appeals denied AGFS’s petition, and the matter was 

eventually remanded to the common pleas court in May 2010. AGFS then actively 

litigated the case by engaging in motion practice, opposing Griffin’s discovery requests 

and seeking protective orders. It was not until four months after the matter was 

remanded from federal court in May 2010 that AGFS and affiliates first moved the trial 

court to compel arbitration. A referral to arbitration would prejudice Griffin because 

AGFS initiated the complaint in September 2010 and has vigorously litigated the matter 

since then. 

{¶22} Moreover, AGFS’s extensive delay in filing its motion to compel arbitration 

and stay the proceedings is particularly bothersome because AGFS initiated the lawsuit 

and it appears that after obtaining unfavorable rulings on its removal to federal court, 
AGFS then filed the motion. As we stated in Ohio Bell, “[a] party cannot sit on its right 

to arbitrate for over a year, while actively litigating the case, and then assert such a right 

in the face of an adverse ruling — such conduct amounts to forum shopping.” Id., 8th 

Dist. No. 96472, 2011-Ohio-6161, at ¶ 23. Thus, we find that AGFS waived the right to 

arbitration, and the trial court did not abuse its discretion by denying AGFS’s motion to 

compel arbitration and stay proceedings. 

{¶23} AGFS further argues that even if we find that it waived its right to compel 

arbitration, its affiliates, AGFC, AGFI, Merit Life, and Yosemite, did not waive their 

right to compel arbitration. AGFS contends that the trial court erred when it found that 

the affiliates also waived the right to arbitration because the affiliates’ rights, as separate 

entities, are independent from AGFS’s rights. AGFS and its affiliates’ actions, however, 

belie their argument. 

{¶24} There is no dispute that AGFI owns AGFC, which owns AGFS, Merit Life, 

and Yosemite. Additionally, Griffin did not have a separate contract with Merit Life or 

Yosemite. In the loan agreement, AGFC, Merit Life, and Yosemite were specifically 

named as affiliates. Most tellingly, at the trial court and on appeal AGFS and its 

affiliates have been represented by the same counsel. In response to Griffin’s third 

amended counterclaim and third-party complaint, a motion for extension of time was 

singularly filed by AGFS’s counsel on behalf of all the parties sued. Counsel also filed 

a notice of removal to federal court on behalf of AGFS and the newly added affiliates. 

Virtually all of the briefing and discovery at the trial court was conducted jointly for 
AGFS and its affiliates. Moreover, AGFS’s notice of appeal and praecipe only names 

AGFS as the appellant in this appeal. In its merit brief, however, it includes AGFC, 

AGFI, Merit Life, and Yosemite as appellants.3

 Based on these actions, AGFS and its 

affiliates appear to argue that the companies are separate, when it is in their benefit. As 

a result, the trial court did not abuse its discretion when it found that AGFC, AGFI, Merit 

Life, and Yosemite also waived their right to arbitration. 

{¶25} Accordingly, the first, fourth, and fifth assignments of error are overruled. 

Motion to Dismiss Class Claims

{¶26} In the sixth assignment of error, AGFS argues that the trial court erred by 

denying its motion to dismiss class claims because under the terms of the arbitration 

agreement, Griffin waived the right to bring a class action. Griffin argues that this issue 

is not yet ripe for review. We agree. 

{¶27} This issue is not ripe for our review because it has not yet been decided 

whether Griffin may represent a class. 

{¶28} Thus, the sixth assignment of error is overruled. 

{¶29} Accordingly, judgment is affirmed. 

It is ordered that appellee recover from appellants costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

 3App.R. 3(D) requires that “the notice of appeal shall specify the party or parties taking the 

appeal[.]” 
It is ordered that a special mandate be sent to said court to carry this judgment into 

execution. 

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

the Rules of Appellate Procedure. 

 

 

MARY EILEEN KILBANE, JUDGE 

FRANK D. CELEBREZZE, JR., P.J., and 

TIM McCORMACK, J., CONCUR