[Cite as Javorsky v. Javorsky, 2017-Ohio-285.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 103896

THOMAS JAVORSKY 

PLAINTIFF 

vs. 

JOAN M. JAVORSKY 

DEFENDANT/CROSS-CLAIM 

PLAINTIFF-APPELLANT 

and 

TD AMERITRADE, INC., ET AL.

DEFENDANT/CROSS-CLAIM 

DEFENDANT-APPELLEE 

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-14-830239 

BEFORE: Keough, A.J., E.A. Gallagher, J., and McCormack, J. 

RELEASED AND JOURNALIZED: January 26, 2017 
ATTORNEYS FOR APPELLANT 

For Joan M. Javorsky 

Neil Bhagat 

David L. Drechsler 

Buckingham, Doolittle & Burroughs 

1375 East Ninth Street, Suite 1700 

Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE 

For TD Ameritrade 

Bryan Kostura 

Barbara F. Yaksic 

McGlinchey Stafford, P.L.L.C. 

25550 Chagrin Blvd., Suite 406 

Cleveland, Ohio 44122 

ALSO LISTED

For Thomas Javorsky

Brian C. Lee 

Adriann S. McGee 

Reminger Co., L.P.A. 

101 Prospect Avenue West, Suite 1400 

Cleveland, Ohio 44115 

For Alpha Planning and Financial Services, Inc. and Jeffrey P. Cirino 

Scott M. Kuboff 

Joseph J. Triscaro 

Demarco & Triscaro, Ltd. 

30505 Bainbridge Road, Suite 110 

Solon, Ohio 44139 
KATHLEEN ANN KEOUGH, A.J.: 

{¶1} Appellant, Joan M. Javorsky (“Joan”), appeals the trial court’s decision 

granting appellee, TD Ameritrade, Inc.’s (“TD Ameritrade”), motion to compel 

arbitration and stay proceedings. For the reasons that follow, we affirm. 

{¶2} In October 2004, Andrew Javorsky (“Andrew”) opened an IRA account with 

TD Ameritrade (“Account”). Andrew’s son and Joan’s stepson, Thomas Javorsky 

(“Thomas”), was originally designated as the beneficiary of the account. Joan, as 

Andrew’s spouse, signed the requisite notice under the Agreement acknowledging that 

she was not named as the primary beneficiary to the Account. In 2007, Andrew changed 

his beneficiary designation naming Joan as the primary beneficiary. However, two years 

later in 2009, Andrew changed his beneficiary back to his son, Thomas. Again, Joan 

signed the requisite acknowledgment under the Agreement that she was not named as the 

primary beneficiary of the Account. 

{¶3} Unfortunately, in March 2012, Andrew passed away. As a result of 

Andrew’s passing, Joan had her financial advisor, Jeffrey Cirino, president of Alpha 

Planning and Financial Services, Inc. (“Alpha Planning”), request distribution of the 

funds in the Account. As a result, approximately $700,000 was transferred from the 

Account to Joan’s TD Ameritrade account, which she subsequently liquidated. 

{¶4} In July 2014, Thomas filed suit against Joan, alleging undue influence with 

respect to the Account and other assets of his father; he also asserted a claim for 
intentional interference with expectancy of inheritance, fraud, and conversion. After 

discovering the 2009 change of beneficiary designation, Thomas amended his complaint 

to add TD Ameritrade as a defendant, seeking a declaratory judgment that he, and not 

Joan, was the proper beneficiary of the Account. He also asserted claims against TD 

Ameritrade for breach of contract, breach of fiduciary duty, and negligence. 

{¶5} In her answer, Joan did not admit that Thomas was the proper beneficiary, but 

admitted that the Account assets were distributed to her in March 2012. Additionally, 

she asserted cross-claims against TD Ameritrade for promissory estoppel, negligence, 

declaratory judgment, and indemnification. She also asserted counter and third-party 

claims against Alpha Planning and Cirino for negligence, breach of fiduciary duty, breach 

of implied contract, unjust enrichment, promissory estoppel, and fraud. 

{¶6} TD Ameritrade filed motions to compel arbitration of both Thomas’s and 

Joan’s claims, contending that the IRA Client Agreement (“Agreement”) governing the 

Account provides that all claims relating to the Account must be arbitrated. The trial 

court agreed and granted both motions; only Joan has appealed that decision, contending 

in her sole assignment of error that the trial court erred by enforcing an arbitration 

provision in the Agreement against a nonsignatory to that Agreement. 

{¶7} The appropriate standard of review on judgments pertaining to the 

enforceability of an arbitration agreement depends on the questions raised in challenging 

the applicability of the arbitration provision. McCaskey v. Sanford-Brown College, 8th 

Dist. Cuyahoga No. 97261, 2012-Ohio-1543, ¶ 7. In this case, we apply a de novo 
standard of review to questions of contract interpretation; specifically whether a party has 

agreed to be subject to an arbitration provision. See JJ Connor Co. v. Reginella Constr. 

Co., 7th Dist. Mahoning Nos. 13 MA 75 and 13 MA 77, 2014-Ohio-3873, ¶ 11 (whether 

or not an arbitration provision applies to a nonsignatory or nonparty involves a question 

of law). 

{¶8} In this case, no argument has been set forth challenging the validity of the 

arbitration provision contained in the Agreement. The Agreement requires that all 

controversies “arising out of and relating” to the Account be submitted to arbitration. 

See Section 10 of the Agreement. Additionally, the Agreement expressly states that the 

arbitration provision is binding upon Andrew’s “heirs, executors, administrators, 

successors, and assigns.” Id. Joan, as Andrew’s surviving spouse, is Andrew’s heir 

under the law. Therefore, based on the Agreement, the arbitration provision applies to 

Joan. Nevertheless, Joan contends that the provision does not apply to her because she is 

a nonsignatory of the Agreement and, thus, cannot be bound to arbitrate her claims. 

{¶9} The enforceability of contractual arbitration provisions is governed by the 

laws of contract interpretation. Generally, parties who have not agreed to arbitrate their 

disputes cannot be forced to forego judicial remedies. Cleveland-Akron-Canton 

Advertising Coop. v. Physician’s Weight Loss Ctrs. of Am., 184 Ohio App.3d 805, 

2009-Ohio-5699, 922 N.E.2d 1012, ¶ 14 (8th Dist.), citing Moore v. Houses on the Move, 

Inc., 177 Ohio App.3d 585, 2008-Ohio-3552, 895 N.E.2d 579 (8th Dist.). There are 

instances, however, “where equity demands that parties who have not agreed to arbitrate 
their disputes may be forced to do so when ‘ordinary principles of contract and agency’ 

require.” Physician’s Weight Loss at id., quoting McAllister Bros., Inc. v. A & S Transp. 

Co., 621 F.2d 519, 524 (2d Cir.1980). 

{¶10} One such instance where a nonsignatory will be bound to an arbitration 

agreement is under an estoppel theory. See Thomson-CSF, S.A. v. Am. Arbitration Assn., 

64 F.3d 773 (2d Cir.1995). Estoppel applies where “a nonsignatory who knowingly 

accepts the benefits of an agreement is estopped from denying a corresponding obligation 

to arbitrate.” I Sports v. IMG Worldwide, Inc., 157 Ohio App.3d 593, 2004-Ohio-3631, 

813 N.E.2d 4, ¶ 13 (8th Dist.), citing Thomson-CSF at 778 (estoppel analysis depends on 

whether the nonsignatory derived a direct benefit from the contract containing the 

arbitration clause such that acceptance of the benefit would also require acceptance of a 

contractual obligation). “This doctrine ‘precludes a party from enjoying rights and 

benefits under a contract while at the same time avoiding its burdens and obligations.’” 

Physician’s Weight Loss at ¶ 15, quoting InterGen N.V. v. Grina, 344 F.3d 134, 145 (1st 

Dist.2003). In Gerig v. Kahn, 95 Ohio St.3d 478, 2002-Ohio-2581, 769 N.E.2d 381, the 

Ohio Supreme Court held that a signatory to a contract could enforce an arbitration 

provision against a nonsignatory who sought the benefit of rights under the contract. 

{¶11} Moreover, Ohio courts have also recognized that a third-party beneficiary, 

although a nonsignatory to contract, may be bound to an arbitration agreement. 

Physician’s Weight Loss at ¶ 18, citing Houses on the Move at ¶ 31, quoting Peters v. 

Columbus Steel Castings Co., 10th Dist. Franklin No. 05AP-308, 2006-Ohio-382, ¶ 13; 
Fawn v. Heritage Mut. Ins. Co., 10th Dist. Franklin No. 96APE12-1678, 1997 Ohio App. 

LEXIS 2882 (June 30, 1997) (by accepting the benefits of the contract, the third-party 

beneficiary also assumes the attendant burdens). Once the third-party beneficiary has 

accepted the benefit of the contract, it can receive no greater rights from the contract than 

those possessed by the signatories. Ohio Savs. Bank v. H.L. Vokes Co., 54 Ohio App.3d 

68, 71, 560 N.E.2d 1328 (8th Dist.1989). 

{¶12} In this case, Joan knowingly accepted a direct benefit conferred by the 

Agreement — she expressly sought and voluntarily received the funds in the Account. In 

fact, Joan continues to benefit by retaining the Account funds and claiming she is the 

proper Account beneficiary under the Agreement. As the claimed proper third-party 

beneficiary to the Account, she is also bound by the Agreement’s burdens or obligations, 

including the arbitration provision. Based upon Joan’s own actions and legal claims, she 

has subjected herself to the arbitration provision in the Agreement. Therefore, under 

either an estoppel or third-party beneficiary theory, the arbitration provision is 

enforceable against Joan’s claims. 

{¶13} Finally, we reject Joan’s contention that she cannot be bound to the 

arbitration agreement because her claims arise out of tort and not contract. A party 

cannot avoid arbitration by casting contract claims as torts. Jankovsky v. Grana-Morris, 

2d Dist. Miami No. 2000-CA-62, 2001 Ohio App. LEXIS 3938, 14 (Sept. 7, 2001). 

Here, Joan’s claims against TD Ameritrade are essentially contingent on Thomas’s claims 

against TD Ameritrade. Each of the claims in her cross-claim begin with “[i]f the 2009 
Beneficiary Designation is found to control, then * * * .” Thus, Joan’s claims do not 

arise unless Thomas is successful on his claims against TD Ameritrade, and it is 

determined that Thomas is the proper beneficiary under the Account. Thomas’s claims 

were submitted to arbitration pursuant to the Agreement. Therefore, because Thomas’s 

and Joan’s claims are intertwined, and Joan’s claims against TD Ameritrade are 

contingent on Thomas’s claims, it would defeat the strong public policy supporting 

arbitration and its purpose as an expeditious and economical means of a resolving a 

dispute to find that Joan’s claims are not subject to arbitration. See Schaefer v. Allstate 

Ins. Co., 63 Ohio St.3d 708, 712, 590 N.E.2d 1242 (1992). 

{¶14} Based on the foregoing analysis, the trial court did not err in granting TD 

Ameritrade’s motion to compel arbitration and stay proceedings pending arbitration. 

Joan’s assignment of error is overruled. 

{¶15} Judgment affirmed. 

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

The court finds there were reasonable grounds for this 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. 

KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE 
EILEEN A. GALLAGHER, J., and 

TIM McCORMACK, J., CONCUR