[Cite as Guay v. Lloyd Ward, P.C., 2014-Ohio-190.]

COURT OF APPEALS 

FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

JANET GUAY 

 Plaintiff-Appellee 

-vsLLOYD WARD, P.C., et al. 

 Defendant-Appellant 

JUDGES: 

: Hon. Sheila G. Farmer, P.J. 

: Hon. John W. Wise, J. 

: Hon. Craig R. Baldwin, J. 

: 

: 

: Case No. 13 CA 42 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common 

Pleas, Case No. 2012CV637 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: January 17, 2014 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JEREMIAH E. HECK BRYAN B. JOHNSON 

KATHERINE L. KEENAN 5003 Horizons Drive 

LUFTMAN, HECK & ASSOCIATES Suite 200 

580 East Rich Street Columbus, Ohio 43220-5292 

Columbus, Ohio 43215-5335 

BRIAN M. GARVINE 

LAW OFFICE OF BRIAN M. GARVINE 

5 East Long Street, Suite 1100 

Columbus, Ohio 43215 
[Cite as Guay v. Lloyd Ward, P.C., 2014-Ohio-190.]

Wise, J. 

{¶1} Defendants-Appellants Lloyd Ward, P.C., et al. appeal the judgment of the 

Court of Common Pleas of Fairfield County, Ohio, denying its motions to enforce 

arbitration and to transfer venue. 

{¶2} Plaintiff-Appellee is Janet Guay. 

STATEMENT OF THE FACTS AND CASE

{¶3} On July 1, 2010, Appellee Janet Guay contacted Appellants Lloyd Ward, 

P.C. dba Lloyd Ward & Associates, Lloyd Ward Group, Lloyd Ward, Individually and as 

Director/Officer/Owner of Lloyd Ward, P.C. after viewing their website on the internet. 

{¶4} On July 13, 2010, Appellee signed an online “Client Services Agreement” 

("Agreement") with Appellants, hiring them to negotiate a reduction of debt she had 

incurred. Over a period of several months, Appellee paid Appellants $1,456 for such 

services and Appellants commenced efforts to negotiate down her debt. 

{¶5} The Agreement signed by Appellee contained a conflict of law and forum 

selection clause: 

{¶6} “10. Governing Law: Severability: This Agreement is governed by the laws 

of the State of Texas, without regard to the conflict of law rules of that state. Further, 

venue and jurisdiction for any dispute or conflict arising from or in any way related to 

this Agreement shall be exclusively in Dallas, Dallas County, Texas.” 

{¶7} This Agreement also contains an arbitration clause: 

{¶8} “11. Arbitration of Dispute: In the event of a dispute regarding LWG's (The 

Lloyd Ward Group, a Professional Corporation) representation of Client's claims and 

defenses, or monies owed by client to LWG, Client hereby agrees to notify LWG in 
Fairfield County, Case No. 13 CA 42 3 

writing of any such complaint so that LWG can attempt to reasonably address and, if 

appropriate, remedy the complaint to Client's complete satisfaction. LWG 

representatives will be happy to discuss policies and procedures set forth herein with 

you at any time. If you have any questions, please inquire of us openly and frankly. We 

encourage you to discuss with the principal attorney or assistant providing legal 

services to you any problems you may have with our attorneys, accounting department, 

paralegal personnel, secretarial staff or other matters that may arise in connection with 

our representation. If, after giving LWG thirty (30) days notice of any complaint, you 

remain unsatisfied with LWG's response to your complaint, you hereby agree to mediate 

and/or arbitrate any complaint against the firm prior to the initiation of any public or 

private complaints or claims of any kind against LWG or any of its attorneys. You agree 

to submit any dispute over the amount of fees charged to you to the Fee Dispute 

Committee of the Collin County Bar Association, State Bar of Texas. Client understands 

that this agreement is performable in Collin County, Texas and hereby consents to 

venue and jurisdiction in Collin County, Texas under Texas state law for any dispute 

arising hereunder. The parties will submit all disputes arising under or related to this 

agreement to binding arbitration according to the then prevailing rules and procedures 

of the American Arbitration Association. Texas law will govern the rights and obligations 

of the parties with respect to the matters in controversy. The arbitrator will allocate all 

costs and fees attributable to the arbitration between the parties. The arbitrator's award 

will be final and binding and judgment may be entered in any court of competent 

jurisdiction. 
Fairfield County, Case No. 13 CA 42 4 

{¶9} Appellee eventually terminated the services of Appellants and filed the 

lawsuit which is the subject of this appeal in the Fairfield County Common Pleas Court 

on June 11, 2012, alleging claims for: 

• Violations of the Ohio Debt Adjustment Companies Act 

• Violations of the Ohio Consumer Sales Practices Act 

• Fraud and 11-aud in the inducement 

{¶10} On August 8, 2012, Appellants filed a motion to dismiss Appellee's 

complaint for failure to state a claim, or in the alternative, to change venue under Ohio 

Civ.R. 12(B)(3) and (6), which was based solely upon the doctrine of forum nonconveniens. Appellee opposed this motion. 

{¶11} On August 17, 2012, Appellee filed an amended complaint. 

{¶12} On September 10, 2012, the trial court denied Appellants' motion. 

{¶13} On September 25, 2012, Appellants filed a motion to stay proceedings 

pending arbitration. Appellee opposed this motion. 

{¶14} On October 24, 2012, the trial court denied Appellants' motion to stay. 

{¶15} On November 15, 2012, Appellants filed a second motion to stay 

proceedings pending arbitration. Appellee again opposed this motion. 

{¶16} On December 7, 2012, the trial court granted leave to Appellants to 

change the title of the motion to a motion to compel arbitration and stay proceedings. 

Appellee opposed this, as well. 

{¶17} On December 18, 2012, the trial court denied Appellants' motion to 

compel arbitration and stay proceedings. 
Fairfield County, Case No. 13 CA 42 5 

{¶18} On April 3, 2013, Appellants filed a motion for reconsideration of the denial 

of the motion to compel arbitration, and specifically requested again that the trial court 

compel arbitration and stay the proceedings. Appellee opposed this motion. 

{¶19} On April 3, 2013, Appellants filed a motion to enforce the forum selection 

clause in the agreement between the parties. Appellee opposed this motion. 

{¶20} On April 29, 2013, the trial court denied Appellants' motions for 

reconsideration and to enforce the forum selection clause 

{¶21} Appellant now appeals, assigning the following Two Assignments of Error 

for review: 

ASSIGNMENTS OF ERROR

{¶22} “I. THE TRIAL COURT ERRED BY REFUSING TO ENFORCE THE 

FORUM SELECTION CLAUSE IN THE AGREEMENT BETWEEN THE PARTIES. 

{¶23} II. THE TRIAL COURT ERRED BY REFUSING TO ENFORCE THE 

ARBITRATION CLAUSE IN THE AGREEMENT BETWEEN THE PARTIES.” 

I. 

{¶24} In its First Assignment of Error, Appellant argues that the trial court erred 

in denying its motion to transfer venue in this case. We disagree. 

{¶25} Appellant's motion to transfer venue was brought pursuant to Civ.R. 3(B). 

To be appealable, an order must be a final order, within the meaning of R.C. §2505.02. 

{¶26} R.C. §2505.02 states: 

{¶27} “An order is a final order that may be reviewed, affirmed, modified, or 

reversed, with or without retrial, when it is one of the following: 
Fairfield County, Case No. 13 CA 42 6 

{¶28} “(1) An order that affects a substantial right in an action that in effect 

determines the action and prevents a judgment; 

{¶29} “(2) An order that affects a substantial right made in a special proceeding 

or upon a summary application in an action after judgment; 

{¶30} “(3) An order that vacates or sets aside a judgment or grants a new trial; 

{¶31} “(4) An order that grants or denies a provisional remedy and to which both 

of the following apply: 

{¶32} “(a) The order in effect determines the action with respect to the 

provisional remedy and prevents a judgment in the action in favor of the appealing party 

with respect to the provisional remedy. 

{¶33} “(b) The appealing party would not be afforded a meaningful or effective 

remedy by an appeal following final judgment as to all proceedings, issues, claims, and 

parties in the action. 

{¶34} “(5) An order that determines that an action may or may not be maintained 

as a class action.” R.C. §2505.02(B) 

{¶35} We find that R.C. §2505.02(B)(1) does not apply because the trial court's 

judgment in the case sub judice does not determine the action or prevent a judgment. 

The question of venue or choice of forum is procedural and does not decide a party's 

claims. See Duryee v. Rogers (Dec. 16, 1999), Cuyahoga App. No. 74963, 1999 WL 

1204875. 

{¶36} Likewise, this was not an order in a special proceeding or upon a 

summary application in an action after judgment, nor was it an order that vacated or set 

aside a judgment or granted a new trial. See id.; R.C. §2505.02(B)(2) and (3). Nor does 
Fairfield County, Case No. 13 CA 42 7 

the order involve a determination as to whether a class action may be maintained. R.C. 

§2505.02(B)(5). 

{¶37} The only possible applicable section is paragraph 4, regarding provisional 

remedies. “Provisional remedy” means “a proceeding ancillary to an action, including, 

but not limited to, a proceeding for a preliminary injunction, attachment, discovery of 

privileged matter, or suppression of evidence.” R.C. §2505.02(A)(3). The statutory 

definition does not specifically refer to proceedings to transfer venue, nor are any of the 

listed proceedings akin to a transfer of venue. See Duryee, 1999 WL 1204875. The 

basic purpose of R.C. §2505.02(A)(3) in categorizing certain types of preliminary 

decisions of a trial court as final, appealable orders is the protection of one party against 

irreparable harm by another party during the pendency of the litigation. Id. 

{¶38} We find that a decision by a trial court denying a motion for transfer of 

venue does not involve the same degree of risk of irreparable harm to a party as the 

decisions made in the types of actions listed under R.C. §2505.02(A)(3). The types of 

provisional remedies listed under R.C. §2505.02(A)(3) include decisions *425 that when 

made preliminarily, could decide all or part of an action or make an ultimate decision on 

the merits meaningless or cause other irreparable harm. 

{¶39} This Court has previously held that the denial of a request to change 

venue is not a final, appealable order. Mansfield Family Restaurant v. CGS Worldwide, 

Inc. (Dec. 28, 2000), 5th District, Richland App. No. 00–CA–3, 2000 WL 1886226; See

also Gen. Elec. Capital Corp. v. Golf Club of Dublin, L.L.C. 187 Ohio App.3d 420, 932 

N.E.2d 401, 2010-Ohio- 2143. In Mansfield, this court stated: 
Fairfield County, Case No. 13 CA 42 8 

{¶40} “The decision to deny a change of venue does not result in any of the 

types of irreparable harm just listed. There is an adequate legal remedy from a decision 

denying a change of venue, after final judgment. In other words, it may be expensive to 

get the cat back in the bag, if a trial court errs when it denies a change of venue, but it 

can be done.” Id. See also Buxton v. Mancuso, 5th Dist., Knox App. No. 09 CA 22, 

2009-Ohio-6839, 2009 WL 5062015. 

{¶41} We therefore find that a denial of a motion to transfer venue is not a final, 

appealable order. 

{¶42} Appellants’ First Assignment of Error is overruled. 

II. 

{¶43} In their Second Assignment of Error, Appellants argue that the trial court 

erred in denying its motion to compel arbitration. We disagree. 

{¶44} Upon review, this Court finds that the relationship between Appellants and 

Appellee was that of Attorney-Client. We therefore find that the Ohio Rules of 

Professional Conduct apply. Specifically, Rule 1.8 provides: 

{¶45} “(h) A lawyer shall not do any of the following: 

{¶46} “(1) make an agreement prospectively limiting the lawyer’s liability to a 

client for malpractice or requiring arbitration of a claim against the lawyer unless the 

client is independently represented in making the agreement.” 

{¶47} On the issue of whether an attorney's retainer agreement may contain an 

agreement to arbitrate attorney-client disputes, the Eighth District Court of Appeals in 

Thornton v. Haggins, 8th Dist., Cuyahoga App. 830555, 2003-Ohio-7078, found that the 

Ohio Supreme Court Board of Commissioners on Grievances and Discipline Opinion 
Fairfield County, Case No. 13 CA 42 9 

96-9 “advise[d] that an engagement letter between an attorney and client should not 

contain language requiring a client to prospectively agree to arbitrate legal malpractice 

disputes.” 

{¶48} The Eighth District found that although the Board did not conclude that 

such provisions constitute a per se attempt to limit attorney liability in violation of DR 6-

102(A), it admonished that such agreements run contrary to the fundamental duty to 

represent the client zealously. The Board indicated that before entering into such 

prospective agreements most clients would benefit from the advice of separate counsel 

and that it reflects poorly on the profession for clients to have to “hire a lawyer to hire a 

lawyer.” 

{¶49} The Eighth District went on to find that “[w]hile no Ohio case has 

addressed the issue of whether a provision requiring a client to arbitrate legal 

malpractice claims is valid and enforceable, other jurisdictions have reached divergent 

conclusions. See McGuire, Cornwell & Blakely v. Grider (1991 D.C. Col.), 765 F.Supp. 

1048 (the court ordered the matter submitted to arbitration over the client's objection 

that the agreement was void in light of a rule of professional conduct prohibiting an 

attorney from prospectively limiting his or her liability for malpractice); Derfner & Mahler, 

LLP v. Rhoades (1999), 683 N.Y.S.2d 509, 257 A.D.2d 431 (on its face, arbitration 

provision in retainer did not violate rules of ethics); cf. Lawrence v. Walzer & Gabrielson

(1989), 207 Cal.App.3d 1501, 256 Cal.Rptr. 6 (1989) (arbitration agreement did not 

apply to client's claims of malpractice and breach of fiduciary duty); In re Godt, 28 

S.W.3d 732 (Tex.App.Corpus Christi 2000) (arbitration provision was not enforceable 
Fairfield County, Case No. 13 CA 42 10 

because the client did not act on the advice of independent counsel, nor did 

independent counsel sign the agreement).” 

{¶50} The Eighth District Court then went on to hold that “[w]e are persuaded by 

the cases finding such agreements unenforceable with regard to the malpractice 

disputes, and we find the reasoning set forth in Opinion 96-9 compelling. We agree that 

the best interests of the client require consultation with an independent attorney in order 

to determine whether to prospectively agree to arbitrate attorney-client disputes. Such 

agreements are therefore not knowingly and voluntarily made absent such independent 

consultation. We therefore conclude that, to the extent that the trial court relied upon 

Opinion 96-9 in denying defendant's request for a stay for arbitration, it acted well within 

its discretion.” 

{¶51} Upon review, this Court likewise finds that such agreements requiring the 

arbitration of disputes arising from the attorney-client relationship run contrary to the 

fundamental duty to represent the client zealously. As there is no evidence that 

Appellee was “independently represented in making the agreement” we find that the trial 

court did not err in denying Appellants’ motion to enforce the arbitration agreement in 

this matter. 

 
Fairfield County, Case No. 13 CA 42 11 

{¶52} Appellants’ Second Assignment of Error is overruled. 

{¶53} For the foregoing reasons, the judgment of the Court of Common Pleas of 

Fairfield County, Ohio, is affirmed.