[Cite as Lee v. Bath Manor Ltd. Partnership, 2023-Ohio-816.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

TAMELA LEE, :

Plaintiff-Appellee, :

No. 111756

v. :

BATH MANOR LIMITED :

PARTNERSHIP, ET AL.,

:

Defendants-Appellants.

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED

RELEASED AND JOURNALIZED: March 16, 2023

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-22-960213

Appearances:

Goldstein & Goldstein Co., LLC, and Michael D. Goldstein, 

for appellee. 

Marshall, Dennehey, Warner, Coleman & Goggin, Leslie 

M. Jenny, Jason P. Ferrante, and Travis D. Huffman, for 

appellants. 

LISA B. FORBES, J.:

Appellants Bath Manor Limited Partnership and Saber Healthcare 

Group, L.L.C. (collectively “Bath Manor”) appeal the trial court’s order denying its
motion to compel arbitration and stay the case pending arbitration without holding 

a hearing. After reviewing the facts of the case and the pertinent law, we reverse the 

trial court’s judgment.

A. Facts and Procedural History

Appellee Tamela Lee (“Lee”), individually and as the administrator of 

the estate for her mother Cynthia Long, filed a complaint on March 2, 2022, alleging 

claims for wrongful death, “nursing negligence/survivorship,” “nursing home 

residents’ bill of rights,” “respondeat superior/vicarious liability,” and “punitive 

damages.”

Bath Manor filed an answer on April 13, 2022, and raised an 

affirmative defense that Lee “failed to comply with the requirements of the 

Admission Agreement and/or Arbitration Agreement.” Thirteen days later, on 

April 26, 2022, Bath Manor filed a “motion to stay and compel arbitration 

agreement and request for hearing.” In that motion, Bath Manor “request[ed] an 

oral hearing pursuant to Ohio Revised Code §2711.03.” Lee opposed the motion. 

The trial court summarily denied Bath Manor’s motion on June 22, 

2022, without holding a hearing. It is from this order that Bath Manor appeals 

raising the following two assignments of error:

The trial court erred and abused its discretion by not holding a hearing 

regarding the enforcement of the arbitration agreement as required by 

R.C. 2711.

The trial court erred and abused its discretion by not staying the entire 

matter pending complete arbitration of all claims arbitrable as required 

by R.C. 2711.
B. Law and Analysis

1. Hearing

In its first assignment of error, Bath Manor argues that the trial court 

erred when it did not hold a hearing on its motion to stay and compel arbitration 

pursuant to R.C. 2711.03.1 We agree. 

A trial court’s decision regarding “a motion to compel arbitration, 

where it is alleged that the arbitration agreement is unconscionable” is reviewed de 

novo. Mattox v. Dillard’s, Inc., 8th Dist. Cuyahoga No. 90991, 2008-Ohio-6488, 

¶ 6. See also Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St.3d 352, 2008-Ohio938, 884 N.E.2d 12, ¶ 2 (holding “that the proper standard of review of a

determination of whether the arbitration agreement is enforceable in light of a claim

of unconscionability is de novo”).

R.C. 2711.03 states in pertinent part:

(A) The party aggrieved by the alleged failure of another to perform 

under a written agreement for arbitration may petition any court of 

common pleas having jurisdiction of the party so failing to perform for 

an order directing that the arbitration proceed in the manner provided 

for in the written agreement. * * * The court shall hear the parties, and, 

upon being satisfied that the making of the agreement for arbitration 

or the failure to comply with the agreement is not in issue, the court 

shall make an order directing the parties to proceed to arbitration in 

accordance with the agreement.

(B) If the making of the arbitration agreement or the failure to perform 

it is in issue in a petition filed under division (A) of this section, the 

court shall proceed summarily to the trial of that issue. If no jury trial 

1 We note that the Ohio Supreme Court has accepted for review whether 

“R.C. 2711.03 mandates that the trial court hold an evidentiary hearing on a motion to 

compel arbitration.” See 09/14/2022 Case Announcements, 2022-Ohio-3214, accepting 

AJZ’s Hauling, L.L.C. v. TruNorth Warranty Programs of N. Am., Case No. 2022-0750. 
is demanded as provided in this division, the court shall hear and 

determine that issue. * * *.

This court has held that when a motion to compel arbitration is filed 

“the parties should be afforded an evidentiary hearing on the validity of an 

arbitration clause where unconscionability is raised as an objection to its 

enforceability.” Post v. ProCare Automotive Serv. Solutions, 8th Dist. Cuyahoga 

No. 87646, 2007-Ohio-2106, ¶ 29. See also R.C. 2711.03(B).

In AJZ’s Hauling, L.L.C. v. TruNorth Warranty Programs of N. Am., 

8th Dist. Cuyahoga No. 109632, 2021-Ohio-1190, ¶ 44, this court recognized that

“the plain language of R.C. 2711.03 requires a trial court to hold a hearing on a 

motion to compel arbitration when the arbitration agreement’s enforceability is 

raised * * *.” However, the AJZ’s Hauling Court concluded that the trial court did 

not commit reversible error when it did not hold an oral or evidentiary hearing

where: (1) the party made a “general, unspecified request for a ‘hearing’” on its 

motion to compel arbitration and (2) when “the parties fully and thoroughly briefed 

the enforceability and unconscionability issues” with “submitted evidence in 

support of [the] respective briefs.” Id. at ¶ 45-46.

Here, Lee challenged the enforceability of the arbitration agreement. 

In opposing Bath Manor’s motion to compel arbitration, Lee claimed that the 

arbitration agreement was “not enforceable as to the wrongful death claim * * * 

[and] it [was] substantively and procedurally unconscionable.”

2 

2 On appeal, Lee argues that Bath Manor “waived [its] rights to arbitration by 

actively engaging in litigation.” However, Lee did not raise this issue in the trial court and 
We find that, under the circumstances of this case, the court erred 

when it failed to hold a hearing to determine the validity of the arbitration 

agreement pursuant to R.C. 2711.03 prior to ruling on the motion to compel 

arbitration. Unlike AJZ’s Hauling, in the case at hand, Bath Manor specifically and 

unequivocally requested a hearing pursuant to R.C. 2711.03 in its motion to compel 

arbitration. See Mattox, 8th Dist. Cuyahoga No. 90991, 2008-Ohio-6488, at ¶ 15

(finding “a party’s request for an oral hearing shall be granted pursuant

to R.C. 2711.03”). Second, in contrast to AJZ’s Hauling, in the instant case no 

evidence was submitted on the issue of enforceability.

Accordingly, Bath Manor’s first assignment of error is sustained.

2. Stay Proceedings

Our disposition of Bath Manor’s first assignment of error renders the

second assignment of error moot. See App.R. 12(A)(1)(c).

Judgment reversed and remanded to the trial court for further 

proceedings consistent with this opinion. 

It is ordered that appellants recover from appellee 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.

therefore cannot raise the issue for the first time on appeal. Miller v. Romanauski, 8th 

Dist. Cuyahoga No. 100120, 2014-Ohio-1517, ¶ 35, citing Thompson v. Preferred Risk

Mut. Ins. Co., 32 Ohio St.3d 340, 513 N.E.2d 733 (1987).
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

LISA B. FORBES, JUDGE

EILEEN A. GALLAGHER, J., CONCURS;

KATHLEEN ANN KEOUGH, P.J., CONCURS (WITH SEPARATE OPINION)

KATHLEEN ANN KEOUGH, P.J., CONCURRING:

I concur with the majority, but write separately to address two issues. 

First, even if the trial court finds the arbitration clause enforceable, Lee’s wrongful 

death claims are not subject to arbitration. The parties appear to recognize this in 

their respective briefs, and the Ohio Supreme Court has made this very clear — “[a] 

decedent cannot bind his or her beneficiaries to arbitrate their wrongful-death 

claims.” Peters v. Columbus Steel, 115 Ohio St.3d 134, 2007-Ohio-4787, 873 N.E.3d 

1258, paragraph two of the syllabus. 

The second purpose for this separate opinion is to revive the 

conversation that Justice Pfeifer started in Hayes v. The Oakridge Home, 122 Ohio 

St.3d 63, 2009-Ohio-2054, 908 N.E.2d 408 (Pfeifer, J., dissenting), that “any 

nursing home preadmission arbitration agreement is unconscionable as a matter of 

public policy.” 

Arbitration clauses that limit elderly or special-needs patients’ access 

to the courts 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. 
Id. at ¶ 51.

By its enactment, “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.” Id. at ¶ 54. It also created 

enforcement provisions, including injunctive relief and the award of attorney fees, 

and it allows for the reporting of violations to an established grievance committee 

and to the department of health. Id. at ¶ 54-56. “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.” Id. at ¶ 57. 

Protecting nursing-home residents is not just an Ohio issue, but a 

national issue that the United States Congress has also recognized because 

legislators have been pursuing a Fairness in Nursing Home Arbitration Act since at 

least 2008. The bill has sought to amend certain federal acts to prohibit skilled 

nursing facilities and nursing facilities from using pre-dispute arbitration 

agreements with respect to residents of those facilities under the Medicare and 

Medicaid programs. 3 Despite the inability to gain traction over the years, legislators 

continue to reintroduce this Act as a means to protect those nursing-facility 

3 The shift in removing forced arbitration provisions in contracts recently occurred 

with the passage of the Ending Forced Arbitration of Sexual Assault and Sexual 

Harassment Act of 2021, effective March 2022. H.R. 4445 (117th Congress 2021-2022). 

This bill effectively bans employers from forcing workers into arbitration to resolve sexual 

assault and harassment complaints in the workplace.
residents. See H.R. 2812, 117th Congress, 2021-2022. But see 42 C.F.R. 483, 84 

Fed.Reg. 34718, effective July 18, 2019 (Centers for Medicare and Medicaid 

Advocacy recently enacted a rule repealing the agency’s 2016 rule that banned the 

usage of pre-dispute arbitration agreements in long-term care facilities. The new 

rule again permits nursing homes to enter into pre-dispute, binding arbitration 

agreements.).

Until the United States Congress or Ohio’s General Assembly changes 

the law to ban the usage of arbitration provisions in nursing-home preadmission 

agreements, or until additional procedural and substantive safeguards are put into 

place by nursing-facility operators or a legislative body, courts should carefully 

scrutinize those arbitration provisions when deciding enforceability.