[Cite as Maclin v. Greens Nursing & Assisted Living, L.L.C., 2014-Ohio-2538.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 101085

LISA MACLIN, ADMINISTRATRIX OF THE ESTATE 

OF BERTHA L. THOMAS, DECD. 

PLAINTIFF-APPELLEE 

vs. 

GREENS NURSING AND ASSISTED LIVING, L.L.C., ET 

AL. 

DEFENDANTS-APPELLANTS 

JUDGMENT: 

REVERSED AND REMANDED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-13-801107 

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

RELEASED AND JOURNALIZED: June 12, 2014 
ATTORNEYS FOR APPELLANTS 

Paul W. McCartney 

Jessica C. Pratt 

Rendigs, Fry, Kiely & Dennis, L.L.P. 

600 Vine Street, Suite 2650 

Cincinnati, Ohio 45202

ATTORNEYS FOR APPELLEE 

LISA MACLIN 

Richard V. Zurz 

Martin S. Delahunty, III 

Slater & Zurz, L.L.C. 

One Cascade Plaza 

Suite 2210 

Akron, Ohio 44308 

ATTORNEYS FOR APPELLEE 

UNIVERSITY HOSPITALS OF CLEVELAND MEDICAL CENTER 

Ernest W. Auciello 

Jane F. Warner 

Tucker Ellis, L.L.P. 

950 Main Avenue 

Suite 1100 

Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.: 

{¶1} This appeal is before the court on the accelerated docket pursuant to App.R. 

11.1 and Loc. App.R. 11.1. The purpose of an accelerated appeal is to allow this court to 

render a brief and conclusory opinion. State v. Priest, 8th Dist. Cuyahoga No. 100614, 

2014-Ohio-1735, ¶ 1; App.R. 11.1(E). 

{¶2} Defendants-appellants, the Greens Nursing and Rehabilitation Center, 

Greens Nursing and Assisted Living, L.L.C., and Kindred Nursing Centers East, L.L.C. 

(“the Greens defendants”), appeal from the trial court’s judgment granting in part and 

denying in part their motion to stay proceedings pending arbitration. The Greens 

defendants contend that the trial court erred in not staying all claims pending arbitration. 

Plaintiff-appellee, Lisa Maclin, concedes the trial court’s error. We reverse and remand 

with instructions that the trial court enter an order staying all proceedings until the 

parties’ arbitrable claims have been resolved. 

 I. Background 

{¶3} Bertha L. Thomas was a resident at the Greens Nursing and Rehabilitation 

Center from November 8, 2011 through January 20, 2012, when she was transported to 

the hospital, where she died a few days later. In February 2012, Maclin, as 

administratrix of Thomas’s estate, filed suit against the Greens defendants asserting 

survivorship and wrongful death claims relating to Thomas’s treatment while she was in 

the care of the Greens defendants and her subsequent death. 

{¶4} The Greens defendants filed answers to Maclin’s complaint and subsequent 
amended complaint, and in both answers, asserted as an affirmative defense that Maclin’s 

claims are subject to a binding arbitration agreement signed by Thomas’s legal 

representative on November 8, 2011. The Greens defendants subsequently moved to 

stay all proceedings pending arbitration pursuant to the arbitration agreement and R.C. 

2711.02. 

{¶5} The trial court granted the motion in part and denied it in part. 

Specifically, it stayed the proceedings regarding the survivorship claims but denied the 

motion as to the wrongful death claims, finding that those claims were not subject to 

arbitration. This appeal followed. 

 II. Analysis 

{¶6} In their only assignment of error, the Greens defendants assert that the trial 

court erred in not staying all claims, both arbitrable and non-arbitrable, until the claims 

subject to arbitration under the parties’ arbitration agreement have been resolved through 

arbitration. 

{¶7} Generally, absent an abuse of discretion, a reviewing court should not 

disturb a trial court’s decision regarding a motion to stay proceedings pending arbitration. 

K.M.P., Inc. v. Ohio Historical Soc., 4th Dist. Jackson No. 03CA2, 2003-Ohio-4443, ¶ 

14. 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. Blakemore 

v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). 

{¶8} It is well established that Ohio and federal courts encourage arbitration to 
settle disputes. Marquez v. Koch, 4th Dist. Ross No. 11CA3283, 2012-Ohio-5466, ¶ 9. 

This strong public policy position is set forth in R.C. 2711.02(B), which provides that 

[i]f any action is brought upon any issue referable to arbitration under an 

agreement in writing for arbitration, the court in which the action is 

pending, upon being satisfied that the issue involved in the action is 

referable to arbitration under an agreement in writing for arbitration, shall 

on application of one of the parties stay the trial of the action until the 

arbitration of the issue has been had in accordance with the agreement, 

provided the applicant for the stay is not in default in proceeding with 

arbitration. 

{¶9} As is apparent from the language of the statute, when a trial court determines 

that certain claims are subject to arbitration, it must stay the entire proceeding until those 

claims have been arbitrated, even though the action may involve both arbitrable and 

non-arbitrable claims. Cheney v. Sears, Roebuck & Co., 10th Dist. Franklin No. 

04AP-1354, 2005-Ohio-3283, ¶ 12 (“[W]hen an action involves both arbitrable and 

non-arbitrable claims, the entire proceeding must be stayed until the issues that are 

subject to arbitration are resolved.”); Murray v. David Moore Bldrs., Inc., 177 Ohio 

App.3d 62, 2008-Ohio-2960, 893 N.E.2d 897, ¶ 11 (9th Dist.) (to the extent there were 

claims subject to a valid arbitration provision, the trial court erred by denying a stay due 

to the presence of non-arbitrable claims and parties not subject to the arbitration 

agreement); Pyle v. Wells Fargo Financial, 10th Dist. Franklin No. 05AP-644, 

2005-Ohio-6478, ¶ 12 (a presumption favoring arbitration over litigation applies even 

when the case involves some arbitrable and some non-arbitrable claims, with 

non-arbitrable claims being determined by a court after completion of arbitration); 

Marquez at ¶ 11 (“[T]he presence of non-arbitrable claims and parties not subject to an 
arbitration agreement does not justify the denial of appellants’ motion to stay.”). 

{¶10} Wrongful death claims are not subject to arbitration. Peters v. Columbus 

Steel Castings Co., 115 Ohio St.3d 134, 2007-Ohio-4787, 873 N.E.2d 1258) (a decedent 

cannot bind his or her beneficiaries to arbitrate their wrongful death claims). 

Nevertheless, Maclin concedes on appeal that the Greens defendants were entitled to a 

stay of all proceedings upon the trial court’s judgment that the arbitration agreement was 

valid and enforceable as to the survivorship claims. 

{¶11} The assignment of error is sustained. The trial court erred in not staying 

all proceedings pending resolution by arbitration of the survivorship claims. 

{¶12} The judgment is reversed, and the matter is remanded to the trial court with 

instructions to enter an order staying all proceedings until the arbitrable claims have been 

resolved. 

It is ordered that the parties share equally the 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, JUDGE 

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

MARY EILEEN KILBANE, J., CONCUR 
KEY WORDS: 

# 101085 

Arbitration; stay; survivorship claims; wrongful death claims; arbitrable; non-arbitrable. 

Trial court erred in not staying all proceedings pending arbitration; because the 

survivorship claims were subject to arbitration, the trial court should have stayed all 

proceedings until those claims were resolved, even though the wrongful death claims 

were not subject to arbitration.