[Cite as Tedeschi v. Atrium Ctrs., L.L.C.,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97647

PAMELA TEDESCHI, EXECUTOR OF THE ESTATE OF RUTH A. CROWE, DECEASED PLAINTIFF-APPELLEE

vs.

ATRIUM CENTERS, L.L.C., ET AL. DEFENDANTS

[APPEAL BY ESSEX OF SALEM I, L.L.C., DEFENDANT-APPELLANT]

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-674442

BEFORE: Celebrezze, P.J., Rocco, J., and E. Gallagher, J.

RELEASED AND JOURNALIZED: June 28, 2012 ATTORNEYS FOR APPELLANT

Brant E. Poling Colleen H. Petrello Poling/Petrello 1100 Superior Avenue Cleveland, Ohio 44114

Douglas P. Holthus Paul-Michael LaFayette Poling/Petrello 300 East Broad Street Suite 350 Columbus, Ohio 43215

ATTORNEYS FOR APPELLEE

Michael D. Schroge Frank Gallucci, III Plevin & Gallucci Co. 55 Public Square Suite 2222 Cleveland, Ohio 44113

Paul W. Flowers Paul W. Flowers Co., L.P.A. Terminal Tower 35th Floor 50 Public Square Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., P.J.:

{¶1} Appellant, Essex of Salem I, L.L.C. (“Essex”), brings this appeal challenging

the denial of its second motion to stay a wrongful death and medical malpractice suit

pending arbitration brought by Pamela Tedeschi, executor of the estate of Ruth Crowe.

Essex argues the cause should be stayed pursuant to a valid and enforceable arbitration

agreement signed by Tedeschi. After a thorough review of the record and pertinent law,

we affirm the trial court’s decision.

I. Facts and Procedural History

{¶2} Ruth Crowe was a recently admitted resident to a nursing home operated by

Essex, which was in turn controlled by Atrium Centers, L.L.C. (“Atrium”). On June 13,

2007, Crowe was left alone seated in a wheelchair in a courtyard of the facility. She had

a documented history of falls, which was disclosed to Essex in medical records received

by it during her admission. Tragically, Crowe’s wheelchair tipped back, and she hit her

head and died two days later from injuries sustained in the fall.

{¶3} Crowe was admitted on March 10, 2007. During the admission process, on

March 12, 2007, Crowe’s daughter Pamela Tedeschi (“Tedeschi”) signed several forms

on behalf of Crowe, purportedly through a health care power of attorney that was

executed March 6, 2007. One of those forms was a binding arbitration agreement.

{¶4} Tedeschi, as the executor of Crowe’s estate, filed a wrongful death action

against Essex and Atrium alleging that negligent care had caused Crowe’s death. Essex

and Atrium moved to stay the case pending arbitration, citing the March 12, 2007 arbitration agreement. In order to properly respond to the motion, Tedeschi wished to

depose Freda Scott, the administrator overseeing Crowe’s admission and the person who

signed the arbitration agreement on behalf of Essex. However, Essex failed to provide

deposition dates after extensive inquiry by Tedeschi’s attorney. Tedeschi requested

additional time to respond, but a deposition had still not been scheduled when the

additional time granted in her second motion for additional time to respond had run out.

As a result, on May 1, 2009, the trial court granted the motion to stay without the benefit

of a brief in opposition.

{¶5} On September 30, 2009, Tedeschi filed a motion to lift the stay and to compel

the deposition of Scott. The trial court entertained the motion and found that Atrium was

not a party to the agreement and vacated the order as to it. Scott was ultimately deposed

and from her deposition, Tedeschi learned that Scott never determined whether any

physician had declared Crowe, a 69-year-old woman, unable to make health care

decisions for herself. According to Tedeschi’s affidavit, no doctor she knew of had done

so. This meant the health care power of attorney was not effective at the time Tedeschi

signed the arbitration agreement. The trial court agreed and found the arbitration

agreement ineffective and lifted the stay completely on September 8, 2010.

{¶6} The case proceeded with Atrium and Essex filing motions for summary

judgment. The trial court granted Atrium’s motion finding a lack of evidence as to it, but

denied Essex’s motion. Essex then filed a “Motion to Dismiss; Alternatively, Motion to

Stay and Compel Arbitration” on October 17, 2011. There it argued that Atrium was no longer a party and that the trial court had already granted Essex’s motion to stay pending

arbitration and found the arbitration agreement valid. The trial court denied the motion

without opinion on November 4, 2011. Essex then filed this interlocutory appeal

assigning one error for review:

“I. The trial court erred in denying [its] motion to dismiss, alternatively, motion

to stay and compel arbitration.”

II. Law and Analysis

A. Jurisdiction

{¶7} Before we reach the merits of this appeal, Tedeschi points out that Essex did

not appeal from the judgment vacating the order to stay the case pending arbitration.

Instead, it filed trial briefs, jury instructions, and a motion for summary judgment. Only

after its motion for summary judgment was denied did Essex again raise this issue by

filing a second motion to stay pending arbitration. Tedeschi argues that issue was

appealable when the court vacated its earlier order based on her argument that the

arbitration agreement was unenforceable because she did not have authority to sign as

Crowe’s representative.

{¶8} Essex casts blame on Tedeschi for not appealing the original order staying the

case pending arbitration. However, according to Tedeschi, she could not properly appeal

the order because Essex had not cooperated in scheduling the deposition of Scott, the

nursing home employee present during the signing of the agreement and overseeing

Crowe’s admittance. Therefore, the only alternative was to seek out her deposition in order to develop a record and to seek reconsideration of the trial court’s decision to grant

the nursing home’s motion to stay pending arbitration. In taking Scott’s deposition, it

was disclosed that no physician at the nursing home had declared Crowe incompetent to

make legal decisions. In fact, Scott’s notes indicate that Crowe was alert and doing well.

Tedeschi claims that Essex should have appealed this issue after a proper record had been

made and the trial court lifted the stay.

{¶9} The order granting Tedeschi’s motion to lift the stay was a nullity, and Essex

could not appeal from that order. A motion granting a stay pending arbitration is a final

order. Kelm v. Kelm,

,

(10th Dist. 1992). A trial

court does not have authority to reconsider such orders absent some jurisdictional basis.

Succinctly stated, the Rules of Civil Procedure specifically limit relief from judgments to motions expressly provided for within the same Rules. A motion for reconsideration is conspicuously absent within the Rules. Rather the Civil Rules do allow for relief from final judgments by means of Civ.R. 50(B) (motion notwithstanding the verdict), Civ.R. 59 (motion for a new trial), and Civ.R. 60(B) (motion for relief from judgment).

Pitts v. Ohio Dept. of Transp.,

,

(1981). Any

order purporting to reconsider a final judgment absent one of these prescribed avenues is

a nullity.

{¶10} Tedeschi’s motion to lift the stay is akin to a motion for reconsideration and

was inappropriately granted by the trial court. She characterizes this order as final and

appealable, but in reality it is a nullity — void.

“‘The Civil Rules do not provide for

a motion for reconsideration of a final appealable order, * * * [and] this court has no

jurisdiction to review the motion for reconsideration.’” Manley v. Heather Hill, Inc.,

,

,

(11th Dist.), quoting Smith v.

Manor Care of Canton, Inc., 5th Dist. Nos. 2005-CA-00100, 2005-CA-00160,

2005-CA-00162, and 2005-C

.

{¶11} This case is procedurally similar to one from the Second District involving a

trial court’s reconsideration of a motion to stay pending arbitration. Green Tree

Servicing, L.L.C. v. Kramer,

,

,

(2d

Dist.). There, the appellate court found that the trial court did have jurisdiction to rule on

what would be equivalent to Essex’s motion to dismiss or stay pending arbitration. The

Green Tree Servicing court ruled,

[t]he trial court’s order of February 9, 2010 [denying a stay pending arbitration], was a final order, and the April 15, 2010 order purporting to reconsider that order is a nullity. The trial court did have the ability, however, to rule on Kramer’s April 30, 2010 motion for reconsideration. In the motion, Kramer pointed out that the court’s February 9, 2010 order was a final judgment on the issue and that Green Tree should have appealed the order but did not. We interpret Kramer’s motion as having asked the court to vacate its void judgment; i.e., give judicial recognition to the fact that its order of April 15, 2010, is a nullity. Id. at ¶ 30.

{¶12} Here we do not have exactly the same arguments raised below as those

raised in Green Tree Servicing. In its motions and briefs in opposition to Tedeschi’s

motions, Essex seems to ignore the trial court’s reconsideration of its decision to stay the

case pending arbitration. In fact, in its second motion to stay pending arbitration, Essex

does not mention the court’s reconsideration, but argues the order staying the case

pending arbitration “must stay in effect * * *”; it does not give any reason the order “must

stay in effect.” It does not mention the trial court’s inability to reconsider a final judgment absent a jurisdictional basis. However, its stubborn refusal to acknowledge the

order reconsidering the motion to stay could be because it perceived the order as void.

{¶13} We cannot construe Essex’s motion to point out the error made by the trial

court because nothing in it argues the finality of the order granting a stay. Essex’s

motion simply acts as if the order vacating the stay never existed. In fact, it actually

relied on a January 11, 2010 journal entry partially granting Tedeschi’s request to lift the

stay pending arbitration finding Atrium was not a party to the arbitration agreement, but

that Tedeschi “ENTERED INTO A VALID ARBITRATION AGREEMENT AS TO

DEFENDANT ESSEX OF SALEM I * * *.”

{¶14} Given this odd procedural quagmire, this court is left to scrounge around for

some jurisdictional basis upon which to entertain the present appeal. Therefore, we must

treat this appeal as one timely filed from the denial of a motion to stay pending arbitration

based on Essex’s second motion and find that we have jurisdiction under R.C. 2711.02(C)

to hear the present appeal.

B. Stay Pending Arbitration

{¶15} While we disagree with Tedeschi regarding this court’s ability to hear this

appeal, we do not disagree with her analysis of the validity of the arbitration agreement.

While the state of Ohio favors arbitration as an expedient and cost-effective means of

resolving disputes, a party who has not agreed to arbitrate a dispute cannot be forced to

do so and give up her right to court adjudication of disputes. Council of Smaller Ents. v.

Gates, McDonald & Co.,

, 665,

,

. In many cases, a decision ruling on a motion to stay pending arbitration will be reviewed de

novo. McCaskey v. Sanford-Brown College, 8th Dist. No. 97261,

.

A de novo standard applies to questions of whether a party has agreed to submit an issue

to arbitration. Shumaker v. Saks Inc.,

,

,

(8th Dist.), citing Vanyo v. Clear Channel Worldwide,

,

,

(8th Dist.).

{¶16} Here, the trial court must have determined that the health care power of

attorney was not effective at the time Tedeschi signed the arbitration agreement — a

question of law that requires de novo review. No deference is afforded to the trial

court’s determination, and this court undertakes an independent examination of that

question. Gilchrist v. Gonsor, 8th Dist. No. 88609,

.

{¶17} To that end, Tedeschi argues that the health care power of attorney was not

effective at the time she signed the arbitration agreement on behalf of her mother, Ruth

Crowe. “A power of attorney is a written instrument authorizing an agent to perform

specific acts on behalf of his principal.” Testa v. Roberts,

,

(6th Dist. 1988). A power of attorney may be drafted such that it only comes

into being upon certain conditions. R.C. 1337.29(A). Ohio’s former statutory health

care power of attorney, which Crowe’s is based upon, is an example. R.C. 1337.11 et

seq. Under this framework, a representative may make health care decisions for a

principal only when the principal has lost the ability to make those decisions. Former R.C. 1337.13.1 Crowe’s power of attorney sets forth the terms upon which it becomes

effective. Without the fulfillment of the conditions required for the power to come into

being, the representative has no authority to bind the principal. State v. Keith, 8th Dist.

No. 72275,

, *7 (Oct. 22, 1998).

{¶18} Tedeschi presented evidence that the power was not effective based on the

deposition of Scott and her affidavit. Essex did nothing to establish that Crowe could not

make health care decisions or otherwise ensure the health care power of attorney was

valid when Tedeschi signed the arbitration agreement. Tedeschi averred that she was

aware of no physician that had declared Crowe incompetent. Essex simply argued that

Tedeschi signed the agreement, and she should be bound. But she did not sign the

agreement in an individual capacity. She signed the agreement as Crowe’s representative

under a health care power of attorney that had specific provisions regarding when that

power existed. According to the record before this court, that power had not yet come into

being because no one had declared Crowe mentally unfit to make her own health care

decisions. This may open Tedeschi up to suit in signing the arbitration agreement where

she specifically acknowledged that she had the authority to do so on behalf of Crowe, but

it does not bind Tedeschi or Crowe’s other surviving relatives to abide by the terms of the

agreement.2 The agreement reads as if it is between Crowe and Essex, not Tedeschi and

Ohio has since adopted the Uniform Power of Attorney Act. See R.C. 1337.21 to 1337.64. 1

Essex does not argue that Tedeschi should be equitably estopped from avoiding the 2

arbitration agreement, only that the agreement was not unconscionable, or that the trial court had already found the agreement enforceable. Essex. Therefore, the trial court did not err in denying Essex’s motion to stay the case

pending arbitration.3

III. Conclusion

{¶19} While the route to reach the merits of the trial court’s decision to deny

Essex’s motion to stay pending arbitration was tortured, it was ultimately correct given

evidence in the record that Tedeschi lacked authority to sign the arbitration agreement on

behalf of Crowe. And, although the proceedings below are littered with errors

precipitated by both parties, the trial court’s decision is upheld, and Essex’s sole

assignment of error is overruled.

{¶20} 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.

The trial court also did not err in refusing to dismiss the case because the proper action to 3

take when faced with a desire to arbitrate by one of the parties is to stay the case, not dismiss it. Gibbons-Grable Co. v. Gilbane Bldg. Co.,

,

(8th Dist. 1986). A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

KENNETH A. ROCCO, J., and EILEEN A. GALLAGHER, J., CONCUR