Judge Kimbler's November Supreme Court Report

At the beginning of November Judge Kimbler’s court had 792 cases pending. During the month, Judge Kimbler’s court took in 123 new cases. They broke down into the following categories:

Professional Tort: 0
Product Liability: 0
Other Tort: 10
Workers’ Compensation: 1
Foreclosures: 40
Administrative Appeal: 2
Complex Litigation: 0
Other Civil: 43
Criminal: 27

There were also 14 cases that were either transferred in, reactivated or re-designated. Adding those cases to the cases that were either pending or filed in November means that Judge Kimbler’s court had 929 cases on his docket during that month.

On the disposition side, Judge Kimbler’s court disposed of 180 cases during November. The dispositions broke down into the following categories:

Professional Tort: 1
Product Liability: 0
Other Tort: 14
Workers’ Compensation: 2
Foreclosures: 52
Administrative Appeal: 5
Complex Litigation: 0
Other Civil: 89
Criminal: 17

As a result of the above terminations, Judge Kimbler’s court had 749 cases pending at the end of November.

Judge Kimbler Administers Oath to New Attorney

There are a lot of things that judges have to do that are unpleasant. It is never pleasant, for example, to send someone to prison, no matter how well deserved the punishment. There are some things, however, that judges get to do that are very pleasant and rewarding. One of them is administering an oath to an attorney who has just passed the Ohio Bar Exam.

On Friday, December 11, 2009, I had the honor of administering the oath that Ohio attorneys have to take before they are admitted to the bar to James Ziogas. Attorney Ziogas wasn't able to attend the ceremony where the oath is administered to new attorneys by a Justice of the Ohio Supreme Court due to work. I had sent Mr. Ziogas a letter congratulating him on passing the bar. Mr. Ziogas appreciated the letter so much that he asked me to administer his oath.

It was a honor and a privilege to administer the oath to Mr. Ziogas. I got to meet him, his lovely wife, and his three children. It is at least the third time that I have administered the oath to a new attorney and every time I have really enjoyed it. It always reminds me of the day when I was admitted to the Ohio Bar, which is now over 34 years ago.

I wish Mr. Ziogas and his family good luck in the future and I thank them for allowing me the opportunity to be a part of their family's history.

Merry Christmas and a Happy 2009

Judge James L. Kimbler wishes Christian visitors to this blog a Merry Christmas, Jewish visitors a Happy Hanukkah, and all others a Happy Holiday Season. May you and your loved ones have a Peaceful and Successful 2009!

Judge Kimbler Case on Arbitration Waiver

Below is the body of a judgment entry that Judge Kimbler filed in a civil case. The issue was whether the defendant had waived its rights under a provision of the contract that required that certain disputes be submitted to arbitration. Judge Kimbler found that the defendant had not waived its rights. The case is subject to appeal and could be overturned.

Procedural History

The Plaintiff filed a complaint in this Court seeking damages for a breach of contract. The contract was attached to the complaint. The Defendant filed an motion to dismiss under Civ. R. 12 (B) (6), alleging that the Complaint didn’t state a cause of action because the arbitration clause required the dispute to be referred to arbitration. This Court denied the motion on the grounds that it could not tell from the pleadings whether the arbitration clause was valid. The Defendant then filed an answer and set forth, as an affirmative defense, the arbitration clause.

The parties then took discovery and attended Court hearings regarding this case. The case was set for a non-jury trial. Prior to the trial date, however, the Defendant filed a motion to stay proceedings and refer this case to arbitration. The Defendant asserted that the discovery that was done by the parties shows that the arbitration clause is valid under the law of the United Arab Emirates and that this Court should therefore order the parties to submit to arbitration.


The Plaintiff filed a response alleging that the Defendant has waived its right to arbitration pursuant to R.C. 2711.02. The Plaintiff argues that the procedure that the Defendant should have filed was to demand that the matter be stayed and sent to arbitration rather than filing a motion to dismiss. The Plaintiff further argues that the Defendant compounded the problem it created by its own actions when it engaged in discovery and attended Court proceedings instead of filing a stay and demanding arbitration.

Findings of Fact

In considering the Defendant’s motion to stay, a timeline is helpful. Here are the key events in the case as shown by the docket of the Medina County Clerk of Courts:

1. Complaint filed on September 27, 2007;
2. Service on the Defendant noted on docket on October 12, 2007;
3. Motion to Dismiss filed on December 5, 2007;
4. Non-oral hearing set on December 11, 2007, for December 31, 2007 on Motion to Dismiss;
5. Journal Entry denying Motion to Dismiss filed on February 5, 2008;
6. Answer filed on February 15, 2008;
7. Online Case Management Conference set on March 11, 2008 for April 28, 2008;
8. Defendant requests in-person CMF on April 17, 2008;
9. In-person CMF set for April 28, 2008;
10. Court issues order setting non-jury trial date of October 15, 2008 on May 8, 2008;
11. May 15, 2008 Court orders mediation for September 8, 2008;
12. Between July 3, 2008 and September 25, 2008 parties engage in discovery;
13. On September 25, 2008 the Defendant files its motion to stay proceedings.

Conclusions of Law

With certain exceptions, which don’t apply in this case, Ohio law recognizes the validity of contractual provisions to arbitrate contractual disputes. See R.C. §2711.01 (A).

If an arbitration clause is valid under R.C. §2711.01, et seq., then the jurisdiction of a Ohio common pleas court is limited to confirmation, vacation, modification or enforcement of the award and only on terms provided by statute. See Bordonaro v. Merrill Lynch, Pierce, Fenner & Smith, 163 Ohio App. 3d 410, 2005 Ohio 410, ¶ 4.

A party to such an agreement, however, can waive its right to proceed with arbitration. Since Ohio law favors arbitration, however, a party asserting such waiver bears the burden of establishing such waiver. A party asserting waiver must show (1) the waiving party knew of the existing right to arbitrate; and (2) the totality of the circumstances demonstrate the party acted inconsistently with the known right. See Webb v. ALC of W. Cleveland, Inc., 2008 Ohio 4875, at 9.

If one party to a contract files a lawsuit and the other party believes that there is a valid arbitration clause that limits the jurisdiction of the trial court in which the lawsuit is filed, the non-suing party may file a motion for a stay under R.C. §2711.02.

R.C. §2711.02 does not specify a time period in which a motion to stay must be filed.

Ohio Courts of Appeals have issued various decisions on when a party to an arbitration agreement must file a motion to stay in order to avoid waiving the arbitration clause. The Ninth District Court of Appeals, which is the appellate court that controls decisions of the Medina County Court of Common Pleas, sitting as the Lorain County Court of Appeals, addressed this issue in Austin v. Squire (1997), 118 Ohio App. 3d 35, 691 N.E.2d 1085.

In Austin the following language appears in the opinion by Judge Reece:

Pursuant to R.C. 2711.02, a court may stay trial of an action "on application of one of the parties" if: (1) the action is brought upon any issue referable to arbitration under a written agreement for arbitration, and (2) the court is satisfied the issue is referable to arbitration under the written agreement. When a party does not properly raise the arbitration provision of a contract before the trial court, he is deemed to have waived arbitration. See Jones v. Honchell (1984), 14 Ohio App. 3d 120, 122, 470 N.E.2d 219. "The right to arbitrate can be saved by seeking enforcement of the arbitration clause. This is done under R.C. 2711.02 by application to stay the legal proceedings pending the arbitration. Failure to move for a stay, coupled with responsive pleadings, will constitute a defendant's waiver." Mills v. Jaguar-Cleveland Motors, Inc. (1980), 69 Ohio App. 2d 111, 113, 430 N.E.2d 965. (Footnotes and citations omitted.)

Holding

This Court holds that where a party has filed a motion seeking dismissal of a case because of an arbitration clause, and then, when that motion is denied, files an answer asserting the affirmative defense of the arbitration clause, conducts discovery on the issue of the validity of the arbitration clause, then files a motion to stay proceedings within seven months of the filing of the answer, it has not waived its right to have the matter arbitrated.

Discussion

The defendant in the Austin case waited until he had lost a trial in front of a magistrate of the Elyria Municipal Court before he raised the issue that the contract between the parties required that the dispute be referred to arbitration. When he raised the issue, he did it by filing an objection to the magistrate’s decision, not by filing a motion for a stay. Further, the decision of the appellate court is silent as to whether the defendant ever asserted the defense of the arbitration clause prior to filing his objections.

In this case, however, the Defendant first asserted the defense of the arbitration clause when it filed a motion to dismiss pursuant to Civ. R. 12 (B). Then, after that motion was denied, it set forth the affirmative defense of the arbitration clause in its answer. Although the Defendant did not immediately file a motion for a stay pursuant to R.C. 2711.02, the Plaintiff was clearly on notice that the Defendant believed that his claim for commissions and compensation should be arbitrated pursuant to the contract between the parties.

This Court believes that allowing parties to conduct discovery before filing a motion for a stay is the proper procedure. In conducting such discovery, the Defendant took the Plaintiff’s deposition. In that deposition the Plaintiff stated that he knew the arbitration clause existed and that he did not object to the clause being included in the contract. Further, he testified that the reason why he was filing an action in the Medina County Common Pleas Court was because it was more expedient. Such testimony cuts against any argument that the Defendant by its conduct in relation to the Plaintiff had waived its right to seek arbitration.

Requiring a party to immediately file a motion for a stay without allowing for the conducting of discovery would put trial courts in the position of not possibly having all the facts necessary to make a ruling on the motion for a stay. This particular trial court declines the opportunity to make a ruling that could put it in that position in future cases.

In a reported decision, the Third District Court of Appeals, sitting as the Union County Court of Appeals, wrote the following:

The better rule of law appears to be that a motion for stay of proceedings pending arbitration and a referral to arbitration may be filed after the defending party answers the complaint if (1) the application of the arbitration clause is affirmatively pled in the answer, and (2) the defending parties conduct, based on the totality of the circumstances under Phillips, supra, does not demonstrate a waiver of the clause. Harsco Corp. v. Crane Carrier Co., 122 Ohio App. 3d 406, 415-416 (Ohio Ct. App., Union County 1997)

This Court agrees with the Third District that allowing a party to file an answer setting forth the affirmative defense of an arbitration clause, and then examining the conduct of that party following the filing of the answer is the better way to proceed. This Court, as explained above, go even further than the Third District and hold that conducting discovery doesn’t constitute a waiver if the discovery is, at least in part, directed toward the issue of the validity of the arbitration clause.

Order

Based on the above, therefore, this Court hereby grants the motion to stay proceedings and refers this matter to arbitration as set forth in the contact between the parties.

So Ordered, Adjudged, and Decreed.



______________________________
JUDGE JAMES L. KIMBLER

Foreclosures Continue to Go Up in Medina County

In the first quarter of 2007 233 civil cases were assigned to Judge Kimbler's docket. Of those 233, 110 or 47% were foreclosures. In March foreclosures assigned to Judge Kimbler's docket were 54% of the total civil cases assigned. In January foreclosures assigned to Judge Kimbler's docket were 48% of the cases assigned. In February foreclosures accounted for 40% of the cases assigned to Judge Kimbler's docket.

Lawyers in Trial: Giving Voice to the Voiceless

This is one reason why I admire trial lawyers: they speak for those who can't speak for themselves. When a client has a case in front of a court, that client, no matter how bright or articulate, can't effectively speak for themselves. They are too caught up in the process, too close emotionally to the case, too concerned with the outcome. They need an advocate, a champion, someone to be their voice in the arena. That's where trial lawyers come in. That's their job. That's what they do. They are speaking for those who can't speak for themselves.

It is not an easy job. It is an awesome responsibility. On the one hand the trial attorney can't be too close to the client because that diminishes the trial attorney's effectiveness to the client. Often the trial lawyer's job is to point out to a client why a particular strategy in a courtroom will not work, and indeed, might be harmful to the client's case.

On the other hand, the trial attorney can't be so distant from the client that he or she no longer conveys passion about the cause. The jury has to know that the trial attorney believes in the client's cause, because if the trial attorney doesn't, then why should the jury?

This role of speaking for the voiceless applies no matter who the client is, or why they are in court. Our system is built around the premise that everyone is entitled to an advocate when they appear in a courtroom.

This means that "trial attorneys" are not attorneys who represent a particular group of people or a particular side in legal disputes. The term applies equally to attorneys who represent plaintiffs as it does to those who represent defendants, equally to prosecutors as to criminal defense attorneys.

What is sometimes distressing is to see trial lawyers take the position that what they do is noble, but what their opponents do is morally wrong. Such attitudes don't benefit the American system of justice. They make trial work, already full of stress, needlessly difficult. They don't encourage respect for our profession.

If you are litigating a case, take a moment and recognize that your opponent is also a trial lawyer, that he or she has the same job to do as you, and that both of you are carrying out one of the missions of our profession: making sure that the voiceless have a voice.