[Cite as Victor v. Kaplan,
2021-Ohio-2840.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
VLADIMIR B. VICTOR, :
Plaintiff-Appellant, : No. 110091
v. :
MARINA KAPLAN, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 19, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. DR-15-358403
Appearances:
Cavitch Familo & Durkin, L.P.A., and Roger L. Kleinman,
for appellant.
McCarthy, Lebit, Crystal & Liffman Co., L.P.A., and
Richard A. Rabb, for appellee.
EILEEN A. GALLAGHER, P.J.:
Plaintiff-appellant Vladamir Victor appeals from an order of the
Cuyahoga County Court of Common Pleas, Domestic Relations Division, granting
defendant-appellee Marina Kaplan’s motion to stay proceedings and compel
arbitration. We affirm.
Background
In the underlying case, the trial court issued a final decree of divorce
on January 28, 2019 which included a child support award to Kaplan. Victor
appealed that decision to this court on February 28, 2019 in Victor v. Kaplan, 2020-
Ohio-3116, 155 N.E.3d 110 (8th Dist.).
On March 28, 2019, Kaplan filed a motion to show cause seeking
enforcement of the child support provisions of the divorce decree.
On January 7, 2020, the parties entered into an arbitration
agreement which provided that the Beth Din of America1 would arbitrate disputes.
After the arbitration agreement was signed, Victor filed a separate lawsuit against
Kaplan in the Cuyahoga County Court of Common Pleas, General Division, being
known as Cuyahoga C.P. No. CV-20-928498. Pursuant to the arbitration
agreement, he filed a motion to stay proceedings in that case, which was granted on
February 13, 2020.
This court issued its decision in Victor’s appeal of the divorce decree
on May 28, 2020.
1 The Beth Din of America, founded in 1960, is one of the nation’s preeminent
rabbinic courts. It serves the Jewish community of North America as a forum for
arbitrating disputes through the Din Torah process. The Din Torah is a hearing of a
dispute in front of a recognized Jewish court, in accordance with Jewish law. The dispute
may relate to any commercial or personal matter which would normally be adjudicated in
a court of law.
On August 28, 2020, Kaplan filed a motion to stay and compel
arbitration, in the domestic relations court, pursuant to the January 7, 2020
arbitration agreement through new counsel who had entered an appearance on
August 7, 2020 after original counsel withdrew in June 2020. The trial court
granted the motion to stay and compel arbitration on October 14, 2020.
Victor now appeals the granting of that motion, raising one
assignment of error.
Assignment of Error
1. The Trial Court’s Order granting Defendant/Appellee’s Motion to
Stay Proceedings and Compel Arbitration is an abuse of discretion and
contrary to the manifest weight of the evidence where a) the undisputed
evidence was that the Defendant/Appellant waived the arbitration
agreement by waiting more than four months after execution to seek
enforcement; b) pursued her pending cross-appeal after execution of
the Arbitration Agreement; and c) sought enforcement of the child
support order after execution of the Agreement.
Law and Analysis
Victor argues that Kaplan’s four-month delay in filing her motion to
stay and compel arbitration constitutes a waiver of the arbitration agreement. He
maintains that, had she wanted to arbitrate, Kaplan would have withdrawn her
March 28, 2019 motion to show cause in the trial court and sought a stay in this
court. Victor claims that Kaplan intentionally waited until this court ruled before
seeking to arbitrate the case.
Kaplan argues that the delay is but one factor that this court should
consider. Rather, when determining whether the arbitration agreement has been
waived, Kaplan asserts that this court must look at the totality of the circumstances
which weigh in her favor. Additionally, Kaplan argues that Victor’s filing of his
motion to stay and compel arbitration in CV-20-928498 constitutes judicial
estoppel.
We review a trial court’s determination of whether a party has waived
the right to arbitrate a dispute for abuse of discretion. Debois, Inc. v. Guy, 2020-
Ohio-4989, 161 N.E.3d 99, ¶ 20 (8th Dist.). We also review a trial court’s stay
pending arbitration under R.C. 2711.02 for an abuse of discretion. Featherstone v.
Merrill Lynch, Pierce, Fenner & Smith, Inc.,
159 Ohio App.3d 27,
2004-Ohio-5953,
822 N.E.2d 841, ¶ 4 (9th Dist.). An abuse of discretion implies more than just an
error of judgment or law, indicating that the trial court acted unreasonably,
arbitrarily or unconscionably. Blakemore v. Blakemore,
5 Ohio St.3d 217, 219,
450
N.E.2d 1140 (1983). We may not substitute our judgment for that of the trial court
when applying the abuse of discretion standard. Pons v. Ohio State Med. Bd.,
66
Ohio St.3d 619, 621,
614 N.E.2d 748 (1993).
There is a strong presumption in favor of arbitration, and both Ohio
and federal courts encourage it to settle disputes. Wishnosky v. Star-Lite Bldg. &
Dev. Co., 8th Dist. Cuyahoga No. 77245, 2000 Ohio App. LEXIS 4081 (Sept. 7,
2000), see also ABM Farms, Inc. v. Woods,
81 Ohio St.3d 498, 500,
692 N.E.2d 574
(1998); see also Gerig v. Kahn,
95 Ohio St.3d 478, 482,
769 N.E.2d 381 (2002).
However, a party’s conduct that is inconsistent with arbitration may act as waiver of
the right to arbitrate. Harsco Corp. v. Crane Carrier Co.,
122 Ohio App.3d 406, 413
(3d Dist.1997). “The essential question is whether, based on the totality of the
circumstances, the party seeking arbitration has acted inconsistently with the right
to arbitrate.” Phillips v. Lee Homes, 8th Dist. Cuyahoga No. 64353,
1994 Ohio App.
LEXIS 596, 8 (Feb. 17, 1994).
To determine whether a party has acted inconsistently with the right
to arbitrate, this court set forth a list of factors to consider:
“(1) any delay in the requesting party’s demand to arbitrate via a motion
to stay judicial proceedings and an order compelling arbitration; (2) the
extent of the requesting party’s participation in the litigation prior to
its filing a motion to stay the judicial proceeding, including a
determination of the status of discovery, dispositive motions, and the
trial date; (3) whether the requesting party invoked the jurisdiction of
the court by filing a counterclaim or third-party complaint without
asking for a stay of the proceedings; and (4) whether the non-requesting party has been prejudiced by the requesting party’s
inconsistent acts.”
Skerlec v. Ganley Chevrolet, Inc., 8th Dist. Cuyahoga No. 98247, 2012-Ohio-5748,
¶ 24, quoting
Phillips at 12. Further, “[b]ecause of the strong public policy in favor
of arbitration, the burden of proving waiver of the right to arbitration is on the party
asserting a waiver.” Griffith v. Linton,
130 Ohio App.3d 746, 751,
721 N.E.2d 146
(10th Dist.1998), citing Tenneco Resins, Inc. v. Davy Intern., AG,
770 F.2d 416, 420
(5th Cir.1985).
A delay in filing a motion to stay the proceedings and compel
arbitration is the first factor the trial court weighs when determining whether a party
waived her right to arbitrate. See, e.g., Jones v. Honshell, 14 Ohio App.3d 120, 122,
470 N.E.2d 219 (12th Dist.1984) (determining that four-year delay in raising an
issue as to an arbitration clause demonstrated party’s waiver). Here, Kaplan waited
seven months after signing the arbitration agreement to file a motion to stay and
compel arbitration. She argues that part of that delay resulted from her need to
obtain new counsel. Thus, while the delay may seem unreasonable on its face, we
find that upon closer inspection it is nevertheless understandable.
The second factor examines the extent to which the party has
participated in the case. See, e.g., Georgetown Condo Owners Assn. v. Georgetown
L.P., 12th Dist. Warren No. CA2002-02-010, 2002-Ohio-6683, ¶ 19 (upholding
denial of motion to stay because developer already engaged in extensive discovery).
Here, Victor argues that Kaplan should have notified this court in 8th Dist.
Cuyahoga No. 108252 that she intended to arbitrate prior to an opinion being
published.
Kaplan maintains that, at the time that the agreement to arbitrate was
signed, all briefing was complete and oral argument was held. Kaplan argues that
she took no action to invoke the arbitration agreement as the appellate matter was
pending.
The third factor looks to whether the party moving for a stay has
invoked the trial court’s jurisdiction by filing a counterclaim or a third-party
complaint. Here, there is no evidence that Kaplan invoked the court’s jurisdiction
by filing affirmative claims against Victor or any third-party. Thus, this factor also
weights in Kaplan’s favor.
Finally, the fourth factor evaluates whether the non-requesting party
has been prejudiced by the inconsistent acts of the party requesting arbitration.
Victor maintains that Kaplan’s pursuit of her cross-appeal in 8th Dist. Cuyahoga No.
108252 and not withdrawing her March 28, 2019 motion to show cause seeking
enforcement of the child support provisions of the divorce decree are both
inconsistent acts. We observe that briefing and oral argument were completed in
8th Dist. Cuyahoga No. 108252 before Kaplan signed the arbitration agreement.
Additionally, we note that we declined to address Victor’s assignment of error on the
alleged child support issue. Victor, supra. Thus, Victor cannot demonstrate that he
was prejudiced by Kaplan’s inconsistent acts.
Accordingly, we find, under the totality of the circumstances, Kaplan
did not waive her right to arbitration.
Finally, in CV-20-928498, Victor filed a motion to stay and compel
arbitration, which was granted by the trial court. Because of this, Kaplan argues that
Victor is barred by judicial estoppel.
When a party takes a position in a judicial proceeding, judicial
estoppel can prevent that party from taking an inconsistent position in a subsequent
action. Bank of New York Mellon v. Phenon Walker, 2017-Ohio-535,
78 N.E.3d
930, ¶ 15 (8th Dist.). ‘“The doctrine applies only when a party shows that his
opponent: (1) took a contrary position; (2) under oath in a prior proceeding; and (3)
the prior position was accepted by the court.’” Greer-Burger v. Temesi,
116 Ohio
St.3d 324,
2007-Ohio-6442,
879 N.E.2d 174, ¶ 25, quoting Wallace v. Johnston
Coca-Cola Bottling Group, Inc., S.D. Ohio No. 1:06-cv-875,
2007 U.S. Dist. LEXIS
21170 (Mar. 26, 2007).
We find that Victor’s use of the arbitration agreement in a separate
case appears to be a position contrary to his position that Kaplan waived her right
to arbitration. Moreover, the trial court in CV-20-928498 accepted Victor’s position
that the arbitration agreement was enforceable. However, Kaplan has not shown
that Victor’s contrary position was made under oath. Thus, the doctrine of judicial
estoppel does not apply.
Accordingly, we find that the trial court did not abuse its discretion in
granting Kaplan’s motion to stay and compel arbitration. We overrule the
assignment of error.
Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Common
Pleas Court, Domestic Relations Division, 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.
EILEEN A. GALLAGHER, PRESIDING JUDGE
MICHELLE J. SHEEHAN, J., and
LISA B. FORBES, J., CONCUR
