Kolosai v. Azem , 2019 Ohio 66 ( 2019 )

[Cite as Kolosai v. Azem, 2019-Ohio-66.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102920
PAULETTE KOLOSAI, ADMINISTRATOR
OF THE ESTATE OF NICHOLAS GIANCOLA
PLAINTIFF-APPELLANT
vs.
HAITHAM MOUAID AZEM, M.D., ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-13-806065
BEFORE: Laster Mays, J., Kilbane, A.J., and Stewart, J.*
RELEASED AND JOURNALIZED: January 10, 2019
__________________
* Editor’s Note: Judge Melody J. Stewart participated in this ruling before her resignation from this court.
-i-
ATTORNEYS FOR APPELLANT
Mark A. DiCello
Mark Abramowitz
Robert F. DiCello
Justin Hawal
The DiCello Law Firm
7556 Mentor Avenue
Mentor, Ohio 44060
Jacques G. Balette
Marks, Balette & Giessel, P.C.
10000 Memorial Drive, Suite 760
Houston, Texas 77024
ATTORNEYS FOR APPELLEES
Rita A. Maimbourg
Jane F. Warner
Tucker Ellis L.L.P.
950 Main Avenue, Suite 1100
Cleveland, Ohio 44113
Leslie Moore Jenny
Jason P. Ferrante
Kenneth W. McCain
Marshall Dennehey Warner Coleman & Goggi
127 Public Square, Suite 3510
Cleveland, Ohio 44114
ANITA LASTER MAYS, J.:
I. INTRODUCTION
{¶1} The instant appeal is before us pursuant the Ohio Supreme Court’s decision in
Giancola v. Azem, Slip Opinion No. 2018-Ohio-1694 (“Kolosai III”). The court heard an
appeal from this court’s decision in Kolosai v. Mouaid, 8th Dist. Cuyahoga No. 102920,
2016-Ohio-5831 (“Kolosai II”), where we held that the law-of-the-case doctrine, based on our
decision in Kolosai v. Azem, 8th Dist. Cuyahoga No. 100890, 2014-Ohio-4474 (“Kolosai I”),
barred our consideration of the assigned errors set forth in Kolosai II. The Ohio Supreme Court
disagreed and remanded the case for review of the assigned errors.
II. BACKGROUND AND FACTS
{¶2} Paulette Kolosai (“Kolosai”), administrator of the estate of Nicholas Giancola
(“Nicholas”), is the plaintiff-appellant in this nursing home negligence and wrongful death case
against defendants-appellees Cleveland Healthcare Group, Inc., Walton Manor Health Care
Center, Saber Healthcare Group, L.L.C., Saber Healthcare Holdings, L.L.C., and Saber
Healthcare Foundation (collectively “Walton Manor”) and Haitham Mouaid Azem, M.D.
(“Azem”). The pending question is whether the trial court properly determined that Nicholas
signed the Walton Manor arbitration agreement that would result in a stay of the wrongful death
action pending arbitration.
{¶3} Kolosai filed this action against appellees on April 29, 2013, as amended on July
11, 2013, claiming: (1) corporate negligence; (2) corporate recklessness/willfulness; (3) medical
negligence; (4) gross negligence; (5) resident rights violations; (6) wrongful death; and (7)
survivorship damages. Walton Manor responded to the complaint by filing an answer on July
23, 2013. The answer included a number of affirmative defenses; however, there was no
defense referencing an arbitration agreement or lack of jurisdiction though there was a reference
to failure to comply with the admission agreement.
{¶4} On August 27, 2013, Walton Manor filed a motion to stay the proceedings pending
arbitration, asserting that Nicholas signed a Resident and Facility Arbitration Agreement
(“Arbitration Agreement”). Kolosai argued that the deposition testimony of Walton Manor’s
witness and former employee, Stephanie Lewis McCaulley (“Lewis”), who admitted Nicholas to
the nursing home and signed the Arbitration Agreement as the facility representative, established
that Nicholas’s mother, Rose Giancola (“Rose”) executed the Arbitration Agreement without
authority to do so, thus rendering it unenforceable.
{¶5} Though Rose was admitted to Walton Manor just a few weeks after Nicholas,1 no
documents containing Rose’s signature were presented to the trial court supporting Walton
Manor’s argument that Nicholas signed the agreement.
Instead, Walton Manor relied on the copy of the Arbitration Agreement containing a signature
above the name of Nicholas. Walton Manor also argued that Lewis’s testimony was vague and
was not based on actual knowledge.
{¶6} The trial court decided that Rose signed the Arbitration Agreement on behalf of
Nicholas with apparent authority to do so and granted the stay as to Counts 1-5 and 7. The
wrongful death claim set forth in Count 6 was retained for further proceedings on the ground that
a decedent cannot bind beneficiaries to arbitration in a wrongful death claim. Peters v.
Columbus Steel Castings Co., 115 Ohio St.3d 134, 2007-Ohio-4787, 873 N.E.2d 1258, ¶ 19.
{¶7} On January 15, 2014, Kolosai appealed the trial court’s order in Kolosai v. Azem,
8th Dist. Cuyahoga No. 100890, 2014-Ohio-4474 (“Kolosai I”). Kolosai argued that the trial
court erred in granting the stay and holding that Rose signed the Arbitration Agreement, which
would render it unenforceable, yet determining the Arbitration Agreement was, in fact,
enforceable under the doctrine of apparent authority, an argument that was not offered by either
1
Nicholas was admitted on October 28, 2011. Rose was admitted on November 21, 2011. Both Rose and Nicholas
are now deceased.
party. Walton Manor at no point during the trial court proceedings offered evidence to support
its argument that Nicholas signed the Arbitration Agreement.
{¶8} While advocating before this court on appeal, Walton Manor proffered documents
that were not part of the record. The documents consisted of Rose’s admission documents that
had been in Walton Manor’s possession since Rose was admitted to the facility in 2011. The
documents had never been introduced as evidence. Walton Manor claimed that the documents
“were not available due to the lack of discovery prior to the Motion to Stay.” Appellee’s Brief
at 2. Kolosai I at ¶ 4.
{¶9} We noted in our opinion that, while new evidence could not be entertained by this
court, the submission of the additional documentation to support the premise that Nicholas
signed the Arbitration Agreement effectively confirmed Kolosai’s position that the trial court’s
finding of apparent authority was erroneous. This court also rejected Walton Manor’s fall-back
position offered during the appeal that the trial court properly granted the stay based on the
doctrine of apparent authority because it directly conflicted with their contrary argument that
Nicholas signed the Arbitration Agreement.2 Id. at ¶ 9-10.
{¶10} Thus, we sustained Kolosai’s first assignment of error that:
The trial court abused its discretion in finding the Arbitration Agreement was
enforceable due to apparent agency principles. The trial court should not have
relied upon this theory because it was an erroneous interpretation of fact and not
addressed in the motion to stay and enforce the binding Arbitration Agreement.
2
“Walton Manor hedges its argument by claiming that even if we ignore its new evidence on appeal, the apparent
agency theory was appropriately relied upon by the court under the circumstances, thus providing sufficient
justification for its decision to enforce the arbitration agreement.” Kolosai I at ¶ 9.
In light of the trial court’s improper reliance on the apparent authority principle, this court
reversed and remanded the case “for further proceedings consistent with the opinion.” Id. at
¶11.
{¶11} Walton Manor filed a renewed motion to stay arbitration on December 12, 2014.
Attached to the motion were copies of Rose’s admission documents that were improperly
proffered during the oral argument in Kolosai I and a December 4, 2014 letter, on Speckin
Forensic Laboratories letterhead that was signed by Forensic Document Analyst Robert D.
Kullman (“Kullman”).3 Kullman opined that, based on his review of documents that contained
the signatures of Nicholas and Rose, (1) the signatures on the copies of Nicholas’s admission and
arbitration agreements were probably written by the same person, to a reasonable degree of
scientific certainty; and (2) the signatures on those agreements, compared with documents
containing Rose’s signature were, to a reasonable degree of scientific certainty, not written by the
same person.
{¶12} Kolosai replied on December 19, 2014, that the law-of-the-case doctrine applied
because Kolosai I determined that the Arbitration Agreement that the trial court held was signed
by Rose was not enforceable because apparent authority did not apply. Kolosai offered that the
impact of the Kolosai I decision required the trial court to lift the stay and move forward with the
case on the merits.
{¶13} Kolosai also argued that: (1) Walton Manor failed to submit Rose’s
information during the initial proceedings though it had been in their possession since November
3
The document also states that a curriculum vitae with Kullman’s last four years of testimony is attached, but it is
not a part of the court filing.
2011; (2) due to the law-of-the-case, the motion should have been made under Civ.R. 60(B); (3)
Walton Manor waived the right to a stay by conducting the depositions of Nathan and Vanessa
Giancola on the merits of the case; and (4) Kullman’s report was unreliable because it failed to
meet the Daubert4 test for expert qualifications and reliability under Evid.R. 702 as set forth in
Walker v. Ford Motor Co., 8th Dist. Cuyahoga No. 100759, 2014-Ohio-4208.
{¶14} The trial court held an evidentiary hearing on February 27, 2015. Prior to the
hearing, Walton Manor filed a Notice of Filing of the Affidavit of Robert Kullman setting forth
his forensic findings, a copy of Kullman’s report submitted with Walton’s Manor’s initial
motion, Kullman’s curriculum vitae, and copies of the documents that Kullman relied on in
forming his opinion. Kolosai objected that the documents were handed to Kolosai’s counsel
only two hours before the hearing.
{¶15} At the hearing, Walton Manor said the law firms had been in discussions since
2013 regarding obtaining a release for Rose’s forms due to
Health Insurance Portability and Accountability Act (“HIPAA”) concerns preventing revelation
until Kolosai provided a signed release on April 23, 2014.5 Walton Manor advised that its
position had always been that Nicholas signed the documents.
{¶16} Kolosai reiterated that HIPAA had not prevented the release of Rose’s signature
that had been in Walton Manor’s possession since 2011 and that the law-of-the-case should
apply. Kolosai also disputed the efficacy of Kullman’s affidavit and argued that Kolosai had no
4
Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
5
In Kolosai I, Walton Manor’s explanation was that the documents were not available until the appellate
proceedings due to the lack of discovery during the motion to stay.
opportunity to conduct discovery, secure a rebuttal expert, or cross-examine Kullman, a paid
biased witness.
{¶17} Kolosai also complained that Walton Manor withheld Nicholas’s admission
records until 20 minutes before the deposition of Lewis. The records included a checklist that
indicated Rose signed Nicholas’s documents, including the Arbitration Agreement. In spite of
Lewis’s testimony that documents were presented to Rose, Walton Manor refused to withdraw
the motion to stay.
{¶18} The trial court determined that, based on the opinion of the expert, as well as
exhibits, Nicholas signed the Arbitration Agreement and granted the stay. The trial court
pointed out that Kolosai failed to rebut the Kullman report and exhibits submitted by Walton
Manor, and that
Plaintiffs’ post-hearing brief includes a motion to strike Kullman’s affidavit,
because, in part, “he ignores the plain [fact] that * * * this court has already ruled
that Rose Giancola signed the arbitration agreement.” However, as stated, that
ruling was reversed by the Court of Appeals. Accordingly, plaintiffs’ motion to
strike is denied. Upon remand, defendants’ renewed motion to stay proceedings
and compel/enforce arbitration is granted.
(Emphasis added.) Journal entry No. 88549382 (Mar. 30, 2015).
{¶19} Kolosai appealed and we determined in Kolosai II that the trial court was bound
by the law-of-the-case doctrine based on our opinion in Kolosai I. Appellees appealed our
decision and the Ohio Supreme Court concluded:
The law-of-the-case doctrine provides that legal questions resolved by a reviewing
court in a prior appeal remain the law of that case for any subsequent proceedings
at both the trial and appellate levels. Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462
N.E.2d 410 (1984). The decision of the appellate court in the first appeal in this
case was limited to whether Nicholas Giancola’s mother had apparent authority to
sign an arbitration agreement on behalf of her son. Therefore, the law-of-the-case
from the first appeal was not relevant in the second appeal, because on remand
from the first appeal, the trial court had relied on new evidence to decide that
Giancola had signed the arbitration agreement. We reverse the Eighth District’s
judgment, which was based on the law-of-the-case doctrine, and we remand the
matter to that court for review of the assignments of error that were not
considered.
Kolosai III at ¶ 1.
III. ASSIGNMENTS OF ERROR
I. The trial court abused its discretion by ruling against the clear manifest
weight of the evidence.
II. It was error for the trial court to consider the affidavit of defendants’
expert, previously undisclosed, in ruling on defendants’ renewed motion to
compel arbitration.
III. The trial court erred by reversing its earlier ruling finding that Rose
Giancola signed the arbitration agreement.
IV. LAW AND ANALYSIS
A. Manifest Weight
{¶20} The trial court initially determined that Rose signed the Agreement on behalf of
Nicholas with apparent authority. Kolosai argues that the trial court’s subsequent determination
that Nicholas signed the agreement based on a signature comparison with the allegedly newly
discovered form containing the signature of Rose is not supported by the manifest weight of the
evidence.
{¶21} When reviewing the manifest weight of the evidence, we
weigh the evidence and all reasonable inferences, consider the credibility of
witnesses and determine whether in resolving conflicts in the evidence, the finder
of fact clearly lost its way and created such a manifest miscarriage of justice that
the judgment must be reversed and a new trial ordered. Eastley v. Volkman, 132
Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 17-20. We are guided by
the presumption that the trial court’s findings were correct and will not reverse the
trial court’s judgment if it is supported by some competent, credible evidence
going to all the essential elements of the case. Domaradzki v. Sliwinski, 8th Dist.
Cuyahoga No. 94975, 2011-Ohio-2259, ¶ 6, citing Seasons Coal Co. v. Cleveland,
10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984); C.E. Morris Co. v. Foley Constr.
Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.
OneWest Bank, N.A. v. Unknown Heirs, 8th Dist. Cuyahoga No. 104503, 2016-Ohio-8159, ¶ 14.
{¶22} The Ohio Supreme Court has steadfastly maintained that, “‘[A]rbitration is a
matter of contract and a party cannot be required to submit to arbitration any dispute which [it]
has not agreed so to submit.’” Taylor v. Ernst & Young, L.L.P., 130 Ohio St.3d 411,
2011-Ohio-5262, 958 N.E.2d 1203, ¶ 20, quoting AT&T Technologies, Inc. v. Communications
Workers of Am., 475 U.S. 643, 648-649, 106 S. Ct. 1415, 89 L.Ed.2d 648 (1986). See also
Acad. of Med. v. Aetna Health, Inc., 108 Ohio St.3d 185, 2006-Ohio-657, 842 N.E.2d 488, ¶
11-14 (in order for an arbitration agreement to be enforceable, the agreement must apply to the
disputed issue), and Ghanem v. Am. Greetings Corp., 8th Dist. Cuyahoga No. 82316,
2003-Ohio-5935, ¶ 12.
{¶23} An appellate court applies the principles that govern contract formation in
deciding whether a party has agreed to arbitrate. We look for “mutual assent on the essential
terms of the agreement, which is usually demonstrated by an offer, acceptance of the offer, and
consideration.” Seyfried v. O’Brien, 2017-Ohio-286, 81 N.E.3d 961, ¶ 19 (8th Dist.), citing
Reedy v. The Cincinnati Bengals, Inc., 143 Ohio App.3d 516, 521, 758 N.E.2d 678 (1st
Dist.2001).
“[Q]uestions of contract formation and intent remain factual issues to be resolved
by the fact finder after careful review of the evidence.” One Hundred Forty Realty
Co. v. England, 2d Dist. Montgomery No. 10189, 1987 Ohio App. LEXIS 10263(Dec. 23, 1987), citing Mead Corp. v. McNally-Pittsburgh Mfg. Corp., 654 F.2d
1197, 1206 (C.A.6 1981). Specifically, the question of whether the parties
agreed to arbitrate their disputes is a matter of contract and the terms of a contract
are a question of fact. Palumbo v. Select Mgt. Holdings, Inc., 8th Dist.
Cuyahoga No. 82900, 2003-Ohio-6045, ¶ 18.
Id. at ¶ 19.
{¶24} In Kolosai I, Walton Manor asserted in the trial court that Nicholas signed the
agreement but, (1) failed to proffer evidence in support of its position either initially or in
rebuttal, and (2) failed to file a cross-appeal in Kolosai I challenging the trial court’s finding that
Rose signed the agreement. In light of the dearth of evidence, the trial court determined, based on
the testimony of the Walton Manor representative that was present with Nicholas and Rose when
Nicholas’s admission documents were signed, that Rose signed the agreement with apparent
authority.
{¶25} The “new evidence” consisted of the expert opinion that accompanied the renewed
motion to stay pending arbitration upon remand by this court. The opinion was, in turn, based
on the expert’s review of more “new evidence” consisting of an admission document from
Walton Manor’s files, executed by Rose in 2011 when she was admitted to Walton Manor’s
facility just weeks after the admission of Nicholas.
{¶26} Kolosai points to the October 29, 2013 deposition testimony of Lewis to support
Kolosai’s position that Nicholas did not sign the documents. Lewis, who was working for a
different employer by the time of the deposition, served as a social service designee at Walton
Manor in March of 2011. Lewis handled the admission process for Nicholas.
{¶27} The admission coordinator prepared the admission packet along with a checklist
indicating what information was required for the admission such as whether the prospective
resident had a health care power of attorney and an attorney-in-fact who may execute the
documents on the resident’s behalf. Lewis would usually highlight or place an “X” at the areas
that required signatures. Lewis explained that she did not insert the typewritten name and date
information at the tops of the admission forms because that process was computerized and that
was not the practice. Lewis “did it by hand.” (Tr. 44-45.) Sometimes the documents were
signed on a date after the actual admission if there was a backlog. After the documents were
executed, Lewis turned the packet over to the admission coordinator.
{¶28} Lewis recalled that Nicholas was admitted for rehabilitation and that Nicholas
became a resident shortly before his mother Rose was admitted. The signatures in Nicholas’s
packet contained typewritten names for Nicholas and Rose below the signature lines. In some
cases, the signatures were on the signature line for Nicholas and others above the name for Rose.
{¶29} In spite of the fact that the packet indicated Rose signed the documents, Lewis’s
testimony was somewhat ambiguous. At one point she testified that she did not know whether
Rose was present when the admission packet for Nicholas was signed and she did not recall
obtaining Rose’s signature. At other times, Lewis’s responses indicated that Rose signed the
documents.
Q And we see the signature purportedly to be of Rose Giancola; right?
A Yes.
***
Q Now, we know from [p]age 1 * * * [of the admission packet] that Rose
Giancola signed the admission paperwork; right?
A Correct.
Q And your review of the Arbitration Agreement on [p]age 15 confirms that
Rose Giancola signed the Arbitration Agreement; right?
A Yes.
(Tr. 46.)
{¶30} In response to the question of whether Lewis “had any specific recollection of
Rose Giancola in explaining the paper work [for Nicholas] to Rose Giancola” during the
admission, Lewis responded “I don’t remember. I know they were there [patients at the facility]
at the same time and I know she was his — she was his [power of attorney], so that would be
who I would have spoken to.” (Tr. 48-49.) Yet then Lewis said she had no personal
recollection of speaking with the admission coordinator about who should sign the admission
documents for Nicholas or that Rose held a health care power of attorney for Nicholas though
that would be the standard procedure. Lewis said several times that she had no independent
recollection of explaining the documents to Nicholas or Rose but could explain the usual
admission process.
{¶31} Typically, Lewis would read the first paragraph of the Arbitration Agreement to
the resident and explain the rest:
Then when it said binding nature of arbitration, I would go through and explain it,
that meant that we were able to go in front of a magistrate, they had that choice in
order to solve any issues or anything like that that were — that they had with us as
a nursing home facility, whether it would be financial or medical.
In that nature I would just go through each of them, like, who conduct[s] it? A
magistrate would be conducting it as opposed to us going in front of maybe a
judge or anything like that or having attorneys. The magistrate would be like the
middle person is how I was explained. [sic]
(Tr. 67.)
{¶32} Lewis would read verbatim any portions that she was unable to summarize or did
not understand. Generally, Lewis was not familiar with how the arbitration process worked or
what rules applied but was aware that arbitration was in lieu of a constitutional right to a jury
trial. Lewis also explained to the resident or representative that they did not have to sign the
arbitration agreement. If there were questions about the agreement, Lewis would have an
administrator handle them.
{¶33} Kullman reviewed signatures contained in the admission packet for Nicholas and
the admission packet for Rose. Kullman concluded that the signatures on the documents for
Nicholas’s admission “were to a reasonable degree of scientific certainty, probably written by the
same person.” Kullman also determined that it was “highly probable” that the signatures on
Nicholas’s admission documents, including the arbitration agreement, and the signature on the
documents submitted from Rose’s admission “were, to a reasonable degree of scientific certainty,
not written by the same person.”
{¶34} Kolosai does not contest the authenticity of Rose’s signature on her own admission
documents. Additional evidence supporting the finding that Nicholas signed the Arbitration
Agreement is the deposition testimony of Nathan Giancola, the nephew of Nicholas, who said
that Nicholas would have been making his own medical care decisions at the time of his
admission.
{¶35} Our review of the facts in this case includes a comparison of the signatures on the
documents. The October 24, 2011 Admission Agreement for Nicholas contains the typewritten
names of Nicholas as the resident and Rose as the representative. The signature line above the
typewritten name of Nicholas at the end of the agreement is blank. The signature line above the
typewritten name of Rose contains a barely legible signature that includes a middle initial.
Below the signatures is the signature of Lewis, the Walton Manor employee who conducted the
admission process, and a signing date of October 28, 2011.
{¶36} The Arbitration Agreement also contains the typewritten date of October 24,
2011 and name of Nicholas as resident. The same signature appears above the name of
Nicholas. There is no signature above the name of Rose. This document was also signed by
Lewis and dated October 28, 2011.
{¶37} A document entitled “Authorization & Acknowledgment of Receipt” contains no
signature above the printed name of Nicholas. The signature line for Rose is similar to the
signatures on the other documents and is also signed by Lewis on October 28, 2011.
{¶38} Additional documents contain what appears to be the same signature. A
Medicare secondary payer form lists Nicholas as the resident. The single signature line contains
the printed name “Rose Giancola,” but the signature below it matches the signatures throughout
the package. Though the signatures in Nicholas’ packet are sometimes over his name and
sometimes over Rose’s name, the signatures visibly appear to be consistent in form.
{¶39} Rose’s admission packet is dated November 20, 2011. Rose is listed as the
resident and Nicholas as the representative. The signature of Rose’s name is discernibly larger
and more legible than the Nicholas packet. The facility representative that conducted the
admission for Rose was Dan Burgett on November 21, 2011.
{¶40} Based on our review of the record, this court does not find that the “finder of fact
clearly lost its way” in this case. Eastley, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d
517, ¶ 17-20. The trial court’s judgment is supported by the manifest weight of the evidence.
The first assigned error lacks merit.
B. Expert Affidavit
{¶41} Kolosai next contends that the trial court’s consideration of Kullman’s expert
affidavit proffered with the renewed motion for reconsideration on remand was in error. We
disagree.
{¶42} Kolosai asserts that appellees produced the affidavit and expert opinion at the last
hour, denying them the opportunity to conduct discovery of Kullman’s opinion, securing a
rebuttal expert, and cross-examining Kullman. Kolosai also argues that Kullman’s opinion did
not comply with applicable evidentiary rules and constituted biased, paid evidence.
{¶43} Rose died on December 27, 2013. Kolosai I was remanded on October 9, 2014.
The renewed motion was filed on December 12, 2014, based on obtaining Rose’s signature from
her admission file and the expert report of Kullman. The trial court’s judgment entry
returning the case to the regular docket was entered on December 15, 2014. Kolosai replied on
December 19, 2014. On February 27, 2015, appellees filed the Kullman affidavit in further
support of its filing. The hearing on the renewed motion was held on March 2, 2015.
Supplemental post-hearing briefs were also entertained. On March 30, 2015, the trial court
determined that Kolosai failed to rebut appellees’ evidence that Nicholas signed the agreement.
{¶44} Evid.R. 702 provides:
A witness may testify as an expert if all of the following apply:
(A) The witness’ testimony either relates to matters beyond the knowledge or
experience possessed by lay persons or dispels a misconception common among
lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill,
experience, training, or education regarding the subject matter of the testimony;
(C) The witness’ testimony is based on reliable scientific, technical, or other
specialized information. * * *
{¶45} Further,
“‘The determination of whether a witness possesses the qualifications necessary to
allow expert testimony lies within the sound discretion of the trial court. [Thus],
the qualification of an expert witness will not be reversed unless there is a clear
showing of an abuse of discretion on the part of the trial court.’”
Georgetown of the Highlands Condominium Owners’ Assn. v. Nsong, 8th Dist. Cuyahoga No.
106025, 2018-Ohio-1966, ¶ 56, quoting State v. Wages, 87 Ohio App.3d 780, 786, 623 N.E.2d
193 (8th Dist.1993). An abuse of discretion standard “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, 219, 450 N.E.2d 1140 (1983).
{¶46} Kullman’s curriculum vitae is extensive, reflecting training with the Michigan
State Police, study at the Federal Bureau of Investigation Training Academy, and the U.S. Secret
Service Laboratory. Kullman provided expert testimony comparing signatures on documents
more than 225 times.
{¶47} There is no evidence in the record that Kolosai attempted to depose Kullman or
requested an extension of time to secure a rebuttal expert. While the Kullman affidavit and
curriculum vitae information were added to the record a few days prior to the hearing, the
Kullman opinion attached to the renewed motion to stay was filed more than three months prior
to the hearing.
{¶48} The Kullman opinion is on letterhead listing the company’s name, Speckin
Forensic Laboratories, addresses in Michigan and Florida, contact numbers, and website. The
documents that Kullman relied on in arriving at his opinion are identified. Kullman described
the method of examination and factors that lead to his conclusions. The ASTM Designation
standards used to describe forensic document examinations along with the corresponding
definitions are also listed. Clearly, Kolosai had prior notice of Kullman’s identity and opinion.
{¶49} As Kolosai briefly alluded to a Daubert challenge,
Expert witnesses in the field of handwriting analysis generally offer their opinions
to “a reasonable degree of scientific certainty.” (Emphasis added.) E.g., State
v. Loza, 71 Ohio St.3d 61, 77, 641 N.E.2d 1082 (1994); State v. Powell, 8th Dist.
Cuyahoga No. 99386, 2014-Ohio-2048, ¶ 96. However, under Evid.R. 702,
experts are not required to use any particular “magic words.” Lucsik v.
Kosdrosky, 2017-Ohio-96, 79 N.E.3d 1284, ¶ 15. Rather, an expert’s opinion is
admissible so long as it provides evidence of more than mere possibility or
speculation. Id. (expert testimony admissible even though not offered to “a
reasonable degree of medical certainty”); Butler v. Minton, 6th Dist. Erie No.
E-05-061, 2006-Ohio-4800, ¶ 17 (same); see also Johnson v. Memphis Light Gas
& Water Div., 695 Fed.Appx. 131, 136-137 (6th Cir.2017) (same result under
Federal Rules of Evidence).
State v. Beasley, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 162.
{¶50} In this case, the Kullman opinion contained the proper terminology. As the trial
court observed, Kolosai supplied no evidence rebutting the Kullman opinion or the documents
submitted during the hearing containing the signatures from both admission packets. We do not
find that the trial court abused its discretion.
{¶51} The second assigned error is overruled.
C. Reversal of Prior Finding
{¶52} As the third and final assigned error, Kolosai advances the procedural argument
that the trial court could not effectively vacate the prior judgment that Rose signed the agreement
without apparent authority unless that judgment was vacated by a Civ.R. 60(B) motion. This
argument also fails.
{¶53} As the Ohio Supreme Court explained,
Rather, “‘[u]pon remand from an appellate court, the lower court is required to
proceed from the point at which the error occurred.’” State ex rel. Douglas v.
Burlew, 106 Ohio St.3d 180, 2005-Ohio-4382, 833 N.E.2d 293, ¶ 11, quoting
State ex rel. Stevenson v. Murray, 69 Ohio St.2d 112, 113, 431 N.E.2d 324(1982). In this case, error occurred when the trial court granted the motion to
stay arbitration on the basis of Giancola’s mother’s apparent authority to bind her
son. By ordering a remand for “further proceedings,” the decision in Kolosai I
returned the parties to the same position they were in prior to the error, and
nothing precluded Walton Manor from reasserting its argument that Giancola had
signed the arbitration agreement or prevented the trial court from permitting the
introduction of new evidence to support that assertion.
Kolosai III at ¶ 21.
IV. Conclusion
{¶54} The trial court’s judgment is affirmed. The case is remanded to the trial court
for proceedings consistent with this opinion.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
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.
____________________________________
ANITA LASTER MAYS, JUDGE
MARY EILEEN KILBANE, A.J., CONCURS IN JUDGMENT ONLY;
MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY