# Church v. Fleishour Homes, Inc.

> Ohio Court of Appeals · April 16, 2007 · 172 Ohio App. 3d 205

URL: https://www.frixlaw.com/law-library/cases/3684366

## Case

- **Full name:** CHURCH Et Al., Appellees, v. FLEISHOUR HOMES, INC., Et Al., Appellants
- **Court:** Ohio Court of Appeals
- **Decided:** April 16, 2007
- **Citations:** 172 Ohio App. 3d 205; 874 N.E.2d 795
- **Precedential status:** Published
- **Opinion:** Dissent by Hoffman
- **Judges:** Delaney, Gwin, Hoffman
- **Cited by:** 27 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3684366

## Opinion text

Hoffman, J.,
concurring in part and dissenting in part.
{¶ 92} I fully concur in the majority’s thorough and well-reasoned analysis and disposition of appellant’s sole assignment of error. And while I would agree that under the facts of this case, the trial court would not have abused its discretion in rejecting appellees’ argument that DHI waived its right to arbitration, I respectfully dissent from the majority’s conclusion that we should presume that the trial court did so based upon its failure to expressly rule thereupon.
1
While I agree that when a trial court fails to rule on a pretrial motion, it may ordinarily be presumed to have overruled it, such a presumption is not appropriate in this case.
*226
{¶ 93} Appellees did not file a pretrial motion requesting a ruling that DHI had waived its right to arbitration; rather, appellees raised the waiver argument in their response to DHI’s request to enforce the arbitration agreement. No express ruling on a pretrial motion was necessary. Furthermore, because the trial court denied DHI’s request to arbitrate on the basis that no evidence of agency existed, it became unnecessary for the trial court to consider appellees’ waiver argument. Accordingly, I would refrain from addressing and deciding the merits of this issue unless and until the trial court is again requested to consider appellees’ waiver argument and given an opportunity to exercise its discretion in ruling thereon.
1
. I fully concur in the majority’s analysis and conclusion that DHI was not required to file a cross-appeal and that raising the argument via a cross-assignment of error is the proper procedural mechanism to bring the issue before this court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3684366. Public record. Not legal advice.