[Cite as Meyers v. Marks, 2011-Ohio-3523.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               HENRY COUNTY


WILLIAM R. MEYERS,

        PLAINTIFF-APPELLANT,
        -and-                                            CASE NO. 7-10-13

W R MEYERS CO INC.,

        PLAINTIFF-APPELLEE,

        v.                                               OPINION

JERRY A. MARKS, ET AL.,

        DEFENDANTS-APPELLEES.



                 Appeal from Henry County Common Pleas Court
                           Trial Court No. 09 CV 0186

                                     Judgment Affirmed

                             Date of Decision: July 18, 2011




APPEARANCES:

        George C. Rogers for Appellant

        Thomas P. Killam for Appellees, Jerry A. Marks and Southpoint
        Business Park, LLC
Case No. 7-10-13



ROGERS, P.J.

        {¶1} Plaintiff-Appellant, William Meyers, appeals from the judgment of the

Court of Common Pleas of Henry County ordering specific issues within the case

to arbitration. Meyers contends that the trial court erred in ordering the parties to

arbitration, that the trial court erred in ordering arbitration of the claim that

Defendant-Appellee, Jerry Marks,1 had acquired membership rights in the limited

liability company, and that the trial court erred in denying his motion for leave to

dismiss the amended complaint. Based on the following, we affirm the judgment

of the trial court.

        {¶2} In 2001, Meyers, Marks, and David Roberts entered into an operating

agreement (“Agreement”) for Southpoint Business Park (“Southpoint”), an Ohio

limited liability company.2 Under this Agreement, Meyers, Marks, and Roberts

each had a thirty-three and one-third percent interest in Southpoint. Agreement, p.

10. In 2006, the Agreement was amended (“Amended Agreement”) to reflect that

Meyers and Marks purchased Roberts’ membership interest in Southpoint.3

Consequently, Meyers and Marks each have fifty percent interest in Southpoint.

Amended Agreement, pp. 3-4.


1
  Jerry Marks is also referred to as Tony.
2
  Prior to being named Southpoint, the company was originally known as R & T Leasing, LLC and MRT
Leasing, LLC.
3
  Although the Amended Agreement contained other changes to the original Agreement, none of those
changes are pertinent to the disposition of this case.

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Case No. 7-10-13



       {¶3} In July 2009, Meyers filed a complaint (“original complaint”) for

judicial dissolution of Southpoint. Meyers’ original complaint, in pertinent part,

alleged that Marks:

       [C]ommitted acts that have not been in the best interest of
       [Southpoint], * * * has failed to account for [Southpoint] funds,
       has failed and refused to provide [Southpoint’s] contract and
       financial records, has failed and refused to inform William R.
       Meyers regarding [Southpoint] business decisions * * * has
       failed and refused to pay his capitol (sic) contribution for his
       share of [Southpoint].

Meyers’ Original Complaint, p. 3. As a result of Marks’ alleged failures, Meyers

alleged that it was no longer reasonably practical to carry on the business of

Southpoint and requested judicial dissolution of Southpoint. Meyers also alleged

that Marks was not a member of Southpoint because he had not paid any portion

of his initial capital contribution. In addition to requesting judicial dissolution of

Southpoint, Meyers requested that a receiver be appointed to Southpoint to

manage its affairs and prepare it for dissolution.

       {¶4} In September 2009, Marks filed a motion to stay the proceedings and

compel mediation and, if needed, arbitration.        Marks argued that the claims

asserted in Meyers’ complaint arise under or by reason of the Agreement and

must, pursuant to provision 9.17 of the Agreement, be resolved via mediation and,

if needed, arbitration. Provision 9.17 of the Agreement states in pertinent part:



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Case No. 7-10-13



       With respect to any controversy or claim arising under or by
       reason of this Agreement or the breach of it, the parties first
       shall submit the same to mediation with a qualified mediator
       selected by their mutual agreement. If such controversy or
       claim cannot be settled by mediation, the same shall be settled by
       binding arbitration as set forth in the Ohio Revised Code. * * *

Agreement, pp. 35-36.

       {¶5} In response to Marks’ motion to stay the proceedings and compel

mediation and arbitration, Meyers filed a motion in opposition arguing, in

pertinent part, that judicial dissolution of a limited liability company is not

arbitrable, as the Revised Code limits authority to dissolve a limited liability

company to the court of common pleas. Meyers further argued that determination

of whether Marks is a member of Southpoint is not arbitrable, and requested the

trial court to retain jurisdiction to determine the parties’ respective rights in

Southpoint.

       {¶6} In response to Meyers’ motion in opposition, Marks argued, in

pertinent part, that dissolution is arbitrable, due to the breadth of the Agreement’s

arbitration provision. Marks further argued that the declaratory judgment Meyers

sought concerning the parties’ rights in Southpoint presents an arbitrable issue.

       {¶7} In response to Marks’ responsive motion, Meyers, in pertinent part,

reasserted his argument that the trial court retains exclusive jurisdiction to




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Case No. 7-10-13



judicially dissolve a limited liability company. Specifically, Meyers referred to

the Agreement’s dissolution provision, which states:

       7.1 Events of Dissolution: The Company shall be dissolved upon
       the happening of any of the following events:

       7.1.1. Upon the unanimous written agreement of the Members;
       or

       7.1.2 Upon the occurrence of a Permitted Voluntary
       Withdrawal, a Transfer or an Involuntary Withdrawal * * *

Agreement, pp. 28-29. In light of this provision, Meyers argued that if he had

sought dissolution in response to either event anticipated in the Agreement, then

arbitration would be proper.      Since, however, Meyers is not seeking judicial

dissolution for either of the events anticipated in the Agreement, he argued that the

trial court is exclusively vested with jurisdiction to dissolve Southpoint.

       {¶8} Subsequently, Meyers filed a motion to appoint a receiver, which

Marks opposed via motion.

       {¶9} In November 2009, Meyers filed an amended complaint (“amended

complaint”) which realleged that it was not reasonably practical to carry on the

business of Southpoint, and requested judicial dissolution of Southpoint.

Specifically, Meyers alleged that it was not reasonably practical to carry on the

business of Southpoint due to deadlock in Southpoint’s management. Meyers also

reasserted his request that the trial court appoint a receiver to Southpoint.


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Case No. 7-10-13



        {¶10} On February 2, 2010, the trial court filed an order addressing

Meyers’ motion to appoint a receiver and Marks’ motion to stay proceedings and

to compel mediation.           The trial court granted Meyers’ motion to appoint a

receiver. The trial court also granted Marks’ motion to stay the proceedings and

compel mediation, stating in pertinent part:

        Defendants’ Motion to Stay Proceedings is granted. Except for
        the issue of judicial dissolution of [Southpoint], the remaining
        claims in Plaintiff’s Amended Complaint shall be referred for
        mediation to the Court’s Magistrate * * *. This Court reserves
        jurisdiction on the issue of judicial dissolution.

February 2, 2010, Order4, pp. 3-4. The trial court further stated that the parties

were permitted to conduct discovery during the stay in order to facilitate

mediation.

        {¶11} Subsequently, Marks filed a motion to authorize the receiver to sell

Southpoint’s assets. Marks acknowledged that he and Meyers no longer wished to

do business together. Meyers filed a motion concurring with Marks’ motion

authorizing the receiver to sell Southpoint’s assets. Subsequently, the trial court

granted Marks’ motion to authorize the receiver to sell Southpoint’s assets.

        {¶12} In April 2010, Meyers filed a motion entitled “Plaintiff’s Motion for

Declaration that Defendant Tony Marks has No ‘Membership Rights’ in


4
  Although the trial court captioned many of its orders as judgment entries and the parties persist in
referring to them as such, most are interlocutory orders and should not be captioned judgment entry. A
judgment is a final or appealable order. See Civ.R. 54(A).

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Case No. 7-10-13



Southpoint Business Park LLC, Having Never Made Nor Delivered to the

Company His Initial Capital Contribution”5 arguing that Marks had no

membership rights in Southpoint, because he never paid his initial capital

contributions to Southpoint. The provision setting forth Marks’ initial capital

contributions reads, in pertinent part:

        3.2 Initial Capital Contributions. Upon the execution of this
        Agreement, the Members shall contribute to the Company their
        respective Capital Contributions in the amounts set forth in
        Paragraph 3.1 above in the following manner:

        3.2.1 Tony shall execute and deliver to the Company his
        negotiable promissory note payable to the order of the Company
        in the amount of $100,000 * * *. Tony also shall contribute to
        the Company the rights and benefits of a certain Warehousing
        Agreement with Silgan Can Company, a Delaware corporation,
        which contribution the Members agree has a fair market value
        of One Hundred Thousand Dollars ($100,000).

        ***

        When a Member’s Initial Capital Contribution has been made
        and delivered to the Company, his Membership Rights in the
        Company shall be deemed fully paid and non-assessable.

Meyers, in support of his contention that Marks had not paid his initial capital

contributions, cited to Marks’ interrogatory responses. The interrogatories and

responses read, in pertinent part:

        Interrogatory No. 10. Provide a copy of the $100,000 note
        executing (sic) Mr. Marks, as part of his capital contribution in
5
  Although not captioned as such, we interpret Meyers’ foregoing motion as a motion for partial summary
judgment, and will refer to it as such for the remainder of this opinion.

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Case No. 7-10-13



       [Southpoint]. Please include a copy of all checks or other
       evidence of these monthly payments made upon any such note
       over the last seven years.

       Response: There is no such note. As to the remainder of the
       request, see responsive documents produced on October 23 and
       27, 2009.

       Interrogatory No. 11. Please provide a copy of the assignment of
       any rights and interest in the Silgan lease to [Southpoint] and a
       deemed $100,000 contribution by Mr. Marks for his capital
       contribution to [Southpoint].

       Response: There is no such written assignment of rights and
       interest.

Defendant’s Responses to Plaintiff’s Interrogatories, p. 8. Construing Marks’

responses with the Agreement, Meyers argued that Marks had no membership

rights in Southpoint, because such rights could only have been obtained had Marks

paid his initial capital contributions. Accordingly, Meyers argued that without

membership rights Marks could not participate in the management of Southpoint.

       {¶13} In May 2010, Marks filed a motion in opposition to partial summary

judgment. Marks argued that he consented to dissolution of Southpoint rendering

Meyers’ motion for partial summary judgment moot, that he had paid his initial

capital contributions, and that Meyers was equitably estopped from denying him

membership interest in Southpoint. With regard to his initial capital contributions,

Marks acknowledged that he did not execute a promissory note (“Promissory

Note”) in the amount of $100,000 to Southpoint, nor did he execute a written

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Case No. 7-10-13



assignment of the warehousing agreement with Silgan Can Company

(“Warehousing Agreement”). Marks, however, argued that a note receivable, in

the amount of $100,000, was booked as an asset of Southpoint, and has been paid

in full. In support, Marks cited his affidavit and Southpoint’s general ledger. As

to the Warehousing Agreement, Marks argued that he orally assigned his rights in

the Warehousing Agreement, and that such assignment, although oral, was valid

via the doctrine of part performance.

       {¶14} In response to Marks’ motion in opposition to partial summary

judgment, Meyers argued that any evidence, other than the written assignment of

the Promissory Note and Warehousing Agreement, is barred under the parol

evidence rule. Meyers also argued that the Warehousing Agreement, because it

would, by the terms of the Agreement, take longer than a year to complete, could

not be orally transferred, because it would violate the statute of frauds. Meyers

further argued that part or full performance of an oral assignment does not act as

an exception to the statute of frauds.

       {¶15} On June 10, 2010, the trial court filed an order deferring ruling on

Meyers’ partial motion for summary judgment pending mediation.

       {¶16} In that same month, Meyers filed a motion for leave to dismiss the

amended complaint. Meyers stated that he could no longer assert the existence of

a deadlock between himself and Marks, as Marks, due to his alleged failure to pay

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Case No. 7-10-13



his initial capital contributions, had no membership rights. Consequently, Meyers

concluded that he was the sole member of Southpoint.

       {¶17} In response to Meyers’ motion for leave to dismiss the amended

complaint, Marks argued that dismissal is prohibited pursuant to Civ.R. 66,

because the trial court appointed a receiver.

       {¶18} On September 17, 2010, the trial court filed its judgment entry

ordering the parties to arbitration. That entry also contained an order denying

Meyers’ motion for leave to dismiss. The trial court stated, in pertinent part:

       Upon consideration thereof, the Court finds Plaintiff’s Notice of
       Dismissal to be without effect as Civil Rule 66 requires a Court
       Order to dismiss a case in which a receiver has been appointed.
       Plaintiff’s Motion for Leave of Court to Dismiss is DENIED. * *
       *

       The Court further finds that the parties desire to waive
       mediation and to proceed directly to arbitration of the issues in
       this case. The parties are therefore directed to proceed with
       arbitration of the issues in this case to include, but not limited
       to:

       1. The merits of Plaintiff, William R. Meyers’s (sic) claim that
          Defendant Marks has no membership rights in [Southpoint];
          and
       2. The parties consent to dissolution of the LLC.

       {¶19} It is from this judgment Meyers appeals, presenting the following

assignments of error for our review.




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Case No. 7-10-13



                                     Assignment of Error No. I

         THE TRIAL COURT ERRED IN ITS JUDGMENT ENTRY
         OF FEB. 8, 2010, IN ORDERING THE COMPLAINT FOR
         JUDICIAL DISSOLUTION OVER WHICH IT HAD
         PREVIOUSLY       RESERVED    JURISDICTION,  TO
         ARBITRATION.6

                                    Assignment of Error No. II

         THE TRIAL COURT ERRED IN ITS JUDGMENT ENTRY
         OF FEB. 8, 2010 IN ORDERING THE ARBITRATION OF
         THE CLAIM THAT TONY MARKS HAD ACQUIRED NO
         MEMBERSHIP RIGHTS WHICH INCLUDES THE RIGHT
         TO PARTICIPATE IN THE MANAGEMENT IN
         SOUTHPOINT BUSINESS PARK, LLC.

                                   Assignment of Error No. III

         THE TRIAL COURT ERRED IN ITS JUDGMENT ENTRY
         OF SEPT. 27, 2010, DENYING PLAINTIFFS’ (SIC) MOTION
         FOR LEAVE TO DISMISS HIS COMPLAINT FOR
         JUDICIAL DISSOLUTION.7

         {¶20} Due to the nature of the arguments raised by both parties, we will

first address whether the September 17, 2010 judgment entry (“September

Judgment Entry”) is a final appealable order.                          In addressing whether the

September Judgment Entry is a final appealable order we will address Meyers’




6
  We note that the record contains no judgment entries dated February 8, 2010. Rather, we believe Meyers
is referring to the trial court’s September 17, 2010 judgment entry ordering arbitration, thus we will address
it as such. The same error appears in Meyers’ second assignment of error.
7
   We note that the record contains no judgment entries dated September 27, 2010. Rather, we believe
Meyers is referring to the trial court’s September 17, 2010 judgment entry denying his motion for leave to
dismiss the amended complaint, thus we will address it as such.

                                                    -11-
Case No. 7-10-13



third assignment of error. Thereafter, we will address Meyers’ first and second

assignments of error together.

                             Final Appealable Orders

       {¶21} In addressing whether the September Judgment Entry is a final

appealable order we note that the trial court’s judgment contains two separate and

distinct orders. The first order denies Meyers’ motion for leave to dismiss the

amended complaint. The second order refers two specific issues to arbitration.

       {¶22} In his third assignment of error, Meyers argues that the trial court

erred in denying his motion for leave to dismiss the amended complaint. Marks

argues that the denial of Meyers’ motion for leave is not a final appealable order.

We agree.

       {¶23} “An order is a final order * * * when * * * [that] order * * * affects a

substantial right made in a special proceeding * * *.” R.C. 2505.02(B)(2). We

begin by noting that cases dealing with judicial dissolution are special

proceedings. See Tilberry v. Body (1986), 24 Ohio St.3d 117, 121. A substantial

right “means a right that the United States Constitution, the Ohio Constitution, a

statute, the common law, or a rule of procedure entitles a person to enforce or

protect.”   R.C. 2505.02(A)(1). Here, the substantial right is arguably Civ.R.




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Case No. 7-10-13



41(A)(1)8, a rule of procedure, which provides, in pertinent part: “* * * [A]

plaintiff, without order of court, may dismiss all claims asserted by that plaintiff

against a defendant * * *.” However, a plaintiff’s ability to voluntarily dismiss the

complaint is “subject to * * * Civ.R. 66 * * *.” Civ.R. 41(A)(1). Civ.R. 66 reads:

         An action wherein a receiver has been appointed shall not be
         dismissed except by order of the court. Receiverships shall be
         administered in the manner provided by law and as provided by
         rules of court.

Civ.R. 66. Considering the foregoing language, we find that a plaintiff does not

have a “substantial right” to dismiss an action wherein a receiver has been

appointed, because such a dismissal requires an order of the court. Consequently,

the trial court’s order denying Meyers’ motion for leave to dismiss the amended

complaint is not a final appealable order, pursuant to R.C. 2505.02(B)(2). Thus,

we are without jurisdiction to review the merits of Meyers’ third assignment of

error.

         {¶24} Accordingly, Meyers’ third assignment of error is overruled.

         {¶25} We now turn to the trial court’s order referring the parties to

arbitration.      Marks argues that the order is not a final appealable order.

Specifically, Marks argues that the order merely clarified the trial court’s February


8
  Meyers initially filed a notice of dismissal of the amended complaint, purportedly pursuant to Civ.R.
41(A)(1). However, Marks responded by filing a memorandum in opposition to the voluntary dismissal,
alleging that Civ.R. 66 precluded dismissal without an order from the court. Thereafter, Meyers moved for
leave to dismiss.

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Case No. 7-10-13



2, 2010 order (“February order”), which stayed the proceedings pending

mediation.    Consequently, Marks argues that the February order, not the

September Judgment Entry, should have been appealed. We disagree.

       {¶26} A trial court’s decision to grant or deny a motion to stay pending

arbitration is a final appealable order. R.C. 2711.02(C). The February order made

reference to mediation, not arbitration. Although the September Judgment Entry

does appear to clarify the issues referred to mediation, this fact is immaterial in

determining whether the order within the September Judgment Entry ordering

arbitration was a final appealable order.        The order within the September

Judgment Entry referring specific issues to arbitration was the first instance where

the parties were ordered to arbitrate, thus it was a final appealable order, pursuant

to R.C. 2711.02(C), and is properly before this Court.

                         Assignments of Error Nos. I & II

       {¶27} In his first and second assignments of error, Meyers argues that

judicial dissolution is not arbitrable, that the court must refer to the Revised Code,

rather than the Agreement, to determine whether deadlock exists, that there are no

disputed issues of fact, and that any evidence proffered by Marks in relation to his

initial capital contributions is barred by the parol evidence rule and the statue of

frauds. We disagree.



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Case No. 7-10-13



       {¶28} In Council of Smaller Ent. v. Gates, McDonald & Co. (1998), 80

Ohio St.3d 661, the Supreme Court of Ohio discussed the role of the court in

determining the arbitrability of a dispute, stating:

        “‘[T]he question of arbitrability - whether a[n] * * * agreement
       creates a duty for the parties to arbitrate the particular
       grievance - is undeniably an issue for judicial determination.
       Unless the parties clearly and unmistakably provide otherwise,
       the question of whether the parties agreed to arbitrate is to be
       decided by the court, not the arbitrator.’”

Council of Smaller Ents., 80 Ohio St.3d, at 666, quoting AT & T Technologies,

Inc. v. Communications Workers of Am. (1986), 475 U.S. 643, 649, 106 S.Ct.

1415, 1418. Accordingly, a trial court’s determination concerning the arbitrability

of a particular issue is reviewed de novo. McManus v. Eicher, 2d Dist. No. 2003-

CA-30, 2003-Ohio-6669, ¶11, citing Gaffney v. Powell (1995), 107 Ohio App.3d

315, 319.

       {¶29} Ohio case law strongly supports the arbitration of disputes. Williams

v. Aetna Fin. Co., 83 Ohio St.3d 464, 471, 1998-Ohio-294.      Arbitration clauses

are “valid, irrevocable, and enforceable.” R.C. 2711.01(A). When a contract

contains an arbitration provision, there is a presumption of arbitrability. Academy

of Medicine of Cincinnati v. Aetna Health, Inc., 108 Ohio St.3d 185, 2006-Ohio-

657, ¶14.




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Case No. 7-10-13



       {¶30} Since Southpoint’s Agreement contains an arbitration provision there

is a presumption of arbitrability. Academy of Medicine of Cincinnati, 2006-Ohio-

657, at ¶14. The arbitration provision provides, in pertinent part:

       With respect to any controversy or claim arising under or by
       reason of this Agreement or the breach of it, the parties first
       shall submit the same to mediation with a qualified mediator
       selected by their mutual agreement. If such controversy or
       claim cannot be settled by mediation, the same shall be settled by
       binding arbitration as set forth in the Ohio Revised Code. * * *

Agreement, pp. 35-36. The Ohio Supreme Court has held that the phrase “any

claim or controversy arising out of the agreement” is the paradigm of a broad

arbitration provision. Alexander v. Wells Fargo Fin. Ohio 1 Inc., 122 Ohio St.3d

341, 2009-Ohio-2962, ¶13, quoting Academy of Medicine of Cincinnati, 2006-

Ohio-657, at ¶14. Such a provision must be enforced unless “it may be said with

positive assurance that the arbitration clause is not susceptible of an interpretation

that covers the asserted dispute.” Id. Any doubts as to coverage should be

resolved in favor of coverage.    Academy of Medicine of Cincinnati, 2006-Ohio-

657, at ¶14, quoting AT & T Technologies, Inc., 475 U.S. at 650.

       {¶31} Turning to Meyers’ first contention, Meyers argues that the trial

court erred when it ordered the issue of judicial dissolution to arbitration. In

support of his contention, Meyers cites Promedica Health Sys., Inc. v. Blanchard

Valley Health Assn., et al., 6th Dist. L-06-1163, 2006-Ohio-6185. In Promedica,


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Case No. 7-10-13



Promedica Health Systems (“PHS”) filed a complaint seeking judicial dissolution,

pursuant to R.C. 1702.52(A)(4), of a joint venture (“JV”) it had entered into with

Blanchard Valley Health Association (“BVHA”) on grounds that there was

deadlock in the management of the JV.           BVHA filed a motion to stay the

proceedings and order arbitration of PHS’s complaint for judicial dissolution, but

the trial court denied the motion. BVHA appealed arguing that the trial court

erred when it denied its motion to stay the proceedings. On appeal, the court

found that the only dispute was whether PHS and BVHA were deadlocked in the

management of the JV. Promedica Health Sys., 2006-Ohio-6185, at ¶20. The

court also found that BVHA made absolutely no showing that the issue presented

in PHS’s complaint was referable to arbitration, or that the case involved any

contractual rights. Id. at ¶¶20, 24. In light of these findings the court affirmed the

trial court’s judgment, stating that “the statutory right to dissolution in this case is

entirely dependent upon the question of whether there exists a deadlock in the

management of the [JV’s] corporate affairs. This question, and thus, the entirety

of PHS’s claim for judicial dissolution, can certainly be adjudicated apart from,

and without reference to, any contracts.” Id. at ¶32.

       {¶32} Having considered the facts in Promedica, we find that the trial

court’s actions in the case at bar do not offend Promedica’s holding. The court in

Promedica essentially affirmed the trial court’s determination that it should retain

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Case No. 7-10-13



jurisdiction over the issue of judicial dissolution, because such determination

could be made without reference to the JV’s contract. Similarly, the trial court

here, in its February order, specifically reserved jurisdiction over the issue of

judicial dissolution.   This reservation was not disturbed in the trial court’s

September Judgment Entry. Accordingly, the issue of judicial dissolution was

never referred to arbitration, and remains with the trial court.

       {¶33} In addition, the case at bar is distinguishable from Promedica. Like

the trial court in Promedica, the trial court here was ultimately tasked with

determining whether there was a deadlock in Southpoint’s management. Unlike

Promedica, however, the trial court here, via Meyers’ partial motion for summary

judgment, was faced with a threshold issue, whether Marks has membership rights

in Southpoint. This distinguishing fact is crucial, as determination of whether

Marks has membership rights in Southpoint is arguably a determination that

cannot be made without reference to the Agreement.

       {¶34} The Agreement’s arbitration provision is broad. When an agreement

contains a broad arbitration provision, the provision must be enforced unless “it

may be said with positive assurance that the arbitration clause is not susceptible of

an interpretation that covers the asserted dispute.” Alexander, 122 Ohio St.3d 341,

2009-Ohio-2962, ¶13, quoting Academy of Medicine of Cincinnati, 2006-Ohio-

657, at ¶14. Meyers contends that there is no need to consider the Agreement, and

                                         -18-
Case No. 7-10-13



thus no need for arbitration, as the existence of management deadlock can be

determined via statute. Specifically, Meyers’ cites R.C. 1705.24, which reads:

       Unless otherwise provided in writing in the operating agreement,
       the management of a limited liability company shall be vested in
       its members in proportion to their contributions to the capital of
       the company, as adjusted from time to time to properly reflect
       any additional contributions or withdrawals by the members.

R.C. 1705.24 (Emphasis Added). This statute, however, is only operative where

the operating agreement is silent as to the proportion of the members’ management

rights. We cannot say with confidence that the Agreement before us does not set

forth when and how a member obtains their membership/management rights, and

the proportion of those rights.     The Agreement contains provisions defining

“Members”, “Membership Interest”, “Membership Rights”, as well as provisions

setting forth the members’ initial capital contributions, the members’ percentage

interest, the management of Southpoint, and other seemingly relevant provisions.

The foregoing provisions appear to address when and how a member obtains their

membership/management rights, and the proportion of those rights. Consequently,

we find that the issue of when and how a member, i.e., Marks, obtains

membership/management rights, as well as the proportion of those rights, is one

that arises under or by reason of the Agreement, and, pursuant to the Agreement’s

broad arbitration provision, must be arbitrated.



                                        -19-
Case No. 7-10-13



          {¶35} Meyers’ remaining contentions assert that arbitration is inappropriate

because there are no disputed issues of fact, and that evidence proffered by Marks

demonstrating payment of his initial capital contributions is barred by the parol

evidence rule and the statute of frauds. In addressing these contentions we must

be mindful that the issue on appeal is narrow in scope, i.e., whether a particular

issue is arbitrable. Anything beyond the issue of arbitrability is not properly

before this Court. This includes Meyers’ remaining contentions. If this Court

were to address the merits of these contentions we would be rendering an advisory

opinion which is improper. Moreover, we are cognizant of the fact that Meyers’

remaining contentions are born from his partial motion for summary judgment.

The trial court, in its June 10, 2010 order, explicitly deferred ruling on Meyers’

partial motion for summary judgment pending mediation. Although mediation has

been abandoned for arbitration, the trial court’s June 10, 2010 order remains in

effect.     Thus, we find that the trial court retains jurisdiction over Meyers’

remaining contentions per its June 10, 2010 order. Accordingly, we are prohibited

from addressing Meyers’ remaining contentions.

          {¶36} In light of the foregoing, we find that the trial court did not err by

referring the issue of Marks’ membership/management rights to arbitration.

Similarly, we find that the issue of consent to dissolution was also properly



                                          -20-
Case No. 7-10-13



referred to arbitration, as the Agreement addresses dissolution of Southpoint via

the consent of its members. Agreement, p. 28.

       {¶37} Accordingly, Meyers’ first and second assignments of error are

overruled.

       {¶38} Having found no error prejudicial to Meyers herein, in the particulars

assigned and argued, we affirm the judgment of the trial court.

                                                                  Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




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