[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Portage Cty. Bd. of Dev. Disabilities v. Portage Cty. Educators’ Assn. for Dev. Disabilities, Slip
Opinion No. 2018-Ohio-1590.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.


                           SLIP OPINION NO. 2018-OHIO-1590
 PORTAGE COUNTY BOARD OF DEVELOPMENTAL DISABILITIES, APPELLANT, v.
      PORTAGE COUNTY EDUCATORS’ ASSOCIATION FOR DEVELOPMENTAL
                                 DISABILITIES, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Portage Cty. Bd. of Dev. Disabilities v. Portage Cty. Educators’
          Assn. for Dev. Disabilities, Slip Opinion No. 2018-Ohio-1590.]
When reviewing a decision of a common pleas court confirming, modifying,
        vacating, or correcting an arbitration award, an appellate court should
        accept findings of fact that are not clearly erroneous but decide questions
        of law de novo.
    (No. 2017-0696—Submitted January 24, 2018—Decided April 25, 2018.)
                CERTIFIED by the Court of Appeals for Portage County,
                            No. 2016-P-0032, 2017-Ohio-888.
                                     _______________
                                 SYLLABUS OF THE COURT
When reviewing a decision of a common pleas court confirming, modifying,
        vacating, or correcting an arbitration award, an appellate court should
                              SUPREME COURT OF OHIO




       accept findings of fact that are not clearly erroneous but decide questions of
       law de novo. (First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115
       S.Ct. 1920, 131 L.Ed.2d 985 (1995), followed.)
                                 _______________
       O’DONNELL, J.
       {¶ 1} The Eleventh District Court of Appeals certified that its judgment in
this case, which holds that the standard of review for appellate courts reviewing a
trial court decision vacating an arbitration award is de novo, conflicts with the
judgments in Cleveland State Univ. v. Fraternal Order of Police, Ohio Labor
Council, Inc., 2015-Ohio-4772, 50 N.E.3d 285 (8th Dist.), and In re Hamilton v.
Internatl. Union of Operating Engineers, Local 20, 2016-Ohio-5565, 69 N.E.3d
1253 (12th Dist.), which hold that the proper standard is abuse of discretion, and as
a result, the appellate court certified the following question to us pursuant to Article
IV, Section 3(B)(4) of the Ohio Constitution and App.R. 25:


               What standard of review governs appellate review of a
       decision by the court of common pleas confirming, modifying,
       vacating, or correcting an arbitration award?


       {¶ 2} When reviewing a trial court’s decision to confirm, modify, vacate, or
correct an arbitration award, an appellate court should accept findings of fact that
are not clearly erroneous but should review questions of law de novo. In conformity
with our resolution of the certified question, we recognize that the court of appeals
conducted a proper de novo review of the trial court’s decision in this case vacating
the arbitration award, reversed its decision, reinstated the arbitration award, and
therefore we affirm its judgment.




                                           2
                                January Term, 2018




                          Facts and Procedural History
        {¶ 3} Patricia Byttner is a member the Portage County Educators’
Association for Developmental Disabilities, and that organization is a party to a
collective bargaining agreement with the Portage County Board of Developmental
Disabilities.
        {¶ 4} In November 2008, the board hired Byttner to fill the position of
“Account Clerk 1” in its transportation department. This position required that
Byttner perform bookkeeping, secretarial, and clerical duties. Although it was not
part of her job description, during her interview for the position, Byttner agreed that
she would substitute as a bus driver or aide in emergency situations.
        {¶ 5} In August 2012, Byttner’s supervisor, Jennifer Weaver, directed her
to fill in as a bus aide. Byttner refused, and told Weaver that she could not squat
down or secure wheelchairs on the bus due to pending scheduled knee surgery, and
further stated that her job description did not require her to perform bus aide duties.
        {¶ 6} Approximately two months later, the board unilaterally amended her
job description and required her to serve as a vehicle operator or vehicle attendant
as needed.
        {¶ 7} The association subsequently filed a grievance on her behalf asserting
that the board had misinterpreted the collective bargaining agreement by selectively
changing Byttner’s job description to include driving or acting as an attendant on a
bus even though that duty was not included in any other clerical position. The board
denied the grievance, and the association requested binding arbitration.
        {¶ 8} Following a hearing, the arbitrator found that the board violated the
collective bargaining agreement when it arbitrarily added the additional duty to the
Account Clerk I classification and therefore directed the board to remove that duty
from Byttner’s job description. The arbitrator also determined, however, that
Byttner could not arbitrarily renege on her commitment to serve as a bus driver or
aide on limited occasions, but also recognized that the board had an obligation to




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evaluate her ability to serve as a substitute bus driver or aide if she offered
documentation establishing that she was medically unable to periodically
substitute.
        {¶ 9} Thereafter, the board filed a motion in the common pleas court to
vacate the arbitration award, and the association filed a motion to confirm it. The
trial court granted the board’s motion based on R.C. 2711.10(D) because it had
determined that the arbitrator departed from the essence of the collective bargaining
agreement and exceeded his powers and authority.
        {¶ 10} The Eleventh District Court of Appeals reversed the trial court and
reinstated the arbitration award. It stated that it had reviewed “the trial court’s
decision de novo to determine whether any of the limited grounds contained in R.C.
2711.10 regarding a motion to vacate exist,” and it held that “the trial court erred
in finding that the arbitrator exceeded his authority in imposing reasonable limits
that he drew from the essence of the parties’ Agreement.” 2017-Ohio-888, 86
N.E.3d 580, ¶ 13, 46.
        {¶ 11} The court certified that its judgment conflicts with Cleveland State,
2015-Ohio-4772, 50 N.E.3d 285, ¶ 12, and In re Hamilton, 2016-Ohio-5565, 69
N.E.3d 1253, ¶ 12, where the courts of appeal concluded that the standard of review
for an appellate court reviewing a trial court decision confirming or vacating an
arbitration award is abuse of discretion.
        {¶ 12} We determined that a conflict exists and agreed to resolve the matter.
150 Ohio St.3d 1406, 2017-Ohio-6964, 78 N.E.3d 907.
                               Positions of the Parties
        {¶ 13} Initially, in its brief filed in this court, the board argued that the abuse
of discretion standard of review best aligns with a public policy that favors
arbitration. However, in its reply brief and at oral argument, it urged the question
of whether an arbitrator exceeded authority is a question of fact and that an appellate




                                            4
                                   January Term, 2018




court should accept a trial court’s finding that an arbitrator exceeded his authority
unless it is clearly erroneous.
        {¶ 14} The association, on the other hand, asserts that an appellate court
should conduct a de novo review of a trial court’s judgment vacating an arbitration
award because Ohio law does not grant a trial court any discretion when
determining whether to confirm, vacate, or modify an arbitration award. It noted
that nine of Ohio’s appellate districts and the Supreme Court of the United States,
applying an analogous federal statutory provision, have concluded that the proper
standard of review is de novo. The association also contends that de novo review
comports with Ohio’s public policy favoring arbitration and that it ensures trial
courts do not substitute their judgment for that of the arbitrator.
                                         Issue
        {¶ 15} We recognize that the question regarding the standard of appellate
review regarding a trial court decision confirming, modifying, vacating, or
correcting an arbitration award is a matter of first impression for this court.
                                   Law and Analysis
                                  Ohio Appellate Courts
        {¶ 16} All 12 appellate districts in Ohio have addressed this question: nine
have applied a de novo standard, and three have utilized abuse of discretion in these
situations.
        {¶ 17} Those that apply the de novo standard include: H.C. Nutting Co. v.
Midland Atlantic Dev. Co., L.L.C., 2013-Ohio-5511, 5 N.E.3d 125, ¶ 10 (1st Dist.);
Kettering Health Network v. CareSource, 2d Dist. Montgomery No. 27233, 2017-
Ohio-1193, ¶ 10; Northwest State Community College v. Northwest State
Community College Edn. Assn., OEA/NEA, 2016-Ohio-8393, 79 N.E.3d 1127, ¶ 33
(3d Dist.); Adams Cty./Ohio Valley Local School v. OAPSE/AFSCME, Local 572,
2017-Ohio-6929, ____ N.E.3d ____, ¶ 18 (4th Dist.); Massillon City School Dist.
Bd. of Edn. v. Massillon Edn. Assn., OEA/NEA, 2014-Ohio-3197, 17 N.E.3d 56,




                                            5
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¶ 23 (5th Dist.); Bowden v. Weickert, 6th Dist. Sandusky No. S-05-009, 2006-Ohio-
471, ¶ 51; Creatore v. Robert W. Baird & Co., 154 Ohio App.3d 316, 2003-Ohio-
5009, 797 N.E.2d 127, ¶ 8 (7th Dist.); Lauro v. Twinsburg, 9th Dist. Summit No.
23711, 2007-Ohio-6613, ¶ 9; and the present case, 11th Dist. Portage No. 2016-P-
0032, 2017-Ohio-888, 86 N.E.3d 580, ¶ 13.
          {¶ 18} The appellate districts employing abuse of discretion as the standard
are reported in Cleveland State, 2015-Ohio-4772, 50 N.E. 3d 285, ¶ 12 (8th Dist.),
Dodge v. Dodge, 2017-Ohio-7087, ___ N.E.3d ___, ¶ 19 (10th Dist.), and In re
Hamilton, 2016-Ohio-5565, 69 N.E.3d 1253, ¶ 12 (12th Dist.).
                                         Statutory Review
          {¶ 19} R.C. 2711.13 provides: “After an award in an arbitration proceeding
is made, any party to the arbitration may file a motion in the court of common pleas
for an order vacating, modifying, or correcting the award * * *.” In reviewing a
motion to vacate an arbitration award, courts are bound by R.C. 2711.10, which
states:


                   In any of the following cases, the court of common pleas
          shall make an order vacating the award upon the application of any
          party to the arbitration if:
                   (A) The award was procured by corruption, fraud, or undue
          means.
                   (B) There was evident partiality or corruption on the part of
          the arbitrators, or any of them.
                   (C) The arbitrators were guilty of misconduct in refusing to
          postpone the hearing, upon sufficient cause shown, or in refusing to
          hear evidence pertinent and material to the controversy; or of any
          other misbehavior by which the rights of any party have been
          prejudiced.




                                                6
                                January Term, 2018




               (D) The arbitrators exceeded their powers, or so imperfectly
       executed them that a mutual, final, and definite award upon the
       subject matter submitted was not made.


       {¶ 20} In Cedar Fair, L.P. v. Falfas, 140 Ohio St.3d 447, 2014-Ohio-3943,
19 N.E.2d 893, ¶ 5, we stated that R.C. 2711.10 is “substantively equivalent” to 9
U.S.C. § 10, a provision of the Federal Arbitration Act, and “we have often used
federal law in aid of our application of the statute,” Cedar Fair at ¶ 5.
                           National Judicial Perspective
       {¶ 21} In First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct.
1920, 131 L.Ed.2d 985 (1995), where the Third Circuit Court of Appeals used the
de novo standard to review a district court’s denial of a motion to vacate a
commercial arbitration award under 9 U.S.C. § 10, the Supreme Court affirmed its
decision and concluded that appellate review “should proceed like review of any
other district court decision finding an agreement between parties, e.g., accepting
findings of fact that are not ‘clearly erroneous’ but deciding questions of law de
novo.” Id. at 947-948. In rejecting an argument that an abuse of discretion standard
applied, the Supreme Court noted that “courts grant arbitrators considerable leeway
when reviewing most arbitration decisions; but that fact does not mean that
appellate courts should give extra leeway to district courts that uphold arbitrators.”
(Emphasis sic.) Id. at 948.
       {¶ 22} In addition, state supreme courts that have recently reviewed this
question have announced standards that parallel the First Options standard, i.e.,
when reviewing an arbitrator’s award, an appellate court should accept findings of
fact that are not clearly erroneous and review questions of law de novo. See Vold
v. Broin & Assocs., Inc., 699 N.W.2d 482, 2005 S.D. 80, ¶ 10 (“In examining a
circuit court’s order vacating an arbitration award, we review the court’s findings
of fact under the clearly erroneous standard, but decide questions of law de novo”);




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                             SUPREME COURT OF OHIO




Richey v. Autonation, Inc., 60 Cal.4th 909, 918, 182 Cal.Rptr.3d 644, 341 P.3d 438
(2015), fn. 1 (“As the Court of Appeal recognized, the question whether the
arbitrator exceeded his powers and thus whether we should vacate his award on that
basis is generally reviewed on appeal de novo”).
       {¶ 23} We concur with the standard set forth in First Options and that
followed by other state supreme courts that have considered this question. When
reviewing a trial court’s decision to confirm, modify, vacate, or correct an
arbitration award, appellate courts are to accept findings of fact that are not clearly
erroneous but decide questions of law de novo.
       {¶ 24} In the instant matter, the trial court vacated the arbitration award
pursuant to R.C. 2711.10(D), after it determined that the arbitrator had exceeded
his powers and authority. In reversing the trial court, the court of appeals conducted
a de novo review of the trial court’s decision and concluded that the trial court erred
in finding that the arbitrator had exceeded his authority.
       {¶ 25} Applying our standard of accepting findings of fact that are not
clearly erroneous, but reviewing questions of law de novo, we conclude the
appellate court properly applied a de novo review of the trial court’s decision
because “[t]he question whether an arbitrator has exceeded his authority is a
question of law * * *.” Green v. Ameritech Corp., 200 F.3d 967, 974 (6th Cir.2000).
                                     Conclusion
       {¶ 26} Accordingly, we answer the conflict question as follows: when
reviewing a decision of a common pleas court confirming, modifying, vacating, or
correcting an arbitration award, an appellate court should accept findings of fact
that are not clearly erroneous but decide questions of law de novo. In this case, the
court of appeals properly reviewed the trial court’s judgment, and therefore we
affirm its judgment.
                                                                  Judgment affirmed.




                                          8
                              January Term, 2018




       O’CONNOR, C.J., and KENNEDY, FRENCH, SADLER, FISCHER, and DEWINE,
JJ., concur.
       LISA L. SADLER, J., of the Tenth District Court of Appeals, sitting for
O’NEILL, J.
                             _________________
       Ronald J. Habowski, for appellant.
       Green, Haines, Sgambati, Co., L.P.A., Ira J. Mirkin, Charles W. Oldfield,
and Danielle L. Murphy, for appellee.
                             _________________




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