[Cite as Haines v. Haines & Co., Inc., 2013-Ohio-2973.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

LEONARD W. HAINES                                            JUDGES:
                                                             Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant                                  Hon. John W. Wise, J.
                                                             Hon. Patricia A. Delaney, J.
-vs-
                                                             Case No. 2012CA00201
HAINES & COMPANY, INC.

        Defendant-Appellee                                   OPINION




CHARACTER OF PROCEEDING:                                  Appeal from the Stark County Court of
                                                          Common Pleas, Case No. 2012CV02617


JUDGMENT:                                                 Reversed and Remanded


DATE OF JUDGMENT ENTRY:                                   July 8, 2013


APPEARANCES:


For Plaintiff-Appellee                                    For Defendant-Appellant


CHARLES E. RINGER                                         JAMES F. MATHEWS
4690 Munson Street NW, Suite B                            Baker, Dublikar, Beck, Wiley & Mathews
Canton, Ohio 44718                                        400 South Main Street
                                                          North Canton, Ohio 44720
Stark County, Case No. 2012CA00201                                                     2

Hoffman, P.J.


        {¶1}   Plaintiff-appellant Leonard W. Haines appeals the October 2, 2012

Judgment Entry entered by the Stark County Court of Common Pleas dismissing

Appellant’s complaint and compelling arbitration in favor of Defendant-appellee Haines

& Company, Inc.

                           STATEMENT OF THE FACTS AND CASE

        {¶2}   On August 17, 2012, Appellant Leonard W. Haines filed a complaint in the

Stark County Court of Common Pleas for breach of a Stock Purchase Agreement

(Agreement) entered into between the parties on December 30, 1997. The Agreement

provides for a stock redemption schedule pursuant to which Haines & Company, Inc.

(Haines & Company) agreed to pay Appellant the fixed sum of $6,675.08 per month,

each year for the period of twenty years in exchange for the sale of Appellant's stock to

the company. Haines & Company paid Appellant the monthly payment in accordance

with the Agreement for a period of six years, from January 1998, until December of

2003.    From January of 2004, until June of 2008, the Company paid Appellant a

reduced sum of $4,000.00 per month.         Haines & Company then stopped payment

altogether.

        {¶3}   Haines & Company did not cite a disagreement or dispute with Appellant

as justification for ceasing payments under the Agreement; rather, the company cited

financial difficulties producing cash flow problems for the corporation.

        {¶4}   On September 14, 2012, Haines & Company filed a motion to compel

arbitration. Appellant filed a brief in opposition on September 28, 2012, and a motion

for summary judgment. Via Judgment Entry of October 2, 2012, the trial court approved
Stark County, Case No. 2012CA00201                                                       3


the prepared judgment tendered with Appellant's motion, dismissing the complaint and

compelling Appellant to pursue arbitration.

      {¶5}   Appellant now appeals, assigning as error:

      {¶6}   “I. THE TRIAL COURT ERRED IN THE ENTRY OF JUDGMENT

PURPORTING TO ENFORCE A CONTRACTUAL ARBITRATION CLAUSE IN THE

ABSENCE OF ANY FACTUAL DETERMINATION OF A ‘DISPUTE’ SUBJECT TO

REFERRAL TO ARBITRATION.

      {¶7}   “II. THE TRIAL COURT ERRED IN THE ENTRY OF JUDGMENT

DISMISSING APPELLANT’S ACTION WHEN A STAY IS THE REMEDY AUTHORIZED

UNDER R.C. 2711.02.”

                                               I.

      {¶8}   In the first assignment of error, Appellant maintains the trial court erred in

concluding the matter should be referred to arbitration pursuant to the Stock Purchase

Agreement. We agree.

      {¶9}   Paragraph C of the parties' Agreement reads,

      {¶10} "C. Arbitration.

      {¶11} "In the event that there is a dispute between the parties concerning this

agreement, the matter will be submitted to binding arbitration pursuant to the Rules of

Commercial Arbitration of the American Arbitration Association."

      {¶12} (Emphasis added.)

      {¶13} The record before the trial court herein demonstrates Haines & Company

stopped paying Appellant in accordance with the Agreement purely as a result of

financial difficulties due to cash flow.   The company does not dispute its financial
Stark County, Case No. 2012CA00201                                                      4


obligation to Appellant. Further, a determination of the amount due to Appellant under

the contract is easily calculated. As such, the Company's inability to pay under the

terms of the Agreement does not amount to a dispute between the parties concerning

the agreement which would then be referable to arbitration pursuant to the terms of the

Agreement. A court is not permitted to alter a lawful contract by imputing intent contrary

to the expressed intent of the parties. Westfield v. Galatis 100 Ohio St.3d 216, 2003-

Ohio-5849.

         {¶14} Appellant's first assignment of error is sustained.

                                                 II.

         {¶15} In the second assigned error, Appellant argues the trial court erred in

denying the motion to stay pending arbitration; rather than dismissing the case. We

agree.

         {¶16} R.C. 2711.02 provides, in pertinent part,

         {¶17} "(B) If any action is brought upon any issue referable to arbitration under

an agreement in writing for arbitration, the court in which the action is pending, upon

being satisfied that the issue involved in the action is referable to arbitration under an

agreement in writing for arbitration, shall on application of one of the parties stay the

trial of the action until the arbitration of the issue has been had in accordance with the

agreement, provided the applicant for the stay is not in default in proceeding with

arbitration."

         {¶18} Based upon the above, we find even had the matter been properly

referred to arbitration, the trial court should have properly stayed the matter upon
Stark County, Case No. 2012CA00201                                                          5


Appellant's application rather than dismissing the action.      However, in light of our

analysis and disposition of Appellant's first assigned error, we find the issue now moot.

      {¶19} The judgment of the Stark County Court of Common Pleas is reversed

and the matter remanded to the trial court for further proceedings in accordance with the

law and this opinion.

By: Hoffman, P.J.

Wise, J. and

Delaney, J. concur

                                             ___________________________________
                                             HON. WILLIAM B. HOFFMAN


                                             ___________________________________
                                             HON. JOHN W. WISE


                                             ___________________________________
                                             HON. PATRICIA A. DELANEY
Stark County, Case No. 2012CA00201                                                      6


              IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


LEONARD W. HAINES                           :
                                            :
       Plaintiff-Appellant                  :
                                            :
-vs-                                        :          JUDGMENT ENTRY
                                            :
HAINES & COMPANY, INC.                      :
                                            :
       Defendant-Appellee                   :          Case No. 2012CA00201


       For the reason stated in our accompanying Opinion, the October 2, 2012

Judgment Entry entered by the Stark County Court of Common Pleas is reversed and

the matter remanded to the trial court for further proceedings in accordance with the law

and our Opinion.




                                            ___________________________________
                                            HON. WILLIAM B. HOFFMAN


                                            ___________________________________
                                            HON. JOHN W. WISE


                                            ___________________________________
                                            HON. PATRICIA A. DELANEY
