[Cite as Gotham v. Basement Care, Inc., 2019-Ohio-3872.]


STATE OF OHIO                    )                         IN THE COURT OF APPEALS
                                 )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

GENE GOTHAM, et al.                                        C.A. No.   29105

        Appellants

        v.                                                 APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
BASEMENT CARE, INC.                                        COURT OF COMMON PLEAS
                                                           COUNTY OF SUMMIT, OHIO
        Appellee                                           CASE No.   CV-2018-03-0946

                                DECISION AND JOURNAL ENTRY

Dated: September 25, 2019



        HENSAL, Judge.

        {¶1}    Gene and Cindy Gotham (the “Gothams”) appeal from the judgment of the

Summit County Court of Common Pleas, granting Basement Care, Inc.’s motion to stay the

proceedings pending arbitration. This Court affirms.

                                                     I.

        {¶2}    The Gothams entered into a contract with Basement Care, Inc. to perform

waterproofing work on their basement.              The contract was a two-page form document.

Relevantly, the first page of the contract indicated that “[t]his Agreement contains a binding

arbitration provision which may be enforced by the parties.” The second page contained the

arbitration provision, which provided that “[a]ny controversy or claim arising out of or relating

to the contact and/or agreement or breach there of shall be settled by arbitration * * *.”

        {¶3}     The Gothams were ultimately unsatisfied with the work performed and filed a

four-count complaint against Basement Care, Inc., asserting claims for breach of contract,
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violations of the Consumer Sales Practices Act, and failure to perform in a workman-like

manner. Basement Care, Inc. filed a motion to dismiss, or, in the alternative, a motion to stay the

proceedings on the basis that the Gothams’ claims fell within the scope of the arbitration

provision. In response, the Gothams argued, in part, that the language in the contract indicating

that the arbitration provision “may be enforced by the parties” was ambiguous because it was

susceptible to more than one reasonable interpretation: it could mean that both parties must

consent to arbitration, or it could mean that either party could enforce the arbitration provision.

They argued that, since this language was ambiguous, the trial court was required to construe it

against the drafter (i.e., Basement Care, Inc.), and conclude that the language required both

parties to consent to arbitration.

        {¶4}    The trial court denied Basement Care, Inc.’s motion to dismiss, but granted its

motion to stay. In doing so, the trial court concluded that the disputed language on the first page

of the contract (i.e., “may be enforced by the parties”) was a notice provision, putting customers

on notice that the contract contained an arbitration provision. It found “no ambiguity” in this

language, rejecting the Gothams’ argument that it could be interpreted as requiring both parties

to consent to arbitration. The Gothams now appeal, raising three assignments of error for our

review. We will address the Gothams’ assignments of error together.

                                                II.

                                     ASSIGNMENT OF ERROR I

        THE TRIAL COURT ERRED BY FAILING TO FOLLOW THE PROPER
        LEGAL STANDARD IN DETERMINING CONTRACTUAL AMBIGUITY.

                                     ASSIGNMENT OF ERROR II

        THE TRIAL COURT ERRED BY FAILING TO FIND THE FIRST
        PROVISION IS AMBIGUOUS.
                                                3


                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED BY READING AN AMBIGUOUS
       CONTRACTUAL PROVISION IN FAVOR OF THE DRAFTER.

       {¶5}   In their first assignment of error, the Gothams assert that the trial court failed to

follow the proper legal standard for determining whether contractual language is ambiguous. As

the Ohio Supreme Court has stated, “[a]mbiguity exists only when a provision at issue is

susceptible of more than one reasonable interpretation.” Lager v. Miller-Gonzalez, 120 Ohio

St.3d 47, 2008-Ohio-4838, ¶ 16. The Gothams argue that the trial court simply disagreed with

their interpretation of the disputed language and did not determine whether their interpretation

was reasonable. If their interpretation was reasonable, they argue, then the disputed language

was ambiguous.

       {¶6}   We reject the Gothams’ argument. While the trial court did not specifically use

the word “unreasonable” in its analysis, its order clearly rejects the Gothams’ interpretation of

the disputed language, ultimately concluding that “no ambiguity” existed. We, therefore, cannot

say that the trial court failed to apply the appropriate legal standard. See State v. Martin, 7th

Dist. Mahoning No. 12 MA 167, 2013-Ohio-2881, ¶ 8 (“A reviewing court presumes that the

trial court acted correctly and applied the correct law unless the record affirmatively

demonstrates otherwise.”). The Gothams’ first assignment of error is overruled.

       {¶7}   In their second and third assignments of error, the Gothams argue that the trial

court erred by failing to determine that the disputed language was ambiguous and, consequently,

failing to construe the ambiguous language against the drafter (i.e., Basement Care, Inc.). We

disagree.

       {¶8}    “The interpretation of written contracts, including any assessment as to whether a

contract is ambiguous, is a question of law subject to de novo review on appeal.” Watkins v.
                                                 4


Williams, 9th Dist. Summit No. 22162, 2004-Ohio-7171, ¶ 23.                 As previously noted,

“[a]mbiguity exists only when a provision at issue is susceptible of more than one reasonable

interpretation.” Lager, 120 Ohio St.3d 47, 2008-Ohio-4838, at ¶ 16.

       {¶9}    Here, the trial court determined that the disputed language (i.e., “may be enforced

by the parties”) was not ambiguous. In doing so, it rejected the Gothams’ argument that the

disputed language could reasonably be interpreted to mean that the arbitration provision required

both parties to consent to arbitration. We agree with the trial court’s conclusion.

       {¶10} The Ohio Supreme Court has quoted the proposition that “courts should not

interpret contracts in a way that ‘render[s] at least one clause superfluous or meaningless.’”

Transtar Elec., Inc. v. A.E.M. Elec. Servs. Corp., 140 Ohio St.3d 193, 2014-Ohio-3095, ¶ 26,

quoting Sloan & Co. v. Liberty Mut. Ins. Co., 653 F.3d 175, 181 (3d Cir.2011); see also Capital

City Community Urban Redevelopment Corp. v. City of Columbus, 10th Dist. Franklin No.

08AP-769, 2009-Ohio-6835, ¶ 30 (“When interpreting a contract, we will presume that words are

used for a specific purpose and will avoid interpretations that render portions meaningless or

unnecessary.”). There is no dispute that parties can always agree to arbitration. See Travelport

Global Distrib. Sys. B.V. v. Bellview Airlines Ltd., S.D.N.Y. No. 12CIV3483, 2012 WL

3925856, *4 (Sept. 10, 2012) (“[P]arties can always submit a dispute to arbitration if both

consent.”). Thus, interpreting the language “may be enforced by the parties” to mean that both

parties, collectively, must agree to arbitration would render that phrase superfluous or

meaningless and, therefore, is not a reasonable interpretation. See State v. Bethel, 110 Ohio

St.3d 416, 2006-Ohio-4853, ¶ 50-53 (concluding that an interpretation that renders a provision

meaningless is not reasonable); Columbus & Franklin Cty. Metro. Park Dist. v. Shank, 65 Ohio

St.3d 86, 101 (1992) (noting that an interpretation that renders language redundant and
                                                 5


meaningless is not a reasonable interpretation); but see Stantec Consulting Servs. v. Velotta Co.,

9th Dist. Medina Nos. 14CA0028-M, 14CA0034-M, 2015-Ohio-2310, ¶ 9-11 (addressing an

arbitration provision that required mutual agreement of the parties, but resolving the appeal on

the arguments raised without considering the substantive effect of the mutual-agreement

requirement). This is especially so given that the disputed language is contained within a notice

provision that notifies customers of the fact that the contract contains an arbitration provision.

The actual arbitration provision is located on the second page of the contract, and unambiguously

provides that “[a]ny controversy or claim arising out of or relating to the contract * * * shall be

settled by arbitration * * *.” We, therefore, conclude that the trial court did not err when it

determined that the disputed language was not ambiguous. And because the trial court did not

err in this regard, it likewise did not err by not construing the disputed language against

Basement Care, Inc. Accordingly, the Gothams’ second and third assignments of error are

overruled.

                                                III.

       {¶11} The Gothams’ assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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         Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

         Costs taxed to Appellants.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT




CALLAHAN, J.
CONCURS.

CARR, P. J.
DISSENTING.

         {¶12} I respectfully dissent from the judgment of the majority, as I would conclude that

the disputed language is ambiguous. Thus, I would sustain the Gothams’ second assignment of

error.

         {¶13} The sentence at issue appears near the bottom of the first page of the contract a

couple of paragraphs above the signature line. The text appears in all capital letters. It states:

“This agreement contains a binding arbitration provision which may be enforced by the parties.”

The second page consists of a numbered list of terms. Number 9 on the list is the arbitration

provision which provides:

         Any controversy or claim arising out of relating to the contract and/or agreement
         or breach there of shall be settled by arbitration in [] accordance with the
         construction industry rules of the American Arbitration Association and
                                                 7


       judg[ments] upon the award rendered by the arbitrator(s) may be entered in any
       court having jurisdiction thereof.

       {¶14} Basement Care, Inc. points to federal case law and asserts that “[a]n interpretation

requiring both parties’ post-contracting consent to arbitration is essentially superfluous because

‘parties can always submit a dispute to arbitration if both consent.’” Travelport Global Distrib.

Sys. B.B. v. Bellview Airlines Ltd., S.D.N.Y. No. Civ. 2483(DLC), 2012 WL 3925856, *4 (Sept.

10, 2012). While that statement of law is not illogical, this Court in the past has concluded that

arbitration provisions can require mutual consent. See Stantec Consulting Servs., Inc. v. Velotta

Co., 9th Dist. Medina Nos. 14CA0028-M, 14CA0034-M, 2015-Ohio-2310, ¶ 9. Therein, in

Stantec Consulting Servs., Inc., we determined that a provision that stated, “[i]f a dispute cannot

be settled within a period of thirty (30) calendar days with the mediator, if mutually agreed, the

dispute shall be referred to arbitration[,]” was “clear and reasonably susceptible to only one

meaning: arbitration is mandatory only if the referral to arbitration is ‘mutually agreed’ by the

parties after mediation has failed.” Id.

       {¶15} Accordingly, I would conclude that the phrase “may be enforced by the parties”

could reasonably mean that enforcement of the arbitration clause requires the agreement of all

the parties. Thus, I agree with the Gothams that the phrase is ambiguous, and that the trial court

erred in concluding otherwise. I would remand the matter for the trial court to apply the rules of

contract interpretation addressing ambiguous contracts in the first instance.


APPEARANCES:

BRIAN UNGER and WARNER MENDENHALL, Attorneys at Law, for Appellants.

DEAN KONSTAND, Attorney at Law, for Appellee.
