[Cite as Ward v. Ohio State Waterproofing, 2013-Ohio-5560.]


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

JAMES WARD, et al.                                        C.A. No.   27004

        Appellees

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
OHIO STATE WATERPROOFING, et al.                          COURT OF COMMON PLEAS
                                                          COUNTY OF SUMMIT, OHIO
        Appellant                                         CASE No.   CV 2010-10-6692

                                DECISION AND JOURNAL ENTRY

Dated: December 18, 2013



        WHITMORE, Judge.

        {¶1}    Defendant-Appellant, Ohio State Waterproofing (“OSW”), appeals from a

judgment of the Summit County Court of Common Pleas, denying its motion to vacate an

arbitration award. This Court affirms.

                                                     I

        {¶2}    The relevant history, cited below, was set forth in the prior appeal. See Ward v.

Ohio State Waterproofing, 9th Dist. Summit No. 26203, 2012-Ohio-4432.

        Plaintiff-Appellees, James and Brandi Ward (“the Wards”), were experiencing
        flooding in the basement of their home. The Wards contacted OSW to inspect
        their basement and to make recommendations on how to resolve the water
        problem. In September 2008, based on OSW’s recommendations, the Wards
        entered into a contract with OSW. OSW was to install several products in
        exchange for $12,870. OSW completed its work pursuant to the contract, but the
        Wards’ water problem persisted. Despite OSW performing several warranty
        repairs in 2009, the Wards were still experiencing flooding in their basement. In
        January 2010, the Wards requested OSW refund the contract price, but no refund
        was made.

        The Wards discovered that in 2007, Springfield Township had hired Butcher and
        Sons, Inc. to demolish a building on the lot adjacent to the Wards. In the spring
                                               2


       of 2010, at the request of the Wards, Springfield Township discovered the source
       of the Wards’ water problems was a broken water line buried on the adjacent
       property. The Wards did not experience any water problems after the water line
       was fixed.

       In October 2010, the Wards filed a complaint against OSW for breach of contract,
       and against Springfield Township and Butcher and Sons, Inc. for damages. OSW
       filed a motion to compel arbitration, citing an arbitration clause in the contract
       signed by the Wards. Ultimately, the Wards and OSW agreed to binding
       arbitration and the court stayed the matter and referred them to arbitration.

       The arbitrators found OSW had breached its contract with the Wards and awarded
       them the contract price plus interest and attorney’s fees. On September 26, 2011,
       the [common pleas] court issued two orders: (1) reinstating the case to the active
       docket, and (2) adopting the arbitrators’ report and award as a judgment of the
       court. On that same day, OSW filed a motion to vacate the arbitrators’ award
       [and the Wards filed a motion in opposition].

Id. at ¶ 2-5. The common pleas court denied OSW’s motion to vacate the award and OSW

appealed. On appeal, this Court reversed and remanded because we concluded that the common

pleas court had not considered one of OSW’s arguments raised in its motion to vacate. Id. at ¶

10. On remand, the common pleas court reviewed OSW’s remaining argument and again denied

the motion to vacate. OSW now appeals and raises one assignment of error for our review.

                                               II

                                     Assignment of Error

       OSW’S MOTION TO VACATE ARBITRATION AWARD WAS DENIED IN
       ERROR BECAUSE THE ARBITRATORS ALLOWED THE APPELLEES,
       JAMES AND BRANDI WARD (HEREINAFTER “WARD”), TO INTRODUCE
       EVIDENCE NOT DISCLOSED TO OSW IN DISCOVERY; DID NOT PERMIT
       OSW’S INSPECTOR TO TESTIFY ABOUT HIS CONVERSATIONS WITH
       THE WARDS WITH REGARD TO THE SERVICES THAT WOULD BE
       PERFORMED BY OSW AND; AND (sic) THE ARBITRATORS EVIDENT
       MISTAKE MADE THE AWARD UNJUST AND/OR UNCONSCIONABLE
       ALL IN CONTRAVENTION OF OHIO REVISED CODE § 2711.10 WHICH
       STATES THAT AN ARBITRATION AWARD SHOULD BE VACATED IF: 1)
       THE AWARD WAS PROCURED BY CORRUPTION, FRAUD, OR UNDUE
       MEANS; 2) THERE IS EVIDENT PARTIALITY OR CORRUPTION ON THE
       PART OF THE ARBITRATORS, OR ANY OF THEM; 3) THE
       ARBITRATORS WERE GUILTY OF MISCONDUCT IN REFUSING TO
       POSTPONE THE HEARING, UPON SUFFICIENT CAUSE SHOWN, OR IN
                                                  3


       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; OR 4) 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.

       {¶3}    In its sole assignment of error, OSW argues that the common pleas court erred

when it denied its motion to vacate the arbitration award. We disagree.

       {¶4}    “When parties agree to binding arbitration, they agree to accept the result and may

not re[-]litigate the facts as found by the arbitrator.” New Par v. Misuraca, 9th Dist. Lorain No.

06CA009060, 2007-Ohio-3300, ¶ 4, quoting Bennett v. Sunnywood Land Dev., Inc., 9th Dist.

Medina No. 06CA0089-M, 2007-Ohio-2154, ¶ 9. However, although the actual merits of the

arbitration are not subject to review, after an award is made, the parties to the arbitration may file

a motion in the court seeking to modify, vacate, or correct the award. See R.C. 2711.10 and

2711.11.

       {¶5}    When a court considers a motion to vacate an arbitration award, it is guided by

R.C. 2711.10. That section provides, in part, that:

       [T]he 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.
                                                 4


       (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.

       {¶6}    “Mere error in the interpretation or application of the law will not suffice. The

arbitrators’ decision must ‘fly in the face of clearly established legal precedent’ to support a

vacation of the award.” Automated Tracking Sys., Inc. v. Great Am. Ins. Co., 130 Ohio App.3d

238, 244 (9th Dist.1998), quoting Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Jaros, 70 F.3d

418, 421 (6th Cir.1995).

       {¶7}    Appellate review of the common pleas court’s decision to deny a motion to vacate

an arbitration award is also limited. See Warren Educ. Assn. v. Warren City Bd. of Educ., 18

Ohio St.3d 170, 173 (1985). “The substantive merits of the original arbitration award are not

reviewable on appeal.” Ward, 2012-Ohio-4432, at ¶ 9, quoting Lockhart v. American Reserve

Ins. Co., 2 Ohio App.3d 99, 101 (8th Dist.1981). Thus, the pertinent question on review is

whether the common pleas court erred as a matter of law in its order. Bennett, 2007-Ohio-2154,

at ¶ 10, citing Union Twp. Bd. of Trustees v. Fraternal Order of Police, Ohio Valley Lodge No.

112, 146 Ohio App.3d 456, 459 (12th Dist.2001).

           a. Limitation of testimony

       {¶8}    OSW argues that the common pleas court erred when it denied its motion to

vacate the arbitration award because the arbitrators refused to hear evidence pertinent and

material to the controversy.    Specifically, OSW argues that the court did not permit Rick

Shaneyfelt, an OSW inspector, to testify. In support of its motion to vacate, OSW attached an

affidavit from Shaneyfelt, in which he stated:

       I was called as a witness in the arbitration in this matter and was asked questions
       about my recollection of conversations with James and Brandi Ward.
                                                  5


       I was also asked questions about whether or not I remembered the Ward’s
       residence; when asked these questions I was presented with photos of the Ward’s
       residence that I did not recall.

       When the arbitrators heard that I did not remember the pictures of the home they
       did not permit me to testify about the pictures.

       {¶9}    The Wards, in their opposition to OSW’s motion, denied that Shaneyfelt was

prevented from testifying. Instead, the Wards asserted that Shaneyfelt’s testimony was limited

because he had no personal recollection and because OSW ran out of time in presenting its case.

       {¶10} The common pleas court found that “[t]he arbitrators allowed Shaneyfelt to

testify, but limited his testimony.” The court concluded that there was no misconduct on the part

of the arbitrators in their decision to limit Shaneyfelt’s testimony and OSW was not prejudiced

by the limitation. Because it found there was no misconduct in limiting the testimony, the

common pleas court denied OSW’s motion to vacate on this basis.

       {¶11} The record before the court was limited to the motion to vacate, including

Shaneyfelt’s affidavit, and the memorandum in opposition. It did not have a transcript of the

arbitration hearing nor did the arbitrators’ decision discuss the limiting of Shaneyfelt’s

testimony. Our review is limited to whether the common pleas court erred as a matter of law.

See Bennett, 2007-Ohio-2154, at ¶ 10. Given the very limited record to review, we cannot

conclude that the court erred in its decision as a matter of law.

           b. Discovery

       {¶12} OSW argues that the arbitrators improperly permitted the Wards to introduce

evidence that was not turned over to OSW in discovery. Specifically, OSW states that the Wards
                                                6


did not disclose “documents contained in Exhibit B of the Motion to Vacate.”1 OSW further

argues that the arbitrators’ decision to admit this evidence was prejudicial because it “was

deprived of the right to investigate, cross-examine, and rebut the documents introduced as

evidence.” See R.C. 2711.10(C).

       {¶13} The Wards, in their memorandum in opposition, argued that the documents

contained in Exhibit B were either given to them by OSW or were documents/forms that OSW

had in its possession. Therefore, according to the Wards, OSW did not suffer any prejudice.

       {¶14} The common pleas court found that “[OSW] did not specifically identify what

evidence [it] object[s] to the [Wards] introducing, or what prejudice [it] suffered by the

introduction of the evidence.” (Emphasis sic.)       Further, the court found that, because the

documents were created by OSW, it was not deprived of any right to investigate, cross-examine

or rebut the documents. Because OSW had not shown prejudice, the court denied its motion to

vacate based on the argument that the arbitrators improperly admitted evidence.

       {¶15} There is no evidence in the record that OSW ever argued to the common pleas

court that the documents contained in Exhibit B were not in its possession prior to arbitration.

Instead, OSW argued that the Wards did not include these documents in their list of documents

they intended to use at trial. Because there is no evidence of prejudice to OSW, we cannot

conclude that the common pleas court erred in its finding as a matter of law.

           c. Unconscionable award

       {¶16} Lastly, OSW argues that the common pleas court erred in denying its motion to

vacate because the arbitrators’ mistakes resulted in an unjust and unconscionable award.


1
  Exhibit B includes: (1) a sheet entitled “Plaintiffs’ Exhibits & Service Summary,” (2) a sheet
entitled “Service Request Form,” (3) a letter from the Wards to OSW, and (4) an affidavit in
support of attorney fees.
                                                 7


Specifically, OSW argues the arbitrators’ finding that the “work conducted and material supplied

by OSW provided [the] Ward[s] with no benefit whatsoever” is not supported by the evidence

and makes the award “unjust and unconscionable.”

       {¶17} The common pleas court reviewed the arbitrators’ findings and judgment, which

“set[ ] forth their reasons for determining that the work performed by OSW was ultimately of no

benefit to [the Wards].” Upon its review of the arbitrators’ decision, the court found no “evident

mistake.” Upon review, we cannot conclude that the court’s decision was an error as a matter of

law. Accordingly, OSW’s assignment of error is overruled.

                                                III

       {¶18} OSW’s assignment of error is overruled. The judgment of the Summit County

Court of Common Pleas is 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.

       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.
                                          8


      Costs taxed to Appellant.




                                              BETH WHITMORE
                                              FOR THE COURT



BELFANCE, P. J.
CARR, J.
CONCUR.


APPEARANCES:

MICHAEL C. DEJOHN, Attorney at Law, for Appellant.

ESTELLE D. FLASCK, Attorney at Law, for Appellees.
