[Cite as Parks v. Burns , 2012-Ohio-3229.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                          JUDGES:
ROBERT PARKS                                     :        Hon. Patricia A. Delaney, P.J.
                                                 :        Hon. W. Scott Gwin, J.
                            Plaintiff-Appellee   :        Hon. Julie A. Edwards, J.
                                                 :
-vs-                                             :
                                                 :        Case No. 2012-CA-00023
MARK BURNS                                       :
                                                 :
                         Defendant-Appellant     :        OPINION

-vs-

ACP OHIO, INC.

                         Third-Party Defendant
                         Appellee



CHARACTER OF PROCEEDING:                             Civil appeal from the Stark County Court of
                                                     Common Pleas, Case No. 2011-CV-02549

JUDGMENT:                                            Affirmed



DATE OF JUDGMENT ENTRY:                              July 16, 2012

APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

ROBERT MCNAMARA                                      DAVID K. SCHAFFNER
MCNAMARA, DEMCYZK CO. LP.A.                          Schaffner Law Offices, Co., L.P.A.
12370 Cleveland Avenue N.W.                          132 Fair Avenue N.W.
Box 867                                              New Philadelphia, OH 44663
Uniontown, OH 44685


SIDNEY N. FREEMAN
12370 Cleveland Ave. N.W.
Box 867
Uniontown, OH 44685
[Cite as Parks v. Burns , 2012-Ohio-3229.]


Gwin, J.

        {¶1}     Defendant Mark Burns appeals a judgment of the Court of Common Pleas

of Stark County, Ohio, which overruled his motion to stay or dismiss pending arbitration.

Appellees are Plaintiff Robert Parks and Third Party Defendant ACP, Inc. dba Ohio

Pools. Burns assigns a single error to the trial court:

        {¶2}     “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

DENYING DEFENDANT-APPELLANT’S MOTION TO STAY OR DISMISS PENDING

ARBITRATION IN THE MATTER.”

        {¶3}     The record indicates appellee Robert Parks filed a complaint in Canton

Municipal Court against appellant Mark Burns for $1,260.00 due on account. Burns filed

an answer and a third-party complaint against appellee ACP Ohio, Inc. dba Ohio Pools,

hereinafter “Ohio Pools”. Because the damages claimed in the third-party complaint

exceeded the monetary jurisdiction of the Municipal Court, the court certified the matter

to the Court of Common Pleas.

        {¶4}     The Common Pleas Court entered an order setting the first pre-trial for

September 8, 2011, a final pre-trial for January 5, 2012, and the trial date for January

30, 2012 on a stand-by basis.                 The court directed the parties to file any briefs,

depositions, or proposed jury instructions not later than one week before trial, and to

complete all discovery no later than one week before the final pre-trial.             The court

ordered Parks to identify his expert no later than the first pre-trial, and, Burns to identify

his within 30 days thereafter.               The court also ordered the parties to make their

witnesses available for deposition no later than one week after the close of discovery.
Stark County, Case No. 2012-CA-00023                                                          3


       {¶5}    On September 8, 2011, the court referred the matter to mediation. At the

mediation, the parties agreed to continue the mediation so a third-party could perform

an inspection of the pool. On December 29, 2011, Parks filed a trial brief with the court.

On January 9, 2012, the trial court again referred the matter to mediation, scheduled for

January 23, 2012. On January 19, 2012, Parks identified his expert witness and filed

his witness list. On January 27, 2012, Burns filed the motion for arbitration which is the

subject of this appeal.

       {¶6}    In Church v. Fleishour Homes, 172 Ohio App. 3d 205, 2007-Ohio-1806,

874 N.E. 2d 795, this court found the question of whether a party has waived the right to

arbitration is a matter directed to the sound discretion of the trial court. Church ¶ 79.

We found the trial court must determine, based upon the totality of the circumstances,

whether the party seeking arbitration has acted inconsistently with his or her right to

arbitrate. Id., ¶ 80, citation deleted. We set out four factors which the trial court should

consider in order to determine whether a party’s actions were inconsistent with

arbitration:

       {¶7}    (1) Any delay in the requesting party’s demand to arbitrate by means of a

motion to stay judicial proceedings and for an order compelling arbitration;

       {¶8}    (2) The extent of the requesting party’s participation in the litigation prior to

the motion to stay the judicial proceeding, including discovery and dispositive motions;

       {¶9}    (3) Whether the requesting party invoked the jurisdiction of the court by

filing a counterclaim or third-party complaint without asking for a stay of proceedings;

and;
Stark County, Case No. 2012-CA-00023                                                    4


       {¶10} (4) Whether the non-requesting party has been prejudiced by the

requesting party’s inconsistent acts. Id., citations deleted.

       {¶11} The court cited Church, and found Burns knew of his right to arbitrate

because the contract contained an express provision for arbitration. The court found

the complaint was filed on July 19, 2011, but Burns delayed asserting his right to

arbitration until January 27, 2012. The court found Burns had actively participated in

the litigation by attending pre-trials, participating in two mediations, and engaging in

discovery.

       {¶12} The court found Burns invoked the jurisdiction of the court by filing a third

party complaint without asking for a stay pending arbitration, and noted it was the third-

party complaint that resulted in the matter being transferred from the municipal court.

Finally, the court found the non-moving party had been prejudiced by the delay in

requesting a stay pending arbitration because of the timing of the request. The

appellees were prepared for trial, had filed a trial brief, and had engaged an expert

witness for trial.

       {¶13} Burns argues appellees did not strictly comply with the trial court’s orders

regarding discovery, but he did not raise this issue in his motion or assert to the trial

court that he was unable to proceed with the trial because of any action or tardiness of

appellee.

       {¶14} Our review of the record leads us to conclude the trial court did not abuse

its discretion in finding appellant waived his right to arbitration.

       {¶15} The assignment of error is overruled.
Stark County, Case No. 2012-CA-00023                                              5


      {¶16} For the foregoing reasons, the judgment of the Court of Common Pleas, of

Stark County, Ohio, is affirmed.

By Gwin, J.,

Delaney, P.J., and

Edwards, J., concur




                                          _________________________________
                                          HON. W. SCOTT GWIN


                                          _________________________________
                                          HON. PATRICIA A. DELANEY


                                          _________________________________
                                          HON. JULIE A. EDWARDS



WSG:clw 0613
               IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                              FIFTH APPELLATE DISTRICT


ROBERT PARKS                                 :
                                             :
                                             :
                                             :
                        Plaintiff-Appellee   :
                                             :
                                             :
-vs-                                         :       JUDGMENT ENTRY
                                             :
MARK BURNS                                   :
                                             :
                                             :
                     Defendant-Appellant     :       CASE NO. 2012-CA-00023

-vs-

ACP OHIO, INC.

                   Third-Party Defendant
                   Appellee



       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas, of Stark County, Ohio, is affirmed. Costs to appellant.




                                                 _________________________________
                                                 HON. W. SCOTT GWIN


                                                 _________________________________
                                                 HON. PATRICIA A. DELANEY


                                                 _________________________________
                                                 HON. JULIE A. EDWARDS
