[Cite as Bilbrey-Jergens J.V., L.L.C. v. Lamanna's Lawn & Landscaping, 2014-Ohio-2090.]




         IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

BILBREY-JERGENS J.V., LLC                               :

        Plaintiff-Appellant                             :        C.A. CASE NO.            25981

v.                                                      :        T.C. NO.      12CV5675

LAMANNA’S LAWN & LANDSCAPING                            :         (Civil appeal from
                                                                  Common Pleas Court)
        Defendant-Appellee                              :

                                                        :

                                            ..........

                                          OPINION

                        Rendered on the          16th       day of          May            , 2014.

                                            ..........

RICHARD L. CARR, Atty. Reg. No. 0003180, 110 N. Main Street, Suite 1000, Dayton,
Ohio 45402
      Attorney for Plaintiff-Appellant

MARTINA M. DILLON, Atty. Reg. No. 0066942 and J. JOSEPH WALSH, Atty. Reg. No.
0003545, 201 E. Sixth Street, Dayton, Ohio 45402
      Attorneys for Defendant-Appellee

                                            ..........

FROELICH, P.J.

                {¶ 1} Bilbrey-Jergens J.V., LLC appeals from a judgment of the
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Montgomery County Court of Common Pleas, which granted judgment to Lamanna’s Lawn

& Landscaping (“Lamanna”) in the amount of $37,720.52, plus costs. Bilbrey-Jergens

claims that the trial court erred in confirming an arbitration award in Lamanna’s favor. For

the following reasons, the trial court’s judgment will be affirmed.

                            I. Factual and Procedural History

       {¶ 2}     In March 2010, Bilbrey-Jergens entered into a subcontract agreement with

Lamanna whereby Lamanna, the subcontractor, would provide landscaping, irrigation, paver

installation and other work in connection with Five Rivers MetroPark’s Riverscape

MetroParks Phase III – Bike Hub and Plaza project. As part of the agreement, Lamanna

agreed to comply with “all federal, state and local laws, ordinances and regulations (the

Laws) applicable to the Subcontract Work.” The contract included a dispute resolution

section, which set forth three progressive steps to resolve disputes between the parties: direct

discussions, mediation, and binding arbitration.

       {¶ 3}    According to Bilbrey-Jergens’s complaint, midway through the project, the

construction manager ordered Lamanna off the project and Bilbrey-Jergens complied with

that directive. Thereafter, a dispute arose between Bilbrey-Jergens and Lamanna as to

whether Lamanna was entitled to additional compensation for work and materials that it had

furnished and whether Bilbrey-Jergens was entitled to damages for breach of contract by

Lamanna.

       {¶ 4}     The matter eventually proceeded to arbitration, pursuant to the subcontract

agreement.     In June 2012, the parties signed a “Stipulation Regarding Arbitration,”

establishing how arbitration would be conducted.         The arbitrator subsequently held a
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two-day hearing, inspected the job location, and reviewed documentary evidence and

post-arbitration briefs from the parties.     On July 19, 2012, the arbitrator awarded

$37,720.52 for material costs to Lamanna.          The arbitrator further determined that

Bilbrey-Jergens was not entitled to any damages, finding that “the very poor manner in

which [a Bilbrey-Jergens employee] ran the project was the cause of any damages suffered

by Bilbrey-Jergens.” As part of his conclusions and reasoning, the arbitrator found that the

contract between Bilbrey-Jergens and Lamanna was “valid and executed.”

       {¶ 5}    On August 7, 2012, Bilbrey-Jergens filed a complaint in the common pleas

court, alleging that the arbitration award was “in violation of law” because Lamanna was not

a properly licensed nursery stock dealer under R.C. 927.51 and R.C. 927.53; a violation of

the nursery stock statute is a third-degree misdemeanor for a first offense and a

second-degree misdemeanor for subsequent offenses.            R.C. 927.72; R.C. 927.99.

Bilbrey-Jergens sought (1) a declaratory judgment on whether the arbitration award was

enforceable and (2) an order under R.C. 2711.10(D) vacating the arbitration award. On

September 21, 2012, Lamanna filed motions to dismiss the complaint, pursuant to Civ.R.

12(B)(6), and to confirm the arbitration award.

       {¶ 6}     The matter was referred to a magistrate, and the parties submitted briefs on

the motions.    Bilbrey-Jergens’s memorandum in opposition to Lamanna’s motion to

confirm the arbitration award included an affidavit from David Bilbrey, president of Bilbrey

Construction Company, which indicated that Lamanna’s scope of work under the parties’

agreement required a nursery stock dealer’s license. Bilbrey stated that he inquired of the

Ohio Department of Agriculture whether Lamanna was licensed; the Department of
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Agriculture had no record that Lamanna was ever licensed under the nursery stock statute.

The affidavit further indicated that Antonio Lamanna admitted during his testimony at the

arbitration hearing that his company was unlicensed.

       {¶ 7}    On April 3, 2013, the magistrate issued a decision on the motion to dismiss

and on whether the arbitration award was enforceable.              The magistrate dismissed

Bilbrey-Jergens’s declaratory judgment claim on the ground that R.C. Chapter 2711

provided the exclusive means for challenging an arbitration award.               The magistrate

concluded that Bilbrey-Jergens’s second claim was properly construed as a motion to vacate

the arbitration award under R.C. 2711.13(D). The magistrate agreed with Bilbrey-Jergens

that the arbitrator exceeded his authority by enforcing an “illegal contract.”   The magistrate

found, for purposes of its decision, that Lamanna was a “dealer” under R.C. 927.53 and that

Lamanna sold nursery stock to Bilbrey-Jergens under the parties’ contract. The magistrate

concluded that, because Ohio law required Lamanna to be licensed and it was not, the

contract itself was illegal. The magistrate reasoned:

       To enforce the contract between the parties would be to subvert clear public

       policy and would sanction criminal conduct by Lamanna’s. This is not to

       say that Lamanna’s may not ultimately recover the amount awarded by the

       arbitrator on a quasi-contractual theory such as unjust enrichment.          The

       Magistrate simply holds that the Arbitrator herein exceeded his powers by

       enforcing an illegal contract and sanctioning an illegal act, albeit arguably a

       de minimus illegal act.

The magistrate thus granted the motion to vacate the arbitration award and denied the motion
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to confirm the award. Lamanna filed objections to the magistrate’s ruling.

       {¶ 8}     On October 22, 2013, the trial court affirmed in part and overruled in part

the magistrate’s decision. The court affirmed the magistrate’s determination that count two

of the complaint was sufficient to constitute a motion to vacate the arbitration award and,

thus, the trial court had jurisdiction to consider that claim.      However, the trial court

sustained Lamanna’s objection to the magistrate’s denial of Lamanna’s motion to confirm

the arbitration award and the grant of Bilbrey-Jergens’s motion to vacate the award. Citing

Brust v. McCarty, 3d Dist. Union No. 14-83-21, 1985 WL 9060 (Jan. 17, 1985), the trial

court found that the parties’ contract was not void, reasoning:

               In the case at bar, O.R.C. Section 927.53 does not explicitly state that

       contracts made in violation of it are void.        Further, the penalty is de

       minimus. Non-compliance is a misdemeanor of the third degree for the first

       offense. Finally, under O.R.C. Section 927.68, the Director of Agriculture

       has the power to remove any nursery stock held for sale by an unlicensed

       dealer. Thus, the Director has broad powers to halt any continued violations

       of O.R.C. Section 927.53.

Because there was “no clear legislative intent” that contracts made in violation of R.C.

927.53 were void and the parties willingly entered into an agreement mandating binding

arbitration, the trial court held that the magistrate erred in finding that the arbitrator

exceeded his powers by ruling in favor of Lamanna. The court confirmed the arbitration

award and denied the motion to vacate it.

       {¶ 9}    On October 24, 2013, the trial court entered judgment in favor of Lamanna
                                                                                             6

and against Bilbrey-Jergens in the amount of $37,720.52, plus costs.            Bilbrey-Jergens

appeals from the trial court’s judgment.

                       II. Was the Arbitration Award Unenforceable

                                as Contrary to Public Policy?

       {¶ 10} Bilbrey-Jergens’s sole assignment of error states:

       The Lower Court erred by affirming an arbitral award which was contrary to

       public policy, being based on criminal conduct.

       {¶ 11}      “Appellate review of an arbitration award is confined to an evaluation of

the judicial order confirming, modifying, or vacating the award; we do not review the merits

of the arbitrator’s award.” Sicor Secs., Inc. v. Albert, 2d Dist. Montgomery No. 22799,

2010-Ohio-217, citing, e.g., Warren Edn. Assn. v. Warren City Bd. of Edn., 18 Ohio St.3d

170, 174, 480 N.E.2d 456 (1985). Because arbitration is a creature of private contract,

courts must ignore errors of fact or law by the arbitrator. Piqua v. Fraternal Order of

Police, Ohio Labor Council, Inc., 185 Ohio App.3d 496, 2009-Ohio-6591, 924 N.E.2d 876,

¶ 18 (2d Dist.).

       Judicial review of arbitration awards is limited in order to encourage parties

       to resolve their disputes with arbitration. This has long been public policy in

       Ohio. The state and courts encourage arbitration because it “provides parties

       with a relatively speedy and inexpensive method of conflict resolution and

       has the additional advantage of unburdening crowded court dockets.”

       Appellate courts must ensure that trial courts, the front line of arbitral review,

       do not exceed the scope of their review authority. Otherwise, “[a]rbitration,
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       which is intended to avoid litigation, would instead merely become a system

       of ‘junior varsity trial courts’ offering the losing party complete and rigorous

       de novo review.” Thus, judicial review of an arbitrator’s award is strictly

       limited, “and where a reviewing court exceeds the permissible scope of

       review such judgment will be reversed.”

(Internal citations omitted.) FOP, Ohio Labor Council, Inc. at ¶ 16. We review the trial

court’s order de novo. Id. at ¶ 15; United Ohio Ins. Co. v. Central Mut. Ins. Co., 2d Dist.

Darke No. 2010 CA 21, 2011-Ohio-2432, ¶ 15.

       {¶ 12}     “The grounds upon which a trial court may vacate an arbitrator’s award are

few and narrow.” FOP, Ohio Labor Council, Inc. at ¶ 19, citing Dayton v. Internatl. Assoc.

of Firefighters, 2d Dist. Montgomery No. 21681, 2007-Ohio-1337. R.C. 2711.10 identifies

four grounds upon which a common pleas court may vacate an arbitration award: fraud,

corruption, misconduct, and the arbitrator exceeded his or her powers. Bilbrey-Jergens

relies upon R.C. 2711.10(D), which authorizes a common pleas court to vacate an arbitration

award when “[t]he arbitrators exceeded their powers, or so imperfectly executed them that a

mutual, final, and definite award upon the subject matter submitted was not made.”

       {¶ 13}     The essential function of R.C. 2711.10(D) is “to ensure that the parties get

what they bargained for by keeping the arbitrator within the bounds of the authority they

gave him.” FOP, Ohio Labor Council, Inc. at ¶ 21.

                Like arbitral review generally, a trial court’s inquiry into whether an

       arbitrator exceeded his powers under the parties' agreement is limited.

       Paragraph (D) is not violated if “the arbitrator’s award draws its essence from
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        the * * * agreement and is not unlawful, arbitrary or capricious.” Generally, if

        the arbitrator’s award is based on the language and requirements of the

        agreement, the arbitrator has not exceeded his powers.

                 ***

                 An arbitrator’s award draws its essence from an agreement when

        (1) the award does not conflict with the express terms of the agreement and

        (2) the award has rational support or can be rationally derived from the terms

        of the agreement.

(Citations omitted.) FOP, Ohio Labor Council, Inc. at ¶ 22, ¶ 24.

        {¶ 14} Bilbrey-Jergens asserts that the arbitrator exceeded his authority by awarding

damages to Lamanna, because the enforcement of the award is contrary to public policy.

        {¶ 15}    “[V]acating an arbitration award pursuant to public policy is a narrow

exception to the ‘hands off’ policy that courts employ in reviewing arbitration awards and

‘does not otherwise sanction a broad judicial power to set aside arbitration awards as against

public policy.’” Southwest Ohio Regional Transit Auth. v. Amalgamated Transit Union,

Local 627, 91 Ohio St.3d 108, 112, 742 N.E.2d 630 (2001). “A court may refuse to enforce

an [arbitration] award when specific terms in the contract would violate public policy, but

there is no broad power to set aside an arbitration award as against public policy.” Board of

County Commrs. v. L. Robert Kimball and Assoc., 860 F.2d 683, 686 (6th Cir.1988), cited

by Dayton v. AFSCME, Ohio Council 8, 2d Dist. Montgomery No. 21092, 2005-Ohio-6392,

¶ 23.

        {¶ 16}    In Southwest Ohio Regional Transit Auth., the regional transit authority
                                                                                             9

argued that it was against public policy to reinstate a safety-sensitive employee who was

terminated for testing positive for a controlled substance. Although there were Ohio and

federal laws prohibiting the use of controlled substances by transportation employees and

requiring drug testing, the supreme court held that “Ohio has no dominant and well-defined

public policy that renders unlawful an arbitration award reinstating a safety-sensitive

employee who was terminated for testing positive for a controlled substance, assuming that

the award is otherwise reasonable in its terms for reinstatement.” Id. at 115.

       {¶ 17}     In determining that the arbitrator’s award was enforceable, the trial court

cited Brust v. McCarty, 3d Dist. Union No. 14-83-21, 1985 WL 9060 (Jan. 17, 1985), which

concerned whether a farmer was required to pay for the bushels of soybean seeds he received

from an unlicensed seller.     It was undisputed that the plaintiff-seller transferred 1,067

bushels of soybean seed to the defendant-farmer, the seed was accepted and used by the

defendant, but the defendant failed to pay for the seed. The farmer asserted that any

agreement was void, because the seller was not properly licensed under Ohio’s statutory

scheme regulating the sale of agricultural seed.

       {¶ 18}    The Third District reviewed the entire statutory scheme to determine

whether the legislature intended, “‘in addition to imposing express penalties for the violation

of the law, to render void any contract based on the prohibited act.’” Id. at *4, quoting

Warren People’s Market Co. v. Corbett and Sons, 114 Ohio St. 126, 151 N.E. 51 (1926),

paragraph one of the syllabus. The appellate court noted the general rule that

       a contract founded on an act forbidden by a statute under a penalty is void,

       although it be not expressly declared to be so, * * *.     But in applying the
                                                                                               10

       rule many courts have excepted from its operation one class of cases, viz.,

       when the statutory prohibition is found in a statute enacted for the purpose of

       raising revenue or the regulation of traffic or business, when, unless it is

       manifestly the intention of the statute to make the contract void, the court will

       treat the contract as valid.

Id., quoting Warren People’s Market at 140-141. The Third District considered four factors

in determining that the parties’ agreement was not void: (1) the absence of a specific

statement in the act that such contracts are void; (2) the penalty provision imposed a minimal

penalty (a fine); (3) the title of the act indicated that it was concerned with the regulation and

licensing of the sale of agricultural seed, not the illegality of sales; and (4) the director of

agriculture had broad powers to enforce the terms of the act and halt any continued violation.

       {¶ 19} Although Brust predates Southwest Ohio Regional Transit Auth., the

considerations used by the Third District (and the trial court) are instructive in determining

whether Ohio has a “dominant and well-defined public policy that renders unlawful an

arbitration award” in favor of Lamanna. Applying these considerations, we agree with the

trial court’s determination that the arbitrator’s award did not violate public policy.

       {¶ 20} At the outset, the terms of the subcontract agreement are lawful.              The

agreement provided that the subcontractor, Lamanna, would provide all landscaping,

irrigation, site furnishings, pavers, and installation of a living roof. Lamanna was required

to obtain any necessary permits and licenses and to comply with all federal, state, and local

laws. Unlike, for example, an agreement to purchase proscribed drugs, there was nothing

inherently illegal about the nature of the parties’ agreement. The contract was allegedly
                                                                                             11

unlawful because Lamanna was not a licensed dealer under R.C. 927.51 and, thus, could not

lawfully perform the contract. (We will assume, for purposes of this appeal, that Lamanna

was a “dealer,” as defined by R.C. 927.51.)

       {¶ 21}    In Morrow Cty. Airport Auth. v. Whetstone Flyers, Ltd., 112 Ohio St.3d

419, 2007-Ohio-255, 860 N.E.2d 733, the Ohio Supreme Court addressed whether a contract

was void when one of the parties entered into the agreement in violation of R.C.

2921.42(A)(1), which prohibited public officials from “[a]uthoriz[ing], or employ[ing] the

authority or influence of his office to secure authorization of any public contract in which he,

a member of his family, or any of his business associates has an interest.” A violation of

R.C. 2921.42(A)(1) was a felony. The supreme court held that, in the absence of a statutory

provision to the contrary, a contract was not void, even though it was entered into in

violation of R.C. 308.04 and R.C. 2921.42(A)(1). (After the supreme court’s ruling, the

Ohio legislature added a provision that contracts entered in violation of R.C. 2921.42 are

“void and unenforceable.” R.C. 2921.42(H).)

       {¶ 22} R.C. 927.51 through R.C. 927.71 concerns nursery stock; it is not part of the

criminal code. Under those provisions, the director of agriculture is granted broad authority

to adopt rules to effectuate nursery stock statutes; to revoke, suspend, or refuse to issue any

nursery certificate or dealer’s license for any violations of the statutes or rules; and to

publish reports describing nursery inspection and pest control operations authorized by the

nursery stock statutes. R.C. 927.52. An employer may be held responsible for the acts of

an employee that violate R.C. 927.51 to R.C. 927.71. R.C. 927.72(B). The nursery stock

provisions include a criminal penalty for violations of the act; the offense is a petty offense
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(third-degree misdemeanor for a first offense and a second-degree misdemeanor for

subsequent offenses). R.C. 927.99. Nothing in the nursery stock statutes states that a

violation of those provisions results in a contract being void.

       {¶ 23} Upon review of nursery stock provisions, we conclude that Ohio has no

dominant and well-defined public policy that renders unlawful an arbitration award that

grants damages to a subcontractor/landscaper for breach of the parties’ subcontract

agreement, even though the subcontractor’s conduct may have violated R.C. 927.53. The

trial court did not err in confirming the arbitrator’s award and denying Bilbrey-Jergens’s

motion to vacate the award.

       {¶ 24} The assignment of error is overruled.

                                       III. Conclusion

       {¶ 25} The trial court’s judgment will be affirmed.



                                          ..........

DONOVAN, J. and WELBAUM, J., concur.

Copies mailed to:

Richard L. Carr
Martina M. Dillon
J. Joseph Walsh
Hon. Barbara P. Gorman
