[Cite as Domestic Linen Supply Co., Inc. v. Executive Court Med. Assocs., Inc., 2017-Ohio-1216.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                      ERIE COUNTY


Domestic Linen Supply Co., Inc.                            Court of Appeals No. E-16-022
dba Domestic Uniform Rental
                                                           Trial Court No. 2015 CV 0746
        Appellant

v.

Executive Court Medical
Associates, Inc., et al.                                   DECISION AND JUDGMENT

        Appellees                                          Decided: March 31, 2017

                                                  *****

        James G. Kozelek, for appellant.

        Christopher M. Marinko, for appellees.

                                                  *****

        JENSEN, P.J.

        {¶ 1} This is an appeal from the judgment of the Erie County Court of Common

Pleas, granting appellees’, Executive Court Medical Associates, Inc. and Graham

Johnson, motion to vacate both an arbitration award in favor of appellant, Domestic
Linen Supply Co., Inc., and the trial court’s judgment confirming the arbitration award.

For the reasons that follow, we reverse.

                         I. Facts and Procedural Background

       {¶ 2} On November 23, 2015, pursuant to R.C. 2711.09,1 appellant filed its

application for an order confirming an arbitration award entered in its favor against

appellees on June 5, 2014. Service of the application was attempted by certified mail on

Executive Court Medical Associates, Inc. at 54 Executive Drive, Norwalk, OH 44857,

and on Graham Johnson at 49 Pawnee Drive, Milan, OH 44846. As to Executive Court

Medical Associates, Inc. a return receipt was received signed by Nikita White. Service

on Graham Johnson was unsuccessful as the certified mail was returned “Not Deliverable

as Addressed.” On November 30, 2015, the trial court entered its order granting

confirmation of the arbitration award.

       {¶ 3} Appellant subsequently began garnishment proceedings. In February 2016,

notice of the attempts at garnishment were returned undeliverable and unable to be

forwarded as to both appellees.

       {¶ 4} Thereafter, on March 3, 2016, appellees moved to vacate both the trial

court’s November 30, 2015 judgment confirming the arbitration award, and the


1
  “At any time within one year after an award in an arbitration proceeding is made, any
party to the arbitration may apply to the court of common pleas for an order confirming
the award. Thereupon the court shall grant such an order and enter judgment thereon,
unless the award is vacated, modified, or corrected as prescribed in sections 2711.10 and
2711.11 of the Revised Code. Notice in writing of the application shall be served upon
the adverse party or his attorney five days before the hearing thereof.” R.C. 2711.09.




2.
arbitration award itself. Appellees alleged that they never received notice of the

arbitration proceedings or the trial court proceedings to confirm the arbitration award. In

support, appellees submitted two affidavits, one from Scott Kaple, D.O., an officer and

shareholder in Executive Court Medical Associates, Inc., and the other from Graham

Johnson, the former business manager of Executive Court Medical Associates, Inc.

Kaple, in his affidavit, stated that Executive Court Medical Associates, Inc. has not done

business at 54 Executive Drive since October 2013. Further, he stated that Nikita White

is not employed by Executive Court Medical Associates, Inc. Likewise, Johnson stated

in his affidavit that he does not reside at 49 Pawnee Drive.2

       {¶ 5} On March 11, 2016, the trial court granted appellees’ motion, and vacated

both the June 5, 2014 arbitration award and the November 30, 2015 judgment confirming

the arbitration award.

       {¶ 6} On March 14, 2016, appellant filed an opposition to appellees’ motion to

vacate, in which it argued that service was proper on both appellees as to the arbitration

proceedings, and proper on Executive Court Medical Associates, Inc. as to the trial court

proceedings. Appellant acknowledged that Johnson was not properly served in the trial

court proceedings to confirm the arbitration award. The evidence submitted with the

March 14, 2016 opposition showed that notice of the arbitration proceedings, the

arbitration award, and the application for confirmation of the award were sent to
2
 Johnson also stated that he has never resided in Michigan and has never had a place of
business in Michigan. Subsequent filings indicate that the notice of arbitration
proceedings was sent to Johnson at 2885 Sanford Avenue SW, Grandville, MI, 49418.




3.
Executive Court Medical Associates, Inc. at 54 Executive Drive, which is the address

listed on the underlying contract and registered with the Ohio Secretary of State.

Appellees replied to appellant’s opposition on March 17, 2016. On April 6, 2016, the

trial court entered its judgment reaffirming that the arbitration award and confirmation of

the arbitration award were properly vacated.

       {¶ 7} Appellant timely appealed the trial court’s March 11, 2016 judgment. It

subsequently moved to amend its appeal to include the trial court’s April 6, 2016

judgment. On May 5, 2016, we denied appellant’s motion to amend, finding that the

March 11, 2016 judgment was a final and appealable order, and thus the April 6, 2016

judgment was void and a nullity.

                                II. Assignments of Error

       {¶ 8} Appellant now asserts three assignments of error for our review:

              1. The trial court lacked jurisdiction to entertain a motion to vacate

       the underlying arbitration award because it was not filed within the

       mandatory three-month period following the arbitration award.

              2. Defendants’ motion does not provide sufficient grounds to vacate

       both the arbitration award and the confirmation award.

              3. The trial court’s decision granting Defendants’ motion to vacate,

       without affording Domestic an opportunity to be heard, cannot stand as a

       matter of law.




4.
                                         III. Analysis

         {¶ 9} We will begin with appellant’s third assignment of error. In that

assignment, appellant contends that the trial court erred when it granted appellees’

motion to vacate the arbitration award and judgment confirming the arbitration award

without affording appellant an opportunity to respond to the motion. We agree.

         {¶ 10} The issues in the underlying case center on (1) whether appellees were

served with notice of the arbitration proceedings, and if not, whether the failure of service

is sufficient grounds to vacate the award under R.C. 2711.10,3 (2) whether appellees were

served with the arbitration award, thereby triggering their obligation to file a motion to

vacate the award within three months after the award is delivered to the parties pursuant



3
    R.C. 2711.10 states,

                 In any of the following cases, the 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) 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.

                (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.




5.
to R.C. 2711.13,4 and (3) whether appellees were served with the application for

confirmation of the arbitration award and the judgment entry confirming the arbitration

award.

         {¶ 11} In this case, appellant’s assignment of error presents a procedural issue.

R.C. 2711.05 provides, “Any application to the court of common pleas under sections

2711.01 to 2711.15, inclusive, of the Revised Code, shall be made and heard in the

manner provided by law for the making and hearing of motions, except as otherwise

expressly provided in such sections.” Civ.R. 6(C) provides that “[u]nless otherwise

provided by these rules, by local rule, or by order of the court, a response to a written

motion, other than a motion that may be heard ex parte, shall be served within fourteen

days after service of the motion, and a movant’s reply may be served within seven days

after service of the response to the motion.”

         {¶ 12} Here, appellees filed their motion on March 3, 2016. Eight days later,

before appellant had an opportunity to respond, the trial court granted appellees’ motion,

and vacated its judgment and the arbitration award. This is error. See Gibson-Myers &



4
  R.C. 2711.13 provides, in part, “Notice of a motion to vacate, modify, or correct an
award must be served upon the adverse party or his attorney within three months after the
award is delivered to the parties in interest, as prescribed by law for service of notice of a
motion in an action.” Notably, “To decide when an arbitration decision has been
delivered for purposes of R.C. 2711.13, courts use the post-mark date, not the date the
decision was actually received.” Citibank S.D., N.A. v. Wood, 169 Ohio App.3d 269,
2006-Ohio-5755, 862 N.E.2d 576, ¶ 26 (2d Dist.2006), citing Girard v. AFSCME Ohio
Council 8, Local Union 3356, 11th Dist. Trumbull No. 2003-T-0098, 2004-Ohio-7230,
¶ 14-16.




6.
Assocs. v. Pearce, 9th Dist. Summit No. 19358, 1999 Ohio App. LEXIS 5010 (Oct. 27,

1999) (trial court erred when it granted, four days later, a motion to compel production of

certain documents without affording the other party time to respond); Cleveland v. Laylle,

8th Dist. Cuyahoga No. 75196, 1999 Ohio App. LEXIS 5571 (Nov. 24, 1999) (trial court

committed reversible error when it granted a motion to suppress two days after it was

filed and before the other party had an opportunity to respond).

       {¶ 13} Appellees, in response, argue that any error by the trial court in prematurely

granting their motion to vacate was harmless. In support, appellees contend that the

affidavit and supporting documents submitted by appellant in its March 14, 2016

opposition do not demonstrate that appellees received notice of the arbitration award or

the confirmation of the arbitration award. However, we find that it is not proper to pass

upon those documents for the first time on appeal because,

       while an appellate court may decide an issue on grounds different from

       those determined by the trial court, the evidentiary basis upon which the

       court of appeals decides a legal issue must have been adduced before the

       trial court and have been made a part of the record thereof. A court of

       appeals cannot consider the issue for the first time without the trial court

       having had an opportunity to address the issue. State v. Peagler, 76 Ohio

       St.3d 496, 501, 668 N.E.2d 489 (1996).




7.
       {¶ 14} Therefore, we hold that the trial court committed reversible error in

granting appellees’ motion to vacate without affording appellant an opportunity to

respond.

       {¶ 15} Accordingly, appellant’s third assignment of error is well-taken.

       {¶ 16} In appellant’s first and second assignments of error, it raises the substantive

arguments presented in its March 14, 2016 opposition, namely that appellees did not

timely file their motion to vacate the arbitration award, and that their motion does not

demonstrate that they are entitled to have the award vacated under R.C. 2711.10. As

stated above, we find that it is improper to address those issues for the first time without

the trial court having had an opportunity to consider them. Therefore, we find

consideration of appellant’s first and second assignments of error to be premature, and

thus not well-taken.

                                      IV. Conclusion

       {¶ 17} For the foregoing reasons, the judgment of the Erie County Court of

Common Pleas is reversed. The matter is remanded to the trial court for consideration of

appellant’s March 14, 2016 opposition and appellees’ March 17, 2016 reply, as well as

any further briefing and/or hearings that the trial court deems necessary. Appellees are

ordered to pay the costs of this appeal pursuant to App.R. 24.

                                                                        Judgement reversed.




8.
                                                         Domestic Linen Supply Co., Inc.
                                              v. Executive Court Med. Assocs., Inc., et al.
                                                                      C.A. No. E-16-022




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       ____________________________
                                                       JUDGE
Thomas J. Osowik, J.
                                               ____________________________
James D. Jensen, P.J.                                  JUDGE
CONCUR.
                                               ____________________________
                                                       JUDGE




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