[Cite as Matheny v. Norton, 2012-Ohio-2283.]


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

NICHOLAS MATHENY, et al.                             C.A. No.       26166

        Appellees

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
CITY OF NORTON, et al.                               COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellants                                   CASE No.   CV 2011 01 0603

                                DECISION AND JOURNAL ENTRY

Dated: May 23, 2012



        BELFANCE, Judge.

        {¶1}    Defendants-Appellants City of Norton (“the City”) and Mayor David L. Koontz

appeal the decision of the Summit County Court of Common Pleas granting the motion of

Plaintiffs-Appellees to compel arbitration. For the reasons set forth below, we reverse.

                                                I.

        {¶2}    In 2010, the City and Plaintiff-Appellee Ohio Patrolmen’s Benevolent

Association (“OPBA”) entered into a collective bargaining agreement concerning the Norton

Police Department and its employees. Plaintiff-Appellee Nicholas Matheny was a full-time

police patrolman with the City at that time. Full-time police patrolmen are subject to a one-year

probationary period. Mr. Matheny was terminated on October 27, 2010. The OPBA filed a

grievance on behalf of Mr. Matheny, as provided for in the collective bargaining agreement, but

the City refused to process the grievance. OPBA, on behalf of Mr. Matheny, attempted to
                                                 2


initiate arbitration proceedings, also based upon the collective bargaining agreement, but the City

refused to submit to arbitration.

        {¶3}   Ultimately, Mr. Matheny and OPBA filed a complaint and petition to compel

arbitration pursuant to R.C. 2711.03. Both sides filed briefs, affidavits, and evidentiary materials

on the issues. The parties dispute whether, at the time of termination, Mr. Matheny was still

under the probationary period; the City and Mayor Koontz assert that Mr. Matheny’s

probationary period would have expired subsequent to his termination, while Mr. Matheny and

the OPBA assert that Mr. Matheny’s probationary period expired prior to his termination. The

City and Mayor Koontz maintained, that because Mr. Matheny was still a probationary employee

when he was terminated, he could not avail himself of the grievance and arbitration provisions of

the collective bargaining agreement. Mr. Matheny and the OPBA asserted that Mr. Matheny was

not a probationary employee when he was terminated and, thus, could make use of the grievance

and arbitration provisions. There seems to be no dispute that, if Mr. Matheny was not a

probationary employee at the time of his termination, he could challenge his termination via

arbitration.

        {¶4}   Without holding a hearing specifically on the petition to compel, the trial court

issued an entry “[o]rder[ing] the parties to submit the dispute as to Mr.[] M[a]theny’s status as

either a probationary or non-probationary employee, and thus his ability to proceed under the

CBA in regards to his termination, to Arbitration.” The City and Mayor Koontz have appealed,

raising a single assignment of error for our review.
                                                  3


                                                 II.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED WHEN IT ORDERED THAT THE
       ARBITRABILITY OF APPELLEES’ GRIEVANCE MUST BE REFERRED TO
       ARBITRATION FOR DETERMINATION.

       {¶5}    The City and Mayor Koontz assert in their sole assignment of error that the trial

court erred in ordering the parties to arbitration because the trial court failed to hold a hearing on

the petition to compel and because the trial court erred in concluding that the arbitrator should

decide Mr. Matheny’s status, as opposed to the trial court. As this Court concludes that the trial

court was required to have a hearing on the petition to compel, we do not address the second

portion of the City’s and Mayor Koontz’ argument.

       {¶6}    “Revised Code Chapter 2711 authorizes direct enforcement of arbitration

agreements through an order to compel arbitration pursuant to R.C. 2711.03, and indirect

enforcement of such agreements pursuant to an order staying trial court proceedings under R.C.

2711.02.” Boggs Custom Homes, Inc. v. Rehor, 9th Dist. No. 22211, 2005-Ohio-1129, ¶ 15,

citing Maestle v. Best Buy Co., 100 Ohio St.3d 330, 2003-Ohio-6465, ¶ 14. Mr. Matheny and

OPBA sought relief only pursuant to R.C. 2711.03.

       {¶7}    R.C. 2711.03(A) provides that:

       The party aggrieved by the alleged failure of another to perform under a written
       agreement for arbitration may petition any court of common pleas having
       jurisdiction of the party so failing to perform for an order directing that the
       arbitration proceed in the manner provided for in the written agreement. * * *
       The court shall hear the parties, and, upon being satisfied that the making of the
       agreement for arbitration or the failure to comply with the agreement is not in
       issue, the court shall make an order directing the parties to proceed to arbitration
       in accordance with the agreement.

(Emphasis added.)
                                                    4


       {¶8}    This Court has repeatedly stated that “pursuant to the plain language of R.C.

2711.03, a trial court is explicitly required to hold a hearing on a motion to compel arbitration.”

Boggs Custom Homes at ¶ 16; see also Biondi, M.D. v. Oregon Homes, LLC, 9th Dist. No.

25875, 2012-Ohio-1714, ¶ 6; Chase Home Fin., LLC v. McDowell, 9th Dist. No. 24889, 2010-

Ohio-633, ¶ 9; Krakora v. Superior Energy Sys., 9th Dist. No. 08CA009423, 2009-Ohio-401, ¶

5; Blubaugh v. Fred Martin Motors, Inc., 9th Dist. No. 23793, 2008-Ohio-779, ¶ 8; Brunke v.

Ohio State Home Srvs, Inc., 9th Dist. No. 06CA008947, 2007-Ohio-3114, ¶ 16. This Court has

further held that “[w]hen the record indicates that the trial court did not conduct a hearing, this

Court will reverse without addressing the merits of the trial court’s decision.”          (Internal

quotations and citations omitted.) Biondi at ¶ 6.

       {¶9}    While the record indicates that the trial court did have a pretrial hearing in this

case, there is nothing in the record to indicate that the merits of Mr. Matheny’s and OPBA’s

petition to compel were discussed or addressed. Instead, from the record, it appears that the

pretrial was more along the lines of a typical pretrial hearing where dates and deadlines were

discussed. Accordingly, pursuant to the established precedent of this court, we sustain the City’s

and Mayor Koontz’ assignment of error in part and reverse and remand the matter to the trial

court so that it can have a hearing on the petition to compel.

                                                III.

       {¶10} In light of the foregoing, we reverse the judgment of the Summit County Court of

Common Pleas and remand the matter for a hearing.

                                                                               Judgment reversed
                                                                             and cause remanded.
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       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.

       Costs taxed to Appellees.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT



CARR, P. J.
DICKINSON, J.
CONCUR.


APPEARANCES:

PAUL L. JACKSON and KAREN D. ADINOLFI, Attorneys at Law, for Appellant.

JOSEPH W. DIEMERT, JR., THOMAS M. HANCULAK, and DANIEL A. POWELL,
Attorneys at Law, for Appellee.

MAX RIEKER, Attorney at Law, for Appellee.
