[Cite as Ohio Farmers Ins. Co. v. Akron, 2011-Ohio-3569.]


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

OHIO FARMERS INSURANCE                                      C.A. Nos.   25642
COMPANY                                                                 25725

        Appellant
                                                            APPEAL FROM JUDGMENT
        v.                                                  ENTERED IN THE
                                                            COURT OF COMMON PLEAS
CITY OF AKRON                                               COUNTY OF SUMMIT, OHIO
                                                            CASE Nos. CV 2010 01 0324
        Appellee                                                       CV 2006 08 5230

                                DECISION AND JOURNAL ENTRY

Dated: July 20, 2011



        WHITMORE, Judge.

        {¶1}    In these consolidated appeals, the City of Akron appeals the order of the Summit

County Court of Common Pleas that confirmed an arbitration award in favor of Ohio Farmers

Insurance. Ohio Farmers appeals an order that dismissed another application to confirm the

same arbitration award for lack of jurisdiction. With respect to Akron’s appeal, this Court

affirms. Because we affirm the trial court’s judgment with respect to Akron’s appeal, Ohio

Farmers’ appeal is moot.

        {¶2}    Akron and Ohio Farmers were two of the parties to a lawsuit filed in 2006. In

2008, before the matter could be tried, they agreed to submit the dispute to binding arbitration.

They asked the trial court to “preserve the case upon the active docket to ensure that the matter

[was] concluded consistent with” four conditions. The first condition addressed the scope of

testimony, and the second, third, and fourth related to the timing of the arbitration hearing and

award. On January 20, 2009, the arbitration panel rendered an award of $1,045,699.00 to Ohio
                                                2


Farmers. Three days later, Ohio Farmers filed a notice in the underlying trial court case that the

award had been rendered and that it had filed an application to confirm the award in the Medina

County Court of Common Pleas. Akron did not file anything in the underlying case in response

until more than one year had passed.

       {¶3}    In the meantime, Akron opposed Ohio Farmers’ application to confirm the award

in Medina County, arguing that the Summit County Court of Common Pleas had jurisdictional

priority over the application by virtue of the fact that the underlying case remained open. Akron

did not file an application to modify or vacate the award in either Summit or Medina County.

The Medina County Court of Common Pleas dismissed the application on a different basis,

concluding that “the parties clearly agreed to have the Summit County Court of Common Pleas

maintain continuing jurisdiction over this case” and “the parties [sic] own agreement

contemplates the[] Summit County Court of Common Pleas will maintain this matter as an active

case.” This Court ultimately affirmed.

       {¶4}    While the Medina County appeal was pending in this Court, Ohio Farmers filed

an application to confirm the award in Summit County. That application, which was filed on

January 19, 2010 – just under one year after the award was rendered – was accompanied by a

“New Case Designation Form” that listed the underlying trial court matter as a “Related Case.”

The application was assigned to the docket of a different trial court judge under a new case

number. Again, Akron moved to dismiss the application. The basis for Akron’s motion to

dismiss was that the arbitration agreement required not only that the application be filed in

Summit County, but on the docket of the original judge under the same case number. Akron

acknowledged that, if successful, its motion would mean that Ohio Farmers could not file a

timely application at all, but maintained that res judicata required that result. Again, Akron did
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not file an application to modify or vacate the arbitration award, nor did it argue that there was

substantive error in the award. The trial court agreed with Akron’s arguments, and dismissed the

Summit County application.

       {¶5}    On September 27, 2010, Ohio Farmers filed a motion to confirm the award under

the original case number on the docket of the original trial court judge. Akron opposed the

motion as untimely, but did not oppose the substance of the motion. The trial court considered

the motion as timely filed based on the date Ohio Farmers first filed an application in Summit

County. The trial court, therefore, confirmed the award and entered judgment in favor of Ohio

Farmers.

       {¶6}    Two appeals are before this Court.       In C.A. No. 25642, Ohio Farmers has

appealed from the order dismissing its application to confirm filed under a new case number in

Summit County. In C.A. No. 25725, Akron has appealed from the order in the underlying case

that confirmed the arbitration award. Because our resolution of Akron’s appeal in C.A. No.

25725 is dispositive, we address it first.

                           Akron’s Assignment of Error Number One

       “ASSUMING THE TIME PERIOD PRESCRIBED BY R.C. 2711.09 IS
       PERMISSIVE (AS OPPOSED TO MANDATORY), THE TRIAL COURT
       NEVERTHELESS ERRED BY CONFIRMING THE ARBITRATION
       AWARD.”

                           Akron’s Assignment of Error Number Two

       “THE TRIAL COURT ERRED BY DETERMINING THAT THE ONE-YEAR
       PERIOD IN R.C. 2711.09 IS PERMISSIVE, RATHER THAN MANDATORY.”

       {¶7}    In its assignments of error, Akron argues that the trial court erred by considering

Ohio Farmers’ untimely application. Notably, Akron does not assign substantive error in the

confirmation of the award itself. Instead, Akron argues that Ohio Farmers did not file its
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application within a reasonable time and did not show good cause for the untimely filing. Akron

also argues that it was prejudiced by virtue of its “unnecessary legal fees” incurred in the process

of opposing Ohio Farmers’ application in Medina County and the first application in Summit

County.

       {¶8}    As an initial matter, we must clarify what the trial court did in this case. Although

it appears to have considered the parties’ arguments regarding whether the application should be

allowed as untimely, the trial court did not ultimately confirm the award on that basis. Instead,

the trial court actually considered Ohio Farmers’ application timely filed from the date that it

filed the first application in Summit County:

       “In the most liberal sense, [Ohio Farmers’] January 19, 2010 Application was
       filed within the one-year time frame in the appropriate jurisdiction (Summit
       County Court of Common Pleas). The Application was improperly captioned and
       thus was assigned to a different judge and given a new case number. ***
       Viewing [Ohio Farmers’] January 19, 2010 Application as timely in this
       jurisdiction, this Court is inclined to enter judgment on the award.”

       {¶9}    Having reached the conclusion that it would consider the application timely filed,

and in the absence of a motion to vacate or modify the award, the trial court had no choice but to

confirm the award. See R.C. 2711.09 (“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.”).

       {¶10} We agree with the trial court’s conclusion that Ohio Farmers’ application was

timely filed in Summit County. R.C. Chapter 2711 does not clearly state how an application to

confirm an arbitration award must be filed, but it does contemplate that such applications may

generally proceed as new civil cases. R.C 2711.14, for example, refers to the confirmation

process as a “proceeding” and requires that a judgment rendered on an application to confirm is

docketed as if rendered “in an action” and given the same effect. R.C. 2711.16 defines where
                                                 5


“actions and proceedings” under R.C. Chapter 2711 may be filed.               This Court has also

recognized that applications filed under R.C. Chapter 2711 are special proceedings for purposes

of considering our jurisdiction under R.C. 2505.02. See Binns v. Sterling Jewelers, Inc., 9th

Dist. No. 24522, 2009-Ohio-3359, at ¶9.

       {¶11} R.C. Chapter 2711 is unique. “A motion filed under R.C. 2711.11 occupies a

hybrid procedural position, only vaguely defined by the statutes that provide for it. In practice, it

is not a full complaint initiating a civil matter, even though it may result in an appealable final

order and judgment.” Geiger v. Morgan Stanley DW, Inc., 10th Dist. No. 09AP-608, 2010-Ohio-

2850, at ¶19. See, also, Greenwald v. Shayne, 152 Ohio Misc.2d 12, 2009-Ohio-3384, at ¶20-24.

In this context, we cannot say that Ohio Farmers failed to timely file its application when it filed

an application with the Summit County Clerk of Courts within one year of the arbitration award.

We reach no conclusion about the further delay that resulted while the case was pending on the

docket of a different trial court judge except to note that either party could have moved to

consolidate the application proceedings with the underlying civil case, but neither did so. The

trial court did not err by concluding that Ohio Farmers’ application to confirm the arbitration

award was timely filed and confirming the award accordingly.

       {¶12} Even if we were to analyze this matter as an appeal from confirmation of an

application filed more than one year after the award, we would reach the same result. Under

R.C. 2711.09, “[a]t 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.” In NCO Portfolio Management Inc. v. Lewis, 9th Dist. No. 06CA009001, 2007-Ohio-

3965, we considered whether the reference to a one-year time period in the statute constitutes a

mandatory period of time within which an application must be filed. Instead, recognizing that
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the one-year period mentioned in 2711.09 is not a statute of limitations, we concluded that a

court of common pleas has the discretion to allow an application to confirm after one year has

passed provided it is filed within a reasonable time, for good cause, and without incurring

prejudice to the opposing party by filing more than one year after the award. Id. at ¶6, citing

Russo v. Chittick (1988), 48 Ohio App.3d 101, 103. See, also, Temple v. Dawn Const. Co., Inc.,

8th Dist. No. 82830, 2003-Ohio-5251, at ¶9.

         {¶13} Because we recognized in NCO Portfolio Management that a trial court has

discretion to consider an application to confirm filed more than one year after the arbitration

award, we review a challenge to the trial court’s decision in this regard for an abuse of that

discretion. In other words, the issue raised by Akron’s assignment of error is whether the trial

court abused its discretion in determining that Ohio Farmers filed its application to confirm

within a reasonable time after one year, for good cause, and without prejudice to Akron. See id.

at ¶6.

         {¶14} Ohio Farmers filed its application to confirm the award in Medina County three

days after the arbitration panel rendered its award. When it opposed the application, Akron did

not argue that the parties’ agreement required filing in the underlying Summit County case: it

argued that because a Summit County case existed, the Summit County Court of Common Pleas

had jurisdictional priority over the matter. It is understandable that Akron did not raise the

argument because the plain language of the agreed judgment entry does not spell out the extent

of the continuing jurisdiction that was retained by the trial court in the original case. Notably,

this Court’s opinion in the Medina County case concluded that the parties’ intent with respect to

the agreed judgment entry was that “the Summit County Court of Common Pleas would retain

continuing jurisdiction over the matter, including confirmation and appeal of the matter.” Ohio
                                                7


Farmers Ins. Co. v. Akron, 9th Dist. No. 09CA0013-M, 2010-Ohio-1348, at ¶19. This result was

based on our analysis of the agreed judgment entry in light of the surrounding circumstances.

Our opinion did not conclude that the plain language of the agreed judgment entry required that

an application to confirm be filed in Summit County, let alone in the context of the original civil

case.

        {¶15} Consequently, the trial court did not abuse its discretion to the extent that it

considered Ohio Farmers’ application to have been filed outside of the time mentioned by the

statute, but within a reasonable time. Considering that the plain language of the agreed judgment

entry did not specify the forum in which confirmation proceedings would occur, there was good

cause for the delay occasioned by the proceedings in Medina County and the appeal to this

Court. Akron points to the attorney’s fees that it has incurred in opposing Ohio Farmers’ first

two applications to confirm as evidence of prejudice. Akron represented to the trial court that it

“do[es] not dispute the award,” yet has taken the position that judgment on the entire award

should be forfeited because of the parties’ legal disagreement about where the award should be

confirmed. We do not find this argument persuasive. Although it is apparent that the parties

chose to wrangle about jurisdiction in the Medina County case, it is nonetheless true that a timely

application to confirm the award was filed in Summit County. Akron, as well as Ohio Farmers,

could have moved to transfer the arbitration matter to the docket of the original trial court judge

or to consolidate the two cases. It did not do so. Under these circumstances, to conclude that

prejudice to Akron leads to forfeiture of Ohio Farmers’ judgment on the award would be drastic

and unwarranted.
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       {¶16} Whether Ohio Farmers’ application is viewed as timely or untimely, the trial court

did not err in confirming the award and entering judgment. Akron’s assignments of error are

overruled.

                     Ohio Farmers’ Assignment of Error Number One

       “THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING THE
       CITY OF AKRON’S MOTION TO DISMISS OHIO FARMERS’
       APPLICATION TO CONFIRM ARBITRATION AWARD FOR LACK OF
       SUBJECT MATTER JURISDICTION WHERE R.C. § 2711.16 GRANTS
       JURISDICTION TO THE SUMMIT COUNTY COURT OF COMMON PLEAS
       AND WHERE THIS HAD ALREADY BEEN DECLARED BY THE NINTH
       DISTRICT COURT OF APPEALS IN OHIO FARMERS INS. CO. V. AKRON,
       2010-OHIO-1348 (MARCH 31, 2010).”

                     Ohio Farmers’ Assignment of Error Number Two

       “THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING THE
       CITY OF AKRON’S MOTION TO DISMISS OHIO FARMERS’
       APPLICATION TO CONFIRM ARBITRATION AWARD FOR LACK OF
       SUBJECT MATTER JURISDICTION WHERE TO DO SO CONSTITUTES A
       VIOLATION OF THE ACCESS TO COURTS PROVISION OF THE OHIO
       CONSTITUTION CONTAINED AT OHIO CONSTITUTION, ARTICLE I, §
       16.”

       {¶17} Ohio Farmers’ assignments of error argue that the trial court in the Summit

County confirmation case erred by dismissing its application for lack of subject matter

jurisdiction. Because that case sought confirmation of the same award that was ultimately

confirmed in the underlying civil case, and because we have overruled Akron’s assignments of

error challenging the confirmation, Ohio Farmers’ assignments of error are moot, and its appeal

in C.A. No. 25642 is dismissed. See, generally, App.R. 12(A)(1)(c).

       {¶18} Akron’s assignments of error are overruled, and the judgment of the Summit

County Court of Common Pleas in C.A. No. 25725 is affirmed. In light of our disposition of

C.A. No. 25725, Ohio Farmers’ appeal in C.A. No. 25642 is moot, and the appeal is dismissed.
                                                 9


                                                                        Judgment affirmed in part
                                                                      and appeal dismissed in part.




       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(E). 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 Appellant.




                                                     BETH WHITMORE
                                                     FOR THE COURT



CARR, P. J.
CONCURS

MOORE, J.
CONCURS IN JUDGMENT ONLY, SAYING:

       {¶19} I concur in the majority opinion as much as it affirms the trial court because Ohio

Farmers’ application was timely filed in the Summit County Common Pleas Court within one
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year of the award. (Paragraphs 1 through 13). I do not join the majority in its further analysis of

cases filed more than year after the award, as I regard this discussion as unnecessary dicta.


APPEARANCES:

JEROME W. COOK, KENNETH J. WALSH, and RICHARD W. CLINE, Attorneys at Law, for
Appellant.

JEFFREY T. HEINTZ, CHRISTOPHER F. SWING, MARK F. CRAIG, and CAROLINE L.
MARKS, Attorneys at Law, for Appellee.

CHERI B. CUNNINGHAM, Director of Law, for Appellee.
