[Cite as Kelsey v. Carrington Homes, Inc., 2017-Ohio-4111.]


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

THOMAS KELSEY, et al.                                         C.A. No.   16CA0066-M

        Appellants

        v.                                                    APPEAL FROM JUDGMENT
                                                              ENTERED IN THE
CARRINGTON HOMES, INC., et al.                                COURT OF COMMON PLEAS
                                                              COUNTY OF MEDINA, OHIO
        Appellees                                             CASE No.   16CIV0314

                                 DECISION AND JOURNAL ENTRY

Dated: June 5, 2017



        CALLAHAN, Judge.

        {¶1}    Appellants, Thomas and Patricia Kelsey (“the Kelseys”), appeal the judgment

entered in favor of Appellees, Carrington Homes, Inc. and Douglas Krause (collectively

“Carrington”), in the Medina County Court of Common Pleas. For the reasons set forth below,

this Court reverses.

                                                      I.

        {¶2}    The Kelseys entered into a Home Construction Agreement (“Agreement”) with

Carrington to construct an addition to their home. The Agreement contained an arbitration

clause that stated “a dispute [which] arises under this Agreement or under any document

regarding the construction of the Home * * * shall be subject to and decided by arbitration * *

*.”

        {¶3}    Due to perceived defects in the construction work, the Kelseys terminated the

Agreement and filed a complaint alleging breach of contract, violation of the Home Construction
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Service Supplier’s Act, negligence, fraud, and declaratory judgment regarding the arbitration

provision. Based on the arbitration provision in the Agreement, Carrington filed a motion to stay

the proceedings and compel arbitration. At the close of the briefing and without a hearing, the

trial court granted Carrington’s motion to stay the proceedings and to compel arbitration.

       {¶4}    The Kelseys timely appeal, raising five assignments of error.

                                                II.

                              ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT ERRED BY FAILING TO CONDUCT A HEARING OR
       OTHERWISE ALLOW APPELLANTS TO BE HEARD ON APPELLEE[S’]
       MOTION TO STAY PROCEEDINGS AND TO COMPEL ARBITRATION.

       {¶5}    In their first assignment of error, the Kelseys argue the trial court erred by not

conducting a hearing pursuant to R.C. 2711.03 and by not permitting them to file a sur-reply.

This Court agrees the trial court erred by failing to conduct a hearing on the motion to compel

arbitration and does not address the second portion of the Kelseys’ first assignment of error.

       {¶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. Summit No. 22211, 2005-Ohio-1129, ¶

15, citing Maestle v. Best Buy Co., 100 Ohio St.3d 330, 2003-Ohio-6465, ¶ 14. While Carrington

only cited R.C. 2711.01 and 2711.02 in support of its motion, it specifically requested relief in

the form of a stay of the proceeding and an order compelling arbitration, both in its motion and

in its reply brief. Accordingly, Carrington sought relief pursuant to R.C. 2711.02 and 2711.03.

       {¶7}    The Ohio Supreme Court has held a trial court is not required to conduct a hearing

prior to disposing of a motion to stay the proceedings pending arbitration. Maestle at ¶ 19; R.C.
                                                  3


2711.02. While the Maestle decision did not address the hearing requirement in the context of a

motion to compel arbitration, this Court has repeatedly held that the plain language of R.C.

2711.03 explicitly requires the trial court to hold a hearing prior to ruling on a motion to compel

arbitration. See Maestle at ¶ 19; Matheny v. Norton, 9th Dist. Summit No. 26166, 2012-Ohio-

2283, ¶ 8; Biondi v. Oregon Homes, LLC, 9th Dist. Summit No. 25875, 2012-Ohio-1714, ¶ 6;

Chase Home Fin., LLC v. McDowell, 9th Dist. Summit No. 24889, 2010-Ohio-633, ¶ 9; Krakora

v. Superior Energy Sys., 9th Dist. Lorain No. 08CA009423, 2009-Ohio-401, ¶ 5; Blubaugh v.

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

State Home Servs., Inc., 9th Dist. Lorain No. 06CA008947, 2007-Ohio-3119, ¶ 16; Boggs

Custom Homes at ¶ 16. The hearing requirement also applies when a motion requests both a stay

of the proceedings and an order compelling arbitration. See Boggs Custom Homes at ¶ 16-17,

citing Maestle at ¶ 19. 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.

       {¶8}    In this case, Carrington filed a motion to stay the proceedings and to compel

arbitration. However, the record is silent as to any hearing being held on Carrington’s motion.

See Boggs Custom Homes at ¶ 16-17, citing Maestle at ¶ 19. Accordingly, this Court sustains the

Kelseys’ first assignment of error solely as it pertains to the failure to hold a hearing and

remands the case to the trial court to conduct the required hearing.

                               ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT ERRED WHEN IT FAILED TO MAKE A
       DETERMINATION OF THE VALIDITY OF THE ARBITRATION CLAUSE
       IN THIS CASE AS REQUIRED BY R.C. §2711.03(B) BEFORE GRANTING
       APPELLEE[S’] MOTION TO COMPEL ARBITRATION.
                                                   4


                              ASSIGNMENT OF ERROR NO. 3

       THE TRIAL COURT ERRED BY FAILING TO IMPANEL A JURY UNDER
       R.C. §2711.03(B) TO DETERMINE THE VALIDITY OF THE ARBITRATION
       CLAUSE AT ISSUE IN THIS CASE.

                              ASSIGNMENT OF ERROR NO. 4

       THE TRIAL COURT ERRED BY FAILING TO FIND THAT THE RULES
       AND PROCEDURES REFERRED TO IN THE ARBITRATION CLAUSE DO
       NOT EXIST, THEREBY INVALIDATING THE CLAUSE.

                              ASSIGNMENT OF ERROR NO. 5

       THE TRIAL COURT ERRED BY FAILING TO FIND THAT THE
       ARBITRATION CLAUSE AT ISSUE IN THIS CASE IS SUBSTANTIVELY
       AND PROCEDURALLY UNCONSCIONABLE.

       {¶9}    In their remaining assignments of error, the Kelseys argue the trial court erred in

various ways when granting Carrington’s motion to stay the proceedings and to compel

arbitration. Based on this Court’s resolution of the first assignment of error, this Court declines

to address the Kelseys’ second, third, fourth, and fifth assignments of error as they have been

rendered moot. See Matheny at ¶ 8, quoting Bondi at ¶ 6; see App.R. 12(A)(1)(c).

                                                  III.

       {¶10} The Kelseys’ first assignment of error is sustained insofar as the trial court failed

to hold a hearing. This Court declines to address the Kelseys’ second, third, fourth, and fifth

assignments of error as they have been rendered moot. The judgment of the Medina County

Court of Common Pleas is reversed and the cause is remanded for a hearing on the motion to

stay the proceedings and to compel arbitration.

                                                                               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 Medina, 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.




                                                     LYNNE S. CALLAHAN
                                                     FOR THE COURT



HENSAL, P. J.
TEODOSIO, J.
CONCUR.


APPEARANCES:

BRIAN K. SKIDMORE, Attorney at Law, for Appellants.

MARYANN C. CHANDLER and WILLIAM J. MUNIAK, Attorneys at Law, for Appellees.
