[Cite as Centofanti. v. Wayne Homes, 2012-Ohio-4116.]
                          STATE OF OHIO, MAHONING COUNTY

                                 IN THE COURT OF APPEALS

                                      SEVENTH DISTRICT


LUDOVICO CENTOFANTI                              )      CASE NO. 10 MA 180
                                                 )
        PLAINTIFF-APPELLEE                       )
                                                 )
VS.                                              )      OPINION
                                                 )
WAYNE HOMES                                      )
                                                 )
        DEFENDANT-APPELLANT                      )

CHARACTER OF PROCEEDINGS:                               Civil Appeal from the Court of Common
                                                        Pleas of Mahoning County, Ohio
                                                        Case No. 08 CV 4572

JUDGMENT:                                               Affirmed. Remanded.

APPEARANCES:

For Plaintiff-Appellee:                                 Atty. Matthew C. Giannini
                                                        10404 South Commons Place
                                                        Suite 200
                                                        Youngstown, Ohio 44514

For Defendant-Appellant:                                Atty. Michael S. Gruber
                                                        Atty. M. Dean Dahl
                                                        Zollinger, Gruber, Thomas & Co.
                                                        P.O. Box 2985
                                                        6370 Mt. Pleasant Street, N.W.
                                                        North Canton, Ohio 44720-0985

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                        Dated: September 5, 2012
[Cite as Centofanti. v. Wayne Homes, 2012-Ohio-4116.]
WAITE, P.J.


                                             Summary

        {¶1}    In 2007, Appellee Ludovico Centofanti hired Appellant, Wayne Homes,

to build a house. Less than a year later the building was not complete and Appellee

informed Appellant that a variety of defects existed in construction. Appellee also

informed Appellant that Appellant’s failure to comply with applicable building codes

was making financing the remainder of the project difficult. When the parties could

not resolve their differences, Appellee filed a breach of contract suit in the Mahoning

County Common Pleas Court.               Within a week of that filing, Appellant initiated a

private arbitration proceeding. Appellant received service of the complaint, but did

not respond until February of the following year when Appellant filed a hybrid

Civ.R.12(B)(6) motion and motion for stay pending the outcome of arbitration.

Appellant and the private arbitration firm exchanged correspondence concerning the

arbitration proceeding with Appellee, who consistently and unambiguously informed

Appellant and the arbitration firm of his refusal to participate unless ordered to do so

by the trial court. Although Appellee never voluntarily participated in arbitration and

the trial court never ordered participation or ruled on the motion for stay, Appellant

continued with arbitration unilaterally, receiving an award from the arbitrator which

Appellant then submitted to the trial court for enforcement.

        {¶2}    Appellee, who had both opposed arbitration and sought, in the

alternative, a court-appointed arbitrator rather than a private firm, filed a motion to

stay the arbitration decision, an appeal of the decision and a motion for hearing on all

pending motions. A hearing was held on the cross motions, and the magistrate
                                                                                       -2-

ordered Appellant to provide additional information identifying the source of the

arbitrator’s authority to proceed with arbitration in the absence of a court order. At

this point, Appellee filed a motion to vacate the arbitration award. The trial court

ultimately vacated the award and Appellant filed the instant appeal from that order.

      {¶3}   An arbitrator’s authority to arbitrate, in the absence of a court order,

comes from the voluntary participation of the parties. The trial court’s decision to

vacate the award obtained by Appellant without Appellee’s participation was

appropriate and was not an abuse of discretion. The judgment of the trial court is

affirmed and the matter remanded for further proceedings in accordance with this

Court’s Opinion.

                           Factual and Procedural History

      {¶4}   Appellant, Wayne Homes, L.L.C., was hired by Appellee, Ludovico

Centofanti, for the construction of a house.    On November 20, 2008, before the

completion of construction, Appellee filed a complaint alleging breach of contract,

breach of implied warranty to deliver the home free from defect, negligent

construction and violations of the Ohio Consumer Sales Practices Act (“CSPA”).

Appellee alleged Appellant had failed to perform in a workmanlike manner and

provided specific examples, including: improper installation of the footers on the

home and garage units, improper installation of post pads, beams and the foundation

of the furnace as well as failure to comply with local and state ordinances,

regulations, and building codes, resulting in adverse action by Mahoning County

which impaired Appellee’s ability to maintain financing. Appellee sought release from

the construction contract or compensatory damages in the amount of $233,840.00
                                                                                         -3-

(the full value of the contract), in addition to treble his actual damages for violations of

the CSPA, punitive damages, costs, and attorney fees. Appellee attached a copy of

a partially executed construction contract to the complaint.

       {¶5}   On February 13, 2009 Appellant, then several months in default of filing

an answer, filed a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim and in

the alternative, a motion for stay pending resolution by arbitration. Appellant did not

attach any evidence that an arbitration agreement existed to this hybrid motion. On

February 23, 2009, in response to Appellant’s motion for stay, Appellee filed a motion

to strike Appellant’s February 13, 2009 motion and a counter motion seeking a court

appointed arbitrator, citing cost savings as a reason for preferring to use the court’s

arbitration services, if necessary. Appellee indicated that although a copy of the fully

executed contract had been repeatedly requested, no copy had been provided to

Appellee by Appellant.

       {¶6}   On March 6, 2009 Appellant filed a copy of the construction contract

with an affidavit in support of the February 13, 2009 motion to dismiss or for a stay

pending arbitration.     Appellant’s copy of the agreement has a second, illegible,

signature, dated November 29, 2007, on the space provided for Wayne Homes as

contractor. The Wayne Homes representative is not identified. The document was

stamped “received by Court Room No. 1” on March 18, 2009.

       {¶7}   The record is then conspicuously silent until Appellee’s May 15, 2009

notice of appeal of arbitration; motion to stay decision; and request for hearing; which

was docketed by the court on June 2, 2009. Between the filing of the competing

motions in February of 2009 along with the Civ.R. 12(B)(6) motion, and the May 15,
                                                                                      -4-

2009 notice by Appellee, the record contains no ruling by the court on any of the

pending motions.

       {¶8}   Appellee’s May 15, 2009 notice and motion described Appellant’s

unilateral decision to pursue commercial arbitration absent a court order on the

pending motions and Appellee’s unambiguous refusal to participate absent a court

order. Without Appellee’s participation, Appellant obtained an arbitration award. As

a result, Appellee asked that the court stay execution of the award and instead

schedule a hearing and rule on the outstanding motions as well as his appeal of the

arbitration award.   On May 20, 2009 Appellant filed an application for an order

confirming the arbitration award. Appellant’s motion requested confirmation of “a

written Award of Arbitrator in the sum of $29,725.00, plus interest at the statutory rate

per annum from April 30, 2009, rendered as a result of an arbitration proceeding

between Plaintiff and Defendant.       Defendant was further awarded $900.00 for

reimbursement of arbitration [fees] and expenses.” (5/29/09 Application for Order

Confirming Arbitration Award.)

       {¶9}   On June 3, 2009 Appellant filed a response opposing Appellee’s notice

of appeal and motion for stay. Appellant acknowledged that the court never ruled on

the pending motions, and that Appellant obtained the arbitration’s award without

Appellee’s participation in the process. Appellant nevertheless asserted the validity

of the arbitration decision and maintained that it was Appellee’s responsibility to

obtain an injunction halting arbitration or asserting that Appellee must abide by the

decision even where there was no court order to participate. Appellant refers to a

change in the case status in the electronic docket summary as a “February 24, 2009
                                                                                      -5-

Order” that “stayed the case pending arbitration.” (6/3/09 Defendant Wayne Homes’

Response to Plaintiff’s Notice of Appeal and Motion to Stay Decision, p. 5.) No such

order appears in the record, however, the docket summary information provided by

the clerk appears to list the case disposition as “(A) DIVERSION OR ARBITRATION”

as of February 24, 2009. (Docket Sheet, p. 1.) Appellee filed a reply to the response

and accompanying exhibits on June 5, 2009, detailing consistent communication with

both Appellant and various employees of the private arbitration firm concerning the

failure of the court to order arbitration and Appellee’s consequent refusal to arbitrate.

In his reply, Appellee argued that the arbitration award obtained in the absence of

one party and without a ruling by the court ordering arbitration was unenforceable.

The matter was set for a hearing on June 16, 2009. No transcript or other evidence

concerning the hearing was transmitted with the record.

       {¶10} A post-hearing magistrate’s decision was filed on July 1, 2009. The

magistrate found that six days after Appellee filed suit, Appellant had filed a demand

for arbitration with the American Arbitration Association (“AAA”) and that subsequent

motions to dismiss and for stays were filed in the common pleas court but that no

motion for stay was decided prior to Appellant’s May 20, 2009 motion seeking

confirmation of the arbitration award. The magistrate noted that Appellee’s May 15,

2009 filing included objections to the arbitration process, but that Appellee had not

expressly requested to vacate the award. The magistrate ordered both parties to

provide “legal authority pertaining to the jurisdiction of the AAA to proceed with

arbitration of a contractual dispute * * * before a ruling by this Court upon

Defendant’s motion to dismiss or stay and before a ruling on Plaintiff’s motion
                                                                                     -6-

to strike or request for binding arbitration” by July 27, 2009, and a second

hearing was set.

         {¶11} In its court ordered response, filed one day late, Appellant

acknowledged that the arbitration provisions governing the proceedings allow

motions for stay and motions to compel a party to participate in arbitration. Appellant

also recognized that these provisions do not provide for or require that the party

opposing arbitration has the burden to file some protective motion to stop arbitration.

The magistrate’s March 16, 2010 decision denied Appellant’s motion to confirm the

arbitration award, granted Appellee’s motion to vacate the award, and set an April 14,

2010 hearing to determine whether an executed contract between the parties

included a binding and enforceable arbitration clause.          Appellant filed timely

objections to the decision but made no request for findings of fact or conclusions of

law. Appellee filed a motion in support of the decision and Appellant, without seeking

leave, filed a sur reply.

         {¶12} The trial court adopted the magistrate’s decision in its entirety. The

court denied Appellant’s application for an order confirming the arbitration award, and

instead vacated the award and taxed costs to Appellant in a judgment entry dated

November 2, 2010. Appellant filed a timely notice of appeal of this judgment entry.

Interestingly, on November 10, 2010 the magistrate granted Appellant’s motion for

stay pending arbitration. This November 10, 2010 determination has no bearing on

the issues before us, which involves the trial court’s decision to vacate the unilateral

award.

                                  Argument and Law
                                                                                       -7-

                              ASSIGNMENT OF ERROR

       THE     TRIAL     COURT’S       RULING      DENYING        DEFENDANT’S

       APPLICATION FOR ORDER CONFIRMING ARBITRATION AWARD

       AND VACATING THE ARBITRATION AWARD IS ERRONEOUS AS A

       MATTER OF LAW.

       {¶13} The issue before us is the propriety of a trial court’s decision to vacate

an arbitration award gained without the participation of a party and in the absence of

a court order, while the matter was pending in court. The alleged right to arbitrate in

lieu of litigation at issue here is based in contract. Because “arbitration is a matter of

contract * * * a party cannot be required to submit to arbitration any dispute which he

has not agreed so to submit. * * * This axiom recognizes the fact that arbitrators

derive their authority to resolve disputes only because the parties have agreed to

submit such grievances to arbitration.” Council of Smaller Ents. v. Gates, McDonald

& Co., 80 Ohio St.3d 661, 665, 687 N.E.2d 1352 (1998) quoting AT&T Technologies,

Inc. v. Communications Workers of America, 475 U.S. 643, 648-649, 106 S.Ct. 1415,

89 L.Ed.2d 648 (1986).      Although the arbitrator’s authority to decide an issue is

created by contract, without a party’s voluntary participation the arbitrator has no

authority to compel participation. Where a party seeks to enforce a contractual right

to arbitrate, the mechanism for enforcement is a court order.             R.C. 2711.03.

Similarly, although Ohio law gives an arbitrator the power to issue subpoenas, if an

individual does not respond to the subpoena, the parties must petition the court for

enforcement. R.C. 2711.06.
                                                                                      -8-

       {¶14} When a claim is brought in court and a party to the suit seeks to end or

stay the proceeding by claiming that the matter should instead be submitted to

arbitration, “prior to making any determination regarding the arbitrability of any issue

raised by the parties’ claims, a court must first determine whether the written

arbitration agreement being invoked is in fact enforceable under basic contract

precepts.” Benjamin v. Pipoly, 155 Ohio App.3d 171, 2003-Ohio-5666, 800 N.E.2d

50, ¶31. “This determination must begin with application of fundamental principles of

state contract law.” Id. Before transferring jurisdiction over the case to an arbitration

panel, “the statute clearly mandates the trial court to decide” several preliminary

issues: (1) whether an agreement to arbitrate exists, (1) whether the agreement is

enforceable, and (3) whether an enforceable arbitration agreement actually binds the

specific parties involved in the suit. Bradley Dev. Co., Inc. v. Northern Ohio Sewer

Contracting, Inc., 9th Dist. No. 03CA008249, 2003-Ohio 6123, ¶10.

       {¶15} In Council of Smaller Ents., supra, the Ohio Supreme Court set forth

parameters to determine the arbitrability of a given dispute. We have once before

condensed these parameters into a set of guidelines that courts must follow: “(1)

arbitration is a matter of contract and a party cannot be required to submit to

arbitration any dispute which he has not agreed to submit; (2) the question whether a

particular claim is arbitrable is one of law for the court to decide; (3) when deciding

whether the parties have agreed to submit a particular claim to arbitration, a court

may not rule on the potential merits of the underlying claim; and, importantly, (4)

when a contract contains an arbitration provision, there is a presumption of

arbitrability in the sense that an order to arbitrate the particular grievance should not
                                                                                       -9-

be denied unless it may be said with positive assurance that the arbitration clause is

not susceptible of an interpretation that covers the asserted dispute.” Hoppel v.

Feldman, 7th Dist. No. 09 CO 34, 2011-Ohio-1183, ¶27 citing Council at 665-666.

Only after review of an existing arbitration agreement between the two parties that

covers the subject matter of the dispute may a trial court stay a court proceeding and

transfer jurisdiction to arbitration. On the other hand, if the court finds that no valid

arbitration agreement exists between the parties, the matter remains with the court.

If the court finds a defect in what purports to be an arbitration agreement, the matter

remains with the court.     Even where the court finds a valid agreement, if that

agreement does not cover the subject matter of the dispute, the matter remains with

the court.

       {¶16} When a party, generally plaintiff, has waived the contractual right to

arbitrate by filing suit and the other party seeks to enforce it, the “party seeking to

enforce an arbitration provision may choose to move for a stay under R.C. 2711.02,

or to petition for an order for the parties to proceed to arbitration under R.C. 2711.03,

or to seek orders under both statutes.” Maestle v. Best Buy Co., 100 Ohio St.3d 330,

2003-Ohio-6465, 800 N.E.2d 7, ¶18. Revised Code section 2711.02 provides:

       (B) If any action is brought upon any issue referable to arbitration under

       an agreement in writing for arbitration, the court in which the action is

       pending, upon being satisfied that the issue involved in the action is

       referable to arbitration under an agreement in writing for arbitration,

       shall on application of one of the parties stay the trial of the action until

       the arbitration of the issue has been had in accordance with the
                                                                                -10-

agreement, provided the applicant for stay is not in default in

proceeding with arbitration.


(C) * * * an order under division (B) of this section that grants or denies

a stay of a trial of any action pending arbitration, including, but not

limited to, an order that is based upon a determination of the court that

a party has waived arbitration under the arbitration agreement, is a final

order and may be reviewed, affirmed, modified or reversed on appeal.


{¶17} Revised Code section 2711.03 provides:


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.


If the making of the arbitration agreement or the failure to perform it is in

issue in a petition filed under division (A) of this section, the court shall

proceed summarily to the trial of that issue. * * * [E]ither party * * * may

demand a jury trial of that issue.
                                                                                      -11-

       {¶18} Action under either provision triggers the trial court’s duty to “determine

ultimately whether an arbitration provision is enforceable (and to be ‘satisfied’ that the

relief sought is appropriate before issuing the order).” Maestle, supra at ¶17-18. But

the “statutes are separate and distinct provisions and serve different purposes.”

When a party seeks to enforce an arbitration agreement, action under both provisions

may be necessary. Id. at ¶17.

       {¶19} As we explained in Hoppel:          “As a general rule, either party to a

contract of arbitration may waive the contractual right to arbitrate. For instance, a

plaintiff waives the right to arbitrate by filing a complaint. For the defendant, the right

to arbitrate can be preserved by seeking enforcement of the arbitration clause.

Failure to move for a stay pursuant to R.C. 2711.02, coupled with responsive

pleadings, will constitute a defendant's waiver.” (Internal citations omitted). Hoppel

at ¶44. “R.C. 2711.03 provides that a party cannot actually be compelled to arbitrate

in the absence of a court order. Thus, a party who volunteers to submit a claim to

arbitration is generally estopped from denying the arbitrator’s authority after an

adverse award has been issued.” E.S. Gallon Co., L.P.A. v. Deutsch, 142 Ohio

App.3d 137, 141, 754 N.E.2d 291 (2001). Various Ohio courts, including this one,

have held that a party who voluntarily submits to arbitration and acknowledges the

authority of the arbitrator is estopped from raising lack of authority or lack of

jurisdiction at a later date. Creatore v. Robert W. Baird & Co., 154 Ohio App.3d 316,

2003-Ohio-5009, 797 N.E.2d 127, ¶12, also Jefferson Cty. Sheriff v. Ohio

Patrolmen’s Benevolent Assn., 7th Dist. No. 05 JE 39, 2006-Ohio-1055, ¶34.
                                                                                     -12-

       {¶20} If a party to an arbitration agreement voluntarily participates in the

arbitration of a dispute pursuant to the agreement, or is ordered by the court to

participate, he is bound by the arbitrator’s decision. By participating voluntarily, or by

signing a valid agreement and being compelled to participate, a party limits his ability

to modify or avoid the decision of the arbitrator to those grounds provided by statute.

A party to a valid arbitration agreement may be bound to accept an arbitrator’s

decision even when it includes errors of fact or law; the extremely narrow review

allowed by law may not provide relief. “It is only when the arbitrator has overstepped

the bounds of his or her authority that a reviewing court will vacate or modify an

award.” Queen City Lodge No. 69, Fraternal Order of Police, Hamilton Cty., Ohio,

Inc. v. Cincinnati, 63 Ohio St.3d 403, 407, 588 N.E.2d 802 (1992).              “For our

purposes, the converse is also true−if the arbitrator has not exceeded his or her

powers, the award should not be vacated or modified, absent any of the other

circumstances in R.C. 2711.10 and 2711.11 (such as corruption, fraud, misconduct,

partiality, or material mistake.)” Id. The grounds necessary to vacate an arbitration

award are found in the statute:

       2711.10 Court may vacate award.


       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:


       The award was procured by corruption, fraud, or undue means.
                                                                                   -13-

      There was evident partiality or corruption on the part of the

      arbitrators, or any of them.


      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.


      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.


      If an award is vacated and the time within which the agreement

      required the award to be made has not expired, the court may

      direct a rehearing by the arbitrators.

      {¶21} Appellant argues that, despite statutory provisions and caselaw that

explicitly identify the mechanisms necessary to enforce a contractual arbitration

clause, the burden to enjoin arbitration is on the party who does not wish to arbitrate

and is challenging the validity of the arbitration clause. However, both the Ohio

legislature and the Supreme Court have clearly placed the burden on Appellant, as

the party seeking arbitration, to first obtain enforcement of the clause in a court with

jurisdiction over the matter by securing a court order. No requirement or mechanism

exists for Appellee to enjoin an arbitration that Appellant commenced after suit was
                                                                                     -14-

filed prior to obtaining an order to arbitrate. In fact, Appellee’s participation in the

arbitration, depending on degree, might operate to waive his objections to arbitration

in the trial court.   Hence, Appellant has the burdens reversed here.         It was not

Appellee’s duty to stop the arbitration process. Instead, it was Appellant’s duty to first

obtain a court order to arbitrate before proceeding through the arbitration process.

       {¶22} Arbitration is not a substitute for judicial process, nor does the process

followed by an arbitrator vindicate a litigant’s due process rights. These are functions

of government. Arbitration is an extra judicial process: a way, in theory, to avoid the

cost and time of litigation. Arbitration clauses cannot be enforced in the absence of

some voluntary act by the parties, who presumably made a genuine choice to

arbitrate, rather than use the courts, when negotiating their contracts. Academy of

Medicine of Cincinnati v. Aetna Health, Inc., 108 Ohio St.3d 185, 842 N.E.2d 488

(2006).    In the absence of voluntary participation by both parties, such a clause

cannot be enforced without court action. Just as an arbitrator’s power to subpoena

witnesses is not equal to a court’s power to compel the appearance of parties and

the parties must ask the court to enforce the subpoena, where a party seeks to

enforce an arbitration clause over the objections of the other party to the agreement,

the party seeking to arbitrate must first prove the validity of the clause and seek

enforcement in court according to the procedures outlined by the legislature. R.C.

2711.03.

       {¶23} Appellant attempts to explain its decision to ignore the judicial

proceeding and to coerce Appellee into arbitration by citing to the February 24, 2009

change in the case disposition listed in the docket as the basis for its actions.
                                                                                   -15-

Although the disposition may have created some momentary confusion, the efforts of

Appellant and the AAA to coerce Appellee into participating in arbitration significantly

predate the summary change in the docket. Similarly, the instant lawsuit predates

Appellant’s arbitration demand.    Evidence of efforts to coerce arbitration prior to

February 24, 2009 include a December 5, 2008 letter faxed by Appellee’s counsel to

the AAA, apparently in response to a fax Appellee had received, informing the

organization that a lawsuit had been filed and that his client would not participate in

the arbitration process. Later the AAA sent a January 13, 2009 letter to both parties,

referencing a December 22, 2008 letter sent by Appellant (which does not appear in

the record), concerning the pending court case and arbitration proceeding. In the

January letter the AAA indicated that in the absence of an agreement by the parties

or a court order, arbitration would proceed according to the organization’s rules

although the parties could renew objections once an arbiter was appointed. The AAA

letter also gave the parties a January 20, 2009 deadline to submit a list of possible

arbitrators, and informed them that a $1,000.00 fee, to be split between the parties,

was due on January 27, 2009. Appellee responded to this letter on January 14,

2009, again stating that he would not participate in arbitration until ordered to do so

by the court. He also explained that he had never received an executed copy of the

contract containing the alleged arbitration agreement and that the matter was

pending in court. By February 6, 2009, despite Appellee’s clear refusal to participate,

a preliminary hearing was set by the arbitrator for February 13, 2009. All of this

occurred prior to any action by the trial court, and prior to any change in the case

disposition on the docket.
                                                                                     -16-

       {¶24} The arbitrator’s February 13, 2009 letter to AAA indicates that Appellant

appeared for the February 13, 2009 teleconference but Appellee did not and that

deadlines were set for an exchange of documents in the absence of Appellee. Also

on February 13, 2009, Appellant made his first appearance in the lawsuit by filing his

motion for stay pending arbitration. The facts presented by Appellant reflect a single-

minded focus on arbitration and predated any change in the information reflected in

the docket. It continued despite the fact that no order was issued by the court. The

case notation in the docket is irrelevant to Appellant’s attempts to force Appellee’s

participation in arbitration. More importantly, because the disposition in the docket is

not a court order or judgment of the court, on which Appellant would be genuinely

entitled to rely, in the absence of a journalized order or judgment he would have done

so to his own detriment.

       {¶25} “Dockets and journals are distinct records kept by clerks;” a court,

however, speaks only through its journal. (Internal citation omitted.) State ex rel.

White v. Junkin, 80 Ohio St.3d 335, 337 (1997). The common pleas clerk of courts is

charged by R.C. 2303.12, to “keep at least four books. They shall be called the

appearance docket, trial docket, and printed duplicates of the trial docket * * * journal,

and execution docket. * * * He shall keep an index to the trial docket and to the

printed duplicates of the trial docket and of the journal direct, and to the appearance

docket, record, and execution docket, direct and reverse.” The clerk is similarly

charged by the Ohio Supreme Court’s Superintendence Rules which requires that

clerks maintain four separate categories of records: “an index, docket, journal, and

case files in accordance with Sup. R. 26(B).” Sup.R. 26.03(B)(1).
                                                                                   -17-

      {¶26} The “case file” under the rule is a “compendium of original documents

filed in an action or proceeding in a court, including the pleadings, motions, orders,

and judgments of the court” and the “journal” is “a verbatim record of every order or

judgment of a court.” Sup.R. 26(B).

      {¶27} The “docket” as it pertains to a common pleas court is prepared and

maintained by the clerk and is required to include the “[n]ames and addresses of all

parties in full”; “[n]ames, addresses, and Supreme Court attorney registration

numbers of all counsel”; “issuance of documents for service upon a party and the

return of service or lack of return” as well as a “brief description of all records and

orders filed in the proceeding, the time and date filed, and a cross reference to other

records as appropriate”; “[a] schedule of court proceedings for the division and its

officers to use for case management”; “[a]ll actions taken by the division to enforce

orders or judgments; and * * * [a]ny information necessary to document the activity of

the clerk of the division regarding the case.” Sup.R. 26.03(C).

      {¶28} As this Court recently explained in State v. Roepke, 7th Dist. No. 10 MA

138, 2011-Ohio-6369, the general index and docket created by the clerk is “not the

same as a journal.” Id. at ¶18. While the docket is prepared and maintained by the

clerk, the “court speaks through its journals and an entry is effective only when it has

been journalized. Civ. R. 58 and Crim. R. 32(B). To journalize a decision means that

certain formal requirements have been met, i.e., the decision is reduced to writing, it

is signed by a judge, and it is filed with the clerk so that it may become a part of the

permanent record of the court.” State v. Ellington, 36 Ohio App.3d 76, 77-78 (1987).
                                                                                          -18-

       {¶29} Journalization requirements are not empty formalities. Where a court

issues a decision verbally or even in writing, but it has not been journalized, the

judgment is not final. State v. Ginocchio, 38 Ohio App.3d 105, 526 N.E.2d 1366

(1987). Similarly, a court will lose jurisdiction if it fails to journalize its decision within

the period prescribed by statute. Ellington, paragraph two of the syllabus. A case

disposition entered by a clerk that does not reflect a properly journalized order or

judgment of the court has no force or effect under Ohio law. Even if the court in this

case had ordered arbitration, without a properly journalized record of that order it

would be ineffective. The case disposition notation in the docket is not a decision

reduced to writing, signed by a judge, and filed with the clerk. Nothing short of a

journalized judgment entry alters the fact that the trial court did not order arbitration.

       {¶30} In essence, because the trial court did not order arbitration, Appellee

did not voluntarily participate and no valid arbitration occurred. Without Appellee’s

voluntary or court-ordered participation the arbitrator exceeded his power and so

imperfectly executed his duties that the resulting decision was in no way mutual, and

severely prejudiced Appellee. Appellant failed to obtain a court order enforcing the

alleged arbitration clause prior to proceeding with arbitration and Appellee refused to

participate voluntarily. Hence, the trial court was correct to refuse to enforce the

resulting invalid award.     Appellant’s assignment of error is without merit and is

overruled.
                                                                                 -19-

                                       Conclusion

       {¶31} The record below supports the trial court’s decision to vacate the

arbitration award. Appellant’s assignment of error is without merit and is overruled.

The decision of the trial court is affirmed and the matter remanded to the trial court

for further proceedings in compliance with R.C. 2711.02 and .03, and consistent with

this Court’s Opinion and the Ohio Supreme Court’s decision in Maestle v. Best Buy

Co., 100 Ohio St.3d 330, 2003-Ohio-6465, 800 N.E.2d 7. Costs, including the full

cost of the invalid arbitration, are taxed to Appellant.


Donofrio, J., concurs.

DeGenaro, J., concurs.
