Gustavus, L.L.C. v. Eagle Invests. , 2012 Ohio 1433 ( 2012 )

[Cite as Gustavus, L.L.C. v. Eagle Invests., 2012-Ohio-1433.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
GUSTAVUS, LLC :
Plaintiff-Appellant : C.A. CASE NO. 24899
vs. : T.C. CASE NO. 11CV03993
EAGLE INVESTMENTS, et al. : (Civil Appeal from
Common Pleas Court)
Defendants-Appellees :
. . . . . . . . .
O P I N I O N
Rendered on the 30th day of March, 2012.
. . . . . . . . .
Joseph C. Lucas, Atty. Reg. No. 0081336; Tyler W. Kahler, Atty.
Reg. No. 0085932, 7015 Corporate Way, Centerville, OH 45459
Attorneys for Plaintiff-Appellant
J. Steven Justice, Atty. Reg. No. 0063719; Paul H. Shaneyfelt,
Atty. Reg. No. 0065629, 210 W. Main Street, Troy, OH 45373
Ray C. Freudiger, 1 S. Main Street, Suite 1800, Dayton, OH 45402
Thomas W. Kendo, Jr., 7925 Paragon Road, Dayton, OH 45459
Attorneys for Defendants-Appellees
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Plaintiff, Gustavus, LLC (“Gustavus”), appeals from a final order entered by
the common pleas court pursuant to R.C. 2711.02(B), staying the trial of an action Gustavus
commenced against Defendants, Eagle Investments, LLC and several individuals associated
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with it (hereinafter “Eagle”), pending arbitration of the issues in the action. Gustavus argues
that the trial court erred because the relief it seeks against Eagle under the Ohio Corrupt
Activities Act, R.C. 2923.31, et seq., creates a public policy defense against arbitration, and
that the trial court abused its discretion in ordering a stay because the terms for arbitration in
the arbitration clause of the contract between Gustavus and Eagle are vague and inconsistent.
{¶ 2} We reject those arguments on findings that the arbitration to which the parties
agreed does not preclude the relief under the Ohio Corrupt Activities Act that Gustavus seeks,
and that the terms of the arbitration clause which Gustavus claims are vague and inconsistent
are merely anomalies that do not prevent arbitration of the action and the stay the trial court
ordered. We therefore affirm the judgment from which the appeal was taken.
I
STATEMENT OF FACTS
{¶ 3} Gustavus and Eagle are business enterprises that own and operate commercial
real properties. In June of 2010, Gustavus agreed to purchase from Eagle the premises
consisting of multiple residential rental units located at 1901 Village Drive in Dayton, Ohio.
The agreed price was one million, one hundred and twenty thousand dollars. The written
Real Estate Purchase and Sale Agreement contains the following arbitration clause at Section
(30)(b):
(1) ANY DISPUTE OR CLAIM BETWEEN BUYER AND SELLER
ARISING FROM THIS AGREEMENT OR THE TRANSACTION
CONTEMPLATED HEREIN SHALL BE SETTLED BY BINDING
ARBITRATION UNDER THE COMMERCIAL ARBITRATION RULE OF
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THE AMERICAN ARBITRATION ASSOCIATION. JUDGMENT ON THE
AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN
ANY COURT HAVING JURISDICTION, FILING A COURT ACTION TO
OBTAIN PROVISIONAL REMEDIES SHALL NOT CONSTITUTE A
WAIVER OF THIS PROVISION.
(2) THE ARBITRATOR(S) SHALL BE A RETIRED JUDGE OR
ANY ATTORNEY WITH AT LEAST TEN (10) YEARS OF COMMERCIAL
REAL ESTATE LAW EXPERIENCE. THE ARBITRATION SHALL BE
DECIDED IN ACCORDANCE WITH SUBSTANTIVE OHIO LAW. THE
PARTIES SHALL HAVE THE RIGHT TO CONDUCT DISCOVERY IN
ACCORDANCE WITH OHIO CODE OF CIVIL PROCEDURE SECTION
1283.05 AND TO THE SAME EXTENT AS IN A CIVIL ACTION. THE
ARBITRATION SHALL OTHERWISE BE CONDUCTED IN
ACCORDANCE WITH TITLE 9 PART III, OHIO CODE OF CIVIL
PROCEDURE. THIS AGREEMENT TO ARBITRATE SHALL BE
INTERPRETED IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT.
{¶ 4} Additionally, the arbitration clause of the Contract provides in section
(30)(b)(4) that:
NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE
AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS
INCLUDED IN THE “ARBITRATION OF DISPUTE” PROVISION
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DECIDED BY A NEUTRAL ARBITRATION AS PROVIDED BY OHIO
LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS
TO HAVE THE DISPUTE LITIGATED IN COURT OR JURY TRIAL, AND
ARE GIVING UP MOST OF YOUR RIGHTS OF APPEAL. BY
INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR
JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS SUCH
RIGHTS ARE SPECIFICALLY INCLUDED IN THE “ARBITRATION OF
DISPUTES” PROVISION NOTWITHSTANDING THIS WAIVER OF
RIGHTS TO DISCOVERY, IN ANY CASE IN WHICH BROKER SUES
FOR AN UNPAID COMMISSION, BROKER SHALL BE ENTITLED TO
THE PRODUCTION OF ALL NONPRIVILEGED DOCUMENTS
DEMANDED OR SUBPOENAED BY BROKER FROM BUYER AND
SELLER, OR ANY THIRD PARTY TO THE ARBITRATION.
{¶ 5} The purchase and sale of the real property closed on October 27, 2010.
Gustavus took possession of the property and has operated it since.
II
PROCEDURAL HISTORY
{¶ 6} On June 3, 2011, Gustavus commenced an action against Eagle, three of its
partners, the real estate broker that represented Eagle in the purchase and sale and the broker’s
agent, and the individual owners and operators of a property management firm that had
managed the property for Eagle.
{¶ 7} As operative facts, Gustavus alleged that Eagle and the individual defendants
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misrepresented the rental income the property generated as well as the costs of its operation.
Defendants allegedly did so by providing false rent rolls and other verifications of those
matters to Gustavus to induce it to purchase the property. Gustavus’s complaint pled claims
alleging (1) breach of contract, (2) fraudulent misrepresentation, (3) violations of the Ohio
Corrupt Activities Act, R.C. 2923.31, et seq., (4) civil conspiracy, (5) unjust enrichment, and
(6) conversion. As relief, Gustavus sought rescission of the contract of sale and an order
requiring Eagle to repurchase the property, money damages, and other relief made available
by the Ohio Corrupt Activities Act, as well as punitive damages and attorney fees.
{¶ 8} Eagle filed responsive pleadings and a motion to stay the action pending
arbitration pursuant to R.C. 2711.021(B). Gustavus opposed the motion, arguing, among
other things, that the public policy underlying the Ohio Corrupt Activities Act precludes
arbitration of its claims for relief under the Act, and that the arbitration clause in the contract
of sale is vague and inconsistent. The trial court rejected those arguments and stayed the
action, finding that the arbitration agreement is not sufficiently indefinite or inconsistent to
void that agreement, and that Eagle’s public policy defense to arbitration is preempted by
Section 2 of the Federal Arbitration Act.
{¶ 9} Gustavus filed a notice of appeal from the order staying its action pending
arbitration. The matter is now before us for review on the following assignment of error by
Gustavus:
{¶ 10} “THE TRIAL COURT ERRED IN GRANTING DEFENDANTS EAGLE
INVESTMENT, WILLIAM HEIDENREICH, ROBERT HEIDENREICH, AND JOSEPH
BALOGH’S MOTION TO COMPEL ARBITRATION WHERE (1) THE ARBITRATION
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CLAUSE OF THE CONTRACT IS UNENFORCEABLE BECAUSE IT VIOLATES
PUBLIC POLICY BY HINDERING THE PURPOSE OF THE OHIO CORRUPT ACTIVITY
ACT, AND (2) THE ARBITRATION CLAUSE OF THE CONTRACT IS
UNENFORCEABLE BECAUSE IT SETS OUT THE RULES FOR ARBITRATION IN
VAGUE TERMS THAT ARE INCONSISTENT WITH OHIO LAW.
III
LEGAL ANALYSIS
{¶ 11} An order entered pursuant to R.C. 2711.02(B) is a final, appealable order.
R.C. 2711.02(C). We therefore have jurisdiction to review the error assigned, and to affirm,
reverse, or modify the final judgment from which the appeal was taken.
{¶ 12} When addressing whether a trial court properly granted a motion to stay
proceedings and compel arbitration on a finding that the issues are referable to arbitration, our
standard of review is the abuse of discretion standard. Carter Steel & Fabricating Company
v. Danis Building Construction Company, 126 Ohio App. 3d 35, 710 N.E.2d 299 (3d Dist.
1998). However, when an appellate court is presented with purely legal questions, the
standard of review to be applied is de novo. Eagle v. Fred Martin Motor Company, 157
Ohio App. 3d 150, 2004-Ohio-829, 809 N.E.2d 1161 (9th Dist.), ¶ 11
A.
GUSTAVUS’S PUBLIC POLICY DEFENSE
{¶ 13} Gustavus argues that the public policies underlying its claim for relief alleging
violations of the Ohio Corrupt Activities Act (“OCAA”) preclude arbitration of that claim.
The argument presents a purely legal question, and we review the error assigned de novo.
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{¶ 14} Arbitration clauses in a contract are of two types: (1) unlimited clauses
providing for arbitration of all disputes that may arise out of the parties’ contractual
relationship, and (2) limited clauses providing for arbitration of only specific contractual
disputes or specific issues. The arbitration agreement in the present case provides that “any
dispute between buyer and seller arising from this agreement or by the transaction
contemplated herein shall be settled by binding arbitration under the commercial arbitration
rules of the American Arbitration Association.” The agreement is therefore plenary in nature
and applies to any and all disputes having the required origin.
{¶ 15} R.C. 2711.01(A) provides that an arbitration agreement in a written contract
“shall be valid, irrevocable, and enforceable, except upon grounds that exist in law or equity
for the revocation of any contract.” R.C. 2711.01(B)(1) creates an exception to the
requirements of R.C. 2711.01 to 2711.16 with respect “to controversies involving the title to
or possession of real estate,” subject to certain further applications that do not apply in the
present case.
{¶ 16} None of the particular “controversies,” in this action, that is, the matters of
disagreement or in dispute between the parties, involve the title to the real property concerned
in the dispute or the right to possession of that property. It is undisputed that title to the
property is in Gustavus and that Eagle has no possessory interest in the property. However,
where final determination of claims in an action may entitle a claimant to relief that affects
title, such as specific performance of a contract of sale, it has been held that the R.C.
2711.01(B)(1) bar against arbitration applies. Kedzior v. CDC Dev. Corp., 123 Ohio App. 3d
301, 704 N.E.2d 54 (8th Dist. 1997). The relief of rescission and repurchase of its property
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that Eagle requests would, if granted, likewise affect title to the property concerned. On that
basis, R.C. 2711.01(B)(1) would bar enforcement of the parties’ agreement to arbitrate.
{¶ 17} The Federal Arbitration Act (“FAA”), 9 USC Sections 1-16, governs disputes
that are resolved through arbitration rather than in the courts. Section 2 of the FAA states:
A written provision in any maritime transaction or a contract
evidencing a transaction involving commerce to settle by arbitration a
controversy thereafter arising out of such contract or transaction, or the refusal
to perform the whole or any part thereof, or an agreement in writing to submit
to arbitration an existing controversy arising out of such a contract, transaction,
or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds
as exist at law or in equity for the revocation of any contract.
{¶ 18} In Southland Corp. v. Keating, 465 U.S. 1, 104 S. Ct. 852, 79 L. Ed. 2d 1 (1984),
the Supreme Court held that because a state statute declaring void any provision purporting to
bind a franchisee to waive compliance with provisions of the statute rendered unenforceable
an arbitration agreement involving commerce, the statute conflicted with Section 2 of the
FAA and thus violates the Supremacy Clause of the United States Constitution, Article 2,
clause 6. The court pointed out that in enacting Section 2 of the FAA Congress declared a
national policy favoring arbitration and withdrew the power of the states to instead require a
judicial forum for the resolution of claims which the contracting parties agreed to resolve by
arbitration. The court further pointed out that there are only two limitations on the
enforceability of arbitration provisions governed by the FAA: (1) they must be part of a
written maritime contract or a contract evidencing a transaction involving commerce, and (2)
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such clauses may be revoked upon grounds as exist at law or in equity for the revocation of
any contract, and there is nothing in the Act indicating that the broad principle of
enforceability is subject to any additional limitations under state law.
{¶ 19} In AT&T Mobility, LLC v. Concepcion, ___ U.S. ___, 131 S. Ct. 1740, 179
L. Ed. 2d 742 (2011), California common law prohibited waivers of arbitration rights by
consumers in contracts of adhesion, reasoning that such waivers are unconscionable. The
Supreme Court held that “[w]hen state law prohibits outright the arbitration of a particular
type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA.”
131 S. Ct. at 1747. The Supreme Court explained: “Although Section 2's savings clause
preserves generally applicable contract defenses, nothing in it suggests an intent to preserve
state-law rules that stand as an obstacle to the accomplishment of the FAA’s objectives.” Id.
at 1748.
{¶ 20} The written contract of sale between Gustavus and Eagle evidences a
transaction involving commerce. The arbitration agreement in the contract is subject to
revocation upon grounds as exist in law or equity for the revocation of any contract. “Thus,
generally applicable contract defenses, such as fraud, duress, or unconscionability, may be
applied to invalidate arbitration agreements without contravening Section 2. Courts may not,
however, invalidate arbitration agreements under state laws applicable only to arbitration
provisions.” (Citations omitted.) Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 687,
134 L. Ed. 2d 902, 116 S. Ct. 1652 (1996).
{¶ 21} The exception established in R.C. 2711.01(B)(1) concerning controversies
involving the title to or possession of real estate is applicable only to arbitration. Therefore,
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R.C. 2711.01(B)(1) is not a defense to the R.C. 2711.02(B) motion for arbitration that Eagle
filed. Doctor’s Associates, Inc. Gustavus concedes that point, but argues that arbitration of
its OCAA claims is subject to a public policy exception.
{¶ 22} R.C. 2923.32 prohibits engaging in a pattern of corrupt activity. In order to
allege a criminal violation of that section, a complaint must plead (1) that the conduct of the
defendant involves the commission of two or more specifically prohibited state or federal
criminal offenses, (2) that the prohibited criminal conduct of the defendant constitutes a
pattern of corrupt activity, and (3) that the defendant has participated in the affairs of an
enterprise or has acquired or maintained an interest in or control of an enterprise through
which the defendant engaged in the criminal conduct. Kondrat v. Morris, 118 Ohio App. 3d
198, 692 N.E.2d 246 (8th Dist. 1997).
{¶ 23} R.C. 2923.34 confers a right to maintain a civil action on persons injured by
violations of R.C. 2923.31. The relief made available by R.C. 2923.34 includes treble
damages, divestiture of the offender’s interests in the enterprise or in any real property,
reasonable restrictions on future activities or investments, and attorney fees. R.C.
2923.34(B)(1), (2), (E) and (F).
{¶ 24} The Third Claim For Relief in the complaint Gustavus filed alleges that the
Defendants engaged in a pattern of corrupt activity in misrepresenting the value of their
apartment complex, and that in so doing Defendants engaged in the following criminal
violations: theft by deception, R.C. 2913.02(A)(3); telecommunications fraud, R.C. 2913.05;
money laundering, R.C. 1315.55(A)(3); tampering with records and uttering tampered records,
R.C. 2913.42(A)(1) and 2913.42(A)(3); wire fraud, 18 U.S.C. 1343, and mail fraud, 18
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U.S.C. 1343; and mail fraud, 18 U.S.C. 1341. As relief, Gustavus asked the court to impose
the sanctions authorized by R.C. 2923.34(B)(1), (2), (E) and (F), discussed above.
{¶ 25} The defenses to arbitration identified in Doctor’s Associates, Inc., fraud,
duress, or unconscionability, are not exclusive. Gustavus relies on cases which have held that
when an arbitration provision brings about a result a statute seeks to prevent, or hinders
vindication of private rights a statute confers, the arbitration provision violates public policy
and is therefore void and unenforceable. Gustavus argues that the arbitration clause in its
contract with Eagle is void for those reasons because it deprives Gustavus of the right to a
remedy that the OCAA confers, including those R.C. 2923.34 remedies Gustavus seeks.
Gustavus relies on Fred Martin Motor Co.
{¶ 26} In Fred Martin Motor Co., a consumer commenced a Consumer Sales
Practices Act claim against an auto dealer. The contract of sale the consumer signed included
an arbitration clause that required the outcome of the arbitration to be kept confidential.
Citing the policy of the CSPA favoring public disclosure of unfair and deceptive acts and
practices by suppliers, the Ninth District Court of Appeals held the arbitration clause
unenforceable for its violation of that public policy.
{¶ 27} Gustavus’s reliance on Fred Martin Motor Co. is misplaced. Nothing in the
arbitration clause in its contract with Eagle prohibits or limits application of the OCAA claim
for relief in the complaint Gustavus filed. Indeed, Gustavus identifies no such impediment,
and instead merely suggests that an arbitrator cannot decide its OCAA claims. We find no
basis for that suggestion, for two reasons.
{¶ 28} First, as we previously pointed out, the arbitration clause in the present case is
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plenary in nature, encompassing “any dispute or claim between buyer and seller arising from
this agreement or the transaction contemplated herein.” The pattern of corrupt activity in
which Eagle allegedly engaged arose from the sale and purchase transaction between Eagle
and Gustavus. There is no basis in the arbitration clause to withhold the issues the OCAA
claims present from arbitration.
{¶ 29} Implicit in Gustavus’s argument is a contention that the relief Gustavus seeks
is outside the scope of the relief which an arbitrator’s award can provide. That may be
correct, but only in the sense that any relief an arbitrator’s award provides is likewise
inchoate. Relief is granted by the judgment the court enters pursuant to R.C. 2711.12, after
confirming, modifying or correcting the arbitrator’s award. The judgment is then docketed as
if rendered in a civil action and in all respects has the same effect and is subject to all laws
relating to a judgment in an action and may be enforced as if rendered in an action in the court
in which it is entered. Champion v. Kraftmaid Cabinetry, Inc., 190 Ohio App. 3d 202,
2010-Ohio-5398, 941 N.E.2d 124 (11th Dist.).
{¶ 30} A second reason for rejecting Eagle’s argument is found in Shearson/American
Express, Inc. v. McMahon, 482 U.S. 220, 107 S. Ct. 2332, 96 L. Ed. 2d 185 (1987). In that
case the plaintiff commenced an action for treble damages pursuant to 18 U.S.C. Section
1964(C) for alleged federal RICO violations. Lower courts had determined that the RICO
claims for relief, being statutory, were not amenable to arbitration. The Supreme Court
reversed, holding that the “duty to enforce arbitration agreements is not diminished when a
party bound by an (arbitration) agreement raises a claim founded on statutory rights.” 482
U.S, at 226. The Supreme Court further held that “the criminal law provisions of RICO do
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not preclude arbitration of bona fide civil actions brought under Section 1964(C),” including
any treble damages claims. 482 U.S. at 240. Lower federal courts have likewise held that
civil RICO claims are arbitrable. Genesco Inc. v. T. Kakiuche & Co., 815 F.2d 840 (2d Cir.
1987); Nesslage v. York Securities, Inc., 823 F.2d 231 (8th Cir. 1987); Mayaja, Inc., S.A. v.
Bodkin, 824 F.2d 439 (5th Cir. 1987).
{¶ 31} Ohio’s Corrupt Activities Act is modeled on the federal RICO statute. State v.
Schlosser, 79 Ohio St. 3d 329, 681 N.E.2d 911 (1997). The rationale of Shearson/American
Express, Inc. and other cases supports a finding that alleged violations of the OCAA are
arbitrable. We reject Gustavus’s argument that alleged OCAA violations and the various
civil remedies for those violations that R.C. 2923.34 authorizes are unavailable through
arbitration.
{¶ 32} Gustavus argues that, nevertheless, the statutory rights of relief the OCAA
confers are not subject to arbitration under the particular terms of their agreement. The
parties agreed to arbitrate “under the Commercial Arbitration Rules of the American
Arbitration Association.” Gustavus relies on Rule 43(a), which authorizes an award “within
the scope of the agreement between the parties, including specific performance.” Gustavus
contends that the arbitrator is limited to “contract issues” and does not include relief allowed
by the OCAA.
{¶ 33} We do not agree. The parties agreed to arbitrate “any dispute or claim
between buyer or seller arising from this agreement or the transaction contemplated herein.”
The OCAA violations are alleged to have arisen from the transaction of sale and purchase
between the parties. An arbitration clause in a contract should not be denied effect by a court
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unless it can be said with positive assurance that the clause is not susceptible to an
interpretation that covers the asserted dispute, and doubts should be resolved in favor of
coverage. Gibbons-Grable Co. v. Gilbane Bldg. Co., 34 Ohio App. 3d 170, 517 N.E.2d 559
(8th Dist. 1986). In view of the fact that statutory rights and remedies are arbitrable, we
cannot say with positive assurance that Gustavus’s OCAA claims for relief are not within the
scope of the arbitration clause in its contract with Eagle.
{¶ 34} Concerning the matter of attorney fees, Gustavus also argues that arbitration is
unavailable because the applicable rule of the American Arbitration Association states that the
arbitrator “may” award attorney fees, while R.C. 2923.34(G) provides that in a civil action a
plaintiff “shall recover reasonable attorney fees in the trial and appellate courts.” We do not
agree. The AAA rule simply authorizes the arbitrator to award the attorney fees that R.C.
2923.34(G) mandates.
{¶ 35} The trial court rejected Gustavus’s public policy defense, reasoning that
acceptance of that argument would require a finding inconsistent with the holding in
Southland Corp., Shearson/American Express, and Concepcion that Section 2 of the FAA
trumps a state statute and any policy against arbitration in the statute when they act as an
obstacle to the accomplishment of Congress’s objectives in enacting the FAA. We agree.
B
VAGUENESS AND INCONSISTENCY
{¶ 36} Gustavus argues that the trial court erred in staying trial of the case pending
arbitration because the arbitration clause contains terms that reference Ohio civil procedure
and Revised Code sections which do not exist.
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{¶ 37} At paragraph 2, the arbitration clause provides that discovery is to be
conducted according to “Ohio Code of Civil Procedure section 1283.05 and to the same extent
as in a civil action.” There are, of course, Ohio Rules of Civil Procedure, but they contain no
section 1283.05. Neither is there a chapter 12 of the Ohio Revised Code.
{¶ 38} Paragraph 4 of the arbitration clause contains the following statement:
By initialing in the space below you are giving up your judicial rights of
discovery and appeal, unless such rights are specifically included in the
“Arbitration of Disputes” provision notwithstanding this waiver of rights to
discovery.
{¶ 39} Gustavus points out, correctly, that no section of the contract is specifically
captioned “Arbitration of Disputes,” which further confuses the reference to the non-existent
section 1283.05 of the Ohio Code of Civil Procedure. The problem is further compounded
by Paragraph 2 of the arbitration clause which states that “[t]he arbitration shall otherwise be
conducted in accordance with Title 9, Part III, Ohio Code of Civil Procedure,” another
non-existent section.
{¶ 40} The trial court rejected Gustavus’s arguments, finding that because the identity
of the parties to be bound by the arbitration agreement and the subject matter of the dispute to
be arbitrated are set forth with sufficient definiteness and clarity, these erroneous discovery
references are matters for the arbitrator to resolve.
{¶ 41} An arbitration clause in a contract should not be denied effect by a court unless
it may be said with positive assurance that the clause is not susceptible to an interpretation
that covers the asserted dispute, and doubts should be resolved in favor of coverage.
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Gibbons-Grable Co. v. Gilbane Building Co., 34 Ohio App. 3d 170, 517 N.E.2d 559 (8th
Dist. 1986); Krafcik v. USA Energy Consultants, Inc., 107 Ohio App. 3d 59, 667 N.E.2d 1027
(8th Dist. 1995).
{¶ 42} We agree with the trial court. The erroneous references to non-existent
judicial discovery provisions are anomalies that do not detract from the essential terms of the
parties’ agreement to arbitrate any disputes arising from their contract and/or transaction.
The references may be set aside by the arbitrator in favor of any applicable discovery
provisions in the Commercial Arbitration Rules of the American Arbitration Association,
which the parties agreed would govern the procedure of their binding arbitration.
{¶ 43} The trial court did not abuse its discretion in rejecting Gustavus’s argument
that the arbitration clause is too vague and inconsistent to support arbitration of the issues in
dispute.
IV
CONCLUSION
{¶ 44} The trial court did not abuse its discretion in finding that the case is referable to
arbitration on the written agreement of the parties, and did not err in staying trial of the action
until arbitration of the issues in dispute has been had in accordance with the arbitration
agreement, pursuant to R.C. 2711.02(B).
{¶ 45} The assignment of error is overruled. The final judgment from which the
appeal was taken will be affirmed.
FAIN, J., And FROELICH, J., concur.
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Copies mailed to:
Joseph C. Lucas, Esq.
Tyler W. Kayler, Esq.
J. Steven Justice, Esq.
Paul H. Shaneyfelt, Esq.
Ray. C. Freudiger, Esq.
Thomas J. Kendo, Jr., Esq.
Hon. Michael Tucker