Norman v. Kellie Auto Sales, Inc. , 2020 Ohio 4311 ( 2020 )

[Cite as Norman v. Kellie Auto Sales, Inc., 2020-Ohio-4311.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Justin Norman, :
Plaintiff-Appellee, :
No. 18AP-32
v. : (C.P.C. No. 17CV-5681)
Kellie Auto Sales, Inc., : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 3, 2020
On brief: Coffman Legal, LLC, and Matthew J.P. Coffman;
Bryant Legal, LLC, and Daniel I. Bryant, for appellee.
On brief: Law Offices of Thomas Tootle Co., LPA, and
Thomas Tootle, for appellant.
ON APPLICATION FOR RECONSIDERATION
DORRIAN, J.
{¶ 1} Plaintiff-appellee, Justin Norman, has filed an application for
reconsideration, pursuant to App.R. 26(A)(1), of this court's decision in Norman v. Kellie
Auto Sales, Inc., 10th Dist. No. 18AP-32, 2019-Ohio-360 ("Norman" or "original decision")
filed February 5, 2019. For the reasons that follow, we grant Norman's application for
reconsideration, vacate the original decision, and affirm the November 30, December 11,
2017, and January 9, 2018 judgments of the Franklin County Court of Common Pleas.
I. Facts and Procedural History
{¶ 2} The procedural history and facts of this case were summarized in the original
decision.
{¶ 3} Norman purchased a vehicle from defendant-appellant, Kellie Auto Sales,
Inc. ("Kellie Auto"). Neither party disputes that Kelli Auto did not inform Norman the
No. 18AP-32 2
vehicle was a rebuilt salvage. The retail installment contract was executed between the
parties for the purchase and financing of the vehicle. As part of the sale, the parties also
executed an arbitration agreement authorizing either party to "choose to have any dispute
between [the parties] decided by arbitration and not in court of [sic] by jury trial."
(Emphasis omitted.) Norman at ¶ 3. The agreement also set forth the process for
arbitration. Once Norman became aware the vehicle was rebuilt salvage, the parties
attempted to negotiate a resolution. Negotiations were not successful and, ultimately,
Kellie Auto informed Norman it was invoking the arbitration agreement. A demand for
arbitration was completed and submitted. Id. at ¶ 7.
{¶ 4} Arbitration was conducted before an arbitrator from the American
Arbitration Association. As summarized in the original decision, the arbitrator rendered
an award as follows:
On June 5, 2017, the arbitrator rendered an award in favor of
Norman, having found that Kellie Auto had knowingly
committed an unfair or deceptive act under the CSPA. Having
heard and considered the parties' evidence, the arbitrator
awarded $53,911.75 to Norman, a sum that included:
(1) Economic damages – the unrebutted testimony was that
[Norman] incurred economic damages in the amount of
$7,430. (Down payment, tag fee and loan payments)
(2) Non-economic damages – while [Norman] testified he
suffered non-economic damages of aggravation, frustration
and humiliation, this testimony was not credible. Long after
[Norman] found out about the salvage title he continued to
drive the car. Early on, [Kellie Auto] offered to rescind the
transaction which [Norman] refused. It appears to the
Arbitrator that [Norman] held on to his remedy options for an
extended period of time for the sole purpose of increasing his
recovery. Non-economic damages will not be awarded;
(3) Attorney's fees and costs – [Norman] is entitled to his
reasonable attorney's fees and costs for this knowing violation
of the CSPA. [Norman] has submitted the affidavits of his
attorneys (Ex. 23 and 24) along with the affidavit of Attorney
DeRose (Ex. 25) attesting to the reasonableness of the rates
submitted. The Arbitrator finds that applying the lodestar
approach set forth by the Ohio Supreme Court in Bittner v. Tri-
County Toyota (1991), 58 Ohio St. 3d 143 an attorney's fees
award of $31,494.50 (an extra $1,000 is awarded for post-
No. 18AP-32 3
hearing work) is appropriate. In addition, hearing fees of
$127.25 will be imposed;
(4) The economic damage award shall be trebled to ($7,420 x
3) $22,290 pursuant to Rev. Code 1345.09. (See Pep Boys v.
Vaughn, 2006-Ohio-698 (C.A. 10th 2006). While the
Arbitrator may believe that treble damages are not factually
justified he cannot apply his personal belief on an appropriate
remedy that is not statutorily authorized. Treble damages are
to be awarded. Bierlein v. Alex's Continental Inn, (1984) 16
Ohio App. 3d 301)
(Sic passim and emphasis added.) (Ex. A at 5-6, attached to
Application.) The arbitrator also ordered Kellie Auto to pay
$2,400 for the association's administrative fees and $1,500 for
the arbitrator's compensation. The arbitrator's award
constituted a full, final disposition of all claims submitted.
(Emphasis sic.) Norman at ¶ 9.
{¶ 5} After the arbitration, Norman requested and, according to Norman, Kellie
Auto's counsel agreed to provide payment to Norman pursuant to the arbitrator's award.
However, Kellie Auto retained new counsel and refused to provide payment. Norman then
filed an application for judgment and to confirm the arbitration award pursuant to R.C.
2711.09. Kellie Auto was served with Norman's application on June 30, 2017.
{¶ 6} Construing Norman's application, pursuant to R.C. 2711.09, as an "action"
under the Ohio's Consumer Sales Practices Act ("CSPA"), and R.C. 1345.092(B), on July 10,
2017 Kellie Auto filed a notice of cure offer with the court and an application to modify the
arbitration award pursuant to R.C. 2711.11. Kellie Auto requested the trial court:
"[I]ssue an order modifying and correcting the arbitration
award at issue in this action," reducing the award to $9,930
(economic damages of $7,430 and attorney fees of $2,500),
plus court costs or, alternatively, "remand this matter to the
Arbitrator with instructions that he include an analysis of
attorney's fees as required under Bittner v. Tri-County
Toyota, 58 Ohio St.3d 143 (1991)." (Aug. 4, 2017 Mot. To
Modify at 1, 10.)
Norman at ¶ 13.
{¶ 7} The trial court denied Kellie Auto's request to modify the arbitration award
and granted Norman's application to confirm the award. Kellie Auto filed a motion for
relief from judgment. The trial court denied the same. Kellie Auto appealed.
No. 18AP-32 4
{¶ 8} On appeal, Kellie Auto raised as its first assignment of error that the trial
court erred "when it refused to recognize the Defendant-Appellant's timely exercise of a
'right to cure' pursuant to R.C. 1345.092." Id. at ¶ 18. Norman sustained the assignment
of error and concluded:
R.C. 1345.092(A) is clear—a statutory cure offer can be made
only after the consumer has commenced an action against an
act or practice that violates R.C. Chapter 1345. R.C.
1345.092(A). But this statute does not prevent a supplier such
as Kellie Auto from attempting to cure the problem with one
or more offers to make the buyer whole before any such
action, or even arbitration, occurs. That the first and only
lawsuit filed by Norman was the action seeking to enforce the
arbitration award premised on a CSPA claim does not change
the operation of the statutory language of R.C. 1345.092(A)
enabling Kellie Auto to make a statutory cure offer.
***
We find Kellie Auto's arguments well-taken. In harmonizing
the CSPA with Ohio's arbitration statutes, a reviewing court
may vacate or modify an arbitration award only as provided
for in R.C. 2711.10 or 2711.11, respectively. In its brief, Kellie
Auto states no error with the arbitrator's finding of liability,
only with the damages awarded:
[Kellie Auto] asserts that the award of damages exceeds the
amount allowable following a valid cure offer. R.C. § 2711.11
provides:
"In any of the following cases, the court of common pleas * * *
shall make an order modifying or correcting the award upon
the application of any party to the arbitration if:
(A) There was an evident material miscalculation of figures or
an evident material mistake in the description of any person,
thing, or property referred to in the award..." * * *
A material miscalculation of figures and an evident material
mistake exists. Norman's award must be limited to only that
permitted following a timely exercise of the right to cure. Based
upon the foregoing, Kellie [Auto] asks this Court to remand this
matter to the trial court to order a modification of the award to
$9,930 plus court costs. This represents actual damages (as
determined by the arbitrator) of $7,430 and attorney fees of
$2,500 – the maximum permitted by statute.
No. 18AP-32 5
(Kellie Auto's Brief at 20-21.) We find Kellie Auto's request for
remand for modification appropriate.
Based on the foregoing, we find as a matter of law that the
provisions of R.C. 1345.092 were triggered in this matter
when Kellie Auto timely filed a cure offer under R.C.
1345.092(A). Accordingly, the common pleas court erred
when it refused to recognize as timely Kellie Auto's exercise of
a right to cure pursuant to R.C. 1345.092 and to reduce the
arbitrator's award in accordance with R.C. 1345.092(G). We
remand this matter to the common pleas court to allow Kellie
Auto to present to the court its cure offer and to modify the
arbitrator's award consistent with this decision. Kellie Auto's
first assignment of error is sustained.
Id. at ¶ 27, 34-35.
{¶ 9} Norman asks this court to reconsider the court's original decision to the
extent it sustained the first assignment of error and reversed the trial court's decision on
the same grounds.
II. Applicable Law for Reconsideration
{¶ 10} The test applied to an application for reconsideration is whether the motion
calls to the attention of the court an obvious error in our prior determination or raises an
issue that was not properly considered by the court in the first instance. Matthews v.
Matthews, 5 Ohio App.3d 140 (10th Dist.1981). We believe the grounds for reconsideration
have been met.
III. Reconsideration and Overruling of the First Assignment of Error
{¶ 11} Norman makes several arguments in support of his objection to the court's
original decision sustaining the first assignment of error. As relevant here, he argues the
original decision "created what is tantamount to an appeal right for Appellant when it
would otherwise not have any appealable rights under its own legally-binding arbitration
agreement which prohibits either party from appealing the arbitrator's decision unless one
of three specific events are triggered [and the parties' exclusive remedies] do not include
modification of the Arbitrator's award under these circumstances." (Norman's App. for
Reconsideration at 10-11.) In Norman's merit brief on appeal, he argued Kellie Auto did
not seek vacation, modification, or correction through any of the means outlined in R.C.
No. 18AP-32 6
2711.10 or 2711.11.1 Norman argued this court "should summarily reject Appellant's radical
position and affirm the trial court[,] [and] [t]his Court should not adopt Appellant's
alternative, unsubstantiated interpretation to R.C. [2711.10 and 2711.11] by adding language
from R.C. 1345.092." (Norman's Brief at 18.)
{¶ 12} We agree with Norman. Although Kellie Auto did not specifically request that
the trial court vacate the arbitrator's award, we note that R.C. 2711.10 authorizes a trial
court to vacate an award only if:
(A) The award was procured by corruption, fraud, or undue
means.
(B) There was evident partiality or corruption on the part of
the arbitrators, or any of them.
(C) 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.
(D) 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.
{¶ 13} Kellie Auto did not meet any of the grounds in R.C. 2711.10 for vacating an
arbitrator's award.
{¶ 14} Kellie Auto did request the trial court modify the arbitrator's award. R.C.
2711.11 authorizes a trial court to modify an award only if:
(A) There was an evident material miscalculation of figures or
an evident material mistake in the description of any person,
thing, or property referred to in the award;
(B) The arbitrators have awarded upon a matter not
submitted to them, unless it is a matter not affecting the
merits of the decision upon the matters submitted;
1 We note the arbitration agreement states that "[a]ny arbitration under this Arbitration Agreement shall be
governed by the Federal Arbitration Act (9 U.S.C. sec. 1 et seq.) and not by any state law concerning
arbitration." (Arbitration Agreement.) It also reads that "[t]he arbitrator shall apply governing substantive law
in making an award." Notwithstanding, both Norman and Kellie Auto support their arguments in their
original merit briefs and their briefs regarding reconsideration with references to Ohio law only, not federal
law.
No. 18AP-32 7
(C) The award is imperfect in matter of form not affecting the
merits of the controversy.
{¶ 15} In Norman, this court found Kellie Auto's request for remand for
modification appropriate; however, none of the grounds for modification outlined in R.C.
2711.11 were met. Kellie Auto's claim that modification was required for application of the
CSPA cure provisions was not based on any flaw in the arbitrator's decision. Rather, the
modification was based on something that happened after the arbitrator issued his decision
and award and after Norman applied for confirmation. The Supreme Court of Ohio has
stated:
R.C. Chapter 2711 does not confer authority on an arbitration
panel to reconsider its awards. Instead, R.C. Chapter 2711
confers jurisdiction only on the trial court, pursuant to R.C.
2711.10 and 2711.11, to vacate, modify or correct arbitration
awards. Furthermore, "when the submitted issues are
decided, the arbitrators' powers expire. Thus, a second award
on a single, circumscribed submission is a nullity." Lockhart
v. Am. Res. Ins. Co. (1981), 2 Ohio App. 3d 99, 102, citing
Bayne v. Morris (1863), 68 U.S. 97, 99. Lockhart also relied
on Citizens Bldg. of W. Palm Beach, Inc. v. W. Union Tel. Co.
(C.A.5, 1941), 120 F.2d 982, 984, which held, "Arbitrators are
appointees with but a single duty and * * * performance of that
duty terminates their authority. When an arbitral board
renders a final award, its powers and duties under the
submission are terminated. Its authority is not a continuing
one, and, after its final decision is announced, it is powerless
to modify or revoke it or to make a new award upon the same
issues." We find this analysis to be well crafted. Accordingly,
the arbitration panel, once it entered the award, had no
authority to reconsider its decision.
(Emphasis sic.) Miller v. Gunckle, 96 Ohio St.3d 359, 2002-Ohio-4932, ¶ 23.
{¶ 16} Further, in BIGResearch, L.L.C., [Prosper Business Dev. Co. Intervenor-
appellant] v. PENN, L.L.C., 10th Dist. No. 11AP-855, 2012-Ohio-2992, ¶ 37 ("Prosper
Business"), we noted that "an arbitrator may not make factual findings with respect to
events that occurred after the conclusion of arbitration." Id., citing Accu-Med Servs., Ltd.
v. Omnicare, Inc., 1st Dist. No. C-020789, 2004-Ohio-655, ¶ 24.
{¶ 17} Here, no cure offer was made as arbitration proceeded and the arbitrator did
not err—requiring vacation or modification—by failing to consider the cure provisions
because no cure offer was made for him to assess. The cure offer was made after the
No. 18AP-32 8
arbitrator's powers expired and he was powerless to modify or revoke his award at the time
Kellie Auto made the cure offer. Kellie Auto did not meet any of the grounds for vacation
or modification in R.C. 2711.10 or 2711.11. Therefore, we agree with Norman that
reconsideration is warranted as application of the CSPA cure provisions in this instance did
not meet the grounds for vacation or modification pursuant to R.C. 2711.10 or 2711.11.2
{¶ 18} Because we have determined that grounds for modification or vacation were
not met, it is not necessary for us to address the merits of the question whether the CSPA
cure provisions apply here.
{¶ 19} Accordingly, we grant Norman's application for reconsideration and vacate
our decision in Norman to sustain the first assignment of error and reverse and remand
the trial court decision on those grounds. We now overrule the first assignment of error.
IV. Affirmation of Original Determination to Overrule the Third Assignment
of Error
{¶ 20} In Norman, we also addressed Kellie Auto's third assignment of error and
determined the trial court did not err when it did not conduct a hearing on Kellie Auto's
application to modify the arbitrator's award. We stated:
Kellie Auto argues a mistake occurred when, on November 30,
2017, the trial court ruled on both Norman's July 11, 2017
application for judgment confirming the arbitration award
and Kellie Auto's August 4, 2017 motion to modify the award
without first conducting any hearing. Consequently, on
December 15, 2017, Kellie Auto filed a motion for relief from
judgment pursuant to Civ.R. 60(B) and a motion to stay the
execution of judgment pursuant to Civ.R. 62(A).
On January 9, 2018, the trial court issued a decision and entry
denying Kellie Auto's Civ.R. 60(B)(1) motion filed
2 Kellie Auto also did not meet the grounds for vacation or modification pursuant to federal law. 9 U.S.C. 10
states an arbitration award may be vacated upon application of any party: "(a)(1) where the award was
procured by corruption, fraud, or undue means; (2) where there was evident partiality or corruption in the
arbitrators, or either of them; (3) where 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; or (4) where
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." 9 U.S.C. 11 states that an arbitration award may be
modified upon the application of any party: "(a) Where there was an evident material miscalculation of
figures or an evident material mistake in the description of any person, thing, or property referred to in the
award. (b) Where the arbitrators have awarded upon a matter not submitted to them, unless it is a matter
not affecting the merits of the decision upon the matter submitted. (c) Where the award is imperfect in
matter of form not affecting the merits of the controversy." As noted above, Kellie Auto did not argue that
any of these grounds were met and we would also determine that none of these grounds were met.
No. 18AP-32 9
December 15, 2017, and a decision entry and order denying
Kellie Auto's motion to stay filed December 15, 2017. The trial
court noted that "Civ.R. 60(B) is a remedial rule to be liberally
construed so that the ends of justice may be served." Kay v.
Marc Glassman, Inc., 76 Ohio St.3d 18, 20 (1996), citing
Colley v. Bazell, 64 Ohio St.2d 243, 249 (1980). The trial court
continued:
To prevail on a Civ.R. 60(B) motion, "the movant must
demonstrate that: (1) the party has a meritorious defense or
claim to present if relief is granted; (2) the party is entitled to
relief under one of the grounds stated in Civ.R. 60(B)(1)
through (5); and (3) the motion is made within a reasonable
time, and, where the grounds of relief are Civ.R. 60(B)(1), (2),
or (3), not more than one year after the judgment, order or
proceeding was entered or taken." GTE Automatic Elec., Inc.,
v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 351 N.E. 2d
113, paragraph two of the syllabus. Furthermore, "Civ.R.
60(B) relief is improper if any one of the foregoing
requirements is not satisfied." Boston v. Parks-Boston, 10th
Dist. Franklin No. 02AP-1031, 2003-Ohio-4263, ¶ 12-13. Only
the first two elements are at issue here.
(Jan. 9, 2018 Decision & Entry at 2.)
The trial court disagreed with Kellie Auto's argument that the
language of R.C. 2711.09 and the holding of Zingarelli v. Lord,
10th Dist. No. 94APE05-699 (Nov. 17, 1994) required the trial
court to hold a hearing on Kellie Auto's Civ.R. 60(B) motion.
As we noted in the Facts and Procedural Background portion
of this decision, the trial court determined that this Court's
decision in [Victoria's Secret Stores, Inc. v. Epstein
Contracting, Inc., 10th Dist. No. 00AP-209 (Mar. 8, 2001)]
was controlling, and that it obviated the need to conduct a
hearing on the motion because Kellie Auto had not requested
a hearing.
The trial court found Epstein to be controlling because
Epstein considered the hearing requirement on motions to
amend and/or modify pursuant to R.C. 2711.09 through
2711.11, while concurrently examining the provisions of R.C.
2711.05, Civ.R. 7(B)(2), and Loc.R. 21.01 of the Franklin
County Court of Common Pleas, General Division. The trial
court continued:
Having determined that Epstein controls, the Court notes that
[Kellie Auto] did not request a hearing. See White v. Fitch,
2015-Ohio-4387, 2015 Ohio App. LEXIS 4332 (Ohio Ct. App.,
No. 18AP-32 10
Cuyahoga County 2015) (holding trial court was within its
authority to deny the home owners' motion to modify or
vacate the arbitration award without a hearing and noting the
owner never requested a hearing, and could have made such
a request in her initial motion to modify or vacate the
arbitration award or in her reply brief). And, this Court did
conduct a status conference and a non-oral hearing "utilizing
the various memoranda filed in support and opposition to
appellees' application to confirm the arbitration award and
appellant's motion to vacate or modify the award." Epstein,
2001 Ohio App. LEXIS 827, at * 14. Accordingly, the Court
holds under Epstein and Fitch that [Kellie Auto] fails to
demonstrate both that [Kellie Auto] has a meritorious defense
or claim to present if relief is granted and that [Kellie Auto] is
entitled to relief under Civ.R. 60(B)(1). [Kellie Auto's] Motion
to Vacate is therefore DENIED under Boston.
(Emphasis sic.) (Jan. 9, 2018 Decision & Entry at 4-5.)
We find the common pleas court's reasoning to be sound.
Accordingly, the common pleas court did not err by not
conducting a hearing on the Kellie Auto's motion to modify
the arbitrator's award before denying the motion, especially
when Kellie Auto did not specifically request a hearing on its
Civ.R. 60(B) motion. Kellie Auto's third assignment of error is
overruled.
Id. at ¶ 39-43.
{¶ 21} We again adopt these points from Norman with respect to Kellie Auto's third
assignment of error.
{¶ 22} Accordingly, we overrule Kellie Auto's third assignment of error.
V. Overruling of the Second Assignment of Error
{¶ 23} Finally, in Norman we declined to address Kellie Auto's second assignment
of error, determining it to be moot based on our original sustaining of the first assignment
of error and reversal of the trial court on these grounds. Now that we have reconsidered
and vacated our original decision, it is necessary for us to address Kellie Auto's second
assignment of error.
{¶ 24} In its second assignment of error, Kellie Auto avers "[t]he lower Court erred
when it affirmed [sic] the Arbitrator's award of attorney fees absent a discussion of the
No. 18AP-32 11
required factors enumerated in Bittner v. Tri-County Toyota, Inc. 58 Ohio St.3d 143, 145,
569 N.E.2d 464 (1991)."3
{¶ 25} Specifically regarding attorney fees, Norman stated:
On June 5, 2017, the arbitrator rendered an award in favor of
Norman, having found that Kellie Auto had knowingly
committed an unfair or deceptive act under the CSPA. Having
heard and considered the parties' evidence, the arbitrator
awarded $53,911.75 to Norman, a sum that included:
***
(3) Attorney's fees and costs – [Norman] is entitled to his
reasonable attorney's fees and costs for this knowing violation
of the CSPA. [Norman] has submitted the affidavits of his
attorneys (Ex. 23 and 24) along with the affidavit of Attorney
DeRose (Ex. 25) attesting to the reasonableness of the rates
submitted. The Arbitrator finds that applying the lodestar
approach set forth by the Ohio Supreme Court in Bittner v.
Tri-County Toyota (1991), 58 Ohio St. 3d 143 an attorney's
fees award of $31,494.50 (an extra $1,000 is awarded for
post-hearing work) is appropriate. In addition, hearing fees of
$127.25 will be imposed;
***
(Sic passim and emphasis added.) (Ex. A at 5-6, attached to
Application.)
Id. at ¶ 9.
3 Bittner, at 145-46, stated: "When awarding reasonable attorney fees pursuant to R.C. 1345.09(F)(2), the
trial court should first calculate the number of hours reasonably expended on the case times an hourly fee,
and then may modify that calculation by application of the factors listed in DR 2-106(B). These factors are:
the time and labor involved in maintaining the litigation; the novelty and difficulty of the questions
involved; the professional skill required to perform the necessary legal services; the attorney's inability to
accept other cases; the fee customarily charged; the amount involved and the results obtained; any
necessary time limitations; the nature and length of the attorney/client relationship; the experience,
reputation, and ability of the attorney; and whether the fee is fixed or contingent. All factors may not be
applicable in all cases and the trial court has the discretion to determine which factors to apply, and in what
manner that application will affect the initial calculation.
Moreover, the trial court determination should not be reversed absent a showing that the court abused its
discretion. 'It is well settled that where a court is empowered to award attorney fees by statute, the amount
of such fees is within the sound discretion of the trial court. Unless the amount of fees determined is so high
or so low as to shock the conscience, an appellate court will not interfere. The trial judge which participated
not only in the trial but also in many of the preliminary proceedings leading up to the trial has an infinitely
better opportunity to determine the value of services rendered by lawyers who have tried a case before him
than does an appellate court.' Brooks v. Hurst Buick-Pontiac-Olds-GMC, Inc. (1985), 23 Ohio App. 3d 85,
91, 23 OBR 150, 155, 491 N.E. 2d 345, 351-352."
No. 18AP-32 12
{¶ 26} When Kellie Auto filed its application to modify the arbitration award,
pursuant to R.C. 2711.11, he requested the trial court "issue an order modifying and
correcting the arbitration award at issue in this action" by applying the CSPA cure
provisions or, alternatively, "remand this matter to the Arbitrator with instructions that he
include an analysis of attorney's fees as required under Bittner v. Tri-County Toyota, 58
Ohio St.3d 143 (1991)." Norman at ¶ 13. The trial court denied Kellie Auto's motion to
modify on November 30, 2017, issuing a final appealable order on December 11, 2017.
Regarding attorney fees, the trial court stated:
The Award specifically states that the 'Arbitrator finds that
applying the lodestar approach set forth by the Ohio Supreme
Court in Bittner * * * an attorney's fee award of $31,494.50 (an
extra $1,000 is awarded for post-hearing work) is
appropriate.' (Award at 6.) Clearly, then, the Arbitrator
considered and utilized the Bittner factors. This alternative
ground is unavailing and Kellie has fallen short of its burden
of proving 'the arbitrator committed an error so patent and
grave as would have required him to change his award.'
[Warner v. CTL Eng., Inc.], 9 Ohio App.3d 52, 55, 458 N.E.2d
399 (10th Dist. 1983). As such the Court DENIES Kellie's
Motion to Modify.
(Emphasis sic.) (Nov. 30, 2017 Decision at 4.)
{¶ 27} Kellie Auto argues the trial court erred in not discussing the factors outlined
in Bittner and, therefore, it is not possible to determine what factors the arbitrator
considered or the weight, if any, it placed on those factors. Kellie Auto argues "[w]ithout
such a statement, an appellate court cannot conduct a meaningful review * * * [and] '[a]
court must give adequate reasoning as to how it arrived at the specific amount of the
award.' " (Emphasis added.) (Kellie Auto's Brief at 23, citing Pack v. Hilock Auto Sales,
10th Dist. No. 12AP-48, 2012-Ohio-4076, ¶ 16, and quoting Ridenour v. Dunn, 10th Dist.
No. 03AP-611, 2004-Ohio-3375, ¶ 10.) Kellie Auto further argues " 'in cases where the
amount recovered is small compared to the attorney fees assessed, the court must give
adequate reasoning as to how it arrived at the specific amount of the award.' " (Emphasis
added.) (Kellie Auto's Brief at 23-24, quoting Whitestone Co. v. Stittsworth, 10th Dist. No.
06AP-371, 2007-Ohio-233, ¶ 60.)
{¶ 28} We overrule Kellie Auto's second assignment of error for several reasons.
No. 18AP-32 13
{¶ 29} First, in the application to modify and reply brief to Norman's memorandum
contra to the application, as well as in the brief before this court, Kellie Auto did not assert
any grounds pursuant to R.C. 2711.10 or 2711.11 for a court to vacate or modify an
arbitrator's award on the grounds asserted in the second assignment of error. Kellie Auto
claims the error by the trial court was failure to discuss Bittner factors and failure to include
an analysis of the factors required. Kellie Auto does not allege the fee amount was incorrect
but, rather, that the procedure used to assess the fees was not proper. Nowhere does Kellie
Auto assert: (1) there was an evident material miscalculation of figures or an evident
material mistake;4 (2) the award was upon a matter not submitted to the arbitrator; or
(3) the award is imperfect in matter of form not affecting the merits of the controversy. It
was not the job of the trial court, nor is it the job of this court, to discern the grounds for
modification, if any. See also Classic Bar & Billiards, Inc. v. Samaan, 10th Dist. No. 08AP-
210, 2008-Ohio-5759, ¶ 17 ("It is the duty of the appellant, not the appellate court, to
construct the legal arguments necessary to support the appellant's assignments of error.").
{¶ 30} Second, as revealed in its argument in support of the second assignment of
error quoted above, Kellie Auto ignores that the role of an arbitrator, trial court, and
appellate court when parties pursue arbitration differs from the role of a trial court and an
appellate court when parties pursue litigation.5
{¶ 31} In Prosper Business, we noted that "in agreeing to arbitration, the parties
trade the procedures and opportunity for review of the courtroom for the simplicity,
informality, and expedition of arbitration." Id.6 at ¶ 52, citing DePalmo v. Schumacher
4 In the application to modify, Kellie Auto argued evident miscalculation of figures and evident material
mistake as grounds for modification that the arbitrator's award must be limited to only that permitted
following a timely exercise of the right to cure. However, in the next section of the application, Kellie Auto
asserted no particular grounds, pursuant to R.C. 2711.11 or 2711.10, as the reason for modifying the award for
failure to properly assess attorney fees.
5 Indeed, the Arbitration Agreement drafted by Kellie Auto states "either you or we may choose to have any
dispute between us decided by arbitration and not in court or by jury trial." (Emphasis omitted.) (Arbitration
Agreement.) It further states "rights to appeal in arbitration are generally more limited than in a lawsuit, and
other rights that you and we would have in court may not be available in arbitration." (Emphasis omitted.)
(Arbitration Agreement.)
6 Also relevant here, in Prosper Business, at ¶ 52, we recognized, referring to Bittner, that "in a civil action in
an Ohio court of law, an award of attorney fees is dependent upon the completion of prescribed procedures
and analyses, e.g., a lodestar analysis. [But the appellant] has not, however, cited any precedent extending
those procedures to arbitrations." Likewise here, Kellie Auto did not cite any precedent extending those
procedures to arbitrations.
No. 18AP-32 14
Homes, Inc., 5th Dist. No. 2001CA272, 2002-Ohio-770, citing Mitsubishi Motors Corp. v.
Soler Chrysler-Plymouth, 473 U.S. 614, 628 (1985). The trial court's role on reviewing an
arbitrator's award is limited. Arbitration awards are presumed valid, and a reviewing court
may not merely substitute its judgment for that of the arbitrator. Id.{¶ 32} " 'Once an arbitration is completed, a court has no jurisdiction except to
confirm and enter judgment (R.C. 2711.09 and 2711.12), vacate (R.C. 2711.10 and 2711.13),
modify (R.C. 2711.11 and 2711.13), correct (R.C. 2711.11 and 2711.13), or enforce the
judgment (R.C. 2711.14).' " Champion Chrysler v. Dimension Serv. Corp., 10th Dist. No.
17AP-860, 2018-Ohio-5248, ¶ 10, quoting State ex rel. R.W. Sidley, Inc. v. Crawford, 100
Ohio St.3d 113, 2003-Ohio-5101, ¶ 22. " 'A trial court may not evaluate the actual merits of
an award and must limit its review to determining whether the appealing party has
established that the award is defective within the confines of R.C. Chapter 2711.' " Id.,quoting Telle v. Estate of William Soroka, 10th Dist. No. 08AP-272, 2008-Ohio-4902, ¶ 9.
Because R.C. Chapter 2711 is the method to challenge an arbitration award, "[t]he
jurisdiction of the courts to review arbitration awards is thus statutorily restricted; it is
narrow and it is limited." Warren Edn. Assn. v. Warren City Bd. of Edn., 18 Ohio St.3d
170, 173 (1985).
{¶ 33} An appellate court's role when reviewing a trial court's determination
regarding arbitration is even more limited. "An appeal may be taken from an order
confirming, modifying, correcting, or vacating an award made in an arbitration proceeding
or from judgment entered upon an award." R.C. 2711.15. However, because "[a] trial court
is precluded from evaluating the actual merits of an award and must confine itself to
determining whether the appealing party has established that the award is defective in a
manner recognized by R.C. Chapter 2711," on appeal, "the standard of review is further
restricted." MBNA Am. Bank, N.A. v. Jones, 10th Dist. No. 05AP-665, 2005-Ohio-6760,
¶ 10-11.
{¶ 34} "[W]hen a court of appeals reviews a trial court's judgment concerning an
arbitration award, the appellate court must confine its review to evaluating the order issued
by the trial court pursuant to R.C. Chapter 2711." State v. Ohio Civ. Serv. Emps. Assn.,
Local 11 AFSCME AFL-CIO, 10th Dist. No. 14AP-906, 2016-Ohio-5899, ¶ 13. Thus, when
"an appeal is taken from an order confirming, modifying, correcting, or vacating an
arbitration award, the review is confined to the order and the original arbitration
No. 18AP-32 15
proceedings are not reviewable." Robert W. Setterlin & Sons v. N. Mkt. Dev. Auth., Inc.,
10th Dist. No. 99AP-141 (Dec. 30, 1999), citing Lockhart v. Am. Reserve Ins. Co., 2 Ohio
App.3d 99, 101 (8th Dist.1981). "[W]hen reviewing a decision of a common pleas court
confirming, modifying, vacating, or correcting an arbitration award, an appellate court
should accept findings of fact that are not clearly erroneous but decide questions of law de
novo." Portage Cty. Bd. of Dev. Disabilities v. Portage Cty. Educators' Assn. for Dev.
Disabilities, 153 Ohio St.3d 219, 2018-Ohio-1590, ¶ 26.
{¶ 35} The arbitration agreement here states that an "arbitrator shall apply
governing substantive law in making an award." It further states that "[e]ach party shall be
responsible for its own attorney, expert and other fees, unless awarded by the arbitrator
under applicable law." (Arbitration Agreement.) The trial court points out, the arbitrator
cited Bittner—the Ohio applicable law—and considered and utilized the Bittner factors. We
agree the arbitrator applied governing Ohio law in making the award of attorney fees.
{¶ 36} Third, notwithstanding that it was not the trial court's role to evaluate the
merits of the arbitrator's award, and the original arbitration proceedings are not reviewable
by the appellate court, we do note that Kellie Auto did not address the award of attorney
fees in its post-hearing brief before the arbitrator when he had the opportunity to argue the
merits of the arbitrator's award of attorney fees.
{¶ 37} Attached to Norman's memorandum contra to Kellie Auto's application to
modify were Exhibits C and D. Exhibit C contained Norman's post-arbitration brief
submitted to the arbitrator. Pages 27-32 of Norman's post-arbitration brief address his
request for attorney fees and specifically addresses the Bittner factors.7 Attached to
7 In addition to the affidavits and time sheets, Norman also referred the arbitrator to an analysis of the
reasonableness of fees. Norman stated in his brief, and we have confirmed in reviewing the record: "In
addition to the time records and affidavits Plaintiff's attorneys submitted with the post-arbitration brief,
Plaintiff extensively briefed his entitlement to attorneys' fees. (See Exhibit C at 27-32.) Plaintiff outlined the
ten (10) factors used by courts (following Bittner) to analyze the reasonableness of attorney fees. Id.Additionally, Plaintiff's counsel submitted its well-documented and contemporaneous time reports detailing
the amount of time as well as affidavits regarding the number of hours worked and their hourly rates of
recompense and argued that, pursuant to Bittner, they constitute sufficient evidence of reasonableness to
determine the basis of attorneys' fees. See Bittner, 58 Ohio St.3d at 145. Further support of Plaintiff's
attorneys' rates was submitted using Judge Rubin's 1983 committee's determination of reasonable attorney
fee rates that is still currently used by the Southern District of Ohio. Under Judge Rubin's rubric, the rates
requested are comparable and Plaintiff included a chart to compare Plaintiff's attorneys' fee rates compared
to Judge Rubin's rubric using 1983 rates calculated for 2016 rates and applied a 4% annual cost-of-living
allowance to measure the reasonableness of the fees requested. Applying the Rubin Rate as of 2016, the rates
for attorney Coffman was $352 per hour and the rate for attorney Bryant is $263 per hour." (Emphasis sic.)
(Norman's Memo. Contra Mot. to Modify at 12-13.)
No. 18AP-32 16
Norman's post-arbitration brief were exhibits 23, 24, and 25—affidavits and detailed time
sheets of Norman's attorneys Coffman and Bryant, as well as the affidavit of Attorney
DeRose opining on reasonableness of Coffman and Bryant's fees and quality of work; as
well as detailed description and breakdown by hours spent of Norman's counsels' work on
his behalf. Exhibit D contained Kellie Auto's post-arbitration brief. Kellie Auto's post-
arbitration brief states simply that Norman is not entitled to attorney fees, but does not
address the reasonableness of Norman's counsels' fees or work or any of the Bittner factors.
Nor does it complain that the arbitrator did not analyze the request for attorney fees award
pursuant to Bittner.
{¶ 38} In Bittner, the Supreme Court observed that " '[i]t is well settled that where a
court is empowered to award attorney fees by statute, the amount of such fees is within the
sound discretion of the trial court. Unless the amount of fees determined is so high or so
low as to shock the conscience, an appellate court will not interfere. The trial judge which
participated not only in the trial but also in many of the preliminary proceedings leading
up to the trial has an infinitely better opportunity to determine the value of services
rendered by lawyers who have tried a case before him than does an appellate court.' " Id.
at 146, quoting Brooks v. Hurst Buick-Pontiac-Olds-GMC, Inc., 23 Ohio App.3d 85, 91
(12th Dist.1985). The same reasoning applies here to the arbitrator. The arbitrator, who
participated in the arbitration and preliminary proceedings leading up to the arbitration,
had an infinitely better opportunity to determine the value of services rendered by the
lawyers who arbitrated before him than the trial court asked to modify the award and more
so than the appellate court asked to review the trial court's confirming of the award and
denial of the motion to modify the award.
{¶ 39} Taking all these factors into consideration, including the trial court's limited
role in considering applications to confirm and modify an arbitrator's award, as well as our
own limited role in reviewing the trial court's decisions, we cannot say the trial court clearly
erred or abused its discretion in confirming the arbitrator's award and amount of attorney
fees and denying Kellie Auto's application to modify the same.
{¶ 40} Accordingly, we overrule Kellie Auto's second assignment of error.
{¶ 41} Finally, we note that on December 12, 2018, Norman filed a motion for post-
arbitration attorney fees and costs with the trial court. Norman requested the trial court
provide an opportunity to request additional attorney fees and costs incurred as part of
No. 18AP-32 17
post-judgment collection efforts given Kellie Auto's continued refusal to pay the amounts
recovered in this dispute. On January 9, 2019, the trial court denied Kellie Auto's motion
to vacate judgment, pursuant to Civ.R. 60, and motion to stay. Although the trial court did
not expressly rule on Norman's motion in the January 9, 2019 entry, we construe the trial
court's silence as a denial of the same. See State ex rel. The V Cos. v. Marshall, 81 Ohio
St.3d 467, 469 (1998) (holding that an appellate court ordinarily presumes that a trial court
denied a motion when the trial court fails to explicitly rule on the motion). In his original
merit brief, Norman requested the order remand to the trial court solely to determine the
additional attorney fees and costs incurred resulting from Kellie Auto's unnecessary and
avoidable conduct following its refusal to pay the award. Norman did not, however, raise
this as an assignment of error.8 Furthermore, the trial court did affirm the arbitrator's
award of an extra $1,000 for post-arbitration work. Therefore, we decline to remand this
case to the trial court to consider any additional post-arbitration attorney fees.
VI. Conclusion
{¶ 42} For the foregoing reasons, we grant Norman's application for reconsideration
and vacate the original decision. We overrule the first assignment of error. Consistent with
the original decision, we overrule the third assignment of error. Further, we overrule the
second assignment of error. Norman's motion to supplement the record is moot. The
judgments of the Franklin County Court of Common Pleas are affirmed.
Reconsideration granted;
original decision vacated; judgments affirmed.
NELSON, J., concurs.
BRUNNER, J., dissents.
NELSON, J., concurring.
{¶ 43} I concur fully in the decision of the court.
{¶ 44} Reconsideration is warranted particularly because the original panel
decision, it seems to me, altered two important Ohio statutes: the Arbitration Act (by ruling
that a court can and must modify an arbitrator's decision based on conduct a party
undertakes after the arbitration award has issued) and the CSPA (by permitting what the
8Pursuant to App.R. 16, "[the court] do[es] not determine appeals based on mere arguments and may dismiss
any arguments not specifically included in an assignment of error." Curry v. Columbia Gas of Ohio, Inc., 10th
Dist. No. 19AP-618, 2020-Ohio-2693, ¶ 14.
No. 18AP-32 18
decision itself called "potential abuses" whereby a supplier can circumvent the result of its
own arbitration contract and escape the treble damages and attorney fees the Act provides
when no cure has been offered before final determination, compare Norman, 2019-Ohio-
360, at ¶ 33). We should avoid starting down either path.
{¶ 45} As we now affirm, a common pleas court "shall grant" a timely application for
confirmation of an arbitration award "unless the award is vacated, modified, or corrected
as prescribed in" R.C. 2711.10 and 2711.11. R.C. 2711.09. The court can vacate the
arbitration award only if it was procured by fraud, or the arbitrator displayed "evident
partiality or corruption" or was guilty of procedural misconduct or exceeded his or her
powers "or so imperfectly executed them that a mutual, final, and definite award" was not
made. R.C. 2711.10. And a court may modify an arbitration award only if "[t]here was an
evident material miscalculation of figures or an evident material mistake" in a description
in the award, or the award was on a matter not submitted to arbitration or the award was
"imperfect in matter of form not affecting the merits of the controversy." R.C. 2711.11.
{¶ 46} Here, our earlier decision found "Kellie Auto's request for remand for
modification appropriate," 2019-Ohio-360, at ¶ 34, but not on the basis of any of the
exclusive grounds for modification specified in R.C. 2711.11. Indeed, the basis for the
ordered modification does not relate to any claimed flaw at all in the arbitrator's decision;
the arbitrator apparently made no miscalculation of figures or mistake in describing the
award, which was not imperfect in form, and the matter had been submitted to him. The
modification was ordered on the strength of something that happened well after the award
issued and after Mr. Norman had applied for confirmation. But the structure and text of
Ohio's arbitration statutes do not countenance such after the fact tinkering. "For a dispute
resolution procedure to be classified as 'arbitration,' the decision rendered must be final,
binding and without any qualification or condition as to the finality of an award whether or
not agreed to by the parties. The decision may only be questioned pursuant to the
procedure set forth in R.C. 2711.13 [regarding a motion to vacate, modify, or correct an
award] on grounds enumerated in R.C. 2711.10 and 2711.11." Schaefer v. Allstate Ins. Co.,
63 Ohio St.3d 708, 711 (1992).
{¶ 47} Contrary to the suggestion of our earlier decision here, I do not think that we
"harmoniz[e]" the arbitration statutes with the CSPA by ignoring or interpreting away the
plain text of R.C. 2711.11 regarding the limited grounds for modifying an arbitration award.
No. 18AP-32 19
Compare 2019-Ohio-360, at ¶ 34 (further positing that arbitrator made a "material
miscalculation" in arbitration award by not prognosticating post-award cure offer). And
observing the terms of the arbitration statutes as written does not strip suppliers of the
protections provided by the "cure" provisions of the CSPA. For starters, arbitration in this
context is available and binding only if both parties agree to it—just as Kellie Auto did here,
through contract language it drafted and then agreed to and then invoked providing that "
'any claim * * * which arises out of or relates to * * * [the] purchase or condition of this
vehicle * * * shall, at your or our election, be resolved by * * * binding arbitration and not
by court action.' " See 2019-Ohio-360, at ¶ 3, quoting arbitration agreement. Kellie Auto
acknowledges that it "was the first to raise the existence of an arbitration clause. The
purpose of doing so was to remind the Plaintiff that this matter would ultimately be decided
by arbitration. It was." Answer in Opposition to Motion for Reconsideration at 8. Just so.
{¶ 48} Moreover, there can be no argument here that the arbitrator ignored the law
in failing to consider CSPA cure provisions, because Kellie Auto made no cure offer for him
to assess. The parties proceeded through arbitration, an award was issued, and Mr.
Norman had applied for confirmation before Kellie Auto advanced its offer. Compare
2019-Ohio-360, at ¶ 23 (quoting Kellie Auto on the "historical backdrop" of the CSPA as
designed to provide " 'opportunity to cure violations before protracted litigation' ").
Therefore, and as noted in the decision above, we need not reach and we decline to
catalogue what hypothetical procedural permutations could permit a valid CSPA cure offer
in the arbitration context; it would be for arbitrators in appropriate cases, and not for an
advisory opinion of this court, to decide in the first instance whether a particular cure offer
would have effect in a particular circumstance being arbitrated by agreement. In any event,
the language of the CSPA indicates that any operative cure offer must precede any final
award in binding arbitration. The notice that must accompany a cure offer for it to have
effect, for example, is to recite in part that "[r]ejection of this cure offer could impact your
ability to collect court costs and legal fees. If * * * [an] arbitrator finds in your favor, but
does not award you an amount more than the value of the supplier's remedy, the supplier
will not be responsible for treble damages, attorney's fees, [etc.]"; the statute also specifies
that "[i]f * * * [an] arbitrator awards actual economic damages * * * that are not greater
than the value of a supplier's remedy included in a cure offer made pursuant to this section,
the consumer shall not be entitled to * * * [a]n award of treble damages * * *." R.C.
No. 18AP-32 20
1345.092(D)(2) and (G)(1) (emphasis added). Both the word "if" and the references to an
"award" (with all its attendant confirmation provisions) signal in this context that the
arbitrator's ruling is envisioned prospectively, not retrospectively. To the same effect, I
myself do not read the statutory predicate for a right to cure (requiring an "action seeking
a private remedy pursuant to section 1345.09 of the Revised Code," see R.C. 1345.092(A)
(emphasis added)) to encompass an application made pursuant to R.C. 2711.09 to confirm
an arbitration award (an application that the court "shall grant" absent specified
circumstances for vacating, modifying, or correcting it, see R.C. 2711.09).
{¶ 49} A proper understanding of both the Arbitration Act and of the CSPA, it seems
to me, or of either one, avoids the "potential abuses" conceded by our initial decision that
would come with judicially rewriting an arbitration award for "a supplier [who] could insist
on arbitration, refuse to pay, force a court action, and [then] make a cure offer * * * that is
the same as or just higher than the economic damage amount awarded by an arbitrator
* * *." 2019-Ohio-360, at ¶ 33. The initial decision concluded that such rewriting "appears
to be how the legislature intended for the CSPA to work," id., but I find nothing in the
legislative language to suggest that the General Assembly intended to reward such
gamesmanship on the part of CSPA violators by amending the arbitration statutes. And
while Kellie Auto hints that it considers selling rebuilt salvage to an unsuspecting buyer
without notice to be "a merely technical violation of the CSPA," see Answer in Opposition
to Motion for Reconsideration at 7, I do not believe that anything here turns on that
questionable characterization.
{¶ 50} I entirely concur in granting reconsideration, in vacating our original
decision, in overruling Kellie Auto's assignments of error, and in affirming the judgments
of the Franklin County Court of Common Pleas.
BRUNNER, J., dissenting.
{¶ 51} I respectfully dissent from the majority decision and concurring decision on
reconsideration of Norman v. Kellie Auto Sales, Inc., 10th Dist. No. 18AP-32, 2019-Ohio-
360 ("Norman" or "original decision"). The majority in its two decisions has not specifically
pointed out under the standard for reconsideration of a prior appellate decision either that
which is an obvious error under the law, or an issue that was not properly considered at all
No. 18AP-32 21
by the court in the first instance. Instead, the majority states in only the majority decision,
"[w]e believe the grounds for reconsideration have been met." (Majority decision at ¶ 10.)
{¶ 52} The majority decision contains a cite to the 1981 case of Matthews v.
Matthews, 5 Ohio App.3d 140 (10th Dist.1981), as authority for the standard of review on
reconsideration. However, a more recent statement of that standard is:
An application for reconsideration is not intended for cases in
which a party simply disagrees with the reasoning and
conclusions of the appellate court. Drs. Kristal & Forche,
D.D.S., Inc. v. Erkis, 10th Dist. No. 09AP-06, 2009-Ohio-6478,
¶ 2, citing State v. Owens, 112 Ohio App.3d 334, 336, 678
N.E.2d 956 (11th Dist.1996). An application for reconsideration
will be denied where the moving party "simply seeks to 'rehash
the arguments' " presented in the initial appeal. Appenzeller v.
Ohio Dept. of Rehab & Corr., 10th Dist. No. 17AP-747, 2018-
Ohio-1698, ¶ 4, quoting Garfield Hts. City School Dist. v. State
Bd. of Edn., 85 Ohio App.3d 117, 127, 619 N.E.2d 429 (10th
Dist.1992). Thus, if an application for reconsideration does
not raise an issue that either was not considered at all or was
not fully considered, nor demonstrates the court made an
obvious error or rendered a decision unsupportable under the
law, it should not be disturbed. [State v.] Harris, [10th Dist.
No. 13AP-1014, 2014-Ohio-672,] ¶ 8.
(Emphasis added.) Hal v. State Dept. of Edn., 10th Dist. No. 18AP-301, 2020-Ohio-204,
¶ 2. My point here is that the majority decision should educate the reader (1) under what
standard is it essentially reversing itself on reconsideration, especially with a new panel of
judges, and (2) how it is applying such a standard, demonstrating that the previous decision
was unsupportable under the law or that a particular issue was not at all considered in the
earlier decision. I do not believe it has done that here, and thus, procedurally,
reconsideration is not warranted.
{¶ 53} Second, in the interest of brevity and finality for the parties, I reiterate and
incorporate the substantive holding in Norman as the substantive basis for my dissent, as
that decision reviews an application, to the facts of this case, of the statutes in question—
the Ohio Consumer Sales Practices Act and the state's statutes on arbitration. Our prior
review of the application of those two statutes to the facts at hand in this case is one that is
supportable under the law and thus not subject to reconsideration, according to Hal,
whether or not it reaches a desirable result.
No. 18AP-32 22
{¶ 54} In my view, the statement of the law in our original decision, is as the
legislature intended for amendments to the Consumer Sales Practices Act to apply in
conjunction with its arbitration statutes. If the result should be better, it is up to the
legislature to repair its language. It is not for us to construe or re-construe it in an effort to
improve it. To strain our analysis to reach a different conclusion on reconsideration knee
caps predictability of case precedent in our district and takes us outside our jurisdiction as
set forth in Ohio Constitution, Article IV, Section 3(B)(2), which provides that our
jurisdiction is "as [is] provided by law."
{¶ 55} When interpreting statutes, we must first apply their plain meaning:
Unambiguous statutes are to be applied according to the plain
meaning of the words used, Roxane Laboratories, Inc. v.
Tracy (1996), 75 Ohio St. 3d 125, 127, 661 N.E.2d 1011, 1012,
and courts are not free to delete or insert other words, State ex
rel. Cassels v. Dayton City School Dist. Bd. of Edn. (1994), 69
Ohio St. 3d 217, 220, 631 N.E.2d 150, 153.
State ex rel. Burrows v. Indus. Comm., 78 Ohio St.3d 78, 81 (1997). Moreover, a court must
read all statutes relating to the same general subject matter together to give proper force
and effect to each one. In re Duke Energy Ohio, Inc., 150 Ohio St.3d 437, 2017-Ohio-5536,
¶ 27.
{¶ 56} I believe the first decision in this matter in Norman, based on the plain
meaning of the Consumer Sales Practices Act and the state's arbitration statutes, gives effect
to both. If the legislature did not intend such an outcome, it is incumbent on the legislature
to modify its statutes and not on us to modify our decision on reconsideration, especially
when the decision in the matter does not bear obvious error and is supportable under the
law.
{¶ 57} Finally, I respectfully point out that both the majority and concurring
decisions vacate this Court's prior decision in Norman via reconsideration. But such action
is neither authorized nor supported under App.R. 26, because nowhere in the Rules of
Appellate Procedure are we authorized to vacate our own decisions. Perhaps interlocutory,
non-final orders may be vacated, but no such authorization appears in the appellate rules
for applications for reconsideration.
No. 18AP-32 23
{¶ 58} I submit that this Court has no authority under the Rules of Appellate
Procedure to vacate its own decisions and judgments on reconsideration.9 And in the past,
as noted in footnote 1, we have reconsidered decisions without having vacated them. In
civil cases, only language in the appellate rules relating to en banc consideration discusses
the vacating of an earlier decision and that language is somewhat moot, since App.R. 26(B)
does not now require a decision to be vacated "in the event of a sua sponte decision to
consider a case en banc." App.R. 26, Staff Note (July 1, 2012 Amendment). This Court
should have simply reconsidered its decision and not vacated the earlier decision, and to do
this is error.
{¶ 59} It is for these reasons that I respectfully dissent from the majority decision
and concurring decision, constituting a majority of the panel on reconsideration.
9 App.R. 26(A)(1) is silent about what an appellate court should do in the event it reconsiders a prior decision,
and this district has been inconsistent in what it does. See State v. Wade, 10th Dist. No. 06AP-644, 2008-
Ohio-1797, wherein we reconsidered our decision without vacating it, and Grothaus v. Warner, 10th Dist. No.
08AP-115, 2008-Ohio-6683, wherein we reversed part of an earlier decision without vacating it. See also State
v. Morris, 10th Dist. No. 10AP-512, 2011-Ohio-5484, ¶ 8, wherein we stated, "[w]e find that reconsideration
is proper because we admittedly relied, in part, upon a concession that was withdrawn. Accordingly, we grant
appellee's application. This decision shall therefore replace the decision rendered in [State v. Morris, 10th
Dist. No. 10AP-512, 2011-Ohio-2226]." But compare Spitznagel v. State Bd. of Edn., 10th Dist. No. 07AP-
757, 2008-Ohio-6080, ¶ 11, where we vacated an earlier decision that was no longer supportable by law
because of a Supreme Court of Ohio decision that was decided the same day as the decision that was
reconsidered.