Cleveland Browns Football Co., L.L.C. v. Antonio's Pizza, Inc. ( 2024 )

[Cite as Cleveland Browns Football Co., L.L.C. v. Antonio's Pizza, Inc., 2024-Ohio-1686.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CLEVELAND BROWNS FOOTBALL
COMPANY, L.L.C., :
Plaintiff-Appellee, :
No. 113301
v. :
ANTONIO’S PIZZA, INC., ET AL., :
Defendants-Appellants. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 2, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-23-978087
Appearances:
Zashin & Rich Co., L.P.A., Stephen S. Zashin, and
Jonathan A. Rich, for appellee.
Flowers & Grube, Paul W. Flowers, and Kendra N. Davitt,
for appellants.
EILEEN T. GALLAGHER, J.:
This cause came to be heard on the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1. Defendant-appellant, Antonio’s Pizza, Inc. (“API”),
appeals from the trial court’s judgments following the confirmation of an arbitration
award in favor of plaintiff-appellee, Cleveland Browns Football Co. L.L.C.
(“Plaintiff”). API raises the following assignments of error for review:
1. The trial court erred, as a matter of law, by refusing to exercise its
inherent authority to vacate the judgment confirming an arbitration
award that was void for lack of jurisdiction.
2. Alternatively, the trial court erred as a matter of law by denying the
motion to vacate the order confirming the invalid arbitration award in
accordance with R.C. 2711.10(D) and R.C. 2711.11(A) and (B).
After careful review of the record and relevant case law, we affirm the
trial court’s judgment.
I. Procedural and Factual History
This appeal stems from a 2019-2020 Sponsorship Agreement entered
into between the Cleveland Browns Football Company, L.L.C., and Antonio’s Pizza,
Inc., on March 13, 2019. The Sponsorship Agreement permitted API, as the sponsor,
to use the Cleveland Browns’ “sponsorship benefits” in exchange for an annual fee
in the amount of $156,560. The agreement was executed by David A. Jenkins, the
plaintiff’s “EVP and Chief Operating Officer,” and Vincent LoSchiavo (“Vincent”), a
“Partner” of API. The record reflects that Vincent is the brother of API’s authorized
representative, Joe LoSchiavo (“J. LoSchiavo”).
Relevant to this appeal, the Sponsorship Agreement contains an
arbitration clause, which provides as follows:
15. Governing Law; Dispute Resolution. This Agreement is subject to
and shall be construed in accordance with the laws of the State of Ohio
without regard to its choice of law provisions. Any controversy or claim
arising out of or relating to this Agreement, or breach thereof, shall be
settled by binding arbitration administered by the American
Arbitration Association [(“AAA”)] in accordance with its commercial
arbitration rules, and judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. Any
arbitration shall take place in Cuyahoga County, OH.
(Sponsorship Agreement, section 15.)
A. Arbitration Proceedings
On November 11, 2020, plaintiff filed notice of its intent to invoke the
arbitration provision based upon API’s alleged failure to pay fees in accordance with
the terms of the Sponsorship Agreement. The demand for arbitration listed API as
the respondent and sought damages in the amount of $156,560. The demand was
later amended by plaintiff to include “all entities doing business as Antonio’s Pizza
or that otherwise benefited from the Agreement.”
On November 24, 2020, Charles V. Longo, Esq. (“Attorney Longo”)
filed an answering statement on behalf of API. The answering statement asserted
as follows:
The Sponsorship Agreement upon which the claims asserted in this
matter are based, and which is attached to the Demand for Arbitration
was not executed by [API]. The [AAA] lacks subject matter jurisdiction
over the claims presented in this matter and lacks personal jurisdiction
over [API]. [API] does not consent to the jurisdiction of the AAA or its
authority to hear and/or adjudicate the claims presented in this matter.
Therefore, the subject case should be dismissed.
The basis of API’s jurisdictional arguments stemmed from allegations
that API was mistakenly named in the Sponsorship Agreement and that Vincent
intended to enter into the agreement on behalf of La Famiglia Management &
Distribution, Inc. (“La Famiglia”), which operates under the trademark name of
“Antonio’s Pizza.”
On October 7, 2021, Attorney Longo filed a motion, this time on behalf
of La Famiglia, seeking an order dismissing the demand for arbitration or, in the
alternative, an order reforming the Sponsorship Agreement to name “the real party
in interest, La Famiglia, as Sponsor.” Consistent with the claim raised in API’s
answering statement, La Famiglia stated as follows:
In this case, the Cleveland Browns Football Company drafted the
contract, mistakenly naming [API] as a party, instead of La Famiglia.
After the contract was drafted, [Vincent], a non-lawyer, mistakenly
signed the contract without noticing the improperly named party but
intended to enter the contract on behalf of La Famiglia. Under Ohio
law, it is axiomatic that any ambiguity or mistake in a contract must be
construed against the party responsible for drafting the document. * * *
The mistake, when construed against Claimant must result in, at the
very least, substituting La Famiglia as the Sponsor.
On December 28, 2021, the arbitrator issued an order denying the
pending motions filed on behalf of the respondents. The arbitrator found, in
relevant part:
Based upon the parties’ briefs, the Arbitrator finds that jurisdiction
exists over Respondent, [API], for the simple reason that it is a
signatory to the Sponsorship Agreement in question. That Agreement,
as pointed out by [plaintiff], contains a mandatory arbitration clause
consenting to arbitration administered by the [AAA] pursuant to its
Commercial Rules. Accordingly, [API] is subject to the jurisdiction of
this Arbitration.
The arbitrator further noted that “the intent issues raised” by API and La Famiglia
would be resolved “at the hearing on the merits.”
The matter proceeded to a hearing before the arbitrator on August 29,
2022. At the conclusion of the proceeding, the arbitrator issued a decision, dated
December 27, 2022, granting judgment in favor of plaintiff and against API in the
amount of $104,153.00.1 La Famiglia was not held liable under the terms of the
Sponsorship Agreement.
B. Common Pleas Court Proceedings
On April 14, 2023, plaintiff filed an application with Cuyahoga County
Court of Common Pleas, seeking an order confirming the arbitration award
pursuant to R.C. 2711.09. API did not contest the request for confirmation.
Accordingly, on June 5, 2024, the trial court granted plaintiff’s application and
confirmed the arbitration award. On July 28, 2023, a certification of judgment was
issued by the clerk of courts in the amount of $104,153, plus interest and costs.
On August 4, 2023, API filed a motion to vacate the order confirming
the arbitration award “for lack of subject matter jurisdiction under R.C. 2711.o9 or,
in the alternative, as permitted by Civ.R. 60(B)(1) or (5).” API argued the trial court
lacked jurisdiction to confirm the award because plaintiff failed to provide timely
notice of the arbitrator’s decision and, therefore, the court was required to provide
API “the opportunity to seek to vacate or modify the arbitrator’s decision through
R.C. 2711.10 and 2711.11.” Alternatively, API argued the confirmation order should
be vacated pursuant to Civ.R. 60(B) because it was not a proper party to the
Sponsorship Agreement. Consistent with the claims raised in its answering
statement, API maintained that plaintiff “misidentified [API] as the sole sponsor
under the agreement” and that Vincent entered into the agreement exclusively on
1 The copy of the decision included in this record is significantly redacted.
Accordingly, the analysis supporting the arbitrator’s conclusions of fact and law are not
before this court.
behalf of La Famiglia. Thus, API asserted that it “was never a valid signatory to the
Sponsorship Agreement and had never consented to jurisdiction before the [AAA].”
API’s motion to vacate the confirmation order was supported by (1)
the affidavit of Attorney Longo; (2) a copy of API’s answering statement filed with
the AAA on November 24, 2020; (3) a copy of La Famiglia’s October 7, 2021 motion
to dismiss; (4) a copy of plaintiff’s demand for arbitration; (5) the affidavit of J.
LoSchiavo; (6) the affidavit of La Famiglia’s certified public accountant, Stephen
Sartschev (“Sartschev”); and (7) the affidavit of Vincent.
Relevant to the issues posed in this appeal, Vincent’s affidavit
corroborated API’s assertion that it was mistakenly named in the Sponsorship
Agreement. Vincent averred, in relevant part:
2. On or around March 13, 2019, I signed the Sponsorship Agreement
(“Contract”) which was proposed by a representative of the Cleveland
Browns Football Company, L.L.C., (“Browns”) attached hereto as
Exhibit 1.
3. The Browns drafted the Contract, which appears to be very similar
to the first Sponsorship Agreement entered on August 10, 2017, which
misnamed the Sponsor which I also understand was prepared by the
Browns.
4. I am not a partner or shareholder of [API], an entity that is not
related to or interested in the Contract.
5. I am a member/partner of [La Famiglia] which is the entity that
should have been identified in the contract as the Sponsor.
6. Before signing the Contract, I did not recognize that the Browns
mistakenly identified [API] as the Sponsor in the Contract.
7. I intended to enter the Contract on behalf of La Famiglia.
8. I had no intention to enter a contract on behalf of [API] and have
not possessed authority to enter contracts on behalf of [API].
(Vincent aff. at ¶ 2-8.) Attorney Longo and Sartschev similarly averred that API and
La Famiglia are distinct entities that are under different ownership, management,
and control. (Attorney Longo aff. at ¶ 2; Sartschev aff. at ¶ 8.)
On August 4, 2023, API separately filed a motion to vacate or modify
the arbitration award pursuant to R.C. 2711.10 or 2711.11. Again, API maintained
that it was not a party to the Sponsorship Agreement and, therefore, “the arbitrator
exceeded his powers or imperfectly executed them by imposing damages against a
non-party to the arbitration.” Alternatively, API claimed that the trial court should
modify the arbitration award to correct “an evident material mistake * * * as there
was an unmistakable mix-up over which business had entered a contractual
relationship with [plaintiff].”
On September 1, 2023, plaintiff filed a brief in opposition to API’s
motions. In relevant part, plaintiff argued that API’s motion to vacate or modify the
arbitration award was untimely because it was filed beyond the statutory time frame
set forth in R.C. 2711.13. Moreover, plaintiff argued that API’s motion to vacate the
confirmation order was equally meritless because API did not appeal from the trial
court’s judgment, and a Civ.R. 60(B) motion cannot be used as a substitute for a
timely appeal. Finally, plaintiff argued that the trial court was limited to the record
before the arbitrator and, therefore, API was not permitted to introduce new
evidence for the court’s consideration, including affidavits that were not proffered
during the arbitration proceedings.
In support of its brief in opposition, plaintiff relied on (1) a copy of
API’s answering statement, wherein Attorney Longo represented that he was acting
as counsel for “Respondent, [API]”; (2) an image from the AAA Portal
Representatives Page, which listed Attorney Longo as the “Lead Representative” for
API; (3) an email correspondence, dated December 17, 2022, notifying Attorney
Longo of the attached Arbitrator’s Award; (4) various letters sent to plaintiff by
Attorney Longo on behalf of his “client,” “[API],” regarding the “2020 Season
Sponsorship Agreement”; and (5) the preliminary order of the arbitrator finding
“jurisdiction exists over Respondent, [API].”
On October 19, 2023, the trial court issued a journal entry denying
API’s pending motions, stating:
The arbitration hearing in this matter was held on August 29, 2022.
The arbitration award was issued on December 27, 2022 to all parties
including defendant [API]. Pursuant to ORC Section 2711.13, “After an
award in an arbitration proceeding is made, any party to arbitration
may file a motion in the court of common pleas for an order vacating,
modifying, or correcting the award * * *. Notice of a motion to vacate,
modify, or correct an award must be served upon the adverse party or
his attorney within three months after the award is delivered to the
parties in interest * * *.” In [Girard v. AFSCME Ohio Council 8, Local
Union 3356, 11th Dist. Trumbull No. 2003-T-0098, 2004-Ohio-7230],
the Ohio Eleventh Appellate District held, “[T]he general definition of
‘delivery’ is the act by which the res or substance thereof is placed
within the actual or constructive possession or control of another
* * *[.] It is not necessary that delivery should be by manual transfer,
e.g., “‘deliver’” includes mail[.] * * * When an arbitration decision is
delivered to the parties through the mail, the post-mark date is the
most accurate and verifiable date to be used to determine when the
decision was ‘delivered.’” In this case, the court finds that the delivery
of the arbitration award to defendant [API] took place on or about
December 27, 2022. Defendant [API] did not file a motion to vacate,
modify, or correct the award within the three months mandated by
ORC 2711.13. Defendant [API]’s motion to vacate or modify arbitration
award filed on 08/04/23 and defendant [API]’s motion to vacate order
confirming arbitration award filed on 08/04/23 are denied.
API now appeals from the trial court’s judgment.
II. Law and Analysis
A. Civ.R. 60(B)
In the first assignment of error, API argues the trial court committed
reversible error by denying its Civ.R. 60(B) motion for relief from judgment and by
refusing to exercise its inherent authority to vacate the order confirming an
arbitration award that was void for lack of jurisdiction.
In this case, API sought relief from the trial court’s confirmation order
pursuant to Civ.R. 60(B). The rule delineates several reasons for which a party may
obtain relief from a final judgment:
On motion and upon such terms as are just, the court may relieve a
party or his legal representative from a final judgment, order or
proceeding for the following reasons: (1) mistake, inadvertence,
surprise or excusable neglect; (2) newly discovered evidence which by
due diligence could not have been discovered in time to move for a new
trial under Rule 59(B); (3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation or other misconduct of an
adverse party; (4) the judgment has been satisfied, released or
discharged, or a prior judgment upon which it is based has been
reversed or otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or (5) any other reason
justifying relief from the judgment.
To prevail on a motion under Civ.R. 60(B), the movant is required to
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., 47 Ohio St.2d 146, 351 N.E.2d 113(1976), paragraph two of the syllabus. Civ.R. 60(B) relief is not warranted if any one
of the requirements is not satisfied. State ex rel. Russo v. Deters, 80 Ohio St.3d 152,
154, 684 N.E.2d 1237 (1997), citing State ex rel. Richard v. Seidner, 76 Ohio St.3d
149, 151, 666 N.E.2d 1134 (1996).
An appellate court reviews a trial court’s decision denying a Civ.R.
60(B) motion for an abuse of discretion. State ex rel. Hatfield v. Miller, 172 Ohio
St.3d 247, 2023-Ohio-429, 223 N.E.3d 391, ¶ 8, citing Rose Chevrolet, Inc. v.
Adams, 36 Ohio St.3d 17, 21, 520 N.E.2d 564 (1988); Strack v. Pelton, 70 Ohio St.3d
172, 174, 637 N.E.2d 914 (1994). An abuse of discretion occurs when a trial court’s
decision is “unreasonable, arbitrary, or unconscionable.” State v. Hill, 171 Ohio
St.3d 524, 2022-Ohio-4544, 218 N.E.3d 891, ¶ 9, citing Blakemore v. Blakemore, 5
Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
In its motion to vacate the trial court’s confirmation order, API argued
that it had a meritorious claim under R.C. 2711.10 and 2711.11 and was entitled to
relief under Civ.R. 60(B)(1) or (5) based upon “plaintiff’s ‘mistake’ of misidentifying
API for La Famiglia in its Sponsorship Agreement and demand for arbitration[.]”.
API further alleged that it requested relief under Civ.R. 60(B) within a reasonable
amount of time of the confirmation order.
“A common pleas court has jurisdiction to confirm an arbitration
award pursuant to R.C. 2711.09.” Ohio Council 8 v. Cleveland, 8th Dist. Cuyahoga
No. 103354, 2016-Ohio-1128, ¶ 7. The statute provides that “[a]t any time within
one year after an award in an arbitration proceeding is made, any party to the
arbitration may apply to the court of common pleas for an order confirming the
award.” It follows with, “[t]hereupon the court shall grant such an order and enter
judgment thereon, unless the award is vacated, modified, or corrected as prescribed
in sections 2711.10 and 2711.11 of the Revised Code.” Id. “‘The language of R.C.
2711.09 is mandatory. If no motion to vacate or modify an award is filed, the court
must confirm an arbitration award given a timely motion under R.C. 2711.09.’”
Hughes v. Hughes, 10th Dist. Franklin No. 19AP-865, 2020-Ohio-5026, ¶ 10,
quoting MBNA Am. Bank, N.A. v. Jones, 10th Dist. Franklin No. 05AP-665, 2005-
Ohio-6760, ¶ 14. As explained by the Ohio Supreme Court,
It is thus clear that when a motion is made pursuant to R.C. 2711.09 to
confirm an arbitration award, the court must grant this motion if it is
timely, unless a timely motion for modification or vacation has been
made and cause to modify or vacate is shown.
Warren Edn. Assn. v. Warren City Bd. of Edn., 18 Ohio St.3d 170, 174, 480 N.E.2d
456 (1985).
In this case, plaintiff filed its application for confirmation of the
arbitration award on April 14, 2023, and the court granted the motion on June 5,
2023. At the time the confirmation request was before the court, API had not filed
a timely motion to vacate, modify, or correct the arbitration award. Accordingly, the
trial court was required to grant plaintiff’s motion for a confirmation order pursuant
to the unambiguous language of R.C. 2711.09.
The record further reflects that API did not file an appeal from the trial
court’s confirmation order.2 Instead, API filed the instant Civ.R. 60(B) motion. It
is long established that when a party fails to file a timely appeal of a final appealable
order, it waives the right to appeal any errors contained within the order. E.g.,
Cornell v. Shain, 1st Dist. Hamilton No. C-190722, 2021-Ohio-2094, ¶ 24, citing In
re Appropriation for Juvenile & Probate Div. for 1979, 62 Ohio St.2d 99, 101, 403
N.E.2d 974 (1980); Jordan v. Jordan, 5th Dist. Delaware No. 15 CAF 08 038, 2015-
Ohio-4261, ¶ 12; and In re Bell, 7th Dist. Noble No. 04 NO 321, 2005-Ohio-6603.
See also Heida v. R.M.S./Forest City Ents., 8th Dist. Cuyahoga No. 83908, 2004-
Ohio-3875. Similarly, Ohio courts have routinely recognized that “[a] litigant
cannot use a Civ.R. 60(B) motion for relief from judgment as a substitute for a timely
appeal.” Hatfield, 172 Ohio St.3d 247, 2023-Ohio-429, 223 N.E.3d 391, at ¶ 12,
citing Harris v. Anderson, 109 Ohio St.3d 101, 2006-Ohio-1934, 846 N.E.2d 43, ¶ 9.
See also Doe v. Trumbull Cty. Children Servs. Bd., 28 Ohio St.3d 128, 502 N.E.2d
2 R.C. 2711.15 states as follows: “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.” Thus, an order that confirms, modifies, corrects, or
vacates an arbitration award is appealable under R.C. 2711.15. Buyer’s First Realty Inc.
v. Cleveland Area Bd. of Realtors, 139 Ohio App.3d 772, 780, 745 N.E.2d 1069 (8th
Dist.2000); Binns v. Sterling Jewelers, Inc., 9th Dist. Summit No. 24522, 2009-Ohio-
3359, ¶ 16.
605 (1986), paragraph two of the syllabus. “Civ.R. 60(B) exists to resolve injustices
that are so great that they demand a departure from the strict constraints of res
judicata.” Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21
N.E.3d 1040, ¶ 15. “However, the rule does not exist to allow a party to obtain relief
from his or her own choice to forgo an appeal from an adverse decision.” Id.In this case, API attempted to utilize Civ.R. 60(B) to litigate
arguments that were not previously raised before the trial court or in a timely appeal.
Under these circumstances, we find the trial court properly denied API’s Civ.R.
60(B) motion as an improperly filed substitute for a timely appeal. See JP Morgan
Chase Bank v. Loseke, 8th Dist. Cuyahoga No. 111983, 2023-Ohio-1893, ¶ 23;
Guadalupe v. Minadeo, 8th Dist. Cuyahoga No. 98077, 2012-Ohio-5071, ¶ 8 (“When
a party merely reiterates arguments that concern the merits of the case and that
could have been raised on appeal, relief under Civ.R. 60(B) is not available as a
substitute for appeal.”).
API attempts to avoid the implications of the foregoing case law by
suggesting that (1) the arbitrator “never possessed jurisdictional authority over
[API],” (2) “the issue of whether a written arbitration clause existed between the
parties is one of subject-matter jurisdiction,” and (3) the “[l]ack of subject-matter
jurisdiction may be raised at any stage of proceedings, including on appeal.”3 API
does not dispute the jurisdiction of the trial court to grant the confirmation order.
3 We note that, generally, “the authority to vacate a void judgment is not derived
from Civ.R. 60(B), but rather constitutes an inherent power possessed by Ohio courts.”
Patton v. Diemer, 35 Ohio St.3d 68, 70, 518 N.E.2d 941 (1988).
Rather, API suggests that the arbitrator lacked jurisdiction to issue an award against
an “unsuspecting non-signatory” who did not consent to the arbitration provision
contained within the underlying contract.
In support of its jurisdictional argument, API relies on this court’s
decision in Teramar Corp. v. Rodier Corp., 40 Ohio App.3d 39, 40, 531 N.E.2d 721,
723 (8th Dist.1987). The dispute addressed in Teramar arose from a franchise
agreement entered into between Teramar Corporation and Promafil Corporation in
August 1978. The agreement was signed by Theresa Stakich (“Stakich”) in her
capacity as the president of Teramar Corporation. The franchise agreement
contained a provision requiring the parties to arbitrate “any controversy or claim
arising out of or relating to this agreement or the breach thereof.” On the same date
the franchise agreement was executed, Stakich separately signed another document
entitled “guaranty,” wherein she personally guaranteed Teramar Corporation’s
debts. The guarantee agreement did not contain an arbitration clause.
In 1981, Promafil Corporation assigned its interest in the franchise
agreement to Rodier Corporation. Thereafter, Rodier Corporation filed a demand
for arbitration based on Teramar Corporation’s alleged default. The matter
proceeded to arbitration and an arbitration award was entered against Teramar
Corporation and Stakich jointly and severally.
In November 1985, Rodier Corporation filed a motion in the common
pleas court seeking confirmation of the arbitration award. Stakich filed an objection
to the application contending that the trial court did not have jurisdiction to confirm
an award against her. In March 1986, the trial court affirmed the arbitration award
against both Teramar and Stakich.
On appeal, Stakich reiterated her argument that the trial court did not
have jurisdiction to confirm the arbitration award absent a contract clause between
the parties providing for arbitration. Upon review, this court agreed with Stakich’s
interpretation of the underlying agreements and reversed the trial court’s
confirmation award. In reaching this conclusion, this court noted that although
there was an arbitration clause in the franchise agreement signed by Stakich in her
professional capacity, there was no such clause in the guaranty signed by Stakich in
her personal capacity. Id. at 40. This court explained that
[w]hile Stakich was certainly aware of the provisions of the contract
that she signed on behalf of Teramar, that does not mean that she
understood that the arbitration clause of that contract applied with
equal force to the separate guaranty agreement. Under the
circumstances, we hold that Stakich is not bound personally by the
arbitration clause contained in the franchise agreement.
Id. at 41.
The panel in Teramar, 40 Ohio App.3d 39, 40, 531 N.E.2d 721, 723
(8th Dist.1987), further concluded that Stakich did not waive her jurisdictional
arguments by challenging the arbitrator’s award outside the statutory-time period
designated in R.C. 2711.13. This court explained as follows:
Lack of subject-matter jurisdiction may be raised at any stage in the
proceedings, although not previously asserted in the action, including
raising it for the first time on appeal. Thus, an allegation that the
arbitration panel lacked jurisdiction, based upon the absence of an
arbitration clause requisite for the exercise of the panel’s jurisdiction,
is not waived by the failure to assert it within three months of the
delivery of the award.
Id. at 41-42.
After careful consideration, we find the circumstances addressed in
Teramar to be distinguishable from those presented in this matter. In Teramar,
the limited issue before this court was whether the arbitration panel had jurisdiction
over an individual who executed a franchise agreement on behalf of a corporation.
This court reasoned that the corporation’s president was not personally bound by
the agreement’s binding arbitration provision because she was not a party to the
contract. Tellingly, this court only addressed the portion of the arbitration award
rendered against Stakich. Id. at 40. The parties did not dispute that Teramar
Corporation, the named party in the franchise agreement, was subject to the
mandatory arbitration provision and the judgment of the arbitration panel.
This case does not concern the liability of the individual who executed
the Sponsorship Agreement on behalf of API or whether the AAA had jurisdiction
over that person in their personal capacity. Rather, API’s obligations as a named
party to the Sponsorship Agreement are more akin to Teramar Corporations
obligations as the named party in the franchise agreement assessed in Teramar.
Here, there is no dispute that (1) API is designated as the “Sponsor” in the executed
Sponsorship Agreement, (2) API is the named corporation on the Sponsorship
Agreement’s signatory page, (3) the Sponsorship Agreement contains an
unambiguous arbitration clause that granted the AAA exclusive jurisdiction of any
and all claims arising from the agreement, (4) API received timely notice of
plaintiff’s demand for arbitration, and (5) API filed an answering statement in
response to the arbitration demand. As recognized by the arbitrator, the four
corners of the Sponsorship Agreement demonstrated that the AAA had both subject
matter jurisdiction over the case and personal jurisdiction over API as the
designated sponsor.4 Whether Vincent had the authority to execute the Sponsorship
Agreement on behalf of API and whether API was mistakenly named in the
agreement concerned issues of material fact to be resolved by the arbitrator on their
merits. See Sebold v. Latina Design Build Group, L.L.C., 2021-Ohio-124, 166
N.E.3d 688, ¶ 39 (8th Dist.) (“‘This court has repeatedly held that “in the face of a
valid arbitration clause, questions regarding the validity of the entire contract must
be decided in arbitration.””’), quoting Wisniewski v. Marek Builders, Inc., 2017-
Ohio-1035, 87 N.E.3d 696, ¶ 37 (8th Dist.) (Keough, J., dissenting), citing Coble v.
Toyota of Bedford, 8th Dist. Cuyahoga No. 83089, 2004-Ohio-238, ¶ 20, quoting
Weiss v. Voice/Fax Corp., 94 Ohio App.3d 309, 313, 640 N.E.2d 875 (1st Dist.1994);
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. 473 U.S. 614, 626, 105
S.Ct. 3346, 87 L.Ed.2d 444 (1985); see also Assn. of Cleveland Fire Fighters, Local
93 of the Internatl. Assn. of Fire Fighters v. Cleveland, 8th Dist. Cuyahoga No.
94361, 2010-Ohio-5597, ¶ 10 (“Where a contract contains an arbitration clause * * *
defenses addressed to the contract itself must be decided by the arbitrator.”).
4 Because API was unambiguously named as the “Sponsor” in the Sponsorship
Agreement, its reliance on cases discussing a court’s inherent authority to vacate
arbitration awards entered against “non-signatories” is equally unpersuasive.
Based on the foregoing, we reject API’s assertion that the arbitrator’s
award was “jurisdictionally void.” Although cloaked in jurisdictional terms, API is
merely attempting to challenge the weight of the arbitrator’s judgment by raising
liability defenses that were previously rejected during the arbitration proceedings
and could have been raised in a timely motion under R.C. 2711.13 or an appeal from
the confirmation order.
The first assignment of error is overruled.
B. R.C. 2711.10 and 2711.11
In the second assignment of error, API argues the trial court
committed reversible error by denying the motion to vacate the confirmation order
pursuant to R.C. 2711.10 and 2711.11. API contends that the arbitrator exceeded its
authority by issuing a judgment against a nonsignatory to the Sponsorship
Agreement. API further contends that its motion was timely filed in compliance
with R.C. 2711.13 because it did not receive notice of the arbitrator’s decision until
May 4, 2023.
To encourage the resolution of disputes in arbitration, judicial review
of arbitration awards is limited. Franklin Cty. Sheriff v. Teamsters Local No. 413,
2018-Ohio-3684, 120 N.E.3d 413, ¶ 17 (10th Dist.). “R.C. Chapter 2711 provides the
exclusive statutory remedy which parties must use in appealing arbitration awards
to the courts of common pleas.” Galion v. Am. Fedn. of State, Cty. & Mun. Emps.,
Ohio Council 8, AFL-CIO, Local No. 2243, 71 Ohio St.3d 620, 646 N.E.2d 813 (1995),
paragraph two of the syllabus. Pursuant to R.C. 2711.13, “[a]fter an award in an
arbitration proceeding is made, any party to the arbitration may file a motion in the
court of common pleas for an order vacating, modifying, or correcting the award as
prescribed in sections 2711.10 and 2711.11 of the Revised Code.”
R.C. 2711.10 provides that a court may vacate an arbitration award
under the following circumstances:
(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.
In turn, R.C. 2711.11 permits a trial court to modify an arbitrator’s
award 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;
(C) The award is imperfect in matter of form not affecting the merits of
the controversy.
Relevant to this appeal, R.C. 2711.13 further sets forth the time period
in which a motion to vacate, modify, or correct an arbitration award must be filed.
The statute provides that “notice of a motion to vacate, modify, or correct an award
must be served upon the adverse party or his attorney within three months after the
award is delivered to the parties in interest[.]” Id. The Ohio Supreme Court has
recognized that “the language of R.C. 2711.13 is clear, unmistakable and, above all,
mandatory.” Galion, 71 Ohio St.3d 620, 646 N.E.2d 813 (1995), at 622. Thus,
R.C. 2711.13 provides a three-month period within which a party must
file a motion to vacate, modify, or correct an arbitration award under
R.C. 2711.10 or 2711.11. If an application is filed after this period, the
trial court lacks jurisdiction.
Id.As used in R.C. 2711.13, the term “delivered” is not defined by the
statute. Thus, it must be given its plain and ordinary meaning. Kimble v. Kimble,
97 Ohio St.3d 424, 2002-Ohio-6667, 780 N.E.2d 273, ¶ 6 citing Sharp v. Union
Carbide Corp., 38 Ohio St.3d 69, 70, 525 N.E.2d 1386 (1988), and R.C. 1.42.
Relevant to this case, Ohio courts have made the following observations regarding
the term “delivered”:
A review of the definition of “‘delivery’” in Black’s Law Dictionary
reveals the term is used in several different contexts, including: actual
delivery, constructive delivery, absolute delivery, and conditional
delivery. However, the general definition of “‘delivery’” is: “[t]he act by
which the res or substance thereof is placed within the actual or
constructive possession or control of another. * * * What constitutes
delivery depends largely on the intent of the parties.”
Girard v. AFSCME Ohio Council 8, Local Union 3356, 11th Dist. Trumbull No.
2003-T-0098, 2004-Ohio-7230, ¶ 13; Beaver v. Beaver, 4th Dist. Pickaway No.
18CA5, 2018-Ohio-4460, ¶ 27.
In this case, the arbitrator’s award was issued on December 27, 2022.
The written decision was delivered by the AAA to all counsel of record, including
Attorney Longo, in an electronic correspondence dated December 27, 2022.
Applying the plain meaning of the term, we deem the arbitrator’s award as being
“delivered” to API as of December 27, 2022. See Mun. Constr. Equip. Operators’
Labor Council v. Cleveland, 197 Ohio App.3d 1, 2011-Ohio-5834, 965 N.E.2d 1040,
¶ 24 (8th Dist.) (“We conclude that the [arbitrator’s] decision was rendered when it
was transmitted by the arbitrator via email.”). API did not file its motion to vacate
or modify the award until August 4, 2023 – well after the time period designated in
R.C. 2711.13 had expired. Because (1) the arbitrator had jurisdiction over API and
plaintiff’s claims under the Sponsorship Agreement; and (2) API failed to file its
motion to vacate or modify the arbitrator’s award within the required three-month
period, we find the trial court appropriately denied the motion to vacate or modify
the arbitration award.
The second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., and
EMANUELLA D. GROVES, J., CONCUR