Barhorst v. Hanson Pipe , 169 Ohio App. 3d 778 ( 2006 )

{¶ 14} Respectfully, I must dissent from the majority's analysis and conclusion. This case does not call upon us to determine the declaratory judgment action; rather, we are called upon to determine whether the parties' dispute is subject to the arbitration clause set forth in their contract.

{¶ 15} As the majority noted, "[t]he question of arbitrability, which has been defined as `whether an agreement creates a duty for the parties to arbitrate the particular grievance,' should be decided preliminarily by the trial court and not the arbitrator." LeROI Internatl. v. Gardner DenverMack, Inc., 3d Dist. No. 17-03-20, 2004-Ohio-4163,2004 WL 1770494, at ¶ 18, quoting Council of Smaller Ents. v.Gates, McDonald Co. (1998), 80 Ohio St.3d 661, 666,687 N.E.2d 1352. However, "issues of contract interpretationare properly determined by the arbitrator and not the trial court." (Emphasis added.). Id., citing Southwest Ohio Reg.Transit Auth. v. Amalgamated Transit Union, Local 627 (2001), 91 Ohio St.3d 108, 110, 742 N.E.2d 630.

{¶ 16} The facts are undisputed that appellee calculated net equity. In support of their motion for summary judgment, appellants filed the affidavit of Nelson E. Barhorst, who stated that appellee had calculated net equity. Attached to the affidavit was a copy of an e-mail sent from appellee's agent, clearly showing the calculation.

{¶ 17} Appellants' arguments are based on their dissatisfaction with the end result of the calculation. I recognize that the conflict underlying the calculation stems from an issue of contract interpretation. However, the contract clearly and unambiguously requires arbitration for "adispute as to the calculation of Net Equity from the Closing Balance Sheet." (Emphasis added.). Appellee performed the calculation to appellants' dissatisfaction. Regardless of why the calculation is unsatisfactory to appellants, the result of the calculation is the basis of the dispute, which is clearly and unambiguously appropriate for arbitration pursuant to the parties' agreement. Any discrepancy in the contract language establishing the formula or methodology for calculating net equity is an issue of contract interpretation, which, as noted above, is an issue subject to arbitration.

{¶ 18} Had appellee failed to calculate net equity, I might have been inclined to join the majority; however, because appellee did perform the calculation, remanding this cause for the trial court to decide the declaratory judgment action puts the cart before the horse. For the reasons stated, I would overrule appellants' assignment of error and affirm the judgment of the trial court.