Davidson v. Bucklew

The lead opinion finds error in the denial of the motion to dismiss for failure to state a claim. This holding is based upon the public policy favoring arbitration, the belief that the arbitration contract is ambiguous, and the existence of an adequate remedy at law.

Appellee filed an action for declaratory judgment. In conjunction, appellee prayed for injunctive relief preventing the arbitration panel from reconvening. Clearly, the declaration of the rights of the parties to an arbitration agreement sets forth a proper claim for relief under R.C. Chapter 2711.

The lead opinion cites the strong public policy favoring arbitration and finds that pursuing declaratory relief violates this public policy. R.C. 2711.02, states:

"* * * the court * * *, upon being satisfied that the issue * * * is referable to arbitration * * *, shall * * * stay the trial of the action until arbitration of the issue has been had in accordance with the agreement * * *."

Accordingly, the public policy favoring arbitration is protected by R.C. 2711.02, when the trial court is satisfied that an issue is referable to arbitration. Case law construing R.C. 2711.02 holds that any doubts should be resolved in favor of arbitration. See, also, State ex rel. Williams v. Belpre CitySchool Dist. Bd. of Edn. (1987), 41 Ohio App. 3d 1, 9,534 N.E.2d 96, 103, citing McGinnis v. E.F. Hutton Co., Inc. (C.A.6, 1987), 812 F.2d 1011, 1013. The lead opinion would find such a doubt in the language of the arbitration agreement, which provides:

"In the event of any dispute or controversy arising out of the diagnosis, treatment, or the care of the patient by the provider of medical services, the dispute or controversy shall be submitted to binding arbitration."

The lead opinion finds that this language provides for essentially unlimited arbitration, and construes it against appellee, the maker of the arbitration agreement.

While the parties may contract for a determination of prejudgment interest through arbitration, there is no express authorization. In the absence of such an express authorization, R.C. 1343.03(C) must prevail, and the issue of prejudgment interest is not referable to arbitration.

Springfield Local Assn. of Classroom Teachers v. SpringfieldLocal School Dist. Bd. of Ed. (1987), 37 Ohio App. 3d 167,525 N.E.2d 27, stands for the proposition that the arbitrability of an issue may be the proper subject of arbitration, if the parties so agree.

However, Internatl. Bhd. of Teamsters, Chauffeurs,Warehousemen Helpers of America, Local 20 v. Toledo (1988),48 Ohio App. 3d 11, 13, 548 N.E.2d 257, 260, states:

"It is unquestionably within the province of the court to decide whether a specific grievance is arbitrable. UnitedSteelworkers of America v. American Mfg. Co. (1960),363 U.S. 564, 570-571 [80 S. Ct. 1343, 1364-1365, 4 L. Ed. 2d 1403, 1403] (Brennan, J., concurring). See, also, AT T Technologies, Inc.v. Communications Workers of America (1986), 475 U.S. 643, 649 [106 S. Ct. 1415, 1418, 89 L. Ed. 2d 648, 656]."

Additionally, Vulcan-Cincinnati v. United Steelworkers ofAmerica (1960), 113 Ohio App. 360, 17 O.O.2d 386,173 N.E.2d 709, at paragraph two of the syllabus, states:

"In such case, in an action by the employee to enforce arbitration, the arbitrability of the dispute is a matter of law for the decision of the court, and not the arbitrator, where the agreement contains no express provision conferring such power upon the arbitrator, there is nothing in the agreement from which it could be implied, and the subject matter of the arbitration is definite." See Franklin Cty. Sheriff's Dept. v.Fraternal Order of Police, Capital City Lodge No. 9 (1991),59 Ohio St. 3d 173, 176, 572 N.E.2d 93, 95, dissenting opinion by Holmes, J.; and Tye v. Polaris Joint Vocational School Dist. Bd.of Edn. (1988), 44 Ohio App. 3d 76, 80, 541 N.E.2d 466, 469, dissenting opinion by Patton, J.

The proper forum to determine the arbitrability of prejudgment interest was the trial court, and the motion to dismiss was properly denied, as prejudgment interest was not referable to arbitration. Accordingly, I would affirm the trial court's action.

Prejudgment interest may not be granted upon an unconfirmed arbitration award, but the lead opinion also holds that an adequate remedy at law precludes injunctive relief. Instead, the arbitration panel should be allowed to consider the issue of prejudgment interest. If they erroneously grant prejudgment interest, then the award may be vacated under R.C. 2711.10. Thus, the majority finds there to be an adequate remedy at law.

The remedy is not an adequate one. American Fedn. of State,Cty. Mun. Emp., Ohio Council 8, Local 100, AFL-CIO v.Cleveland (1990), 69 Ohio App. 3d 128, 131, 590 N.E.2d 286, 288, states:

"However, we find that appellee had no plain and adequate remedy in the ordinary course of law. R.C. 2711.09 is not an ordinary remedy. R.C. Title 27 is specifically subtitled ``Special Remedies.' The courts of this state have concluded that other R.C. Title 27 remedies, including mandatory injunction and declaratory judgment, are extraordinary remedies which, standing alone, do not preclude mandamus. * * *"

State ex rel. Brown v. Canton (1980), 64 Ohio St. 2d 182, 185, 18 O.O.3d 401, 403, 414 N.E.2d 412, 414, states:

"In reaching this decision, we must analyze what constitutes an ``adequate remedy.' This question was addressed in State, exrel. Paul Stutler, Inc., v. Yacobucci (1958), 108 Ohio App. 41 [9 O.O.2d 107, 160 N.E.2d 300], affirmed [1959], 169 Ohio St. 20 [7 O.O.2d 487, 157 N.E.2d 357], wherein the court [108 Ohio App.], at page 46 [9 O.O.2d at 109, 160 N.E.2d at 303], stated that an ``adequate remedy' means a remedy ``"complete in its nature, beneficial and speedy."' (Quoting from State, ex rel.Merydith Const. Co., v. Dean [1916], 95 Ohio St. 108, 123 [116 N.E. 37, 41].)"

Appellee must participate in an improper arbitration proceeding, share equally in its expense, R.C. 2711.23, and then move to have the order vacated. Appellee must subsequently avoid paying the panel, or recover this amount from appellant. Again, this remedy is not adequate. Countless times injunctive relief has issued in order to avoid the needless accumulation of damages by either maintaining the status quo during the pendency of an action, or enforcing the court's determination thereafter. The lead opinion's interpretation of an adequate remedy at law negates the trial court's ability to avoid unnecessary, and wasteful litigation.

Accordingly, I respectfully dissent.