Bellaire City Schools Bd. of Ed. v. Paxton
| Decision Date | 18 July 1979 |
| Docket Number | 78-893,MID-STATES,Nos. 78-856,s. 78-856 |
| Parties | , 13 O.O.3d 58, 6 A.L.R.4th 645 BELLAIRE CITY SCHOOLS BOARD OF EDUCATION, Appellant, v. PAXTON et al., Appellees.ELECTRIC, INC., Appellee, v. MOSSER CONSTRUCTION, INC., Appellee, City of Youngstown, Board of Control, et al., Appellants. |
| Court | Ohio Supreme Court |
Syllabus by the Court
An order of a trial court which stays all proceedings before it pursuant to R.C. 2711.02 and compels arbitration between the parties who have contracted to do so pursuant to R.C. 2711.03, is not a final appealable order pursuant to R.C. 2505.02 when it does not, in effect, determine the action and prevent a judgment.
These causes result from separate actions filed in the Courts of Common Pleas of Belmont and Mahoning Counties. Both causes were initiated as the result of alleged breaches of construction contracts. The contracts, between the prime contractors and their subcontractors, were drawn up according to the standard form provided by the American Institute of Architects, AIA Document A201, entitled "General Conditions of the Contract for Construction." The standard form is made up of 14 articles, among them the one pertinent to these causes, Section 7.10, Arbitration, which provides as follows:
In case No. 78-856, Bellaire City Schools Board of Education v. Paxton, the facts are as follows:
The plaintiff-appellant Bellaire City Schools Board of Education ("Bellaire") entered into a construction contract with defendant-appellee Jerome Miller Sons, Inc., as general contractor and defendant-appellee Mansuetto Roofing Company ("Mansuetto") as the roofing subcontractor. Defendant-appellee Kenneth G. Paxton was the architect whose plans were utilized in the building process.
Allegedly, within one year after completion of the construction project, numerous leaks developed throughout the entire roof system. After repeated attempts by Mansuetto to correct the problem failed, and after negotiations between all parties became fruitless, Bellaire commenced a lawsuit in the Court of Common Pleas on January 23, 1978, nearly ten years after this cause of action arose.
The defendant Mansuetto moved, pursuant to R.C. 2711.02, for a stay of the lawsuit, and requested that the matter be submitted to arbitration. The trial court granted this motion for a stay and ordered that the matters alleged in the complaint be submitted to arbitrators.
Bellaire appealed to the Court of Appeals for Belmont County on May 25, 1978. Mansuetto filed a motion to dismiss the appeal based upon the argument that the order of the trial court staying the lawsuit was not a final appealable order. The Court of Appeals granted this motion and further denied Bellaire's application for reconsideration.
The Court of Appeals, finding its judgment to be in conflict with the judgment of the Court of Appeals for Hamilton County in Systems Construction, Inc. v. Worthington Forest (1975), 46 Ohio App.2d 95, 345 N.E.2d 428, certified the record of the case to this court for review and final determination.
In case No. 78-893, Mid-States v. Mosser, the facts are as follows:
Plaintiff-appellee Mid-States Electric Co., Inc. ("Mid-States"), was the electrical subcontractor for work involved on the south side unit of the Youngstown Hospital. Defendant-appellee Mosser Construction Co., Inc. ("Mosser"), was the general contractor on the project and defendant-appellee Aetna Casualty & Surety Co., Inc. ("Aetna"), was the performance and payment bond surety for Mosser. Defendant-appellant City of Youngstown ("City") was the owner of the property on which the project was located, while defendant-appellant Youngstown Hospital Association ("Hospital") was the lessee and equitable owner of the project.
As a result of various additional costs incurred during the performance of the electrical work, Mid-States initiated a demand for arbitration. Subsequently, upon demand made by Mosser, Mid-States filed the instant action in the Court of Common Pleas of Mahoning County, seeking judgment against defendants Mosser, the City, and the Hospital, in accordance with the anticipated award of the arbitrators in the pending arbitration; and, in the event of non-payment by those parties, judgment in like amount against Aetna as surety, a determination of the validity of the mechanic's liens filed by Mid-States against the property, and foreclosure of the liens.
The Hospital filed a counterclaim against Mid-States and a cross-claim against Mosser, and sought a declaratory judgment of its rights and a stay of arbitration pending such judgment.
The trial court, upon motion for partial summary judgment (I. e., solely on the issue of stay of arbitration) made by Mosser, ordered the parties to arbitrate the disputes arising from the performance of the work, in accordance with the contracts between the parties. Upon the motion of Mid-States, the trial proceedings were stayed pending the outcome of the arbitration proceedings.
The City and Hospital appealed those rulings to the Court of Appeals for Mahoning County, which held that the ruling by the trial court was not an appealable order, and thereupon dismissed the appeal.
The Court of Appeals, finding its judgment to be in conflict with the judgment of the Court of Appeals for Franklin County in Systems Construction, Inc., v. Worthington Forest, supra, certified the record of the case to this court for review and final determination.
These causes, having been certified, and raising essentially the same issue, are consolidated for consideration and decision herein.
Malik, Malik & Knapp, Charles F. Knapp and Daniel L. Frizzi, Jr., Bellaire, for appellant Bellaire City Schools Bd. of Edn. in case No. 78-856.
Thomas & Thomas and Harold B. Thomas, Bridgeport, for appellee Mansuetto Roofing Co. in case No. 78-856.
Roth & Stephens, Jerry O. Stephens, Richard B. Blair, Youngstown, Walstad & Asselin, Thomas H. Asselin and Joseph H. Kasimer, Vienna, Va., for appellee Mid-States Elec. Co. in case No. 78-893.
Arter & Hadden, Hugh M. Stanley, Cleveland, and John A. Jenkins, Columbus, for appellee Mosser Const. Co. in case No. 78-893.
Harrington, Huxley & Smith, William C Ramage and Eldon S. Wright, Youngstown, for appellant Youngstown Hospital Assn. in case No. 78-893.
William R. Copperman, Youngstown, for appellant City of Youngstown in case No. 78-893.
The critical issue raised in the two appeals before us can be phrased as follows: Is an order of a trial court, pursuant to R.C. 2711.02 * Et seq., staying further proceedings in a pending action, and ordering parties who have contracted to do so to submit to arbitration, a final appealable order as defined in R.C. 2505.02?
The jurisdiction of the Court of Appeals can be no more extensive in matters involving non-original jurisdiction, than the grant set forth in Section 3(B) (2), Article IV of the Ohio Constitution, which limits it to " * * * such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals * * *."
An appealable order is defined in R.C. 2505.02 as follows:
"An order affecting a substantial right in an action which In effect determines the action and prevents a judgment, an order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order vacating or setting aside a judgment and ordering a new trial is a final order which may be reviewed, affirmed, modified, or reversed, with or without retrial." (Emphasis added.)
In Pewter Mug v. M. U. G. Enterprises, Inc. (1975), 46 Ohio App.2d 93, 94, 345 N.E.2d 426, 427 the Court of Appeals for Franklin County enumerated the requirements to establish an appealable order pursuant to R.C. 2505.02, as follows:
" If * * * (the trial court's order) lacks one of the three qualifications of (a) affecting a substantial right, (b) determining the action, or (c) preventing a judgment, it cannot be a final order, for all three attributes must concur to make it such."
Numerous jurisdictions have held that if a court has retained jurisdiction over the parties, even though all issues have been referred to arbitration, the court's order to arbitrate and its stay of trial are final and appealable only after judgment is entered on the...
To continue reading
Request your trial
-
Eagle v. Fred Martin Motor Co.
...disputes. Schaefer v. Allstate Ins. Co. (1992), 63 Ohio St.3d 708, 711-712, 590 N.E.2d 1242; Bellaire City Schools Bd. of Edn. v. Paxton (1979), 59 Ohio St.2d 65, 70, 13 O.O.3d 58, 391 N.E.2d 1021; Griffith v. Linton (1998), 130 Ohio App.3d 746, 750-751, 721 N.E.2d 146. Additionally, a pres......
-
State v. Gustafson
...stay, there being no final order (unlike the defendant appealing a license suspension). Cf. Bellaire City Schools Bd. of Edn. v. Paxton (1979), 59 Ohio St.2d 65, 13 O.O.3d 58, 391 N.E.2d 1021, The obvious question, then, is why would a driver take the breath test? Suppose a driver receives ......
-
Hamilton County Bd. of Mental Retardation and Developmental Disabilities v. Professionals Guild of Ohio
...arbitration proceedings, should be read in pari materia with R.C. 2505.02. See, also, Bellaire City Schools Bd. [1989 SERB 108] of Edn. v. Paxton (1979), 59 Ohio St.2d 65, 13 O.O.3d 58, 391 N.E.2d 1021. In Harris, supra, we were faced with the question of whether a letter issued by the Depa......
-
Bos Material Handling, Inc. v. Crown Controls Corp.
...v. Golden Gate etc. Dist. [1979] 23 Cal.3d 180, 189, 151 Cal.Rptr. 837, 588 P.2d 1261) and Ohio (Bellaire City Schools Bd. of Ed. v. Paxton [1979] 59 Ohio St.2d 65, 391 N.E.2d 1021, 1024; Universal Underwriters Ins. Co. v. Shuff [1981] 67 Ohio St.2d 172, 423 N.E.2d 417, 418-419) embrace a j......