Russo v. Chittick, 54850

• Decision Date: 01 August 1988
• Docket Number: No. 54850,54850
• Citation: 48 Ohio App.3d 101,548 N.E.2d 314
• Parties: RUSSO, Appellant, v. CHITTICK et al., Appellees.
• Court: Ohio Court of Appeals

Page 101

48 Ohio App.3d 101

548 N.E.2d 314

RUSSO, Appellant, v. CHITTICK et al., Appellees.

No. 54850.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Aug. 1, 1988.

Syllabus by the Court

1. The legal and factual conclusions of awards obtained through binding arbitration are not reviewable in the common pleas court. A common pleas court is limited to ascertaining whether fraud, corruption, misconduct, arbitration impropriety or evident mistake made the award unjust or unconscionable.

2. R.C. 2711.09 enables any party to seek summary confirmation of an award obtained through binding arbitration within one year of the award. The common pleas court shall grant the confirmation if made within one year unless a timely motion to vacate or modify has been made and grounds for vacation or modification are shown.

3. R.C. 2711.09 is not tantamount to a statute of limitations. In the interest of judicial economy the common pleas court has the discretion to permit summary application for confirmation within a reasonable time beyond one year, for good cause shown, if no prejudice occurs to the opposing party by the filing of the motion beyond said period.

Howard V. Mishler, Cleveland, for appellant.

James L. Blaszak, Elyria, for appellees.

KRUPANSKY, Presiding Judge.

Appellant Anthony Russo filed this appeal from a decision of the Cuyahoga County Court of Common Pleas confirming the award of a panel of arbitrators.

A real estate commission dispute between appellant Anthony Russo and appellee Colleen Chittick was submitted to binding arbitration before three members of the Cleveland Area Board of Realtors ("CABOR") pursuant to R.C. 2711.01 et seq. The arbitrators concluded that appellee was entitled to the disputed commission and awarded $2,175.00 on December 4, 1984.

Appellant filed, on January 16, 1985, a "Notice of Appeal De Novo to the Court of Common Pleas from Cleveland area Board of Realtors Arbitration Decision Rendered Dec. 5, 1984." On February 2, 1985, appellant filed a brief with assignments of error in the common pleas court alleging, effectually, that the arbitrators' decision was invalid as being against the manifest weight of the evidence. Appellant also filed a motion to stay the arbitrators' award pending his "appeal" to the common pleas court.

Appellees Colleen Chittick and the Cleveland Area Board of Arbitrators filed a motion to dismiss the appeal on March 4, 1985. After appellant obtained leave to plead to appellees' motion to dismiss until April 19, 1985, appellant failed to respond to appellees' motion to dismiss. Thereafter, on November 25, 1985, the common pleas court dismissed appellant's "appeal."

Appellee Colleen Chittick then made a motion to confirm the arbitration award on April 23, 1986, one year and four months after the award, and four months after the common pleas court dismissed appellant's appeal. After several leaves by appellant to respond to appellee's confirmation motion, appellant finally, four months thereafter, filed his opposition to said motion on July 23, 1986. Ultimately, on September 29, 1987, the common pleas court granted appellee's motion for confirmation of the arbitration award. Appellant has appealed the common pleas court's decision confirming the arbitration award.

Appellant's two assigned errors follow:

"I. The trial court erred in granting plaintiff-appellee's motion [sic ] is barred due to the fact that plaintiff- failed to file said motion within one year of the arbitration award pursuant to Ohio Revised Code 2711.09 as defendant-appellant had appealed the decision of the arbitrators to the trial court and filed a motion to stay which was denied.

"II. The filing of an appeal by the defendant-appellant relieves or otherwise tolls the statute of limitations set forth in Ohio Revised Code 2711.09 et seq. (to wit: at anytime one year after an award)."

Appellant's assigned errors lack merit and are overruled.

Appellant's basic contentions are as follows: (1) the one year provided by R.C. 2711.09 to confirm the award acts as a statute of limitations period prohibiting the court of common pleas from confirming the award if the motion to confirm is made beyond said period; and (2) the one year provided in R.C. 2711.09 was not tolled during the pendency of appellant's "appeal" to the court of common pleas.

R.C. 2711.09 provides in pertinent part:

"At 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. Thereupon 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. * * * " (Emphasis added.)

It is undisputed appellee formally applied for confirmation of her arbitration award one year and four months after the award was issued by the arbitration panel. Appellant argues R.C. 2711.09 is equivalent to a statute of limitations, and appellee's failure to file for confirmation "within one year" of the award forfeited appellee's right to confirmation. Although this issue is of first impression in Ohio, we find appellant's construction of the statute to be unfounded.

The very terms of the statute militate against appellant's interpretation that it proscribes judicial confirmation if application is made beyond one year. Rather, the language is permissive, stating in the first sentence that one "may apply " (emphasis added) for confirmation of an arbitration award within one year of its making. The Ohio Supreme Court has interpreted the term "may" as follows:

"The statutory use of the word 'may' is generally construed to make the provision in which it is contained optional, permissive, or discretionary * * *, at least where there is nothing in the language or in the sense or policy of the provision to require an unusual interpretation (State, ex rel. John Tague Post, v. Klinger [1926], 114 Ohio St. 212 )." Dorrian v. Scioto Conservancy Dist. (1971), 27 Ohio St.2d 102, 107, 56 O.O.2d 58, 60, 271 N.E.2d 834, 837.

The import of the statute, based upon ordinary canons of statutory construction, fails to equate to the interpretation a party must apply to confirm its award within one year or forfeit that right since the General Assembly used the term "may apply." This theory is reinforced by the General Assembly's use of the word "shall" in the second sentence of R.C. 2711.09. It is axiomatic that, "[t]he word 'shall' is usually interpreted to make the provision in which it is contained mandatory." Id. at 107, 56 O.O.2d at 60-61, 271 N.E.2d at 837. If the intention of the General Assembly is to restrict the power of the court of common pleas to confirm awards in arbitration cases to one year, it would have used the mandatory word "shall" rather than the permissive word "may." While no express provision is made for a party who moves to confirm an arbitration award beyond the one-year period provided by the statute, ¹ the General Assembly's use of the permissive word "may" in the first sentence of the statute lends itself to no other reasonable interpretation but that the motion can also be made beyond one year.

The policy of the arbitration provisions provides additional support for this interpretation. R.C. 2711.09 confers a right upon a party prevailing in an arbitration. The statute causes an arbitration award to become a judgment through a summary proceeding by filing a motion to confirm if made within one year of the arbitrators' decision. See, e.g., R.C. 2711.05. The common pleas court has no discretion if the motion is made within one year but must grant the confirmation unless a timely motion to vacate or modify has been made and grounds for modification or vacation are shown. Warren Edn. Assn. v. Warren City Bd. of Edn. (1984), 18 Ohio St.3d 170, 18 OBR 225, 480 N.E.2d 456. A common pleas court is limited to ascertaining whether fraud, corruption, misconduct, or demonstration of arbitrator impropriety or evident mistake made the award unjust or unconscionable. Goodyear Tire & Rubber Co. v. Local Union No. 200 (1975), 42 Ohio St.2d 516, 71 O.O.2d 509, 330 N.E.2d 703. The legal and factual conclusions of the arbitrators are not reviewable in the common pleas court. Id. By enactment of R.C. 2711.09, the General Assembly clearly intended to expedite judicial confirmation of arbitration awards in light of the deference these awards are required to be given by common pleas courts. The dilatory prevailing party loses only the statutory right to mandatory summary confirmation after one year.

Certainly the better approach for a party obtaining an arbitration award is to file a motion to confirm within one year irrespective of any motions to vacate or modify filed by the opposing party. In this manner the prevailing party will protect the right to summary confirmation if there are no grounds for vacation or modification regardless of when the common pleas court rules on the motions....