BRIGHT FUTURE PARTNERS, INC., and ANNE CHAMBERS, Plaintiffs-Appellees, vs. THE PROCTOR & GAMBLE DISTRIBUTING, LLC., Defendant-Appellant.
APPEAL NO. C-160589 (TRIAL NO. A-1601857)
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
June 7, 2017
[Cite as Bright Future Partners, Inc. v. Proctor & Gamble Distrib., L.L.C., 2017-Ohio-4145.]
MILLER, Judge.
Civil Appeal From: Hamilton County Court of Common Pleas. Judgment Appealed From Is: Appeal Dismissed in Part, Reversed in Part, and Cause Remanded.
Eberly, McMahon, Copetas, LLC, and David A. Eberly, for Plaintiffs-Appellees,
Faruki, Ireland, & Cox, PLL, and D. Jeffrey Ireland, for Defendant-Appellant.
{1} Bright Future Partners, Inc., (“Bright Future“) and Annе Chambers filed a complaint for discovery against The Proctor & Gamble Distributing, LLC, (“P&G“), citing
{2} The contract included a dispute resolution clause. It required the parties to first enter into good faith negotiations regarding any dispute arising out of the contrаct, and, if negotiations failed, to proceed to arbitration. It also required the parties to first negotiate and then arbitrate “any issue as to whether a claim is arbitrable.” The dispute resolution provisions stated that the parties were not еntitled to any discovery during negotiations and that if the dispute proceeded to arbitration, there would “be no discovery, except as the arbitrator will permit following a determination by the arbitrator that the person seeking such discovery has а substantial, demonstrable need.”
{3} P&G moved to dismiss the complaint under
No Final Order on Merits of the Discovery Action
{4} In its first and second assignments of error, P&G contends, respectively, that the trial court erred when it denied its
{5} This court has “such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or finаl orders of the courts of record inferior to the court of appeals within the district * * * .” Article IV, Section 3(B)(2), Ohio Constitution. A final order is one that meets the requirements of
{6} To determine what division of
{7} Here, Bright Future and Chambers sought only the production of documents from P&G, which is permissible under
{8} Having determined the actual nature and subject matter of Bright Future and Chambers‘s complaint, we turn to our
{9}
{11} Because P&G was under no obligation to turn over any documents when it appealed, the trial court‘s entry, akin to a scheduling order, did not determine the discovery action or prevent a judgment in P&G‘s favor. It was therefore not a final order, and we are without jurisdiction to review P&G‘s second assignment of error.
Motion to Stay Pending Arbitration
{12} P&G‘s third assignment of error contends that the trial court erred in dеnying the motion to stay the proceedings pending arbitration. We note that the trial court‘s order in this respect is a final order.
{13} At issue here,
If any action is brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which the action is pending, upon being satisfied that the issue involved in the action is referable to arbitration under an agreement in writing for arbitration, shall on application of one of the parties stay the trial of the action until the arbitration of the issue has been had in accordance with the agreement, provided the applicant for the stay is not in default in proceeding with arbitration.
P&G contends that the issue of whether Bright Future and Chambers are entitled to prelitigation discovery must be submitted to arbitration per the dispute resolution clause in the parties’ contract. In response, Bright Future and Chambers argue that discovery disputes, in general, fall outside the scope of arbitration.
{14} Whether a controversy is arbitrable under a contract requires the court to invoke principles of contract interpretation, and presents a question of law that we review de novo. Rippe & Kingston Co., PSC v. Kruse, 1st Dist. Hamilton No. C-130587, 2014-Ohio-2428, ¶ 20.
{15} Bright Future and Chambers argue that, as a general rule, discovery-only claims fall outside the scope of arbitration. In support, they cite White v. Equity, Inc., 178 Ohio App.3d 604, 2008-Ohio-5226, 899 N.E.2d 205 (10th Dist.), and Bartok v. Merrill Lynch, 9th Dist. Summit No. 14500, 1990 WL 116974 (Aug. 8, 1990).
{17} Bartok involved a discovery proceeding under
{18} In addition to the reasons stated, we further find Bartok to be unpersuasive because of the public policy in Ohio that heavily favors the resolution of disputes through arbitration. Ignazio v. Clear Channel Broadcasting, Inc., 113 Ohio St.3d 276, 2007-Ohio-1947, 865 N.E.2d 18, ¶ 18.
{20} Bright Future and Chambers claim that P&G may have breached its contract with Bright Future, and that discovery is necessary to determine if this is the case. According to the plain language of the underlying contract, the discovery complaint arises out of a potential breach of the contract, and the dispute resolution clause in the contract is triggered. See Aultman Hosp. Assn. v. Community Mut. Ins. Co., 46 Ohio St.3d 51, 544 N.E.2d 920 (1989), syllabus (courts will not give a contract a construction other than that which the plain language of the contract provides). At a minimum, beсause the parties must first negotiate and then arbitrate “any issue as to whether a claim is arbitrable,” the parties were required to negotiate then arbitrate whether the “discovery-only” claim is subject to arbitration. The dispute resolution provisiоns also clearly require the parties to negotiate and then arbitrate the potential breach-of-contract claim. During arbitration, any discovery disputes are to be resolved by the arbitrator. Of particular significance is the fact that the dispute resolution clause explicitly states that there will be no discovery allowed during the negotiation phase, meaning pre-arbitration. The complaint for discovery is an attempt to circumvent what
{21} Given the plain language of the dispute resolution clause, we hold that the trial court erred by denying P&G‘s motion to stay the proceedings pending arbitration.
{22} Bright Future and Chambers also claim that the triаl court‘s judgment should be affirmed as to Chambers because she was not a party to the contract, and as a third-party beneficiary only, she is not bound by the contract‘s dispute resolution provisions. Assuming arguendo that Chambers is not bound by the arbitration provisions, “[o]nce a court determines an issue in the proceeding is covered by a written arbitration agreement, even claims involving nonsignatories to the arbitration agreement will be stayed under
{23} We therefore sustain P&G‘s third assignment of error.
Conclusion
{24} In sum, we are without jurisdiction to review P&G‘s first or second assignments of error because neither involves a final order. Therefore that portion of P&G‘s appeal taken from the trial court‘s denial of its
Appeal dismissed in part, judgment reversed in part, and cause remanded.
CUNNINGHAM, P.J., and DETERS J., concur.
Please note:
The court has recorded its own entry this date.
MILLER, J.
JUDGE, FIRST APPELLATE DISTRICT OF OHIO