CACV OF COLORADO, LLC, PLAINTIFF-APPELLEE, v. RAND HILLMAN, DEFENDANT-APPELLANT.
CASE NO. 14-09-18
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
November 30, 2009
2009-Ohio-6235
ROGERS, J.
Appeal from Union County Common Pleas Court, Trial Court No. 2009 CV 0125. Judgment Reversed and Cause Remanded.
Steven E. Hillman for Appellant
Christopher J. Moore for Appellee
{¶1} Although originally placed on our accelerated calendar, we have elected, pursuant to Local Rule 12(5), to issue a full opinion in lieu of a judgment entry.
{¶2} Defendant-Appellant, Rand Hillman, appeals the judgment of the Court of Common Pleas of Union County confirming an arbitration award in favor of Plaintiff-Appellee, CACV of Colorado, LLC (hereinafter “CACV“). On appeal, Hillman argues that the trial court erred in striking his responsive pleadings and discovery requests; that the trial court erred in allowing CACV to bring its action in Ohio because it had not complied with
{¶3} In March 2009, CACV moved the trial court for an order confirming an arbitration award against Hillman pursuant to
* * *
Any claim or dispute (“Claim“) by either you or us against the other, or against the employees, agents, or assigns of the other, arising from or relating in any way to this Agreement or any prior Agreement, or your account (whether under a statute, in contract, tort, or otherwise and whether for money damages, penalties, or declaratory or equitable relief), including Claims regarding the applicability of this Arbitration and Litigation section or the validity of the entire Agreement or any prior Agreement, shall be resolved by binding arbitration.
The arbitration shall be conducted by the National Arbitration Forum * * *[.]
{¶4} Thereafter, Hillman filed an answer and jury demand, denying CACV‘s allegations and setting forth as affirmative defenses that 1) CACV was
{¶5} On April 9, 2009, CACV filed a motion to strike Hillman‘s pleadings on the basis that
{¶6} It is from this judgment that Hillman appeals, presenting the following assignments of error for our review.1
Assignment of Error No. I
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT STRUCK THE APPELLANT‘S PLEADINGS AND DISCOVERY.
Assignment of Error No. II
THE TRIAL COURT ERRED WHEN IT ALLOWED A LIMITED LIABILITY COMPANY THAT WAS NOT REGISTERED TO DO BUSINESS IN THE STATE OF OHIO TO BRING ANY ACTION IN THE STATE OF OHIO UNTIL IT COMPLIED WITH SECTION 1703.29 OF THE OHIO REVISED CODE.
Assignment of Error No. III
THE TRIAL COURT ERRED BY RULING ON THE APPELLEE‘S MOTION TO STRIKE IN VIOLATION OF IT [SIC] OWN RULE 10.01 WHICH PROVIDES: “MOTIONS SHALL BE ACCOMPANIED BY A MEMORANDUM STATING THE GROUNDS THEREFORE AND CITING THE
Assignment of Error No. I
{¶7} In his first assignment of error, Hillman contends that the trial court erred when it struck his pleadings and discovery requests. Specifically, Hillman argues that his answer should not have been stricken because it clearly laid out that the award was improper and should be vacated because
{¶8} It is well-established policy in Ohio to favor and encourage arbitration. Brennan v. Brennan (1955), 164 Ohio St. 29, 36; Academy of Medicine of Cincinnati v. Aetna Health, Inc., 108 Ohio St.3d 185, 2006-Ohio-657, ¶10. Additionally,
“where the contract contains an arbitration clause, there is a presumption of arbitrability in the sense that ‘[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.‘”
Academy of Medicine, 108 Ohio St.3d 185, at ¶14, quoting AT&T Technologies, Inc. v. Communications Workers of Am. (1986), 475 U.S. 643, 640, quoting United Steelworkers of Am. v. Warrior & Gulf Navigation Co. (1960), 363 U.S. 574, 582-88.
{¶9} On appeal, the standard of review is even more narrowed, as the Supreme Court of Ohio has observed that “[
{¶10}
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 and2711.11 of the Revised Code. Notice in writing of the application shall be served upon the adverse party or his attorney five days before the hearing thereof.
Additionally:
In any of the following cases, the court of common pleas shall make an order vacating the award upon the application of any party to the arbitration if:
(A) The award was procured by corruption, fraud, or undue means.
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{¶11} Finally,
After an award in an arbitration proceeding is made, any party to the arbitration may file a motion in the court of common pleas for an order vacating, modifying, or correcting the award as prescribed in sections
2711.10 and2711.11 of the Revised Code. Notice of a motion to vacate, modify, or correct an award must be served upon the adverse party or his attorney within three months after the award is delivered to the parties in interest, as prescribed by law for service of notice of a motion in an action. For the purposes of the motion, any judge who might make an order to stay the proceedings in an action brought in the same court may make an order, to be served with the notice of motion, staying the proceedings of the adverse party to enforce the award.
{¶12} Interpreting
{¶13} However, despite the narrowness of the trial court‘s authority where the defendant has failed to serve timely notice of a motion to vacate, modify, or correct an award, several appellate districts have found that
{¶14} We first address Hillman‘s argument that the trial court erred in failing to hold a hearing prior to granting CACV‘s motion to strike and confirming its award. We find no evidence in the record that a hearing, oral or otherwise, took place in the trial court. We agree with the appellate districts listed above that
{¶15} Next, Hillman argues that
{¶16} In Citibank, a defendant-debtor obtained a purported arbitration award in his favor and the plaintiff-creditor failed to move to vacate the award within the time limits of
{¶17} Next, Hillman argues that CACV could not avail itself of
{¶18} Additionally, although Hillman has argued that he never received notice of the date, time, and place of arbitration, and that the award was a “sham,” we note that Hillman did not argue on appeal that he did not receive notice of the award itself. This precludes any argument that he could not have timely challenged the award because he was not aware of the award. Further, even had Hillman argued that he did not receive notice of the award, the arbitration award reflects the arbitrator‘s findings that the claim was properly served on Hillman, and the certificate of service reflects that Hillman was notified by first class mail of the award on December 4, 2008. The Second Appellate District has held that
{¶19} Accordingly, we sustain the portion of Hillman‘s first assignment of error arguing that he should have been afforded a hearing, but overrule the remaining arguments in the assignment of error, as they have been waived.
Assignment of Error No. II
{¶20} In his second assignment of error, Hillman contends that the trial court erred when it allowed CACV to bring the action in Ohio because it was an LLC not registered to do business in Ohio and had not complied with
{¶21} Initially, we note that CACV was not required to comply with
Before transacting business in this state, a foreign limited liability company shall register with the secretary of state. The company shall register by submitting to the secretary of state an
application for registration as a foreign limited liability company. * * *
Additionally,
A foreign limited liability company transacting business in this state may not maintain any action or proceeding in any court of this state until it has registered in this state in accordance with sections
1705.53 to1705.58 of the Revised Code.
{¶22} Here, Hillman contends that CACV never asserted or presented evidence that it was a registered foreign LLC entitled to apply for confirmation of an arbitration award, and, therefore, the trial court should have permitted discovery on the limited issue of whether CACV was permitted to bring an action in an Ohio court. We find nothing in the record, including the arbitration award and CACV‘s application for confirmation, containing evidence of CACV‘s status as a registered or unregistered foreign LLC. Compare McArdle, supra (finding that applicant-bank was entitled to seek confirmation of arbitration award when it provided affidavit of its attorney that the bank was organized under
{¶24} Accordingly, we sustain Hillman‘s second assignment of error and remand the matter to the trial court to determine whether CACV was permitted by law to maintain an action in an Ohio court.
Assignment of Error No. III
{¶25} In his third assignment of error, Hillman argues that the trial court erred by ruling on CACV‘s Motion to Strike in violation of its local rule, permitting opposing parties to respond to a motion within fourteen days of its service. Specifically, Hillman claims that the trial court erred by ruling on CACV‘s motion “within minutes” of Hillman‘s filing of his memorandum contra, and only eight days subsequent to service of CACV‘s motion.
{¶27} Having found error prejudicial to the appellant herein, in the particulars assigned and argued in the first and second assignments of error, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
Judgment Reversed and Cause Remanded
PRESTON, P.J. and SHAW, J., concur.
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