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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 273 {¶ 1} This case involves the propriety of a trial court decision that granted a motion to vacate an arbitration award. On March 22, 2005, BlueRidge Arbitration ("BlueRidge") issued a decision finding that Robert C. Wood had settled in full an account with Citibank South Dakota, N.A. ("Citibank"). The arbitration decision ordered Citibank to dismiss any pending legal action against Wood and to set aside any judgments it may have obtained regarding Wood's account. Subsequently, on July 7, 2005, Citibank filed a motion in the Clark County Common Pleas Court, asking that the arbitration award be vacated. Citibank served Wood with this motion on July 9, 2005. Wood then filed a pro se answer and counterclaim on August 5, 2005, requesting confirmation of the arbitration award.
{¶ 2} On September 7, 2005, the trial court dismissed Wood's counterclaim, without explanation, overruled the rest of Wood's pending motions, and granted Citibank's motion for a protective order. At that time, the court set a hearing date of September 30, 2005, on the motion to vacate the arbitration award. On September 21, 2005, Wood filed a motion for continuance in which he explained that he had not been served with any documents that Citibank had filed. Despite this, the trial court overruled the motion for continuance and proceeded with the hearing on September 30, 2005.
{¶ 3} On the day of the hearing, both Citibank and Wood appeared. The trial court did not take evidence from any witnesses, nor did it admit any exhibits. Instead, the court listened to unsworn statements from Wood and from the attorney for Citibank. At the end of the hearing, the court announced that it would grant the motion to vacate. The court's first finding was that Citibank had timely filed the motion to vacate. The court also found that the parties' original *Page 274 contract specified three arbitration forums, and that BlueRidge was not included. Therefore, the court vacated the arbitration award.
{¶ 4} Wood timely appealed, and raises 12 assignments of error. We will not list each assignment of error separately at this point, but will refer to each, as appropriate, during our discussion. After considering the record and assignments of error, we find that the trial court committed various procedural errors that require reversal of the judgment and a remand for further proceedings.
{¶ 6} Under Civ.R. 5(D), parties must file with the court all papers that they have served, within three days of service. These papers must include proof of service, indicating the date and manner of service. Civ.R. 5(A) also says:
{¶ 7} "Except as otherwise provided in these rules, every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, and similar paper shall be served upon each of the parties."
{¶ 8} As to the method of service, Civ.R. 5(B) states:
{¶ 9} "Whenever under these rules service is required or permitted to be made upon a party who is represented by an attorney of record in the proceedings, the service shall be made upon the attorney unless service upon the party is ordered by the court. Service upon the attorney or party shall be made by delivering a copy to the person to be served transmitting it to the office of the person to be served by facsimile transmission, mailing it to the last known address of the person to be served, or, if no address is known, leaving it with the clerk of the court. The served copy shall be accompanied by a completed copy of the proof of service required by division (D) of this rule. `Delivering a copy' within this rule means: handing it to the attorney or party; leaving it at the office of the person to be served with a clerk or other person in charge; if there is no one in charge, leaving it in a conspicuous place in the office; or, if the office is closed or the person to be served has no office, leaving it at the dwelling house or usual place of abode of the person to be served with some person of suitable age and discretion then residing in the dwelling house or usual place of abode. Service by *Page 275 mail is complete upon mailing. Service by facsimile transmission is complete upon transmission."
{¶ 10} As we mentioned, Citibank's motion to vacate was served upon Wood by certified mail on July 9, 2005, and Wood filed a pro se answer and counterclaim on August 5, 2005. However, at no time did any attorney file a notice of appearance for Wood in this action. Despite this fact, Citibank served various documents on Paul Mason, who was described in Citibank's proof of service as "attorney for Defendant." For example, on August 18, 2005, Citibank filed a motion to strike Wood's answer, a motion to dismiss Wood's counterclaim, a motion for a protective order, and a response to various motions that Wood had filed. All these documents were sent to an attorney (Mason) — not to Wood.
{¶ 11} Subsequently, on September 2, 2005, Wood filed a motion to strike and a motion for sanctions. In the motion, Wood explained that he had been at the courthouse on September 1, 2005, and had obtained a copy of the docket sheet. Wood stated that he was stunned when he found out that Citibank had filed four motions and had not sent him copies. Wood also said that when he asked to see the court file, he was told that he would not be able to see the file for several more days because the file was checked out. In his motion of September 2, 2005, Wood asked the court to strike Citibank's motions and to require Citibank's attorney to resubmit the motions and prove proper service on Wood. Wood also requested sanctions against Citibank's attorney, based on the attorney's failure to comply with rules of service.
{¶ 12} On September 7, 2005, the trial court dismissed Wood's counterclaim, without explanation. The court also granted Citibank's motion for a protective order, and set a hearing on the motion to vacate for September 30, 2005.
{¶ 13} On September 21, 2005, Wood filed another document with the court, indicating that he had finally obtained copies of Citibank's filings on September 8, 2005, through his own effort, not from Citibank's attorney. Wood asked for an extension of time to answer Citibank's motions and for a 30-day extension of the hearing date so that he could prepare for the hearing. Wood also objected to the dismissal of his counterclaim and asked for an explanation of why it had been dismissed.
{¶ 14} Citibank's attorney responded to these matters on September 26, 2005. Citibank's attorney claimed she had been serving an attorney who had apparently represented Wood in a prior action between Wood and Citibank in Clark County Municipal Court. Citibank's attorney alleged that the present action was a "direct result" of the municipal court case and that she was required to serve Wood's attorney "of record" until she was otherwise notified by the Clark County Municipal Court. Finally, Citibank's attorney stated that she would be willing to serve Wood with pleadings if the Common Pleas Court so ordered and that she *Page 276 did not object to Wood's having additional response time. Ironically, this response was also sent to Wood's former attorney, not to Wood.
{¶ 15} On September 28, 2005, the trial court overruled Wood's motion for continuance and also overruled all other pending motions that Wood had filed. The court did not give any reasons for these rulings.
{¶ 16} At the hearing that was held on September 30, 2005, Wood again objected to the fact that he had not been served with any documents after he received the motion to vacate. Counsel for Citibank again said that she had been sending documents to the attorney who had represented Wood in the prior municipal court case. The trial court commented that the failure to serve documents was irrelevant because the court had overruled the most recent series of motions from Wood before Citibank had responded. The court then proceeded with the hearing.
{¶ 17} As a preliminary point, we note that Citibank's failure to serve Wood with copies of pleadings was an obvious violation of the Civil Rules. In 1985, the Ohio Supreme Court held that "[f]or purposes of Civ.R. 5(B), in order that service be effective on a party by serving that party's attorney, the attorney must be an attorney of record in the trial court." Ervin v. Patrons Mut. Ins. Co. (1985),
{¶ 18} Contrary to Citibank's claim, an attorney is not an attorney of record simply because he or she previously represented one of the parties in another trial court action. This is true even when the prior representation or prior court action involved the same parties. Until such time as an attorney enters an appearance in the specific case being tried, Civ.R. 5 requires pleadings to be served on the party who is suing or is being sued.
{¶ 19} Obviously, the complaint or initial pleading is served on the defendant, as happened in the present case. Typically, an attorney files an answer on a defendant's behalf, and further documents in the case are then served on the attorney. However, if a party chooses not to be represented by an attorney, Civ.R. 5 requires pleadings and motions to be served directly on the adverse party.
{¶ 20} Citibank was also incorrect when it asserted that the present action was a "direct result" of the municipal court action. The motion to vacate the arbitration award arose directly from the arbitration award that BlueRidge *Page 277 issued on May 22, 2005. It did not directly result from the action in municipal court, whatever that action might have been.
{¶ 21} The only direct result of a prior municipal court action would have been an appeal by the aggrieved party to the court of appeals for the district in which the municipal court was located. If either Citibank or Wood had appealed from the municipal court action, the proper place to appeal would have been the court of appeals, not the common pleas court. See R.C.
{¶ 22} Accordingly, Citibank should have served Wood directly with any pleadings and motions that were filed after the motion to vacate was served on Wood. This error was not irrelevant, as the trial court suggested. Instead, the error was significant, since the trial court granted Citibank's motion to dismiss Wood's counterclaim before Wood even was aware of the motion's content or had an opportunity to respond to the motion. Rather than overruling Wood's motions, the trial court should have required Citibank to serve Wood, and should have given Wood an opportunity to respond to Citibank's motion to dismiss.
{¶ 23} Based on the preceding discussion, the first assignment of error has merit and is sustained.
{¶ 25} After an arbitration award, any party to the arbitration may file a motion in common pleas court for an order vacating, modifying, or correcting the award. R.C.
{¶ 26} To decide when an arbitration decision has been delivered for purposes of R.C.
{¶ 27} The arbitration award attached to Citibank's motion to vacate states that BlueRidge issued the award on March 22, 2005. A certification on the award also indicates that BlueRidge mailed a copy of the award by first-class postage to Citibank on April 4, 2005. Therefore, absent proof that the award was post-marked or mailed later, Citibank would have been required to file its motion to vacate by July 4, 2005, and would also have been required to serve Wood with the motion by July 4, 2005.
{¶ 28} The current record indicates that Citibank's motion to vacate was filed on July 7, 2005, and was not served on Wood until July 9, 2005. As a result, Citibank's motion appears untimely on its face. However, because the record is incomplete and because the trial court applied an improper method of analysis, we will remand this matter to allow Citibank and Wood to present evidence on the date of mailing or the postmark date. In this regard, we note that in MBNA Am.Bank, N.A. v. Everett, Franklin App. No. 04-AP-819,
{¶ 29} What this means for purposes of the present case is that Citibank may be successful in invoking the trial court's jurisdiction if Citibank has a copy of the postmarked envelope for the arbitration award or can establish by other evidence that the award was mailed on a date later than the date reflected on the award. However, the evidence would have to prove that the award was mailed to Citibank on or after April 9, 2005, since July 9, 2005, was the date Wood was served with the motion to vacate.1
{¶ 30} In this regard, we note that Citibank is evidently under the impression that it may have complied with R.C.
{¶ 31} R.C.
{¶ 32} We also note that even if Citibank establishes jurisdiction, Citibank failed to presentevidence in the trial court to justify vacating the arbitration award. In this regard, Citibank's attorney claimed,again without proof, that its contract with Wood did not specify BlueRidge as a proper arbitration forum. However, no copy of the contract is in the record. In addition, no witnesses identified or verified any documents that were, in fact, attached to the motion to vacate. We have previously noted that bare contentions are insufficient *Page 280
to satisfy the burden of proof that R.C.
{¶ 33} Citibank's motion to vacate was filed pursuant to R.C.
{¶ 34} "The question of whether an arbitrator has exceeded the powers granted in the contract between the parties is analogous to the question of whether a trial court has exceeded its jurisdictional powers. Mere error of law or fact is not an abuse of a trial court's jurisdictional power, no matter how egregious. Similarly, `even a grossly erroneous decision [of an arbitrator] is binding in the absence of fraud.' Goodyearv. Local Union No. 200 (1975),
{¶ 35} In the present case, the trial court found that BlueRidge overstepped the bounds of its authority because the contract between Citibank and Wood did not include BlueRidge as a possible arbitration forum. As we said, the contract in question is not part of the record. In view of Citibank's failure to present any evidence to the trial court, the court's decision was clearly erroneous. Based on the preceding discussion, the fourth, fifth, and sixth assignments of error have merit and are sustained. This judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion. *Page 281
{¶ 37} The requirements in R.C.
{¶ 39} "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
{¶ 40} Wood's request for confirmation of the award was filed well within the one-year time frame specified in the statute. Shortly after the counterclaim for confirmation was filed, Citibank filed a motion to dismiss the counterclaim. Citibank's motion was based on the alleged contract between Wood and Citibank — which, again, was not provided to the court. The trial court granted the motion to dismiss without indicating the reason for its ruling. The dismissal occurred before the hearing, and even before Wood was able to obtain a copy of Citibank's motion to dismiss.
{¶ 41} The following is well established in the law:
{¶ 42} "When a motion is made pursuant to R.C.
{¶ 43} In Warren, the Ohio Supreme Court stressed that the "jurisdiction of the courts to review arbitration awards is thus statutorily restricted; it is narrow and it is limited."
{¶ 44} Consequently, a common pleas court "does not have discretion under R.C.
{¶ 45} In State ex rel. R.W. Sidley, Inc. v.Crawford,
{¶ 46} We have already discussed the procedural errors in this case at some length. In addition to the errors we have outlined, the trial court erred by dismissing the counterclaim before the hearing. Once the motion to confirm was filed, the court's only choices were to confirm the award or to vacate it upon a finding under R.C.
{¶ 47} From the pleadings (and not fromevidence, because none was presented), we glean the following points: (1) Citibank claims that it entered into a credit-card agreement with Wood, pursuant to which Wood agreed to arbitrate with one of three arbitration organizations, which did not include BlueRidge, (2) Wood subsequently became indebted to Citibank for more than $7,000, (3) Wood contends that the indebtedness was disputed and that he tendered a payment of $10 to Citibank, along with documents indicating that the payment was an accord and satisfaction of the debt, (4) Wood claims that Citibank accepted the accord and satisfaction, which included an agreement to arbitrate before BlueRidge Arbitration, (5) notice of arbitration was given to Citibank, but Citibank did not enter an appearance at arbitration, and (6) BlueRidge entered a finding that Wood owed nothing to Citibank.
{¶ 48} Based on the above claims, Citibank's position is that it did not agree to arbitrate with BlueRidge and that the arbitration decision exceeded the authority *Page 283 of the arbitrators. Wood's position is that there was a valid accord and satisfaction and that the arbitration decision must be confirmed.
{¶ 49} "Although the law favors and encourages arbitration, a party cannot be compelled to arbitrate any dispute which he has not agreed to submit to arbitration. * * * The scope of an arbitration clause, that is whether a controversy is arbitrable under the provisions of a contract, is a question for the court to decide upon examination of the contract. * * * Moreover, where the existence of the contract containing the arbitration clause is at issue, a question of fact arises which is subject to trial as requested by the parties." Divine Constr. Co. v. Ohio-American WaterCo. (1991),
{¶ 50} Assuming for the sake of argument that jurisdiction exists over the motion to vacate, the court may consider the merits of the motion and shall consider whether a contract for arbitration exists. This would include considering the arguments that Wood has made. However, if the evidence indicates that Citibank's motion to vacate was untimely, the trial court will have no choice but to confirm the arbitration award. See Maumee Western RR. Corp. v. Indiana Ohio Ry. Co., Henry App. No. 7-03-05,
{¶ 51} In Maumee, a railroad claimed that it was not a party to an arbitration agreement and that the arbitration decision awarded against it could not be enforced. However, the railroad did not file a timely motion to vacate the arbitration. As a result, the Fourth District Court of Appeals held that the trial court had no option other than to confirm the arbitration award. Id. See, also, Thomas v. FranklinCty. Sheriffs Office (1998),
{¶ 52} Based on the preceding discussion, the eighth, ninth, and tenth assignments of error have merit and are sustained.
{¶ 54} Under Civ.R. 13(H), parties who are not parties to an original action may be made parties to a counterclaim or cross-claim under Civ.R. 19, 19.1, and 20. These Rules of Civil Procedure govern compulsory and permissive joinder and joinder of persons needed for just adjudication. After reviewing the limited record that exists, we find no error in the trial court's decision. Mrs. Wood was not listed as a party to the arbitration decision, and we see no reason why she *Page 284 should be made a party to the action being brought to vacate the arbitration decision. Accordingly, the 11th assignment of error has no merit, and is overruled.
{¶ 56} Based on the preceding discussion, the 12th assignment of error is overruled.
{¶ 58} Pro se litigants are not accorded greater rights than parties who retain counsel, and the trial court "`does not have the duty of assisting a pro se litigant in the practice of law. It is not the trial court's job to clean up deficient pleadings.'" Sonoga v. Trumbull Cty. ChildSupport Enforcement Agency, Trumbull App. No. 2004-T-0115,
{¶ 59} In view of these general concepts, the trial court did not err in failing to instruct Wood on the revision of pleadings, nor did the trial court err by simply noting Wood's objections at the hearing. Trial courts frequently tell attorneys that an objection is noted for the record, and do not explain the reason for a *Page 285 particular ruling during trial. Often the reason is apparent from the context. Because the trial court did not err in this regard, the second and third assignments of error are overruled.
{¶ 60} Based on the preceding discussion, the first, fourth, fifth, sixth, seventh, eighth, ninth, and tenth assignments of error are sustained. The second, third, 11th, and 12th assignments of error are overruled. Accordingly, the judgment of the trial court is reversed, and this cause is remanded for further proceedings.
Judgment reversed and cause remanded.
WOLFF and FAIN, JJ., concur.