Case Information
*1
[Cite as
Gotham v. Basement Care, Inc.
,
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
GENE GOTHAM, et al. C.A. No.
Appellants
v. APPEAL FROM JUDGMENT ENTERED IN THE BASEMENT CARE, INC. COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO Appellee CASE No. CV-2018-03-0946 DECISION AND JOURNAL ENTRY Dated: September 25, 2019
HENSAL, Judge.
{¶1} Gene and Cindy Gotham (the “Gothams”) appeal from the judgment of the Summit County Court of Common Pleas, granting Basement Care, Inc.’s motion to stay the proceedings pending arbitration. This Court affirms.
I. The Gothams entered into a contract with Basement Care, Inc. to perform
waterproofing work on their basement. The contract was a two-page form document. Relevantly, the first page of the contract indicated that “[t]his Agreement contains a binding arbitration provision which may be enforced by the parties.” The second page contained the arbitration provision, which provided that “[a]ny controversy or claim arising out of or relating to the contact and/or agreement or breach there of shall be settled by arbitration * * *.” The Gothams were ultimately unsatisfied with the work performed and filed a four-count complaint against Basement Care, Inc., asserting claims for breach of contract, *2 violations of the Consumer Sales Practices Act, and failure to perform in a workman-like manner. Basement Care, Inc. filed a motion to dismiss, or, in the alternative, a motion to stay the proceedings on the basis that the Gothams’ claims fell within the scope of the arbitration provision. In response, the Gothams argued, in part, that the language in the contract indicating that the arbitration provision “may be enforced by the parties” was ambiguous because it was susceptible to more than one reasonable interpretation: it could mean that both parties must consent to arbitration, or it could mean that either party could enforce the arbitration provision. They argued that, since this language was ambiguous, the trial court was required to construe it against the drafter (i.e., Basement Care, Inc.), and conclude that the language required both parties to consent to arbitration. The trial court denied Basement Care, Inc.’s motion to dismiss, but granted its
motion to stay. In doing so, the trial court concluded that the disputed language on the first page of the contract (i.e., “may be enforced by the parties”) was a notice provision, putting customers on notice that the contract contained an arbitration provision. It found “no ambiguity” in this language, rejecting the Gothams’ argument that it could be interpreted as requiring both parties to consent to arbitration. The Gothams now appeal, raising three assignments of error for our review. We will address the Gothams’ assignments of error together.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY FAILING TO FOLLOW THE PROPER LEGAL STANDARD IN DETERMINING CONTRACTUAL AMBIGUITY.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY FAILING TO FIND THE FIRST PROVISION IS AMBIGUOUS.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED BY READING AN AMBIGUOUS CONTRACTUAL PROVISION IN FAVOR OF THE DRAFTER.
{¶5}
In their first assignment of error, the Gothams assert that the trial court failed to
follow the proper legal standard for determining whether contractual language is ambiguous. As
the Ohio Supreme Court has stated, “[a]mbiguity exists only when a provision at issue is
susceptible of more than one reasonable interpretation.”
Lager v. Miller-Gonzalez
, 120 Ohio
St.3d 47,
{¶6}
We reject the Gothams’ argument. While the trial court did not specifically use
the word “unreasonable” in its analysis, its order clearly rejects the Gothams’ interpretation of
the disputed language, ultimately concluding that “no ambiguity” existed. We, therefore, cannot
say that the trial court failed to apply the appropriate legal standard.
See State v. Martin
, 7th
Dist. Mahoning No. 12 MA 167,
court erred by failing to determine that the disputed language was ambiguous and, consequently, failing to construe the ambiguous language against the drafter (i.e., Basement Care, Inc.). We disagree. “The interpretation of written contracts, including any assessment as to whether a
contract is ambiguous, is a question of law subject to de novo review on appeal.”
Watkins v.
*4
Williams
, 9th Dist. Summit No. 22162,
by the parties”) was not ambiguous. In doing so, it rejected the Gothams’ argument that the disputed language could reasonably be interpreted to mean that the arbitration provision required both parties to consent to arbitration. We agree with the trial court’s conclusion. The Ohio Supreme Court has quoted the proposition that “courts should not
interpret contracts in a way that ‘render[s] at least one clause superfluous or meaningless.’”
Transtar Elec., Inc. v. A.E.M. Elec. Servs. Corp.
, 140 Ohio St.3d 193,
III. The Gothams’ assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellants.
JENNIFER HENSAL FOR THE COURT CALLAHAN, J.
CONCURS.
CARR, P. J.
DISSENTING.
I respectfully dissent from the judgment of the majority, as I would conclude that the disputed language is ambiguous. Thus, I would sustain the Gothams’ second assignment of error. The sentence at issue appears near the bottom of the first page of the contract a
couple of paragraphs above the signature line. The text appears in all capital letters. It states: “This agreement contains a binding arbitration provision which may be enforced by the parties.” The second page consists of a numbered list of terms. Number 9 on the list is the arbitration provision which provides:
Any controversy or claim arising out of relating to the contract and/or agreement or breach there of shall be settled by arbitration in [] accordance with the construction industry rules of the American Arbitration Association and *7 judg[ments] upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Basement Care, Inc. points to federal case law and asserts that “[a]n interpretation
requiring both parties’ post-contracting consent to arbitration is essentially superfluous because
‘parties can always submit a dispute to arbitration if both consent.’”
Travelport Global Distrib.
Sys. B.B. v. Bellview Airlines Ltd.
, S.D.N.Y. No. Civ. 2483(DLC),
could reasonably mean that enforcement of the arbitration clause requires the agreement of all the parties. Thus, I agree with the Gothams that the phrase is ambiguous, and that the trial court erred in concluding otherwise. I would remand the matter for the trial court to apply the rules of contract interpretation addressing ambiguous contracts in the first instance.
APPEARANCES:
BRIAN UNGER and WARNER MENDENHALL, Attorneys at Law, for Appellants.
DEAN KONSTAND, Attorney at Law, for Appellee.