United Union of Roofers, Waterproofers & Allied Trades, Local No. 44 v. Kalkreuth Roofing & Sheet MetalUnited Union of Roofers, Waterproofers & Allied Trades, Local No. 44 v. Kalkreuth Roofing & Sheet Metal
Marilyn L. Widman and Diana Robinson, Widman & Franklin, LLC, 405 Madison Avenue, Suite 1550, Toledo, OH 43604 (For Petitioner-Appellant).
Andrew J. Natale, Ann E. Knuth and Steven E. Seasly, Hahn, Loeser & Parks, LLP, 200 Public Square, Suite 2800, Cleveland, OH 44114 (For Respondent-Appellee).
{¶1} Appellant, United Union of Roofers, Waterproofers & Allied Trades, Local No. 44, appeals from the judgment of the Lake County Court of Common Pleas denying its motion to confirm arbitration award and dismissing the matter. For the
{¶2} Appellant and appellee, Kalkreuth Roofing & Sheet Metal, are parties to a collective bargaining agreement (“CBA“). The agreement includes a binding arbitration process for grievances filed by either appellant or appellee. The CBA provides for the creation of a Joint Conference Board (“JCB“), which is authorized to resolve disputes arising out of the terms of the CBA. The JCB consists of not more than six members of the employer, appellee, and not more than six members of the union, appellant. Pursuant to the CBA, when a dispute arises that is unsettled after 24 hours, it shall be submitted to the JCB, after which the matter shall be resolved promptly, and the JCB “shall have the authority to fashion an award deemed appropriate to remedy the dispute or disagreement before it.” All decisions of the JCB require the concurrence of a majority of the representatives of each of the parties.
{¶3} After a dispute arose relating to appellee‘s use of a non-signatory subcontractor to perform work, in alleged violation of the agreement, appellant filed a grievance that was submitted to the JCB. On November 7, 2017, the JCB convened and held a hearing with representatives from both parties. The JCB subsequently determined, by unanimous vote, that appellee violated the CBA. The JCB ordered appellee to cease and desist from continuing the subcontracted work and pay appellant restitution for work completed. On December 8, 2017, the JCB ultimately ordered appellee to pay appellant $87,000 in restitution within seven calendar days of the decision. The order was signed by the Chairman and Secretary for the JCB.
{¶4} Appellee did not remit payment of the restitution order to appellant; it also, however, did not file a motion to vacate or modify the award. Accordingly, on April 19, 2018, appellant filed an “Application to Confirm Arbitration Award Pursuant to
{¶5} 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. Notice in writing of the application shall be served upon the adverse party or his attorney five days before the hearing thereof.
{¶6} Appellant pointed out appellee did not move to vacate, modify, or correct the award; as such, appellant argued the trial court was required to confirm the award.
{¶7} In June 2018, appellee opposed the application. In its supporting memorandum, appellee argued the award was not enforceable because it failed to comply with
{¶8} Jurisdiction of judicial proceedings provided for by sections 2711.01 to
2711.14, inclusive, of the Revised Code, is generally in the courts of common pleas, and actions and proceedings brought under such sections shall be brought either in the court of common pleas of the county designated by the parties to the arbitration agreement as provided in section 2711.08 of the Revised Code, which designation is an irrevocable consent of the parties thereto to such jurisdiction, or, whether or not such designation has been made, in the court of common pleas of any county in which a party in interest resides or may be summoned, or if any party in interest is a corporation, in any county in which such corporation is situated, or has or had its principal office or place of business, or in which such corporation has an office or agent, or in any county in which a summons may be served upon the president chairman or president of the board of directors or trustees or other chief officer.
{¶9} Appellee emphasized it is a West Virginia corporation, whose principal office is located in West Virginia. And, while it maintains an office in Delaware County, Ohio, it does not maintain an office in Lake County. As a result, appellee noted, its president, chairman or president of the board, and other officers are not located in Lake County for service of a summons. Accordingly, appellee argued, the application to confirm was improperly filed in the Lake County Court of Common Pleas.
{¶10} Appellant filed a reply brief to appellee‘s memorandum in which it argued the trial court need not consider appellee‘s arguments because it failed to file a timely motion to vacate or modify the award. Appellant argued appellee was required, pursuant to
{¶11} After considering the parties’ arguments, the trial court denied appellant‘s application and dismissed the matter. The court agreed that the JCB‘s failure to have a majority of the arbitrator‘s sign the award order was contrary to the mandate in
{¶12} “[1.] The trial court erred when it denied Local 44‘s application to enforce even though Kalkreuth had not filed a motion to vacate or modify the award.
{¶13} “[2.] The trial court erred in finding the JCB‘s arbitration award was not in compliance with
{¶14} Moreover, appellee assigns the following as a cross-assignment of error:
{¶15} “Local 44‘s application to enforce was properly denied because venue in Lake County was not proper.”
{¶16} We shall begin by addressing appellant‘s first assignment of error, under which it argues the trial court erred in
{¶17}
{¶18} (A) The award was procured by corruption, fraud, or undue means.
{¶19} (B) There was evident partiality or corruption on the part of the arbitrators, or any of them.
{¶20} (C) The arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced.
{¶21} (D) The arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
{¶22} With respect to modification or correction,
{¶23} (A) There was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award;
{¶24} (B) The arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matters submitted;
{¶25} (C) The award is imperfect in matter of form not affecting the merits of the controversy.
{¶26} Appellee did not file a motion pursuant to either
{¶27} Alternatively, under
{¶28} The venue issue touches upon, but is not dispositive of, appellee‘s cross-assignment of error. In its memorandum in
{¶29} As indicated above,
{¶30} In its memorandum in opposition, appellee pointed out its principal place of business is in West Virginia and it has an office in Delaware County; as such, appellee maintained Lake County was not the proper county to file the application. Appellant did not rebut these points, but instead, made a hybrid
{¶31} With respect to appellant‘s argument, the provisions of
{¶33} Initially, American Church Builders is distinguishable from the instant matter. In that case, venue was not an actual issue. The party seeking confirmation in that matter had a principal place of business in Franklin County, which is where the application for confirmation was filed. Moreover, even though venue was challenged in a motion to dismiss (which was filed outside the three-month limitation period for filing a motion to vacate, modify, or correct), at no point does the opinion reference
{¶34} In reversing the trial court‘s decision, the Tenth Appellate District noted “‘R.C. Chapter 2711 provides the exclusive statutory remedy which parties must use in appealing arbitration awards to the courts of common pleas.‘” American Church Builders, supra, at ¶26, quoting Galion v. American Fedn. Of State, Cty. And Mun. Employees, Local No. 2243, 71 Ohio St.3d 620, paragraph two of the syllabus. The Tenth District proceeded to underscore that because no motion to vacate, modify, or correct was filed, the trial court lacked jurisdiction to consider “the arguments raised in the motion to dismiss.” American Church Builders, supra, at ¶31. We acknowledge the venue issue was raised in the motion, but there was no indication it was considered or in any way informed the decision of the Franklin County Court of Common Pleas. And, as previously pointed out, Franklin County was the proper venue. In these respects, we maintain American Church Builders is not relevant to the case before us.
{¶35} With this in mind, we agree with the Tenth District that the trial court had no jurisdiction to address the arbitrability issues or any substantive challenges to the arbitration award during confirmation proceedings. A challenge to venue, however, is not such a challenge and, as such, we maintain that issue, had it been an actual problem, would have been a point the trial court was required to address. Given the lack of attention to the venue issue in American Church Builders, we conclude it is either not on point or, at least, not inconsistent with our current analysis and conclusion.
{¶36}
{¶37} To be sure, each member of this panel maintains the award must be confirmed; this majority maintains, however, such a confirmation must take place in the appropriate venue as that objection was properly raised. We therefore emphasize that
{¶38} A final point requires attention. A concern arose at oral argument relating to appellant‘s ability to confirm if the matter were transferred, or dismissed and re-filed because re-initiating the proceedings would occur outside the one-year window set forth in
{¶39} This is the section of the statute which enables the parties to an arbitration to obtain satisfaction of the award. The party desiring legally to enforce an award makes a motion to confirm. This motion must be granted by the court, unless cause is shown for its modification or vacation; and the motion to confirm must be made within one year after the award is rendered. After that time the remedy would be by a suit on the award. Russo, supra, fn.1, quoting comment to
R.C. 2711.09 .
{¶40} Accordingly, appellant‘s right to confirm is protected regardless of whether its action is transferred or re-filed outside of the one-year window.
{¶41} Given the foregoing, appellant‘s first assignment of error has merit and its second assignment of error is moot; appellee‘s cross-assignment of error is unripe. The matter must be reversed and remanded for the trial court to address appellee‘s venue objection.
MATT LYNCH, J., concurs,
MARY JANE TRAPP, J., concurs in part and dissents in part with a Concurring/Dissenting Opinion.
MARY JANE TRAPP, J., concurs in part and dissents in part with a Concurring/Dissenting Opinion.
{¶42} While I concur with the majority‘s opinion that the trial court erred in concluding the arbitration award was not valid and its disposition of appellant‘s first two assignments of error, I must respectfully dissent as to the majority‘s determination that we cannot issue a judgment ordering the trial court to confirm the award because of the unresolved “venue issue.”
{¶44} The trial court, as a court of common pleas, had jurisdiction to confirm the arbitration award pursuant to
{¶45} While the Lake County Court of Common Pleas may not have been the appropriate venue, venue “is a procedural matter primarily concerned with choosing a convenient forum” and “raises no jurisdictional implications.” Wilson v. Brown, 7th Dist. Belmont No. 01-BA-35, 2002-Ohio-2410, ¶14.
{¶46} The Ohio Arbitration Act was designed to significantly limit judicial intervention in the arbitration process, and it provides the exclusive statutory remedy that parties must use in appealing arbitration awards to the courts of common pleas. Galion at paragraph two of the syllabus.
{¶47} “Once an arbitration is completed, a court has no jurisdiction except to confirm and enter judgment (
{¶48} If a party timely files a motion to confirm an award, “* * * 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.)
{¶49} “When a motion is made pursuant to
{¶50} The Second, Seventh, and Tenth Districts have all followed the clear holdings in Galion that the three-month limit to file objections to an arbitrator‘s award is mandatory and jurisdictional and that “’
{¶51} The Tenth District‘s opinion in Am. Church Builders v. Christian Fellowship Ctr., 10th Dist. Franklin No. 05AP-219, 2005-Ohio-6056, is particularly applicable to the case before us. When a contractor sought to confirm an arbitration award and the opposing party
{¶52} The Tenth District‘s reasoning is directly on point in the case before us: “[t]he court in this case possessed only that jurisdiction conferred upon it by the General Assembly and by the procedural situation created by the actions or non-actions of the parties to the award. Appellant timely filed an application to confirm the arbitration award, and appellee never filed an application to vacate, modify or correct the award. Therefore, the court lacked jurisdiction to consider appellee‘s belated attempt, through its motion to dismiss, to challenge the award and to seek vacation of same. The court was without power to consider the arguments raised in the motion to dismiss, and had no choice but to confirm the award. Because the court failed to do so, and acted outside of its authority when it dismissed appellant‘s application, the judgment must be reversed.” Id. at ¶31.
{¶53} Kalkreuth could have avoided the venue issue altogether by timely filing an application to vacate, modify, or correct the award, which raised the defective “in form” claim, in the Court of Common Pleas of Delaware County. It sat on its rights and allowed the statute of limitations to run. Its claim should be treated just like any other claim for relief that is time-barred.
{¶54} Thus, I would reverse the trial court‘s dismissal of the motion to confirm the arbitration award and remand the matter with direction to enter judgment confirming the award and entering judgment in conformity therewith.