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George E. Pappas, et al. v. Richmond Towers LLC

October 13, 2011

GEORGE E. PAPPAS, ET AL. PLAINTIFFS-APPELLANTS
v.
RICHMOND TOWERS LLC, ET AL. DEFENDANTS-APPELLEES



Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-704863

The opinion of the court was delivered by: Larry A. Jones, J.:

Cite as Pappas v. Richmond Towers, L.L.C.,

JOURNAL ENTRY AND OPINION

JUDGMENT:

REVERSED

BEFORE: Jones, J., Boyle, P.J., and Rocco, J.

{¶1} Plaintiff-appellant, George Pappas, appeals the trial court's granting of defendants-appellees', Richmond Towers, LLC, and Kenneth Ippolito (collectively referred to as "Ippolito"), motion to dismiss.*fn1 Finding some merit to the appeal, we reverse.

{¶2} In 2002, Pappas purchased the Richmond Towers apartment building in Euclid, Ohio from Ippolito. The purchase agreement for the property included an arbitration agreement. In 2003, Pappas filed suit against Ippolito asserting various claims in relation to the sale.*fn2 After extensive discovery had begun, the trial court denied both parties' request for arbitration. Ippolito subsequently moved for summary judgment, which the trial court granted. Pappas appealed, but this court affirmed the trial court's judgment. Pappas v. Ippolito, 177 Ohio App.3d 625, 2008-Ohio-3976, 895 N.E.2d 610.

{¶3} Subsequent to the appeal, Ippolito demanded attorney's fees and litigation costs from Pappas, arguing that the purchase agreement expressly provided for recovery. Pappas refused to pay and Ippolito filed a demand for arbitration with the American Arbitration Association ("AAA"). The demand asked the AAA to determine whether Ippolito was entitled to recover attorney's fees and expenses from the first lawsuit.

{¶4} In September 2009, Pappas filed an action in common pleas court seeking a preliminary and permanent injunction to enjoin the AAA from hearing the matter. Ippolito moved to dismiss the complaint for a lack of subject matter jurisdiction pursuant to Civ.R. 12(B)(1), arguing that the trial court did not have jurisdiction over the parties' dispute because the claims were subject to arbitration under the purchase agreement. The trial court granted Ippolito's Civ.R. 12(B)(1) motion to dismiss.

{¶5} Pappas now appeals, raising the following assignments of error for our review:

"I. The trial court erred in failing to exercise subject matter jurisdiction over the underlying action, as the parties had waived their right to arbitration.

"II. The trial court erred, as a matter of law, in failing to deem the underlying action res judicata, and therefore award ...


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