Court of Appeals of Ohio, Eighth District, Cuyahoga
PAUL NEEL, ET AL. PLAINTIFFS-APPELLANTS
A. PERRINO CONSTRUCTION, INC., ET AL. DEFENDANTS-APPELLEES
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEYS FOR APPELLANTS Daniel J. Myers Samantha A. Vajskop
Myers Law, L.L.C.
ATTORNEYS FOR APPELLEES Andrew J. Natale Aaron S. Evenchik
Hahn, Loeser & Parks, L.L.C.
BEFORE: McCormack, J., E.A. Gallagher, A.J., and Celebrezze,
JOURNAL ENTRY AND OPINION
Plaintiffs-appellants Paul and Stephanie Neel ("the
Neels") appealed the trial court's decision granting
a motion to stay pending arbitration. For the reasons that
follow, we affirm in part the trial court's decision but
remand for the limited purpose of staying all claims against
all parties pending arbitration.
and Procedural History
The Neels filed a complaint on August 16, 2016, against
defendant-appellee A. Perrino Construction, Inc.
("Perrino"), along with defendants Pat Perrino,
Greenwalt Architects, Inc., and Christopher E. Greenwalt. The
complaint alleged breach of contract, fraudulent
misrepresentation, negligent misrepresentation, civil
conspiracy, and violations of R.C. 4722.02, et seq.,
the Home Construction Service Suppliers Act ("the
The Neels had contracted with the defendants to construct a
new home in Hinckley, Ohio. Pursuant to a restrictive
covenant in the Neels' deed, the home was required to be
at least 2, 800 square feet. The Neels entered into a
contract with Perrino by which Perrino was to construct a
custom home for them for a contract price of $364, 900. The
contract was six pages long. It included an arbitration
provision in paragraph 13, which stated:
Aside from warranty claims that shall be processed in
accordance with the Limited Warranty procedure described in
paragraph 8 above, should any dispute arise between the
parties with respect to the completion of any stage of
construction, the completion of the entire construction, or
any other matter involved in the construction, disbursement
of funds, amounts due and payable, said dispute shall be
decided by arbitration in accordance with the Construction
Industry Arbitration Rules of the American Arbitration
Association. The cost of the Arbitration shall be paid by the
parties in equal shares. Further, the Contractor and Owner do
hereby agree to abide by the decision of the American
Arbitration Association and the judgment of the American
Arbitration Association shall be final and not appealable.
The parties further agree and consent to the application of
the Ohio Rules of Civil Procedure to govern the scope and
extent of discovery in preparation for such arbitration.
Contractor and Owner hereby acknowledge that by agreeing to
binding arbitration, they are waiving their right to a trial
In addition to the various allegations described above, the
Neels' complaint alleged that the parties had agreed that
the home would be at least 3, 000 square feet, but the
home's actual footprint was several hundred feet smaller.
On September 19, 2016, Perrino filed an answer and
counterclaim. In this pleading, Perrino expressly stated that
it was not waiving its right to insist upon arbitration.
Perrino also filed a new party complaint asserting claims
against the Neels' counsel for defamation, tortious
interference with contract, and tortious interference with
business relationships. While these claims stem from
counsel's representation of the Neels in the underlying
case, they are unrelated to the contract between the Neels
and Perrino and they are not subject to arbitration.
On November 17, 2016, counsel for all parties participated in
a pretrial conference. The parties discussed ongoing
discovery. In its journal entry, the trial court stated,
"A. Perrino Construction (D1) is ordered to file with
the court its intention to pursue private arbitration with
[plaintiffs] or waive its rights under the arbitration clause
no later than the end of business on 11/28/2016."
On November 28, 2016, in accordance with the trial
court's instruction, Perrino filed a motion to stay all
proceedings pending arbitration.
On January 5, 2017, the trial court granted Perrino's
motion to stay pending arbitration. The court's journal
entry stated, in part:
The court carefully reviewed the [plaintiffs'] causes of
action and the very broad scope of the arbitration clause
within the contract between the [plaintiffs] and [defendant]
Perrino Construction. All of [plaintiffs'] claims include
[defendant] Perrino Construction as a party. The scope of the
arbitration clause is clearly broad enough to cover - without
question -all of the [plaintiffs'] claims against this
single [defendant.] Therefore the court grants the motion to
stay proceedings as against [defendant] Perrino Construction.
All proceedings by and between [plaintiffs] and [defendant]
Greenwalt Architects Inc. are not stayed and litigation and
discovery shall continue unabated between them. The court
ignores the existence of the two individual [defendants] Pat
Perrino and Christopher Greenwalt as it is not clear that
[plaintiffs] enjoy any cause of action under Ohio law against
the principals of their corporations that are [codefendants]
in the litigation. The court will determine the existence of
causes of action against the latter two individual
[defendants]. Notice issued.
It is from this decision that the Neels appeal, presenting
three assignments of error for our review.