Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
& Goldwasser, L.L.P., Phillip A. Ciano, and Brent S.
Silverman; Ulmer & Berne, L.L.P., Michael N. Ungar, and
Amanda Martinsek, for appellees.
Calfee, Halter & Griswold, L.L.P., Colleen M. O'Neil,
Alexandra R. Forkosh; Hamburg, Karic, Edwards & Martin,
L.L.P., Steven S. Karic, for appellants.
JOURNAL ENTRY AND OPINION
J. BOYLE, PRESIDING JUDGE
The question presented in this case is whether R.C. 2711.13
requires a trial court to wait three months before confirming
an arbitration award under R.C. 2711.09 when the party
opposing confirmation appears and informs the trial court
that he or she intends to file a motion to vacate within the
three-month time frame set forth in R.C. 2711.13. We hold
that it does. We therefore reverse the judgment of the trial
court confirming the arbitration award and remand to give
appellants 50 days from the date this case is reactivated on
the trial court's docket to file a motion to vacate,
modify, or correct the award under RC. 2711.10 or 2711.11 (50
days is the amount of the time from the judgment entry of
confirmation, January 15, 2018, to the time that appellants
would have had to file the motion had the trial court not
confirmed the award prematurely, March 6, 2018).
Procedural History and Factual Background
Defendants-appellants, Evan Gary Wolfgang
("Wolfgang") and Massillon Management Company
("Massillon Management"), appeal a judgment of the
Cuyahoga County Court of Common Pleas confirming an
arbitration award in favor of plaintiffs-appellees, BST Ohio
Corporation and 26 other individuals and companies.
Respondents raise two assignments of error for our review:
1. The trial court erred as a matter of law by granting
respondents' motion to confirm arbitration award under
RC. 2711.09 before the expiration of the three-month period
in which a party may file and serve a motion to vacate or
correct an arbitration award under R.C. 2711.13.
2. The trial court abused its discretion by denying
appellants' motion to stay proceedings or, in the
alternative, for continuance of the hearing on
respondents' motion to confirm, until after the
expiration of the three-month period in which a party may
file and serve a motion to vacate or correct an arbitration
award under R.C. 2711.13.
The parties in this case are owners of Prophecy Massillon
L.L.C., a Delaware limited liability company. Prophecy owns
real estate in Massillon, Ohio, that, according to the
arbitrator, "is improved with facilities for dry and
cold storage and distribution, parking, offices, and related
uses." Appellees own a supermajority interest in
Prophecy, and appellants own approximately 17% of it.
Massillon Management, of which Wolfgang was the sole owner,
The dispute in this case arose over appellants'
management of Prophecy. Prophecy was governed by a
"Second Amended and Restated Operating Agreement"
("SOA"), which the owners of Prophecy entered into
on May 14, 2014. The SOA contained an arbitration agreement
that stated that "[a] dispute arising out of or relating
to this agreement * * * shall be settled by arbitration in
Cuyahoga County, Ohio, in accordance with the American
Arbitration Association." Under the SOA, the manager of
Prophecy could only be removed for cause.
In accordance with the SOA, appellees commenced commercial
arbitration against appellants in February 2017 with the
American Arbitration Association in Cleveland, Ohio.
Plaintiffs sought, in part, a declaration that appellants
should be removed for cause as the manager of Prophecy.
After several weeks of hearings that took place between
December 2017 and June 1, 2018, the arbitrator determined,
among many other things, that appellants "breached their
fiduciary duty of loyalty by failing to act in good faith or
that constituted willful or wanton misconduct," which
amounted to cause under the SOA. But the arbitrator
determined that she did not have the authority under the SOA
to remove appellants as the manager of Prophecy, leaving that
to other members of Prophecy. The arbitrator also issued a
monetary judgment against appellants.
On December 6, 2018, the day the arbitrator issued her final
award, appellees filed an application for an order confirming
it. Appellees served ...