114476

2025 Ohio 2525

• Court: Ohio Court of Appeals
• Decided: July 17, 2025
• Docket: Roll v. Gertburg Licata Co., LPA
• Status: Published

Opinion

[Cite as 114476, 2025- Ohio-2525.] COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STEWART D. ROLL, :

Plaintiff-Appellee, : No. 114476 v. :

GERTBURG LICATA CO., LPA, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: July 17, 2025

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-23-989546

Appearances:

Stark & Knoll Co., L.P.A., Hamiton DeSaussure, Jr., and Orville L. Reed, III, for appellee.

Gertsburg Licata Co. LPA and Louis J. Licata, for appellant.

MICHAEL JOHN RYAN, J.:

Defendant-appellant, Gertburg Licata Co., L.P.A., (“appellant”) appeals

the trial court’s denial of its motion to compel arbitration. Finding merit to the appeal, we reverse the trial court’s judgment and remand the case for further

proceedings.

In January 2023, plaintiff-appellee Stewart Roll (“appellee”) and

appellant executed a promissory note (“Promissory Note”) and an agreement

(“Agreement”) for the purchase of appellee’s law practice. The Promissory Note,

which outlined appellant’s payment obligations, required the firm to make monthly

payments to appellee totaling $300,000 over a specified term. The Promissory Note

did not contain an arbitration clause. The Agreement, executed contemporaneously

with the Promissory Note, governed additional terms of the transaction and

included terms regarding alternative dispute resolution.

Appellee alleges that appellant defaulted on its payment obligations

under the Promissory Note. As a result, appellee sent written notice to appellant of

its default and demanded payment of the outstanding amount.

In December 2023, appellee filed suit seeking to enforce the

Promissory Note. Appellant moved to stay proceedings and compel arbitration,

arguing that the arbitration clause in the Agreement governed all disputes, including

those arising under the Promissory Note. The trial court denied appellant’s motion,

holding that arbitration was not mandatory.

Appellant appealed, raising two assignments of error, which we will

combine for review:

I. The trial court erred in denying [a]ppellant’s motion to stay proceedings and compel arbitration. II. The trial court erred when it found that the parties’ agreement to arbitrate disputes “is not mandatory.”

Generally, an appellate court reviews a trial court’s decision to grant

or deny a motion to compel arbitration for an abuse of discretion. Smith v. Rezutek,

2024-Ohio-5599, ¶ 5 (8th Dist.), citing Simmons v. Extendicare Health Servs., Inc.,

2016-Ohio-4831 (5th Dist.). An abuse of discretion occurs when a court exercises

“its judgment, in an unwarranted way, in regard to a matter over which it has

discretionary authority.” Johnson v. Abdullah, 2021-Ohio-3304, ¶ 35. The issue of

whether a party has agreed to submit an issue to arbitration, however, is reviewed

under a de novo standard of review. Winters Law Firm, L.L.C. v. Groedel, 2013-

Ohio-5260, ¶ 9 (8th Dist.), citing Shumaker v. Saks Inc., 2005-Ohio-4391

(8th Dist.).

There is a presumption favoring arbitration when the claim in dispute

falls within the scope of the arbitration provision. Williams v. Aetna Fin. Co.,

83 Ohio St.3d 464, 471 (1998). Thus, “any ambiguities in the language of a contract

containing an arbitration provision should be resolved in favor of arbitration.”

Taylor v. Ernst & Young, LLP, 2011-Ohio-5262, ¶ 20. However, “the courts must

not ‘override the clear intent of the parties, or reach a result inconsistent with the

plain text of the contract, simply because the policy favoring arbitration

is implicated.’” Pantages v. Becker, 2018-Ohio-3170, ¶ 8 (8th Dist.), quoting

Taylor at id. Appellant contends that the trial court erred when it denied its

motion to compel arbitration by finding that the Agreement did not mandate

arbitration. Appellee’s response is two-fold. First, appellee argues that the

Promissory Note was an independently enforceable contract with no arbitration

clause. Second, appellee argues that the Agreement itself did not mandate

arbitration.

As to appellee’s initial argument, we note that the Promissory Note was

attached to the Agreement, both documents were executed contemporaneously, and

the Agreement’s text expressly incorporated the Promissory Note. The Agreement

stated, in pertinent part:

1. Term. This Agreement shall be effective as of the Effective Date and shall continue for one (1) year, unless otherwise terminated by either party in accordance with the provisions of this Agreement, and subject to any longer periods of time set forth herein or in the promissory note attached hereto and incorporated herein.

...

6. Purchase Price; Payment Terms. The Firm shall pay to the Senior Partner the sum of three hundred thousand dollars ($300,000) as set forth in, and subject to, this Agreement. Payment shall be made in equal payments of . . . [$8,333] per month, without interest, in accordance with the promissory note attached hereto and incorporated herein . . . .

(Emphasis in original.)

The case appellee cites to support his position that the Promissory

Note stands alone as an enforceable contract is distinguishable from this case. In

JDH Mgt. Group, LLC v. Pierce, 2018-Ohio-706 (12th Dist.), the defendants

contracted with plaintiff, a home builder, for the construction of a $1.7 million house. The construction contract contained an arbitration clause. Almost a year

later, the defendants informed the plaintiff that they could not make the final

payment. The plaintiff drafted a repayment agreement, which the parties executed.

Plaintiff sued when the defendants did not fulfill the repayment agreement. The

trial court found that although the repayment agreement did not have an arbitration

clause, the agreement and the construction contract were clearly linked and,

therefore, the plaintiff waived its right to arbitration under the construction contract

when it filed suit to enforce the repayment agreement. Id. at ¶ 8.

The Twelfth District Court of Appeals disagreed, finding that the

repayment agreement was a separate enforceable contract. The court reasoned that

the plaintiff’s action to enforce the repayment agreement arose independently of the

construction contract and was not within the purview of the contract’s arbitration

clause. Id. at ¶ 30.

In this case, the Promissory Note and the Agreement were executed

contemporaneously and the Agreement explicitly referenced the Promissory Note.

The Promissory Note is subject to the Agreement’s terms, including its dispute

resolution provisions, whereas the repayment agreement in JDH Mgt. Group was

executed almost a year after the construction contract and did not reference the

construction contract’s arbitration clause.

Because the Promissory Note and the Agreement in this case were

executed contemporaneously and the Agreement’s text expressly incorporated the Promissory Note, we conclude that the documents are to be considered in

conjunction.

Next, we consider the trial court’s decision that the Promissory Note

and Agreement did not mandate arbitration. As mentioned, the Promissory Note

did not contain an arbitration clause. The Agreement, however, contained a section

on alternative dispute resolution, including the procedure by which the parties could

pursue arbitration. The Agreement provided that, should a dispute under the

Agreement arise, the parties were required to (1) provide written notice to the

breaching party and allow for a five-day cure period, (2) participate in face-to-face

negotiations, (3) attend mediation, and, failing those alternatives, (4) consider

The parties do not disagree that proper notice was provided, they

participated in face-to-face negotiations, and they tried to mediate the dispute. The

parties do dispute, however, whether arbitration was mandatory or at the parties’

discretion.

The Agreement states, in pertinent part:

13. Dispute Resolution. If at any time there is a claim or dispute between the parties arising from or relating to this Agreement and performance hereunder, nonbreaching party shall give written notice to the breaching party, after which the breaching party will have five (5) days to cure said breach. If same is not cured, the nonbreaching party will notify the breaching party of same, after which the parties agree that they will, within ten (10) days following receipt of said written notice, engage in face-to-face negotiations to resolve the dispute and shall, upon failing to negotiate a resolution, choose a mutually agreeable third party neutral, who shall mediate the dispute between the parties. Mediation shall be non-binding and shall be confidential. The parties shall refrain from court and arbitration proceedings during the mediation process insofar as they can do so without prejudicing their legal rights . . . . If the parties are unable to resolve the dispute in good faith within three (3) months of the date of the initial demand by either party, then the claim or dispute shall be finally determined by the arbitration procedures set forth below. Nothing in this Section obligates either party to pursue arbitration. The Section is intended to provide an alternative forum for dispute resolution if either party elects to do so . . . .

14. Choice of Forum/Arbitration. Subject to the requirements set forth in this Section 14, each party agrees to submit all disputes arising from or relating to this Agreement, including without limitation its interpretation, enforcement, and performance, if not resolved between the parties through their best efforts, to the American Arbitration Association (“AAA”) for binding arbitration in accordance with its Commercial Rules of dispute resolution. The forum for the arbitration will be Cuyahoga County, Ohio. The arbitrator shall be empowered to determine the arbitrability of the dispute. Both parties shall equally share the fees of the arbitrator(s). Except as otherwise stated in this Agreement, all disputes required to be submitted to mandatory arbitration shall be so submitted within one (1) year from the date the dispute first arose or shall be forever barred.

(Italics added. Boldface in original.)

Section 13 expressly states, “Nothing in this Section obligates either

party to pursue arbitration. The Section is intended to provide an alternative forum

for dispute resolution if either party elects to do so.” (Emphasis added.) Section 14

states that “each party agrees to submit all disputes arising from or relating to this

Agreement . . . to the American Arbitration Association (‘AAA’) for binding

arbitration.” When read in conjunction with Section 13, Section 14 indicates the

procedure — submitting to the AAA for binding arbitration — should either party

choose to arbitrate their dispute. The “parties to contracts are presumed to have read and understood

them and . . . a signatory is bound by a contract that he or she willingly signed.”

Preferred Capital, Inc. v. Power Eng. Group, Inc., 2007-Ohio-257, ¶ 10, citing

Haller v. Borror Corp., 50 Ohio St.3d 10 (1990). There is no dispute that the parties,

an attorney and a law firm, had an opportunity to negotiate the terms of the

Agreement before executing the document. By signing the Agreement, the parties

were presumed to have read and understood the terms of the contract.

The Agreement clearly states that although neither party is mandated

to pursue arbitration, should either party “elect” to choose arbitration, then the

matter is to be submitted to the AAA. When all other alternative dispute resolutions

failed, appellant elected to have the dispute arbitrated. Thus, based on appellant’s

election, the matter herein must proceed to arbitration.1

Considering the foregoing, we find that the trial court erred when it

denied appellant’s motion to compel arbitration.

The assignments of error are sustained. Case reversed and remanded.

It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

1 Even if the Agreement were subject to interpretation regarding arbitration, any

ambiguities in the language of a contract containing an arbitration provision should be resolved in favor of arbitration. Taylor, 2011-Ohio-5262, at ¶ 20. A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

__ MICHAEL JOHN RYAN, JUDGE

EILEEN T. GALLAGHER, P.J., CONCURS; SEAN C. GALLAGHER, J., DISSENTS (WITH SEPARATE OPINION)

SEAN C. GALLAGHER, J., DISSENTING:

I respectfully disagree with the majority’s resolution of this case.

There is nothing clear about the arbitration clause in the parties’ agreement,

especially as it pertains to the unambiguous language that “[n]othing in [Section 13

of the agreement] obligates either party to pursue arbitration.” “Pursue” is a broadly

defined term, meaning “‘[t]o proceed along or follow, as a specified course, action,

plan, etc.[,] . . . to follow a matter in a legal manner . . . .’” Bryant v. Dayton Casket

Co., 69 Ohio St.2d 367, 370 (1982), quoting Webster’s New Twentieth Century

Dictionary (2 Ed.). But importantly, it can also mean “to engage in.” Merriam-

Webster.com, available at https://perma.cc/7BP9-L862. Despite that clear

language, Gertburg Licata Co. (“Gertburg”) seeks to obligate Roll to engage in

Gertburg’s motion to compel arbitration claimed that Roll “violated

the arbitration clause by suing” it for the default on the promissory note. In its

reply brief and this appeal, Gertburg attempted to deflect from the Section 13

language, claiming that only Section 14 controls. That section provides: Subject to the requirements set forth in this Section 14, each party agrees to submit all disputes arising from or relating to this Agreement, including without limitation its interpretation, enforcement, and performance, if not resolved between the parties through their best efforts, to the American Arbitration Association (“AAA”) for binding arbitration in accordance with its Commercial Rules of dispute resolution. The forum for the arbitration will be Cuyahoga County, Ohio. The arbitrator shall be empowered to determine the arbitrability of the dispute. Both parties shall equally share the fees of the arbitrator(s). Except as otherwise stated in this Agreement, all disputes required to be submitted to mandatory arbitration shall be so submitted within one (1) year from the date the dispute first arose or shall be forever barred.

Gertburg claims that because that provision discusses mandatory arbitration,

arbitration is required based on one party’s desire. That interpretation ignores the

contractual language that neither party is obligated to arbitrate their dispute.

“In construing a contract, a court must read and consider the

provisions as a whole and not in isolation.” Sanzo Ents., LLC v. Erie Ins. Exchange,

2021-Ohio-4268, ¶ 36 (5th Dist.), citing Foster Wheeler Enviresponse, Inc. v.

Franklin Cty. Convention Facilities Auth., 1997-Ohio-202. Section 13 expressly

establishes that Section 14 applies “[i]f the parties are unable to resolve the dispute

in good faith within three (3) months of the date of the initial demand by either

party.”2 Section 14 is thus dependent on Section 13 and cannot be read in isolation

to create a mandatory arbitration requirement. In this case, Roll elected to file a

breach-of-contract action on the promissory note, which was well within his

2 The motion to compel arbitration was filed on February 23, 2024, less than three

months after the December 5, 2023 filing of the complaint. Roll demanded payment on December 2, 2023, declaring Gertburg to be in default of the promissory note. contractual rights. The agreement expressly provides that he is not obligated to

pursue arbitration, which is merely an option available to the aggrieved party.

Had Gertburg desired to make the election of arbitration a mandatory

proposition, it should not have agreed to the limiting language that neither party is

obligated to pursue, i.e., engage in, arbitration. The language at issue differs from

contractual language that generally offers either party the ability to elect arbitration,

in which case the other party can be compelled to arbitrate the matter upon the

moving party’s election. See, e.g., Mayfield Auto Group, LLC v. JS Mayfield

Partners, LLC, 2024-Ohio-3105, ¶ 25 (8th Dist.) (concluding that compelling

arbitration was appropriate because the contract provided that “either party may

elect” arbitration, and after electing to arbitrate, the other party “shall . . . appoint a

second person as arbitrator”). In this case, although either party retains the right to

pursue arbitration, neither party can be compelled to it. At best, the two provisions

create ambiguity that Gertburg has not attempted to clarify.

In light of this particular contract, I would affirm the decision of the

trial court.