Cab E. L.L.C. v. Pinchak

2011 Ohio 6479

• Court: Ohio Court of Appeals
• Decided: December 15, 2011
• Docket: 96934
• Status: Published

Opinion

[Cite as Cab E. L.L.C. v. Pinchak, 2011-Ohio-6479.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96934

CAB EAST, LLC PLAINTIFF-APPELLEE

vs.

DANIEL N. PINCHAK DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Civil Appeal from the Shaker Heights Municipal Court Case No. 10 CVF 00823

BEFORE: Cooney, J., Celebrezze, P.J., and Jones, J.

RELEASED AND JOURNALIZED: December 15, 2011 2

ATTORNEY FOR APPELLANT

James R. Douglass James R. Douglass Co., LPA 20521 Chagrin Blvd., Suite D Shaker Heights, Ohio 44122

ATTORNEYS FOR APPELLEE

Keith D. Weiner Michael S. Berkowitz Suzana Kukovec-Krasnicki Keith D. Weiner & Assoc. Co., LPA 75 Public Square Fourth Floor Cleveland, Ohio 44113

COLLEEN CONWAY COONEY, J.:

{¶ 1} Defendant-appellant, Daniel Pinchak (“Pinchak”), appeals the trial court’s

denial of his motion to reinstate the stay pending arbitration with plaintiff-appellee, Cab

East LLC (“Cab East”). However, Pinchak’s entire argument relates solely to the trial

court’s order granting his initial motion to stay proceedings pending arbitration. Finding

no merit to the appeal, we affirm.

{¶ 2} In June 2010, Cab East filed a complaint against Pinchak for breach of

contract, claiming that Pinchak leased a vehicle from Land Rover Capital Group LLC,

one of Cab East’s subsidiaries, and defaulted on his lease payments. Pinchak claims that

he never negotiated a lease with Land Rover Capital and never received a leased vehicle 3

from Cab East. Instead, Pinchak claims that he was threatened at gunpoint by the

Westside Automotive Group finance manager, who forced Pinchak to go to the dealership

and sign a lease agreement for a 2007 Land Rover. However, when the initial bills for

the lease arrived at Pinchak’s address, he paid them. Pinchak claims to have paid the

first few bills in “an unsuccessful effort to preserve his creditworthiness.” Thereafter,

Pinchak defaulted on his lease payments.

{¶ 3} In February 2011, Pinchak filed a motion to stay the proceedings pending

arbitration pursuant to the lease agreement.1 On March 8, 2011, the trial court granted

his motion and ordered Pinchak to initiate arbitration on or before April 29, 2011, if he

elected to do so. On April 29, 2011, arbitration had not yet been initiated, and Cab East

filed a motion to lift the stay and requested leave to file a motion for summary judgment.

Both requests were granted by the trial court. Cab East then filed its motion for

summary judgment. Rather than opposing this motion, Pinchak filed a motion to

reinstate the stay. The trial court denied Pinchak’s motion to reinstate the stay and

granted Cab East’s motion for summary judgment. Cab East was awarded the entire

outstanding balance of $13,894.32.

{¶ 4} Pinchak now appeals, raising one assignment of error, claiming that the trial

court erred in its initial order that required him to initiate arbitration. However, his

Pinchak’s motion also noted that Exhibit A of the complaint “clearly provides” for arbitration 1

and “either party may require that any claim” in the contract be resolved by arbitration. 4

notice of appeal filed on June 14 relates to the court’s denial of his motion to reinstate the

stay.

{¶ 5} It is clear from his brief that the merits of Pinchak’s instant appeal and the

arguments contained therein, are directly related to the court’s order that granted his

initial motion to stay the proceedings. Pinchak’s argument that the trial court

erroneously shifted the burden regarding the initiation of arbitration, is directly related to

the court’s order of March 8, 2011. Both parties concede that this order granted

Pinchak’s motion to stay the proceedings pending arbitration and ordered Pinchak to

initiate arbitration on or before April 29, 2011, if he chose to do so. The order stipulated

that if arbitration had not been initiated on or before April 29, 2011, then the case would

proceed to trial.

{¶ 6} If Pinchak objected to the trial court’s initial order granting the stay because

he felt it erroneously shifted the burden of initiating arbitration, he should have appealed

that order. It is well established that any order that grants or denies a stay is a final,

appealable order pursuant to R.C. 2711.02(C), which states:

{¶ 7} “an order * * * that grants or denies a stay of a trial of any action pending

arbitration, including, but not limited to, an order that is based upon a determination of

the court that a party has waived arbitration under the arbitration agreement, is a final

order and may be reviewed, affirmed, modified, or reversed on appeal pursuant to the

Rules of Appellate Procedure * * *.” 5

{¶ 8} Thus, Pinchak should have appealed the initial order of March 8, 2011

within the 30-day time frame set forth in App.R. 4(A) if he wished to challenge that

order.

{¶ 9} Pinchak’s current appeal has failed to demonstrate any error by the court in

its granting summary judgment for Cab East and denying Pinchak’s motion to reinstate

the stay.

Judgment affirmed.

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

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the municipal

court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

______________________________________________ COLLEEN CONWAY COONEY, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and LARRY A. JONES, J., CONCUR