Gustavus, L.L.C. v. Eagle Invests.

2012 Ohio 1433

• Court: Ohio Court of Appeals
• Decided: March 30, 2012
• Docket: 24899
• Status: Published

Opinion

[Cite as Gustavus, L.L.C. v. Eagle Invests., 2012-Ohio-1433.]

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

GUSTAVUS, LLC :

Plaintiff-Appellant : C.A. CASE NO. 24899

vs. : T.C. CASE NO. 11CV03993

EAGLE INVESTMENTS, et al. : (Civil Appeal from Common Pleas Court) Defendants-Appellees :

. . . . . . . . .

O P I N I O N

Rendered on the 30th day of March, 2012.

Joseph C. Lucas, Atty. Reg. No. 0081336; Tyler W. Kahler, Atty. Reg. No. 0085932, 7015 Corporate Way, Centerville, OH 45459 Attorneys for Plaintiff-Appellant

J. Steven Justice, Atty. Reg. No. 0063719; Paul H. Shaneyfelt, Atty. Reg. No. 0065629, 210 W. Main Street, Troy, OH 45373

Ray C. Freudiger, 1 S. Main Street, Suite 1800, Dayton, OH 45402

Thomas W. Kendo, Jr., 7925 Paragon Road, Dayton, OH 45459 Attorneys for Defendants-Appellees

GRADY, P.J.:

{¶ 1} Plaintiff, Gustavus, LLC (“Gustavus”), appeals from a final order entered by

the common pleas court pursuant to R.C. 2711.02(B), staying the trial of an action Gustavus

commenced against Defendants, Eagle Investments, LLC and several individuals associated 2

with it (hereinafter “Eagle”), pending arbitration of the issues in the action. Gustavus argues

that the trial court erred because the relief it seeks against Eagle under the Ohio Corrupt

Activities Act, R.C. 2923.31, et seq., creates a public policy defense against arbitration, and

that the trial court abused its discretion in ordering a stay because the terms for arbitration in

the arbitration clause of the contract between Gustavus and Eagle are vague and inconsistent.

{¶ 2} We reject those arguments on findings that the arbitration to which the parties

agreed does not preclude the relief under the Ohio Corrupt Activities Act that Gustavus seeks,

and that the terms of the arbitration clause which Gustavus claims are vague and inconsistent

are merely anomalies that do not prevent arbitration of the action and the stay the trial court

ordered. We therefore affirm the judgment from which the appeal was taken.

I

STATEMENT OF FACTS

{¶ 3} Gustavus and Eagle are business enterprises that own and operate commercial

real properties. In June of 2010, Gustavus agreed to purchase from Eagle the premises

consisting of multiple residential rental units located at 1901 Village Drive in Dayton, Ohio.

The agreed price was one million, one hundred and twenty thousand dollars. The written

Real Estate Purchase and Sale Agreement contains the following arbitration clause at Section

(30)(b):

(1) ANY DISPUTE OR CLAIM BETWEEN BUYER AND SELLER

ARISING FROM THIS AGREEMENT OR THE TRANSACTION

CONTEMPLATED HEREIN SHALL BE SETTLED BY BINDING

ARBITRATION UNDER THE COMMERCIAL ARBITRATION RULE OF 3

THE AMERICAN ARBITRATION ASSOCIATION. JUDGMENT ON THE

AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN

ANY COURT HAVING JURISDICTION, FILING A COURT ACTION TO

OBTAIN PROVISIONAL REMEDIES SHALL NOT CONSTITUTE A

WAIVER OF THIS PROVISION.

(2) THE ARBITRATOR(S) SHALL BE A RETIRED JUDGE OR

ANY ATTORNEY WITH AT LEAST TEN (10) YEARS OF COMMERCIAL

REAL ESTATE LAW EXPERIENCE. THE ARBITRATION SHALL BE

DECIDED IN ACCORDANCE WITH SUBSTANTIVE OHIO LAW. THE

PARTIES SHALL HAVE THE RIGHT TO CONDUCT DISCOVERY IN

ACCORDANCE WITH OHIO CODE OF CIVIL PROCEDURE SECTION

1283.05 AND TO THE SAME EXTENT AS IN A CIVIL ACTION. THE

ARBITRATION SHALL OTHERWISE BE CONDUCTED IN

ACCORDANCE WITH TITLE 9 PART III, OHIO CODE OF CIVIL

PROCEDURE. THIS AGREEMENT TO ARBITRATE SHALL BE

INTERPRETED IN ACCORDANCE WITH THE FEDERAL

ARBITRATION ACT.

{¶ 4} Additionally, the arbitration clause of the Contract provides in section

(30)(b)(4) that:

NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE

AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS

INCLUDED IN THE “ARBITRATION OF DISPUTE” PROVISION 4

DECIDED BY A NEUTRAL ARBITRATION AS PROVIDED BY OHIO

LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS

TO HAVE THE DISPUTE LITIGATED IN COURT OR JURY TRIAL, AND

ARE GIVING UP MOST OF YOUR RIGHTS OF APPEAL. BY

INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR

JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS SUCH

RIGHTS ARE SPECIFICALLY INCLUDED IN THE “ARBITRATION OF

DISPUTES” PROVISION NOTWITHSTANDING THIS WAIVER OF

RIGHTS TO DISCOVERY, IN ANY CASE IN WHICH BROKER SUES

FOR AN UNPAID COMMISSION, BROKER SHALL BE ENTITLED TO

THE PRODUCTION OF ALL NONPRIVILEGED DOCUMENTS

DEMANDED OR SUBPOENAED BY BROKER FROM BUYER AND

SELLER, OR ANY THIRD PARTY TO THE ARBITRATION.

{¶ 5} The purchase and sale of the real property closed on October 27, 2010.

Gustavus took possession of the property and has operated it since.

II

PROCEDURAL HISTORY

{¶ 6} On June 3, 2011, Gustavus commenced an action against Eagle, three of its

partners, the real estate broker that represented Eagle in the purchase and sale and the broker’s

agent, and the individual owners and operators of a property management firm that had

managed the property for Eagle.

{¶ 7} As operative facts, Gustavus alleged that Eagle and the individual defendants 5

misrepresented the rental income the property generated as well as the costs of its operation.

Defendants allegedly did so by providing false rent rolls and other verifications of those

matters to Gustavus to induce it to purchase the property. Gustavus’s complaint pled claims

alleging (1) breach of contract, (2) fraudulent misrepresentation, (3) violations of the Ohio

Corrupt Activities Act, R.C. 2923.31, et seq., (4) civil conspiracy, (5) unjust enrichment, and

(6) conversion. As relief, Gustavus sought rescission of the contract of sale and an order

requiring Eagle to repurchase the property, money damages, and other relief made available

by the Ohio Corrupt Activities Act, as well as punitive damages and attorney fees.

{¶ 8} Eagle filed responsive pleadings and a motion to stay the action pending

arbitration pursuant to R.C. 2711.021(B). Gustavus opposed the motion, arguing, among

other things, that the public policy underlying the Ohio Corrupt Activities Act precludes

arbitration of its claims for relief under the Act, and that the arbitration clause in the contract

of sale is vague and inconsistent. The trial court rejected those arguments and stayed the

action, finding that the arbitration agreement is not sufficiently indefinite or inconsistent to

void that agreement, and that Eagle’s public policy defense to arbitration is preempted by

Section 2 of the Federal Arbitration Act.

{¶ 9} Gustavus filed a notice of appeal from the order staying its action pending

arbitration. The matter is now before us for review on the following assignment of error by

Gustavus:

{¶ 10} “THE TRIAL COURT ERRED IN GRANTING DEFENDANTS EAGLE

INVESTMENT, WILLIAM HEIDENREICH, ROBERT HEIDENREICH, AND JOSEPH

BALOGH’S MOTION TO COMPEL ARBITRATION WHERE (1) THE ARBITRATION 6

CLAUSE OF THE CONTRACT IS UNENFORCEABLE BECAUSE IT VIOLATES

PUBLIC POLICY BY HINDERING THE PURPOSE OF THE OHIO CORRUPT ACTIVITY

ACT, AND (2) THE ARBITRATION CLAUSE OF THE CONTRACT IS

UNENFORCEABLE BECAUSE IT SETS OUT THE RULES FOR ARBITRATION IN

VAGUE TERMS THAT ARE INCONSISTENT WITH OHIO LAW.

III

LEGAL ANALYSIS

{¶ 11} An order entered pursuant to R.C. 2711.02(B) is a final, appealable order.

R.C. 2711.02(C). We therefore have jurisdiction to review the error assigned, and to affirm,

reverse, or modify the final judgment from which the appeal was taken.

{¶ 12} When addressing whether a trial court properly granted a motion to stay

proceedings and compel arbitration on a finding that the issues are referable to arbitration, our

standard of review is the abuse of discretion standard. Carter Steel & Fabricating Company

v. Danis Building Construction Company, 126 Ohio App.3d 35, 710 N.E.2d 299 (3d Dist.

1998). However, when an appellate court is presented with purely legal questions, the

standard of review to be applied is de novo. Eagle v. Fred Martin Motor Company, 157

Ohio App.3d 150, 2004-Ohio-829, 809 N.E.2d 1161 (9th Dist.), ¶ 11

A.

GUSTAVUS’S PUBLIC POLICY DEFENSE

{¶ 13} Gustavus argues that the public policies underlying its claim for relief alleging

violations of the Ohio Corrupt Activities Act (“OCAA”) preclude arbitration of that claim.

The argument presents a purely legal question, and we review the error assigned de novo. 7

{¶ 14} Arbitration clauses in a contract are of two types: (1) unlimited clauses

providing for arbitration of all disputes that may arise out of the parties’ contractual

relationship, and (2) limited clauses providing for arbitration of only specific contractual

disputes or specific issues. The arbitration agreement in the present case provides that “any

dispute between buyer and seller arising from this agreement or by the transaction

contemplated herein shall be settled by binding arbitration under the commercial arbitration

rules of the American Arbitration Association.” The agreement is therefore plenary in nature

and applies to any and all disputes having the required origin.

{¶ 15} R.C. 2711.01(A) provides that an arbitration agreement in a written contract

“shall be valid, irrevocable, and enforceable, except upon grounds that exist in law or equity

for the revocation of any contract.” R.C. 2711.01(B)(1) creates an exception to the

requirements of R.C. 2711.01 to 2711.16 with respect “to controversies involving the title to

or possession of real estate,” subject to certain further applications that do not apply in the

present case.

{¶ 16} None of the particular “controversies,” in this action, that is, the matters of

disagreement or in dispute between the parties, involve the title to the real property concerned

in the dispute or the right to possession of that property. It is undisputed that title to the

property is in Gustavus and that Eagle has no possessory interest in the property. However,

where final determination of claims in an action may entitle a claimant to relief that affects

title, such as specific performance of a contract of sale, it has been held that the R.C.

2711.01(B)(1) bar against arbitration applies. Kedzior v. CDC Dev. Corp., 123 Ohio App.3d

301, 704 N.E.2d 54 (8th Dist. 1997). The relief of rescission and repurchase of its property 8

that Eagle requests would, if granted, likewise affect title to the property concerned. On that

basis, R.C. 2711.01(B)(1) would bar enforcement of the parties’ agreement to arbitrate.

{¶ 17} The Federal Arbitration Act (“FAA”), 9 USC Sections 1-16, governs disputes

that are resolved through arbitration rather than in the courts. Section 2 of the FAA states:

A written provision in any maritime transaction or a contract

evidencing a transaction involving commerce to settle by arbitration a

controversy thereafter arising out of such contract or transaction, or the refusal

to perform the whole or any part thereof, or an agreement in writing to submit

to arbitration an existing controversy arising out of such a contract, transaction,

or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds

as exist at law or in equity for the revocation of any contract.

{¶ 18} In Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984),

the Supreme Court held that because a state statute declaring void any provision purporting to

bind a franchisee to waive compliance with provisions of the statute rendered unenforceable

an arbitration agreement involving commerce, the statute conflicted with Section 2 of the

FAA and thus violates the Supremacy Clause of the United States Constitution, Article 2,

clause 6. The court pointed out that in enacting Section 2 of the FAA Congress declared a

national policy favoring arbitration and withdrew the power of the states to instead require a

judicial forum for the resolution of claims which the contracting parties agreed to resolve by

arbitration. The court further pointed out that there are only two limitations on the

enforceability of arbitration provisions governed by the FAA: (1) they must be part of a

written maritime contract or a contract evidencing a transaction involving commerce, and (2) 9

such clauses may be revoked upon grounds as exist at law or in equity for the revocation of

any contract, and there is nothing in the Act indicating that the broad principle of

enforceability is subject to any additional limitations under state law.

{¶ 19} In AT&T Mobility, LLC v. Concepcion, ___ U.S. ___, 131 S.Ct. 1740, 179

L.Ed.2d 742 (2011), California common law prohibited waivers of arbitration rights by

consumers in contracts of adhesion, reasoning that such waivers are unconscionable. The

Supreme Court held that “[w]hen state law prohibits outright the arbitration of a particular

type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA.”

131 S.Ct. at 1747. The Supreme Court explained: “Although Section 2's savings clause

preserves generally applicable contract defenses, nothing in it suggests an intent to preserve

state-law rules that stand as an obstacle to the accomplishment of the FAA’s objectives.” Id.

at 1748.

{¶ 20} The written contract of sale between Gustavus and Eagle evidences a

transaction involving commerce. The arbitration agreement in the contract is subject to

revocation upon grounds as exist in law or equity for the revocation of any contract. “Thus,

generally applicable contract defenses, such as fraud, duress, or unconscionability, may be

applied to invalidate arbitration agreements without contravening Section 2. Courts may not,

however, invalidate arbitration agreements under state laws applicable only to arbitration

provisions.” (Citations omitted.) Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 687,

134 L.Ed.2d 902, 116 S.Ct. 1652 (1996).

{¶ 21} The exception established in R.C. 2711.01(B)(1) concerning controversies

involving the title to or possession of real estate is applicable only to arbitration. Therefore, 10

R.C. 2711.01(B)(1) is not a defense to the R.C. 2711.02(B) motion for arbitration that Eagle

filed. Doctor’s Associates, Inc. Gustavus concedes that point, but argues that arbitration of

its OCAA claims is subject to a public policy exception.

{¶ 22} R.C. 2923.32 prohibits engaging in a pattern of corrupt activity. In order to

allege a criminal violation of that section, a complaint must plead (1) that the conduct of the

defendant involves the commission of two or more specifically prohibited state or federal

criminal offenses, (2) that the prohibited criminal conduct of the defendant constitutes a

pattern of corrupt activity, and (3) that the defendant has participated in the affairs of an

enterprise or has acquired or maintained an interest in or control of an enterprise through

which the defendant engaged in the criminal conduct. Kondrat v. Morris, 118 Ohio App.3d

198, 692 N.E.2d 246 (8th Dist. 1997).

{¶ 23} R.C. 2923.34 confers a right to maintain a civil action on persons injured by

violations of R.C. 2923.31. The relief made available by R.C. 2923.34 includes treble

damages, divestiture of the offender’s interests in the enterprise or in any real property,

reasonable restrictions on future activities or investments, and attorney fees. R.C.

2923.34(B)(1), (2), (E) and (F).

{¶ 24} The Third Claim For Relief in the complaint Gustavus filed alleges that the

Defendants engaged in a pattern of corrupt activity in misrepresenting the value of their

apartment complex, and that in so doing Defendants engaged in the following criminal

violations: theft by deception, R.C. 2913.02(A)(3); telecommunications fraud, R.C. 2913.05;

money laundering, R.C. 1315.55(A)(3); tampering with records and uttering tampered records,

R.C. 2913.42(A)(1) and 2913.42(A)(3); wire fraud, 18 U.S.C. 1343, and mail fraud, 18 11

U.S.C. 1343; and mail fraud, 18 U.S.C. 1341. As relief, Gustavus asked the court to impose

the sanctions authorized by R.C. 2923.34(B)(1), (2), (E) and (F), discussed above.

{¶ 25} The defenses to arbitration identified in Doctor’s Associates, Inc., fraud,

duress, or unconscionability, are not exclusive. Gustavus relies on cases which have held that

when an arbitration provision brings about a result a statute seeks to prevent, or hinders

vindication of private rights a statute confers, the arbitration provision violates public policy

and is therefore void and unenforceable. Gustavus argues that the arbitration clause in its

contract with Eagle is void for those reasons because it deprives Gustavus of the right to a

remedy that the OCAA confers, including those R.C. 2923.34 remedies Gustavus seeks.

Gustavus relies on Fred Martin Motor Co.

{¶ 26} In Fred Martin Motor Co., a consumer commenced a Consumer Sales

Practices Act claim against an auto dealer. The contract of sale the consumer signed included

an arbitration clause that required the outcome of the arbitration to be kept confidential.

Citing the policy of the CSPA favoring public disclosure of unfair and deceptive acts and

practices by suppliers, the Ninth District Court of Appeals held the arbitration clause

unenforceable for its violation of that public policy.

{¶ 27} Gustavus’s reliance on Fred Martin Motor Co. is misplaced. Nothing in the

arbitration clause in its contract with Eagle prohibits or limits application of the OCAA claim

for relief in the complaint Gustavus filed. Indeed, Gustavus identifies no such impediment,

and instead merely suggests that an arbitrator cannot decide its OCAA claims. We find no

basis for that suggestion, for two reasons.

{¶ 28} First, as we previously pointed out, the arbitration clause in the present case is 12

plenary in nature, encompassing “any dispute or claim between buyer and seller arising from

this agreement or the transaction contemplated herein.” The pattern of corrupt activity in

which Eagle allegedly engaged arose from the sale and purchase transaction between Eagle

and Gustavus. There is no basis in the arbitration clause to withhold the issues the OCAA

claims present from arbitration.

{¶ 29} Implicit in Gustavus’s argument is a contention that the relief Gustavus seeks

is outside the scope of the relief which an arbitrator’s award can provide. That may be

correct, but only in the sense that any relief an arbitrator’s award provides is likewise

inchoate. Relief is granted by the judgment the court enters pursuant to R.C. 2711.12, after

confirming, modifying or correcting the arbitrator’s award. The judgment is then docketed as

if rendered in a civil action and in all respects has the same effect and is subject to all laws

relating to a judgment in an action and may be enforced as if rendered in an action in the court

in which it is entered. Champion v. Kraftmaid Cabinetry, Inc., 190 Ohio App.3d 202,

2010-Ohio-5398, 941 N.E.2d 124 (11th Dist.).

{¶ 30} A second reason for rejecting Eagle’s argument is found in Shearson/American

Express, Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987). In that

case the plaintiff commenced an action for treble damages pursuant to 18 U.S.C. Section

1964(C) for alleged federal RICO violations. Lower courts had determined that the RICO

claims for relief, being statutory, were not amenable to arbitration. The Supreme Court

reversed, holding that the “duty to enforce arbitration agreements is not diminished when a

party bound by an (arbitration) agreement raises a claim founded on statutory rights.” 482

U.S, at 226. The Supreme Court further held that “the criminal law provisions of RICO do 13

not preclude arbitration of bona fide civil actions brought under Section 1964(C),” including

any treble damages claims. 482 U.S. at 240. Lower federal courts have likewise held that

civil RICO claims are arbitrable. Genesco Inc. v. T. Kakiuche & Co., 815 F.2d 840 (2d Cir.

1987); Nesslage v. York Securities, Inc., 823 F.2d 231 (8th Cir. 1987); Mayaja, Inc., S.A. v.

Bodkin, 824 F.2d 439 (5th Cir. 1987).

{¶ 31} Ohio’s Corrupt Activities Act is modeled on the federal RICO statute. State v.

Schlosser, 79 Ohio St.3d 329, 681 N.E.2d 911 (1997). The rationale of Shearson/American

Express, Inc. and other cases supports a finding that alleged violations of the OCAA are

arbitrable. We reject Gustavus’s argument that alleged OCAA violations and the various

civil remedies for those violations that R.C. 2923.34 authorizes are unavailable through

arbitration.

{¶ 32} Gustavus argues that, nevertheless, the statutory rights of relief the OCAA

confers are not subject to arbitration under the particular terms of their agreement. The

parties agreed to arbitrate “under the Commercial Arbitration Rules of the American

Arbitration Association.” Gustavus relies on Rule 43(a), which authorizes an award “within

the scope of the agreement between the parties, including specific performance.” Gustavus

contends that the arbitrator is limited to “contract issues” and does not include relief allowed

by the OCAA.

{¶ 33} We do not agree. The parties agreed to arbitrate “any dispute or claim

between buyer or seller arising from this agreement or the transaction contemplated herein.”

The OCAA violations are alleged to have arisen from the transaction of sale and purchase

between the parties. An arbitration clause in a contract should not be denied effect by a court 14

unless it can be said with positive assurance that the clause is not susceptible to an

interpretation that covers the asserted dispute, and doubts should be resolved in favor of

coverage. Gibbons-Grable Co. v. Gilbane Bldg. Co., 34 Ohio App.3d 170, 517 N.E.2d 559

(8th Dist. 1986). In view of the fact that statutory rights and remedies are arbitrable, we

cannot say with positive assurance that Gustavus’s OCAA claims for relief are not within the

scope of the arbitration clause in its contract with Eagle.

{¶ 34} Concerning the matter of attorney fees, Gustavus also argues that arbitration is

unavailable because the applicable rule of the American Arbitration Association states that the

arbitrator “may” award attorney fees, while R.C. 2923.34(G) provides that in a civil action a

plaintiff “shall recover reasonable attorney fees in the trial and appellate courts.” We do not

agree. The AAA rule simply authorizes the arbitrator to award the attorney fees that R.C.

2923.34(G) mandates.

{¶ 35} The trial court rejected Gustavus’s public policy defense, reasoning that

acceptance of that argument would require a finding inconsistent with the holding in

Southland Corp., Shearson/American Express, and Concepcion that Section 2 of the FAA

trumps a state statute and any policy against arbitration in the statute when they act as an

obstacle to the accomplishment of Congress’s objectives in enacting the FAA. We agree.

B

VAGUENESS AND INCONSISTENCY

{¶ 36} Gustavus argues that the trial court erred in staying trial of the case pending

arbitration because the arbitration clause contains terms that reference Ohio civil procedure

and Revised Code sections which do not exist. 15

{¶ 37} At paragraph 2, the arbitration clause provides that discovery is to be

conducted according to “Ohio Code of Civil Procedure section 1283.05 and to the same extent

as in a civil action.” There are, of course, Ohio Rules of Civil Procedure, but they contain no

section 1283.05. Neither is there a chapter 12 of the Ohio Revised Code.

{¶ 38} Paragraph 4 of the arbitration clause contains the following statement:

By initialing in the space below you are giving up your judicial rights of

discovery and appeal, unless such rights are specifically included in the

“Arbitration of Disputes” provision notwithstanding this waiver of rights to

discovery.

{¶ 39} Gustavus points out, correctly, that no section of the contract is specifically

captioned “Arbitration of Disputes,” which further confuses the reference to the non-existent

section 1283.05 of the Ohio Code of Civil Procedure. The problem is further compounded

by Paragraph 2 of the arbitration clause which states that “[t]he arbitration shall otherwise be

conducted in accordance with Title 9, Part III, Ohio Code of Civil Procedure,” another

non-existent section.

{¶ 40} The trial court rejected Gustavus’s arguments, finding that because the identity

of the parties to be bound by the arbitration agreement and the subject matter of the dispute to

be arbitrated are set forth with sufficient definiteness and clarity, these erroneous discovery

references are matters for the arbitrator to resolve.

{¶ 41} An arbitration clause in a contract should not be denied effect by a court unless

it may be said with positive assurance that the clause is not susceptible to an interpretation

that covers the asserted dispute, and doubts should be resolved in favor of coverage. 16

Gibbons-Grable Co. v. Gilbane Building Co., 34 Ohio App.3d 170, 517 N.E. 2d 559 (8th

Dist. 1986); Krafcik v. USA Energy Consultants, Inc., 107 Ohio App.3d 59, 667 N.E.2d 1027

(8th Dist. 1995).

{¶ 42} We agree with the trial court. The erroneous references to non-existent

judicial discovery provisions are anomalies that do not detract from the essential terms of the

parties’ agreement to arbitrate any disputes arising from their contract and/or transaction.

The references may be set aside by the arbitrator in favor of any applicable discovery

provisions in the Commercial Arbitration Rules of the American Arbitration Association,

which the parties agreed would govern the procedure of their binding arbitration.

{¶ 43} The trial court did not abuse its discretion in rejecting Gustavus’s argument

that the arbitration clause is too vague and inconsistent to support arbitration of the issues in

dispute.

IV

CONCLUSION

{¶ 44} The trial court did not abuse its discretion in finding that the case is referable to

arbitration on the written agreement of the parties, and did not err in staying trial of the action

until arbitration of the issues in dispute has been had in accordance with the arbitration

agreement, pursuant to R.C. 2711.02(B).

{¶ 45} The assignment of error is overruled. The final judgment from which the

appeal was taken will be affirmed.

FAIN, J., And FROELICH, J., concur. 17

Copies mailed to:

Joseph C. Lucas, Esq. Tyler W. Kayler, Esq. J. Steven Justice, Esq. Paul H. Shaneyfelt, Esq. Ray. C. Freudiger, Esq. Thomas J. Kendo, Jr., Esq. Hon. Michael Tucker