Gutierrez-Gordillo v. Tomo Hibachi Rest. & Lounge, L.L.C.

118 N.E.3d 301, 2018 Ohio 2941
CourtCourt of Appeals of Ohio, Eighth District, Cuyahoga County
DecidedJuly 26, 2018
DocketNo. 106507
StatusPublished
Cited by1 cases

This text of 118 N.E.3d 301 (Gutierrez-Gordillo v. Tomo Hibachi Rest. & Lounge, L.L.C.) is published on Counsel Stack Legal Research, covering Court of Appeals of Ohio, Eighth District, Cuyahoga County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gutierrez-Gordillo v. Tomo Hibachi Rest. & Lounge, L.L.C., 118 N.E.3d 301, 2018 Ohio 2941 (Ohio Super. Ct. 2018).

Opinion

MELODY J. STEWART, J.:

*302{¶ 1} Plaintiff-appellant Lorenzo Gutierrez-Gordillo, defendants/cross-appellees Valentina and Velimir Lucic, 1293 W. 9th, L.L.C., and defendant/cross-plaintiff appellant Cindy Dong, operated a restaurant incorporated as Tomo Hibachi Restaurant and Lounge, L.L.C. Claiming a 15 percent ownership interest in the restaurant, Gutierrez-Gordillo maintained that he had not received any distributions or compensation from Tomo Hibachi, nor had he been given access to the restaurant's financial statements. He filed this action seeking dissolution of Tomo Hibachi and asserted claims for an accounting, breach of contract, breach of fiduciary duty, and unjust enrichment.

{¶ 2} Dong answered the complaint and denied Gutierrez-Gordillo's allegation that he was a member of Tomo Hibachi. She also filed a cross-claim against the Lucics, seeking a dissolution of the business on grounds that she had been forced out of the business by the Lucics. She alleged that during the formation phase of the business, the Lucics misrepresented their financial position - she claimed that their investment capital derived from multiple schemes to defraud the National Credit Union Administration Board.

{¶ 3} The Lucics answered and filed a motion to stay proceedings against Dong and refer the matter to arbitration consistent with the terms of an arbitration clause in Section 7.04 of the Tomo Hibachi operating agreement. Dong filed an opposing brief claiming that the Lucics waived their rights to arbitration, but argued in the alternative that if the court decided to stay the case and refer it to arbitration, Gutierrez-Gordillo's claims should also be referred to arbitration because he raised the same claim for judicial dissolution of the business. Gutierrez-Gordillo gave notice to the court that he agreed with Dong and desired to join her opposition to the motion to stay and/or order arbitration for all parties in the action.

{¶ 4} Finding that Dong and the Lucics had agreed to arbitration in the operating agreement, the court ordered them to submit the matter to arbitration. With respect to Gutierrez-Gordillo, the court held that he "was not a party to the operating agreement[.]" Nevertheless, the court stayed all proceedings on Gutierrez-Gordillo's complaint pending the outcome of arbitration between Dong and the Lucics.

{¶ 5} Dong and Gutierrez-Gordillo have filed a joint appeal. Their sole assignment of error complains that the court erred by finding that Gutierrez-Gordillo was not a party to the Tomo Hibachi operating agreement and, thus, not bound by the arbitration clause.

{¶ 6} The Lucics argue that the issue of whether they agreed to arbitrate disputes with Gutierrez-Gordillo is an initial question for the court. They maintain that Gutierrez-Gordillo was not a member of Tomo Hibachi because they never recognized him as such, a fact that they deem proven by Gutierrez-Gordillo's allegation in the complaint that they had not treated him as a full member of Tomo Hibachi. They maintain that the operating agreement *303was signed only by themselves and Dong, proving that Gutierrez-Gordillo is not a member of Tomo Hibachi so they have no contractual obligation to engage in arbitration with him.

{¶ 7} None of the parties dispute that the claims made by Gutierrez-Gordillo fall within the scope of the arbitration agreement; the issue is whether Gutierrez-Gordillo is a party to the operating agreement and thus bound to arbitrate his dispute against the Lucics. This is a question of law that we consider de novo. Zelina v. Hillyer , 165 Ohio App.3d 255, 2005-Ohio-5803, 846 N.E.2d 68, ¶ 12 (9th Dist.).

{¶ 8} Attached as Exhibit B to the complaint is an addendum to the Tomo Hibachi operating agreement. It amends Section 3.01 of the operating agreement to state: "By approval of all members the following is hereby admitted as an additional member: Lorenzo Gutierrez Gordillo. The addendum further amends Section 4.01, under the heading "additional members" to state:

By agreement of Initial Members and Additional Member, i.e., all members, additional member Lorenzo Gutierrez Gordillo will contribute to the Company for his membership interest the sum of $140,000.00 as follows: $120,000.00 upon execution of this addendum/agreement and $20,000.00 exactly two months from the date of the execution of this document.
Pursuant to this Addendum/Agreement the following Amendment to the membership interests shall be hereafter be as follows: Each Member shall have equal Voting power.
Cindy Dong 42.5% Valentina Lucic 42.5% Lorenzo Gutierrez Gordillo 15.0%

{¶ 9} The addendum is signed by Valentina Lucic, Dong, and Gutierrez-Gordillo.

{¶ 10} The addendum plainly states that Gutierrez-Gordillo was added to Tomo Hibachi as "an additional member." Section 7.13 of the operating agreement states that the operating agreement "is binding on and will inure to the benefit of the Company, the Members and their respective distributees." Section 1.02(c) states that " 'Agreement' means this agreement, including any amendments." Gutierrez-Gordillo's addition as a member of Tomo Hibachi bound him to the terms of the operating agreement, including the obligation to "submit all disputes arising under or related to this Agreement to binding arbitration according to the then prevailing rules and procedures of the American Arbitration Association."

{¶ 11} It is true that the parties used an "addendum" and not an "amendment" to the agreement. "An amendment is a 'formal revision or addition proposed or made to a statute, constitution or other instrument.' " Skirvin v. Kidd , 174 Ohio App.3d 273, 2007-Ohio-7179, 881 N.E.2d 914, ¶ 16 (4th Dist.), quoting Black's Law Dictionary , 37, 81 (6th Ed.1990). "An addendum is 'a thing that is added or to be added; a list or section consisting of added material.' " Id. Although "addendum" and "amendment" are legal terms of art, the parties did not give any indication that they intended that an "addendum" to the operating agreement would not be the same as an "amendment." Id. Tomo Hibachi could add new members to the operating agreement under Sections 1.02(C) and 7.13 of the operating agreement, and the new members would explicitly be bound by *304the terms of the entire agreement, including the arbitration clause.

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Bluebook (online)
118 N.E.3d 301, 2018 Ohio 2941, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gutierrez-gordillo-v-tomo-hibachi-rest-lounge-llc-ohctapp8cuyahog-2018.