U.S. Claims OPCO, L.L.C. v. Wells-Niklas

2023 Ohio 1169

• Court: Ohio Court of Appeals
• Decided: April 5, 2023
• Docket: 2022 CA 00097
• Status: Published

Opinion

[Cite as U.S. Claims OPCO, L.L.C. v. Wells-Niklas, 2023-Ohio-1169.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: US CLAIMS OPCO, LLC : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. 2022 CA 00097 NATASHA WELLS-NIKLAS : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Case No. 2022CV00311

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 5, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

OWEN J. RARRIC JAY KRASOVEC 4775 Munson Street N.W. 405 Rothrock Road #103 Canton, OH 44735-6963 Akron, OH 44321 Stark County, Case No. 2022 CA 00097 2

Gwin, P.J.

{¶1} Appellant Natasha Wells-Niklas appeals the June 21, 2022 judgment entry

of the Stark County Court of Common Pleas denying her motion to vacate and granting

the application of appellee to confirm the arbitration award.

Facts & Procedural History

{¶2} On July 12, 2014, Anquez Campbell drowned while swimming at a business

owned by Baylor Beach Park, Inc., located in Stark County, Ohio. At the time of his death,

he was survived by his mother and next of kin, Ida Campbell (“Campbell”). Campbell

retained appellant as her attorney to represent her legal interests after her son’s death.

{¶3} In 2015, Campbell individually, and as Administratrix/Executor and

beneficiary of the Estate of Anquez Campbell, executed a document entitled, “Purchase,

Sale, Assignment and Equitable Lien Agreement” (“Agreement”) with appellee US Claims

OPO, L.L.C. dba US Claims (“USC”). USC is a limited liability corporation that, pursuant

to a contract, advances money to plaintiffs involved in personal injury litigation in

exchange for purchasing a portion of the potential proceeds of the litigation. The

transaction is called a “non-recourse civil litigation advance.” R.C. 1349.55(A)(1). USC’s

principal place of business is in New Jersey. In the Agreement, Campbell agreed to sell

an interest in her anticipated proceeds from the wrongful death action to appellee.

Appellee paid Campbell $32,459.86, which included fees, costs, and a payoff to a prior

legal funding company.

{¶4} The terms of the Agreement included an arbitration provision which

provided, “USC and I agree that any and all controversies, claims, disputes, suits or

causes of action arising out of, or relating to this Agreement, * * * including the question Stark County, Case No. 2022 CA 00097 3

of arbitrability of any such Claim, shall be settled by binding arbitration.” Further, “this

agreement to arbitrate is binding upon and inures to the benefit of each of USC’s and my

respective heirs, executors, administrators, successor and assigns, as applicable.” The

Agreement specified the arbitration would be held before a single arbitrator from the New

Jersey Academy of Mediators and Arbitrators.

{¶5} As part of the Agreement, Campbell signed an “Irrevocable Letter of

Instruction to Counsel.” The letter was addressed to appellant and states, in pertinent

part, “[t]his letter, along with a copy of the [Agreement], will confirm that I am irrevocably

assigning an interest in the proceeds from any judgment or settlement of my pending

Case (as described below) to [USC].” The letter instructed appellant to, among other

duties, satisfy appellee’s lien pursuant to the Agreement before disbursing any settlement

or judgment proceeds.

{¶6} Appellant also signed an “Acknowledgment of Counsel”

(“Acknowledgment”), which was made part of the Agreement. The Acknowledgment

provides:

I, Natasha Wells Niklas, Esquire, as your attorney, acknowledge the receipt

of the above Irrevocable Letter of Instruction to Counsel (the “Letter”) and

further acknowledge notice of the fact that you, my client(s) have granted

USC a security interest and lien in the Proceeds of your Case under the

Agreement. I acknowledge that, pursuant to the Agreement, you have

assigned a portion of your Proceeds to USC, and that additional portions of

your Proceeds may be assigned by you to USC through one or more

Addenda subject to the terms of the Agreement. I also acknowledge that I Stark County, Case No. 2022 CA 00097 4

will follow all of your irrevocable instructions outlined in the Letter and will

honor the terms of your Agreement as it may be amended by one or more

Addenda * * * I further represent that all disbursements of funds in

connection with the Case, including your Proceeds, will be through my

attorney trust account, and that I will take the necessary steps so that all

payments made by the defendant or insurer in connection with the case are

made directly to me or my firm for deposit in my attorney trust account. Prior

to making any distribution to you or anyone else, I will contact USC to

ascertain the amount due and will not pay any portion of your proceeds,

other than the “Permitted Liens,” to you, or on your behalf until USC’s lien

is satisfied in full. * * * In the event of a dispute with USC, I agree that the

only disbursement that will be made from the proceeds will be for Permitted

Liens, that the remainder of the proceeds will be held by me in my attorney

trust account until such dispute is resolved, and that any such dispute would

be subject to arbitration under Section 8 of the Agreement.

***

I certify that I am the attorney of record in the above-captioned case, I

further certify that I received a copy of and reviewed the Agreement, that all

costs and fees have been disclosed by USC, including the annualized rate

of return applied to calculate the amount to be paid by you, that I am being

paid on a contingency basis per a written fee agreement, and that the

representation set forth in the Agreement are true and accurate to the best Stark County, Case No. 2022 CA 00097 5

of my knowledge. This acknowledgement and certification shall be deemed

a material part with the USC’s Agreement.

{¶7} The miscellaneous terms of Agreement stated that, “together with the

Disclosure and Exhibit, [this] constitutes the entire agreement and understanding of the

parties with respect to the purchase of the specific portion of the Proceeds contemplated

hereby * * *.” If any portion of the Agreement was deemed invalid or unenforceable, “it

would not affect the validity or enforceability of (i) any other part of this Agreement, and

the Agreement shall be modified to the extent legally possible to legally carry out the

intent of this Agreement and (ii) any Agreement between USC and another other party.”

{¶8} Campbell executed a document entitled “Addendum #1” (“Addendum”) on

December 29, 2015. Campbell agreed to sell an additional portion of the proceeds of the

wrongful death action to appellee. Pursuant to the Addendum, appellee paid Campbell

$11,000, including fees and costs. The Addendum contains a provision where, “[p]er the

Agreement (as it may have been amended), the terms and conditions of which are

incorporated by reference and reaffirmed hereby in their entirety, I sold USC a portion of

my Proceeds * * *. This Addendum and the rights and obligations of the parties thereto

related are subject to the terms and conditions of the Agreement.” Appellant signed the

Addendum, stating, “I hereby acknowledge the purchase and sale of the Additional

Property by my client(s), as set forth above.”

{¶9} In 2016, the Stark County Probate Court appointed Campbell the

Administrator of the Estate of Anquez. Campbell then filed a wrongful death action

against Baylor Beach Park in the Stark County Court of Common Pleas. Appellant Stark County, Case No. 2022 CA 00097 6

represented Campbell. Campbell passed away in 2018. Campbell’s estate was opened;

however, the USC non-recourse civil litigation advance was not made part of her estate.

{¶10} In 2019, an Application to Approve Settlement and Distribution of Wrongful

Death and Survival Claims was filed in Anquez’s estate. The application stated there had

been an offer of full settlement in the wrongful death action in the amount of $325,000.

The wrongful death beneficiaries listed were Campbell’s estate, and her next of kin. The

application did not provide for any payments to appellee. The Stark County Probate Court

approved the settlement and distribution of the wrongful death claim.

{¶11} On May 20, 2020, appellee notified Campbell’s heirs and appellant by letter

that it was aware the wrongful death action had been settled for $325,000. Appellee

stated it was not notified of the death of Campbell, the settlement, or the probate

proceedings until it received a letter from appellant dated February 17, 2020. The

application to approve the settlement and distribution of the wrongful death proceeds did

not provide for any payment to appellee.

{¶12} Because appellee had not been paid its “Property” as described in the

Agreement, pursuant to the Agreement, appellee initiated a demand for arbitration.

Appellant challenged the jurisdiction of the arbitrator to hear the case. The arbitrator

determined it had jurisdiction over disputes arising out of the Agreement based on the

terms of the Agreement and Acknowledgment. The arbitrator determined that, by signing

the Acknowledgment, appellant was required to participate in the arbitration.

{¶13} In 2021, Campbell’s estate, Campbell’s heirs, and appellant filed a

complaint with the Stark County Court of Common Pleas requesting declaratory judgment

and injunctive relief. They argued that, as non-parties to the USC contract, they had no Stark County, Case No. 2022 CA 00097 7

obligation to arbitrate with appellee. Campbell and her heirs were dismissed from the

arbitration by appellee because they were not parties to the agreement. Appellee filed a

motion to dismiss appellant’s claims. In appellant’s response to the motion to dismiss,

she argued: she was not a party to the Agreement; pursuant to R.C. 1349.55, the Ohio

Rules of Professional Conduct defined her responsibilities as the attorney for Campbell’s

estate; and a letter of acknowledgment signed by the attorney pursuant to a non-recourse

civil litigation advance did not create a contractual relationship between the non-recourse

lender and the attorney, thereby preventing enforcement of an arbitration clause against

the attorney.

{¶14} The trial court granted appellee’s motion to dismiss, and dismissed the

complaint for declaratory judgment and injunctive relief. The trial court allowed all claims

and issues to be arbitrated in the New Jersey arbitration.

{¶15} Appellant appealed the trial court’s determination to this Court, arguing the

trial court erred when it granted appellee’s motion to dismiss. Appellant made several

arguments to this Court, including: (1) under Ohio law governing non-recourse civil

litigation advances, the liability of the attorney representing the consumer in the civil

action is limited by the jurisdiction of the Ohio Rules of Professional Conduct and (2)

because she executed only the Acknowledgment, she is not bound to the terms of the

Agreement, including the arbitration provisions found in Section 8 of the Agreement.

{¶16} In Estate of Campbell v. US Claims OPO, L.L.C., 5th Dist. Stark No.

2021CA00086, 2022-Ohio-711, (“Campbell I”) we overruled appellant’s assignment of

error. We first cited to the plain language of the Acknowledgement that, by her signature,

appellant agreed to be bound. Next, we found that, by signing the Acknowledgement, Stark County, Case No. 2022 CA 00097 8

appellant expressly acknowledged receipt of the Agreement and the Irrevocable Letter of

Instruction to Counsel, and she certified she had reviewed the Agreement. We found

appellant, “undeniably agreed to follow all the ‘irrevocable instructions outlined in the

Letter and [would] honor the terms of your Agreement, as it may be amended by one or

more Addenda.’”

{¶17} Further, we held that, by signing the Acknowledgment, appellant was aware

the Acknowledgment was “deemed a material part of USC’s Agreement,” and the plain

language of the Agreement incorporates the Irrevocable Letter of Instruction to Counsel

and Acknowledgment to collectively constitute the Agreement. We noted that Section 8

of the Agreement specifically provides claims shall be settled by binding arbitration. We

found the Acknowledgment itself contains its own express provision for arbitration. We

concluded, “while [appellant] may arguably not be a party to the Agreement, she is

contractually bound to participate in arbitration based on the plain and unambiguous

language of the Acknowledgment.” As to appellant’s argument that the Ohio Rules of

Professional Conduct shield her from liability, we found the Rules of Professional Conduct

did not prevent the arbitration provision from being enforced, and, “in deciding whether

the parties have agreed to submit a particular grievance to arbitration, a court is not to

rule on the potential merits of the underlying claims.”

{¶18} Appellant appealed our decision to the Supreme Court of Ohio and included

one proposed assignment of error, as follows: the appellate court failed to apply the

protections of R.C. 1349.55 and erroneously compelled binding arbitration. The Ohio

Supreme Court declined jurisdiction of appellant’s appeal. Estate of Campbell v. US

Claims OPO, L.L.C., 167 Ohio St.3d 1451, 2022-Ohio-2246, 189 N.E.3d 823. Stark County, Case No. 2022 CA 00097 9

{¶19} The arbitrator held a hearing on October 19, 2021. On February 9, 2022,

the arbitrator entered a final arbitration award in favor of appellee against appellant for

$121,600, plus attorney fees of $24,654 and costs of $7,980. The arbitrator issued a

thorough and detailed report explaining his arbitration award. Appellant made four

arguments the arbitrator addressed, as follows: (1) appellant was not obligated to

arbitrate the dispute; (2) Campbell lacked authority to bind the estate to the Agreement

because she had not yet been confirmed as administratrix by the probate court; (3)

appellant’s obligation under the Agreement was only to her client, and she is not a party

to the Agreement; and (4) appellant did not have control of the proceeds of the litigation.

{¶20} The arbitrator specifically addressed these arguments. First, the arbitrator

found the issue of whether appellant was obligated to arbitrate was previously

determined, as it was the subject of motion practice, and this Court’s decision in Campbell

I. Second, the arbitrator found the fact that the probate court had a say in the ultimate

distribution of the proceeds from the wrongful death action does not invalidate the

Agreement or change the effect of appellant’s Acknowledgment. The arbitrator noted the

distribution approved by the probate court was done in the manner proposed by appellant,

who was aware of appellee’s interest, but without the court having knowledge of

appellee’s claim. Further, that appellant did not, in her capacity as the attorney for

Anquez’s estate, notify the court of appellee’s claim, or notify appellee of the settlement.

Third, the arbitrator found no inconsistency between the Agreements and the

requirements of the Ohio non-recourse civil litigation contracts law (R.C. 1349.55).

Further, that the Acknowledgment expressly provides it is “deemed a material part of the

Agreement.” Finally, the arbitrator found appellant’s argument that she did not have the Stark County, Case No. 2022 CA 00097 10

funds in her trust account to be not well-taken, because, in the Agreements, she

represented that she would take the necessary steps so that all payments would be made

to her firm for deposit in her trust account, and no evidence of her doing so was presented

at the hearing. The arbitrator stated, “whether [appellant] or substitute counsel continued

pursuit of the Wrongful Death matter to its conclusion does not alter [appellant’s]

responsibilities under the Agreement to timely notify [USC] of the settlement.”

{¶21} The arbitrator noted that appellant did not contest appellee’s damage

calculation, but she did argue the distribution was under the control of the probate court.

The arbitrator stated,

[N]o evidence was presented on the subject of the likely outcome of the

Probate Court action if [USC] had participated, and any effort to determine

what the Probate Court would have done is speculation. The Wrongful

Death action resulted in a settlement of $325,000, which, after permitted

deductions, would leave sufficient funds to reimburse [USC] in full for the

claimed damages. While [USC] could have no guarantee that the Probate

Court would satisfy the full, amount, [appellant’s] failure to notify [USC] of

the settlement denied [USC] the opportunity to pursue its claims and assert

its property rights in the Probate Court.

{¶22} The arbitrator concluded that, as a result of the actions or inactions of

appellant, appellee was wrongfully denied its property. The arbitrator awarded appellee

$121,006.00, plus attorney’s fees and costs of $25,654.00, and arbitrator compensation

of $7,980.00. Stark County, Case No. 2022 CA 00097 11

{¶23} On March 2, 2022, appellee filed a complaint against appellant, requesting

an order confirming a final arbitration award in appellee’s favor. Appellant filed a motion

to vacate the arbitration award, on the grounds that the New Jersey arbitrator lacked

subject matter jurisdiction. The trial court held an oral hearing on April 25, 2022.

{¶24} The trial court issued a judgment entry on June 21, 2022, denying

appellant’s motion to vacate, and granting appellee’s application to confirm arbitration.

The trial court found appellant failed to demonstrate the arbitrator exceeded the scope of

his authority or power pursuant to R.C. 2711.10(D) or 9 U.S.C. Section 10(a)(4). The trial

court found the arbitrator was presented with a breach of contract claim and fashioned an

award of contract damages to resolve the claim. The trial court stated, “[appellant] does

not point * * * to any specific aspect of the arbitrator’s award that was in excess of the

arbitrator’s authority or power and instead advances arguments relating to legality and

subject matter jurisdiction. These questions have been answered by the Fifth District

Court of Appeals in [Campbell l.]” The trial court found the parties entered into an

arbitration agreement, the agreement required breach of contract claims to be submitted

to binding arbitration, an arbitration was held, and an award was issued that consisted of

contractual damages. Accordingly, the arbitrator acted sufficiently within the scope of his

authority or power such that the court was required to confirm the arbitration award. As

to appellant’s argument regarding the interplay between R.C. 1349.55 and the Rule of

Professional Conduct 1.15, the trial court cited Campbell I, and determined it was bound

to adhere to our determination in the previous appeal.

{¶25} Appellant appeals the June 21, 2022 judgment entry of the Stark County

Court of Common Pleas, and assigns the following as error: Stark County, Case No. 2022 CA 00097 12

{¶26} “THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO

VACATE ARBITRATION AWARD AND DISMISS, OR ALTERNATIVELY, TO STAY

PROCEEDINGS (THE ‘MOTION TO VACATE’).”

I.

{¶27} Appellant contends the trial court committed error in denying her motion to

vacate the arbitration award and in granting appellee’s application to confirm arbitration

award.

{¶28} The Federal Arbitration Act (“FAA”) expresses a presumption that arbitration

awards will be confirmed. “When courts are called on to review an arbitrator’s decision,

the review is very narrow; one of the narrowest standards of judicial review in all of

American Jurisprudence.” Lattimer-Stevens Co. v. United Steelworkers, 913 F.2d 1166

(6th Cir. 1990). “[A]s long as the arbitrator is even arguably construing or applying the

contract and acting within the scope of his authority * * * serious error does not suffice to

overturn his decision.” United Paperworkers Int’l. Union Misco, Inc., 484 U.S. 29, 108

S.Ct. 364, 98 L.Ed.2d 286 (1987). A court may vacate an arbitration award under very

limited circumstances pursuant to 9 U.S.C. Section 10(a), specifically: (1) where the

award was procured by corruption, fraud, or undue means; (2) where there was evidence

of partiality or corruption in the arbitrators, or either of them; (3) where the arbitrators were

guilty of misconduct in refusing to postpone the hearing or in refusing to hear evidence;

or (4) where the arbitrators exceeded their powers, or so imperfectly executed them that

a mutual, final, and definite award upon the subject matter submitted was not made. Id.

Absent fraud by the parties or the arbitrator’s dishonesty, reviewing courts are not Stark County, Case No. 2022 CA 00097 13

authorized to reconsider the merits of an award, since this would undermine the federal

policy of privately settling disputes by arbitration. Id.

{¶29} Similarly, in Ohio, arbitration awards are presumed valid. Schaefer v.

Allstate Ins. Co., 63 Ohio St.3d 708, 590 N.E.2d 1242 (1992). The Ohio Supreme Court

observed that, “[t]he whole purpose of arbitration would be undermined if courts had

broad authority to vacate an arbitration award.” Mahoning Cnty. Bd. of Mental

Retardation & Developmental Disabilities v. Mahoning Cnty. Education Assn., 22 Ohio

St.3d 80, 488 N.E.2d 872 (1986). When reviewing a decision of a common pleas court

confirming or vacating an arbitration award, this Court should accept findings of fact that

are not clearly erroneous, but decide questions of law de novo. Portage Cnty. Bd. of

Developmental Disabilities v. Portage Cnty. Educators’ Assn. for Developmental

Disabilities, 153 Ohio St.3d 219, 2018-Ohio-1590, 103 N.E.3d 804. “The substantive

merits of the original arbitration award are not reviewable on appeal absent evidence of

material mistake or extensive impropriety.” Orange Twp. V. IAFF Local 3816, 5th Dist.

Delaware No. 21 CAE 070033, 2022-Ohio-2757, quoting N. Ohio Sewer Contrs., Inc. v.

Bradley Dev. Co., 159 Ohio App.3d 794, 2005-Ohio-1014, 825 N.E.2d 650 (8th Dist).

{¶30} R.C. 2711.10 provides that a court may vacate an award “upon the

application of any party,” for any of the following reasons: (1) the award was procured by

corruption, fraud, or undue means; (2) there was evident partiality or corruption on the

part of the arbitrators; (3) the arbitrators are guilty of misconduct in refusing to postpone

the hearing, or refusing to hear pertinent and material evidence; or (4) the arbitrators

exceeded their powers, or so imperfectly executed them that a mutual, final, and definite

aware upon the subject matter submitted was not made. R.C. 2711.10 thus “limits judicial Stark County, Case No. 2022 CA 00097 14

review of arbitration to claims of fraud, corruption, misconduct, an imperfect award, or

that the arbitrator exceeded his authority.” Goodyear Tire & Rubber Co. v. Local Union

No. 200, 42 Ohio St.2d 516, 330 N.E.2d 703 (1975).

{¶31} Appellant divides her assignment of error into three separate parts.

Part I.

{¶32} Appellant first argues the arbitration award should be vacated pursuant to

R.C. 2711.10(D) and USC Section 10(a)(4) because the arbitrator exceeded his powers

by ruling on an issue that is within the Ohio Supreme Court’s exclusive subject matter

jurisdiction. Appellant’s argument is essentially the same argument she made in her

previous appeal to this Court. Pursuant to our analysis in Estate of Campbell v. U.S.

Claims OPO, L.L.C., 5th Dist. Stark No. 2021CA00086, 2022-Ohio-711, appeal not

allowed Estate of Campbell v. U.S. Claims OPO, L.L.C., 167 Ohio St.3d 1451, 2022-Ohio-

2246, 189 N.E.3d 823, we find the arbitrator had the subject matter jurisdiction to issue

his opinion.

Part II.

{¶33} In the second part of her argument, appellant contends the New Jersey

arbitrator exceeded his authority because the non-recourse civil litigation loan at issue is

governed by Ohio Revised Code Section 1349.55, which does not make appellant a party

to the contract, but merely requires her to acknowledge the loan and comply with Ohio

Rule of Professional Conduct 1.15(e), the enforcement of which is in the Supreme Court

of Ohio’s exclusive jurisdiction. In her brief, appellant states, “the parties have fully briefed

in Campbell the issue of whether Niklas entered a separate, enforceable contract

guaranteeing her purported client’s payment of non-recourse civil litigation loan * * * or Stark County, Case No. 2022 CA 00097 15

simply an acknowledgment of the loan triggering her obligations to protect non-client

funds in her possession under Ohio Rule of Professional Conduct 1.15(e), a matter in the

Supreme Court of Ohio’s exclusive jurisdiction.” Appellant does not make any further

argument in this portion of her brief.

{¶34} As this Court has stated in RHDK Oil & Gas, L.L.C. v. Willowbrook Coal Co.,

5th Dist. Tuscarawas No. 2020 AP 08 0017, 2021-Ohio-1362, appeal not allowed RHDK

Oil & Gas, L.L.C. v. Willowbrook Coal Co., 164 Ohio St.3d 1448, 2021-Ohio-3336, 173

N.E.3d 1242, the “Rules of Appellate Procedure do not allow incorporating argument by

reference to other sources.” Further, “if evidence, authority, and arguments exist that can

support an assignment of error, it is not the duty of the appellate court to root it out.”

Sutton v. Ohio Dept. of Edn., 8th Dist. Cuyahoga No. 104476, 2017-Ohio-105.

{¶35} In Campbell I, we held that: appellant is bound by the terms of the

Agreement, including the arbitration agreement; the Acknowledgment signed by appellant

contains its own express provision for arbitration; by signing the Acknowledgment,

appellant expressly agreed to be bound by the arbitration provision; and the Ohio Rules

of Professional Conduct did not prevent the arbitration provision from being enforced.

Estate of Campbell v. U.S. Claims OPO, L.L.C., 5th Dist. Stark No. 2021CA00086, 2022-

Ohio-711, appeal not allowed Estate of Campbell v. U.S. Claims OPO, L.L.C., 167 Ohio

St.3d 1451, 2022-Ohio-2246, 189 N.E.3d 823. To the extent appellant requests this Court

to reverse or modify our previous decision, we decline to do so.

{¶36} We additionally note that appellant appealed our previous decision to the

Ohio Supreme Court, arguing R.C. 1349.55 provides that appellant’s responsibilities are

set forth in the Ohio Rules of Professional Conduct, which the Ohio Supreme Court has Stark County, Case No. 2022 CA 00097 16

exclusive jurisdiction over. The Ohio Supreme Court declined jurisdiction of appellant’s

appeal. Estate of Campbell v. U.S. Claims OPO, L.L.C., 167 Ohio St.3d 1451, 2022-

Ohio-2246, 189 N.E.3d 823. Accordingly, we overrule the second part of appellant’s

assignment of error.

Part III.

{¶37} In the third portion of her argument, appellant contends the arbitrator was

“intentionally vague” in describing his legal basis for finding appellant personally liable.

{¶38} We first note that, upon our review of the arbitrator’s decision, we find the

arbitrator’s report was not vague. The arbitrator issued a detailed report, specifically

addressed each of appellant’s arguments, and gave his rationale in overruling each of

appellant’s arguments.

{¶39} Further, this Court has previously held, in reviewing an arbitrator’s award,

we must distinguish between “an arbitrator’s act in excess of his powers and an error

merely in the way the arbitrator executed his powers. The former is grounds to vacate,

the latter is not.” Orange Twp. V. IAFF Local 3816, 5th Dist. Delaware No. 21 CAE

070033, 2022-Ohio-2757 see also O.R. Sec., Inc. v. Prof’l Planning Accocs., Inc., 857

F.2d 742 (11th Cir. 1988) (the arbitrator’s reasoning need not be explained). In this case,

appellant argues because of the alleged vagueness of his opinion, the arbitrator

exceeded his powers. As detailed above, we do not find the arbitrator’s opinion vague.

Additionally, this would be an error in the way in which the arbitrator executed his powers,

not an act in excess of his powers.

{¶40} Appellant next contends the arbitrator’s award was unenforceable because

she cannot be the guarantor of her purported client’s debt, and the arbitrator exceed his Stark County, Case No. 2022 CA 00097 17

authority because, pursuant to R.C. 1349.55, appellant must only fulfill her obligations

under the Ohio Code of Professional Responsibility, which she did in this case. Appellant

also argues the arbitrator ignored clear New York precedent cited by appellant

purportedly holding that an attorney’s mere acknowledgment of a nonrecourse civil

litigation loan contract does not make the attorney a party to the contract or a guarantor

of the contract.

{¶41} A reviewing court’s inquiry into whether the arbitrator exceeded their

authority is limited. City of Cambridge v. AFSCME, 5th Dist. Guernsey No. 1999CA30,

2000 WL 502691 (April 4, 2000). A reviewing court is confined to ascertaining whether

the award draws its essence from the contract. United Paperworks Intern. Union v. AFL-

CIO v. Misco, Inc. 484 U.S. 29, 98 L.Ed.2d 286, 108 S.Ct. 364 (1987). “A mere ambiguity

in the opinion accompanying an arbitration award, which permits the inference that the

arbitrator may have exceeded his authority, is not a reason for vacating the award when

such award draws its essence” from an agreement. Id., quoting Ohio Office of Collective

Bargaining v. Ohio Civil Service Employee Assn., 59 Ohio St.3d 177, 572 N.E.2d 71

(1991).

{¶42} An arbitrator’s award departs from the essence of the agreement when: (1)

the award conflicts with the express terms of the agreement, and/or (2) the award is

without rational support or cannot be rationally derived from the terms of the agreement.”

Id. As long as the arbitrator is even arguably construing or applying the contract and

acting within the scope of this authority, the court cannot overturn his decision simply

because it disagrees with his factual findings, contract interpretation, or choice of

remedies. United Paperworks Intern. Union v. AFL-CIO v. Misco, Inc. 484 U.S. 29, 98 Stark County, Case No. 2022 CA 00097 18

L.Ed.2d 286, 108 S.Ct. 364 (1987); Worndle v. Colonnade Medical Group, Ind., 5th Dist.

Fairfield No. 17-CA-24, 2018-Ohio-462 (parties agree to accept the arbitrator’s

determination concerning the issue and agreed to accept the result regardless of its legal

or factual accuracy).

{¶43} “An arbitrator’s improper determination of the facts or misinterpretation of

the contract does not provide a basis for reversal of an award by a reviewing court

because it is not enough to show the arbitrator committed an error – or even a serious

error.” Cedar Fair, L.P. v. Falfas, 140 Ohio St.3d 447, 2014-Ohio-3943, 19 N.E.3d 893;

see also Stolt-Nielsen S.A. v. AnimalFeeds Intl’ Corp., 559 U.S. 662, 130 S.Ct. 1758, 176

L.Ed.2d 605 (2010) (arbitrators do not exceed their powers when they make errors, even

serious errors; have to defer to arbitrator’s contract interpretation of the contract).

{¶44} We find the trial court did not commit error in finding the arbitration award

drew its essence from the Agreement. The arbitration clause contained in the Agreement

is broad, providing that “any and all controversies, claims, disputes, suits, or causes of

action arising out of, or relating” to the Agreement are subject to arbitration. There is a

rational nexus between the award and the Agreement. Appellant made specific promises

and expressly agreed to perform certain duties in the Acknowledgment and Certification

(“prior to making any distribution * * * I will contact USC * * * and will not pay any portion

of your proceeds, other than the “Permitted Liens,” to you, or on your behalf until USC’s

lien is satisfied in full * * *). Appellant affirmed and agreed the Acknowledgment and

Certification were a material part of the Agreement. There is no dispute that appellant

did not notify appellee of the settlement, and did not notify the court of appellee’s claim. Stark County, Case No. 2022 CA 00097 19

The award issued by the arbitrator is based upon appellant’s lack of notifying appellee of

the settlement and/or failure to notify the court of appellee’s claim.

{¶45} As to appellant’s argument with regard to New York law, we find the case

she cites, Prospect Funding Holdings, LLC v. Paiz, 183 A.D.3d 486, 123 N.Y.S.3d 685

(N.Y. App. 2020), is distinguishable from the instant case. In Paiz, the attorney did not

sign an acknowledgment containing an agreement to arbitrate. Id. Further, the attorney’s

acknowledgment only acknowledged “receipt of the letter from his client” and a reiteration

of the attorney’s “agreement to follow his client’s direction.” Id. In this case, appellant

expressly agreed to perform certain duties, including the duty to distribute proceeds of

the litigation in accordance with the Agreement. A more recent New York case found

Paiz distinguishable from a case in which an attorney acknowledgment imposed express

obligations upon the attorney defendants, including the duty to distribute any proceeds of

the litigation in accordance with the terms of the signed agreements. P.S. Finance, LLC

v. Eureka Woodworks, Inc., 2023 WL 2000727, 2023 N.Y. Slip Op. 00877 (Feb. 15, 2023)

(it is significant when attorney acknowledgments expressly agree to distribute proceeds

of the underlying litigation in accordance with the terms of the agreements signed by their

clients and when the litigation funding agreements incorporate the attorney

acknowledgments by reference).

{¶46} Pursuant to our limited review in accordance with both Ohio and federal

law as detailed above, we find the arbitrator’s award does not depart from the essence of

the Agreement. The trial court did not commit error in denying appellant’s motion to

vacate and granting appellee’s application to confirm the arbitration award.

{¶47} Based on the foregoing, appellant’s assignment of error is overruled. Stark County, Case No. 2022 CA 00097 20

{¶48} The June 21, 2022 judgment entry of the Stark County Court of Common

Pleas is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Baldwin, J., concur