Opinion
No. 129672
Decided December 30, 1970.
Actions — Arbitration — Suit to vacate award — No transscript of arbitration proceeding — Relief impossible — Interest of state in termination of lawsuits.
1. In the absence of a record of the proceedings before an arbitrator, no court can set aside an award resulting therefrom or a judgment based thereon.
2. It concerns the state that there be an end of lawsuits.
Mr. Roy H. Horn, for plaintiff.
Mr. Gordon H. Savage, for defendant.
Plaintiff, by proceedings after term, seeks to have judgment against him in Case No. 124775 set aside; that an arbitrator's award be set aside; that temporary injunction be allowed, and for other relief.
This case is one of three arising from a contract dated February 22, 1960, between the parties. Plaintiff is a physician, defendant is an architect. Dr. Hochwalt desired to build a residence on a lot owned by him, and after several meetings, he employed Rosser to perform the architectural services as to the contemplated house.
The contract was written on "The Standard Form of Agreement between Owner and Architect," issued by The American Institute of Architects, and this contained an arbitration clause and did not mention any contemplated cost of the structure.
At issue throughout this litigation, is the question as to whether or not there was an understanding between the parties as to a limitation on the cost of the residence.
The first plans submitted to Dr. Hochwalt would have made the house cost more than he desired to spend, which limitation he claims was understood by the architect. Dr. Hochwalt then requested that the plans be revised, which was done, and the revised plans would have made the building cost more than Dr. Hochwalt desired to spend. During this time, he had paid $4,880.00 to Mr. Rosser on his compensation for services.
In June 1963, Dr. Hochwalt told defendant that he would have nothing more to do with him, and he then employed another architect who prepared plans, from which his residence was built.
The architect, Rollin L. Rosser, then demanded payment of an additional sum of $7,203.37, for his total compensation, which amount Dr. Hochwalt refused to pay. On January 6, 1964, Rosser demanded arbitration, under the signed contract of February 22, 1960.
An arbitrator was appointed, and the two parties, with their counsel, attended the hearing before the arbitrator. No record was made of the proceedings. On June 19, 1964, the arbitrator made an award in favor of Rollin L. Rosser and against Jerome P. Hochwalt, in amount of $5,214.35, and also of $52.21, the one-half of fees paid to the American Arbitration Association, that Hochwalt pay the Association an additional sum of $17.12, for one-half of expenses still due, and that each pay one-half of the total fees and expenses of $339.79.
Dr. Hochwalt refused to pay the award, and Rosser sued him in this court in Case No. 124775, on the award. This Court of Common Pleas upheld the Arbitration award, and on December 8, 1966, granted judgment against Jerome P. Hochwalt, in favor of Rollin L. Rosser in sum of $5,266.56, with interest at 6% from August 19, 1964, and also $17.12, a total of $6,003.88, and $17.12, and costs of that action.
Dr. Hochwalt appealed to the Court of Appeals in Case No. 3147, in which on October 24, 1967, the judgment of this Court of Common Pleas was affirmed. Dr. Hochwalt then took the case to the Supreme Court of Ohio, in Case No. 41385, in which on February 13, 1968, the Supreme Court found that no constitutional question existed and also overruled the motion to certify the record.
In the meantime, Dr. Hochwalt brought an action against Mr. Rosser, in Case No. 129262, this Court of Common Pleas, on January 17, 1967, claiming fraud on the part of Rosser in the making of the contract, asking cancellation and rescision of the written agreement, asks for a declaratory judgment, for return of the $4,880.00 paid by him to Rosser, and other relief, as part of which, Dr. Hochwalt asked for an injunction against the collection of the judgment in Case No. 124775. The temporary injunction was refused, and that Case No. 129262 has been at a standstill since August 14, 1968.
This case was instituted in this court on April 6, 1967. The pleadings, motions, briefs and other papers in the three cases are voluminous, weighing over seven and one-fourth pounds and being over three and one-fourth inches thick.
This court has carefully read the entire file, every paper, in all three cases, and this court has carefully considered the pleadings and briefs in this case. Always there is one outstanding fact in the whole matter — No record was made of the proceedings before the legally appointed arbitrator — and this prevents any court from ascertaining what evidence was before the legal arbitrator, and upon what facts he made his finding and award. In the absence of such a record, no court could vacate and set aside the award, nor any judgment based thereon.
This case, No. 129672, is the third case in this litigation, and there should be an end to these lawsuits. In the research in this matter, this court found a maxim (XLIV) in "Legal Maxims" by George Frederick Wharton, 1878, that cites, as its source, Coke on Littleton, 303. Who were these men?
Sir Thomas Littleton (1422-1481) (Chief Justice of the Court of Common Pleas, in England, 1466 to his death) lived in troubled times, including much of the Wars of the Roses, and wrote Littleton on Tenures (1481) in legal French, which was the first printed work on English law, and which was declared by Sir Edward Coke to be "The most perfect and absolute work that ever was written in any human science."
Sir Edward Coke (1552-1634) (Chief Justice of the Court of Common Pleas, 1606-1613, Chief Justice of the King's Bench, 1613-1616), wrote four books, called the Institutes of the Laws of England, of which the first is known as Coke on Littleton, 1628, in which the work of Littleton is translated into English.
Littleton stated, as far back as 1481, Interest reipublicae ut sit finis litium, which is: It concerns the state that there be an end of lawsuits. This was an established principle of law almost five hundred years ago, and it is still such a principle.
On due consideration of the pleadings, briefs and arguments herein, the court finds for the defendant and against the plaintiff, the court denies the prayer (request or demand) of the plaintiff, (Dr.) Jerome P. Hochwalt, and dismisses his petition (complaint).
And the court further orders that the defendant, Rollin L. Rosser, go hence without day, and that the plaintiff, (Dr.) Jerome P. Hochwalt, pay the costs herein.
This judgment and order of this court at the present time, ends the third case, this Case No. 129672.
Case No. 124775, that went to the Court of Appeals and then to the Supreme Court of Ohio, is closed as far as further litigation is concerned. The only thing remaining to be done there, is the payment or collection, if necessary, of the judgment of this Court of Common Pleas of December 8, 1966, of $6003.88, and $17.12, in favor of the architect, Rollin L. Rosser, with interest from that date, and costs of suit, the whole to be paid by (Dr.) Jerome P. Hochwalt.
This leaves open only Case No. 129262, filed on January 17, 1967, that has been inactive since August 14, 1968, and in the opinion of this court, that case should be promptly terminated in some way, so that it can truly be said: It concerns the state that there be an end of lawsuits.