Opinion
No. A-8908853.
Decided January 8, 1990.
Holbrook Poston and Kent W. Seifried, for plaintiff.
Robert E. Matyjasik and Ronald H. Lasko, for defendant.
Plaintiff, Target Builders ("Target"), has filed this lawsuit to nullify an arbitration award claiming that the award of the arbitrators was arbitrary, capricious or unlawful as a result of partiality, misconduct, or other misbehavior on behalf of the arbitrators. This matter comes now before the court upon the motion of defendant, Roth Enterprises, Inc. ("Roth"), to dismiss the action pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted and for change of venue. The court, having been fully advised in the premises, and having reviewed the applicable law, facts related thereto, and having heard arguments of counsel, finds neither motion is well taken for the reasons stated below.
Defendant Roth here asserts as a basis for its motion to dismiss that a lack of a transcript of the arbitration proceedings precludes this court from considering this matter. This defendant has previously filed a motion under Civ.R. 12 to dismiss for lack of jurisdiction which has been overruled by this court. As plaintiff has noted in its memorandum opposing the motion to dismiss, defendant Roth's motion to dismiss is procedurally defective. Civ.R. 12(G) provides:
"A party who makes a motion under this rule must join with it the other motions herein provided for and then available to him. If a party makes a motion under this rule and does not include therein all defenses and objections then available to him which this rule permits to be raised by motion, he shall not thereafter assert by motion or responsive pleading, any of the defenses or objections so omitted, except as provided in subdivision (H) of this rule."
One of the exceptions to waiver under Civ.R. 12(H) is a motion to dismiss filed under Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted. Defendant's motion here does not fall within this 12(H)(1) exception. While styled a "motion to dismiss for failure to state a claim," under Civ.R. 12(B)(6), in reality the motion is one to dismiss for lack of a record.
Styling the motion as a motion to dismiss under 12(B)(6) does not change its true nature, nor does it cure defendant's previous failure to assert this objection for lack of a record. Such styling is a misnomer here; it does not cure the defect of failure to comply with Civ.R. 12(G). Defendant Roth consequently has waived this objection by failure to assert it previously. Civ.R. 12(G).
Even had the defendant raised this objection in a timely fashion, the objection is not well taken. R.C. 2711.14 sets out the requirements of those papers which must be filed by a party to a proceeding for the vacation of an award made in an arbitration proceeding. The Official Comment to this section notes "[t]his section concerns the judgment record. * * *" The papers that are required to be filed under R.C. 2711.14 are the agreement; the selection or appointment, if any, of an additional arbitrator or umpire; each written extension of the time within which to make the award; the award; each notice, affidavit or other paper used upon an application to confirm, modify, or correct the award and a copy of each order of the court upon such an application. There is no requirement of a transcript of the arbitration proceeding nor is a transcript necessary to a resolution of the issues raised here. Similar to the case of Stewart v. Midwestern Indemn. Co. (1989), 45 Ohio St.3d 124, 543 N.E.2d 1200, involving an application to vacate an arbitration decision, this matter may be determined by the submission of affidavits of those parties or witnesses involved in the case.
Limitations on the common pleas court's reviewing capabilities further suggest that a record is not required. A common pleas court may vacate or modify an arbitration award only in certain circumstances. R.C. 2711.10, 2711.11. These bases include corruption, partiality, misconduct, and excessive powers with respect to the vacation of an award. An arbitrator's award "may not be modified or vacated based on the merits of the dispute unless there is evidence of fraud, corruption, or material mistake." Lynch v. Halcomb (1984), 16 Ohio App.3d 223, 224, 16 OBR 238, 239, 475 N.E.2d 181, 183; see, also, Goodyear Tire Rubber Co. v. Local Union No. 200 (1975), 42 Ohio St.2d 516, 71 O.O.2d 509, 330 N.E.2d 703. As the plaintiff points out, many of the allegations here involve matters which would not appear on the record if such record, by way of transcript, existed. It is likely that fraud and corruption would be proved by evidence extrinsic to the arbitration hearing transcript, and that the transcript would offer little light on these issues. There is no requirement, then, that a transcript be part of the record.
For all of the above-stated reasons, then, the court finds that the motion to dismiss for lack of a record is not well taken and is denied.
Defendant Roth also moves this court for a change of venue to Cuyahoga County pursuant to Civ.R. 3(B), 3(C) and 12(B). The basis for its motion is its claim that the activity which is the basis for the arbitration claim in this case occurred in Cuyahoga County and that the claim for relief, therefore, arises as a result of the contract performance and the arbitration hearing, both of which occurred in Cuyahoga County. As was the case in the motion to dismiss for lack of a record, this motion properly must have been made at the time of the filing of defendant's previous Civ.R. 12(B)(1) motion. This failure to present this defense or objection waives such assertion of improper jurisdiction. Civ.R. 12(H). Nicholson v. Landis (1985), 27 Ohio App.3d 107, 27 OBR 137, 499 N.E.2d 1260; and Ryder Truck Lines, Inc. v. Victory Express, Inc. (App. 1974), 67 O.O.2d 220. Defendant Roth has clearly waived the defense of improper venue by failing to timely join it with its previous motion to dismiss for lack of subject matter jurisdiction filed herein pursuant to Civ.R. 12(B)(1).
Even had defendant Roth properly and timely brought forth the motion for a change of venue, the motion is not well taken. Both jurisdiction and venue on this case are proper in the Hamilton County Court of Common Pleas. An action to vacate an arbitration award may be brought "* * * in the court of common pleas of any county in which a party in interest resides or may be summoned * * *." R.C. 2711.16. This court has already determined that the action was properly brought in this court of common pleas. Moreover, as the Court of Appeals for Cuyahoga County held in Gerl Constr. v. Medina Cty. Bd. of Commrs. (1985), 24 Ohio App.3d 59, 24 OBR 113, 493 N.E.2d 270, the provisions of R.C. 2711.16 with respect to jurisdiction and venue prevail over the provisions set forth in Civ.R. 3(B) regarding venue. For the above stated reasons, the motion for change of venue is not well taken and is denied.
Motions denied.