Starr Constr. & Demo v. D.A. Bentley Constr.

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[Cite as Starr Constr. & Demo v. D.A. Bentley Constr., 2022-Ohio-1122.] IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY STARR CONSTRUCTION AND DEMO., Plaintiff-Appellee, v. D.A. BENTLEY CONSTRUCTION, Defendant-Appellant. OPINION AND JUDGMENT ENTRY Case No. 21 MA 0037 Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 20 CV 181 BEFORE: Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges. JUDGMENT: Reversed, Vacated; Remanded. Atty. Robert J. Rohrbaugh II, Robert J. Rohrbaugh, II, LLC, 4800 Market St. Suite A, Boardman, Ohio 44512 for Plaintiff-Appellee and Atty. Michael L Fortney, Atty. Sami Z. Farhat, Stark & Knoll Co., L.P.A., 3475 Ridgewood Road, Akron, Ohio 44333 for Defendant-Appellant. –2– Dated: March 29, 2022 Robb, J. {¶1} Defendant-Appellant D.A. Bentley Construction (Bentley) appeals the decisions of the Mahoning County Common Pleas Court denying a motion to stay pending arbitration and denying an application to confirm an arbitration award, which Appellant filed in the contract action brought by Plaintiff-Appellee Starr Construction & Demolition (Starr). The court overruled the motion for stay upon concluding the contract containing the arbitration clause was not enforceable because it was not signed by Bentley even though it was signed by Starr and attached to Starr’s complaint which said it was the governing contract. The court thereafter overruled the application to confirm the arbitration award expressly based on the post-arbitration decision denying the stay. {¶2} For the following reasons, the judgment denying the motion to stay pending arbitration is reversed, and the stay is granted. The judgment denying confirmation of the arbitration award is therefore vacated, and the case is remanded for a ruling on the application to confirm consistent with the governing statute and with this opinion. STATEMENT OF THE CASE {¶3} On January 23, 2020, Starr filed a breach of contract complaint against Bentley in a commercial construction contract dispute, claiming: the parties entered a contract on July 10, 2019 calling for Starr to provide excavation services at a new Taco Bell; “Starr substantially completed all tasks required under the contract in a workmanlike manner”; Bentley failed to pay Starr for the work performed; and Starr suffered damages as a result of Bentley’s breach of the agreement. The complaint further stated, “a true and accurate copy of the agreement is attached hereto.” {¶4} The contract Starr attached to the complaint had a July 2, 2019 effective date, was drafted by Bentley, and was titled “Master Agreement.” The contract contained an arbitration clause which required binding arbitration of any claim. The clause defined a claim “as a demand or assertion by Sub[contractor] or D.A. Bentley Construction, LLC seeking any remedy under, or enforcement of, or adjustment or interpretation of, this Agreement, or seeking any money or other relief relating in any way to the Project or Case No. 21 MA 0037 –3– Sub’s work on the Project.”1 A representative signed the contract for Starr as the subcontractor on July 10, 2019, after striking out some provisions unrelated to the arbitration clause. The line for the signature of Bentley’s representative was blank. {¶5} Bentley was served with the complaint on February 26, 2020. On March 23, 2020, Bentley filed a motion to stay pending arbitration under R.C. 2711.02 (or to dismiss). The motion pointed to the arbitration clause in the contract attached to Starr’s complaint and the language in Starr’s complaint which said the parties entered into the attached contract, Starr performed as required under the contract, and Bentley breached the contract. Bentley observed the filing of the suit constituted a breach of the arbitration clause and the statutory language on a stay was mandatory where “the issue involved in the action is referable to arbitration under an agreement in writing for arbitration * * *.” {¶6} Starr’s response to the motion said the parties exchanged contract proposals which contained arbitration clauses but Bentley never executed one and thus should not be afforded the protection of the arbitration clause. They asserted Bentley was asking for a stay pursuant to a contract that did not exist and claimed they performed pursuant to an oral contract. Starr also disclosed Bentley filed for arbitration with the American Arbitration Association (AAA) after Starr submitted a demand for payment. {¶7} Bentley’s reply said Starr should not be permitted to argue the parties did not enter the written contract attached to Starr’s own complaint where Starr signed the contract and admitted in the complaint that the parties entered into the attached contract. Bentley noted: the complaint did not allege the arbitration agreement was unenforceable; none of Starr’s strike-outs involved the arbitration clause; and Starr admitted its performance was “required” by the attached contract. {¶8} On March 31, 2020, the trial judge recused himself due to a familial relationship with an attorney and requested the case be randomly reassigned by the administrative judge. (We note this was at the beginning of the pandemic lockdown.) On An email was also attached to the complaint suggesting Starr returned the contract to Bentley’s contract department by an email which was not delivered due to an incorrect domain name. Starr sent it to contracts@dabently.net omitting an “e” in the name; two other recipients of Starr’s email at Bentley’s office ended with @dabentley.net. 1 Case No. 21 MA 0037 –4– September 14, 2020, Starr filed a request for a status hearing, specifying the reason for this motion was that the matter had not yet been reassigned. {¶9} On February 11, 2021, a visiting judge issued an entry setting the matter for a status hearing on March 3, 2021. A certificate of assignment from the Ohio Supreme Court was filed in the case on March 15, 2021 with an effective date of March 3, 2021. {¶10} After the March 3 status hearing, the court issued two entries which were both filed on March 19, 2021. The first entry noted Bentley failed to appear at the “status conference” which was reset for April 15, 2021. (3/19/21 J.E. 1). {¶11} The second entry overruled Bentley’s motion to dismiss or stay pending arbitration. The court observed that Starr argued “the document containing the arbitration clause is not a contract between the parties because it was not executed by [Bentley].” The court then concluded: “the Defendant must show the arbitration clause was part of an enforceable contract. The contract attached to the Complaint does not bear a valid signature of a representative of Defendant’s corporation. Therefore there is no agreement to arbitrate disputes.” (3/19/21 J.E. 2). {¶12} On March 23, 2021, Bentley filed an application to confirm an October 22, 2020 arbitration award under R.C. 2711.09, which states a party to arbitration can apply for an order confirming an arbitration award within one year of the award. A hearing on the application was requested under the statute. It was pointed out Starr’s complaint acknowledged the parties entered the Master Agreement (attached to the complaint) which was executed by Starr on July 10, 2019 and which contained an arbitration clause. {¶13} Bentley’s application to confirm added a new allegation involving Starr’s execution of a work order on July 11, 2019, which was also executed by Bentley (on June 24, 2019). The attached work order said: “ALL TERMS AND CONDITIONS OF THE MASTER AGREEMENT BETWEEN D.A. BENTLEY CONSTRUCTION, LLC AND SUBCONTRACTOR IS INCORPORATED HEREIN BY REFERENCE AND REMAINS IN FULL FORCE AND EFFECT AND SHALL GOVERN THIS WORK ORDER.” {¶14} Other exhibits attached to Bentley’s application to confirm the arbitration award showed: Bentley initiated arbitration against Starr with the AAA; a March 12, 2020 letter from AAA appointed an arbitrator and set a phone conference for March 18; a preliminary hearing was held on June 23, 2020; dates for exchanging documents and the Case No. 21 MA 0037 –5– witness list were set; a second preliminary hearing was set for September 14, 2020; the evidentiary hearing proceeded on October 13, 2020; and an arbitration award in favor of Bentley was issued by the arbitrator on October 22 and served on October 27, 2020. {¶15} The arbitration award said Starr’s attorney appeared for the limited purpose of arguing the matter was not arbitrable because the Master Agreement was not signed by Bentley. In rejecting this argument, the arbitrator noted Starr participated in all the preparatory discussions for arbitration. It was also pointed out: Starr signed the Master Agreement which contained the arbitration clause; both parties signed the work order which incorporated the Master Agreement; and Starr performed work and submitted payment requests pursuant to those documents. The arbitrator then concluded Starr was paid nearly $76,000 leaving a balance of almost $17,000 but Bentley incurred costs of almost $39,000 to cure Starr’s default which meant Starr owed Bentley $22,028.81 (with statutory interest from November 25, 2019) plus attorney’s fees of $11,752.33 (with interest from the hearing date) and arbitration costs of $2,800. {¶16} On April 15, 2021 (the date set for the rescheduled status conference), the court overruled the application to confirm the arbitration award stating, “the Court has previously found arbitration clause not to be enforceable.” The court then set a trial date on Starr’s breach of contract complaint. {¶17} On April 16, 2021, Bentley filed a timely notice of appeal from the March 19, 2021 judgment denying a stay pending arbitration and the April 15, 2021 judgment denying the application to confirm the arbitration award. The denial of stay pending arbitration is a final order. See R.C. 2711.02(C)-(D).2 And, the court need not utilize Civ.R. 54(B) language finding no just reason for delay to make a denial of a stay pending arbitration appealable. Mynes v. Brooks, 124 Ohio St.3d 13, 2009-Ohio-5946, 918 N.E.2d 511, syllabus. 2 Regarding the subsequent judgment denying the application to confirm the award, we note a statute provides: “An appeal may be taken from an order confirming, modifying, correcting, or vacating an award made in an arbitration proceeding or from judgment entered upon an award.” R.C. 2711.15. The statute makes no mention of the denial of a motion to confirm and the court did not use Civ.R. 54(B) language; yet one could reason the denial of confirmation was essentially a vacation of the award. In any event, we are remanding for the trial court to rule on the motion to confirm upon our reversal of the motion to stay. Case No. 21 MA 0037 –6– ASSIGNMENT OF ERROR ONE: STAY PENDING ARBITRATION {¶18} Bentley sets forth two assignments of error corresponding to the two judgments on appeal. The first assignment of error contends: “The Trial Court erred in refusing to grant Defendant-Appellant’s Motion to Dismiss or Stay Pending Arbitration under R.C. 2711.02, where Plaintiff-Appellee alleged in its Complaint that the parties were subject to a written contract and where the contract contained a valid arbitration provision.” {¶19} The parties agree our standard of review is de novo under the circumstances existing in this case. See Corl v. Thomas & King, 10th Dist. Franklin No. 05AP-1128, 2006-Ohio-2956, ¶ 10. The application of the following statute is at issue: If any action is brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which the action is pending, upon being satisfied that the issue involved in the action is referable to arbitration under an agreement in writing for arbitration, shall on application of one of the parties stay the trial of the action until the arbitration of the issue has been had in accordance with the agreement, provided the applicant for the stay is not in default in proceeding with arbitration. (Emphasis added to disputed element.) R.C. 2711.02 (B). {¶20} Bentley points to the mandatory “shall” language in the statute and to the law stating there is a presumption in favor of arbitration with ambiguities being resolved in favor of coverage. See Hayes v. Oakridge Home, 122 Ohio St.3d 63, 2009-Ohio-2054, 908 N.E.2d 408, ¶ 15 (“In light of the strong presumption favoring arbitration, all doubts should be resolved in its favor.”). Bentley says the breach of contract allegation in Starr’s complaint satisfies the definition of a claim in the arbitration clause and is covered by the arbitration clause attached to the complaint. Nevertheless, Starr did not dispute a stay pending arbitration would be required if there was “an agreement in writing for arbitration.” {¶21} Bentley’s main argument contends the trial court erred in holding the lack of Bentley’s signature on the contract containing the arbitration clause meant there was no written agreement to arbitrate disputes. Bentley says this ignored the allegations in Starr’s own complaint which specified the parties entered the attached contract Case No. 21 MA 0037 –7– (containing the arbitration clause) and which said Starr completed all tasks required under the contract; it is urged that Starr cannot argue a written contract does not exist in direct contradiction to the allegations in their own complaint (which remained unamended). Bentley urges the requirement that an arbitration agreement be in writing does not mean it must be signed by the party seeking to enforce, especially where it was signed by the other party. {¶22} Starr argues the agreement for arbitration was not “in writing” because Bentley did not sign the contract containing the arbitration clause, suggesting their own signature on the contract was irrelevant. Starr says Bentley took a risk by continuing through arbitration in the absence of a stay where the trial court could render the arbitration proceedings moot by eventually denying the stay request. Starr also notes Bentley did not appear at the status hearing, acknowledging the outcome may have been different if Bentley appeared or provided evidence of a signed writing (such as the work order). {¶23} As to the latter argument, we note a hearing is not required for a motion to stay under R.C. 2711.02, but a court has discretion to hold a hearing when considering whether the requested stay is warranted. Maestle v. Best Buy Co., 100 Ohio St.3d 330, 2003-Ohio-6465, 800 N.E.2d 7, ¶ 19-20 (noting the similar Federal Arbitration Act is so interpreted and adopting the Fourth District’s Brumm case on this holding). Here, Starr asked for a “status hearing” specifically because the case had not been reassigned to another common pleas judge as requested by the recusing judge (i.e., to prompt an assignment). A visiting judge eventually scheduled a status hearing (in a judgment entry issued before the effective date of his appointment). There was no indication a hearing was ordered on the motion for stay. The issuance of two entries on March 19, 2021 on the two separate topics (the “status conference” appearance with rescheduling and then the motion for stay) shows the judge did not deny the motion for stay on the grounds of failure to appear at the status hearing. {¶24} Nevertheless, Starr correctly suggests Bentley cannot attempt to show error in denying the motion for stay based on evidence that was not in the record at the time the court ruled (e.g., the work order with the signatures incorporating the Master Agreement). Notably, however, Bentley’s brief does not raise the work order under this Case No. 21 MA 0037 –8– assignment of error (which addresses the denial of the motion to stay pending arbitration); rather, the work order is mentioned in the second assignment of error addressing the application to confirm the arbitration award. {¶25} Moving to the issue addressed in this assignment of error, the arbitration statute cited by the parties requires a written agreement but does not require a signature. R.C. 2711.02(B). See also R.C. 2711.01(A). And here, the allegedly lacking signature is that of the party seeking to enforce the agreement (against the party who did sign it and who filed a complaint based on an attached written agreement containing the arbitration clause). The cases cited by Bentley are persuasive. One of those cases (Brumm) is the sole case cited in Starr’s brief and is merely relied on by Starr for the statutory requirement that the arbitration clause must be in writing. Starr’s brief does not further explain the rationale on a writing versus a signature or analyze why the trial court could ignore Starr’s own complaint attesting the parties entered the written contract attached to that complaint (which contract contained the arbitration clause). {¶26} In Brumm, the plaintiff sued the defendant for breach of contract, and the defendant sought a stay pending arbitration. In contesting the motion for stay, the plaintiff complained that although she signed the agreement containing the arbitration clause, the defendant did not sign it (until after the breach). The Fourth District pointed out there is nothing in the statutory arbitration law requiring a signature on the written agreement and the arbitration agreement is additionally governed by contract law which generally allows for unsigned contracts. Brumm v. McDonald & Co. Securities, 78 Ohio App.3d 96, 101102, 603 N.E.2d 1141 (4th Dist.1992). {¶27} The court recognized “the great majority of jurisdictions nationwide which require written arbitration contracts do not require the signatures of the parties in order to enforce them.” Id. at 102, citing 16 Williston, Contracts, Section 1919A at 163 (1976). “In construing similar provisions under the Federal Arbitration Act [FAA], the federal courts have consistently held that, to enforce an arbitration clause, it is only necessary that the provision be in writing and it is not required that such writing be signed.” Id., citing, e.g., Case No. 21 MA 0037 –9– Medical Dev. Corp. v. Industrial Molding Corp., 479 F.2d 345, 348 (10th Cir.1973); Fisser v. International Bank, 282 F.2d 231, 233 (2d Cir.1960). {¶28} As observed by the Brumm court: “even those contracts required by the Ohio Statute of Frauds to be in writing will be enforceable so long as there is some memorandum or writing ‘signed by the party to be charged therewith.’ R.C. 1335.05. Thus, it is not required that the party seeking to enforce the contract also has signed the contract.” Brumm, 78 Ohio App.3d 96 at fn. 7. The pertinent statutory language “contains no built-in Statute of Frauds provision but merely requires that the arbitration provision itself be in writing. Ordinary contract principles determine who is bound by such written provisions and of course parties can become contractually bound absent their signatures.” Fisser, 282 F.2d at 233. See also Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1369 (11th Cir.2005) (“We readily conclude that no signature is needed to satisfy the FAA's written agreement requirement” based on “the plain language” of the statute and “the overwhelming weight of authority”). {¶29} In a Sixth District case cited by Bentley, the following facts were analyzed: a company signed a construction contract containing an arbitration clause which the homeowner did not sign; the homeowner initiated arbitration under the contract; the company sought to vacate the arbitration award while the homeowner sought to confirm it; and the trial court found a valid arbitration agreement. Ross v. Bridgewater Constr. Inc., 6th Dist. Lucas No. L-03-1029, 2003-Ohio-6199 (and alternatively found the company was estopped from challenging enforceability because they participated in arbitration without seeking a judicial determination on the validity of the agreement). The Sixth District affirmed the finding of a valid agreement even in the absence of the homeowner’s signature, citing Brumm and the aforementioned federal circuit court decisions. Id. at ¶ 11. See also Qualls v. Wright Patt Credit Union, 2d Dist. No. 2020CA-48, 2021-Ohio-2055, 174 N.E.3d 874, ¶ 86 (“there is no requirement that an arbitration agreement be signed by either party in order to be enforceable; the only requirement is that the arbitration agreement be reduced to writing”). {¶30} As in Ross, there was evidence the company who sought to avoid arbitration used the written contract to define its rights and duties. Starr sued on the same Case No. 21 MA 0037 – 10 – contract containing the arbitration clause and admitted in the complaint that the parties entered into that contract. {¶31} Moreover, the Eighth District recently addressed a similar case by citing contract principles such as: unless a statute requires a signature, a party may become bound by the terms of a contract even without signing it if their agreement is demonstrated by the acceptance of benefits or performance under the contract. Estate of Battle-King v. Heartland of Twinsburg, 8th Dist. Cuyahoga No. 110023, 2021-Ohio-2267, ¶ 30. Also, “If either party to the contract has otherwise signed a sufficient memorandum, it is enforceable against him as the party to be charged, even though no memorandum has been signed by the other party for whose benefit it is being enforced.” Id., quoting Corbin, Contracts, Section 524, 774 (1950). The court also pointed to an Ohio Supreme Court case stating, “[s]ignature spaces in [a] form contract do not in and of themselves require that the signatures of all the parties are a condition precedent to the contract's validity and enforceability.” Richard A. Berjian D.O. Inc. v. Ohio Bell Tel. Co., 54 Ohio St.2d 147, 375 N.E.2d 410 (1978) (where the phone company signed a form contract and gave it to the offeree who did not sign, the Court found the contract was enforceable as the phone company was justified in believing the terms of writing were accepted). {¶32} The Eighth District concluded a nursing home’s failure to sign an arbitration agreement which was (allegedly) signed by a resident did not preclude the nursing home from enforcing the agreement against the resident. Estate of Battle-King, 8th Dist. No. 11002329 at ¶ 29, 32 (reversing the trial court’s refusal to stay pending arbitration). See also One Lifestyle Ltd. v. Mohiuddin, 10th Dist. Franklin No. 20AP-72, 2021-Ohio-1594, 172 N.E.3d 507, ¶ 24 (“an arbitration provision can be enforced by a party even when that party has not signed the contract”). {¶33} Finally, the Supreme Court has observed: “R.C. 2711.01(A) refers to the arbitration provision in a contract, and notes that it is valid unless revocable under contract law. Because the arbitration clause is a separate entity, it only follows that an alleged failure of the contract in which it is contained does not affect the provision itself. It remains Case No. 21 MA 0037 – 11 – as the vehicle by which the legitimacy of the remainder of the contract is decided.” ABM Farms Inc. v. Woods, 81 Ohio St.3d 498, 502, 692 N.E.2d 574 (1998). {¶34} In accordance with the cases reviewed supra, we conclude the lack of Bentley’s signature on the contract attached to Starr’s complaint did not preclude Bentley from seeking a stay pending arbitration under the arbitration clause in that attached contract. Starr’s complaint specifically states: the parties entered the contract attached to the complaint, Starr “substantially completed all tasks required under the contract,” and Bentley failed to compensate Starr for this work thereby breaching the contract. The trial court therefore had Starr’s own statement that the written contract was valid as they were seeking to enforce it in their complaint, and Starr signed the contract containing the arbitration clause. {¶35} Accordingly, this assignment of error has merit. The decision denying the stay pending arbitration is reversed, and the stay is hereby granted. ASSIGNMENT OF ERROR TWO: CONFIRM ARBITRATION AWARD {¶36} Appellant’s second assignment of error contends: “The Trial Court erred in refusing to grant Defendant-Appellant’s Application to Enforce Arbitration Award under R.C. 2711.09 where the dispute between the parties was the subject of an arbitration administered by the American Arbitration Association, both parties participated in the arbitration proceedings, the arbitrator determined that the dispute was arbitrable, the arbitrator issued an award, and the Application was unopposed by Plaintiff-Appellee.” {¶37} An application to confirm an arbitration award is specifically provided for by the following statute: At any time within one year after an award in an arbitration proceeding is made, any party to the arbitration may apply to the court of common pleas for an order confirming the award. Thereupon the court shall grant such an order and enter judgment thereon, unless the award is vacated, modified, or corrected as prescribed in sections 2711.10 and 2711.11 of the Revised Case No. 21 MA 0037 – 12 – Code. Notice in writing of the application shall be served upon the adverse party or his attorney five days before the hearing thereof. R.C. 2711.09. {¶38} This statute contains mandatory language requiring the trial court to grant a timely application to confirm where the award was made and was not vacated, modified, or corrected under the two cited statutes (which both require an application). State ex rel. Westlake v. Corrigan, 112 Ohio St.3d 463, 2007-Ohio-375, ¶ 20. The Supreme Court has observed: “Once an arbitration is completed, a court has no jurisdiction except to confirm and enter judgment (R.C. 2711.09 and 2711.12), vacate (R.C. 2711.10 and 2711.13), modify (R.C. 2711.11 and 2711.13), correct (R.C. 2711.11 and 2711.13), or enforce the judgment (R.C. 2711.14).” Id. at ¶ 21, quoting State ex rel. R.W. Sidley Inc. v. Crawford, 100 Ohio St.3d 113, 2003-Ohio-5101, ¶ 22. {¶39} Bentley’s application to confirm the arbitration award was timely. Starr did not file a response in opposition to the application to confirm. Furthermore, Starr did not file a motion to vacate or modify, and the three-month deadline for doing so had passed by the time of Bentley’s application to confirm. See R.C. 2711.13. Consequently, the trial court did not vacate, modify, or correct the award. {¶40} On appeal, Starr states Bentley took the risk of proceeding to arbitration when Bentley’s motion for a stay pending arbitration had not been ruled upon, and Starr relies on its argument that the stay was properly denied due to the lack of a written arbitration agreement. There is no suggestion arbitration cannot proceed until a court issues a stay in a lawsuit where a motion for stay is pending. {¶41} To review, after arbitration and before the application to confirm the award was filed, the trial court denied the long-pending motion for stay on the express grounds that the arbitration clause was not part of an enforceable contract as it did not bear Bentley’s signature. As pointed out supra, the March 19, 2021 decision denying the stay was a final order under R.C. 2711.02(C)-(D). The trial court’s subsequent April 15, 2021 decision denied the application to confirm on the specific grounds that the court “previously found the arbitration clause not to be enforceable.” {¶42} The court was essentially applying finality principles of res judicata or the principle that reconsideration of a final order is a nullity. See Grava v. Parkman Twp., 73 Case No. 21 MA 0037 – 13 – Ohio St.3d 379, 653 N.E.2d 226 (1995), syllabus (“A valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action.”); Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378, 379, 381, 423 N.E.2d 1105 (1981), fn. 1 (a court can reconsider an interlocutory order, but “motions for reconsideration of a final judgment in the trial court are a nullity” as are all judgments flowing from it). The trial court was presented with evidence further supporting the validity of the arbitration agreement (the work order signed by both parties incorporating the Master Agreement). This showed entitlement to arbitration even if there was merit to Starr’s argument about Bentley’s lacking signature on the Master Agreement. However, the trial court had already issued a final order denying the motion for stay by holding the arbitration agreement was not enforceable. We note the court had before it a statutory application to confirm the award, not a Civ.R. 60(B) motion to vacate a final order. {¶43} Starr expressly acknowledges the trial court’s April 15, 2021 decision was based upon its prior ruling. That is, Starr argues Bentley’s application to confirm was moot because the court already found the agreement unenforceable, and Starr says Bentley must show the trial court erred in overruling the motion to stay in order to demonstrate the trial court was required to grant the application to confirm the award. {¶44} As this court is sustaining the first assignment of error and finding the trial court erroneously denied a stay pending arbitration, the basis for the trial court’s denial of the application to confirm the award is eliminated. The arbitration agreement was enforceable, and we are thus reversing the March 19, 2021 judgment denying a stay pending arbitration. Because the April 15, 2021 judgment denying the motion to confirm the arbitration award directly flowed from the trial court’s erroneous March 19, 2021 decision denying the stay, the appealed April 15, 2021 judgment is invalid and is necessarily vacated as it was derived from a judgment that is hereby being reversed. We therefore remand the case to the trial court to fulfill its duty in accordance with the mandatory language of R.C. 2711.09 (which requires the court to confirm the arbitration Case No. 21 MA 0037 – 14 – award unless it was vacated, modified, or corrected in accordance with specific statutes requiring a timely motion). CONCLUSION {¶45} For the foregoing reasons, the judgment denying the motion to stay pending arbitration is reversed, and the stay is granted. The judgment denying the application to confirm the arbitration award, which expressly emanated from the denial of the stay, is vacated. The case is remanded for a ruling on the application to confirm consistent with the governing statute and with this opinion. Donofrio, P J., concurs. Waite, J., concurs. Case No. 21 MA 0037 [Cite as Starr Constr. & Demo v. D.A. Bentley Constr., 2022-Ohio-1122.] For the reasons stated in the Opinion rendered herein, the judgment denying the motion to stay pending arbitration is reversed, and the stay is granted. The judgment denying the application to confirm the arbitration award, which expressly emanated from the denial of the stay, is vacated. The case is remanded for a ruling on the application to confirm consistent with the governing statute and with this opinion. Costs to be taxed against the Appellee. A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution. NOTICE TO COUNSEL This document constitutes a final judgment entry.

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