[Cite as Total Pharmacy, Inc. v. Oak Hill Manor, L.L.C., 2011-Ohio-2548.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Total Pharmacy, Inc., f/k/a
Choice Pharmacy Services, Inc.,
:
:
Plaintiff-Appellee,
:
v.
No. 10AP-1035
:
Oak Hills Manor, LLC, d/b/a Oak Hill
Manor Care Center,
Defendant-Appellant.
(C.P.C. No. 09CVH-04-6540)
:
(REGULAR CALENDAR)
:
D E C I S I O N
Rendered on May 26, 2011
Porter Wright Morris & Arthur LLP, Mark S. Stemm,
L. Bradfield Hughes and Sheena L. Little, for appellee.
Mills, Mills, Fiely & Lucas, LLC, and Laura L. Mills, for
appellant.
APPEAL from the Franklin County Court of Common Pleas
TYACK, J.
{¶1}
Oak Hills Manor, LLC ("Oak Hills") is appealing the trial court's confirmation
of the result of a binding arbitration between Oak Hills and Total Pharmacy, Inc. ("Total
Pharmacy"). For the reasons set forth below, we affirm the judgment of the trial court.
{¶2}
Oak Hills has assigned three errors in this appeal:
No. 10AP-1035
2
[I.] The Trial Court erred by not vacating the arbitration
award due to the substantial bias of the Arbitrator in
accordance with ORC 2711.10.
[II.] The Trial Court failed to hold a hearing to determine the
nature of the bias of the Arbitrator in accordance with Ohio
law.
[III.] The Trial Court erred by not vacating the arbitration
award due to the manifest disregard of the law on contracts
and lost profits in Ohio by the Arbitrator and the refusal of
the Arbitrator to heed to recognizable legal principles.
{¶3}
Ohio law strongly encourages binding arbitration. An award which results
from binding arbitration can be vacated for only a few reasons and on only a few narrow
grounds. R.C. 2711.10 provides:
In any of the following cases, the court of common pleas
shall make an order vacating the award upon the application
of any party to the arbitration if:
(A) The award was procured by corruption, fraud, or undue
means.
(B) Evident partiality or corruption on the part of the
arbitrators, or any of them.
(C) The arbitrators were guilty of misconduct in refusing to
postpone the hearing, upon sufficient cause shown, or in
refusing to hear evidence pertinent and material to the
controversy; or of any other misbehavior by which the rights
of any party have been prejudiced.
(D)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.
{¶4}
The third assignment of error does not allege that the arbitration or
arbitrator violated any of the conditions required for vacating an award from a binding
arbitration. The trial court was bound by R.C. 2711.10 and followed it in addressing this
No. 10AP-1035
3
issue. In abiding by the statute, the trial court proceeded appropriately. Stated in other
words, the trial court did not err in following the applicable statute.
{¶5}
The third assignment of error is overruled.
{¶6}
The first and second assignments of error allege that the arbitrator was
somehow biased and that the arbitration award should therefore be vacated, in accord
with R.C. 2711.10(B). We find no merit in such an allegation.
{¶7}
We note initially that Oak Hills specifically suggested that Thomas J.
Bonasera serve as the arbitrator. Bonasera has been chosen in times past to lead the
Columbus Bar Association and the Ohio State Bar Association. He has an excellent
reputation as a lawyer and a public servant in Central Ohio. The suggestion from Oak
Hills made good sense and was accepted by Total Pharmacy.
{¶8}
Oak Hills expressed no reservations about Bonasera serving as the
arbitrator when the actual evidentiary proceedings commenced. Oak Hills expressed no
reservations when the evidentiary proceedings resumed three weeks later. Oak Hills
apparently concluded that Bonasera was somehow biased only after he decided an
award in favor of Total Pharmacy was justified by the facts demonstrated in the arbitration
proceedings.
{¶9}
R.C. 2711.10 does not provide that an arbitration award can be vacated
merely because one of the parties to the arbitration does not like the outcome.
{¶10} The basis for the allegations of bias by Bonasera, first set forth in Oak Hills'
motion to vacate the arbitration award in the common pleas court, is not completely clear.
No. 10AP-1035
4
The motion to vacate included an affidavit from James Renacci, an "owner" of Oak Hills
Manor, LLC. The affidavit reads:
1. I am an owner of Oak Hills Manor, LLC.
2. The Arbitrator in this matter is a partner in a Columbus
firm which, in approximately the last year, split off from the
firm known as Buckingham, Doolittle and Burroughs ("BDB").
3. I was informed that the arbitrator's firm and BDB were in
litigation in regards to the separation.
4. I utilized the services of BDB for approximately 20 years
until a situation arose in which I learned that my attorney's
wife at BDB, who is a partner of the Arbitrator, had created a
partnership with my business partner while representing me
at the same time. This was done with no disclosure to me.
5. I received a call from the President of BDB requesting
assistance into an internal investigation.
6. My cooperation with the internal investigation caused a
significant problem between my prior counsel and myself.
7. On the day of the Arbitration, I learned that the Arbitrator
was now with the same firm that defected from BDB and was
a partner with my previous attorney.
{¶11} The affidavit is simply wrong in some particulars.
Bonasera left one
respected law firm and joined another respected law firm, Dinsmore and Shohl LLP.
Dinsmore and Shohl has over 25 partners in its Columbus office alone and has
approximately an equal number of associates there. The firm has offices in nine other
cities in Ohio, West Virginia, and Kentucky.
{¶12} The fact that two law firms could disagree to the point of litigation when one
or more law firm partners transfer is not unheard of and is no reflection upon the
members of either firm.
No. 10AP-1035
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{¶13} The fact that Renacci has misgivings about the actions and activities of his
former lawyer does not prevent the partners of his former lawyer from being fair and
impartial.
Renacci's affidavit does not approach the threshold of demonstrating that
Bonasera was biased against Oak Hills. The affidavit does not even set forth facts
sufficient to warrant an evidentiary hearing on the issue of bias.
{¶14} Neither the first nor second assignment of error should be sustained, based
upon the record before us. Both are therefore overruled.
{¶15} All three assignments of error having been overruled, the judgment of the
Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BROWN and FRENCH, JJ., concur.
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