[Cite as Centofanti. v. Wayne Homes, 2012-Ohio-4116.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

LUDOVICO CENTOFANTI ) CASE NO. 10 MA 180 

) 

PLAINTIFF-APPELLEE ) 

) 

VS. ) OPINION 

) 

WAYNE HOMES ) 

) 

DEFENDANT-APPELLANT ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 08 CV 4572 

JUDGMENT: Affirmed. Remanded. 

APPEARANCES: 

For Plaintiff-Appellee: Atty. Matthew C. Giannini 

10404 South Commons Place 

Suite 200 

Youngstown, Ohio 44514 

For Defendant-Appellant: Atty. Michael S. Gruber 

Atty. M. Dean Dahl 

Zollinger, Gruber, Thomas & Co. 

P.O. Box 2985 

6370 Mt. Pleasant Street, N.W. 

North Canton, Ohio 44720-0985 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Gene Donofrio 

Hon. Mary DeGenaro 

Dated: September 5, 2012
[Cite as Centofanti. v. Wayne Homes, 2012-Ohio-4116.]

WAITE, P.J. 

Summary

{¶1} In 2007, Appellee Ludovico Centofanti hired Appellant, Wayne Homes, 

to build a house. Less than a year later the building was not complete and Appellee 

informed Appellant that a variety of defects existed in construction. Appellee also 

informed Appellant that Appellant’s failure to comply with applicable building codes 

was making financing the remainder of the project difficult. When the parties could 

not resolve their differences, Appellee filed a breach of contract suit in the Mahoning 

County Common Pleas Court. Within a week of that filing, Appellant initiated a 

private arbitration proceeding. Appellant received service of the complaint, but did 

not respond until February of the following year when Appellant filed a hybrid 

Civ.R.12(B)(6) motion and motion for stay pending the outcome of arbitration. 

Appellant and the private arbitration firm exchanged correspondence concerning the 

arbitration proceeding with Appellee, who consistently and unambiguously informed 

Appellant and the arbitration firm of his refusal to participate unless ordered to do so 

by the trial court. Although Appellee never voluntarily participated in arbitration and 

the trial court never ordered participation or ruled on the motion for stay, Appellant 

continued with arbitration unilaterally, receiving an award from the arbitrator which 

Appellant then submitted to the trial court for enforcement. 

{¶2} Appellee, who had both opposed arbitration and sought, in the 

alternative, a court-appointed arbitrator rather than a private firm, filed a motion to 

stay the arbitration decision, an appeal of the decision and a motion for hearing on all 

pending motions. A hearing was held on the cross motions, and the magistrate 
-2-

ordered Appellant to provide additional information identifying the source of the 

arbitrator’s authority to proceed with arbitration in the absence of a court order. At 

this point, Appellee filed a motion to vacate the arbitration award. The trial court 

ultimately vacated the award and Appellant filed the instant appeal from that order. 

{¶3} An arbitrator’s authority to arbitrate, in the absence of a court order, 

comes from the voluntary participation of the parties. The trial court’s decision to 

vacate the award obtained by Appellant without Appellee’s participation was 

appropriate and was not an abuse of discretion. The judgment of the trial court is 

affirmed and the matter remanded for further proceedings in accordance with this 

Court’s Opinion. 

Factual and Procedural History

{¶4} Appellant, Wayne Homes, L.L.C., was hired by Appellee, Ludovico 

Centofanti, for the construction of a house. On November 20, 2008, before the 

completion of construction, Appellee filed a complaint alleging breach of contract, 

breach of implied warranty to deliver the home free from defect, negligent 

construction and violations of the Ohio Consumer Sales Practices Act (“CSPA”). 

Appellee alleged Appellant had failed to perform in a workmanlike manner and 

provided specific examples, including: improper installation of the footers on the 

home and garage units, improper installation of post pads, beams and the foundation 

of the furnace as well as failure to comply with local and state ordinances, 

regulations, and building codes, resulting in adverse action by Mahoning County 

which impaired Appellee’s ability to maintain financing. Appellee sought release from 

the construction contract or compensatory damages in the amount of $233,840.00 
-3-

(the full value of the contract), in addition to treble his actual damages for violations of 

the CSPA, punitive damages, costs, and attorney fees. Appellee attached a copy of 

a partially executed construction contract to the complaint. 

{¶5} On February 13, 2009 Appellant, then several months in default of filing 

an answer, filed a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim and in 

the alternative, a motion for stay pending resolution by arbitration. Appellant did not 

attach any evidence that an arbitration agreement existed to this hybrid motion. On 

February 23, 2009, in response to Appellant’s motion for stay, Appellee filed a motion 

to strike Appellant’s February 13, 2009 motion and a counter motion seeking a court 

appointed arbitrator, citing cost savings as a reason for preferring to use the court’s 

arbitration services, if necessary. Appellee indicated that although a copy of the fully 

executed contract had been repeatedly requested, no copy had been provided to 

Appellee by Appellant. 

{¶6} On March 6, 2009 Appellant filed a copy of the construction contract 

with an affidavit in support of the February 13, 2009 motion to dismiss or for a stay 

pending arbitration. Appellant’s copy of the agreement has a second, illegible, 

signature, dated November 29, 2007, on the space provided for Wayne Homes as 

contractor. The Wayne Homes representative is not identified. The document was 

stamped “received by Court Room No. 1” on March 18, 2009. 

{¶7} The record is then conspicuously silent until Appellee’s May 15, 2009 

notice of appeal of arbitration; motion to stay decision; and request for hearing; which 

was docketed by the court on June 2, 2009. Between the filing of the competing 

motions in February of 2009 along with the Civ.R. 12(B)(6) motion, and the May 15, 
-4-

2009 notice by Appellee, the record contains no ruling by the court on any of the 

pending motions. 

{¶8} Appellee’s May 15, 2009 notice and motion described Appellant’s 

unilateral decision to pursue commercial arbitration absent a court order on the 

pending motions and Appellee’s unambiguous refusal to participate absent a court 

order. Without Appellee’s participation, Appellant obtained an arbitration award. As 

a result, Appellee asked that the court stay execution of the award and instead 

schedule a hearing and rule on the outstanding motions as well as his appeal of the 

arbitration award. On May 20, 2009 Appellant filed an application for an order 

confirming the arbitration award. Appellant’s motion requested confirmation of “a 

written Award of Arbitrator in the sum of $29,725.00, plus interest at the statutory rate 

per annum from April 30, 2009, rendered as a result of an arbitration proceeding 

between Plaintiff and Defendant. Defendant was further awarded $900.00 for 

reimbursement of arbitration [fees] and expenses.” (5/29/09 Application for Order 

Confirming Arbitration Award.) 

{¶9} On June 3, 2009 Appellant filed a response opposing Appellee’s notice 

of appeal and motion for stay. Appellant acknowledged that the court never ruled on 

the pending motions, and that Appellant obtained the arbitration’s award without 

Appellee’s participation in the process. Appellant nevertheless asserted the validity 

of the arbitration decision and maintained that it was Appellee’s responsibility to 

obtain an injunction halting arbitration or asserting that Appellee must abide by the 

decision even where there was no court order to participate. Appellant refers to a 

change in the case status in the electronic docket summary as a “February 24, 2009 
-5-

Order” that “stayed the case pending arbitration.” (6/3/09 Defendant Wayne Homes’ 

Response to Plaintiff’s Notice of Appeal and Motion to Stay Decision, p. 5.) No such 

order appears in the record, however, the docket summary information provided by 

the clerk appears to list the case disposition as “(A) DIVERSION OR ARBITRATION” 

as of February 24, 2009. (Docket Sheet, p. 1.) Appellee filed a reply to the response 

and accompanying exhibits on June 5, 2009, detailing consistent communication with 

both Appellant and various employees of the private arbitration firm concerning the 

failure of the court to order arbitration and Appellee’s consequent refusal to arbitrate. 

In his reply, Appellee argued that the arbitration award obtained in the absence of 

one party and without a ruling by the court ordering arbitration was unenforceable. 

The matter was set for a hearing on June 16, 2009. No transcript or other evidence 

concerning the hearing was transmitted with the record. 

{¶10} A post-hearing magistrate’s decision was filed on July 1, 2009. The 

magistrate found that six days after Appellee filed suit, Appellant had filed a demand 

for arbitration with the American Arbitration Association (“AAA”) and that subsequent 

motions to dismiss and for stays were filed in the common pleas court but that no 

motion for stay was decided prior to Appellant’s May 20, 2009 motion seeking 

confirmation of the arbitration award. The magistrate noted that Appellee’s May 15, 

2009 filing included objections to the arbitration process, but that Appellee had not 

expressly requested to vacate the award. The magistrate ordered both parties to 

provide “legal authority pertaining to the jurisdiction of the AAA to proceed with 

arbitration of a contractual dispute * * * before a ruling by this Court upon 

Defendant’s motion to dismiss or stay and before a ruling on Plaintiff’s motion 
-6-

to strike or request for binding arbitration” by July 27, 2009, and a second 

hearing was set. 

{¶11} In its court ordered response, filed one day late, Appellant 

acknowledged that the arbitration provisions governing the proceedings allow 

motions for stay and motions to compel a party to participate in arbitration. Appellant 

also recognized that these provisions do not provide for or require that the party 

opposing arbitration has the burden to file some protective motion to stop arbitration. 

The magistrate’s March 16, 2010 decision denied Appellant’s motion to confirm the 

arbitration award, granted Appellee’s motion to vacate the award, and set an April 14, 

2010 hearing to determine whether an executed contract between the parties 

included a binding and enforceable arbitration clause. Appellant filed timely 

objections to the decision but made no request for findings of fact or conclusions of 

law. Appellee filed a motion in support of the decision and Appellant, without seeking 

leave, filed a sur reply. 

{¶12} The trial court adopted the magistrate’s decision in its entirety. The 

court denied Appellant’s application for an order confirming the arbitration award, and 

instead vacated the award and taxed costs to Appellant in a judgment entry dated 

November 2, 2010. Appellant filed a timely notice of appeal of this judgment entry. 

Interestingly, on November 10, 2010 the magistrate granted Appellant’s motion for 

stay pending arbitration. This November 10, 2010 determination has no bearing on 

the issues before us, which involves the trial court’s decision to vacate the unilateral 

award. 

Argument and Law
-7-

ASSIGNMENT OF ERROR

THE TRIAL COURT’S RULING DENYING DEFENDANT’S 

APPLICATION FOR ORDER CONFIRMING ARBITRATION AWARD 

AND VACATING THE ARBITRATION AWARD IS ERRONEOUS AS A 

MATTER OF LAW.

{¶13} The issue before us is the propriety of a trial court’s decision to vacate 

an arbitration award gained without the participation of a party and in the absence of 

a court order, while the matter was pending in court. The alleged right to arbitrate in 

lieu of litigation at issue here is based in contract. Because “arbitration is a matter of 

contract * * * a party cannot be required to submit to arbitration any dispute which he 

has not agreed so to submit. * * * This axiom recognizes the fact that arbitrators 

derive their authority to resolve disputes only because the parties have agreed to 

submit such grievances to arbitration.” Council of Smaller Ents. v. Gates, McDonald 

& Co., 80 Ohio St.3d 661, 665, 687 N.E.2d 1352 (1998) quoting AT&T Technologies, 

Inc. v. Communications Workers of America, 475 U.S. 643, 648-649, 106 S.Ct. 1415, 

89 L.Ed.2d 648 (1986). Although the arbitrator’s authority to decide an issue is 

created by contract, without a party’s voluntary participation the arbitrator has no 

authority to compel participation. Where a party seeks to enforce a contractual right 

to arbitrate, the mechanism for enforcement is a court order. R.C. 2711.03. 

Similarly, although Ohio law gives an arbitrator the power to issue subpoenas, if an 

individual does not respond to the subpoena, the parties must petition the court for 

enforcement. R.C. 2711.06. 
-8-

{¶14} When a claim is brought in court and a party to the suit seeks to end or 

stay the proceeding by claiming that the matter should instead be submitted to 

arbitration, “prior to making any determination regarding the arbitrability of any issue 

raised by the parties’ claims, a court must first determine whether the written 

arbitration agreement being invoked is in fact enforceable under basic contract 

precepts.” Benjamin v. Pipoly, 155 Ohio App.3d 171, 2003-Ohio-5666, 800 N.E.2d 

50, ¶31. “This determination must begin with application of fundamental principles of 

state contract law.” Id. Before transferring jurisdiction over the case to an arbitration 

panel, “the statute clearly mandates the trial court to decide” several preliminary 

issues: (1) whether an agreement to arbitrate exists, (1) whether the agreement is 

enforceable, and (3) whether an enforceable arbitration agreement actually binds the 

specific parties involved in the suit. Bradley Dev. Co., Inc. v. Northern Ohio Sewer 

Contracting, Inc., 9th Dist. No. 03CA008249, 2003-Ohio 6123, ¶10. 

{¶15} In Council of Smaller Ents., supra, the Ohio Supreme Court set forth 

parameters to determine the arbitrability of a given dispute. We have once before 

condensed these parameters into a set of guidelines that courts must follow: “(1) 

arbitration is a matter of contract and a party cannot be required to submit to 

arbitration any dispute which he has not agreed to submit; (2) the question whether a 

particular claim is arbitrable is one of law for the court to decide; (3) when deciding 

whether the parties have agreed to submit a particular claim to arbitration, a court 

may not rule on the potential merits of the underlying claim; and, importantly, (4) 

when a contract contains an arbitration provision, there is a presumption of 

arbitrability in the sense that an order to arbitrate the particular grievance should not 
-9-

be denied unless it may be said with positive assurance that the arbitration clause is 

not susceptible of an interpretation that covers the asserted dispute.” Hoppel v. 

Feldman, 7th Dist. No. 09 CO 34, 2011-Ohio-1183, ¶27 citing Council at 665-666. 

Only after review of an existing arbitration agreement between the two parties that 

covers the subject matter of the dispute may a trial court stay a court proceeding and 

transfer jurisdiction to arbitration. On the other hand, if the court finds that no valid 

arbitration agreement exists between the parties, the matter remains with the court. 

If the court finds a defect in what purports to be an arbitration agreement, the matter 

remains with the court. Even where the court finds a valid agreement, if that 

agreement does not cover the subject matter of the dispute, the matter remains with 

the court. 

{¶16} When a party, generally plaintiff, has waived the contractual right to 

arbitrate by filing suit and the other party seeks to enforce it, the “party seeking to 

enforce an arbitration provision may choose to move for a stay under R.C. 2711.02, 

or to petition for an order for the parties to proceed to arbitration under R.C. 2711.03, 

or to seek orders under both statutes.” Maestle v. Best Buy Co., 100 Ohio St.3d 330, 

2003-Ohio-6465, 800 N.E.2d 7, ¶18. Revised Code section 2711.02 provides: 

(B) 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 
-10-

agreement, provided the applicant for stay is not in default in 

proceeding with arbitration. 

(C) * * * an order under division (B) of this section that grants or denies 

a stay of a trial of any action pending arbitration, including, but not 

limited to, an order that is based upon a determination of the court that 

a party has waived arbitration under the arbitration agreement, is a final 

order and may be reviewed, affirmed, modified or reversed on appeal. 

{¶17} Revised Code section 2711.03 provides: 

The party aggrieved by the alleged failure of another to perform under a 

written agreement for arbitration may petition any court of common 

pleas having jurisdiction of the party so failing to perform for an order 

directing that the arbitration proceed in the manner provided for in the 

written agreement. * * * The court shall hear the parties, and, upon 

being satisfied that the making of the agreement for arbitration or the 

failure to comply with the agreement is not in issue, the court shall 

make an order directing the parties to proceed to arbitration in 

accordance with the agreement. 

If the making of the arbitration agreement or the failure to perform it is in 

issue in a petition filed under division (A) of this section, the court shall 

proceed summarily to the trial of that issue. * * * [E]ither party * * * may 

demand a jury trial of that issue. 
-11-

{¶18} Action under either provision triggers the trial court’s duty to “determine 

ultimately whether an arbitration provision is enforceable (and to be ‘satisfied’ that the 

relief sought is appropriate before issuing the order).” Maestle, supra at ¶17-18. But 

the “statutes are separate and distinct provisions and serve different purposes.” 

When a party seeks to enforce an arbitration agreement, action under both provisions 

may be necessary. Id. at ¶17. 

{¶19} As we explained in Hoppel: “As a general rule, either party to a 

contract of arbitration may waive the contractual right to arbitrate. For instance, a 

plaintiff waives the right to arbitrate by filing a complaint. For the defendant, the right 

to arbitrate can be preserved by seeking enforcement of the arbitration clause. 

Failure to move for a stay pursuant to R.C. 2711.02, coupled with responsive 

pleadings, will constitute a defendant's waiver.” (Internal citations omitted). Hoppel

at ¶44. “R.C. 2711.03 provides that a party cannot actually be compelled to arbitrate 

in the absence of a court order. Thus, a party who volunteers to submit a claim to 

arbitration is generally estopped from denying the arbitrator’s authority after an 

adverse award has been issued.” E.S. Gallon Co., L.P.A. v. Deutsch, 142 Ohio 

App.3d 137, 141, 754 N.E.2d 291 (2001). Various Ohio courts, including this one, 

have held that a party who voluntarily submits to arbitration and acknowledges the 

authority of the arbitrator is estopped from raising lack of authority or lack of 

jurisdiction at a later date. Creatore v. Robert W. Baird & Co., 154 Ohio App.3d 316, 

2003-Ohio-5009, 797 N.E.2d 127, ¶12, also Jefferson Cty. Sheriff v. Ohio 

Patrolmen’s Benevolent Assn., 7th Dist. No. 05 JE 39, 2006-Ohio-1055, ¶34. 
-12-

{¶20} If a party to an arbitration agreement voluntarily participates in the 

arbitration of a dispute pursuant to the agreement, or is ordered by the court to 

participate, he is bound by the arbitrator’s decision. By participating voluntarily, or by 

signing a valid agreement and being compelled to participate, a party limits his ability 

to modify or avoid the decision of the arbitrator to those grounds provided by statute. 

A party to a valid arbitration agreement may be bound to accept an arbitrator’s 

decision even when it includes errors of fact or law; the extremely narrow review 

allowed by law may not provide relief. “It is only when the arbitrator has overstepped 

the bounds of his or her authority that a reviewing court will vacate or modify an 

award.” Queen City Lodge No. 69, Fraternal Order of Police, Hamilton Cty., Ohio, 

Inc. v. Cincinnati, 63 Ohio St.3d 403, 407, 588 N.E.2d 802 (1992). “For our 

purposes, the converse is also true−if the arbitrator has not exceeded his or her 

powers, the award should not be vacated or modified, absent any of the other 

circumstances in R.C. 2711.10 and 2711.11 (such as corruption, fraud, misconduct, 

partiality, or material mistake.)” Id. The grounds necessary to vacate an arbitration 

award are found in the statute: 

2711.10 Court may vacate award. 

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: 

The award was procured by corruption, fraud, or undue means. 
-13-

There was evident partiality or corruption on the part of the 

arbitrators, or any of them. 

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. 

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. 

If an award is vacated and the time within which the agreement 

required the award to be made has not expired, the court may 

direct a rehearing by the arbitrators. 

{¶21} Appellant argues that, despite statutory provisions and caselaw that 

explicitly identify the mechanisms necessary to enforce a contractual arbitration 

clause, the burden to enjoin arbitration is on the party who does not wish to arbitrate 

and is challenging the validity of the arbitration clause. However, both the Ohio 

legislature and the Supreme Court have clearly placed the burden on Appellant, as 

the party seeking arbitration, to first obtain enforcement of the clause in a court with 

jurisdiction over the matter by securing a court order. No requirement or mechanism 

exists for Appellee to enjoin an arbitration that Appellant commenced after suit was 
-14-

filed prior to obtaining an order to arbitrate. In fact, Appellee’s participation in the 

arbitration, depending on degree, might operate to waive his objections to arbitration 

in the trial court. Hence, Appellant has the burdens reversed here. It was not 

Appellee’s duty to stop the arbitration process. Instead, it was Appellant’s duty to first 

obtain a court order to arbitrate before proceeding through the arbitration process. 

{¶22} Arbitration is not a substitute for judicial process, nor does the process 

followed by an arbitrator vindicate a litigant’s due process rights. These are functions 

of government. Arbitration is an extra judicial process: a way, in theory, to avoid the 

cost and time of litigation. Arbitration clauses cannot be enforced in the absence of 

some voluntary act by the parties, who presumably made a genuine choice to 

arbitrate, rather than use the courts, when negotiating their contracts. Academy of 

Medicine of Cincinnati v. Aetna Health, Inc., 108 Ohio St.3d 185, 842 N.E.2d 488 

(2006). In the absence of voluntary participation by both parties, such a clause 

cannot be enforced without court action. Just as an arbitrator’s power to subpoena 

witnesses is not equal to a court’s power to compel the appearance of parties and 

the parties must ask the court to enforce the subpoena, where a party seeks to 

enforce an arbitration clause over the objections of the other party to the agreement, 

the party seeking to arbitrate must first prove the validity of the clause and seek 

enforcement in court according to the procedures outlined by the legislature. R.C. 

2711.03. 

{¶23} Appellant attempts to explain its decision to ignore the judicial 

proceeding and to coerce Appellee into arbitration by citing to the February 24, 2009 

change in the case disposition listed in the docket as the basis for its actions. 
-15-

Although the disposition may have created some momentary confusion, the efforts of 

Appellant and the AAA to coerce Appellee into participating in arbitration significantly 

predate the summary change in the docket. Similarly, the instant lawsuit predates 

Appellant’s arbitration demand. Evidence of efforts to coerce arbitration prior to 

February 24, 2009 include a December 5, 2008 letter faxed by Appellee’s counsel to 

the AAA, apparently in response to a fax Appellee had received, informing the 

organization that a lawsuit had been filed and that his client would not participate in 

the arbitration process. Later the AAA sent a January 13, 2009 letter to both parties, 

referencing a December 22, 2008 letter sent by Appellant (which does not appear in 

the record), concerning the pending court case and arbitration proceeding. In the 

January letter the AAA indicated that in the absence of an agreement by the parties 

or a court order, arbitration would proceed according to the organization’s rules 

although the parties could renew objections once an arbiter was appointed. The AAA 

letter also gave the parties a January 20, 2009 deadline to submit a list of possible 

arbitrators, and informed them that a $1,000.00 fee, to be split between the parties, 

was due on January 27, 2009. Appellee responded to this letter on January 14, 

2009, again stating that he would not participate in arbitration until ordered to do so 

by the court. He also explained that he had never received an executed copy of the 

contract containing the alleged arbitration agreement and that the matter was 

pending in court. By February 6, 2009, despite Appellee’s clear refusal to participate, 

a preliminary hearing was set by the arbitrator for February 13, 2009. All of this 

occurred prior to any action by the trial court, and prior to any change in the case 

disposition on the docket. 
-16-

{¶24} The arbitrator’s February 13, 2009 letter to AAA indicates that Appellant 

appeared for the February 13, 2009 teleconference but Appellee did not and that 

deadlines were set for an exchange of documents in the absence of Appellee. Also 

on February 13, 2009, Appellant made his first appearance in the lawsuit by filing his 

motion for stay pending arbitration. The facts presented by Appellant reflect a singleminded focus on arbitration and predated any change in the information reflected in 

the docket. It continued despite the fact that no order was issued by the court. The 

case notation in the docket is irrelevant to Appellant’s attempts to force Appellee’s 

participation in arbitration. More importantly, because the disposition in the docket is 

not a court order or judgment of the court, on which Appellant would be genuinely 

entitled to rely, in the absence of a journalized order or judgment he would have done 

so to his own detriment. 

{¶25} “Dockets and journals are distinct records kept by clerks;” a court, 

however, speaks only through its journal. (Internal citation omitted.) State ex rel. 

White v. Junkin, 80 Ohio St.3d 335, 337 (1997). The common pleas clerk of courts is 

charged by R.C. 2303.12, to “keep at least four books. They shall be called the 

appearance docket, trial docket, and printed duplicates of the trial docket * * * journal, 

and execution docket. * * * He shall keep an index to the trial docket and to the 

printed duplicates of the trial docket and of the journal direct, and to the appearance 

docket, record, and execution docket, direct and reverse.” The clerk is similarly 

charged by the Ohio Supreme Court’s Superintendence Rules which requires that 

clerks maintain four separate categories of records: “an index, docket, journal, and 

case files in accordance with Sup. R. 26(B).” Sup.R. 26.03(B)(1). 
-17-

{¶26} The “case file” under the rule is a “compendium of original documents 

filed in an action or proceeding in a court, including the pleadings, motions, orders, 

and judgments of the court” and the “journal” is “a verbatim record of every order or 

judgment of a court.” Sup.R. 26(B). 

{¶27} The “docket” as it pertains to a common pleas court is prepared and 

maintained by the clerk and is required to include the “[n]ames and addresses of all 

parties in full”; “[n]ames, addresses, and Supreme Court attorney registration 

numbers of all counsel”; “issuance of documents for service upon a party and the 

return of service or lack of return” as well as a “brief description of all records and 

orders filed in the proceeding, the time and date filed, and a cross reference to other 

records as appropriate”; “[a] schedule of court proceedings for the division and its 

officers to use for case management”; “[a]ll actions taken by the division to enforce 

orders or judgments; and * * * [a]ny information necessary to document the activity of 

the clerk of the division regarding the case.” Sup.R. 26.03(C). 

{¶28} As this Court recently explained in State v. Roepke, 7th Dist. No. 10 MA 

138, 2011-Ohio-6369, the general index and docket created by the clerk is “not the 

same as a journal.” Id. at ¶18. While the docket is prepared and maintained by the 

clerk, the “court speaks through its journals and an entry is effective only when it has 

been journalized. Civ. R. 58 and Crim. R. 32(B). To journalize a decision means that 

certain formal requirements have been met, i.e., the decision is reduced to writing, it 

is signed by a judge, and it is filed with the clerk so that it may become a part of the 

permanent record of the court.” State v. Ellington, 36 Ohio App.3d 76, 77-78 (1987). 
-18-

{¶29} Journalization requirements are not empty formalities. Where a court 

issues a decision verbally or even in writing, but it has not been journalized, the 

judgment is not final. State v. Ginocchio, 38 Ohio App.3d 105, 526 N.E.2d 1366 

(1987). Similarly, a court will lose jurisdiction if it fails to journalize its decision within 

the period prescribed by statute. Ellington, paragraph two of the syllabus. A case 

disposition entered by a clerk that does not reflect a properly journalized order or 

judgment of the court has no force or effect under Ohio law. Even if the court in this 

case had ordered arbitration, without a properly journalized record of that order it 

would be ineffective. The case disposition notation in the docket is not a decision 

reduced to writing, signed by a judge, and filed with the clerk. Nothing short of a 

journalized judgment entry alters the fact that the trial court did not order arbitration. 

{¶30} In essence, because the trial court did not order arbitration, Appellee 

did not voluntarily participate and no valid arbitration occurred. Without Appellee’s 

voluntary or court-ordered participation the arbitrator exceeded his power and so 

imperfectly executed his duties that the resulting decision was in no way mutual, and 

severely prejudiced Appellee. Appellant failed to obtain a court order enforcing the 

alleged arbitration clause prior to proceeding with arbitration and Appellee refused to 

participate voluntarily. Hence, the trial court was correct to refuse to enforce the 

resulting invalid award. Appellant’s assignment of error is without merit and is 

overruled. 
-19-

Conclusion

{¶31} The record below supports the trial court’s decision to vacate the 

arbitration award. Appellant’s assignment of error is without merit and is overruled. 

The decision of the trial court is affirmed and the matter remanded to the trial court 

for further proceedings in compliance with R.C. 2711.02 and .03, and consistent with 

this Court’s Opinion and the Ohio Supreme Court’s decision in Maestle v. Best Buy 

Co., 100 Ohio St.3d 330, 2003-Ohio-6465, 800 N.E.2d 7. Costs, including the full 

cost of the invalid arbitration, are taxed to Appellant. 

Donofrio, J., concurs. 

DeGenaro, J., concurs.