[Cite as Meyers v. Marks, 2011-Ohio-3523.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HENRY COUNTY 

 

WILLIAM R. MEYERS, 

 PLAINTIFF-APPELLANT, 

 -and- CASE NO. 7-10-13 

W R MEYERS CO INC., 

 PLAINTIFF-APPELLEE, 

 v. O P I N I O N 

JERRY A. MARKS, ET AL., 

 DEFENDANTS-APPELLEES. 

 

Appeal from Henry County Common Pleas Court 

Trial Court No. 09 CV 0186 

Judgment Affirmed 

Date of Decision: July 18, 2011 

 

APPEARANCES: 

George C. Rogers for Appellant 

Thomas P. Killam for Appellees, Jerry A. Marks and Southpoint 

Business Park, LLC 
Case No. 7-10-13 

-2- 

ROGERS, P.J. 

{¶1} Plaintiff-Appellant, William Meyers, appeals from the judgment of the 

Court of Common Pleas of Henry County ordering specific issues within the case 

to arbitration. Meyers contends that the trial court erred in ordering the parties to 

arbitration, that the trial court erred in ordering arbitration of the claim that 

Defendant-Appellee, Jerry Marks,1

 had acquired membership rights in the limited 

liability company, and that the trial court erred in denying his motion for leave to 

dismiss the amended complaint. Based on the following, we affirm the judgment 

of the trial court. 

{¶2} In 2001, Meyers, Marks, and David Roberts entered into an operating 

agreement (“Agreement”) for Southpoint Business Park (“Southpoint”), an Ohio 

limited liability company.2

 Under this Agreement, Meyers, Marks, and Roberts 

each had a thirty-three and one-third percent interest in Southpoint. Agreement, p. 

10. In 2006, the Agreement was amended (“Amended Agreement”) to reflect that 

Meyers and Marks purchased Roberts’ membership interest in Southpoint.3

 

Consequently, Meyers and Marks each have fifty percent interest in Southpoint. 

Amended Agreement, pp. 3-4. 

 

1

 Jerry Marks is also referred to as Tony. 

2

 Prior to being named Southpoint, the company was originally known as R & T Leasing, LLC and MRT 

Leasing, LLC. 

3

 Although the Amended Agreement contained other changes to the original Agreement, none of those 

changes are pertinent to the disposition of this case. 
Case No. 7-10-13 

-3- 

{¶3} In July 2009, Meyers filed a complaint (“original complaint”) for 

judicial dissolution of Southpoint. Meyers’ original complaint, in pertinent part, 

alleged that Marks: 

[C]ommitted acts that have not been in the best interest of 

[Southpoint], * * * has failed to account for [Southpoint] funds, 

has failed and refused to provide [Southpoint’s] contract and 

financial records, has failed and refused to inform William R. 

Meyers regarding [Southpoint] business decisions * * * has 

failed and refused to pay his capitol (sic) contribution for his 

share of [Southpoint]. 

Meyers’ Original Complaint, p. 3. As a result of Marks’ alleged failures, Meyers 

alleged that it was no longer reasonably practical to carry on the business of 

Southpoint and requested judicial dissolution of Southpoint. Meyers also alleged 

that Marks was not a member of Southpoint because he had not paid any portion 

of his initial capital contribution. In addition to requesting judicial dissolution of 

Southpoint, Meyers requested that a receiver be appointed to Southpoint to 

manage its affairs and prepare it for dissolution. 

{¶4} In September 2009, Marks filed a motion to stay the proceedings and 

compel mediation and, if needed, arbitration. Marks argued that the claims 

asserted in Meyers’ complaint arise under or by reason of the Agreement and 

must, pursuant to provision 9.17 of the Agreement, be resolved via mediation and, 

if needed, arbitration. Provision 9.17 of the Agreement states in pertinent part: 
Case No. 7-10-13 

-4- 

With respect to any controversy or claim arising under or by 

reason of this Agreement or the breach of it, the parties first 

shall submit the same to mediation with a qualified mediator 

selected by their mutual agreement. If such controversy or 

claim cannot be settled by mediation, the same shall be settled by 

binding arbitration as set forth in the Ohio Revised Code. * * * 

Agreement, pp. 35-36. 

{¶5} In response to Marks’ motion to stay the proceedings and compel 

mediation and arbitration, Meyers filed a motion in opposition arguing, in 

pertinent part, that judicial dissolution of a limited liability company is not 

arbitrable, as the Revised Code limits authority to dissolve a limited liability 

company to the court of common pleas. Meyers further argued that determination 

of whether Marks is a member of Southpoint is not arbitrable, and requested the 

trial court to retain jurisdiction to determine the parties’ respective rights in 

Southpoint. 

{¶6} In response to Meyers’ motion in opposition, Marks argued, in 

pertinent part, that dissolution is arbitrable, due to the breadth of the Agreement’s 

arbitration provision. Marks further argued that the declaratory judgment Meyers 

sought concerning the parties’ rights in Southpoint presents an arbitrable issue. 

{¶7} In response to Marks’ responsive motion, Meyers, in pertinent part, 

reasserted his argument that the trial court retains exclusive jurisdiction to 
Case No. 7-10-13 

-5- 

judicially dissolve a limited liability company. Specifically, Meyers referred to 

the Agreement’s dissolution provision, which states: 

7.1 Events of Dissolution: The Company shall be dissolved upon 

the happening of any of the following events: 

7.1.1. Upon the unanimous written agreement of the Members; 

or 

7.1.2 Upon the occurrence of a Permitted Voluntary 

Withdrawal, a Transfer or an Involuntary Withdrawal * * * 

Agreement, pp. 28-29. In light of this provision, Meyers argued that if he had 

sought dissolution in response to either event anticipated in the Agreement, then 

arbitration would be proper. Since, however, Meyers is not seeking judicial 

dissolution for either of the events anticipated in the Agreement, he argued that the 

trial court is exclusively vested with jurisdiction to dissolve Southpoint. 

{¶8} Subsequently, Meyers filed a motion to appoint a receiver, which 

Marks opposed via motion. 

{¶9} In November 2009, Meyers filed an amended complaint (“amended 

complaint”) which realleged that it was not reasonably practical to carry on the 

business of Southpoint, and requested judicial dissolution of Southpoint. 

Specifically, Meyers alleged that it was not reasonably practical to carry on the 

business of Southpoint due to deadlock in Southpoint’s management. Meyers also 

reasserted his request that the trial court appoint a receiver to Southpoint. 
Case No. 7-10-13 

-6- 

{¶10} On February 2, 2010, the trial court filed an order addressing 

Meyers’ motion to appoint a receiver and Marks’ motion to stay proceedings and 

to compel mediation. The trial court granted Meyers’ motion to appoint a 

receiver. The trial court also granted Marks’ motion to stay the proceedings and 

compel mediation, stating in pertinent part: 

Defendants’ Motion to Stay Proceedings is granted. Except for 

the issue of judicial dissolution of [Southpoint], the remaining 

claims in Plaintiff’s Amended Complaint shall be referred for 

mediation to the Court’s Magistrate * * *. This Court reserves 

jurisdiction on the issue of judicial dissolution. 

February 2, 2010, Order4

, pp. 3-4. The trial court further stated that the parties 

were permitted to conduct discovery during the stay in order to facilitate 

mediation. 

{¶11} Subsequently, Marks filed a motion to authorize the receiver to sell 

Southpoint’s assets. Marks acknowledged that he and Meyers no longer wished to 

do business together. Meyers filed a motion concurring with Marks’ motion 

authorizing the receiver to sell Southpoint’s assets. Subsequently, the trial court 

granted Marks’ motion to authorize the receiver to sell Southpoint’s assets. 

{¶12} In April 2010, Meyers filed a motion entitled “Plaintiff’s Motion for 

Declaration that Defendant Tony Marks has No ‘Membership Rights’ in 

 

4

 Although the trial court captioned many of its orders as judgment entries and the parties persist in 

referring to them as such, most are interlocutory orders and should not be captioned judgment entry. A 

judgment is a final or appealable order. See Civ.R. 54(A). 
Case No. 7-10-13 

-7- 

Southpoint Business Park LLC, Having Never Made Nor Delivered to the 

Company His Initial Capital Contribution”5

 arguing that Marks had no 

membership rights in Southpoint, because he never paid his initial capital 

contributions to Southpoint. The provision setting forth Marks’ initial capital 

contributions reads, in pertinent part: 

3.2 Initial Capital Contributions. Upon the execution of this 

Agreement, the Members shall contribute to the Company their 

respective Capital Contributions in the amounts set forth in 

Paragraph 3.1 above in the following manner: 

3.2.1 Tony shall execute and deliver to the Company his 

negotiable promissory note payable to the order of the Company 

in the amount of $100,000 * * *. Tony also shall contribute to 

the Company the rights and benefits of a certain Warehousing 

Agreement with Silgan Can Company, a Delaware corporation, 

which contribution the Members agree has a fair market value 

of One Hundred Thousand Dollars ($100,000). 

* * * 

When a Member’s Initial Capital Contribution has been made 

and delivered to the Company, his Membership Rights in the 

Company shall be deemed fully paid and non-assessable. 

Meyers, in support of his contention that Marks had not paid his initial capital 

contributions, cited to Marks’ interrogatory responses. The interrogatories and 

responses read, in pertinent part: 

Interrogatory No. 10. Provide a copy of the $100,000 note 

executing (sic) Mr. Marks, as part of his capital contribution in 

 

5

 Although not captioned as such, we interpret Meyers’ foregoing motion as a motion for partial summary 

judgment, and will refer to it as such for the remainder of this opinion. 
Case No. 7-10-13 

-8- 

[Southpoint]. Please include a copy of all checks or other 

evidence of these monthly payments made upon any such note 

over the last seven years. 

Response: There is no such note. As to the remainder of the 

request, see responsive documents produced on October 23 and 

27, 2009. 

Interrogatory No. 11. Please provide a copy of the assignment of 

any rights and interest in the Silgan lease to [Southpoint] and a 

deemed $100,000 contribution by Mr. Marks for his capital 

contribution to [Southpoint]. 

Response: There is no such written assignment of rights and 

interest. 

Defendant’s Responses to Plaintiff’s Interrogatories, p. 8. Construing Marks’ 

responses with the Agreement, Meyers argued that Marks had no membership 

rights in Southpoint, because such rights could only have been obtained had Marks 

paid his initial capital contributions. Accordingly, Meyers argued that without 

membership rights Marks could not participate in the management of Southpoint. 

{¶13} In May 2010, Marks filed a motion in opposition to partial summary 

judgment. Marks argued that he consented to dissolution of Southpoint rendering 

Meyers’ motion for partial summary judgment moot, that he had paid his initial 

capital contributions, and that Meyers was equitably estopped from denying him 

membership interest in Southpoint. With regard to his initial capital contributions, 

Marks acknowledged that he did not execute a promissory note (“Promissory 

Note”) in the amount of $100,000 to Southpoint, nor did he execute a written 
Case No. 7-10-13 

-9- 

assignment of the warehousing agreement with Silgan Can Company 

(“Warehousing Agreement”). Marks, however, argued that a note receivable, in 

the amount of $100,000, was booked as an asset of Southpoint, and has been paid 

in full. In support, Marks cited his affidavit and Southpoint’s general ledger. As 

to the Warehousing Agreement, Marks argued that he orally assigned his rights in 

the Warehousing Agreement, and that such assignment, although oral, was valid 

via the doctrine of part performance. 

{¶14} In response to Marks’ motion in opposition to partial summary 

judgment, Meyers argued that any evidence, other than the written assignment of 

the Promissory Note and Warehousing Agreement, is barred under the parol 

evidence rule. Meyers also argued that the Warehousing Agreement, because it 

would, by the terms of the Agreement, take longer than a year to complete, could 

not be orally transferred, because it would violate the statute of frauds. Meyers 

further argued that part or full performance of an oral assignment does not act as 

an exception to the statute of frauds. 

{¶15} On June 10, 2010, the trial court filed an order deferring ruling on 

Meyers’ partial motion for summary judgment pending mediation. 

{¶16} In that same month, Meyers filed a motion for leave to dismiss the 

amended complaint. Meyers stated that he could no longer assert the existence of 

a deadlock between himself and Marks, as Marks, due to his alleged failure to pay 
Case No. 7-10-13 

-10- 

his initial capital contributions, had no membership rights. Consequently, Meyers 

concluded that he was the sole member of Southpoint. 

{¶17} In response to Meyers’ motion for leave to dismiss the amended 

complaint, Marks argued that dismissal is prohibited pursuant to Civ.R. 66, 

because the trial court appointed a receiver. 

{¶18} On September 17, 2010, the trial court filed its judgment entry 

ordering the parties to arbitration. That entry also contained an order denying 

Meyers’ motion for leave to dismiss. The trial court stated, in pertinent part: 

Upon consideration thereof, the Court finds Plaintiff’s Notice of 

Dismissal to be without effect as Civil Rule 66 requires a Court 

Order to dismiss a case in which a receiver has been appointed. 

Plaintiff’s Motion for Leave of Court to Dismiss is DENIED. * * 

* 

The Court further finds that the parties desire to waive 

mediation and to proceed directly to arbitration of the issues in 

this case. The parties are therefore directed to proceed with 

arbitration of the issues in this case to include, but not limited 

to: 

1. The merits of Plaintiff, William R. Meyers’s (sic) claim that 

Defendant Marks has no membership rights in [Southpoint]; 

and 

2. The parties consent to dissolution of the LLC. 

{¶19} It is from this judgment Meyers appeals, presenting the following 

assignments of error for our review. 
Case No. 7-10-13 

-11- 

Assignment of Error No. I 

THE TRIAL COURT ERRED IN ITS JUDGMENT ENTRY 

OF FEB. 8, 2010, IN ORDERING THE COMPLAINT FOR 

JUDICIAL DISSOLUTION OVER WHICH IT HAD 

PREVIOUSLY RESERVED JURISDICTION, TO 

ARBITRATION.6

Assignment of Error No. II 

THE TRIAL COURT ERRED IN ITS JUDGMENT ENTRY 

OF FEB. 8, 2010 IN ORDERING THE ARBITRATION OF 

THE CLAIM THAT TONY MARKS HAD ACQUIRED NO 

MEMBERSHIP RIGHTS WHICH INCLUDES THE RIGHT 

TO PARTICIPATE IN THE MANAGEMENT IN 

SOUTHPOINT BUSINESS PARK, LLC. 

Assignment of Error No. III 

THE TRIAL COURT ERRED IN ITS JUDGMENT ENTRY 

OF SEPT. 27, 2010, DENYING PLAINTIFFS’ (SIC) MOTION 

FOR LEAVE TO DISMISS HIS COMPLAINT FOR 

JUDICIAL DISSOLUTION.7

 

{¶20} Due to the nature of the arguments raised by both parties, we will 

first address whether the September 17, 2010 judgment entry (“September 

Judgment Entry”) is a final appealable order. In addressing whether the 

September Judgment Entry is a final appealable order we will address Meyers’ 

 

6

 We note that the record contains no judgment entries dated February 8, 2010. Rather, we believe Meyers 

is referring to the trial court’s September 17, 2010 judgment entry ordering arbitration, thus we will address 

it as such. The same error appears in Meyers’ second assignment of error. 

7

 We note that the record contains no judgment entries dated September 27, 2010. Rather, we believe 

Meyers is referring to the trial court’s September 17, 2010 judgment entry denying his motion for leave to 

dismiss the amended complaint, thus we will address it as such. 
Case No. 7-10-13 

-12- 

third assignment of error. Thereafter, we will address Meyers’ first and second 

assignments of error together. 

Final Appealable Orders 

{¶21} In addressing whether the September Judgment Entry is a final 

appealable order we note that the trial court’s judgment contains two separate and 

distinct orders. The first order denies Meyers’ motion for leave to dismiss the 

amended complaint. The second order refers two specific issues to arbitration. 

{¶22} In his third assignment of error, Meyers argues that the trial court 

erred in denying his motion for leave to dismiss the amended complaint. Marks 

argues that the denial of Meyers’ motion for leave is not a final appealable order. 

We agree. 

{¶23} “An order is a final order * * * when * * * [that] order * * * affects a 

substantial right made in a special proceeding * * *.” R.C. 2505.02(B)(2). We 

begin by noting that cases dealing with judicial dissolution are special 

proceedings. See Tilberry v. Body (1986), 24 Ohio St.3d 117, 121. A substantial 

right “means a right that the United States Constitution, the Ohio Constitution, a 

statute, the common law, or a rule of procedure entitles a person to enforce or 

protect.” R.C. 2505.02(A)(1). Here, the substantial right is arguably Civ.R. 
Case No. 7-10-13 

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41(A)(1)8

, a rule of procedure, which provides, in pertinent part: “* * * [A] 

plaintiff, without order of court, may dismiss all claims asserted by that plaintiff 

against a defendant * * *.” However, a plaintiff’s ability to voluntarily dismiss the 

complaint is “subject to * * * Civ.R. 66 * * *.” Civ.R. 41(A)(1). Civ.R. 66 reads: 

An action wherein a receiver has been appointed shall not be 

dismissed except by order of the court. Receiverships shall be 

administered in the manner provided by law and as provided by 

rules of court. 

Civ.R. 66. Considering the foregoing language, we find that a plaintiff does not 

have a “substantial right” to dismiss an action wherein a receiver has been 

appointed, because such a dismissal requires an order of the court. Consequently, 

the trial court’s order denying Meyers’ motion for leave to dismiss the amended 

complaint is not a final appealable order, pursuant to R.C. 2505.02(B)(2). Thus, 

we are without jurisdiction to review the merits of Meyers’ third assignment of 

error. 

{¶24} Accordingly, Meyers’ third assignment of error is overruled. 

{¶25} We now turn to the trial court’s order referring the parties to 

arbitration. Marks argues that the order is not a final appealable order. 

Specifically, Marks argues that the order merely clarified the trial court’s February 

 

8

 Meyers initially filed a notice of dismissal of the amended complaint, purportedly pursuant to Civ.R. 

41(A)(1). However, Marks responded by filing a memorandum in opposition to the voluntary dismissal, 

alleging that Civ.R. 66 precluded dismissal without an order from the court. Thereafter, Meyers moved for 

leave to dismiss. 
Case No. 7-10-13 

-14- 

2, 2010 order (“February order”), which stayed the proceedings pending 

mediation. Consequently, Marks argues that the February order, not the 

September Judgment Entry, should have been appealed. We disagree. 

{¶26} A trial court’s decision to grant or deny a motion to stay pending 

arbitration is a final appealable order. R.C. 2711.02(C). The February order made 

reference to mediation, not arbitration. Although the September Judgment Entry 

does appear to clarify the issues referred to mediation, this fact is immaterial in 

determining whether the order within the September Judgment Entry ordering 

arbitration was a final appealable order. The order within the September 

Judgment Entry referring specific issues to arbitration was the first instance where 

the parties were ordered to arbitrate, thus it was a final appealable order, pursuant 

to R.C. 2711.02(C), and is properly before this Court. 

Assignments of Error Nos. I & II 

{¶27} In his first and second assignments of error, Meyers argues that 

judicial dissolution is not arbitrable, that the court must refer to the Revised Code, 

rather than the Agreement, to determine whether deadlock exists, that there are no 

disputed issues of fact, and that any evidence proffered by Marks in relation to his 

initial capital contributions is barred by the parol evidence rule and the statue of 

frauds. We disagree. 
Case No. 7-10-13 

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{¶28} In Council of Smaller Ent. v. Gates, McDonald & Co. (1998), 80 

Ohio St.3d 661, the Supreme Court of Ohio discussed the role of the court in 

determining the arbitrability of a dispute, stating: 

 “‘[T]he question of arbitrability - whether a[n] * * * agreement 

creates a duty for the parties to arbitrate the particular 

grievance - is undeniably an issue for judicial determination. 

Unless the parties clearly and unmistakably provide otherwise, 

the question of whether the parties agreed to arbitrate is to be 

decided by the court, not the arbitrator.’” 

Council of Smaller Ents., 80 Ohio St.3d, at 666, quoting AT & T Technologies, 

Inc. v. Communications Workers of Am. (1986), 475 U.S. 643, 649, 106 S.Ct. 

1415, 1418. Accordingly, a trial court’s determination concerning the arbitrability 

of a particular issue is reviewed de novo. McManus v. Eicher, 2d Dist. No. 2003-

CA-30, 2003-Ohio-6669, ¶11, citing Gaffney v. Powell (1995), 107 Ohio App.3d 

315, 319.

{¶29} Ohio case law strongly supports the arbitration of disputes. Williams 

v. Aetna Fin. Co., 83 Ohio St.3d 464, 471, 1998-Ohio-294. Arbitration clauses 

are “valid, irrevocable, and enforceable.” R.C. 2711.01(A). When a contract 

contains an arbitration provision, there is a presumption of arbitrability. Academy 

of Medicine of Cincinnati v. Aetna Health, Inc., 108 Ohio St.3d 185, 2006-Ohio657, ¶14. 
Case No. 7-10-13 

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{¶30} Since Southpoint’s Agreement contains an arbitration provision there 

is a presumption of arbitrability. Academy of Medicine of Cincinnati, 2006-Ohio657, at ¶14. The arbitration provision provides, in pertinent part: 

With respect to any controversy or claim arising under or by 

reason of this Agreement or the breach of it, the parties first 

shall submit the same to mediation with a qualified mediator 

selected by their mutual agreement. If such controversy or 

claim cannot be settled by mediation, the same shall be settled by 

binding arbitration as set forth in the Ohio Revised Code. * * * 

Agreement, pp. 35-36. The Ohio Supreme Court has held that the phrase “any 

claim or controversy arising out of the agreement” is the paradigm of a broad 

arbitration provision. Alexander v. Wells Fargo Fin. Ohio 1 Inc., 122 Ohio St.3d 

341, 2009-Ohio-2962, ¶13, quoting Academy of Medicine of Cincinnati, 2006-

Ohio-657, at ¶14. Such a provision must be enforced unless “it may be said with 

positive assurance that the arbitration clause is not susceptible of an interpretation 

that covers the asserted dispute.” Id. Any doubts as to coverage should be 

resolved in favor of coverage. Academy of Medicine of Cincinnati, 2006-Ohio657, at ¶14, quoting AT & T Technologies, Inc., 475 U.S. at 650. 

{¶31} Turning to Meyers’ first contention, Meyers argues that the trial 

court erred when it ordered the issue of judicial dissolution to arbitration. In 

support of his contention, Meyers cites Promedica Health Sys., Inc. v. Blanchard 

Valley Health Assn., et al., 6th Dist. L-06-1163, 2006-Ohio-6185. In Promedica, 
Case No. 7-10-13 

-17- 

Promedica Health Systems (“PHS”) filed a complaint seeking judicial dissolution, 

pursuant to R.C. 1702.52(A)(4), of a joint venture (“JV”) it had entered into with 

Blanchard Valley Health Association (“BVHA”) on grounds that there was 

deadlock in the management of the JV. BVHA filed a motion to stay the 

proceedings and order arbitration of PHS’s complaint for judicial dissolution, but 

the trial court denied the motion. BVHA appealed arguing that the trial court 

erred when it denied its motion to stay the proceedings. On appeal, the court 

found that the only dispute was whether PHS and BVHA were deadlocked in the 

management of the JV. Promedica Health Sys., 2006-Ohio-6185, at ¶20. The 

court also found that BVHA made absolutely no showing that the issue presented 

in PHS’s complaint was referable to arbitration, or that the case involved any 

contractual rights. Id. at ¶¶20, 24. In light of these findings the court affirmed the 

trial court’s judgment, stating that “the statutory right to dissolution in this case is 

entirely dependent upon the question of whether there exists a deadlock in the 

management of the [JV’s] corporate affairs. This question, and thus, the entirety 

of PHS’s claim for judicial dissolution, can certainly be adjudicated apart from, 

and without reference to, any contracts.” Id. at ¶32. 

{¶32} Having considered the facts in Promedica, we find that the trial 

court’s actions in the case at bar do not offend Promedica’s holding. The court in 

Promedica essentially affirmed the trial court’s determination that it should retain 
Case No. 7-10-13 

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jurisdiction over the issue of judicial dissolution, because such determination 

could be made without reference to the JV’s contract. Similarly, the trial court 

here, in its February order, specifically reserved jurisdiction over the issue of 

judicial dissolution. This reservation was not disturbed in the trial court’s 

September Judgment Entry. Accordingly, the issue of judicial dissolution was 

never referred to arbitration, and remains with the trial court. 

{¶33} In addition, the case at bar is distinguishable from Promedica. Like 

the trial court in Promedica, the trial court here was ultimately tasked with 

determining whether there was a deadlock in Southpoint’s management. Unlike 

Promedica, however, the trial court here, via Meyers’ partial motion for summary 

judgment, was faced with a threshold issue, whether Marks has membership rights 

in Southpoint. This distinguishing fact is crucial, as determination of whether 

Marks has membership rights in Southpoint is arguably a determination that 

cannot be made without reference to the Agreement. 

{¶34} The Agreement’s arbitration provision is broad. When an agreement 

contains a broad arbitration provision, the provision must be enforced unless “it 

may be said with positive assurance that the arbitration clause is not susceptible of 

an interpretation that covers the asserted dispute.” Alexander, 122 Ohio St.3d 341, 

2009-Ohio-2962, ¶13, quoting Academy of Medicine of Cincinnati, 2006-Ohio657, at ¶14. Meyers contends that there is no need to consider the Agreement, and 
Case No. 7-10-13 

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thus no need for arbitration, as the existence of management deadlock can be 

determined via statute. Specifically, Meyers’ cites R.C. 1705.24, which reads: 

Unless otherwise provided in writing in the operating agreement, 

the management of a limited liability company shall be vested in 

its members in proportion to their contributions to the capital of 

the company, as adjusted from time to time to properly reflect 

any additional contributions or withdrawals by the members. 

R.C. 1705.24 (Emphasis Added). This statute, however, is only operative where 

the operating agreement is silent as to the proportion of the members’ management 

rights. We cannot say with confidence that the Agreement before us does not set 

forth when and how a member obtains their membership/management rights, and 

the proportion of those rights. The Agreement contains provisions defining 

“Members”, “Membership Interest”, “Membership Rights”, as well as provisions 

setting forth the members’ initial capital contributions, the members’ percentage 

interest, the management of Southpoint, and other seemingly relevant provisions. 

The foregoing provisions appear to address when and how a member obtains their 

membership/management rights, and the proportion of those rights. Consequently, 

we find that the issue of when and how a member, i.e., Marks, obtains 

membership/management rights, as well as the proportion of those rights, is one 

that arises under or by reason of the Agreement, and, pursuant to the Agreement’s 

broad arbitration provision, must be arbitrated. 
Case No. 7-10-13 

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{¶35} Meyers’ remaining contentions assert that arbitration is inappropriate 

because there are no disputed issues of fact, and that evidence proffered by Marks 

demonstrating payment of his initial capital contributions is barred by the parol 

evidence rule and the statute of frauds. In addressing these contentions we must 

be mindful that the issue on appeal is narrow in scope, i.e., whether a particular 

issue is arbitrable. Anything beyond the issue of arbitrability is not properly 

before this Court. This includes Meyers’ remaining contentions. If this Court 

were to address the merits of these contentions we would be rendering an advisory 

opinion which is improper. Moreover, we are cognizant of the fact that Meyers’ 

remaining contentions are born from his partial motion for summary judgment. 

The trial court, in its June 10, 2010 order, explicitly deferred ruling on Meyers’ 

partial motion for summary judgment pending mediation. Although mediation has 

been abandoned for arbitration, the trial court’s June 10, 2010 order remains in 

effect. Thus, we find that the trial court retains jurisdiction over Meyers’ 

remaining contentions per its June 10, 2010 order. Accordingly, we are prohibited 

from addressing Meyers’ remaining contentions. 

{¶36} In light of the foregoing, we find that the trial court did not err by 

referring the issue of Marks’ membership/management rights to arbitration. 

Similarly, we find that the issue of consent to dissolution was also properly 
Case No. 7-10-13 

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referred to arbitration, as the Agreement addresses dissolution of Southpoint via 

the consent of its members. Agreement, p. 28. 

{¶37} Accordingly, Meyers’ first and second assignments of error are 

overruled. 

{¶38} Having found no error prejudicial to Meyers herein, in the particulars 

assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

PRESTON and WILLAMOWSKI, J.J., concur. 

/jlr