[Cite as Jatsek Constr., Co., Inc. v. Burton Scot Contrs., L.L.C., 2012-Ohio-3966.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 98142

JATSEK CONSTRUCTION CO., INC.

 PLAINTIFF-APPELLEE

vs. 

 

BURTON SCOT CONTRACTORS, LLC, ET AL.

DEFENDANTS-APPELLANTS

JUDGMENT: 

REVERSED AND REMANDED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-758171 

BEFORE: Jones, J., Blackmon, A.J., and Boyle, J. 

RELEASED AND JOURNALIZED: August 30, 2012 

ATTORNEYS FOR APPELLANTS 
Andrew J. Natale 

Philip J. Truax 

Frantz Ward LLP 

2500 Key Center 

127 Public Square 

Cleveland, Ohio 44114 

ATTORNEYS FOR APPELLEES 

For Jatsek Construction Co. 

John R. Christie 

Stafanik & Christie 

1375 East Ninth Street, Suite 2450 

Cleveland, Ohio 44114 

City of Warren

James A. Climer 

Mazanec, Raskin & Ryder Co, L.P.A. 

100 Franklin’s Row 

34305 Solon Road 

Solon, Ohio 44139 

For Cuyahoga County

Colleen Majeski 

Assistant County Prosecutor 

Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 

For Lorain County 

Daniel F. Petticord 

Lorain County Prosecutors Office 

225 Court Street, 3rd Floor 

Elyria, Ohio 44035 
LARRY A. JONES, SR., J.: 

{¶1} This case came to be heard upon the accelerated calendar pursuant to App.R. 

11.1 and Loc.R. 11.1. 

{¶2} Defendants-appellants, Burton Scot Contractors, L.L.C. and Westfield 

Insurance Company (collectively “Burton Scot”) appeal from the trial court’s judgment 

denying Burton Scot’s motion to stay proceedings pending arbitration. We reverse and 

remand. 

 I. Procedural History and Facts 

{¶3} In June 2011, plaintiff-appellee Jatsek Construction Company, Inc. initiated 

this action against the Burton Scot defendants and three other defendants: Cuyahoga 

County, Lorain County, and the city of Warren. According to the complaint, Burton Scot 

was the general contractor for three separate public improvement projects. The first 

project was for the resurfacing of Russia Road in Lorain County; the second project was 

for the resurfacing of Usher Road in Cuyahoga County; and the third project was for work 

to be completed for the Greenway bike trail (“Greenway project”) in the city of Warren. 

The Greenway project is the subject of this appeal. 

A. Jatsek’s Complaint Against Burton Scot Relative to the Greenway Project 

{¶4} According to Jatsek’s complaint, it was contacted by Burton Scot to submit a 

subcontractor bid for the Greenway project. Jatsek submitted a bid, but Burton Scot 

informed the company that it was attempting to find a different contractor for the work. 

Jatsek’s complaint further alleged that Burton Scot contacted Jatsek again and submitted a 
proposed subcontract agreement for some, but not all, of the work previously bid on by 

Jatsek. 

{¶5} Jatsek alleged that it informed Burton Scot that, because of the lapse of time 

from the initial discussions to the proposed amended contract, it was “unable to perform 

the tasks as originally bid.” Complaint, ¶ 40. According to Jatsek’s complaint, “Burton 

Scot requested that Jatsek perform whatever duties it was able to, with the understanding 

that the bid prices for the work performed would be honored.” Id. at ¶ 41. 

{¶6} The complaint alleged that Jatsek modified the proposed subcontract and 

submitted it to Burton Scot. “Jatsek did complete the tasks it agreed to in the modified 

subcontract agreement, although Burton Scot never executed the document and thus no 

contract was ever formed.” Id. at ¶ 43. Jatsek further alleged that it was not paid for 

its work. According to Jatsek, it “understood, by the acts, words, and deeds of Burton 

Scot that it would be paid the unit prices as set forth in the original bid and in the various 

proposed subcontracts.” Id. at ¶ 44. 

B. Burton Scot’s Answer and Motion to Stay 

{¶7} Burton Scot answered, and relative to the Greenway project, admitted that 

Jatsek performed work on the project, but had not been paid. In its motion to stay 

proceedings pending arbitration, Burton Scot contended that the subcontract agreement 

required mandatory and binding arbitration. Burton Scot submitted the affidavit of its 

vice president in support of the motion to stay. The vice president averred that on May 

26, 2010, Jatsek submitted a bid proposal for the Greenway project, Burton Scot accepted 
the bid on August 5, 2010, and issued the written contract for the project to Jatsek on 

September 17, 2010. 

{¶8} The vice president further averred that Jatsek began working at the Greenway 

project on October 18, 2010, and on October 30, 2010, issued its first invoice for work 

performed on the project. According to the vice president, on November 7, 2010, Jatsek 

executed and returned the written contract. In executing the contract, however, Jatsek 

made handwritten modifications to certain provisions in the contract. The vice president 

averred that those modifications were not acceptable to Burton Scot and Burton Scot did 

not consent in writing to them. 

{¶9} Burton Scot also submitted the written contract in support of its motion to 

stay. Paragraph 31 of the contract provided in relevant part as follows: 

At the sole option of Contractor, any and all claims, disputes, controversies, 

demands, and causes of action of whatever nature, kind or description 

arising from or relating to this Agreement, including without limitation 

contract, equity, tort or legal claims, and further including without limitation 

claims relating to rights of payment or interpretations hereof, shall be 

submitted to mandatory and binding arbitration in the Cleveland Tribunal of 

the American Arbitration Association in accordance with the Construction 

Industry Arbitration Rules of the American Arbitration Association. The 

decision and Award of the Arbitrator(s) shall be final and binding on 

Contractor and Subcontractor, and the decision and Award may be reduced 

to judgment and enforced in any Court of competent jurisdiction. 

{¶10} The contract was signed and dated (November 7, 2010) by Jatsek’s vice 

president, but was not signed by a Burton Scot representative. The contract had 

handwritten changes, but not to the arbitration provision. 

{¶11} Jatsek opposed the motion to stay. The company argued that Burton Scot 
never executed the agreement, but even if a contract was formed, Jatsek was entitled to 

judgment because there was no dispute that it performed the work agreed to under the 

contract, but had not been paid. 

{¶12} The trial court ruled that no contract existed for the Greenway project. The 

motion for stay was therefore denied as it related to that project.1

 For its sole assigned 

error, Burton Scot contends that: “The trial court erred as a matter of law in denying 

Appellant Burton Scot Contractors, LLC’s Motion to Stay Proceedings Pending 

Arbitration as it relates to the City of Warren Greenway Bike Trail public improvement 

project in Warren, Ohio.” 

 II. Law and Analysis 

{¶13} Burton Scot notes that there is a split of authority on whether this court’s 

standard of review is abuse of discretion or de novo. Burton Scot contends that the split 

is “immaterial” to this case because reversal is required under either standard. Jatsek, on 

the other hand, contends that this court has “consistently reviewed the denial of a motion 

to stay proceedings under an abuse of discretion standard.” 

{¶14} In McCaskey v. Sanford-Brown College, 8th Dist. No. 97261, 

2012-Ohio-1543, this court recently held that the standard of review in these type of cases 

depends on the type of question raised regarding the applicability of the arbitration 

 1

A stay was granted, however, relative to the other two projects. Jatsek had also filed a 

motion for partial summary judgment relative to the Greenway project, which the trial court granted. 

That portion of the trial court’s judgment is not a final appealable order and therefore is not now 

before this court. 
provision. This court noted that when the issue to be resolved involves “whether a party 

has agreed to submit an issue to arbitration,” a de novo standard applies. Id. at ¶ 7, citing 

Shumaker v. Saks Inc., 163 Ohio App.3d 173, 2005-Ohio-4391, 837 N.E.2d 393 (8th Dist.) 

and Vanyo v. Clear Channel Worldwide, 156 Ohio App.3d 706, 2004-Ohio-1793, 808 

N.E.2d 482 (8th Dist.). 

{¶15} In this case, the trial court ruled that no contract existed for the Greenway 

project; that is, that the parties did not agree to submit to arbitration any disputes relative 

to the project. Thus, we review the trial court’s decision de novo. A de novo review 

involves “an appeal in which the appellate court uses the trial court’s record but reviews 

the evidence and law without deference to the trial court’s rulings.” Black’s Law 

Dictionary 94 (7th Ed.2001). The issue to be decided in our review is whether a contract 

existed between Jatsek and Burton Scot for the Greenway project. We find that it did. 

{¶16} In so finding, we follow this court’s precedent as set forth in G. Herschman 

Architects, Inc. v. Ringco Mfg. Co., Inc., 8th Dist. No. 67758, 1995 Ohio App. LEXIS 

1940 (May 11, 1995). In Herschman, Herschman and Ringco entered into discussions in 

an attempt to reach an agreement through which Herschman would provide Ringco with 

architectural services in the design of department store display stands. Pursuant to their 

discussions, Herschman faxed to Ringco a proposal, dated June 23, 1992, in which it 

outlined the scope of, as well as fees for, the project. 

{¶17} The parties engaged in negotiations of the June 23 proposal, and on June 29, 

1992, Herschman sent a revised proposal to Ringco. The parties did not sign the revised 
June 29 proposal; nonetheless, Herschman began working on the project as outlined in the 

proposal. Herschman exceeded the number of hours as set forth in the June 29 proposal 

in performing its duties. The parties attempted to come to an agreement on the 

reasonable value of Herschman’s services, but did not, and Herschman filed suit. The 

matter proceeded to trial, and the trial court entered judgment in favor of Herschman. 

{¶18} On appeal, Ringco argued that the parties never agreed to Herschman’s June 

29 proposal and, therefore, no written contract between the parties existed. This court 

disagreed and found that the “terms of the final agreement were reflected in the June 29, 

1992 proposal.” Id. at *10. In so finding, this court reasoned that “conduct sufficient to 

show agreement, including performance, is a reasonable mode of acceptance” of an offer. 

Id. at *9, citing Am. Bronze Corp. v. Streamway Prod., 8 Ohio App.3d 223, 456 N.E.2d 

1295, paragraph two of the syllabus (8th Dist.1982). In Herschman, it was 

undisputed by the parties that [Herschman] did engage in the performance of 

work for the design and manufacture of the display stands. Upon the 

beginning of the work by [Herschman], there was in effect an actual implied 

contract that Ringco acquiesced to by its language and conduct. 

Id. 

{¶19} Similarly, in this case, it is undisputed that Jatsek performed work on the 

Greenway project. On the authority of Herschman, upon the start of the work by Jatsek, 

an actual implied contract was formed to which the parties acquiesced.2

 

 2

See also Nagle Heating & Air Conditioning Co. v. Heskett, 66 Ohio App.3d 547, 585 N.E.2d 

866 (4th Dist.1990) and Hocking Valley Community Hosp. v. Community Health Plan of Ohio, 4th 

Dist. No. 02CA28, 2003-Ohio-4243, both holding that an unexecuted written contract is enforceable if 

the parties proceeded to act as if the contract was in effect. 
{¶20} Jatsek alternatively urges that if we find that a contract existed between the 

parties, that “such agreement ‘must yield, at times, when justified by public policy 

considerations of judicial economy.’” Jatsek’s appellate brief, p.4, quoting Dynamark 

Sec. Ctrs., Inc. v. Charles, 9th Dist. No. 21254, 2003-Ohio-2156, ¶ 12. Dynamark

presented a different scenario, however, than is presented here. 

{¶21} In Dynamark, the plaintiffs, a franchiser and its subsidiary, entered into a 

franchise agreement with the defendant in 1993; the agreement contained an arbitration 

clause. In 1996, a dispute between the parties arose, and resulted in the plaintiffs suing 

the defendant in 1997. Various pretrial proceedings were had, including the filing of and 

ruling on motions for summary judgment, an injunction proceeding, and mediation. 

After numerous continuances were sought by both parties, and granted, the case was 

ultimately set to proceed to trial on February 6, 2002. On January 22, 2002, the plaintiffs 

filed a motion to stay pending arbitration, which the trial court denied. 

{¶22} The Ninth Appellate District upheld the denial. In doing so, the appellate 

court reviewed for an abuse of discretion; our review here, however, is de novo. The 

appellate court applied the doctrine of waiver in finding that the trial court had not abused 

its discretion. The Ninth District found that the plaintiffs “acted in a manner inconsistent 

with their right to seek arbitration, rather than litigation, to resolve their contract dispute 

with [the defendant].” Id. at ¶ 15. Specifically, the plaintiffs did the following: (1) filed 

the complaint, rather than pursue arbitration in 1997; (2) did not raise the arbitration 

provision as an affirmative defense in their answer to the defendant’s counterclaims; (3) 
went through years of trial preparation, including extensive discovery, motion practice, 

and numerous hearings; (4) filed an amended complaint; and (5) mediated the dispute. 

{¶23} On that record, the appellate court found that the plaintiffs “waived their 

right to arbitration [because] they did not properly raise the arbitration provision before the 

trial court, but instead actively participated in preparing for litigation of the case for five 

years.” Id. at ¶ 19. 

{¶24} This case presents a factual background distinguishable from Dynamark for 

three reasons. First, the party seeking to enforce the arbitration provision, Burton Scot, 

did not initiate the action as in Dynamark; rather it was defending against the action. 

Second, Jatsek filed the action in June 2011, and Burton Scot filed its motion to stay in 

July 2011, a stark contrast to the five-year delay in Dynamark. And third, because 

Burton Scot filed its motion to stay approximately one month after Jatsek filed the action, 

pretrial proceedings here were scant, as opposed to the extensive proceedings that were 

had in Dynamark. Thus, disallowing arbitration in this case would not advance public 

policy considerations of judicial economy. 

{¶25} Moreover, resolving disputes through arbitration is generally favored in the 

law. Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 471, 1998-Ohio-294, 700 N.E.2d 

859. There is a strong presumption in favor of arbitration, and any doubt should be 

resolved in favor of arbitrability. Melia v. OfficeMax N. Am. Inc., 8th Dist. No. 87249, 

2006-Ohio-4765, ¶15, citing Neubrander v. Dean Witter Reynolds, Inc., 81 Ohio App.3d 

308, 610 N.E.2d 1089 (9th Dist.1992). 
{¶26} In light of the above, the trial court erred in denying Burton Scot’s motion to 

stay pending arbitration. Burton Scot’s sole assignment of error is therefore sustained. 

{¶27} Judgment reversed; case remanded. 

It is ordered that appellants recover of appellees costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the Cuyahoga 

County Court of Common Pleas to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

 

LARRY A. JONES, SR., JUDGE 

PATRICIA ANN BLACKMON, A.J., and 

MARY J. BOYLE, J., CONCUR