[Cite as Costin v. Midwest Vision Partners, L.L.C., 2024-Ohio-463.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

BRYAN COSTIN, :

Plaintiff-Appellee, :

No. 112651

v. :

MIDWEST VISION

PARTNERS, L.L.C., ET AL. :

Defendants-Appellants. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: February 8, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-23-974946

Appearances:

Dennis M. O’Toole; Patterson Law Firm, LLC and Kristi L. 

Browne, pro hac vice, for appellee. 

ZASHIN & RICH CO., L.P.A., Natalie M. Stevens, and 

Lauren M. Drabic, for appellants Northern Ohio Eye 

Consultants, Inc., d.b.a. Cleveland Eye Clinic, Midwest 

Vision Partners Management, LLC, Midwest Vision 

Partners Holdco, LLC, and Accomodative Surgery Center, 

LLC. 
EILEEN T. GALLAGHER, J.:

Defendants-appellants, Midwest Vision Partners Management, L.L.C., 

Midwest Vision Partners Holdings, L.L.C., Midwest Vision Partners Holdco, L.L.C. 

(together “Midwest Vision”), Northern Ohio Eye Consultants, Inc. d.b.a. Cleveland 

Eye Clinic (“Cleveland Eye Clinic”), and Accomodative Surgery Center, L.L.C. 

(“ASC”) (collectively “appellants”) appeal from the trial court’s judgment denying 

their motion to compel arbitration, motion to stay proceedings, and motion to stay 

discovery. Appellants raise the following assignment of error for review:

The trial court erred in denying defendants-appellants’ motion to 

compel arbitration, motion to stay proceedings, and motion to stay 

discovery pending resolution of these motions despite the existence of 

a valid and enforceable arbitration clause in the agreement on which 

plaintiff-appellee had based his claims, and by failing to hold a R.C. 

2711.03(A) evidentiary hearing, and by failing to summarily proceed to 

a jury trial on the arbitrability issue as required by R.C. 2711.03(B).

After careful review of the record and relevant case law, we affirm the 

trial court’s judgment.

I. Procedural and Factual History

Plaintiff-appellee, Bryan Costin, M.D. (“Dr. Costin”), is a boardcertified oculoplastic surgeon. On September 13, 2017, Dr. Costin entered into an 

Employment Agreement with defendant-appellant, Cleveland Eye Clinic. The 

Employment Agreement set forth the terms and conditions of Dr. Costin’s 

employment. Regarding Dr. Costin’s compensation, Cleveland Eye Clinic agreed to 

pay Dr. Costin (1) an annual base salary of $300,000, (2) a production of 

compensation bonus of 25 percent of collections exceeding the amount of $500,000, 
(3) an optical sales bonus of 10 percent of Dr. Costin’s “optical gross profits,” (4) a 

full reimbursement of collected insurance and/or cash payments for after-hours 

services, and (5) a 25 percent share of annual profits for certain oculoplastic services. 

(Agreement, schedule A, sec. 1.) The Employment Agreement further authorized 

Dr. Costin or his representative to “audit the accuracy of the actual collections for 

professional services for which [Dr. Costin] provided.” 

Relevant to this appeal, Section 16 of the Employment Agreement 

contained an arbitration provision, stating:

16.1 Other than issues or disputes relating to or arising out of Section 

5 above, unresolved issues of disagreement between the parties will 

initially be brought to a mutually-agreeable independent third party for 

informal mediation.

16.2. Other than issues or disputes relating to or arising out of Section 

5 above, any controversy or claim arising out of or relating to this 

Agreement or any breach thereof that is not resolved pursuant to 

Subsection 16.1 above, will be settled by arbitration in Cuyahoga 

County, Ohio, in accordance with Rules of Arbitration of the American 

Health Lawyer’s Association (“AHLA”). Such arbitration may be 

commenced by one party notifying the other and also the AHLA that 

such party intends to seek arbitration. The decision of the AHLA will 

be final and binding upon all parties hereto. Judgment upon the award 

rendered by the arbitrators may be entered in any court having 

jurisdiction thereof. The expenses of arbitration will be borne equally 

by the parties. Issues or disputes arising out of Section 5 may be 

arbitrated at Employer’s sole discretion, such decision being binding 

upon the Employee. 

At some point during Dr. Costin’s employment, Cleveland Eye Clinic 

was acquired by Midwest Vision. Cleveland Eye Clinic continued doing business 

under its designated name, and Dr. Costin was assured that “his Employment 
Agreement terms would remain the same under Midwest Vision’s ownership.” 

(Complaint at ¶ 44-45.)

On June 7, 2021, Dr. Costin was notified that his employment would be

terminated at the conclusion of a notice period. On August 19, 2021, Dr. Costin 

entered into an amended employment agreement with Cleveland Eye Clinic (“the 

Amended Agreement”). The Amended Agreement provided, in pertinent part:

2. Employee’s employment shall terminate effective September 30, 

2021 (the “Termination Date”). Neither Employee or Employer shall 

have any further obligation under the Employment Agreement 

effective as of the Termination Date; provided that, notwithstanding 

the foregoing, Sections 5,[

1] 7.2(b),[2] 9.1[3] (it being agreed the 

Employment Agreement was terminated by Employer), 10,[

4] 11,[5]

and 17[

6] shall survive the termination of the Employment Agreement 

and remain in full force and effect.

(Emphasis added.) Ultimately, disagreements concerning the amount of 

compensation owed to Dr. Costin arose following his termination date. 

On February 8, 2023, Dr. Costin filed a civil complaint against 

defendants-appellants in Cuyahoga C.P. No. CV-23-974946.

7

 The complaint set 

1 Titled “Restrictive Covenants.”

2 Titled “Professional Liability Insurance.”

3 Titled “Termination.”

4 Titled “Employer Documents and Other Property.”

5 Titled “Breach of Confidentiality.”

6 Titled “Indemnification.”

7 The complaint also names Midwest Vision Partners, L.L.C., and Midwest Vision 

Partners Holdings, L.L.C. as party defendants. However, these entities are not named 

appellants in this appeal. According to the appellants, “these entities are not actually 
forth claims for breach of contract, unjust enrichment, and accounting. Specifically, 

Dr. Costin asserted that the defendants “breached the Amendment to the 

Employment Agreement by failing to pay [Dr. Costin] all the amounts he is owed 

within 30 days of termination and to date they still have not paid all amounts owed.” 

Alternatively, Dr. Costin alleged that Midwest Vision and ASC unjustly collected and 

retained the benefits of his medical services without paying him pursuant to the 

terms of the original Employment Agreement. Finally, Dr. Costin sought an order 

requiring the defendants to “provide a complete accounting of the revenues received 

and costs incurred during [his] employment that are related to services he provided 

and for such other and further relief as the court deems appropriate.” 

On March 13, 2023, appellants filed a “motion to compel arbitration, 

motion to stay proceedings, and motion to stay discovery pending resolution of these 

motions.” Relying on section 16 of the original Employment Agreement, appellants 

argued that Dr. Costin “unequivocally agreed to submit any and all disputes 

regarding his compensation and benefits to mediation and, if unresolved through 

mediation, to final and binding arbitration.” Appellant’s motion included a jury 

demand, stating:

Should the court determine after hearing from the parties under R.C. 

2711.03(A) that an issue may exist as to the validity and enforceability 

of the arbitration agreement, then defendants request a jury trial on the 

validity and enforceability issues in accordance with R.C. 2711.03(B), 

requesting the trial court to summarily proceed to trial and submit the 

related to the represented defendants-appellants and the represented defendantsappellants do not believe they bear any relationship to Costin’s employment.”
validity and enforceability issues to a jury for disposition in accordance 

with R.C. 2711.03(B).

On March 27, 2023, Dr. Costin filed a brief in opposition, arguing that 

the parties carefully negotiated an amendment to the original Employment 

Agreement that expressly identified the provisions of the original agreement that 

would survive the termination date set forth therein. According to Dr. Costin, “the 

arbitration provision of the original Employment Agreement, section 16, did not 

survive the amendment to that agreement” because it was not identified as one of 

the provisions that would remain in full force and effect following the termination 

date. Alternatively, Dr. Costin argued that Midwest Vision and ASC could not 

compel arbitration because they were neither parties to, nor intended beneficiaries 

of, the Employment Agreement.

On April 11, 2023, the trial court’s denied appellants’ motions, stating, 

in relevant part:

[Dr. Costin] filed suit to collect what he alleges are unpaid 

compensation bonuses under his employment contract with Northern 

Ohio Eye Consultants. At the termination of [Dr. Costin’s] 

employment, on August 21, 2021, Northern Ohio Eye Consultants 

specifically invalidated the mandatory arbitration clause contained 

within [Dr. Costin’s] employment contract through a written 

amendment to the contract. The remaining clauses specifically 

enumerated in this amendment are the only ones that can be newly 

enforced after that date, and do not include the arbitration clause. This 

contract amendment, however, does not relieve Northern Ohio Eye 

Consultants (or its successor(s)) of their obligations to [Dr. Costin] that 

arose while the employment contract was still in effect and were never 

fulfilled.

Appellants now appeal from the trial court’s judgment.
II. Law and Analysis

In the sole assignment of error, appellants argue the trial court erred 

in denying its motion to compel arbitration, motion to stay proceedings, and motion 

to stay discovery despite a mandatory arbitration clause contained in the 

Employment Agreement. Appellants contend that the arbitration clause is valid and 

enforceable because the claims set forth in Dr. Costin’s complaint stem from the 

original Employment Agreement.

1. Standard of Review

Generally, an appellate court reviews a trial court’s decision to grant 

or deny a motion to compel arbitration or stay the proceedings under the abuse of 

discretion standard. U.S. Bank, N.A. v. Wilkens, 8th Dist. Cuyahoga No. 96617, 

2012-Ohio-263, ¶ 13; Milling Away, L.L.C. v. UGP Properties, L.L.C., 8th Dist. 

Cuyahoga No. 95751, 2011-Ohio-1103, ¶ 8. The term abuse of discretion “implies 

that the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore 

v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). An abuse of discretion 

occurs when a court exercises its judgment in an unwarranted way regarding a 

matter over which it has discretionary authority. Johnson v. Abdullah, 166 Ohio 

St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35.

Nevertheless, a trial court’s decision granting or denying a motion to 

compel arbitration or a motion to stay are subject to de novo review on appeal 

because such cases generally turn on issues of contractual interpretation. McFarren 

v. Emeritus at Canton, 2013-Ohio-3900, 997 N.E.2d 1254, ¶ 13 (5th Dist.); Hudson 
v. John Hancock Fin. Servs., 10th Dist. Franklin No. 06AP-1284, 2007-Ohio-6997, 

¶ 8; McCaskey v. Sanford-Brown College, 8th Dist. Cuyahoga No. 97261, 2012-

Ohio-1543, ¶ 7.

2. R.C. 2711.02 and 2711.03

Ohio has a strong public policy favoring arbitration of disputes, and 

there is a presumption favoring arbitration that arises when the dispute falls within 

the scope of an arbitration provision. Taylor Bldg. Corp. of Am. v. Benfield, 117 

Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12, ¶ 25-27. “Any doubts concerning 

the scope of arbitrable issues should be resolved in favor of arbitration.” Sebold v. 

Latina Design Build Group, L.L.C., 2021-Ohio-124, 166 N.E.3d 688, ¶ 10 (8th Dist.), 

citing Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 

S.Ct. 927, 74 L.Ed.2d 765 (1983). We note, however, that “parties cannot be 

compelled to arbitrate a dispute in which they have not agreed to submit to 

arbitration.” Marks v. Morgan Stanley Dean Witter Commercial Fin. Servs., 8th 

Dist. Cuyahoga No. 88948, 2008-Ohio-1820, ¶ 15, citing Piqua v. Ohio Farmers Ins. 

Co., 84 Ohio App.3d 619, 621, 617 N.E.2d 780 (2d Dist.1992); St. Vincent Charity 

Hosp. v. URS Consultants, Inc., 111 Ohio App.3d 791, 793, 677 N.E.2d 381 (8th 

Dist.1996); Shumaker v. Saks, Inc., 163 Ohio App.3d 173, 2005-Ohio-4391, 837 

N.E.2d 393 (8th Dist.).

Ohio’s policy of encouraging arbitration has been declared by the 

legislature through the Ohio Arbitration Act — R.C. Chapter 2711. Goodwin v. 

Ganley, Inc., 8th Dist. Cuyahoga No. 89732, 2007-Ohio-6327, ¶ 8. The Ohio 
Arbitration Act allows for direct enforcement of arbitration agreements through an 

order to compel arbitration under R.C. 2711.03 or indirect enforcement through an 

order staying proceedings under R.C. 2711.02, or both. Maestle v. Best Buy Co., 100 

Ohio St.3d 330, 2003-Ohio-6465, 800 N.E.2d 7, ¶ 18; Brownlee v. Cleveland Clinic 

Found., 8th Dist. Cuyahoga No. 97707, 2012-Ohio-2212, ¶ 11. Although these 

provisions each require a trial court to determine whether an arbitration provision 

is enforceable, they are separate and distinct procedures.

R.C. 2711.02 permits the trial court, upon application of one of the 

parties, to stay litigation in favor of arbitration pursuant to a written arbitration 

agreement. The statute provides as follows:

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.

Thus, R.C. 2711.02 requires a trial court to stay an action

on application of one of the parties if (1) the action is brought upon any 

issue referable to arbitration under a written agreement for 

arbitration[;] (2) the court is satisfied the issue is referable to 

arbitration under the written agreement[;] and (3) the applicant is not 

in default in proceeding with arbitration.

Fields v. Herrnstein Chrysler, Inc., 4th Dist. Pike No. 12CA827, 2013-Ohio-693, 

¶ 14. 

In turn, R.C. 2711.03, titled “Enforcing arbitration agreement,”

governs petitions to compel arbitration. The statute provides, in relevant part:
(A) 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.

(B) 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. If no jury trial 

is demanded as provided in this division, the court shall hear and 

determine that issue.

In Maestle, the Ohio Supreme Court held that a trial court is not 

required to conduct a hearing when a party moves for a stay pursuant to R.C. 

2711.02, but may stay proceedings “upon being satisfied that the issue involved in 

the action is referable to arbitration under an agreement in writing for arbitration 

* * *.” Id., 100 Ohio St.3d 330, 2003-Ohio-6465, 800 N.E.2d 7, at ¶ 18. The high 

court reasoned, “the statute does not on its face require a hearing, and it is not 

appropriate to read an implicit requirement into a statute.” Id.

In contrast, however, where a party has filed a motion to compel 

arbitration pursuant to R.C. 2711.03, “the court must, in a hearing, make a 

determination as to the validity of the arbitration clause.” Marks, 8th Dist. 

Cuyahoga No. 88948, 2008-Ohio-1820, at ¶ 21, citing Maestle at ¶ 18. Applying the 

foregoing principle, this court has consistently held that “a hearing is mandatory on 

a motion to compel arbitration in order to determine the validity of the arbitration 

clause.” Id. at ¶ 22, citing McDonough v. Thompson, 8th Dist. Cuyahoga No. 82222, 
2003-Ohio-4655, ¶ 11. See also Post v. Procare Automotive Serv. Solutions, 8th 

Dist. Cuyahoga No. 87646, 2007-Ohio-2106; Benson v. Spitzer Mgt., Inc., 8th Dist. 

Cuyahoga No. 83558, 2004-Ohio-4751; Herman v. Ganley Chevrolet, Inc., 8th Dist. 

Cuyahoga Nos. 81143 and 81272, 2002-Ohio-7251; Olah v. Ganley Chevrolet, Inc., 

8th Dist. Cuyahoga No. 86132, 2006-Ohio-694; Samoly v. Landry, 8th Dist. 

Cuyahoga No. 89060, 2007-Ohio-5707.

A “hearing,” however, does not necessarily require an oral evidentiary 

hearing as appellants’ suggest on appeal. “[A] ‘hearing’ means any confrontation, 

oral or otherwise, between an affected individual [and a decisionmaker] sufficient 

to allow the individual to present the case in a meaningful manner. Hearings may 

take many forms, including a ‘formal,’ trial-type proceeding, an ‘informal 

discuss(ion)’ * * *, or a ‘paper hearing,’ without any opportunity for oral exchange.” 

Liese v. Kent State Univ., 11th Dist. Portage No. 2003-P-0033, 2004-Ohio-5322, 

fn.6, quoting Gray Panthers v. Schweiker, 209 U.S. App. D.C. 153, 652 F.2d 146, 

fn.3 (C.A.D.C., 1980). See also Nemec v. Morledge, 8th Dist. Cuyahoga No. 110149, 

2021-Ohio-3361, ¶ 18.

In this case, both parties allowed themselves to be heard on the 

arbitration issue without requesting an evidentiary hearing under R.C. 2711.03(A). 

The relevant issues were debated in opposing briefs, and the disputed contracts were 

submitted to the court for review. Under these circumstances, we find the trial court 

“heard” the parties as contemplated under R.C. 2711.03(A) and was capable of 

assessing the evidence and legal arguments supporting the parties’ competing 
interpretations of the relevant agreements. Consequently, the trial court did not 

abuse its discretion in denying the motion to compel without an evidentiary hearing. 

See Nemec at ¶ 19, citing Marks at ¶ 33; Church v. Fleishour Homes, Inc., 172 Ohio 

App.3d 205, 2007-Ohio-1806, 874 N.E.2d 795, ¶ 29 (5th Dist.) (“While a party’s 

request for an oral hearing shall be granted pursuant to R.C. 2711.03, an oral hearing 

is not mandatory absent a request.”), citing Cross v. Carnes, 132 Ohio App.3d 157, 

166, 724 N.E.2d 828 (11th Dist.1998), and Chrysler Fin. Servs., Ams., L.L.C. v. 

Henderson, 4th Dist. Athens No. 11CA4, 2011-Ohio-6813, ¶ 20 (where parties did 

not specifically request an oral or evidentiary hearing on a motion to compel 

arbitration, the trial court acted properly in “hearing” the matter upon a non-oral 

hearing).

Appellants nevertheless argue that pursuant to R.C. 2711.03(B), the 

trial court committed reversible error by denying its request for the court to proceed 

summarily to a jury trial where “the making of the arbitration agreement or the 

failure to perform it is in issue.” 

“‘When determining whether a trial is necessary under R.C. 

2711.03(B), the relevant inquiry is whether a party has presented sufficient evidence 

challenging the validity or enforceability of the arbitration provision to require the 

trial court to proceed to trial before refusing to enforce the arbitration clause.’” 

McDonough, 8th Dist. Cuyahoga No. 82222, 2003-Ohio-4655, at ¶ 13, quoting 

Garcia v. Wayne Homes, L.L.C., 2d Dist. Clark No. 2001 CA 53, 2002-Ohio-1884, 

¶ 29. The Ohio Revised Code does not set forth the amount of evidence that must 
be produced to receive a trial under R.C. 2711.03. However, “courts are directed to 

address the matter as they would a summary judgment exercise, proceeding to trial 

where the party moving for the jury trial sets forth specific facts demonstrating that 

a genuine issue of material fact exists regarding the validity or enforceability of the 

arbitration agreement.” Garcia at ¶ 30. We have explained that a trial on the issue 

is “required” because a question of fact exists that can only be resolved by such a 

proceeding. Schroeder v. Shearson, Lehman & Hutton, Inc., 8th Dist. Cuyahoga 

No. 60236, 1991 Ohio App. LEXIS 1826, *6 (Apr. 25, 1991).

With the foregoing principles in mind, we find the relevant inquiry 

before this court is (1) whether there remain genuine issues of material fact 

regarding the validity or enforceability of the arbitration agreement, and, if no issues 

of fact remain, (2) whether the arbitration provision was enforceable as a matter of 

law.

3. Enforceability of Arbitration Provision in the

Original Employment Agreement 

As mentioned above, we apply a de novo standard of review to 

questions of law, including whether a party has agreed to submit an issue to 

arbitration or questions of unconscionability. Paulozzi v. Parkview Custom Homes, 

L.L.C., 2018-Ohio-4425, 122 N.E.3d 643, ¶ 12 (8th Dist.), citing Brownlee, 8th Dist. 

Cuyahoga No. 97707, 2012-Ohio-2212; N. Park Retirement Community Ctr., Inc. v. 

Sovran Cos., Ltd., 8th Dist. Cuyahoga No. 96376, 2011-Ohio-5179. Under a de novo 
standard of review, we give no deference to the trial court’s decision. Brownlee at 

¶ 9.

In construing the validity or enforceability of an arbitration provision, 

we are mindful that whether a party has agreed to arbitration is a matter of contract. 

Maestle v. Best Buy Co., 8th Dist. Cuyahoga No. 79827, 2005-Ohio-4120, ¶ 10, citing 

First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S.Ct. 1920, 131 

L.Ed.2d 985 (1995); Palumbo v. Select Mgt. Holdings, Inc., 8th Dist. Cuyahoga 

No. 82900, 2003-Ohio-6045, ¶ 18. Thus, when deciding whether a party has agreed 

to arbitrate, courts should apply ordinary principles that govern the formation of 

contracts. Seyfried v. O’Brien, 2017-Ohio-286, 81 N.E.3d 961, ¶ 19 (8th Dist.), citing 

First Options at 944; Roberts v. KND Dev. 51, L.L.C., 8th Dist. Cuyahoga 

No. 108473, 2020-Ohio-4986, ¶ 10, citing Avery v. Academy Invests., L.L.C., 8th 

Dist. Cuyahoga No. 107550, 2019-Ohio-3509, ¶ 9. 

“‘A valid arbitration agreement, like any contract, requires an offer 

and acceptance that is supported by consideration and is premised on the parties’

meeting of the minds as to the essential terms of the agreement.’” Rousseau v. Setjo, 

L.L.C., 8th Dist. Cuyahoga No. 109237, 2020-Ohio-5002, ¶ 8, quoting Corl v. 

Thomas & King, 10th Dist. Franklin No. 05AP-1128, 2006-Ohio-2956, ¶ 8. “‘The 

party seeking to compel arbitration bears the burden of establishing the existence of 

an enforceable arbitration agreement [with] the party against whom the moving 

party seeks enforcement.’” Dorgham v. Woods Cove III, 8th Dist. Cuyahoga 
No. 106838, 2018-Ohio-4876, ¶ 16, quoting Fifth Third Bank v. Senvisky, 8th Dist. 

Cuyahoga No. 100030, 2014-Ohio-1233, ¶ 11.

In this case, the parties do not dispute that the arbitration provision 

included in the original Employment Agreement was valid and fully enforceable 

during Dr. Costin’s employment with Cleveland Eye Clinic. Dr. Costin argues, 

however, that the arbitration provision contained in the original agreement was 

“explicitly disclaimed” by the negotiated terms of the Amended Employment 

Agreement executed on August 19, 2021. Dr. Costin summarizes his position as 

follows:

The language of the Amendment is unambiguous, “[n]either Employee 

nor Employer shall have any further obligation under the Employment 

Agreement effective as of the termination date.” This paragraph can 

admit only one interpretation, that the parties “specifically invalidated 

the mandatory arbitration clause contained within Costin’s 

employment contract,” and that the “remaining clauses specifically 

enumerated in this Amendment are the only ones that can be newly 

enforced after August 21, 2021, and do not include the arbitration 

clause.”

The parties to the Amendment took pains to make sure certain 

provisions of the Employment Agreement survived[.] * * * Notably 

absent from this list of provisions that “shall survive the termination of 

the Employment Agreement and remain in full force and effect” is 

Section 16 (Mediation/Arbitration). If they had intended to preserve 

the arbitration provision they could have, but they did not.

Appellants counter that the arbitration provision contained in the 

original Employment Agreement is still valid and enforceable, stating:

Costin’s own complaint establishes that an agreement to arbitrate 

exists – it is attached as Exhibit 1 to the complaint and found in Section 

16. All the claims asserted by Costin are derived and based on the 

Employment Agreement containing the arbitration agreement and, 

therefore, are arbitrable.
* * *

No basis in fact exists to disregard the clear and unambiguous 

contractual requirement in Section 16.2 to submit all of Dr. Costin’s 

claims derived from the compensation provision therein to final and 

binding arbitration through the AHLA[.]

Appellants further reiterate their position that the court committed 

reversible error by “issuing its order without conducting a jury trial on the 

arbitrability issue as required by R.C. 2711.03(B), despite appellants[’] request for 

the same.”

It is well settled that a written contract may be modified or amended 

by the express agreement of the parties to it either in writing or by acts of the parties 

which evince a meeting of their minds in agreement to modify its terms upon any 

particular point. Bank One Trust Co. v. Wigner, 10th Dist. Franklin No. 87AP-329, 

1988 Ohio App. LEXIS 2211 (June 9, 1988), citing Hotchner v. Neon Prods., Inc., 

163 F.2d 672 (6th Cir.1947). “A contract cannot be unilaterally modified, and parties 

to a contract must mutually consent to a modification.” Hanna v. Groom, 10th Dist. 

Franklin No. 07AP-502, 2008-Ohio-765, ¶ 27. Courts presume that the intent of the 

parties to a contract resides in the language they chose to employ in the agreement. 

Kelly v. Med. Life Ins. Co., 31 Ohio St.3d 130, 509 N.E.2d 411 (1987), paragraph one 

of the syllabus. When the terms in a contract are unambiguous, courts will not in 

effect create a new contract by finding intent not expressed in the clear language 

employed by the parties. Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 

246, 374 N.E.2d 146 (1978).
Preliminarily, we find no merit to appellants’ position that the trial 

court erred by failing to hold a trial pursuant to R.C. 2711.03(B). Although 

appellants included a jury demand in their motion to compel, there remained no 

unresolved issues of material fact before the trial court. Rather, the court’s judgment 

relied exclusively on its interpretation of the relevant employment contract and the 

amendment executed by the parties during Costin’s term of employment with 

Cleveland Eye Center. See Nour v. Shawar, 10th Dist. Franklin No. 13AP-1070, 

2014-Ohio-3016, ¶ 6 (“The construction of a written contract is a matter of law for a 

trial court.”), citing Alexander at paragraph one of the syllabus. Because appellants 

failed to demonstrate that a genuine issue of material fact existed regarding the 

validity or enforceability of the arbitration agreement, we find the trial court was 

permitted to issue a decision on the contested issues of law without conducting a 

trial pursuant to R.C. 2711.03(B). Liese, 11th Dist. Portage No. 2003-P-0033, 2004-

Ohio-5322, at ¶ 39 (“[O]nly a party which raises a material issue of fact as to whether 

there was an enforceable and applicable arbitration provision is entitled to an actual 

trial.”); Haight v. Cheap Escape Co., 2d Dist. Montgomery No. 25345, 2013-Ohio182, ¶ 29 (“After ‘hearing’ the parties pursuant to R.C. 2711.03(A), the trial court 

specifically found that appellees’ claims were not subject to the terms of the 

arbitration agreement. Accordingly, the trial court was not required to further 

consider any additional arguments [at a trial under R.C. 2711.03(B)].”). 

We are equally unpersuaded by appellants’ limited interpretation of 

the Amended Agreement. Viewing the express terms of the written agreements in 
their entirety, we find the parties mutually agreed to modify the terms of the original 

agreement such that certain provisions of the Employment Agreement would 

remain in full force and effect following the designated termination date, while all 

other provisions would expire. Whether the terms of the modified agreement will 

limit or otherwise impair Dr. Costin’s ability to prove his claims below is not 

presently before this court.8 Nevertheless, as it relates to the existence of an 

enforceable arbitration provision, the Amended Agreement unambiguously alters

the scope of the parties’ mutual rights and responsibilities following the designated 

termination date, including the manner in which any claim or dispute would be 

resolved post termination. Specifically, the arbitration provision contained in the 

original Employment Agreement was not incorporated into the Amended 

Agreement and, therefore, expired as of September 30, 2021. Viewing the 

unambiguous terms of the modified agreement, we find the decision to exclude the 

arbitration provision from the Amended Agreement was intentional and is binding

moving forward.

9

Under the foregoing circumstances, we find, as a matter of law, the 

parties contractually agreed to extinguish their duties to arbitrate under the clear 

8 To this point, this court believes it is premature to address, and therefore takes 

no stance on, the trial court’s statement in the judgment entry that “[t]his contract 

amendment, however, does not relieve Northern Ohio Eye Consultants (or its 

successor(s)) of their obligations to plaintiff that arose while the employment contract 

was still in effect and were never fulfilled.” 

9 As consideration for the Amended Agreement, Dr. Costin’s right to conduct an 

independent audit was not incorporated into the Amended Agreement.
terms of the Amended Agreement.10 In the absence of a valid and enforceable 

arbitration agreement, the trial court did not err in denying appellants’ motion to 

compel arbitration without holding a trial. For these same reasons, the court did 

not err in denying appellants’ motion to stay the proceedings or discovery pending 

arbitration.

The sole assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellants 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 

common pleas court 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.

EILEEN T. GALLAGHER, JUDGE

FRANK DANIEL CELEBREZZE, III, P.J., and

MICHELLE J. SHEEHAN, J., CONCUR

10 Having determined that the negotiated terms of the Amended Agreement 

prevail, we decline to address whether Midwest Vision was entitled to enforce the 

arbitration provision in the original Employment Agreement as a nonsignatory to the 

agreement.