[Cite as Franklin Dissolution L.P. v. Athenian Fund Mgt. Inc., 2022-Ohio-623.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

FRANKLIN DISSOLUTION L.P., : 

 

 Petitioner-Appellee, : 

 No. 110641 

 v. : 

 

ATHENIAN FUND MANAGEMENT, INC., : 

 

 Respondent-Appellant. : 

 

 

JOURNAL ENTRY AND OPINION 

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: March 3, 2022 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CV-21-942792 

 

Appearances: 

Taft, Stettinius & Hollister, L.L.P., David H. Wallace, and 

Jozeff W. Gebolys, for appellee. 

Arnold & Clifford L.L.P., James E. Arnold, and Damien C. 

Kitte, for appellant. 

MICHELLE J. SHEEHAN, J.: 

Athenian Fund Management, Inc. (“AFMI”) appeals the trial court’s 

order granting Franklin Dissolution L.P.’s (“Franklin Dissolution”) motion to 

compel arbitration based on a dispute concerning a management agreement. 
Because the arbitration provision in the Management Agreement is valid and the 

dispute falls within the scope of the arbitration provision, we affirm the judgment of 

the trial court compelling arbitration. 

I. PROCEDURAL HISTORY AND FACTS 

In December 2004, Athenian Venture Partners III L.P. (the “Fund”) 

was formed as an investment fund. The Fund entered into a Management 

Agreement with AFMI to act as the fund manager and to be paid quarterly fees from 

the fund. In June 2018, the Fund began to plan its dissolution. In December 2018, 

the Fund informed AFMI that it would suspend payment of fees to AFMI. In 

January 2020, the Fund merged with Franklin Dissolution. At that time, AFMI 

informed Franklin Dissolution that the Fund was still required to pay the quarterly 

fees under the Management Agreement. Franklin Dissolution responded that it 

believed the Management Agreement was terminated when the Fund ceased to exist 

and it had no obligation to pay the management fees. 

In December 2020, Franklin Dissolution informed AFMI that the 

Fund had one remaining liability, AFMI’s claim for fees. Without response from 

AFMI, Franklin Dissolution filed a demand for arbitration. AFMI thereafter did not 

consent to the arbitration, and the procedure was halted. 

On January 11, 2021, Franklin Dissolution filed a petition to compel 

arbitration in the court of common pleas. In its petition, Franklin Dissolution 

alleged that it was the successor to the Fund, that a dispute arose between it and 
AFMI as to whether fees were due AFMI, and asked the trial court to order 

arbitration. 

On February 22, 2021, AFMI filed an answer to the petition and 

asserted counterclaims against the “Fund and/or” Franklin Dissolution for breach 

of contract. AFMI sought recovery of unpaid fees and a declaratory judgment that 

Franklin Dissolution is not entitled to the benefit of the Management Agreement’s 

arbitration clause without accepting its obligation to pay the management fees due 

AFMI. AFMI did not join the Fund as a party to the lawsuit. 

The terms of the Management Agreement attached to the petition 

provide in paragraph 12 that “[s]ubject to the provisions of Section 13 hereof, the 

term of this Agreement shall be co-extensive with the term of existence of the” Fund. 

Paragraph 13 provides a mechanism for termination of the Management Agreement 

upon occurrence of certain specified events. The Management Agreement further 

provides that “[s]ubject to the provisions of this Section 15, this Agreement shall 

inure to the benefit of and be binding upon the parties hereto and their successors 

and permitted assigns.” Additionally, the Management Agreement provides in 

paragraph 14 that 

[a]ny dispute between the parties arising out of or relating to this 

Agreement or the affairs and activities of the Partnership shall be 

settled by arbitration in Athens County, Ohio, in accordance with the 

provisions of the Ohio Arbitration Act, Chapter 2711 of the Ohio. 

Revised Code. This agreement to arbitrate shall be specifically 

enforceable, the arbitration decision shall be final and judgment may 

be entered upon the arbitration decision in any court having 

jurisdiction over the subject matter of the dispute. 
The trial court held a hearing and granted the petition, ordered 

arbitration, and stayed ruling on Franklin Dissolution’s motion to dismiss 

counterclaims. The trial court denied AFMI leave to conduct discovery to determine 

whether the dispute was subject to the arbitration provision in the Management 

Agreement. After the hearing, Franklin Dissolution filed an affidavit to which it 

attached a copy of Franklin Dissolution’s partnership agreement indicating it to be 

the successor to the Fund pursuant to a merger. In ruling upon the petition, the trial 

court found that 

[h]ere, the arbitration provision of the Management Agreement 

specifically sets out what disputes are arbitrable, the rules governing 

any potential arbitration, and where the arbitration would take place. 

Also, the Management Agreement was entered into by two entities 

formed by the same individual with seemingly comparable bargaining 

power. 

The trial court held that “the Management Agreement contains a valid 

arbitration provision and that petitioner is aggrieved by respondent’s failure to 

comply with it.” It further held that “the underlying dispute could not be maintained 

without reference to the Management Agreement, and thus, that the dispute falls 

within the scope of the arbitration provision.” 

AFMI appeals the trial court’s judgment ordering arbitration. 

II. LAW AND ARGUMENT 

A. Assignments of Error 

AFMI raises two assignments of error: 

Assignment of Error 1: The trial court erred by granting Franklin 

[Dissolution’s] motion to compel arbitration. 
Assignment of Error 2: The trial court erred by not permitting 

discovery on the arbitrability of the parties’ dispute. 

AFMI argues under these assignments of error that the trial court 

conducted too narrow of an inquiry in granting the petition because it maintains 

that Franklin Dissolution was formed for the purpose of avoiding payment of fees 

due under the Management Agreement. It argues that discovery was required to 

develop the record of its assertion and to determine if Franklin Dissolution is the 

successor to the Fund. 

 Franklin Dissolution argues that the trial court properly granted the 

petition because resolution of the dispute and claims of the parties are dependent 

upon the terms and conditions contained in the Management Agreement. It argues 

that, therefore, the arbitration provision is enforceable. It further argues that there 

is no dispute as to the validity of the Management Agreement or its enforceability, 

that it is the successor to the Fund, and therefore the trial court did not abuse its 

discretion in denying AFMI the ability to conduct discovery. 

B. Applicable Law and Standard of Review 

Ohio law allows for the enforcement of an arbitration provision in a 

written agreement. R.C. 2711.01(A) reads in relevant part: 

A provision in any written contract * * * to settle by arbitration a 

controversy that subsequently arises out of the contract, or out of the 

refusal to perform the whole or any part of the contract, or any 

agreement in writing between two or more persons to submit to 

arbitration any controversy existing between them at the time of the 

agreement to submit, or arising after the agreement to submit, from a 

relationship then existing between them or that they simultaneously 
create, shall be valid, irrevocable, and enforceable, except upon 

grounds that exist at law or in equity for the revocation of any 

contract. 

A trial court may summarily resolve a petition to enforce an arbitration 

provision where no jury demand has been made. R.C. 2711.03 (B). If the court is 

“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.” R.C. 2711.03 (A). 

The Ohio Supreme Court set forth the principles underlying a court’s 

determination of whether to order arbitration pursuant to a written agreement as 

1) whether the parties agreed to submit any dispute to arbitration; 2) whether the 

agreement creates an obligation to arbitrate a particular grievance; 3) when deciding 

if the parties agreed to submit a particular grievance to arbitration, the court is not 

to rule on the potential merits of underlying claims; and 4) that where an arbitration 

provision is contained in a contract, there is a presumption of arbitrability. 

Academy of Medicine of Cincinnati v. Aetna Health, Inc., 108 Ohio St.3d 185, 2006-

Ohio-657, 842 N.E.2d 488, ¶ 1o – 14, citing Council of Smaller Ents. v. Gates, 

McDonald & Co., 80 Ohio St.3d 661, 687 N.E.2d 1352 (1998). 

We review a trial court’s ruling on a motion to stay and compel 

arbitration under a de novo standard. Wisniewski v. Marek Builders, Inc., 2017-

Ohio-1035, 87 N.E.3d 696, ¶ 5 (8th Dist.), citing McCaskey v. Sanford-Brown 

College, 8th Dist. Cuyahoga No. 97261, 2012-Ohio-1543. But factual findings of the 

trial court under this standard of review are to be given deference. Gibbs v. 
Firefighters Community Credit Union, 2021-Ohio-2679, 177 N.E.3d 294, ¶ 13 (8th 

Dist.), citing Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St.3d 352, 2008-Ohio938, 884 N.E.2d 12, ¶ 38. 

In contrast to the de novo review standard of review employed to 

determine the validity of a court’s ruling on the validity of an arbitration provision, 

an appellate court reviews a decision to deny discovery under an abuse of discretion 

standard. Roark v. Keystate Homes, L.L.C., 2021-Ohio-707, 169 N.E.3d 1, ¶ 31 (8th 

Dist.); see Wozniak v. Tonidandel, 121 Ohio App.3d 221, 227, 699 N.E.2d 555 (8th 

Dist.1997), citing State ex rel. Daggett v. Gessaman, 34 Ohio St. 2d 55, 295 N.E.2d 

659 (1973). “[T]he term ‘abuse of discretion’ implies that the court’s attitude was 

unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 

217, 450 N.E.2d 1140 (1983). “A decision is unreasonable if there is no sound 

reasoning process that would support that decision.” AAAA Ents., Inc. v. River Place 

Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 

(1990). 

C. The trial court properly ordered arbitration 

 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. Benfield, 117 Ohio St.3d 352, 2008-Ohio-938, 

884 N.E.2d 12, at ¶ 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). 

 In this case, the petition to compel arbitration identifies a dispute 

between Franklin Dissolution and AFMI. AFMI asserts that Franklin Dissolution 

owes it fees under the Management Agreement from January 2019. Franklin 

Dissolution asserts that under the terms of the Management Agreement it has no 

obligation as successor to the Fund to pay those fees. 

 The Management Agreement contains an arbitration provision. 

Although both AFMI and Franklin Dissolution dispute the meaning of the terms 

within the Management Agreement and their respective rights and obligations 

under that agreement, neither AFMI or Franklin Dissolution contest the validity of 

the Management Agreement or the arbitration provision. Aetna Health, Inc., 198 

Ohio St.3d 185, 2006-Ohio-657, 842 N.E.2d 488, at ¶ 11. Further, the arbitration 

agreement required arbitration for the resolution of “[a]ny dispute between the 

parties arising out of or relating to this Agreement or the affairs and activities of the 

Partnership shall be settled by arbitration * * *.” Id. at ¶ 12. The trial court found 

that the resolution of the dispute cannot be resolved without reference to the terms 

of the Management Agreement. Id. at ¶ 13. As such, the trial court properly granted 

the motion to compel arbitration. See Sebold, 2021-Ohio-124, 166 N.E.3d 688, at 

¶ 15 (“We are not persuaded by the Sebold’s argument that their claims fall outside 

of their agreement to arbitrate — none of their claims could be maintained without 

reference to the contract and none of the claims preclude arbitration.”). 
 AFMI’s arguments against enforcing the arbitration provision in the 

Management Agreement do not dissuade us that the trial court properly ordered 

arbitration in this case. AFMI’s arguments that contest the intent in the formation 

of Franklin Dissolution to avoid the payment of fees by the Fund to avoid arbitration 

are related to the “the affairs and activities of the [Fund]” that are within the scope 

of the arbitration agreement. There is a presumption of arbitrability under Ohio 

law. Id. at ¶ 14; Sebold at ¶ 10. As such, any argument over the intent in dissolving 

the Fund by merger with Franklin Dissolution is subject to the arbitration provision 

in the Management Agreement. 

 AFMI argues that because Franklin is denying responsibility for 

payment of fees under the Management Agreement because the agreement 

terminated, it is estopped from attempting to enforce the arbitration provision. 

However, a party does not waive enforcement of an agreement’s arbitration 

provisions simply because that agreement has been terminated. Colegrove v. 

Handler, 34 Ohio App.3d 142, 145, 517 N.E.2d 979, 983 (10th Dist.1986). 

 Finally, AFMI asserts the trial court should have allowed discovery 

because of the alleged ill intent in the formation of Franklin Dissolution and to 

determine whether Franklin Dissolution is the successor to the Fund. But the 

argument regarding intent in the formation of Franklin Dissolution does not identify 

any issue in the formation of the Management Agreement or the enforceability of 

the arbitration provision therein. As to the necessity for further discovery to 

determine whether Franklin Dissolution is the successor to the Fund, Franklin 
Dissolution asserted in the petition to compel arbitration that it was the successor 

to the Fund, asserted at the hearing held to the trial court that it “stood in the same 

shoes” as the Fund, and thereafter filed its partnership agreement indicating it is the 

entity that merged with the Fund. As such, we cannot find that the trial court’s 

decision to deny AFMI discovery before ruling upon Franklin Dissolution’s motion 

to compel arbitration was an abuse of the trial court’s discretion. See Roark, 2021-

Ohio-707, 169 N.E.3d 1, at ¶ 31. 

 The first and second assignments of error are overruled. 

III. CONCLUSION 

 The trial court properly granted Franklin’s motion to compel 

arbitration because there was no evidence presented to the trial court that the 

arbitration provision in the Management Agreement was invalid or otherwise not 

subject to enforcement. Further, the trial court did not err by denying AFMI’s 

request for discovery where AFMI did not dispute the applicability or validity of the 

arbitration provision. 

 Judgment affirmed. 

It is ordered that appellee recover of appellant 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. 

__________________________________ 

MICHELLE J. SHEEHAN, JUDGE 

ANITA LASTER MAYS, P.J., and 

EMANUELLA D. GROVES, J., CONCUR 
KEYWORDS: 

Petition to compel arbitration; R.C. 2711.03(A) and (B); denial of discovery request; 

abuse of discretion. 

Successor to investor fund filed petition to compel arbitration to resolve fund 

manager’s claim for fees. The trial court properly limited its inquiry to determining 

the validity of the arbitration agreement in granting the petition to compel 

arbitration and properly found that it was necessary to apply terms of the contract 

containing the arbitration provision to resolve the parties’ dispute. The trial court 

did not abuse its discretion in denying fund manager further discovery where there 

was no showing discovery would assist in determining the validity of the arbitration 

agreement.