COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 59185, 59285 CHARLES R. MILLER, ET AL. : : Plaintiff-appellants : : JOURNAL ENTRY -vs- : AND : OPINION ROGER E. CLINGMAN, ET AL. : : Defendant-appellees : : and : : CHARLES R. MILLER, ET AL : : Plaintiff-appellees : : -vs- : : DAN B. LEONARD, d.b.a. D.B.L. : PLUMBING AND HEATING : : Defendant-appellants : DATE OF ANNOUNCEMENT : NOVEMBER 7, 1991 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 113220 JUDGMENT : REVERSED AND FINAL JUDGMENT ENTERED FOR APPELLANTS. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants [59185]- For defendant-appellees plaintiff-appellees [59285]: [59185]--defendant- appellants [59285]: James L. Deese, Esq. Miller & Tolaro John R. Burney, Esq. The Rockefeller Bldg. 22255 Center Ridge Road 614 Superior Avenue, #700 Suite 106 Cleveland, OH 44113 Rocky River, OH 44116 [CONTINUED ON PAGE -1-] -1- Edmund W. Rothschild, Esq. 1600 East Ohio Bldg. 1717 East 9th Street Cleveland, OH 44114 Fredric Kramer, Esq. 1100 Illuminating Bldg. Cleveland, OH 44113 Judd H. Gross, Esq. 2115 Campus Drive Cleveland, OH 44113 Frank Soldat, Esq. 55 Public Square Cleveland, OH 44113 David C. Sherman, Esq. 620 Lindford Drive Bay Village, OH 44140 - 2 - PATTON, J., On July 16, 1986, plaintiffs-appellants Charles and Monica Miller ("appellants") brought suit in the Cuyahoga County Court of Common Pleas against Roger Clingman, Roger Clingman Con- struction, and Dan Leonard, d.b.a. D.B.L. Plumbing and Heating ("appellee"). Appellants alleged a breach of construction contract claim against Clingman. Their claims against appellee alleged intentional destruction of property, fraud, willful misconduct, and breach of express and implied warranty. Thereafter, on September 30, 1986, defendants Roger Clingman and Roger Clingman Construction filed a motion to stay proceed- ings pending arbitration pursuant to the terms of a written contract entered into between Clingman and the appellants. The contract provided that all disputes between the parties were to be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Associa- tion. On December 1, 1986, the trial court granted a stay of proceedings pending arbitration. On or about March 21, 1987, Clingman submitted a handwritten agreement to appellee seeking his consent to arbitrate. That particular agreement was never accepted or executed; however, on April 1, 1987, following service of appellants' third party arbitration claim against appellee, appellee's attorney transmitted a letter to Carol Marquardt of the American - 3 - Arbitration Association. The letter indicated appellee would "join in the arbitration." On September 10 and 11, 1987, an arbitration hearing was conducted involving appellants' claims against appellee. At the hearing both sides presented extensive evidence. On October 27, 1987, the arbitrator issued his finding and award ordering appellee to pay appellants the sum of $16,085.29 plus administra- tive expenses in the amount of $1,367.30 plus interest from the date of the award. Thereafter, on November 10, 1987, appellants filed a motion to confirm the arbitration award pursuant to R.C. 2711.09. The appellee never filed a motion to vacate the arbitrator's award. However, on November 18, 1987, appellee filed a document entitled "Notice of Appeal De Novo" in response to appellants' motion to confirm the arbitration award. Appellee maintained he never agreed to a final and binding arbitration, thus rendering R.C. 2711 confirmation proceedings inapplicable. On January 14, 1988, the trial court found that appellee was not a party to the original contract between appellants and Clingman, and that there was insufficient consideration between appellants and appellee to bind appellee to the arbitration award. The trial court further found appellee's appeal de novo proper and denied appellants' motion to confirm the arbitration award. - 4 - Appellants filed a motion for reconsideration of the trial court's order denying their motion for confirmation of the arbitration award. The trial court denied appellants' motion finding that there was no binding contract requiring binding arbitration between appellants and appellee. Appellants also filed a writ of mandamus and writ of pro- hibition in this court seeking to prohibit the trial court from proceeding with appellee's appeal de novo. This court dismissed appellants' writs without rendering an opinion on the merits of the case in State, ex rel. Charles and Monica Miller v. Honorable James D. Sweeney (Dec. 13, 1988), Cuyahoga App. No. 55748, unreported. On March 28, 1988, appellee, with leave of court, filed an amended answer, a counterclaim and various third-party com- plaints. Subsequently, the third party complaints were disposed of. Appellee's counterclaim alleged appellants were unjustly enriched as a result of the plumbing and heating work performed by appellee on appellants' behalf. On June 2, 1989, appellants filed a motion for summary judgment on appellee's counterclaim. In support of their motion for summary judgment, appellants attached affidavits, documents and deposition testimony. Included amongst the documents sub- mitted was a "waiver of lien" signed by appellee. Appellants maintained that appellee had released all claims against the appellants. Further, appellants argued appellee's subcontractor - 5 - affidavits were defective and recovery was precluded pursuant to R.C. 1311.04. Appellee filed a brief in opposition and a supplemental brief in opposition to appellants' motion for summary judgment. Appellee argued he was entitled to pursue recovery for unjust enrichment regardless of his R.C. 1311 non-compliance. Appellee also maintained he was entitled to recovery because he was not paid by Roger Clingman, the general contractor. He alleged the executed "waiver of lien" was falsely induced by Clingman's promises to pay for the work he performed. In support he attached several documents and his affidavit. On August 18, 1989, the trial court granted appellants' motion for summary judgment on appellee's counterclaim. The appeal de novo was set for trial on August 21, 1989. Before the scheduled trial date appellants' counsel advised the court that the only evidence they would put on at trial was the fact that an arbitration award had been rendered in their favor. As a result, on August 22, 1989, the trial court dismissed appellants' complaint with prejudice for want of prosecution. Following the trial court's final judgment, appellants and appellee filed notices of appeal. The cases were consolidated for our disposition. Initially we will address the appellants' assignments of error. Appellants' first assignment of error provides: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN REFUSING TO GRANT PLAINTIFFS' MOTION TO CONFIRM - 6 - THE ARBITRATION AWARD AND FOR DISMISSING THEIR CASE WHEN THEY INDICATED THAT THEY INTENDED TO RELY UPON THE ARBITRATION AWARD. Appellants argue the trial court erred by refusing to grant their motion to confirm the arbitration award. Essentially, appellants contend the parties entered into an agreement to be bound by arbitration. For the following reasons appellants' contentions have merit. R.C. 2711.01 provides in relevant part: [A]ny 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 *** shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. For nearly one hundred years Ohio law has favored the "amicable adjustment of difficulties" through arbitration. Corrigan v. Rockefeller (1902), 67 Ohio St. 354, 367. It is the policy of the law to favor and encourage arbitration and every reasonable intendment shall be indulged to give effect to such proceedings. Campbell v. Automatic Die & Products Co. (1954), 162 Ohio St. 321; Brennan v. Brennan (1955), 164 Ohio St. 29. Moreover, a strong public policy favors arbitration to settle grievances and avoid needless expensive litigation. Goodyear v. Local Union No. 200 (1975), 42 Ohio St. 2d 516, 520. In the instant case a binding arbitration clause exists in the construction contract entered into by appellants and Roger Clingman. However, no specific contract existed between appel- - 7 - lants and appellee. Furthermore, the contract between appellee and Roger Clingman was oral and contained no specific arbitration provisions. Review of the initial agreements between the parties reveals appellee did not assent to arbitration of future disputes. Moreover, appellants may not rely on the binding arbitration clause contained in their contract with Roger Clingman, when appellee was never made a party thereto. See Cleveland Building Corp. v. Boyd (Nov. 10, 1988), Cuyahoga App. No. 54702, unreported; Jance & Co., Inc. v. Distron (Sep. 29, 1983), Cuyahoga App. No. 46343, unreported. Since appellee did not initially agree to binding arbitra- tion, we must determine whether he agreed to submit to binding arbitration after the controversy between he and appellants arose. After carefully scrutinizing the arguments of the parties, we are persuaded that appellee agreed to submit the parties' existing controversy to binding arbitration. After being served with Clingman's "Demand for Arbitration," appellants served upon Clingman their response to his demand for arbitration and pursuant to the Construction Industry Arbitration Rules of the American Arbitration Association, set forth a counterclaim against Clingman. In addition appellants set forth a third party claim against appellee in their response to the Clingman demand for arbitration. After being served with appellants' third party claim counsel for appellee transmitted a letter dated April 1, 1987 to Carol Marquardt the Tribunal - 8 - Administrator of the American Arbitration Association. It provides in its entirety: This is to notify you that my client, Dan B. Leonard, aka D.B.L. Plumbing & Heating, will join in the arbitration on the above mentioned case. The letter specifically states the appellee agrees to join the arbitration proceeding between Clingman and the appellants. It is uncontroverted that the arbitration proceeding between Clingman and the appellants which the appellee agreed to join was final and binding as evidenced by the following: (1) the contract entered into by the appellants and Clingman for the construction of their home which called for binding arbitration; (2) Clingman's demand for arbitration which clearly indicated the proceedings were to be binding and; (3) the Construction Industry Arbitration Rules of the American Arbitration Association by which the proceeding was conducted which provide that the decision of the arbitrator shall be final and binding. Appellee's attorney reviewed the appellant-Clingman con- struction contract including its binding arbitration provision prior to agreeing to join in the arbitration proceeding. (Deposition of appellee's attorney, John Pincura at p. 9). Moreover, appellee was advised prior to its commencement that the arbitration proceeding was being conducted pursuant to the American Arbitration Association rules. (Affidavit of Herbert Braverman, arbitrator). Furthermore, although appellee's attorney, John Pincura, claims he never read the rules he did - 9 - obtain a copy of them and is thereby deemed to have constructive notice of their contents. In light of the above, we conclude the totality of the evidence is sufficient to find that the appellee agreed to submit the existing dispute to binding arbitration. The record and surrounding circumstances establish that the appellee knew the arbitration proceeding was binding prior to joining the proceeding by way of his April 1, 1987 letter. Accordingly, we reject appellee's contention that he did not agree to submit the dispute to binding arbitration. Furthermore, to hold otherwise would frustrate the strong public policy which favors and encourages arbitration and indulges every reasonable intendment to give effect to such proceedings. Campbell, supra; Brennan, supra. Given our conclusion that the appellee agreed to submit the dispute to binding arbitration, we must next determine whether the trial court erred by refusing to confirm the arbitration award. For the following reasons we find that the trail court did err in refusing to confirm the arbitration award. Confirmation of arbitration awards is governed by R.C. 2711.09 which provides: "At any time within one year after an award in an arbitration proceeding is made, any party to the arbitration may apply to the court of common pleas for an order confirming the award. Thereupon the court shall grant such an order and enter judgment thereon, unless the award is vacated, modified, or corrected as prescribed in sections 2711.10 - 10 - and 2711.11 of the Revised Code. Notice in writing of the application shall be served upon the adverse party or his attorney five days before the hearing thereof." Moreover, when a motion is made pursuant to R.C. 2711.09 to confirm an arbitration award, the court must grant the motion if it is timely, unless a timely motion for modification or vacation has been made and cause to modify or vacate is shown. Warren Edn. Assn. v. Warren City Board of Education (1985), 18 Ohio St. 3d 170, syllabus. In the instant cause appellants timely filed a motion to confirm the arbitration award. In addition, the appellee did not file a motion for modification or vacation but rather filed a document entitled "Notice of Appeal De Novo." Accordingly, pursuant to the authority contained in Warren Edn. Assn., supra, the trial court was obligated to grant appellants' motion to confirm the arbitration award since no cause to modify or vacate was shown. We, thus, sustain appellants' first assignment of error and reverse the trial court's denial of appellants' motion to confirm the arbitration award. Appellants' second assignment of error provides: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN PERMITTING LEONARD TO PROCEED WITH HIS "APPEAL DE NOVO" WHEN THERE IS NO PROVISION FOR SUCH AN APPEAL UNDER OHIO ARBITRATION LAW. Appellants argue R.C. Chapter 2711 precludes a trial court from granting an appeal de novo to an unsuccessful arbitration participant. Appellants maintain R.C. Chapter 2711 provides the - 11 - only procedures for a post-award attack of an arbitration deci- sion. Appellants' contention has merit. R.C. Chapter 2711 provides the only procedures for a post- award attack or support of an arbitration decision. Lockhart v. American Reserve Insurance Co. (1981), 2 Ohio app. 3d 99, 101; McGee v. Oak Tree Realty Co. (June 7, 1990), Cuyahoga App. No. 58553, unreported. Moreover, absent a clear showing of fraud, misconduct or some other irregularity rendering the award unjust, inequitable or unconscionable a court will not vacate a binding arbitration award. Goodyear, supra; Gerl Constr. Co. v. Medina Cty. Bd. of Comrs. (1985), 24 Ohio App. 3d 59, 61. R.C. 2711.13 provides: After an award in an arbitration proceeding is made, any party to the arbitration may file a motion in the court of common pleas for an order vacating, modifying or correcting the award as prescribed in Sections 2711.10 and 2711.11 of the Revised Code. Notice of a motion to vacate, modify, or correct an award must be served upon the adverse party or his attorney within three months after the award is delivered to the parties in interest. . . . In the instant case the appellee never filed a motion to vacate, modify or correct the arbitration award. Furthermore, R.C. Chapter 2711 does not provide for a post award attack by means of an appeal de novo. Given the lack of statutory authority authorizing an appeal de novo from a binding arbitration award, we must conclude it was error for the trial - 12 - court to permit the appellee to proceed with his appeal de novo. Accordingly, appellants' second assignment of error is sustained. Next, we will address the appellee's assignment of error. Appellee's assignment of error provides: THE TRIAL COURT ERRED IN GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT DISMISSING DEFENDANT DAN B. LEONARD'S COUNTERCLAIM AGAINST PLAINTIFF FOR UNJUST ENRICHMENT. Appellee maintains the trial court improperly granted appel- lants' motion for summary judgment on appellee's counterclaim for unjust enrichment. For the following reasons we uphold the trial court's decision. It is axiomatic that a motion for summary judgment shall only be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Summary judgment shall not be granted unless it appears from the evidence that reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion is made. In reviewing a motion for summary judgment, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317. Moreover, upon motion for summary judgment pursuant to Civ. R. 56, the burden of establishing that material facts are not in dispute, and that no genuine issue of fact exists, is on the - 13 - party moving for summary judgment. Harless v. Willis Day Ware- housing Co. (1978), 54 Ohio St. 2d 64. However, in that Civ. R. 56(E) requires that a party set forth specific facts showing that there is a genuine issue for trial, such party must so perform if he is to avoid summary judgment. Van Fossen v. Bab- cock & Wilcox Co. (1988), 36 Ohio St. 3d 100, paragraph seven of the syllabus. A subcontractor may pursue unjust enrichment as a theory of liability against a property owner in an appropriate case, even if the subcontractor has initially failed in law to preserve his rights under a statutory mechanic's lien. Banks v. Cincinnati (1986), 31 Ohio App. 3d 54, paragraph two of the syllabus. A review of the evidence attached to appellants' motion for summary judgment and appellee's opposition to said motion indi- cates that appellants had paid Roger Clingman in full for the work performed by appellee. Affidavits of the appellants stated they had paid Roger Clingman a total of $155,186.15 following receipt of sworn statements and releases from Clingman and the various subcontractors. The Roger Clingman affidavit dated March 17, 1986, indicated that subcontractors were owed no money. Furthermore, appellee executed a "waiver of lien" form on March 16, 1986. Said waiver acknowledged appellee does hereby "waive, release and relinquish any and all liens or claims, or right to lien or claim, for labor or materials, or both..." In opposi- tion, appellee's affidavit revealed the waiver of lien was - 14 - executed after Roger Clingman had promised to pay appellee in full for the work performed. While this may have been true, it does not impact upon the decision to grant summary judgment in favor of appellants. Based upon a review of all the evidence submitted by appel- lants and appellee, we conclude appellee failed to establish that the appellants had not paid Roger Clingman in full for the work performed. Absent proof to the contrary, it cannot be said as a matter of law that the appellants were unjustly enriched. Accordingly, appellee's counterclaim must fail and we find that the trial court did not err in granting appellants' motion for summary judgment. Appellee's assignment of error is overruled. For the foregoing reasons the judgment of the trial court denying appellants' motion to confirm the arbitration award is reversed. Judgment is entered in appellants' favor on the arbitration award in the amount of $16,085.29, plus $1,367.30 in administrative expenses plus interest as per the October 27, 1987 arbitration award. Judgment accordingly. - 15 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellants recover of said appellee their costs herein. It is ordered that a special mandate be sent to said 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. DYKE, P.J. SPELLACY, J., CONCUR JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .