COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59319 CLEVELAND FIREFIGHTERS LOCAL 93 : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : CITY OF CLEVELAND : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 12, 1991 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. 179138. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Norman Fox, Esq. 1818 Standard Building Cleveland, OH 44113 For Defendant-Appellant: Peter Kirsanow, Esq. Assistant Law Director City of Cleveland Room 106 City Hall 601 Lakeside Avenue Cleveland, OH 44113 -2- MATIA, P.J.: In the instant case, defendant-appellant City of Cleveland appeals the judgment of the Cuyahoga County Court of Common Pleas which modified an arbitration award to which appellant was a party. On Appeal, appellant disputes the trial court's judgment and assigns two errors for review. STATEMENT OF THE FACTS AND THE CASE Defendant-appellant City of Cleveland ("City") and plaintiff-appellee Cleveland Firefighters Union ("Firefighters") were parties to a labor arbitration hearing in regards to overtime payment. The arbitrator issued an award on December 9, 1988. That award sustained in part and denied in part the grievance which was the subject of the arbitration. In June, 1989, another hearing was held to determine how the award was to be implemented. Consequently, a supplemental award, detailing such implementation was issued on August 30, 1989. In November, 1989, the Firefighters applied to the Court of Common Pleas to modify the August 30, 1989 supplemental award, due to an "evident material mistake." On January 16, 1990, the Common Pleas Court held an ex parte hearing on the matter. The City was not represented. The appellee Firefighters allegedly failed to notify the City of the hearing. On January 16, 1990, by journal entry, the trial court modified the arbitrator's award. It is from this judgment the City appeals. -3- ASSIGNMENT OF ERROR I "THE LOWER COURT ERRED IN ENTERING JUDGMENT PURSUANT TO AN EX PARTE (SIC) HEARING WHERE APPELLANT NEVER RECEIVED NOTICE OF THE HEARING." Appellant argues in his first assignment of error that the trial court erred in entering judgment for appellee in an ex parte hearing. Specifically, appellant argues that it did not recieve timely notice of the hearing. This assignment of error is well taken. ISSUE: WHETHER APPELLANT HAD REASONABLE NOTICE OF HEARING Appellant City alleges that it did not receive notice of the January 16 hearing until one day after the hearing. Appellant contends that notice received was in the form of a photocopied letter (dated January 10), attached to a January 12 letter; January 12 being one business day before January 16, the day of the hearing, all without postmark. The trial court heard testimony from appellee Firefighters in regards to proceeding with the scheduled hearing ex parte. Appellee Firefighters' counsel argued that the letters were without postmark because he hand delivered the letters to insure receipt. Appellee contended that he hand delivered one letter to appellant City Law Department on January 10, 1990, and one letter on January 12, 1990. Appellant Firefighters' counsel further argued that he called the appellant City Law Department on January 12, 1990 to inform it of the hearing on January 16, 1990. -4- On January 16, 1990, at the scheduled hearing on the motion to modify the arbitration award, the court directed appellee's counsel to contact appellant City's counsel. Appellant City was called, and a message regarding the hearing was left for appellant's counsel. The court determined to proceed ex parte with the matter. "THE COURT: All right. The record will reflect that although this motion was originally filed on November 9, 1989, there is no response of pleading from the City of Cleveland. The Court finds that reasonable efforts have been made to notify the City of Cleveland, and despite those efforts, there is no representative from the City present. "The Court will proceed accordingly." (Tr. p. 5.) Turning to the due process standard enunciated in Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, the court reasoned as follows: "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane at 314. (Emphasis added.) We hold that in the within case, appellant City was not given timely notice reasonably calculated to apprise the City of the pendency of a hearing on the motion to modify. Civ. R. 6(D) states in pertinent part: "A written motion ... and notice of the hearing thereof shall be served not later than seven days before the time fixed for the hearing, unless a different period is fixed -5- by these rules or by order of the court." (Emphasis added.) Herein, the record indicates that appellant City was allegedly served notice on January 10. On that date, the letter hand delivered by appellee Firefighter's counsel referred to a pretrial conference requested by appellee Firefighters. Then on January 12, the appellant City was allegedly hand delivered notice of the dispositive hearing date, which had been set for January 16. Our calculations reveal that this amounted to a four (4) day notice which was at variance with the seven (7) day requirement of Civ. R. 6(D). Additionally, we note that the appellant City was further prejudiced by the timing of the hearing. Assuming, arguendo, the appellant City received notice on January 12, this gave the city two (2) business days to prepare for a dispositive hearing requesting modification of the arbitrator's award. January 13 and 14 were weekend dates. January 15 was Martin Luther King holiday date, ergo leaving appellant only two days, January 12 and January 16 to prepare for trial. Accordingly, we hold that this two day notice was not "reasonably calculated under all the circumstances" to apprise appellant City of the pendency of the hearing so as to afford them ample opportunity to present their objections. See Mullane, supra, at 314. Accordingly, and for the foregoing reason, the trial court is reversed. -6- ASSIGNMENT OF ERROR II "THE LOWER COURT ERRED IN MODIFYING THE ARBITRATION AWARD WHEN THE MOTION TO VACATE WAS STATUTORILY DEFECTIVE." Appellant argues in his second assignment of error that the court erred in modifying the arbitration award because the award was defective under R.C. 2711.09 and 2711.14. Specifically, appellant argues that appellee met none of the procedural prerequisites set forth in the statute. This assignment of error is well taken. Appellant argues that appellee Firefighters' application to modify the arbitration award was fatally defective under R.C. 2711.09 and R.C. 2711.14. R.C. 2711.09 states: "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 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." R.C. 2711.11 states in pertinent part: "In any of the following cases, the court of common pleas in the county wherein an award was made in an arbitration proceeding shall make an order modifying or correcting the award upon the application of any party to the arbitration if: "(A) There was an evident material miscalculation of figures or an evident material mistake in the description of any -7- person, thing, or property referred to in the award; * * * "(C) The award is imperfect in matter of form not affecting the merits of the controversy. "The order shall modify and correct the award, so as to effect the intent thereof and promote justice between the parties." R.C. 2711.14 states the papers which have to be filed with the application: "Any party to a proceeding for an order confirming, modifying, correcting, or vacating an award made in an arbitration proceeding shall, at the time the application is filed with the clerk of the court of common pleas, also file the following papers with the clerk: "(A) The agreement, the selection or appointment, if any, of an additional arbitrator or umpire, and each written extension of the time within which to make the award; "(B) The award; "(C) Each notice, affidavit, or other paper used upon an application to confirm, modify, or correct the award, and a copy of each order of the court upon such an application. "The judgment entered in such proceeding shall be docketed as if rendered in an action. "The judgment so entered shall have in all respects the same effect as, and be subject to all laws relating to, a judgment in an action. Such judgment may be enforced as if rendered in an action in the court in which it is entered." (Emphasis added.) Perusal of the above pertinent statutes obliges our holding that appellant's assignment of error is well taken. Appellant City argues that appellee Firefighters failed to include either the preliminary arbitration award or the -8- collective bargaining agreement between the parties. Appellee contends that both documents must be included in the motion pursuant to R.C. 2711.14. It is not clear from the face of the statute whether the agreement, noted in section (A) of R.C. 2711.14 refers to the collective bargaining agreement or the arbitration agreement. We ascertain that it would be reasonable for the statute to refer to the arbitration agreement. We reach this determination because the statute is in reference to arbitration proceedings, and the collective bargaining agreement exceeds the scope of the arbitration hearing. In the instant case, however, we observe that neither the arbitration agreement nor the original arbitration opinion and award was appended to appellee's motion. A strict construction of the statute requires these papers. We hold, therefore, that strict compliance with R.C. 2711.14 mandates that appellee Firefighters file the pertinent papers with its application to modify the arbitration award. We conclude that the pertinent papers, herein, according to the statute, would include the arbitration agreement, the arbitration award of December 9, 1988 and the supplemental award of August 30, 1989. Accordingly, whereas, appellee Firefighters submitted only the supplemental award of August 30, 1989, Assignment of Error II is well taken. -9- For the foregoing reasons, this cause is reversed and remanded. remanded. This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellant recover of said appellee its 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. Exceptions. NAHRA, J. and JAMES D. SWEENEY, J., CONCUR. DAVID T. MATIA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .