COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59706 CLEVELAND ASBESTOS ABATEMENT : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION PARMA CITY SCHOOL DISTRICT : BOARD OF EDUCATION : : Defendant-appellee : : DATE OF ANNOUNCEMENT : OF DECISION : JANUARY 30, 1992 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CP 174,741 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: ROGER L. SABO, ESQ. D. WESLEY NEWHOUSE, ESQ. 41 South High Street LANE, ALTON & HORST Suite 2195 175 S. Third Street Columbus, Ohio 43215 Columbus, Ohio 43215 - 2 - J.F. CORRIGAN, J., Plaintiff Cleveland Asbestos Abatement, Inc. (hereafter referred to as "CAA") appeals from the order of the trial court which awarded summary judgment to defendant Parma City School District Board of Education (hereafter referred to as the "Board") in CAA's action for vacation of an arbitration award, quantum meruit, misrepresentation and fraud. For the reasons set forth below, we affirm. I. In March 1988, the Board announced that it would be accepting bids for an asbestos abatement project at Parma Senior High School. On May 20, 1988, CAA submitted a bid on which it acknowledged that it had accepted all terms and conditions of the Invitation to Bid. CAA further represented that it had familiarized itself with the job site and all conditions which affect contract cost and performance, and that it had correlated the results of these observations with the terms and conditions of the contract. CAA was the successful bidder of the project and it subsequently entered into an agreement with the Board which provided in relevant part as follows: STANDARD GENERAL CONDITIONS *** ARTICLE II - CHANGE OF CONTRACT PRICE - 3 - *** 11.2 The Contract Price may only be changed by a Change Order or by a Written Amendment. Any claim for increase or decrease in the Contract Price shall be based on written notice delivered by the party making the claim to the other party and to ENGINEER promptly (but in no event later than thirty days) after the occurrence of the event giving rise to the claim and stating the general nature of the claim. Notice of the amount of the claim with supporting data shall be delivered within sixty days after such occurrence (unless ENGINEER allows an additional period of time to ascertain more accurate data in support of the claim) and shall be accompanied by claimant's written statement that the amount claimed covers all known amounts (direct, indirect and consequential) to which the claimant is entitled as a result of the occurrence of said event. All claims for adjustment in the Contract Price shall be determined by ENGINEER in accordance with paragraph 9.11 if OWNER and CONTRACTOR cannot otherwise agree on the amount involved. No claim for an adjustment in the Contract Price will be valid if not submitted in accordance with this paragraph 11.2. (Emphasis added.) STANDARD FORM OF AGREEMENT *** ARTICLE 7. CONTRACTOR'S REPRESENTATIONS In order to induce OWNER to enter into this Agreement CONTRACTOR makes the following representations: 7.1CONTRACTOR has familiarized itself with the nature and extent of the Contract Documents Work, site, locality, and all local conditions and Laws and Regulations that in any manner may affect cost, progress, performance or furnishing of the Work. 7.2CONTRACTOR has studied carefully all reports of results of tests of asbestos-containing materials within the scope of Work. 7.3CONTRACTOR has correlated the results of all such observations, examinations, investigations, - 4 - explorations, tests, reports and studies with the terms and conditions of the Contract Documents. 7.4CONTRACTOR has given ENGINEER written notice of all conflicts, errors or discrepancies that he has discovered in the Contract Documents and the written resolution thereof by ENGINEER is acceptable to CONTRACTOR. *** REFERENCE STANDARDS *** Minimum Quality/Quantity: In every instance, quality level or quantity shown or specified is intended to be the minimum for the work to be performed. Except as otherwise specifically indicated, actual work may either comply exactly with that minimum (within specified tolerances), or may exceed that minimum within reasonable limits. In complying with requirements, indicated numeric values are either minimums or maximums as noted or as appropriate for context of the requirements. Refer instances of uncertainty to Engineer for decision before proceeding. Thereafter, on August 11, 1988, CAA notified the project engineer that it was seeking additional compensation of $104,653.00 on the basis that it had removed greater quantities of asbestos and had installed greater quantities of non-asbestos insulation than that reasonably contemplated in the contract. The Engineer rejected this claim, and CAA demanded arbitration of the claim pursuant to the General Conditions of the Contract, Paragraph 16.1. In response, the Board asserted a counterclaim against plaintiff for liquidated damages. On May 19, 1991, the arbitrators denied CAA's claim in its entirety and denied the Board's request for liquidated damages. - 5 - Thereafter, CAA initiated this action against the Board alleging that the arbitrator's award should be vacated pursuant to R.C. 2711.11(D), that the Board had been unjustly enriched, and that the Board has misrepresented the amount of work to be performed and had defrauded CAA. No record of the arbitration proceedings was presented to the trial court, however. On December 21, 1989, the Board moved for summary judgment as to all causes of action. CAA filed its brief in opposition on March 28, 1990. On March 23, 1990, the deposition testimony of Arbitrator Robert M. Rubin was filed with the court. This testimony established that the arbitration panel which heard the matter did not find CAA's claim that it had performed additional work to be credible, and did not find that the Board had incurred any damages due to plaintiff's failure to perform the project within the time set forth in the contract. The trial court subsequently granted the Board's motion for summary judgment and CAA now appeals. II. In its first, second, and third assignments of error, CAA asserts that the trial court erred in granting the Board's motion for summary judgment, because genuine issues of material fact exist as to whether the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final and definite award was not rendered. - 6 - With respect to procedure, summary judgment may be granted where it is established that: "(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 327. With respect to the relevant substantive law, R.C. 2711.01 provides, in pertinent part, as follows: "A provision in any written contract, except as hereinafter provided, to settle by arbitration a controversy thereafter arising out of such contract, or out of the refusal to perform the whole or any part thereof, 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 thereafter arising, from a relationship then existing between them or which they simultaneously create, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." Vacation of an arbitration award may be obtained pursuant to R.C. 2711.10 which provides, in relevant part, as follows: "In any of the following cases, the court of common pleas shall make an order vacating the award upon the application of any party to the arbitration if: "*** "(D) The arbitrators exceeded their powers, or so imperfectly executed them that a - 7 - mutual, final, and definite award upon the subject matter submitted was not made." As to those claims for vacation brought pursuant to R.C. 2711.10(D), which are premised upon the contention that the arbitrators exceeded their powers, the Supreme Court has explained: "given the presumed validity of an arbitrator's award, a reviewing court's inquiry into whether the arbitrator exceeded his authority, within the meaning of R.C. 2711.10(D), is limited. Once it is determined that the arbitrator's award draws its essence from the collective bargaining agreement and is not unlawful, arbitrary or capricious, a reviewing court's inquiry for purposes of vacating an arbitrator's award pursuant to R. C. 2711.10(D) is at an end." Findlay City School Dist. Bd. of Edn. v. Findlay Edn. Assn. (1990), 49 Ohio St. 3d 129, 132-133. As to claims, brought pursuant to R.C. 2711.10(D), which are premised upon the ground of manifest mistake, it has been stated: "In order for a court to set aside an award on the ground of manifest mistake, it must appear that there is a mistake of such a character that the arbitrator would have corrected it himself, had it been called to his attention; permitting such a manifest mistake to stand 'naturally works a fraud.' Pfleger v. Renner (1920), 13 Ohio App. 96. Thus, a mere error in judgment, or an erroneous conclusion of fact, will not constitute manifest mistake. Bates v. Pennsylvania RR. (App. 1937), 26 Ohio Law Abs. 114; Pfleger v. Renner, supra, at 103. Nor is manifest mistake demonstrated where it is shown that the arbitrator's award was not legally correct. Clover v. Columbus Retail Merchants Delivery, Inc., supra. Manifest mistake has not been demonstrated where the dissatisfied party merely disagrees with the - 8 - award on the basis that there were facts before the arbitrator from which he could have drawn a contrary conclusion." Warner v. CTL Engineering, Inc. (1983), 9 Ohio App. 3d 52, 54-55. In this case, CAA claims that there are genuine issues of material fact regarding whether vacation of the award was authorized pursuant to R.C. 2711.10(D) because the arbitrators did not follow the law regarding changed circumstances in connection with contract performance, warranties contained within specifications, and disclaimers. Because CAA did not submit a transcript, a statement of the evidence, or an agreed statement of the record in connection with these proceedings, these claims cannot be maintained. See F.S.N.O. Inc. v. Heintz (September 6, 1990), Cuyahoga App. 59163, unreported; Hechwalt v. Rosser (C.P. 1970), 28 Ohio Misc. 258. CAA's first, second, and third assignments of error are overruled. III. CAA next posits, in its remaining assignments of error, that genuine issue of material fact precluded the entry of summary judgment on CAA's claims for unjust enrichment, promissory estoppel, and misrepresentation. Concomitantly, CAA maintains that these claims are beyond the scope of its written agreement with the Board and are therefore not subject to the arbitration provision of Paragraph 16.1, but instead were properly raised in the court below. In opposition, the Board contends that these - 9 - causes of action fall within the scope of the arbitration clause, Paragraph 16.1, and were decided adversely to CAA because CAA could not prove that it performed additional work. Here again, because no record of the arbitration proceedings was presented, we must presume regularity and overrule the remaining assignments of error. The judgment is affirmed. - 10 - It is ordered that appellee recover from appellant their 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 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. FRANCIS E. SWEENEY, P.J., and BLANCHE KRUPANSKY, J. CONCUR. JUDGE JOHN F. CORRIGAN 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. .