COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59851 JENNIFER SINISGALLI, ET AL. : : : : JOURNAL ENTRY Plaintiff-Appellees : : AND vs. : : OPINION PARTRIDGE HOUSING CORP., INC. : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 6, 1992 CHARACTER OF PROCEEDING: Civil appeal from Berea Municipal Court No. 90-CVI-552 JUDGMENT: REVERSED AND FINAL JUDGMENT ENTERED FOR DEFENDANT. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellees: JENNIFER AND STEVE SINISGALLI, Pro Se 17100 Greenwood Drive Strongsville, Ohio 44136 For Defendant-Appellant: WILLIAM F. CHINNOCK Sinagra & Chinnock Co., L.P.A. 1030 Lakewood Avenue Lakewood, Ohio 44107 - 2 - KRUPANSKY, J.: Defendant-appellant Partridge Housing Corp., Inc. ("Partridge") appeals from a judgment of the Berea Municipal Court, Small Claims Division, in favor of plaintiffs-appellees Jennifer and Steve Sinisgalli ordering defendant to pay certain real property taxes on property transferred between the parties September 21, 1989. Plaintiffs agreed to purchase the residential property pursuant to a New Home Purchase Agreement & Acceptance (the "Agreement") executed August 1, 1989 prior to the completion of the construction of the residence. The parties subsequently prepared escrow instructions and defendant completed construction of the residence and obtained a Final Acceptance from plaintiffs dated prior to the closing of the transaction. The transaction closed without incident. The parties agree the escrow agent prorated the real estate taxes outstanding on the property for the period from January 1, 1989 to September 21, 1989 based upon the last available tax duplicate for the property. The last available tax duplicate prior to the closing was based upon the Cuyahoga County Auditor's valuation of the property before the residence was substantially completed. The Auditor's Office subsequently raised the tax valuation of the property for the 1989 tax year based upon an appraisal made prior to the closing after the residence had almost been completed. - 3 - Plaintiffs were unable to recoup any of the additional taxes from defendant and filed a complaint pro se February 26, 1990 alleging defendant "refuses to pay taxes on property they [defendant] owned previous (sic) to September 21, 1989." Defendant filed an answer denying liability and raising various affirmative defenses, including an arbitration clause in the Agreement. The matter proceeded to trial before the trial court after defendant failed to file a motion to stay the matter pending arbitration of the dispute. Defendant timely appeals from the trial court's judgment in favor of plaintiffs in the amount of $981.76, which equals the additional tax defendant would have paid during 1989 based upon the increased valuation, raising three assignments of error. Plaintiffs appeared pro se and filed a one page response. Prior to considering the merits of this appeal, we note that although defendant disputes the accuracy of the App. R. 9(C) statement of proceedings submitted by the trial court, we are bound by that statement since defendant failed to exhaust the remedies provided by App. R. 9(E) or file a mandamus action in this Court. Johnson v. Bureau of Motor Vehicles (Dec. 19, 1991), Cuyahoga App. No. 59375, unreported. Defendant's first assignment of error follows: WHERE, AS IN THE CASE AT BAR, PARTIES TO A WRITTEN AGREEMENT PROVIDE THAT ANY CONTROVERSY ARISING OUT OF THE AGREEMENT SHALL BE SETTLED BY ARBITRATION, AS A MATTER OF LAW UNDER OHIO REVISED CODE 2711.02, BOTH PARTIES HAVE AN ABSOLUTE RIGHT TO ARBITRATION, AND UPON THE EXERCISE OF SUCH RIGHT, - 4 - ANY COURT IN WHICH SUIT IS PENDING ON THE MATTER MUST STAY PROCEEDINGS UNTIL THE ARBITRATION IS HELD. Defendant's first assignment of error lacks merit. Defendant argues the trial court improperly considered the merits of this action and rendered judgment in favor of plaintiffs despite the existence of an agreement to arbitrate any disputes between the parties. However, for the reasons set forth below, we conclude defendant waived any right it may have had to arbitrate the property tax dispute. Defendant knew of the existence of the tax dispute sub judice without question at the latest when it was served a copy of the summons and complaint commencing this action. See, Richard L. Bowen & Assoc. v. 1200 West 9th Street, Ltd. Partnership (Oct. 24, 1991), Cuyahoga App. No. 61573, unreported. Although defendant's answer referred to the arbitration clause under the Agreement, defendant waived any right it may have had to demand arbitration of the tax dispute by failing to make a timely motion to stay the action in the trial court and demand arbitration by the American Arbitration Association pursuant to R.C. 2711.02 and the Agreement. Id. at 7. The arbitration clause in the standard form Agreement provides as follows: Any controversy or claim which does arise, or which arises out of construction or sale of the New House, Condominium, Real Property, or Improvement thereto which is the subject of this contract, and which cannot be settled by buyer and seller, shall be settled by arbitration in Cleve- - 5 - land, Ohio at the instance of either party hereto, such arbitration to be in accordance with the industry arbitration rules of the American Arbitration Association; and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. (Emphasis added). The property tax dispute between the parties may fall within the scope of this arbitration provision if broadly construed as a claim arising out of the "sale" of the property. See, Independence Bank v. Erin Mechanical (1988), 49 Ohio App. 3d 17 (an arbitration clause should not be denied effect "unless it can be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute"). However, the trial court ruled to the contrary based upon the equally plausible view that allocation of the property taxes was a simple and distinct mathematical matter which did not "arise out of the construction or sale" of the property. App. R. 9(C) Statement at 1-2. Nevertheless, we need not make any determination concerning this issue since, assuming arguendo the arbitration provision applies to the property tax dispute, the arbitration provision is not self-executing and defendant failed to make the requisite motion to stay the action or demand arbitration under the Agreement pursuant to R.C. 2711.02. R.C. 2711.02 provides as follows: If any suit is brought upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue - 6 - involved in such suit or proceedings is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration. (Emphasis added). We reject defendant's contention a party has an "absolute right" to arbitration under an agreement and may indefinitely delay without making a motion to stay the action in the trial court. Since defendant completely failed to file any "application" to stay the action under R.C. 2711.02, we need not determine whether defendant's failure to make the necessary arbitration demands under the Agreement within two months of the commencement of the action would have rendered defendant in "default in proceeding" with the arbitration within a reasonable time contrary to R.C. 2711.02. Standard Roofing Co. v. Construction Co. (1977), 54 Ohio App. 2d 153, 158. Defendant's motions for summary judgment and a directed verdict in the trial court did not properly request a stay of the action pending arbitration. Such motions sought to obtain judgment in favor of defendant on the merits rather than to stay the action. However, plaintiffs' waiver of any right they may have had to arbitrate the dispute under the Agreement by filing an action in the trial court does not thereby waive their underlying claims. Cleveland Central Excavating, Inc. v. City of - 7 - Westlake (Mar. 21, 1985), Cuyahoga App. Nos. 48482 and 48483, unreported. Motions for summary judgment or a directed verdict are not adequate substitutes for a proper motion to stay the action pending arbitration pursuant to R.C. 2711.02 and defendant's failure to file a proper motion waives any right defendant may have had to demand arbitration of the property tax dispute. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error follows: WHERE, AS IN THE CASE AT BAR, PARTIES ENTER INTO A SETTLEMENT AGREEMENT AT THE CLOSE OF A TRANSACTION WHICH PROVIDES FOR RELEASE AND DISCHARGE OF ALL CLAIMS AND DEMANDS UNDER THE ORIGINAL AGREEMENT, SUCH RELEASE EXTINGUISHES ALL CLAIMS AND ACTS AS AN ESTOPPEL UPON THE PARTIES TO CLAIM THE RIGHTS WHICH HAVE BEEN RELINQUISHED BY THE RELEASE. Defendant's second assignment of error lacks merit. Defendant contends the trial court erroneously concluded the Final Acceptance executed by plaintiffs the day before the closing of the transaction failed to settle and release defendant from liability for the property taxes at issue sub judice. The Final Acceptance form, set forth on defendant's letterhead, provides in pertinent part as follows: The undersigned purchasers acknowledge and accept the property as having been completely constructed to our satisfaction in accordance with the plans, specifications and contracts as (sic) we hereby release and discharge Partridge Housing Corp., Inc. from all claims and demands under the construction contract. (Emphasis added). - 8 - When a contract, such as the release in the case sub judice, is clear and unambiguous "the court must give effect to the agreement's express terms." Shifrin v. Forest City Enterprises, Inc. (Apr. 25, 1991), Cuyahoga App. No. 58068, unreported at 4 (citing Seringetti Constr. Co. v. Cincinnati (1988), 51 Ohio App. 3d 1). Accordingly, the release expressly relates only to construction having been completed in accordance with plans, specifications and contracts and does not by its own terms apply to the sale of the premises or allocation of the property taxes among the parties. Since the trial court properly followed the express language of the release as agreed by the parties to determine that it did not apply to the property tax dispute, defendant's contention to the contrary must be rejected. Accordingly, defendant's second assignment of error is overruled. Defendant's third assignment of error follows: WHERE, AS IN THE CASE AT BAR, A REALTY AGREEMENT PROVIDES FOR PRORATION OF REALTY TAXES BETWEEN THE PARTIES "ON THE BASIS OF THE LAST TAX BILL" AND THE TAXES ARE CORRECTLY PRORATED ON THE BASIS OF THE LAST TAX BILL, THE SELLER IS NOT THEREAFTER LIABLE FOR AN INCREASE IN REALTY TAXES DESPITE THE FACT THE SUBSEQUENT INCREASE IS THE RESULT OF AN INSPECTION HELD PRIOR TO CLOSING THE TRANSACTION. Defendant's third assignment of error is well taken. Finally, defendant argues the trial court erroneously interpreted the Agreement and escrow instructions, which provide the real estate taxes at issue were to be paid by plaintiffs, - 9 - since the additional taxes were attributable to changes made by the County Auditor after the closing tax bill. The Agreement provides in pertinent part as follows: General taxes shall be pro-rated as of the date of filing of deed for record or the date of possession, whichever is earlier, on the basis of the last tax bill. Any respread taxes or special assessments, assessed against, or chargeable, as of the date of filing of the deed for record are to be paid by Seller. (Emphasis added). However, the Agreement was supplemented by the following hand- written clause: The attached supplementary agreement to form part of this contract. The Agreement in the record, however, does not contain these supplementary provisions. Consequently, we are bound to presume regularity and accept the trial court's interpretation of the Agreement allocating the disputed property taxes to defendant. Calhoun v. McCullough (Apr. 25, 1991), Cuyahoga App. No. 60271, unreported at 8-9. Nevertheless, based upon the terms of the escrow agreement, we are compelled to reverse the judgment of the trial court and enter judgment in favor of defendant pursuant to App. R. 12(B). This Court has previously held that escrow instructions control to the extent a purchase agreement and escrow instructions conflict. Janca v. First Federal S & L Ass'n of Cleveland (1985), 21 Ohio App. 3d 211, 213. Accordingly, since the escrow instructions in the case sub judice unambiguously provide for the proration of taxes based upon the last available - 10 - tax duplicate, the trial court's judgment in favor of plaintiffs must be reversed. Id.; Brecksville Development Co. v. Brecksville One, Ltd. (Nov. 10, 1988), Cuyahoga App. No. 54549. Plaintiffs concede the escrow agent prorated the taxes at the time the transaction closed based upon the last available tax duplicate and the increased taxes on the property were not reflected on the last available tax bill prior to the closing. Plaintiffs' arguments merely seek to circumvent the effect of their agreement to prorate the property taxes based upon the last tax bill prior to the closing and are unfounded. Accordingly, defendant's third assignment of error is well taken. The judgment of the trial court is hereby reversed and final judgment is entered in favor of defendant. Judgment accordingly. - 11 - This cause is reversed and final judgment is entered in favor of defendant. It is, therefore, considered that said appellant(s) recover of said appellee(s) 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. ANN McMANAMON, P.J., and BLACKMON, J., CONCUR JUDGE BLANCHE KRUPANSKY 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. .