COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66695 JUDITH WIENCLAW, ET AL. : : Plaintiffs-Appellees : : JOURNAL ENTRY -vs- : AND : OPINION MAYRIDGE PODIATRY ASSOCIATES, : INC., ET AL. : : Defendants-Appellants : DATE OF ANNOUNCEMENT OF DECISION: MARCH 9, 1995 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-210367 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellees: WILLIAM S. JACOBSON (#0006013) JOEL LEVIN (#0010671) NURENBERG, PLEVIN, HELLER & McCARTHY CO., L.P.A. 1370 Ontario - First Floor Cleveland, Ohio 44113-1792 For Defendants-Appellants: MICHAEL G. POLITO (#0051930) HILDEBRAND, WILLIAMS & FARRELL 21430 Lorain Road Fairview, Ohio 44126 - 2 - 2 SPELLACY, P.J.: Mayridge Podiatry Associates, Inc. and Matthew Polito, D.P.M., ("appellants") appeal the confirmation of an arbitration award and raise three assignments of error: I. THE COURT OF COMMON PLEAS ERRED WHEN IT IMPROP- ERLY GRANTED APPELLEES' MOTION TO APPOINT AN ARBITRATOR, RESULTING IN AN ARBITRATION PANEL IN WHOSE SELECTION APPELLANT MAYRIDGE HAD NO INPUT. II. THE COURT ERRED IN DENYING APPELLANT MAYRIDGE'S MOTION TO VACATE THE ARBITRATION AWARD WHEN THE AWARD WAS PROCURED BY IRREGULAR PROCEDURES WHICH RENDERED THE AWARD INEQUITABLE. III. THE ORDER GRANTING APPELLEES' MOTION TO APPOINT AN ARBITRATOR WAS ERRONEOUS BECAUSE JUDGE SAFERIN WAS DIVESTED OF JURISDICTION TO ENTER SUCH AN ORDER AS A RESULT OF APPELLEES HAVING VOLUNTARILY DISMISSED THEIR PENDING CASE. I. In May 1991 Judith Wienclaw and Phillip Wienclaw ("appellees") brought a medical malpractice and loss of consortium action against appellants. Eventually appellees and appellants executed the following agreement: We, the undersigned, do hereby agree that the case of Judith Wienclaw, et al. v. Mayridge Podiatry Associates, Inc., et al., Cuyahoga County Common Pleas Case No. 210367, Judge James F. Kilcoyne, will be dismissed without prejudice and that the plaintiffs' claims will be submitted to a binding arbitration. Plaintiffs' arbitrator and Defendants' arbitrator are to be disclosed no later than November 15, 1992. The two arbitrators will select a third, neural (sic) arbitrator no later than December 15, 1992. The matter is to be arbitrated no later than March 1, 1993. A decision by the majority of the arbitration - 3 - 3 panel will be final and binding among all the parties. The Defendants' expert's report is due by February 1, 1993. If it is not submitted by that time, Defendant may not present any expert testimony at the arbitration. The parties agree that expert reports may be used in lieu of live testimony at the arbitration. The arbitrators have the authority to decide all issues of fact and law between the parties. The arbitration award will have the effect of a judgment and may be enforced as such. With respect to any items not specified herein, Ohio law will apply. Plaintiffs agree that after the arbitration is had, judgment is rendered by the arbitra- tors, they will dismiss the case of Judith Wienclaw, et al. v. Mayridge Podiatry Associ- ates, Inc., et al., Cuyahoga County Common Pleas Case No. 210367, with prejudice. Appellees designated Joseph Condeni as their arbitrator on November 3, 1992, and, on December 3, 1992, they dismissed their medical malpractice and loss of consortium action without prejudice under Civ.R. 41(A)(1). On December 18, 1992, appellees notified appellants, who had failed to designate an arbitrator, that they would file an application for the appointment of an arbitrator if no defense arbitrator was designated by December 21, 1992. Appellants complied by designating Donna Congeni. On January 11, 1993, appellants sent a letter to appellees designating Thomas Terry, III, to replace Congeni, who had removed herself after discovering a conflict of interest. Appellees objected to Terry, asserting that he, too, had a conflict of - 4 - 4 interest. Appellants chose Donald Switzer to replace Terry, but they neglected to inform appellees. On March 3, 1993, appellees filed an application for appoint- ment of an arbitrator under R.C. 2711.04. On April 14, 1993, the trial court appointed Joyce Barrett as the third arbitrator. The trial court later corrected its entry to reflect that Barrett was appellants' arbitrator. Condeni and Barrett then selected Mario deCaris as the third arbitrator. The matter was arbitrated and the arbitrators rendered a unanimous decision for appellees. Appellees then filed an appli- cation to confirm the award under R.C. 2711.09 and appellants filed an application to vacate the award under R.C. 2711.10. The trial court granted appellees' application and confirmed the award. II. In their first assignment of error, appellants contend the trial court erred when it appointed an arbitrator. Section 2711.04 provides in pertinent part: If, in the arbitration agreement, provision is made for a method of naming or appointing an arbitrator or an umpire, such method shall be followed. If no method is provided therein, or if a method is provided and any party thereto fails to avail himself of such method, or if for any other reason there is a lapse in the naming of an arbitrator or an umpire, or in filling a vacancy, then upon the application of either party to the controversy the court of common pleas in the county in which the arbitration is to be held shall, within fifteen days after such application is made, appoint an arbitrator or umpire, who shall act - 5 - 5 under said agreement with the same effect as if he had been specifically named therein. (Emphasis added). Appellants argue no lapse or delay occurred in the selection process because Terry remained their arbitrator until they selected Switzer. Appellants acknowledge, however, that they agreed to replace Terry but never informed appellees of their new selection. We find no error in the trial court's conclusion that appellants left their arbitration selection open. Accordingly, appellants' first assignment of error is not well taken. III. In their second assignment of error, appellants contend the trial court erred when it denied their application to vacate the arbitration award. R.C. 2711.10 provides: 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: (A) The award was procured by corruption, fraud, or undue means. (B) There was evidence partiality or corruption on the part of the arbitrators, or any of them. (C) The arbitrators were guilty of misco- nduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced. (D) The arbitrators exceeded their powers, or so imperfectly executed them that a mutual, - 6 - 6 final, and definite award upon the subject matter submitted as not made. If an award is vacated and the time within which the agreement required the award to be made, has not expired, the court may direct a rehearing by the arbitrators. These grounds are comprehensive. Schafer v. Allstate Ins. Co. (1992), 63 Ohio St.3d 708, 711. "R.C. 2711.10 limits judicial review of arbitration claims of fraud, corruption, misconduct, an imperfect award, or that the arbitrator exceeded his authority." Goodyear v. Local Union No. 200 (1975), 42 Ohio St.2d 516, paragraph two of the syllabus. Appellants based their application to vacate on several grounds: the appointment of an arbitrator, the appointment of an arbitrator forty-five days instead of fifteen days after the filing of the application for the appointment of an arbitrator, the initial erroneous appointment of the arbitrator as the third arbitrator instead of the defense's arbitrator, and the choice of Barrett as the appointed arbitrator, arguing Barrett is unqualified to arbitrate a medical malpractice case. None of these assertions is a ground for vacating an award under R.C. 2711.10. Appellants argue that Goodyear and Huffman v. Valletto (1984), 15 Ohio App.3d 61, expanded the R.C. 2711.10 grounds to encompass a showing of any irregularity. Both Goodyear and Huffman, however, focus on the conduct of the arbitrators. Here, appellants are not asserting Barrett or the other two arbitrators acted improperly. Accordingly, appellants' second assignment of error is not well taken. - 7 - 7 IV. In their third assignment of error, appellants contend that the trial court lacked jurisdiction to appoint an arbitrator. First, appellants argue the trial court lacked jurisdiction because appellees had dismissed their malpractice and loss of consortium action without prejudice under Civ.R. 41(A)(1). The application for appointment of an arbitrator, however, was not a continuation of the malpractice and loss of consortium action. An application for appointment of an arbitrator need not be coupled with an underlying action. See R.C. 2711.04. Second, appellants argue the application for appointment of an arbitrator should have been assigned to the administrative judge for the court of common pleas, not the judge who had been assigned the medical malpractice and loss of consortium action. This 1 argument is based on C.P.Sup.R. 4. A party objecting to the 1 C.P.Sup.R. 4 provides: As used in these rules, "individual assignment" systems is that system in which, upon the filing in, or transfer to, a division of the court of a civil case, or upon arraignment in a criminal case, a case immediately is assigned by lot to a judge of the division, who becomes primarily responsible for the determination of every issue and proceeding in the case until its termination. Under this system, all preliminary matters, including requests for continuances, shall be submitted for disposition to the judge to whom the case has been assigned or, if the assigned judge is unavailable, to the administrative judge. Each multi-judge general, domestic relations, and juvenile division of the court - 8 - 8 assignment of a case must object at the first opportunity. Mlinarcik v. E.E. Wehrung Parking, Inc. (1993), 86 Ohio App.3d 134. Here, appellants failed to object at their first opportunity, waiving their right to raise assignment of the case as error. Accordingly, appellants' third assignment of error is not well taken. Judgment affirmed. of common pleas shall adopt the individual assignment system for the assignment of all cases to judges of the division. In any instance where a previously filed and dismissed case is refiled, that case shall be reassigned to the judge originally assigned by lot to hear it unless, for good cause shown, that judge is precluded from hearing the case. - 9 - 9 It is ordered that appellees recover of appellants 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 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. DONALD C. NUGENT, J. and TERRENCE O'DONNELL, J., CONCUR. LEO M. SPELLACY PRESIDING 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 .