COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67881 RICHARD A. MAHONEY : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION ROBERT THOMAS SECURITIES, INC.: : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 15, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 260627 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: ROBERT E. KENNEY III, ESQ. GEORGE L. McGAUGHEY, ESQ. 29100 Aurora Road, Suite 320 McDONALD, HOPKINS, BURKE & Solon, Ohio 44139 HABER CO., L.P.A. 2100 Bank One Center 600 Superior Avenue, East Cleveland, Ohio 44114 - 2 - DYKE, J.: Appellant appeals from the denial of his application to vacate an arbitration award. Upon appellant's employment with a branch office of appellee, he signed an agreement entitled a Registered Representative Agreement. This agreement contained an indemnification provision which was the basis of the dispute between the parties leading them to arbitration pursuant to another provision of the agreement. The arbitration was agreed to by both parties. Although appellant signed an agreement to submit to arbitration on September 8, 1992, he disputed the arbitration panel's jurisdiction to decide the indemnification issue. As part of the arbitration panel's determination and award, the panel considered the jurisdictional issue and denied appellant's motion to decline jurisdiction. The panel also found that appellant was liable on appellee's claim. The arbitration panel awarded $10,000.00 in favor of appellee. Each party owed a share of the forum fees. Appellant's share was $600.00. Appellant filed an application with the Court of Common Pleas to vacate the arbitration award for the reasons that the arbitrators exceeded their powers and determined that appellant was liable in the amount of $10,000.00 without citing a basis for the award. The trial court considered appellant's application to vacate, appellee's brief in opposition to that motion and appellee's motion to confirm. On August 11, 1994, the trial court granted appellee's motion to confirm the award and denied - 3 - appellant's motion to vacate. Appellant filed a timely notice of appeal with this court and asserted four assignments of error. I THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DENYING PLAINTIFF-APPELLANT'S APPLICATION TO VACATE ARBITRATION AWARD WITHOUT A HEARING WHERE NUMEROUS DISPUTED ISSUES OF MATERIAL FACT EXISTED AND WHERE PLAINTIFF-APPELLANT'S APPLICATION TO VACATE ARBITRATION AWARD ALLEGED A SET OF FACTS UPON WHICH THE ARBITRATION AWARD COULD BE DECLARED VOID AND/OR VACATED. Appellant argues that he was not compelled to submit to arbitration of the claims against him under any agreement with the appellee. Therefore, the arbitration panel lacked jurisdiction over those claims and the award is void. Appellant asserts that he alleged sufficient operative facts on this issue of jurisdiction to require the court to grant a hearing prior to denying appellant's motion to vacate the arbitration award. Neither of appellant's assertions are well taken. The issue of jurisdiction was submitted to and decided by the arbitration panel. Appellant asserts the identical arguments in his appellate brief as the arguments he asserted at the arbitration hearing for consideration by the panel. Appellant cannot reassert an issue for de novo review which he had submitted to the arbitration panel. The arbitrability of a dispute may itself be subject to arbitration if the parties so agree. Vulcan- Cincinnati, Inc. v. United Steelworkers of America (1960), 113 Ohio App. 360, 17 O.O. 2d 386, 173 N.E. 2d 709. Here, the parties agreed to submit the arbitrability question to arbitration. Plaintiff cannot wait until after an unfavorable decision and then attempt to recant her agreement. - 4 - Springfield Local Assn. of Classroom Teachers v. Springfield Local School Dist. Bd. of Edn. (1987), 37 Ohio App.3d 167, 168-69. The facts of the present case are analogous to those of the Springfield Local Assn. of Classroom Teachers case cited above. We find that the arbitration panel's decision as to jurisdiction is binding without evidence that the panel exceeded its authority or that the award is unlawful, arbitrary, or capricious. See, Marra Constructors, Inc. v. Cleveland Metroparks Sys. (1993), 82 Ohio App.3d 557. Furthermore, the trial court is not obligated to hold a hearing to determine a motion to vacate an arbitration award. Loc.R. 11(A) reads as follows: Motions, in general, shall be submitted and determined upon the motion papers. Oral arguments of motions may be permitted on application and proper showing. This rule clearly gives the trial court the discretion as to whether or not to render a ruling on a motion without a hearing if the parties apply for an oral argument. In this instance, neither of the parties applied for an oral argument before the court on appellant's motion to vacate. The court did not err in determining the motion upon the briefs filed in support and in opposition. Appellant's first assignment of error is overruled. II THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN GRANTING DEFENDANT-APPELLANT'S MOTION TO CONFIRM ARBITRATION AWARD WITHOUT A HEARING. - 5 - Appellant argues that the arbitrators were guilty of misbehavior and exceeded their powers. Appellant claims that he was entitled to a hearing based upon the following allegations: that no credible evidence of an enforceable arbitration clause was presented; the award was in excess of the prayer; and, the arbitration panel failed to cite a basis for its award. In challenging these findings of the arbitration panel, appellant essentially asked the Court of Common Pleas to review the evidence presented to the panel. The challenged findings are not allegations of fraud, corruption, undue means or even allegations that the panel exceeded its powers, as appellant asserts. Only under these circumstances would the court below be authorized to vacate an arbitration award. R.C. 2711.10. The legal and factual conclusions of awards obtained through binding arbitration are not reviewable in the common pleas court. A common pleas court is limited to ascertaining whether fraud, corruption, misconduct, arbitration impropriety or evident mistake made the award unjust or unconscionable. Russo v. Chittick (1988), 48 Ohio App.3d 101, paragraph one of the syllabus. Appellant's allegations do not constitute any of the above forms of misconduct nor are they instances of evident mistake. The panel was not guilty of mistake or misconduct in rendering an award without a cited basis. On the contrary, the arbitration panel clearly outlined the findings and conclusions which formed the basis of the award in a six page summary. Appellee requested relief in the form of actual damages, amounting to $7,294.00, plus - 6 - interest and attorneys' fees. Appellant cannot support his assertion that the $10,000.00 award amounted to an evident mistake. Furthermore, appellant's allegations did not require the trial court to hold a hearing. Loc.R. 11(A) allows determinations to be made on the briefs. Appellant's second assignment of error is overruled. III THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ORDERING TRANSFER OF THE CASE FROM JUDGE BRIAN J. CORRIGAN TO JUDGE ANTHONY O. CALABRESE, JR. Appellant argues that the court abused its discretion in transferring the case to Judge Calabrese pursuant to C.P.Sup.R. 4. Appellant claims that he was prejudiced by the transfer because Judge Calabrese is predisposed to ordering arbitration to resolve conflicts between these parties. We are not persuaded by appellant's argument. The rule cited by the court to allow transfer of this case governs the assignment of a case to the original judge in the event that the action is instituted, dismissed, then refiled. There may have been some confusion as to whether or not this case stemmed from another action involving the same parties, which had been originally assigned to Judge Calabrese. That case was referred to arbitration, but subsequently the claim was voluntarily dismissed by appellant. C.P.Sup.R. 4 would apply if this case was simply a refiling of the claim which had been dismissed. The parties agree - 7 - that this is not the case, although the issue of arbitrability under the parties' agreement is common to both cases. However, we do not find that appellant suffered from any prejudice by having Judge Calabrese rule upon the motions to vacate and confirm the arbitration award. Appellant does not present any evidence of bias on the part of Judge Calabrese, only a vague assertion that he is predisposed to ordering arbitration between these particular parties. This is totally unfounded. The record does not show any indication of bad faith or fraud in the transfer to Judge Calabrese's docket. Finally, appellant failed to timely raise an objection to the re-assignment of the case below. The transfer was journalized on April 29th, giving appellant almost four months before the court's ruling on his motion during which to object to the transfer. Any party objecting to reassignment must raise that objection at the first opportunity to do so. If the party has knowledge of the transfer with sufficient time to object before the new judge takes any action, that party waives any objection to the transfer by failing to raise that issue on the record before the action is taken. If the party first learns about the transfer after action is taken by the new judge, the party waives any objection to the transfer by failing to raise that issue within a reasonable time thereafter. The definition of reasonable time may well be controlled by time limits for motions for rehearing, reconsideration, or a new trial. [Berger v. Berger (1981), 3 Ohio App.3d 125,] 131. Mlinarcik v. E.E. Wehrung Parking, Inc. et al. (1993), 86 Ohio App.3d 134, 143. Appellant failed to show that Judge Calabrese was biased or that any fraud or bad faith was evident in the transfer. Nor could - 8 - appellant show how he was prejudiced by the transfer. Furthermore, appellant waived any objection to the transfer by failing to raise this issue in a timely manner. Appellant's third assignment of error is overruled. IV THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN GRANTING DEFENDANT-APPELLEE LEAVE TO FILE A BRIEF IN OPPOSITION TO PLAINTIFF-APPELLANT'S APPLICATION TO VACATE ARBITRATION WITHOUT A HEARING. Appellant asserts that the trial court abused its discretion when it failed to hold a hearing on appellee's motion for leave to file a brief in opposition to appellant's motion to vacate the award. Appellee requested leave to file the brief after the time period during which a response to a motion is considered timely. We do not find that the trial court abused its discretion in allowing appellee to file a brief in response to appellant's motion to vacate without a hearing. As stated above, the trial court is well within its authority to rule upon these motions without an oral hearing. The issues were well briefed and neither party requested a hearing at the time. Loc.R. 11(A). The court was also well within its authority to grant appellee's motion for leave to file a brief in opposition to appellant's motion to vacate. The brief in opposition was entitled "Robert Thomas Securities, Inc.'s Brief in Opposition to Mahoney's Application to Vacate Arbitration Award; and RT's Application to Confirm Award." In this instance, the brief in opposition to - 9 - appellant's motion to vacate was essentially a motion to confirm the award. The brief simultaneously addresses the issues raised by appellant and supports appellee's assertion that the arbitration award should be confirmed. Under R.C. 2711.09: 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. The award was rendered on August 2, 1993. Appellee's motion for leave to file a brief in opposition/motion to confirm was filed March 31, 1994, well within one year from the date of the award. The trial court did not abuse its discretion in granting appellee leave to file its motion and brief in opposition. Appellant's fourth assignment of error is overruled. The trial court's decision granting appellee's motion to confirm and denying appellant's motion to vacate the arbitration award is hereby affirmed. - 10 - It is ordered that appellee recover of appellant its 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. SPELLACY, P.J., AND NAHRA, J., CONCUR ANN DYKE JUDGE 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 journalization, .