COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68548 FLOORING SPECIALTIES : : ACCELERATED DOCKET : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : MORAN CONSTRUCTION, INC. : OPINION : : PER CURIAM DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 10, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-270005. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Keith R. Kraus, Esq. Kenneth A. Kraus, Esq. Kraus & Kraus 1800 Ohio Savings Plaza 1801 East Ninth Street Cleveland, OH 44114 For Defendant-Appellee: Michael J. Warrell, Esq. 14650 Detroit Avenue, Suite 118 Lakewood Center West Lakewood, OH 44107 -2- PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.App.R. 25, the record from the Cuyahoga County Court of Common Pleas and the briefs of counsel. Flooring Specialties, plaintiff-appellant, appeals from the trial court's denial of its motion to vacate arbitration award pursuant to R.C. 2711.10. Plaintiff-appellant assigns one error for this court's review. Plaintiff-appellant's appeal is not well taken. I. THE FACTS On April 8, 1993 Flooring Specialties, plaintiff-appellant, entered into a written contract with Moran Construction, Inc., defendant-appellee, whereby plaintiff-appellant was to install a hardwood floor in the new cafeteria located at Gilmour Academy in Gates Mills, Ohio. Plaintiff-appellant purchased the oak flooring material for the project from a manufacturer named Kentucky Wood Floors. Upon installation, the hardwood floor buckled badly creating both a safety and aesthetic problem necessitating replacement. While both parties agreed that replacement of the floor was necessary, they disagreed as to the cause of the initial failure. Flooring Specialties, plaintiff-appellant, maintained that the hardwood floor buckled due to an extensive moisture problem in the concrete sub-floor. Moran Construction, Inc., defendant-appellant, contended that plaintiff-appellant had failed to properly install the floor. The dispute was submitted to arbitration pursuant to the terms of the contract between the -3- parties. The main question before the arbitrator was whether Flooring Specialties, plaintiff-appellant, properly installed the wood floor. The arbitration hearing was conducted on March 23, 1994 before a single arbitrator appointed by the American Arbitration Association. At the arbitration hearing, Flooring Specialties, plaintiff-appellant, presented Bill Adams, a representative of Kentucky Wood Floors, as an expert witness. Allegedly, Mr. Adams testified that, in his opinion, plaintiff-appellant's installation of the hardwood floor was proper and in accordance with Kentucky Wood Floors' installation specifications. There is no transcript in the record of the arbitration hearing. After a full day of arbitration at the close of all testimony, the arbitrator requested a copy of Kentucky Wood Flooring's written installation specifications for the wood flooring product at issue. Neither party possessed the requested documentation so Flooring Specialties, plaintiff-appellant, called Kentucky Wood Floors in an attempt to have the company send the requested specifications by facsimile transmission to the arbitrator. Kentucky Wood Floor sent the specifications as requested and they were submitted to the arbitrator for his review. There is a dispute as to whether Flooring Specialties objected to the introduction of the specification in question. On April 5, 1994 the arbitrator issued an award in favor of Moran Construction, Inc., defendant-appellee, in the amount of $36,593. The arbitrator's award allegedly relied heavily upon the -4- specifications requested by the arbitrator at the close of the arbitration hearing which, both parties agreed, favored defendant- appellee's position. On May 5, 1994 Flooring Specialties, plaintiff-appellant, filed a motion to vacate the arbitration award in Cuyahoga County Common Pleas Court. On May 19, 1995 Moran Construction, Inc., defendant- appellee, filed a motion to confirm the arbitration award. The trial court conducted a hearing on the motions on June 28, 1994. On August 15, 1994 the trial court entered judgment in favor of Moran Construction, Inc., defendant-appellee. The trial court issued findings of fact and conclusions of law pursuant to Flooring Specialties', plaintiff-appellant's, request on January 25, 1995. On February 13, 1995 Flooring Specialties, plaintiff-appellant, filed a timely notice of appeal from the judgment of the trial court. II. ASSIGNMENT OF ERROR Flooring Specialties', plaintiff-appellant's, sole assignment of error states: THE TRIAL COURT ERRED, TO THE PREJUDICE OF THE APPELLANT, BY FAILING TO VACATE THE ARBITRATION AWARD DUE TO THE PROCEDURAL IMPROPRIETY COMMITTED BY THE SINGLE ARBITRATOR AT THE ARBITRATION HEARING. Plaintiff-appellant contends that the trial court erred in failing to vacate the arbitration award. Specifically, plaintiff-appellant maintains that the arbitrator's request for the installation specifications for the wood flooring in question constituted an outrageous and unlawful departure by the -5- arbitrator from his designated role as a neutral factfinder given that the arbitrator affirmatively sought out and introduced evidence not presented by either party. Plaintiff-appellant maintains further that by requesting the specifications at the end of the arbitration hearing, the arbitrator denied plaintiff- appellant the opportunity to have its expert witness explain and/or testify regarding the applicability of the specifications document thereby depriving plaintiff-appellant the due process of law. R.C. 2711.10 which governs motions to vacate an arbitration award provides: Court may vacate award. 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 arbitrator, or any of them. (C) The arbitrators were guilty of misconduct 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, final, and definite award upon the subject matter submitted was not made. If an award is vacated and the time within which the agreement required the award to be -6- made has not expired, the court may direct a rehearing by the arbitrators. It is well settled that arbitration awards are presumed valid and an appellate court may not substitute its judgment for that of an arbitrator selected by the parties. Marra Constructors, Inc. v. Cleveland Metroparks Sys. (1993), 82 Ohio App.3d 557 at paragraph one of the syllabus. When parties agree to submit their dispute to binding arbitration, they agree to accept the result, regardless of its legal and factual accuracy. Cleveland v. Fraternal Order of Police, Lodge No. 8 (1991), 76 Ohio App.3d 755; Huffman v. Valletto (1984), 15 Ohio App.3d 61. Appellate review of an arbitration award does not extend to the merits of such an award absent evidence of material mistake or extensive impropriety. Goodyear v. Local Union no. 200 (1975), 42 Ohio St.2d 2d 516. The Ohio Supreme Court in Goodyear, supra, at 520 stated: Were the arbitrator's decision to be subject to reversal because a reviewing court disagreed with findings of fact or with an interpretation of the contract, arbitration would become only an added proceeding and expense prior to final judicial determination. Accordingly, an arbitration award may not be vacated absent clear showing of fraud, misconduct, or gross procedural improprieties. King v. Sentry Claims Serv. (1991), 71 Ohio App.3d 701 at paragraph one of the syllabus (emphasis added). -7- As noted above, the parties failed to provide the common pleas court or this court with a transcript or other complete record of the arbitration proceedings in support of their respective arguments. Absent an adequate record exemplifying a party's claims of error in this context, an appellate court must presume regularity of the arbitration proceedings and the resulting arbitration award. Marra Constructors, Inc. v. Cleveland Metroparks Sup., supra; Motor Wheel Corp. v. Goodyear Tire & Rubber Co. (1994), 98 Ohio App.3d 45. However, the transcript of the hearing conducted by the trial court on the parties' respective motions to vacate/confirm the arbitration award reveals that the parties adequately set forth the evidentiary basis of their respective positions to enable this court to conduct a meaningful review. In the case sub judice, plaintiff-appellant contends that the arbitrator's request for installation specifications for the wood flooring product at issue was improper. A review of the record before this court fails to support plaintiff-appellant's assertion. The arbitrator, in an attempt to reach a proper and fully informed decision, requested a document which he felt would be helpful during his deliberations. Plaintiff-appellant agreed to obtain the document from Kentucky Wood Floors, the manufacturer of the flooring, and provide the document to the arbitrator for his review. The fact that plaintiff-appellant failed to review the document prior to its submission or that the document purported to favor defendant-appellee's position does -8- not lead one to the conclusion that the arbitrator committed gross procedural improprieties by attempting to gather sufficient information upon which he could base an informed ruling. In addition, the fact that the arbitrator requested the document at the close of the arbitration hearing did not deprive plaintiff- appellant of due process of law given that plaintiff-appellant admittedly did not choose to seek a continuance of the arbitration hearing for the purpose of determining the scope and content of the requested specifications. Accordingly, the trial court did not err in denying plaintiff-appellant's motion to vacate arbitration award. Plaintiff-appellant's sole assignment of error is not well taken. Judgment of the trial court is affirmed. -9- 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 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. PATRICIA BLACKMON, PRESIDING JUDGE DAVID T. MATIA, JUDGE JAMES M. PORTER, 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 .