COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71695 THEODORE CARTER, ET AL. : : : Plaintiffs-Appellees : : JOURNAL ENTRY v. : AND : OPINION MARILYN WEINSTEIN, ET AL. : : : Defendants-Appellants : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 9, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-267952 JUDGMENT: Affirmed as Modified. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellees: For Defendants-Appellants: THEODORE CARTER, pro se CLARENCE PILWALLIS, ESQ. JEAN CARTER, pro se 4417 Milford Road P.O. Box 221105 Parma, Ohio 44134 Beachwood, Ohio 44122 -2- KARPINSKI, P.J.: Defendants-appellants Marilyn and Melvin Weinstein (the Weinsteins ) appeal from an order of the trial court entering judgment on a non-binding arbitration award in favor of their former tenants, plaintiffs-appellees Theodore and Jean Carter (the Carters ). This action was originally commenced on April 12, 1993, in the Cleveland Heights Municipal Court Small Claims Division. Although the exact nature of the dispute is not clear from the complaint, the Carters pro se sought $1900 in damages for a dispute concerning the leased premises, an alleged assault, and automobile towing charges. The Weinsteins denied the allegations and filed a counterclaim for $5,313.64 in damages for alleged nonpayment of rent and damage to the premises. The matter was thereafter transferred to the regular docket of the municipal court because the Weinsteins' claim exceeded the monetary jurisdiction of small claims court. The Carters obtained counsel, the parties filed amended pleadings, and the matter was ultimately transferred to the Cuyahoga County Common Pleas Court. On September 16, 1994, the common pleas court referred the matter to non-binding arbitration. The arbitrators' award, filed December 5, 1994, found against each party on their respective claims and counterclaims. As a result, neither party recovered a monetary judgment against their adversary. -3- The Weinsteins filed a notice of appeal de novo from the non- binding arbitration award. The trial court conducted a pretrial, granted the motion of the Carters' counsel to withdraw, and originally scheduled the matter for trial. Later, however, the court again referred the matter to arbitration. The clerk entered notice that a copy of the order referring the matter to a second arbitration was mailed to the parties. The matter proceeded to a second arbitration on September 28, 1995. Neither the Weinsteins nor their counsel appeared at the scheduled hearing. On October 4, 1995, the arbitrators awarded the Carters a total amount of $1,886.55 on counts one, four, and five. The arbitrators found against the Carters on counts two and three of their complaint and against the Weinsteins on their counterclaim for failure to prosecute. The Weinsteins thereafter filed a notice of appeal de novo from the second arbitration award. Two weeks later, the Weinsteins also filed a motion to dismiss the second arbitration. As grounds they asserted res judicata and the Carters' filing of bankruptcy during the pendency of the first arbitration. Approximately six months later, on May 13, 1996, the Weinsteins filed a motion for an oral hearing on their pending motions. The trial court ultimately resolved the matter by entering the following order: Arbitration hearing being held and D failing to appear, the arbitrator's [sic] award in the amount of $1,700 [sic] is confirmed as a final judgment, and this case is removed from this Court's docket. -4- The Weinsteins, through their trial counsel, timely appeal. Although the Weinsteins assert five assignments of error1, none is separately briefed or argued in compliance with App.R. 16. The Carters pro se filed a handwritten and often illegible brief in opposition. The crux of the Weinsteins' appeal is that they regret having sought an appeal de novo from the first arbitration proceeding, which awarded no monetary judgment against them, because the second arbitration panel awarded a monetary judgment against them. The Weinsteins complain that had they known the Carters filed a petition for bankruptcy they would never have filed an appeal de novo because any debt by the Carters to them would be discharged and noncollectable and they unnecessarily risked a judgment against themselves. The Weinsteins' first and fourth assignments raise related issues. They complain that the trial court did not conduct an oral hearing or rule in open court on their notices of appeal from the successive arbitration awards. Trial courts are not required, however, to conduct oral hearings or rule in open court on notices of appeal from non-binding arbitration. Cuyahoga County Common Pleas Court Local Rule 29, which governs court-ordered arbitration, does not require an oral hearing or ruling in open court. Loc.R. 29, Part VII(A)(1) specifically provides that filing the notice, along with an affidavit that the appeal is not taken for delay, and 1 The Weinsteins' assignments of error are set forth in the Appendix. -5- repaying the arbitration costs trigger the appeal. There is no need for any further proceedings. This procedure is consistent with the common pleas court practice of ruling in chambers, without oral hearings, on motions when there are no factual disputes. See Loc.R. 11(A). The Weinsteins' second argument complains that the matter was referred to a second non-binding arbitration. The record shows that the original arbitration hearing was scheduled for November 18, 1994. Documents in the record submitted by the Weinsteins, however, indicate that on October 7, 1994, the Carters filed a petition for relief in federal Bankruptcy Court under 11 U.S.C. Chapter 7. The filing of such a petition automatically stays judicial proceedings against the debtors, including the scheduled non-binding arbitration against the Carters in this case. 11 U.S.C. 362. As a result, the matter never should have proceeded to the first arbitration hearing and any such proceedings were a nullity. The trial court's subsequent order referring the matter to non-binding arbitration a second time, after the Carters' discharge in bankruptcy, corrected, however, any error that arose from referring the matter to arbitration while the automatic stay under the Bankruptcy Code was in effect. Only one valid arbitration proceeding took place in this case. Even if we were to accept as true the Weinsteins' argument that the trial court improperly referred the matter to arbitration twice, the erroneous referral of a matter to non-binding arbitration does not constitute -6- reversible error. Cole v. Central Ohio Transit Auth. (1984), Ohio App.3d 312, 314. The Weinsteins' third argument lacks merit for the same reason. The trial court was not required to grant their motion to dismiss the second arbitration. As noted above, scheduling the matter for the second arbitration after the conclusion of the bankruptcy proceeding cured any error from scheduling the matter for the first arbitration. Contrary to their argument, the Weinsteins' motion did not mention Civ.R. 60(B) and did not raise grounds for relief under that provision. Although it may not be courteous, it does not constitute fraud to file a petition for relief under the Bankruptcy Code without giving prior notice to an adversary in pending litigation. Thus the motion to dismiss did not raise any valid grounds. The Weinsteins' third assignment is that they were deprived of their right to a jury trial, because the trial court entered final judgment against them. We note at the outset that their reliance on R.C. Chapter 1907, which governs proceedings in county courts, is misplaced because the proceedings in this case occurred in a common pleas court and were governed by Loc.R. 29. In any event, this court has held that the failure of a party to appear and participate in a scheduled non-binding arbitration proceeding waives any right to appeal de novo. Brown v. Huff (Dec. 22, 1994), Cuyahoga App. No. 67378, unreported; Prochazka Plumbing v. Potts (Nov. 3, 1994), Cuyahoga App. No. 67107, unreported; Basta v. -7- Ameritrust Co. (Aug. 24, 1989), Cuyahoga App. No. 55870, unreported. The record in this case shows that the clerk of the trial court duly mailed notice that the matter was set for arbitration. There is no dispute that neither the Weinsteins nor their counsel appeared at the scheduled arbitration hearing in this case. A trial court does not abuse its discretion by finding a waiver of the right to appeal de novo when a party and its counsel fail to participate in the arbitration proceedings.2 Assignments of Error One through Five are overruled. We note, however, that the October, 1995 award, based on the evidence presented after the Weinsteins failed to appear, was for $1,886.55, rather than $1700. The trial court's judgment for the Carters is corrected to read $1,886.55. Judgment is affirmed as modified. Judgment accordingly. 2 Comments in the briefs on appeal indicate there may be a factual dispute concerning whether the Weinsteins failed to receive notice of the scheduled arbitration hearing. Such a claim should be raised by proper motion under Civ.R. 60(B). Because no such motion is in the record, we express no opinion concerning the merits of this claim or even the appropriateness of such a motion at this time. -8- -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. PATTON, J., and ROCCO, J., CONCUR. DIANE KARPINSKI PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). -10- Appendix 1. TRIAL COURT ERRED TO PREJUDICE OF APPELLANTS BY FAILING TO RULE IN OPEN COURT ON APPELLANTS APPEAL DE NOVO AND A REQUEST FOR AN ORAL HEARING ON THE AWARD MADE BY THE FIRST ARBITRATION BOARD IN FAVOR OF THE APPELLANTS, WHICH WAS SIGNED BY ALL THREE MEMBERS OF THE ARBITRATION BOARD, IN CASE NO. 56164, SEE EXHIBIT K ATTACHED AND MADE A PART HEREOF. 2. TRIAL COURT ERRED WHEN AFTER A PRETRIAL WHICH WAS HEARD ON JUNE 2, 1995, AND A TRIAL DATE WAS SET FOR JULY 5, 1995, THE TRIAL COURT, WITHOUT THE CONSENT OR REQUEST OF THE APPELLANTS, REFERRED THE CASE BACK TO ANOTHER ARBITRATION HEARING, WHEN, IN FACT, THE APPELLANTS HAD A JURY DEMAND ENDORSED ON THEIR ANSWER AND COUNTER CLAIM; SEE CIVIL RULE 38(A)&(B) JURY TRIAL OF RIGHT; 38(A) RIGHT PRESERVED. THE RIGHT TO TRIAL BY JURY SHALL BE PRESERVED TO THE PARTIES INVIOLATE. 38(B) ANY PARTY MAY DEMAND A TRIAL BY JURY ON ANY ISSUE TRIABLE OF RIGHT BY A JURY BY SERVING UPON THE OTHER PARTIES A DEMAND; THEREFORE, AT ANY TIME AFTER THE COMMENCEMENT OF THE ACTION. SUCH SHALL BE IN WRITING AND MAY BE ENDORSED UPON A PLEADING OF THE PARTY. IF THE DEMAND IS ENDORSED UPON A PLEADING, THE CAPTION SHALL STATE, JURY DEMAND ENDORSED HEREON. THE APPELLANTS HAD A JURY DEMAND ENDORSED ON THEIR ANSWER AND COUNTER CLAIM. 3. TRIAL COURT ERRED WHEN IT FAILED TO RULE ON THE APPELLANTS' MOTION TO DISMISS THE 2ND ARBITRATION BOARD'S RULING ON CASE NO. 58750 WHICH MOTION TO DISMISS WAS FILED IN A TIMELY MANNER ON OCTOBER 24, 1995; SEE OHIO CIVIL RULE OF PROCEDURE 60(B) MISTAKES; INADVERTENCE; EXCUSABLE NEGLECT; NEWLY DISCOVERED EVIDENCE; FRAUD ETC. ON MOTION AND UPON SUCH TERMS AS ARE JUST, THE TRIAL COURT MAY RELIEVE A PARTY OR HIS LEGAL REPRESENTATIVE FROM FINAL JUDGMENT, ORDER OR PROCEEDING FOR THE FOLLOWING REASONS: (1) MISTAKE, INADVERTENCE, SURPRISE OR EXCUSABLE NEGLECT; (2) NEWLY DISCOVERED EVIDENCE WHICH BY DUE DILIGENCE COULD NOT HAVE BEEN DISCOVERED IN TIME TO MOVE FOR A NEW TRIAL UNDER RULE 59(B). (3) FRAUD(WHETHER HERETOFORE DENOMINATED INTRINSIC OR EXTRINSIC) MISREPRESENTATION OR OTHER MISCONDUCT OF AN ADVERSE PARTY, OR (4) ANY OTHER REASON JUSTIFYING RELIEF FROM JUDGMENT. THE MOTION SHALL BE MADE WITHIN A REASONABLE TIME AND FOR REASONS(1), (2) AND(3) NOT MORE THAN ONE YEAR AFTER THE JUDGMENT OR ORDER OR PROCEEDING WAS ENTERED OR TAKEN. 4. TRIAL COURT ERRED WHEN IT FAILED TO RULE ON THE APPELLANTS' NOTICE OF APPEAL DE NOVO AND REQUEST FOR AN ORAL HEARING IN OPEN COURT, WHICH WAS NEVER HEARD, ON THE 2ND ARBITRATION BOARD'S RULING IN FAVOR OF THE APPELLEES, WHICH MOTION WAS FILED BY THE APPELLANTS' ON OCTOBER 12, 1995; THE 2ND ARBITRATION BOARD'S RULING IN CASE NO. 58750 WAS ON SEPTEMBER 28, 1995. SEE EXHIBIT K IN REGARDS TO ABUSE OF DISCRETION OR FAILURE TO HEAR A MOTION THAT IS CREDITABLE. -11- 5. TRIAL COURT ERRED TO PREJUDICE OF APPELLANTS' WHEN IT GRANTED THE APPELLEES A FINAL JUDGMENT ON NOVEMBER 8, 1996, BASED UPON THE 2NDARBITRATION BOARD'S DECREE IN FAVOR OF THE APPELLEES, WHICH WAS IN VIOLATION OF THE OHIO RULES OF CIVIL PROCEDURE, SEC. 1907.44: EVERY JUDGMENT RENDERED ON AN AWARD UNDER SECTION 1907.43 OF THE OHIO REVISED CODE CONCLUDES THE RIGHTS OF THE PARTIES, UNLESS IT APPEARS TO THE COUNTY COURT JUDGE WHO RENDERED THE JUDGMENT WITHIN TEN DAYS FROM RENDITION, OR TO THE COURT OF APPEALS ON APPEAL THAT THE AWARD WAS OBTAINED BY FRAUD, CORRUPTION, OR ANY OTHER UNDUE MEANS. 1907.45: WHEN WITHIN THE PERIOD OF TIME MENTIONED IN SEC 1907.44 OF THE OHIO REVISED CODE, SATISFACTORY PROOF IS ADDUCED BEFORE THE JUDGE OF THE COUNTY COURT THAT THE AWARD WAS OBTAINED BY FRAUD, CORRUPTION, OR OTHER UNDUE MEANS, THE JUDGE MAY SET ASIDE THE AWARD AND HIS JUDGMENT ON IT, AND PROCEED TO FINAL TRIAL AND JUDGMENT AS IF THE AWARD NEVER HAD BEEN MADE. THEREFORE, BASED UPON SECS. 1907.44 AND 1907.45, WHEN THE TRIAL COURT FAILED TO HEAR THE APPELLANTS' APPEAL DE NOVO FOR AN ORAL HEARING AND A MOTION TO DISMISS THE 2ND ARBITRATION BOARD'S RULING IN FAVOR OF THE APPELLEES BECAUSE THE APPELLEES FILED FOR BANKRUPTCY AND LISTED APPELLANTS AS UNDISPUTED AND UNSECURED CREDITORSBEFORE 1ST ARBITRATION HEARING ON NOVEMBER 18, 1994, THE TRIAL COURT HAD ABUSED ITS DISCRETIONARY POWERS BY REFUSING TO HEAR AND OR RULE ON THE APPELLANTS' EVIDENTIARY MATTER, THEREFORE, THE MOTION TO VACATE MADE BY APPELLANTS' TO THE 1ST ARBITRATION BOARD'S HEARING SHOULD BE SET ASIDE AND THE 1STARBITRATION BOARD'S RULING SHOULD BE REAFFIRMED AS SO DECREED IN FAVOR OF THE APPELLANTS BECAUSE THE APPELLEES DID NOT DISCLOSE BY THEM OR BY THEIR ATTORNEY, ALAN B. HARRIS, WHOSE LAW OFFICE HAD FILED FOR BANKRUPTCY FOR THE APPELLEES, THAT THEY, APPELLEES, HAD CUT OFF OR BARRED THE APPELLANTS' FROM RECOVERING A MONEY JUDGMENT AGAINST THE APPELLEES, WHICH, IN EFFECT, HAD CONSTITUTED, FRAUD. OHIO REVISED CODE, SEC. 2311.04: TRIAL OF ISSUES BY COURT OR JURY: ISSUES OF LAW MUST BE DECIDED BY THE COURT, UNLESS REFERRED AS PROVIDED IN THE RULES OF CIVIL PROCEDURE. ISSUES OF FACT ARISING IN ACTIONS FOR RECOVERY OF MONEY ONLY, OR SPECIFIC REAL OR PERSONAL PROPERTY, SHALL BE TRIED BY A JURY, UNLESS A JURY TRIAL IS WAIVED OR UNLESS ALL PARTIES CONSENT TO A REFERENCE UNDER RULES OF CIVIL PROCEDURE. APPELLANTS HAD A JURY REQUEST ENDORSED ON THEIR ANSWER AND COUNTER CLAIM, AND DID NOT REQUEST ANOTHER ARBITRATION BOARD'S HEARING, THEREFORE, WHEN .