COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72081 JOHN D. KEDZIOR, ET AL. : ACCELERATED DOCKET : Plaintiff-appellants: : JOURNAL ENTRY vs. : : AND CDC DEVELOPMENT CORP., ET AL. : : OPINION Defendant-appellees : : PER CURIAM : DATE OF ANNOUNCEMENT : NOVEMBER 6, 1997 OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CV-310998 : JUDGMENT : REVERSED AND REMANDED DATE OF JOURNALIZATION : APPEARANCES: For defendant-appellee: For plaintiff-appellant: DANA A. ROSE, ESQ. EDWARD G. BOHNERT, ESQ. 2500 Terminal Tower Bernard, Haffey & Bohnert Cleveland, OH 44113 5001 Mayfield Road, #301 Lyndhurst, OH 44124-2610 - 2 - PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the court of common pleas, the briefs and oral arguments of counsel. The issue in this appeal is whether a claim for specific performance on a real estate purchase is exempt from a contractual arbitration provision under R.C. 2711.01(B)(1). Plaintiff John Kedzior brought this action seeking to force defendants CDC Development Corp. and defendant-homeowners Daniel and Camile Klonowski to hand over title to a newly constructed house. The parties disputed whether plaintiff properly tendered a $50,000 payment upon completion of the house. The purchase agreement required plaintiff to execute a series of interest-free promissory notes in which he agreed to pay on demand $10,000 at the start of excavation, $10,000 when the house was under roof, and $50,000 upon closing the sale of plaintiff's current house. When defendant demanded the final $50,000 payment, plaintiff could not comply because he had not sold his current house. Plaintiff asked defendant to continue the promissory note. Defendant demanded cash payment and asked plaintiff to reaffirm his intention to purchase the house. Plaintiff countered by claiming that he stood ready to complete the purchase of the house by extending the promissory note. Defendant CDC subsequently sold the house to defendant Klonowski, and returned plaintiff's funds on deposit. In response to plaintiff's action, defendant filed a - 3 - counterclaim for slander of title. Defendant asked the court to refer the matter to arbitration as provided in the purchase agreement. The trial court granted the motion and stayed the matter pending arbitration. We find the trial court erred by referring the matter to arbitration. R.C. 2711.01(B)(1) states that sections 2711.01 to 2711.16 of the Revised Code do not apply to controversies involving the title to or possession of real estate, with certain exceptions that do not apply here. By raising a claim for specific performance, plaintiff necessarily asked the court to award him title to and possession of the property. Although there are no Ohio cases directly on point, in Barnes v. McKellar (Pa.Super. 1994), 644 A.2d 770, the court considered an identical question under a very similar statute. A buyer of real estate sought specific performance after the seller allegedly breached a purchase agreement for property by failing to convey clear title. This action went to arbitration and resulted in an adverse ruling to the buyer. Neither party appealed and judgment was entered on the arbitration award. When a second action by the seller went forward, the seller argued the judgment from the arbitration proceeding controlled the disposition of the second proceedings. The trial court refused to apply res judicata. On appeal, the superior court affirmed, finding the trial court properly refused to apply res judicata because the arbitrators had no jurisdiction to decide a claim for title to real property, citing to 42 Pacs S 7361, which states that no matter - 4 - shall be referred to compulsory arbitration which involves title to real property ***. Id. at 772-773. The Pennsylvania statute is nearly identical to R.C. 2711.01(B)(1). We agree with Barnes and find the trial court erred by referring plaintiff's specific performance claim to arbitration. We are aware that the initial question between the parties may be one of breach of the sales contract, but a final disposition of plaintiff's claims will ultimately involve a determination on the claim for specific performance; consequently, the matter should not have been referred to arbitration. Accordingly, we sustain the assignment of error and remand for further proceedings in the trial court. Judgment reversed and remanded. - 5 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellants recover of said appellees their costs herein. 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. PATRICIA BLACKMON, PRESIDING JUDGE DIANE KARPINSKI, JUDGE JOHN T. PATTON, 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 .