COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 72518, 72519 MANNY ROMAN, ET AL. : : Plaintiffs-Appellees : : JOURNAL ENTRY -vs- : AND : OPINION RADIOLOGICAL SERVICE TRAINING : INSTITUTE, ET AL. : : Defendants-Appellants : DATE OF ANNOUNCEMENT OF DECISION: APRIL 16, 1998 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE CUYAHOGA COUNTY COMMON PLEAS COURT CASE NOS. CV-276798, CV-295049 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellees: WALTER J. MCNAMARA, III (#0021218) MCNAMARA, LUCCI, HANRAHAN & LOXTERMAN 8440 Station Street Mentor, Ohio 44060-4900 For Defendants-Appellants: PAUL P. PSOTA (#0004249) GAINES & STERN CO., L.P.A. 1350 Euclid Avenue Suite 1400 Cleveland, Ohio 44115-1817 SPELLACY, J.: Defendants-appellants Radiological Service Training Institute, Inc., Terry M. Speth and Larry Cornell ( appellants ) appeal the judgment of the trial court confirming the award of the Arbitration -2- Panel in favor of plaintiffs-appellees Manny Roman and Joe Weidner ( appellees ). Appellants assign the following errors for our review: I. THE TRIAL COURT'S ORDER IS MATERIALLY MISTAKEN AND VIOLATES O.R.C. 1343.03(C) TO THE EXTENT IT CONFIRMS AN ARBITRATION AWARD OF PREJUDGMENT INTEREST. II. THE ARBITRATORS EXCEEDED THEIR POWERS BY AWARDING MESSRS. ROMAN AND WEIDNER PREJUDGMENT INTEREST. III. THE ARBITRATORS' AWARD OF PREJUDGMENT INTEREST WAS AN AWARD UPON A MATTER NOT PROPERLY SUBMITTED TO THEM. IV. THE ARBITRATORS MATERIALLY MISCALCULATED THEIR AWARD BY INCLUDING PREJUDGMENT INTEREST THEREIN. Finding appellants' appeal to lack merit, the judgment of the trial court is affirmed. I. On September 14, 1994, plaintiffs-appellees, Manny Roman and Joe Weidner filed a complaint for money, injunction, punitive damages and equitable relief against defendants-appellants, Radiological Service Training Institute, Inc., Terry M. Speth and Larry Cornell. (Case No. 276798). Count I of appellees' complaint alleged that appellants failed to issue and deliver stock certificates in violation of R.C. 1701.24 (B) and R.C. 1701.25. Count II of appellees' complaint set forth a claim for breach of fiduciary duty. Counts III and IV of appellees' complaint set forth claims for damages. On May 31, 1995, appellants filed a motion for leave to file counterclaim and third party complaint instanter. On August 18, -3- 1995, the trial court denied appellants' motion for leave to file counterclaim and third-party complaint instanter. On September 7, 1995, defendants-appellants, Radiological Service Training Institute, Inc., Terry Speth and Larry Cornell filed a six count complaint against plaintiffs-appellees, Manuel ( Manny ) Roman, Joe Weidner and Diagnostic Imaging Technical Education Center, Inc. (Case No. 295049). Count I of appellants' complaint set forth a claim for breach of fiduciary duty; Count II of appellants' complaint set forth a claim for usurpation of corporate opportunity; Count III of appellants' complaint alleged business interference; Count IV alleged misappropriation of trade secrets; Count V alleged deceptive trade practices; and Count VI set forth a claim for breach of contract. On January 24, 1996, appellants filed a motion to consolidate Case No. 276798 with Case No. 295049. Appellants' motion to consolidate was granted by the trial court on February 5, 1996. On May 30, 1996, the parties agreed to submit the case to binding arbitration on appellees' claims under Case No. 276798 and appellants' claims under Case No. 295049. A hearing was conducted before the arbitration panel July 9 and July 10, 1996. On August 27, 1996, the trial court issued the following judgment: Upon advice received from counsel and Chair of Arbitration panel, case settled pending preparation of journal entry by parties, same is hereby dismissed with prejudice at defendants costs, subject to receipt of a more definitive journal entry. Thereafter, on September 13, 1996, the arbitration panel issued an award in favor of appellees. In response to appellees' -4- subsequent request to reduce the award to a sum certain, on March 14, 1997, the arbitration panel issued a supplemental award which set forth in pertinent part that: IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that judgment shall be, and it hereby is, rendered on behalf of the Plaintiffs, Manny Roman and Joseph Weidner, against Defendants, Larry Cornell and Terry Speth, in the principal amount of $45,012.10 plus 10% interest from October 13, 1996 through the date of satisfaction. Defendants Larry Cornell and Terry Speth are jointly and severally liable to Plaintiffs for this judgment. On April 4, 1997, appellees filed a motion to vacate the trial court's August 27, 1996, journal entry, as well as a motion to confirm arbitrator's supplemental award. Appellees attached a memorandum in support of their motion to vacate prior entry and to confirm arbitrator's award. Appellants, however, did not file an application to vacate the arbitration award, nor did appellants file a motion or brief in opposition to appellees' motion to confirm the arbitrator's award. On April 17, 1997, the trial court entered final judgment and stated: Motion to confirm arbitrators' award is granted. Entry of 8/27/96 is hereby vacated. Journal Entry reflecting arbitrators' award is entered as final. On May 15, 1997, appellants filed this timely appeal. II. For purposes of this appeal, all four of appellants' assignments of error will be addressed together. Appellants argue that the arbitration panel exceeded its authority by awarding prejudgment interest. Thus, appellants contend the trial court's -5- order confirming the arbitration award of prejudgment interest should be reversed. Further, appellants contend that sufficient grounds exist for this court to vacate or modify the award as it relates to prejudgment interest. In relation to appellants' arguments, this court would note that, in interpreting the Ohio Arbitration Act, R.C. Chapter 2711, the courts of this state have held a party to a binding arbitration proceeding does not have the right to seek judicial review of an award through an appeal to the common pleas court. See, e.g., Shorts v. Greater Cleveland Regional Transit Auth. (July 7, 1994), Cuyahoga App. No. 65775, unreported at 10. Instead, pursuant to R.C. 2711.13, a party can only move the common pleas court to vacate a binding arbitration award. Moreover, the basis upon which such an award can be vacated by a common pleas court is extremely limited; i.e., R.C. Chapter 2711 does not provide a procedure through which a party can relitigate the action before the common pleas court. Although a party to a binding arbitration proceeding cannot bring an appeal before the common pleas court, he can appeal the judgment of the common pleas court to the court of appeals. R.C. 2711.15 provides that an appeal can be taken from an order of the common pleas court which confirms, modifies, corrects, or vacates, a binding arbitration award. In the present case, appellant has appealed to this court from a judgment of the common pleas court confirming the binding arbitration award. Thus, even though the award was rendered in a binding arbitration proceeding, the instant appeal is properly -6- before this court for consideration. On appeal, appellants challenge the nature of the arbitration award and contend that the award is improper because prejudgment interest was included as part of the award. Initially, we note that appellants neither raised these objections at the trial court level, nor did appellants move the common pleas court to vacate or modify the arbitration award. As a result, even if appellants' arguments state viable reasons for reversing the trial court's confirmation of the award, vacating the award or modifying the award, they have waived their right to raise them before this court. Lee v. Heckelmann (September 8, 1995), Lake App. No. 95-L- 013, unreported; Mote & Assoc., Inc. v. Village of St. Henry (December 2, 1991), Mercer App. No. 10-90-12, unreported; United Ctys. Carpenters Dist. Council v. Guy Johnson Constr. Co. (July 12, 1989), Jefferson App. No. 88-J-10, unreported. An appellate court will not consider any error which a party complaining of a trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. LeFort v. Century 21-Maitland Realty Co. (1987), 32 Ohio St.3d 121, 123. Thus, because these issues are being raised for the first time on appeal, this court will not address them. Cerney v. Norfolk & W. RY. Co. (1995), 104 Ohio App.3d 482, 488. Accordingly, appellants' first, second, third and fourth assignments of error are without merit. Judgment affirmed. -7- 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 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. DIANE KARPINSKI, P.J. and KENNETH A. ROCCO, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This 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(B) 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 .