COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72759 GECEP CORPORATION : ACCELERATED DOCKET : Plaintiff-Appellant : JOURNAL ENTRY : v. : AND : NORTHERN OHIO ROOFING AND SHEET : OPINION METAL, INC. : : Defendant-Appellee : PER CURIAM : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 22, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Cuyahoga County Common Pleas Court, Case No. CV-311926 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ______________________________ APPEARANCES: Plaintiff-Appellant: C. REYNOLDS KELLER Hahn, Loeser & Parks, L.L.P. 3300 BP America Building 200 Public Square Cleveland, Ohio 44114 Defendant-Appellee: JILL G. OKUN Squire, Sanders & Dempsey 4900 Key Tower 127 Public Square Cleveland, Ohio 44114 PER CURIAM: In this appeal which we have assigned to the accelerated docket pursuant to App.R. 11.1 and Loc.App.R. 25, GECEP Corp. contests the judgment of the common pleas court which dismissed its -2- complaint for cancellation of a settlement agreement and correction of a $14,345.00 mistake made in an arbitration award arising out of its contract with Northern Ohio Roofing & Sheet Metal, Inc. to repair a roof. Northern Ohio maintains that because GECEP failed to comply with R.C. Chapter 2711, the statute of limitations bars this action. We agree and affirm the judgment of the trial court because the record shows that GECEP failed to serve notice of its claim within three months after it received the arbitration decision. The history of the case reveals that in October, 1993, GECEP contracted with Northern Ohio for removal and replacement of a warehouse roof, but that following the work, the warehouse incurred substantial damage from unrepaired holes during the winter months. The parties arbitrated the dispute and, on August 7, 1995, the American Arbitration Association issued a $19,416.53 award in favor of GECEP, but did not provide a copy of the actual arbitrator's decision containing the damage calculations. Upon receipt of that award, the parties resolved the claim and signed a settlement agreement. Subsequently, Northern Ohio requested a copy of the arbitrator's decision, and in response the American Arbitration Association sent copies of the arbitrators' decision to both parties. At that point, GECEP discovered that the arbitrator had made a mathematical subtraction error, which caused GECEP's award to be $14,345.00 less than it should have been. Because Northern Ohio refused to pay the additional amount to correct the error, -3- GECEP filed suit on July 17, 1996, seeking cancellation of the settlement agreement and recovery of $14,345.00. Northern Ohio moved to dismiss the case, asserting the statute of limitations as a defense. The court denied the motion, and the parties then filed cross-motions for summary judgment. On June 5, 1997, the court, after determining that no dispute of material fact existed, dismissed the complaint for GECEP's failure to comply with R.C. 2711.10, which divested the court of jurisdiction to modify the award. GECEP now appeals raising two assignments of error for our consideration which state: I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANTS BECAUSE IT FAILED TO INVOKE BOTH ITS EQUITABLE POWERS AND OHIO R. CIV. P. 60(A) TO CORRECT THE MATHEMATICAL MISTAKE OF THE ARBITRATOR. II. THE TRIAL COURT ERRED BY FAILING TO INVOKE ITS EQUITY POWERS TO REFORM OR VOID THE SETTLEMENT AGREEMENT ON THE BASIS OF MUTUAL MISTAKE. GECEP contends the court erred when it granted summary judgment to Northern Ohio, arguing the court possessed inherent authority to correct the arbitration award pursuant to Civ.R. 60(A), and urging that the parties based the settlement agreement on a mutual mistake of fact. Northern Ohio maintains the court ruled correctly, asserting that R.C. Chapter 2711 provides the exclusive remedy for correction of arbitration awards, contending GECEP failed to comply with those provisions, and denying that the settlement agreement arose from a mutual mistake of fact. -4- The issue then presented for our review concerns whether the court erred when it dismissed GECEP's complaint. At the outset, we observe that the court did not grant summary judgment to either of these parties as GECEP alleges but, rather, dismissed GECEP's complaint. This case is procedurally troubling, because ordinarily, an affirmative defense cannot properly be presented in a motion to dismiss because these defenses require presentation of evidence and reference to information or data outside the complaint. However, when the statute of limitations defense is obvious from the complaint itself, it can properly be the subject of a motion to dismiss. See Hughes v. Robinson Memorial Portage Cty. Hosp. (1984), 16 Ohio App.3d 80. Here, GECEP referenced in paragraph 9 of its complaint that it received the arbitrator's decision on December 5, 1995, and it attached Ms. Campbell's cover letter to the complaint as Exhibit E. Hence, the bar of R.C. 2711.10 becomes obvious from the complaint itself. Further, other courts have held that a trial court properly dismisses a complaint when it is time-barred. See Hickle v. Malone (1996), 110 Ohio App.3d 703; Steiner v. Steiner (1993), 85 Ohio App.3d 513. Next we consider the pertinent arbitration statutes contained in Chapter 2711 of the Revised Code, which established the limitations period applicable in this case. R.C. 2711.11 provides in relevant part: In any of the following cases, the court of common pleas in the county wherein an award was made in an arbitration proceeding shall make an order modifying or correcting the -5- award upon the application of any party to the arbitration if: (A) There was an evident material miscalculation of figures * * *. Further, R.C. 2711.13, states in pertinent part: After an award in an arbitration proceeding is made, any party to the arbitration may file a motion in the court of common pleas for an order * * * modifying, or correcting the award * * *. Notice of a motion to * * * modify, or correct an award must be served upon the adverse party or his attorney within three months after the award is delivered to the parties in interest * * *. (Emphasis added). In Galion v. AFSCME, Ohio Council 8, AFL-CIO, Local 2243 (1995), 71 Ohio St.3d 620, the court stated in paragraph 2 of its syllabus: R.C. Chapter 2711 provides the exclusive statutory remedy which parties must use in appealing arbitration awards to the courts of common pleas. An action in declaratory judgment cannot be maintained to circumvent the clear legislative intent of R.C. Chapter 2711. In that case, where the court considered whether a party could file a declaratory judgment action as an alternative to the statutory procedure established by the legislature, the court stated at 622: In our view, the language of R.C. 2711.13 is clear, unmistakable and, above all, mandatory. R.C. 2711.10 specifies when an arbitration award can be vacated, R.C. 2711.11 establishes the circumstances under which the common pleas court may modify or correct an arbitration award, and R.C. 2711.13 states the time frame in which the motion must be made. -6- In this case, GECEP filed its action to cancel the settlement agreement, and to recover the $14,345.00 mistakenly omitted from the arbitration award. Thus, this complaint essentially seeks a correction of the arbitration award, which is exclusively controlled by R.C. Chapter 2711, and must be served on an adverse party within three months after the award is delivered to the parties. Because GECEP failed to comply with these mandatory statutory procedures, the trial court correctly determined it lacked jurisdiction to modify the arbitration award, and dismissed the case. For these reasons, GECEP's assignments of error are overruled and the judgment of the trial court is affirmed. Judgment affirmed. -7- It is ordered that appellee recover of appellant 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. JOSEPH J. NAHRA, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE LEO M. SPELLACY, 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 .