COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73351 FRATERNAL ORDER OF POLICE, : ACCELERATED DOCKET LODGE #8, ET AL. : : Plaintiffs-Appellants : JOURNAL ENTRY : AND : OPINION vs. : : PER CURIAM CITY OF CLEVELAND : : Defendant-Appellee : DATE OF ANNOUNCEMENT MAY 7, 1998 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas Case No. 333891 JUDGMENT : Reversed and remanded. DATE OF JOURNALIZATION : APPEARANCES : For plaintiffs-appellants: Robert M. Phillips, Esq. Richard C. Taricska, Esq. The Phillips Legal Group 1040 Illuminating Bldg. 55 Public Square Cleveland, Ohio 44113-1904 For defendant-appellee: Richard C. Hubbard, III, Esq. Janette McCarthy Louard, Esq. Duvin, Cahn & Hutton 1301 East Ninth Street 20th Floor Erieview Tower Cleveland, Ohio 44114-1886 PER CURIAM: The Fraternal Order of Police, Lodge No. 8, et al., plaintiffs-appellants, appeal the decision of the Cuyahoga County Court of Common Pleas granting a motion to dismiss filed by the -2- City of Cleveland, defendant-appellee. Plaintiffs-appellants assign one error for review. This court, finding error, reverses and remands this case back for further proceedings. On November 14, 1994, William Manocchio, plaintiff-appellant, was suspended and demoted by defendant-appellee for several departmental rule violations. On behalf of Mr. Manocchio, the Fraternal Order of Police, Lodge No. 8 ( F.O.P ), plaintiff- appellant, appealed his suspension and demotion pursuant to a grievance procedure set forth in the parties' collective bargaining agreement. When the grievance could not be resolved, the matter was referred to arbitration on September 5, 1995. The final arbitration hearing was held February 8, 1996 and the case was submitted to the Arbitrator for his determination. Pursuant to Article XX of the grievance procedure, an opinion and award was to be rendered within thirty days of its submission. For reasons including plaintiffs- appellants' failure to file their post-hearing brief and an illness in the arbitrator's family, the opinion and award was delayed a number of times. The parties had agreed to extend the period to March 1, 1997. The arbitrator issued his opinion and award on March 11, 1997. On April 30, 1997, plaintiffs-appellants filed an application to vacate the arbitration award pursuant to R.C. 2711.10. In their application, plaintiffs-appellants allege that they informed the arbitrator that they would not accept a decision nor did they agree to any extension beyond March 1, 1997. Moreover, plaintiffs- -3- appellants alleged that they suffered harm, injury and prejudice as a result of the delay. On July 3, 1997, defendant-appellee filed a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief could be granted. On July 14, 1997, plaintiffs-appellants filed an amended copy of their application. On September 16, 1997, the trial court granted defendant-appellee's motion to dismiss. Plaintiffs- appellants timely filed this appeal. In their sole assignment of error, plaintiffs-appellants argue: THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE'S CIV.R. 12(B)(6) MOTION TO DISMISS. A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey Ct. Bd. of Commrs. (1992), 65 Ohio St.3d 545. It is well settled that when a party files a motion to dismiss for failure to state a claim, all factual allegations of the complaint must be taken as true and all reasonable inferences must be drawn in favor of the nonmoving party. Byrd v. Faber (1991), 57 Ohio St.3d 56, 60, citing Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192. While the factual allegations of the complaint are taken as true, [u]nsupported conclusions of a complaint are not considered admitted *** and are not sufficient to withstand a motion to dismiss. State ex rel. Hickman v. Capots (1989), 45 Ohio St.3d 324. In light of these guidelines, in order for a court to grant a motion to dismiss for failure to state a claim, it must appear -4- beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. O'Brien v. Univ. Community Tenants Union (1975), 42 Ohio St.2d 242, 245. See, also, Spalding v. Coulson (1993), 104 Ohio App.3d 62. In this case, plaintiffs-appellants sought to vacate the arbitration award pursuant to R.C. 2711.10 which states: 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 (sic) partiality or corruption on the part of the arbitrators, 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 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 made in has not expired, the court may direct a rehearing by the arbitrators. When it granted the motion to dismiss, the trial court held that the following facts were not in dispute: 1) The collective bargaining agreement between the parties did not specifically divest the arbitrator of authority when a decision was made after the time period for such decision elapsed. 2) The parties agreed to give the arbitrator an extension to March 1, 1997 to render a decision. 3) The arbitrator rendered his decision March 11, 1997. -5- 4) The plaintiff did not object to the timeliness of the decision until after the decision.1 In support of its decision, the trial court then cited to this court's decision in Martich v. City of Cleveland (1992), 76 Ohio App.3d 802. In that case, we held the trial court properly denied an application to vacate pursuant to R.C. 2711.10 when the collective bargaining agreement did not specifically divest the arbitrator of jurisdiction for a tardy decision. Additionally, in that case, the plaintiff did not indicate any harm or prejudice as a result of the delay and the plaintiff failed to object prior to the issuance of the arbitration award. Importantly, we also held that absent unequivocal language divesting the arbitrator of jurisdiction when rendering a tardy award, the arbitrator's jurisdiction continues for a reasonable period of time. The determination of reasonableness must be made on a case-by-case basis with a view of the surrounding circumstances and to any aspects of prejudice or harm that either party suffers. Id. at 805. (Emphasis added.) In contrast to the circumstances in Martich, supra, our review is one based upon a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be given. Therefore, we are limited to a review of the amended application to vacate with all factual allegations of the application taken as true and all 1Contrary to the trial court's holding, plaintiff argued that they objected to any award rendered after March 1, 1997. In fact, plaintiff contends they were in the process of creating paperwork to memorialize their objection when the untimely opinion was rendered. -6- reasonable inferences drawn in favor of the nonmoving party. See York v. Ohio State Highway Patrol (1991), 60 Ohio St.3d 143. In its amended application, plaintiffs-appellants alleged, among other things, the following: 1) Pursuant to Article XX of the CBA, an arbitrator shall issue a decision within thirty (30) days after submission of the case to him. 2) The arbitrator did not issue a decision within thirty (30) days after submission of the case to him. 3) Legal counsel had to contact the arbitrator on September 27, 1996, to inquire about the reasons for the unexplained delay. 4) The parties agreed to extend the time for the arbitrator to render his decision to November 1, 1996. 5) By November 15, 1996, the arbitrator had not issued his opinion and award. 6) The parties agreed to extend the arbitrator's jurisdiction until January 3, 1997. 7) The arbitrator again failed to issue his award within that time. 8) The arbitrator requested another extension of time until January 31, 1997. 9) Again, the arbitrator failed to issue his opinion within that time. 10) After consulting with the FOP and Manocchio, Legal counsel telephoned the arbitrator and stated that the FOP and Manocchio would only agree to extend Cohen's jurisdiction until March 1, 1997 but would not accept any decision issued after that date because they believed that the matter had become stale as too much time had elapsed. 11) The FOP and Manocchio believed the arbitration had become too stale because the record of the arbitration was abnormally voluminous and thirteen (13) months had passed since the last date of the arbitration hearing. 12) The arbitrator rendered his opinion and award on March 11, 1997. -7- 13) As the record had become too stale because thirteen months had passed since the last date of the arbitration hearing and the arbitration record was unusually enormous, the FOP and Manocchio suffered harm, injury, and prejudice from the excessive delay in Cohen rendering his award. Again we note that the factual allegations must be taken as true. Accordingly, contrary to the trial court's conclusions, plaintiffs-appellants alleged that they objected to an award issued beyond March 1, 1997. Moreover, after the arbitration award was issued March 11, 1997, plaintiffs-appellants alleged that they suffered harm, injury and prejudice from the excessive delay. Despite the serious nature of the underlying grievance, we must confine our review strictly to the sufficiency of the complaint/application when reviewing a motion to dismiss for failure to state a claim. Keeping in mind the determination of the reasonableness of the arbitrator's delay must be on a case-by- casebasis and stressing that we are not ruling upon the merits of plaintiffs-appellants' claims, we find the application to vacate the arbitration award was sufficient to withstand defendant- appellee's motion to dismiss for failure to state a claim. Reversed and remanded. -8- It is ordered that appellants recover of appellee 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 Cuyahoga County 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. LEO M. SPELLACY, JUDGE MICHAEL J. CORRIGAN, JUDGE DIANE KARPINSKI, PRESIDING JUDGE [DISSENTS WITH DISSENTING OPINION] 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). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73351 FRATERNAL ORDER OF POLICE, : LODGE #8, ET AL. : : Plaintiff-Appellant : : DISSENTING v. : : OPINION CITY OF CLEVELAND : : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: MAY 7, 1998 KARPINSKI, P.J., DISSENTING: I respectfully dissent. The majority characterizes a sentence from the amended complaint as an objection. The sentence is as follows: After consulting with FOP and Manocchio, Legal Counsel telephoned Cohen and stated that the FOP and Manocchio would only agree to extend Cohen's jurisdiction until March 1, 1997, but would not accept any decision issued after that date because they believed that the matter had become stale as too much time had elapsed. It is not clear that such a statement of intent is an objection. However, even if it were, there is a question whether a telephone call to an arbitrator sufficiently preserves an objection. In M.B. Guran Co. v. Amsdell (1983), 9 Ohio App. 3d 201, the Ninth District Court of Appeals held that a written objection must be filed prior to the award. The facts in Guran are strikingly similar. As in the case at bar, appellant had granted -2- an extension of time, but the arbitration decision was issued approximately two weeks late. During that two weeks, appellant made no written objections to the arbitrators that the award was untimely. The Court said as follows: The requirement that a written objection to untimeliness must be filed prior to the making of the award is well-reasoned. It is widely recognized that a party to a grievance who is charged with knowledge that an arbitrator's power to decide may have expired should not be permitted to await the decision and then void the decision if unfavorable. See District Lodge No. 71 v. Bendix Corp. (W.D.Mo.1963), 218 F. Supp. 742. At 202. See also, The Delphos Herald v. DeCallier (Jan. 17, 1991), Allen App. No. 1-89-109, unreported. I believe this point should be resolved before the case is remanded. Moreover, I agree with the Ninth District that objections must be in writing and filed before the award is issued. If there is no clear form for an objection, a party can wait until a ruling and then, if the ruling is unfavorable, claim it made an objection. If filing a written objection is a requirement, then the trial court properly ruled that the objection was not timely filed and there is no need to remand the case. Additionally, although the complaint alleges plaintiff suffered harm, injury, and prejudice from the excessive delay, this allegation fails to specify the proper period of time. That is, plaintiff fails to allege harm, injury, or prejudice specifically from the period between March 1, the extended due date to which plaintiff agreed, and March 11, the date the award was -3- issued. The plaintiff may not claim harm, injury, and prejudice either (1) for a delay he was, in part, responsible for as a result of his lateness in filing his brief or (2) for the period of time before the extension to which he agreed. As a result, any allegation of harm, injury, and prejudice would have to be found in the ten days before the award was issued. Therefore, the complaint's allegation of harm, injury, and prejudice resulting .