COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 85762 MICHAEL AYERS, et al. : : Plaintiffs-appellants: : JOURNAL ENTRY vs. : and : OPINION R.A. MURPHY CO., et al. : : Defendants-appellees : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 22, 2005 CHARACTER OF PROCEEDING : Civil appeal from Cuyahoga : County Common Pleas Court : Case No. CV-423854 JUDGMENT : DISMISSED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiffs-appellants: JAMES KONCHAN Attorney at Law 15203 Detroit Avenue Lakewood, Ohio 44107 For defendants-appellees: KARL D. KAMMER Attorney at Law 78 Public Square, Suite 650 Cleveland, Ohio 44113 DONALD J. HUFFMAN Attorney at Law Huffman and Associates INA Building, Suite 450 14701 Detroit Avenue Lakewood, Ohio 44107 (Continued) -2- APPEARANCES (continued): For defendants-appellees: DANIEL A. RICHARDS SHAWN W. MAESTLE Attorneys at Law Weston Hurd Fallon Paisley & Howley 2500 Terminal Tower 50 Public Square Cleveland, Ohio 44113 -3- KENNETH A. ROCCO, J.: Plaintiffs-appellants Michael Ayers and John Williams appeal from a common pleas court order overruling their motion to modify, vacate or correct an arbitration award pursuant to R.C. 2711.13. Defendants-appellees, Robert A. Murphy and R.A. Murphy Company, have filed a motion to dismiss this appeal for lack of jurisdiction because the common pleas court's order is not final and appealable. We find that we have no jurisdiction to review this matter. Therefore, we must dismiss this appeal. Appellants originally filed this action on November 22, 2000, naming some nine defendants. As relevant to this appeal, an amended complaint filed December 20, 2000 alleged that appellees R.A. Murphy Co. and Roofing Systems, Inc. agreed to repair appellants' roof, but did not complete the work in a workmanlike manner. Appellants claimed the appellees breached the contract and defrauded appellants by misrepresenting their skills and abilities. Appellees moved the court to stay the trial of this action pending arbitration pursuant to the parties' contract. The court granted this motion on February 6, 2001. On June 14, 2002, appellants filed a motion to modify, vacate, or correct the arbitration award. The court denied this motion on October 16, 2002, finding that "[a]fter having been given ample opportunity to do so, plaintiff has failed to file a supportable motion to modify, vacate, or correct the arbitration award." Appellants moved the -4- court to reconsider this decision, but the court also overruled this motion. This court dismissed for lack of a final appealable order appellants' two prior efforts to appeal from the denial of their motion to modify, vacate, or correct the arbitration award. Ayers v. R.A. Murphy Co., Cuyahoga App. No. 82048; Ayers v. R.A. Murphy Co., Cuyahoga App. No. 83937, 2004-Ohio-3297. Appellant dismissed the pending claims against the remaining defendants, and now appeals again from the denial of its motion to modify, vacate, or correct the arbitration award. Appellees have moved this court to dismiss this appeal for lack of a final appealable order. Appellee points out that R.C. 2711.15 only allows an appeal to be "taken from an order confirming, modifying, correcting, or vacating an award made in an arbitration proceeding." The court's order here neither confirms, modifies, corrects nor vacates the arbitration award, and therefore, appellee argues, the order is not appealable. This appears to be a case of first impression. In all of the other cases we found in which the appellant challenged the denial of its motion to modify, vacate or correct an arbitration award, the opposing party filed a motion to confirm the arbitration award, and the court entered an order confirming the award as well as denying the motion to modify, vacate, or correct. Here, however, -5- the appellees did not ask the court to confirm the award and the court did not confirm it. This distinction is important. The court must confirm an arbitration award when it is asked to do so within one year after the award is made, unless the court modifies, vacates or corrects the award. R.C. 2711.10. It has discretion to confirm an arbitration award on an application made within a reasonable time after one year, if the opposing party is not prejudiced as a result of the delayed filing. Russo v. Chittick (1988), 48 Ohio App.3d 101. If the court is not asked to confirm the arbitration award, however, it cannot have either the obligation or the discretion to do so. Consequently, we cannot view the denial of appellants ' motion to modify, vacate or correct the award as the equivalent of a confirmation of the award. The court 's order here neither confirmed the arbitration award, nor modified, vacated nor corrected it. Therefore, it is not final and appealable. Suttle v. DeCesare (Oct. 4, 1999), Cuyahoga App. No. 76839, discussed in subsequent appeal, Suttle v. DeCesare (July 5, 2001), Cuyahoga App. No. 77753. Even if we were to find that the court 's order here was appealable under R.C. 2711.15, we would still need to overcome another hurdle. The Ohio Supreme Court has held that R.C. 2711.15 and 2505.02 must be read in pari materia, so "it is crucial that an order made pursuant to R.C. 2711.15 must satisfy the requirements -6- of R.C. 2505.02 in order to be a final appealable order if the court of appeals is to have jurisdiction to hear an appeal from such an order." Stewart v. Midwestern Indem. Co. (1989), 45 Ohio St.3d 124, 126. The supreme court has made clear that arbitration proceedings are not "special proceedings." Id.; General Elec. Supply Co. v. Warden Elec. Inc. (1988), 38 Ohio St.3d 378, 382. To be an appealable order, therefore, an order denying a motion to modify, vacate or correct an arbitration award must affect a substantial right and, in effect, determine the action and prevent a judgment. See R.C. 2505.02(B)(1).1 No order was entered by the trial court on the merits of the arbitration award. The court may still enter an order confirming the award if a party requests it. Therefore, we hold that the trial court's order does not prevent a judgment and is not final and appealable. Appeal dismissed. 1 An order denying a motion to modify, vacate or correct an arbitration award does not meet the requirements of any of the remaining three types of final appealable orders. It does not vacate or set aside a judgment or grant a new trial, grant or deny a provisional remedy, or determine that an action may or may not be maintained as a class action. R.C. 2505.02(B)(3), (4), (5). -7- This cause is dismissed. It is, therefore, considered that said appellees recover of said appellants their costs herein. It is ordered that a special mandate be sent to said 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. JUDGE KENNETH A. ROCCO PATRICIA ANN BLACKMON, A.J. and MARY EILEEN KILBANE, J. CONCURS 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. 22. 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). .