The opinion
[Cite as Leveque 41, L.L.C. v. Leveque Tower Condominium Assn., Inc., 2025-Ohio-2055.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Leveque 41, LLC et al., :
Plaintiffs-Appellants, : No. 24AP-368
(C.P.C. No. 23CV-4780)
v. :
(REGULAR CALENDAR)
The Leveque Tower Condominium :
Association, Inc. et al.,
:
Defendants-Appellees.
:
DECISION
Rendered on June 10, 2025
On brief: Loveland Law, LLC, and Bryan S. Hunt, for
appellants. Argued: Bryan S. Hunt.
On brief: Vorys, Sater, Seymour and Pease, LLP, Joseph R.
Miller and Elizabeth S. Alexander, for appellees The LeVeque
Tower Condominium Association, Inc., and Lawyers
Development Company, LLC. Argued: Joseph R. Miller.
On brief: Arnold & Clifford LLP, James Arnold, Damian M.
Clifford, and Gerhardt A. Gosnell II, for appellee Tower 10,
LLC and Lawyers Development Company, LLC.
On brief: Baker & Hostetler LLP, Albert G. Lin, Robert J.
Tucker, and Christopher K. Riedel, for appellees The LeVeque
Tower Condominium Association, Inc., Stephanie Chitwood,
David Feltman, Drew Meyers, Robert Meyers, Brett Kaufman,
Frank Sasso, First LeVeque, LLC and LVQ, LLC.
On brief: Mazanec, Raskin & Ryder Co., LPA, Steven K.
Kelley, and Frank H. Scialdone; Willis Law Firm, LLC, and
Dimitri G. Hatzifotinos, for appellee Link Real Estate Group,
LLC.
APPEAL from the Franklin County Court of Common Pleas
No. 24AP-368 2
EDELSTEIN, J.
{¶ 1} Plaintiffs-appellants, LeVeque 41, LLC, LeVeque Forty, LLC, and Towertop
II, LLC (collectively “appellants”), appeal from a decision and order granting the motion of
defendants-appellees, The Leveque Tower Condominium Association, Inc. (“the condo
association”), Link Property Management Company, Lawyer’s Development Company,
LLC, Stephanie Chitwood, David Feltman, Robert Habeeb, Brett Kaufman, Ian Labitue,
Drew Meyers, Robert Meyers, Frank Sasso, Amanda Wilson, First LeVeque, LLC, LVQ,
LLC, and Tower 10, LLC to stay further proceedings pending arbitration. For the following
reasons, we affirm.
I. Facts and Procedural History
{¶ 2} Appellants are the owners of four condominium units in LeVeque Tower, a
building in Columbus, Ohio. Appellees include the condo association, nine individual
members of the condo association’s board, and five business entities. Two of the business
entities—Link and Lawyer’s Development—provided property management for the
association. The remaining three business entities—First LeVeque, LLC, LVQ, LLC, and
Tower 10—are the owners of additional condominium units in LeVeque Tower.
{¶ 3} Appellants initially filed a complaint on July 7, 2016, followed by an amended
complaint on July 31, 2023. As set forth in appellants’ amended complaint, the original
declaration formed The LeVeque Tower Condominium and created the condo association
in accordance with R.C. 5311.08(A)(1). On June 17, 2015, the amended declaration fully
amended and restated the original declaration. The amended declaration includes the
condo association’s current bylaws.
{¶ 4} Appellants alleged LVQ owns 15 condo units and appointed one board
member, First LeVeque owns 11 condo units and appointed one board member, and Tower
10 owns 17 condo units and appointed one board member. Appellants further alleged
Robert Meyers, one of the individual appellees, has an ownership stake in First LeVeque,
Tower 10, and LVQ and has “taken control of the Board.” (Am. Compl. at ¶ 37, 196.) The
amended complaint generally alleged the condo association, the named board members,
and the unit owner appellees intentionally disregarded the obligations owed to all unit
owners by allowing collection delinquencies in condominium assessments owed by LVQ,
No. 24AP-368 3
First LeVeque, and Tower 10. These collection delinquencies allegedly totaled over
$ 1 million. (Am. Compl. at ¶ 56.)
{¶ 5} In their amended complaint, appellants asserted claims for: (1) declaratory
judgment related to the collection of assessments; (2) declaratory judgment related to the
reserve fund; (3) permanent injunction related to the collection of assessments; (4) breach
of contract against the association and the board appellees; (5) breach of fiduciary duty
against the board appellees; (6) negligence against Link; (7) breach of contract against Link;
(8) negligence against Lawyers Development; (9) remedy of an accounting; (10) remedy of
appointment of receiver; and (11) attorney fees and costs of enforcement. On July 20, 2023,
appellants also filed a motion for immediate appointment of receiver.
{¶ 6} On September 11, 2023, the condo association, LVQ, First LeVeque, Tower
10, Lawyers Development, Ms. Chitwood, Mr. Feltman, Drew Meyers, and Robert Meyers
moved to dismiss the case or, in the alternative, to compel arbitration and stay proceedings
pending arbitration. In subsequent filings, Link and two additional individual appellees,
Mr. Kaufman and Mr. Sasso, joined the request to either dismiss the complaint or to compel
arbitration. Appellants opposed the motion to dismiss or compel arbitration.
{¶ 7} The trial court denied appellants’ motion for immediate appointment of
receiver in an August 23, 2023 entry. Appellants subsequently filed a motion for
reconsideration of the decision denying immediate appointment of receiver on
December 21, 2023.
{¶ 8} In a May 14, 2024 decision and order, the trial court granted the motion to
stay proceedings pending arbitration. The trial court determined the amended declaration
and bylaws contained an arbitration agreement applicable to appellants’ claims against the
condo association. Additionally, the court determined that although appellants’ claims
against the named board members or other unit owners are not subject to the arbitration
agreement, those claims must be stayed while appellants’ claims against the condo
association move through arbitration. The court rejected appellants’ arguments that their
claims against the condo association were subject to an exception to the arbitration
agreement laid out in the bylaws. In the same decision and order, the court denied
appellants’ motion to reconsider its decision denying immediate appointment of receiver
as moot. Appellants timely appeal.
No. 24AP-368 4
II. Assignments of Error
{¶ 9} Appellants raise the following two assignments of error for our review:
[I.] The Trial Court erred when it found that Appellants’ claims
against the LeVeque Tower Condominium Association, Inc.
were subject to binding arbitration and stayed the lower court
proceedings.
[II.] The trial court erred when it denied Appellants’
December 21, 2023 Motion to Reconsider Immediate
Appointment of receiver as moot.
III. Final Appealable Order
{¶ 10} Before we reach the merits of appellants’ assignments of error, we must, as a
threshold matter, determine whether the entirety of the trial court’s May 14, 2024 decision
is subject to appellate review at this stage of the proceedings. Appellees raised in their brief
the issue of whether the portion of the court’s May 14, 2024 decision denying as moot
appellants’ December 21, 2023 motion to reconsider immediate appointment of receiver is
a final appealable order.
{¶ 11} Article IV, Section 3(B)(2) of the Ohio Constitution limits the jurisdiction of
the appellate courts to considering only final appealable orders. “If an order is not a final
appealable order, the appellate court lacks jurisdiction and the court must dismiss the
appeal.” Tassone v. Tassone, 2019-Ohio-683, ¶ 7 (10th Dist.), citing K.B. v. Columbus,
2014-Ohio-4027, ¶ 8 (10th Dist.). Final orders “dispos[e] of the whole case or some
separate and distinct branch thereof.” Lantsberry v. Tilley Lamp Co., 27 Ohio St.2d 303,
306 (1971). An order of a trial court is final and appealable only if it satisfies the
requirements in R.C. 2505.02 and, if applicable, Civ.R. 54(B). Tassone at ¶ 7, citing Eng.
Excellence, Inc. v. Northland Assocs., L.L.C., 2010-Ohio-6535, ¶ 10 (10th Dist.). The trial
court’s designation of an entry as a “final appealable order” is not dispositive of the issue.
In re Murray, 52 Ohio St.3d 155, 157 (1990).
{¶ 12} R.C. 2505.02(B) defines final orders and provides, in pertinent part:
An order is a final order that may be reviewed, affirmed,
modified, or reversed, with or without retrial, when it is one of
the following:
(1) An order that affects a substantial right in an action that in
effect determines the action and prevents a judgment;
No. 24AP-368 5
(2) An order that affects a substantial right made in a special
proceeding or upon a summary application in an action after
judgment;
(3) An order that vacates or sets aside a judgment or grants a
new trial;
(4) An order that grants or denies a provisional remedy and to
which both of the following apply:
(a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in
favor of the appealing party with respect to the provisional
remedy.
(b) The appealing party would not be afforded a meaningful or
effective remedy by an appeal following final judgment as to all
proceedings, issues, claims, and parties in the action.
{¶ 13} “If the order is final under R.C. 2505.02, the court must determine whether
Civ.R. 54(B) applies.” Peppers v. Scott, 2016-Ohio-8265, ¶ 11 (10th Dist.), citing Gen. Acc.
Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 21 (1989). Civ.R. 54(B) provides, as follows:
When more than one claim for relief is presented in an action
whether as a claim, counterclaim, cross-claim, or third-party
claim, and whether arising out of the same or separate
transactions, or when multiple parties are involved, the court
may enter final judgment as to one or more but fewer than all
of the claims or parties only upon an express determination
that there is no just reason for delay. In the absence of a
determination that there is no just reason for delay, any order
or other form of decision, however designated, which
adjudicates fewer than all the claims or the rights and liabilities
of fewer than all the parties, shall not terminate the action as to
any of the claims or parties, and the order or other form of
decision is subject to revision at any time before the entry of
judgment adjudicating all the claims and the rights and
liabilities of all the parties.
Where a trial court enters judgment on some but not all of the claims in a multi-claim action
or with respect to some but not all of the parties in a multi-party action, an appellate court
has no jurisdiction to review the judgment in the absence of express Civ.R. 54(B) language.
In re Estate of Endt, 2014-Ohio-1749, ¶ 10 (10th Dist.), citing Moore v. Gross, 2010-Ohio-
No. 24AP-368 6
3328, ¶ 12 (10th Dist.). Thus, if Civ.R. 54(B) applies, the order must contain a certification
that “ ‘there is no just reason for delay.’ ” Peppers at ¶ 11, quoting Civ.R. 54(B).
{¶ 14} Here, the trial court’s May 14, 2024 decision and order granted appellees’
motion to stay pending arbitration. In the same decision and order, the court denied as
moot appellants’ motion to reconsider its decision denying immediate appointment of
receiver. Specifically, the court ordered:
Further proceedings in this case are STAYED pending
completion of arbitration between [appellants], the LeVeque
Tower Condominium Association, and any other Unit Owner
or Occupant directly subject to third-party claims by the
Association.
[Appellants’] claims against all others, including individual
Board members, Link Real Estate Group, LLC, and Lawyers
Development Company, LLC, are not subject to arbitration
unless those parties and [appellants] voluntarily agree to have
them included in arbitration. Otherwise, they fall outside the
scope of the arbitration provisions in the Declaration. Their
resolution must await completion of the arbitration even
though principals of res judicata or collateral estoppel may
later come into play.
...
Counsel shall advise the Court once arbitration is completed so
that the case can be reactivated, and any remaining claims
heard. [Appellants’] December 21, 2023 Motion to Reconsider
Immediate Appointment of Receiver is hereby DENIED as
moot.
Pursuant to R.C. 2711.02(C), this is a Final Appealable Order.
(Emphasis in original.) (May 14, 2024 Decision & Order at 11.)
{¶ 15} R.C. 2711.02(B) provides that “[i]f any action is brought upon any issue
referable to arbitration under an agreement in writing for arbitration, the court . . . shall on
application of one of the parties stay the trial of the action until the arbitration of the issue
has been had in accordance with the agreement.” Pursuant to R.C. 2711.02(C), “an order
under division (B) of this section that grants or denies a stay of a trial of any action pending
arbitration . . . is a final order and may be reviewed, affirmed, modified, or reversed on
appeal.” Notably, the May 14, 2024 decision and order does not contain Civ.R. 54(B)
No. 24AP-368 7
language. However, as the Supreme Court of Ohio has explained, “R.C. 2711.02(C) permits
a party to appeal a trial court order that grants or denies a stay of trial pending arbitration,
even when the order makes no determination pursuant to Civ.R. 54(B).” Mynes v. Brooks,
2009-Ohio-5946, syllabus. Therefore, the portion of the trial court’s May 14, 2024 decision
and order granting appellees’ motion to stay pending arbitration is a final appealable order.
{¶ 16} The same trial court order can be a final appealable order for one issue but
not final and appealable for additional issues. See, e.g., B.H. v. State Dept. of Admn. Servs.,
2017-Ohio-9030, ¶ 7-9 (10th Dist.) (while the portion of the trial court’s judgment granting
judgment on the pleadings as to one party was not a final appealable order, another portion
of the same judgment granting judgment on the pleadings in favor of another party was a
final appealable order; thus, this court dismissed one portion of the appeal for lack of a final
appealable order and reviewed the other on its merits); Nationwide Mut. Fire Ins. Co. v.
Jones, 2016-Ohio-513, ¶ 19 (4th Dist.) (“that portion of the trial court’s order granting
bifurcation is not a final, appealable order and we lack jurisdiction over that portion of
Nationwide’s appeal”). As outlined above, appellants filed a motion for immediate
appointment of receiver on July 20, 2023. The court denied said motion in an August 23,
2023 entry. Subsequently, on December 21, 2023, appellants filed a motion to reconsider
the decision denying immediate appointment of receiver. In the final paragraph of its
May 14, 2024 decision and order granting a stay pending arbitration, the trial court also
denied as moot appellants’ motion to reconsider. Therefore, we must determine whether
the portion of the court’s May 14, 2024 decision and order denying appellants’ motion to
reconsider is a final appealable order.
{¶ 17} To be a final appealable order subject to review on appeal, the portion of the
trial court’s May 14, 2024 decision and order denying appellants’ motion to reconsider
immediate appointment of receiver must satisfy the requirements of R.C. 2505.02. A
receivership is a special proceeding as contemplated under R.C. 2505.02. Lucas v. Reywal
Co., L.P., 2019-Ohio-27, ¶ 15 (10th Dist.). “It is well-settled that an order appointing or
removing a receiver affects a substantial right made in a special proceeding.” Jezerinac v.
Dioun, 2023-Ohio-2882, ¶ 27 (10th Dist.), citing Whipps v. Ryan, 2013-Ohio-4334, ¶ 29
(10th Dist.); State ex rel. Yost v. Summer Rays, Inc., 2019-Ohio-3907, ¶ 19 (10th Dist.) (“an
order appointing a receiver is a final appealable order that affects a substantial right in a
special proceeding”), citing R.C. 2505.02(B)(2). It is less clear, however, whether an order
No. 24AP-368 8
denying the appointment of a receiver is a final appealable order. See Huntington Natl.
Bank v. HPM Div., 2010-Ohio-6176, ¶ 16, fn. 1 (10th Dist.) (noting “[t]he Supreme Court of
Ohio has also suggested that appointment of a receiver is ancillary to the underlying
proceedings, and thus, may be considered a provisional remedy the grant or denial of which
is appealable” under R.C. 2505.02(B)(4)), citing Community First Bank & Trust v. Dafoe,
2006-Ohio-1503, ¶ 25-26; Jezerinac at ¶ 28 (“[a]n interim receivership order may affect a
substantial right for purposes of R.C. 2505.02(B)(2) if the effect of the order resolves a claim
and forecloses future relief”) (Emphasis in original.).
{¶ 18} Appellants urge us to conclude the denial of the appointment of a receiver
under these facts constitutes a final appealable order under R.C. 2505.02(B). However, we
need not definitively determine whether the trial court’s denial of the immediate
appointment of a receiver here is a final appealable order within the meaning of R.C.
2505.02(B) because appellants did not appeal from the trial court’s August 23, 2023 entry
denying their motion for the immediate appointment of a receiver. Instead, appellants
appeal from the court’s May 14, 2024 decision and order denying their motion to reconsider
the denial of immediate appointment of a receiver—a critical distinction. If the original
August 23, 2023 entry denying the immediate appointment of a receiver was a final
appealable order, then the subsequent motion for reconsideration from it is a nullity, and
the court’s May 14, 2024 decision and order related to the motion for reconsideration is
also a nullity and not subject to appeal. McCualsky v. Appalachian Behavioral Healthcare,
2017-Ohio-1064, ¶ 11 (10th Dist.), citing Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378,
379 (1981), and Levy v. Ivie, 2011-Ohio-4055, ¶ 15 (10th Dist.) (a motion for
reconsideration of a final judgment in the trial court is a nullity, and a judgment entered on
a motion for reconsideration is also a nullity and, thus, not a final appealable order). On
the other hand, if the original August 23, 2023 entry denying the immediate appointment
of a receiver was not final but was an interlocutory order, then the subsequent May 14, 2024
decision and order denying reconsideration of that interlocutory order is, itself,
interlocutory and thus not final and appealable. Nami v. Nami, 2017-Ohio-8330, ¶ 22
(10th Dist.) (“[t]he reconsideration of an interlocutory order is itself an interlocutory order,
not subject to appeal”), citing G.S. v. Khavari, 2016-Ohio-5187, ¶ 12 (11th Dist.). Under
either scenario, the portion of the trial court’s May 14, 2024 decision and order denying
No. 24AP-368 9
appellants’ motion to reconsider the denial of the immediate appointment of a receiver is
not a final appealable order.
{¶ 19} Accordingly, we dismiss the portion of the appeal challenging the trial court’s
denial of appellants’ motion to reconsider its denial of immediate appointment of receiver
as that portion of the May 14, 2024 decision and order is not a final appealable order.
Because appellants’ second assignment of error relates to the portion of the May 14, 2024
decision and order denying their motion to reconsider immediate appointment of receiver,
we dismiss the second assignment of error for lack of jurisdiction. B.H., 2017-Ohio-9030,
at ¶ 8.
IV. First Assignment of Error – Stay Pending Arbitration
{¶ 20} In their first assignment of error, appellants argue the trial court erred in
finding the claims against the condo association were subject to binding arbitration.
{¶ 21} Generally, an appellate court reviews a stay pending arbitration for an abuse
of discretion. Michigan Timber & Truss, Inc. v. Summit Bldg. Servs., L.L.C., 2021-Ohio-
3158, ¶ 10 (10th Dist.), citing Morris v. Morris, 2010-Ohio-4750, ¶ 15 (10th Dist.). An abuse
of discretion connotes a decision that is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983); State ex rel. Deblase v. Ohio Ballot
Bd., 2023-Ohio-1823, ¶ 27. However, where the appeal of a motion to stay pending
arbitration presents a question of law, an appellate court applies a de novo standard of
review. Michigan Timber & Truss at ¶ 10, citing Morris at ¶ 15. “ ‘Thus, “[a] trial court’s
decision granting or denying a stay of proceedings pending arbitration is . . . subject to de
novo review on appeal with respect to issues of law, which commonly will predominate
because such cases generally turn on issues of contractual interpretation or statutory
application.” ’ ” Id., quoting Morris at ¶ 15, quoting Hudson v. John Hancock Fin. Servs.,
2007-Ohio-6997, ¶ 8 (10th Dist.).
{¶ 22} The amended declaration of the condo association includes two arbitration
provisions. The first arbitration provision, found in Article XVIII, Section 2 of the amended
declaration, provides:
[I]n the event of any dispute between the Association and any
Unit Owner or Occupant, other than with regard to
assessments, that cannot be settled by an agreement between
them, the matter shall first be submitted to arbitration in
accordance with and pursuant to the arbitration law of Ohio
No. 24AP-368 10
then in effect (presently Chapter 2711 of the Revised Code of
Ohio), by a single independent arbitrator selected by the Board.
(Am. Declaration, Art. XVIII, Sec. 2.) The second arbitration provision, found at Article III,
Section 2(q) of the amended declaration, states:
In the event of any dispute between Unit Owners as to the
application of these restrictions or any rule or regulation
promulgated by the Board, the party aggrieved shall submit a
complaint in writing to the Board specifying the dispute. . . .
Any controversy between Unit Owners or any claim by a Unit
Owner against the Association or another Unit Owner arising
out of or relating to this Declaration, the By-Laws or Rules or
Regulations of the Association may be settled by mediation in
accordance with the mediation rules of the American
Arbitration Association after referral by the Board or a decision
by the Board. Any Unit Owner involved in any such controversy
may elect to send the matter to mediation after a decision by
the Board, if applicable, upon written notice to the other parties
thereto with a copy to the Association. No action at law may be
instituted by either party to such a dispute unless mediation
and or arbitration pursuant hereto has first been had.
(Am. Declaration, Art. III, Sec. 2(q).). Together, the two arbitration provisions constitute
the arbitration agreement. The trial court determined that appellants’ claims against the
condo association fell within the arbitration agreement and, thus, appellants had agreed to
arbitrate their claims against the condo association. On appeal, appellants assert the court
erred in compelling arbitration for three distinct reasons. First, appellants argue the
arbitration agreement is unenforceable. Second, appellants argue their claims against the
condo association fall within an exception to the arbitration agreement. Third, appellants
argue the arbitration agreement provides only for non-binding arbitration, which would
violate Ohio law. We address each of these arguments in turn.
A. Enforceability of the Arbitration Agreement
{¶ 23} Appellants argue the trial court erred in compelling arbitration because the
arbitration agreement contained in the bylaws is unenforceable. More specifically,
appellants argue the arbitration agreement is: (1) contrary to public policy, (2) illusory, and
(3) in conflict with R.C. Ch. 5311.
No. 24AP-368 11
1. The Arbitration Agreement Does Not Violate Public Policy
{¶ 24} Appellants first argue the arbitration agreement is unenforceable as against
public policy. Generally, Ohio recognizes a strong public policy in favor of arbitration.
Hayes v. Oakridge Home, 2009-Ohio-2054, ¶ 15, citing Taylor Bldg. Corp. of Am. v.
Benfield, 2008-Ohio-938, ¶ 27. “ ‘ “[A]rbitration is favored because it provides the parties
thereto with a relatively expeditious and economical means of resolving a dispute.” ’ ” Id.,
quoting Schaefer v. Allstate Ins. Co., 63 Ohio St.3d 708, 712 (1992), quoting Mahoning Cty.
Bd. of Mental Retardation & Dev. Disabilities v. Mahoning Cty. TMR Edn. Assn., 22 Ohio
St.3d 80, 83 (1986). Because of the strong public policy in favor of arbitration, the Supreme
Court has directed that any doubts should be resolved in favor of arbitration. Id., citing
Ignazio v. Clear Channel Broadcasting Inc., 2007-Ohio-1947, ¶ 18.
{¶ 25} Further reflecting Ohio’s strong public policy in favor of arbitration, R.C.
2711.01(A) provides an arbitration agreement “shall be valid, irrevocable, and enforceable,
except upon grounds that exist at law or in equity for the revocation of any contract.” Thus,
an arbitration agreement is enforceable unless there are grounds, at law or in equity, for
revoking the arbitration agreement. Hayes at ¶ 19, citing R.C. 2711.01(A). Additionally,
“ ‘[a] contract is not void as against public policy unless it is injurious to the public or
contravenes some established interest of society.’ ” Gugle v. Loeser, 143 Ohio St. 362, 367
(1944), quoting Wood on Fee Contracts of Lawyers, 268, Section 88. Appellants recognize
the strong public policy in Ohio favoring arbitration but argue the specific arbitration
agreement here violates public policy because it is injurious to the interests of the state by
negating the remedial interests of the Ohio Condominium Act, codified at R.C. Ch. 5311.
{¶ 26} The Ohio Condominium Act requires the creation of a unit owners’
association to administer condominium property. Belvedere Condominium Unit Owners’
Assn. v. R.E. Roark Cos., 67 Ohio St.3d 274, 280 (1993), citing former R.C. 5311.08. R.C.
5311.19(A) provides “[v]iolations of [the] covenants, conditions, or restrictions [set forth in
the deed, declaration, bylaws, or rules of the association] shall be grounds for the unit
owners association or any unit owner to commence a civil action for damages, injunctive
relief, or both, and an award of court costs and reasonable attorney’s fees in both types of
action.” The amended declaration provides:
[T]he Association and each Unit Owner shall have rights of
action against each other for failure to comply with the
No. 24AP-368 12
provisions of the Condominium Organizational Documents,
rules and regulations, and applicable law, and with respect to
decisions made pursuant to authority granted thereunder, and
the Association shall have the right to assess reasonable
charges against a Unit Owner who fails to comply with the
same, including the right to assess charges for the costs of
enforcement and arbitration.
(Am. Declaration, Art. XVIII, Sec. 2.) (Emphasis added.) Appellants assert that because
the amended declaration allows the condo association to recover costs for arbitration
against a unit owner but does not provide for a reciprocal right for a unit owner to recover
costs against the condo association, the arbitration agreement negates the remedial
purpose of R.C. 5311.19(A).
{¶ 27} In support of their argument, appellants rely on Hedeen v. Autos Direct
Online, Inc., 2014-Ohio-4200 (8th Dist.), for the position that an arbitration agreement is
unenforceable where it attempts to modify Ohio law. Hedeen involved an action pursuant
to the Ohio Consumer Sales Practices Act and the mechanism for fee recovery by the
prevailing party in certain circumstances as outlined in R.C. 1345.09(F), including a
requirement that the consumer “filed or maintained [the action] in bad faith.” Id. at ¶ 40-
41. The Eighth District found the “loser-pays” provision in the arbitration agreement
violated public policy because it eliminated the bad-faith requirement and allowed a
defendant-supplier to recover attorney fees so long as the defendant-supplier was the
prevailing party regardless of whether the consumer brought the action in good faith. Id.
at ¶ 48. Thus, the Eighth District determined the arbitration agreement removed a
protection from the Ohio Consumer Sales Practices Act. Id.
{¶ 28} As appellees note, the instant matter does not involve the Ohio Consumer
Sales Practices Act. More broadly, the reasoning in Hedeen does not apply here. While the
amended declaration expressly provides the condo association may assess reasonable
charges for enforcement and arbitration against a unit owner where the unit owner fails to
comply with governing documents, rules, and/or applicable law, it is merely silent as to a
unit owner’s ability to recover attorney fees in an action under R.C. 5311.19(A). Thus, the
arbitration agreement does not remove a protection from R.C. 5311.19(A). Though
appellants argue the lack of mutuality in fee shifting renders the agreement a violation of
public policy, Ohio law does not require mutuality in an arbitration clause so long as there
No. 24AP-368 13
is consideration to support the underlying contract. Reno v. Bethel Village Condominium
Assn., 2008-Ohio-4462, ¶ 9 (10th Dist.), citing Taylor Bldg. Corp. of Am., 2008-Ohio-938,
at ¶ 65. Appellants do not argue the underlying contract lacks consideration. Accordingly,
the arbitration agreement is not unenforceable as against public policy. See Murtha v.
Ravines of McNaughten Condominium Assn., 2010-Ohio-1325, ¶ 13 (10th Dist.)
(recognizing “the general rule that disputes between condominium associations and unit
owners over actions and decisions of the condominium association are subject to
arbitration under a valid arbitration clause”).
2. The Arbitration Agreement Is Not Illusory
{¶ 29} Appellants next argue the arbitration agreement is unenforceable because it
is illusory. “ ‘A contract is illusory only when by its terms the promisor retains an unlimited
right to determine the nature or extent of his performance; the unlimited right, in effect,
destroys his promise and thus makes it merely illusory.’ ” Pohmer v. JP Morgan Chase
Bank, N.A., 2015-Ohio-1229, ¶ 23 (10th Dist.), quoting Imbrogno v. MIMRx.com, Inc.,
2003-Ohio-6108, ¶ 8 (10th Dist.) If a promise is illusory, it is not enforceable. Id., citing
Imbrogno at ¶ 8. “An arbitration provision is enforceable if the right of modification is
limited by a notice or timing provision.” Wolfe v. J.C. Penney Corp., 2018-Ohio-3881, ¶ 22
(10th Dist.).
{¶ 30} Appellants argue the arbitration agreement is illusory because the condo
association has unilateral authority to amend the arbitration agreement. However, the
plain terms of the amended declaration do not support appellants’ position. Article XVII,
Section 4(14) of the amended declaration allows an amendment to “any of the provisions
governing the rights of any specific class of members” with “consent of the Unit Owners
exercising not less than seventy-five percent (75%) of the voting power” and consent of at
least 51-percent of “Eligible Holders of First Mortgages on Units.” (Am. Declaration, Sec.
4(14).). Because the arbitration agreement is part of the declaration, any amendment to
the arbitration agreement requires the consent of 75 percent of the unit owners. Thus, the
condo association cannot unliterally amend the arbitration agreement.
{¶ 31} Appellants additionally argue the arbitration agreement is illusory because
the first arbitration provision overlaps with the second arbitration provision in that “the
Arbitration Provision requires arbitration of certain claims and the Mediation Provision
requires mediation of all claims.” (Emphasis in original.) (Appellants’ Brief at 29.)
No. 24AP-368 14
Appellants assert this conflict creates dispute resolution obligations that are too vague to
be enforceable. See Imbrogno, 2003-Ohio-6108, at ¶ 19 (a contract term is unenforceable
as vague when the rights and obligations of the parties cannot be determined).
{¶ 32} We disagree. Appellants’ argument does not account for the difference in the
operative language in each provision. The first arbitration provision refers to mandatory
arbitration while the second arbitration provision refers to permissive mediation.
Though appellants argue for the first time on appeal that there is too much overlap in these
two provisions, we note, as the trial court did in its decision, that no party has suggested
the amended declaration requires the court to order mediation before sending the claims
to arbitration. Stated another way, appellants do not assert the trial court erred in ordering
arbitration instead of mediation; rather, appellants argue the trial court should not have
ordered arbitration at all. We do not agree with appellants that any overlap in the two
arbitration provisions renders the arbitration agreement unenforceable. The arbitration
agreement is therefore not illusory or unenforceable for vagueness.
3. The Arbitration Agreement Does Not Conflict with R.C. Chapter 5311
{¶ 33} Appellants also argue the arbitration agreement is unenforceable because it
conflicts with R.C. Ch. 5311. The amended declaration states: “In the event any language of
this Declaration conflicts with mandatory provisions of the Condominium Act, the latter’s
requirements shall prevail and the conflicting language shall be deemed to be invalid and
void.” (Am. Declaration, Art. XVIII, Sec. 3.) As noted above, R.C. 5311.19 provides a
violation of a condominium’s governing documents “shall be grounds for . . . any unit owner
to commence a civil action.” R.C. 5311.19(A). Appellants assert the use of the mandatory
“shall” in R.C. 5311.19 requires the conclusion that a civil action pursuant to R.C. 5311.19(A)
is the exclusive remedy for a unit owner challenging an action of the condo association.
Thus, appellants assert the arbitration agreement is unenforceable because it requires
arbitration rather than a civil action.
{¶ 34} We are not persuaded by appellants’ argument. Though R.C. 5311.19(A)
provides for a cause of action, nothing in the language of the statute either requires
resolution through civil litigation or precludes arbitration. See Harrison v. Winchester
Place Nursing & Rehab. Ctr., 2013-Ohio-3163, ¶ 61 (10th Dist.) (rejecting the appellant’s
argument that an arbitration provision violated a statutory right to pursue a civil action
under R.C. 3721.17, which states a resident of nursing home or residential care facility “has
No. 24AP-368 15
a cause of action,” because “the statute does not forbid a claim from being arbitrated”).
(Emphasis omitted.) See also Academy of Medicine of Cincinnati v. Aetna Health, Inc.,
2006-Ohio-657, ¶ 20 (explaining “[s]tatutory claims . . . are neither per se arbitrable or not
arbitrable” but “must undergo the analysis that every other claim faces: whether the parties
agreed to arbitrate the issue”). Because the language of the arbitration agreement does not
conflict with the language of R.C. 5311.19, appellants do not demonstrate the arbitration
agreement is unenforceable.
B. Exception to the Arbitration Agreement
{¶ 35} Having determined the arbitration agreement is enforceable, we turn to
appellants’ next argument: the specific claims here are not subject to arbitration because
they fall within an exception to the arbitration agreement.
{¶ 36} The amended declaration sets forth the types of assessments a unit owner
“agree[s] to pay to the Association: (1) annual operating assessments, (2) special
assessments for capital improvements, and (3) special individual Unit assessments, all of
such assessments to be established and collected as hereinafter provided.” (Am.
Declaration, Art. XV, Sec. 1.) As noted above, the first arbitration provision in the amended
declaration provision provides that “in the event of any dispute between the Association
and a Unit Owner or Occupant, other than with regard to assessments, that cannot be
settled by agreement between them, the matter shall first be submitted to arbitration in
accordance with and pursuant to the arbitration law of Ohio then in effect.” (Emphasis
added.) (Am. Declaration, Art. XVIII, Sec. 2.) Appellants argue the language “other than
with regard to assessments” creates an exception to the general arbitrability of claims
between the condo association and a unit owner. The trial court agreed with appellants
that claims “with regard to assessments” are not subject to arbitration but disagreed with
appellants that their claims against the condo association fall within that exception. The
issue before us, then, is whether appellants’ claims against the condo association are claims
“with regard to assessments.”
{¶ 37} “Arbitration is a matter of contract[,] and a party cannot be required to
submit a dispute to arbitration when it has not agreed to do so.” Doe v. Vineyard
Columbus, 2014-Ohio-2617, ¶ 15 (10th Dist.), citing Academy of Medicine of Cincinnati,
2006-Ohio-657, at ¶ 11. A court determining the scope of an arbitration agreement looks
first to whether the parties agreed to arbitrate a dispute. Id., quoting Columbus Steel
No. 24AP-368 16
Castings, Inc. v. Real Time Staffing Servs., Inc., 2011-Ohio-3708, ¶ 13 (10th Dist.), quoting
White v. Equity Inc., 2010-Ohio-4743, ¶ 19 (10th Dist.), quoting E.E.O.C. v. Waffle House,
Inc., 534 U.S. 279, 294 (2002). “In determining whether a particular claim falls within the
scope of the parties’ arbitration agreement, the court is to focus on the factual allegations
in the complaint rather than the legal causes of action asserted.” ABC Home Care &
Nursing Servs. v. Molina Healthcare of Ohio, Inc., 2018-Ohio-2370, ¶ 24 (10th Dist.),
citing Fazio v. Lehman Bros., Inc., 340 F.3d 386, 395 (6th Cir. 2003).
{¶ 38} Appellants argue their claims against the condo association fall within the
exception because they allege the condo association failed to collect assessments from
certain other unit owners. However, the mere use of the word “assessments” in describing
their claims does not, in and of itself, trigger the exception to the arbitration clause. See
Lingo v. State, 2014-Ohio-1052, ¶ 38 (“[r]egardless of how an action is labeled, the
substance of the party’s arguments and the type of relief requested determine the nature of
the action”). Instead, the material allegations in appellants’ amended complaint
demonstrate appellants’ claims relate to the condo association’s collection practices, not to
its assessment practices. Their amended complaint admits as much, stating that “[d]espite
the flagrant delinquencies of [other unit owners], the Board has never taken any
meaningful action to collect the amount due,” and the condo association breached its duty
to comply with the amended declaration “by failing to collect operating assessments from
Unit Owners.” (Emphasis added.) (Am. Compl. at ¶ 59, 147.) In their merit brief on appeal,
appellants repeatedly describe their claims as relating to the condo association’s failure to
collect assessments, not as relating to the assessments themselves. (Appellants’ Brief at
37.)
{¶ 39} Though appellants attempt to recast the allegations in their complaint to
avoid arbitration, the substance of their claims against the condo association challenge the
condo association’s collection practices. Such collection practices do not involve fees unit
owners agree to pay according to the definition of “assessments” set forth in the amended
declaration and, thus, are not claims “with regard to assessments.” Appellants urge an
interpretation of the arbitration agreement that would render the arbitration agreement
meaningless as it would allow any unit owner to avoid arbitration simply by including the
word “assessments” in their complaint regardless of whether the substance of the allegation
related to the assessments themselves. We will not interpret the exception to the
No. 24AP-368 17
arbitration agreement so broadly as to effectively nullify the remainder of the arbitration
agreement. Sunoco, Inc. (R&M) v. Toledo Edison Co., 2011-Ohio-2720, ¶ 54 (in interpreting
a contract, courts are required to “give effect to every provision of the contract” and will
avoid an interpretation that would render a clause meaningless), citing Foster Wheeler
Enviresponse, Inc. v. Franklin Cty. Convention Facilities Auth., 78 Ohio St.3d 353, 362
(1997).
{¶ 40} For these reasons, we agree with the trial court that the substance of
appellants’ claims is the condo association’s alleged failure to collect money. That the
money allegedly owed is in the form of assessments does not convert the claims into a
dispute “with regard to assessments” within the exception to the arbitration agreement.
Thus, the exception to the arbitration agreement does not prohibit arbitration of appellants’
claims against the condo association.
C. Binding vs. Non-Binding Arbitration
{¶ 41} Finally, appellants argue the trial court erred in determining the arbitration
agreement provides for binding arbitration. Appellants assert that because the first
arbitration provision states a party must “first” submit a claim to arbitration, the intent of
the provision is to have any arbitration be non-binding so the parties may then pursue other
remedies. We disagree.
{¶ 42} The arbitration agreement does not expressly indicate whether the
arbitration will be binding or non-binding. However, the amended declaration expressly
states that arbitration will be “in accordance with and pursuant to the arbitration law of
Ohio then in effect (presently Chapter 2711 of the Revised Code).” (Am. Declaration, Art.
XVIII, Sec. 2.) As the trial court noted, Ohio does not recognize non-binding arbitration
under R.C. Ch. 2711. Miller v. Gunckle, 2002-Ohio-4932, ¶ 10, citing Schaefer, 63 Ohio
St.3d at 711. Thus, the contractual language, when read in concert with its reference to Ohio
law, requires binding arbitration under R.C. Ch. 2711.
{¶ 43} Accordingly, the arbitration clause is enforceable, requires binding
arbitration, and applies to appellants’ claims against the condo association. Therefore, the
trial court did not err in granting appellees’ motion to stay proceedings pending arbitration,
and we overrule appellants’ first assignment of error.
No. 24AP-368 18
V. Disposition
{¶ 44} Based on the foregoing reasons, the trial court did not err in granting
appellees’ motion to compel arbitration and stay proceedings pending arbitration. Having
overruled appellants’ first assignment of error and having dismissed appellants’ second
assignment of error for lack of a final appealable order, we affirm the judgment of the
Franklin County Court of Common Pleas.
Judgment affirmed.
JAMISON, P.J., and BEATTY BLUNT, J., concur.
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