Costin v. Midwest Vision Partners, L.L.C.

[Cite as Costin v. Midwest Vision Partners, L.L.C., 2024-Ohio-463.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

BRYAN COSTIN, :

Plaintiff-Appellee, :

No. 112651

v. :

MIDWEST VISION

PARTNERS, L.L.C., ET AL. :

Defendants-Appellants. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: February 8, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-23-974946

Appearances:

Dennis M. O’Toole; Patterson Law Firm, LLC and Kristi L.

Browne, pro hac vice, for appellee.

ZASHIN & RICH CO., L.P.A., Natalie M. Stevens, and

Lauren M. Drabic, for appellants Northern Ohio Eye

Consultants, Inc., d.b.a. Cleveland Eye Clinic, Midwest

Vision Partners Management, LLC, Midwest Vision

Partners Holdco, LLC, and Accomodative Surgery Center,

LLC.

EILEEN T. GALLAGHER, J.:

Defendants-appellants, Midwest Vision Partners Management, L.L.C.,

Midwest Vision Partners Holdings, L.L.C., Midwest Vision Partners Holdco, L.L.C.

(together “Midwest Vision”), Northern Ohio Eye Consultants, Inc. d.b.a. Cleveland

Eye Clinic (“Cleveland Eye Clinic”), and Accomodative Surgery Center, L.L.C.

(“ASC”) (collectively “appellants”) appeal from the trial court’s judgment denying

their motion to compel arbitration, motion to stay proceedings, and motion to stay

discovery. Appellants raise the following assignment of error for review:

The trial court erred in denying defendants-appellants’ motion to

compel arbitration, motion to stay proceedings, and motion to stay

discovery pending resolution of these motions despite the existence of

a valid and enforceable arbitration clause in the agreement on which

plaintiff-appellee had based his claims, and by failing to hold a R.C.

2711.03(A) evidentiary hearing, and by failing to summarily proceed to

a jury trial on the arbitrability issue as required by R.C. 2711.03(B).

After careful review of the record and relevant case law, we affirm the

trial court’s judgment.

I. Procedural and Factual History

Plaintiff-appellee, Bryan Costin, M.D. (“Dr. Costin”), is a board-

certified oculoplastic surgeon. On September 13, 2017, Dr. Costin entered into an

Employment Agreement with defendant-appellant, Cleveland Eye Clinic. The

Employment Agreement set forth the terms and conditions of Dr. Costin’s

employment. Regarding Dr. Costin’s compensation, Cleveland Eye Clinic agreed to

pay Dr. Costin (1) an annual base salary of $300,000, (2) a production of

compensation bonus of 25 percent of collections exceeding the amount of $500,000,

(3) an optical sales bonus of 10 percent of Dr. Costin’s “optical gross profits,” (4) a

full reimbursement of collected insurance and/or cash payments for after-hours

services, and (5) a 25 percent share of annual profits for certain oculoplastic services.

(Agreement, schedule A, sec. 1.) The Employment Agreement further authorized

Dr. Costin or his representative to “audit the accuracy of the actual collections for

professional services for which [Dr. Costin] provided.”

Relevant to this appeal, Section 16 of the Employment Agreement

contained an arbitration provision, stating:

16.1 Other than issues or disputes relating to or arising out of Section

5 above, unresolved issues of disagreement between the parties will

initially be brought to a mutually-agreeable independent third party for

informal mediation.

16.2. Other than issues or disputes relating to or arising out of Section

5 above, any controversy or claim arising out of or relating to this

Agreement or any breach thereof that is not resolved pursuant to

Subsection 16.1 above, will be settled by arbitration in Cuyahoga

County, Ohio, in accordance with Rules of Arbitration of the American

Health Lawyer’s Association (“AHLA”). Such arbitration may be

commenced by one party notifying the other and also the AHLA that

such party intends to seek arbitration. The decision of the AHLA will

be final and binding upon all parties hereto. Judgment upon the award

rendered by the arbitrators may be entered in any court having

jurisdiction thereof. The expenses of arbitration will be borne equally

by the parties. Issues or disputes arising out of Section 5 may be

arbitrated at Employer’s sole discretion, such decision being binding

upon the Employee.

At some point during Dr. Costin’s employment, Cleveland Eye Clinic

was acquired by Midwest Vision. Cleveland Eye Clinic continued doing business

under its designated name, and Dr. Costin was assured that “his Employment

Agreement terms would remain the same under Midwest Vision’s ownership.”

(Complaint at ¶ 44-45.)

On June 7, 2021, Dr. Costin was notified that his employment would be

terminated at the conclusion of a notice period. On August 19, 2021, Dr. Costin

entered into an amended employment agreement with Cleveland Eye Clinic (“the

Amended Agreement”). The Amended Agreement provided, in pertinent part:

2. Employee’s employment shall terminate effective September 30,

2021 (the “Termination Date”). Neither Employee or Employer shall

have any further obligation under the Employment Agreement

effective as of the Termination Date; provided that, notwithstanding

the foregoing, Sections 5,[1] 7.2(b),[2] 9.1[3] (it being agreed the

Employment Agreement was terminated by Employer), 10,[4] 11,[5]

and 17[6] shall survive the termination of the Employment Agreement

and remain in full force and effect.

(Emphasis added.) Ultimately, disagreements concerning the amount of

compensation owed to Dr. Costin arose following his termination date.

On February 8, 2023, Dr. Costin filed a civil complaint against

defendants-appellants in Cuyahoga C.P. No. CV-23-974946.7 The complaint set

1 Titled “Restrictive Covenants.”

2 Titled “Professional Liability Insurance.”

3 Titled “Termination.”

4 Titled “Employer Documents and Other Property.”

5 Titled “Breach of Confidentiality.”

6 Titled “Indemnification.”

7 The complaint also names Midwest Vision Partners, L.L.C., and Midwest Vision

Partners Holdings, L.L.C. as party defendants. However, these entities are not named

appellants in this appeal. According to the appellants, “these entities are not actually

forth claims for breach of contract, unjust enrichment, and accounting. Specifically,

Dr. Costin asserted that the defendants “breached the Amendment to the

Employment Agreement by failing to pay [Dr. Costin] all the amounts he is owed

within 30 days of termination and to date they still have not paid all amounts owed.”

Alternatively, Dr. Costin alleged that Midwest Vision and ASC unjustly collected and

retained the benefits of his medical services without paying him pursuant to the

terms of the original Employment Agreement. Finally, Dr. Costin sought an order

requiring the defendants to “provide a complete accounting of the revenues received

and costs incurred during [his] employment that are related to services he provided

and for such other and further relief as the court deems appropriate.”

On March 13, 2023, appellants filed a “motion to compel arbitration,

motion to stay proceedings, and motion to stay discovery pending resolution of these

motions.” Relying on section 16 of the original Employment Agreement, appellants

argued that Dr. Costin “unequivocally agreed to submit any and all disputes

regarding his compensation and benefits to mediation and, if unresolved through

mediation, to final and binding arbitration.” Appellant’s motion included a jury

demand, stating:

Should the court determine after hearing from the parties under R.C.

2711.03(A) that an issue may exist as to the validity and enforceability

of the arbitration agreement, then defendants request a jury trial on the

validity and enforceability issues in accordance with R.C. 2711.03(B),

requesting the trial court to summarily proceed to trial and submit the

related to the represented defendants-appellants and the represented defendants-

appellants do not believe they bear any relationship to Costin’s employment.”

validity and enforceability issues to a jury for disposition in accordance

with R.C. 2711.03(B).

On March 27, 2023, Dr. Costin filed a brief in opposition, arguing that

the parties carefully negotiated an amendment to the original Employment

Agreement that expressly identified the provisions of the original agreement that

would survive the termination date set forth therein. According to Dr. Costin, “the

arbitration provision of the original Employment Agreement, section 16, did not

survive the amendment to that agreement” because it was not identified as one of

the provisions that would remain in full force and effect following the termination

date. Alternatively, Dr. Costin argued that Midwest Vision and ASC could not

compel arbitration because they were neither parties to, nor intended beneficiaries

of, the Employment Agreement.

On April 11, 2023, the trial court’s denied appellants’ motions, stating,

in relevant part:

[Dr. Costin] filed suit to collect what he alleges are unpaid

compensation bonuses under his employment contract with Northern

Ohio Eye Consultants. At the termination of [Dr. Costin’s]

employment, on August 21, 2021, Northern Ohio Eye Consultants

specifically invalidated the mandatory arbitration clause contained

within [Dr. Costin’s] employment contract through a written

amendment to the contract. The remaining clauses specifically

enumerated in this amendment are the only ones that can be newly

enforced after that date, and do not include the arbitration clause. This

contract amendment, however, does not relieve Northern Ohio Eye

Consultants (or its successor(s)) of their obligations to [Dr. Costin] that

arose while the employment contract was still in effect and were never

fulfilled.

Appellants now appeal from the trial court’s judgment.

II. Law and Analysis

In the sole assignment of error, appellants argue the trial court erred

in denying its motion to compel arbitration, motion to stay proceedings, and motion

to stay discovery despite a mandatory arbitration clause contained in the

Employment Agreement. Appellants contend that the arbitration clause is valid and

enforceable because the claims set forth in Dr. Costin’s complaint stem from the

original Employment Agreement.

1. Standard of Review

Generally, an appellate court reviews a trial court’s decision to grant

or deny a motion to compel arbitration or stay the proceedings under the abuse of

discretion standard. U.S. Bank, N.A. v. Wilkens, 8th Dist. Cuyahoga No. 96617,

2012-Ohio-263, ¶ 13; Milling Away, L.L.C. v. UGP Properties, L.L.C., 8th Dist.

Cuyahoga No. 95751, 2011-Ohio-1103, ¶ 8. The term abuse of discretion “implies

that the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore

v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). An abuse of discretion

occurs when a court exercises its judgment in an unwarranted way regarding a

matter over which it has discretionary authority. Johnson v. Abdullah, 166 Ohio

St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35.

Nevertheless, a trial court’s decision granting or denying a motion to

compel arbitration or a motion to stay are subject to de novo review on appeal

because such cases generally turn on issues of contractual interpretation. McFarren

v. Emeritus at Canton, 2013-Ohio-3900, 997 N.E.2d 1254, ¶ 13 (5th Dist.); Hudson

v. John Hancock Fin. Servs., 10th Dist. Franklin No. 06AP-1284, 2007-Ohio-6997,

¶ 8; McCaskey v. Sanford-Brown College, 8th Dist. Cuyahoga No. 97261, 2012-

Ohio-1543, ¶ 7.

2. R.C. 2711.02 and 2711.03

Ohio has a strong public policy favoring arbitration of disputes, and

there is a presumption favoring arbitration that arises when the dispute falls within

the scope of an arbitration provision. Taylor Bldg. Corp. of Am. v. Benfield, 117

Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12, ¶ 25-27. “Any doubts concerning

the scope of arbitrable issues should be resolved in favor of arbitration.” Sebold v.

Latina Design Build Group, L.L.C., 2021-Ohio-124, 166 N.E.3d 688, ¶ 10 (8th Dist.),

citing Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103

S.Ct. 927, 74 L.Ed.2d 765 (1983). We note, however, that “parties cannot be

compelled to arbitrate a dispute in which they have not agreed to submit to

arbitration.” Marks v. Morgan Stanley Dean Witter Commercial Fin. Servs., 8th

Dist. Cuyahoga No. 88948, 2008-Ohio-1820, ¶ 15, citing Piqua v. Ohio Farmers Ins.

Co., 84 Ohio App.3d 619, 621, 617 N.E.2d 780 (2d Dist.1992); St. Vincent Charity

Hosp. v. URS Consultants, Inc., 111 Ohio App.3d 791, 793, 677 N.E.2d 381 (8th

Dist.1996); Shumaker v. Saks, Inc., 163 Ohio App.3d 173, 2005-Ohio-4391, 837

N.E.2d 393 (8th Dist.).

Ohio’s policy of encouraging arbitration has been declared by the

legislature through the Ohio Arbitration Act — R.C. Chapter 2711. Goodwin v.

Ganley, Inc., 8th Dist. Cuyahoga No. 89732, 2007-Ohio-6327, ¶ 8. The Ohio

Arbitration Act allows for direct enforcement of arbitration agreements through an

order to compel arbitration under R.C. 2711.03 or indirect enforcement through an

order staying proceedings under R.C. 2711.02, or both. Maestle v. Best Buy Co., 100

Ohio St.3d 330, 2003-Ohio-6465, 800 N.E.2d 7, ¶ 18; Brownlee v. Cleveland Clinic

Found., 8th Dist. Cuyahoga No. 97707, 2012-Ohio-2212, ¶ 11. Although these

provisions each require a trial court to determine whether an arbitration provision

is enforceable, they are separate and distinct procedures.

R.C. 2711.02 permits the trial court, upon application of one of the

parties, to stay litigation in favor of arbitration pursuant to a written arbitration

agreement. The statute provides as follows:

If any action is brought upon any issue referable to arbitration under

an agreement in writing for arbitration, the court in which the action is

pending, upon being satisfied that the issue involved in the action is

referable to arbitration under an agreement in writing for arbitration,

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, provided the applicant for the stay is not in default in

proceeding with arbitration.

Thus, R.C. 2711.02 requires a trial court to stay an action

on application of one of the parties if (1) the action is brought upon any

issue referable to arbitration under a written agreement for

arbitration[;] (2) the court is satisfied the issue is referable to

arbitration under the written agreement[;] and (3) the applicant is not

in default in proceeding with arbitration.

Fields v. Herrnstein Chrysler, Inc., 4th Dist. Pike No. 12CA827, 2013-Ohio-693,

¶ 14.

In turn, R.C. 2711.03, titled “Enforcing arbitration agreement,”

governs petitions to compel arbitration. The statute provides, in relevant part:

(A) The party aggrieved by the alleged failure of another to perform

under a written agreement for arbitration may petition any court of

common pleas having jurisdiction of the party so failing to perform for

an order directing that the arbitration proceed in the manner provided

for in the written agreement. * * * The court shall hear the parties, and,

upon being satisfied that the making of the agreement for arbitration

or the failure to comply with the agreement is not in issue, the court

shall make an order directing the parties to proceed to arbitration in

accordance with the agreement.

(B) If the making of the arbitration agreement or the failure to perform

it is in issue in a petition filed under division (A) of this section, the

court shall proceed summarily to the trial of that issue. If no jury trial

is demanded as provided in this division, the court shall hear and

determine that issue.

In Maestle, the Ohio Supreme Court held that a trial court is not

required to conduct a hearing when a party moves for a stay pursuant to R.C.

2711.02, but may stay proceedings “upon being satisfied that the issue involved in

the action is referable to arbitration under an agreement in writing for arbitration

* * *.” Id., 100 Ohio St.3d 330, 2003-Ohio-6465, 800 N.E.2d 7, at ¶ 18. The high

court reasoned, “the statute does not on its face require a hearing, and it is not

appropriate to read an implicit requirement into a statute.” Id.

In contrast, however, where a party has filed a motion to compel

arbitration pursuant to R.C. 2711.03, “the court must, in a hearing, make a

determination as to the validity of the arbitration clause.” Marks, 8th Dist.

Cuyahoga No. 88948, 2008-Ohio-1820, at ¶ 21, citing Maestle at ¶ 18. Applying the

foregoing principle, this court has consistently held that “a hearing is mandatory on

a motion to compel arbitration in order to determine the validity of the arbitration

clause.” Id. at ¶ 22, citing McDonough v. Thompson, 8th Dist. Cuyahoga No. 82222,

2003-Ohio-4655, ¶ 11. See also Post v. Procare Automotive Serv. Solutions, 8th

Dist. Cuyahoga No. 87646, 2007-Ohio-2106; Benson v. Spitzer Mgt., Inc., 8th Dist.

Cuyahoga No. 83558, 2004-Ohio-4751; Herman v. Ganley Chevrolet, Inc., 8th Dist.

Cuyahoga Nos. 81143 and 81272, 2002-Ohio-7251; Olah v. Ganley Chevrolet, Inc.,

8th Dist. Cuyahoga No. 86132, 2006-Ohio-694; Samoly v. Landry, 8th Dist.

Cuyahoga No. 89060, 2007-Ohio-5707.

A “hearing,” however, does not necessarily require an oral evidentiary

hearing as appellants’ suggest on appeal. “[A] ‘hearing’ means any confrontation,

oral or otherwise, between an affected individual [and a decisionmaker] sufficient

to allow the individual to present the case in a meaningful manner. Hearings may

take many forms, including a ‘formal,’ trial-type proceeding, an ‘informal

discuss(ion)’ * * *, or a ‘paper hearing,’ without any opportunity for oral exchange.”

Liese v. Kent State Univ., 11th Dist. Portage No. 2003-P-0033, 2004-Ohio-5322,

fn.6, quoting Gray Panthers v. Schweiker, 209 U.S. App. D.C. 153, 652 F.2d 146,

fn.3 (C.A.D.C., 1980). See also Nemec v. Morledge, 8th Dist. Cuyahoga No. 110149,

2021-Ohio-3361, ¶ 18.

In this case, both parties allowed themselves to be heard on the

arbitration issue without requesting an evidentiary hearing under R.C. 2711.03(A).

The relevant issues were debated in opposing briefs, and the disputed contracts were

submitted to the court for review. Under these circumstances, we find the trial court

“heard” the parties as contemplated under R.C. 2711.03(A) and was capable of

assessing the evidence and legal arguments supporting the parties’ competing

interpretations of the relevant agreements. Consequently, the trial court did not

abuse its discretion in denying the motion to compel without an evidentiary hearing.

See Nemec at ¶ 19, citing Marks at ¶ 33; Church v. Fleishour Homes, Inc., 172 Ohio

App.3d 205, 2007-Ohio-1806, 874 N.E.2d 795, ¶ 29 (5th Dist.) (“While a party’s

request for an oral hearing shall be granted pursuant to R.C. 2711.03, an oral hearing

is not mandatory absent a request.”), citing Cross v. Carnes, 132 Ohio App.3d 157,

166, 724 N.E.2d 828 (11th Dist.1998), and Chrysler Fin. Servs., Ams., L.L.C. v.

Henderson, 4th Dist. Athens No. 11CA4, 2011-Ohio-6813, ¶ 20 (where parties did

not specifically request an oral or evidentiary hearing on a motion to compel

arbitration, the trial court acted properly in “hearing” the matter upon a non-oral

hearing).

Appellants nevertheless argue that pursuant to R.C. 2711.03(B), the

trial court committed reversible error by denying its request for the court to proceed

summarily to a jury trial where “the making of the arbitration agreement or the

failure to perform it is in issue.”

“‘When determining whether a trial is necessary under R.C.

2711.03(B), the relevant inquiry is whether a party has presented sufficient evidence

challenging the validity or enforceability of the arbitration provision to require the

trial court to proceed to trial before refusing to enforce the arbitration clause.’”

McDonough, 8th Dist. Cuyahoga No. 82222, 2003-Ohio-4655, at ¶ 13, quoting

Garcia v. Wayne Homes, L.L.C., 2d Dist. Clark No. 2001 CA 53, 2002-Ohio-1884,

¶ 29. The Ohio Revised Code does not set forth the amount of evidence that must

be produced to receive a trial under R.C. 2711.03. However, “courts are directed to

address the matter as they would a summary judgment exercise, proceeding to trial

where the party moving for the jury trial sets forth specific facts demonstrating that

a genuine issue of material fact exists regarding the validity or enforceability of the

arbitration agreement.” Garcia at ¶ 30. We have explained that a trial on the issue

is “required” because a question of fact exists that can only be resolved by such a

proceeding. Schroeder v. Shearson, Lehman & Hutton, Inc., 8th Dist. Cuyahoga

No. 60236, 1991 Ohio App. LEXIS 1826, *6 (Apr. 25, 1991).

With the foregoing principles in mind, we find the relevant inquiry

before this court is (1) whether there remain genuine issues of material fact

regarding the validity or enforceability of the arbitration agreement, and, if no issues

of fact remain, (2) whether the arbitration provision was enforceable as a matter of

law.

3. Enforceability of Arbitration Provision in the

Original Employment Agreement

As mentioned above, we apply a de novo standard of review to

questions of law, including whether a party has agreed to submit an issue to

arbitration or questions of unconscionability. Paulozzi v. Parkview Custom Homes,

L.L.C., 2018-Ohio-4425, 122 N.E.3d 643, ¶ 12 (8th Dist.), citing Brownlee, 8th Dist.

Cuyahoga No. 97707, 2012-Ohio-2212; N. Park Retirement Community Ctr., Inc. v.

Sovran Cos., Ltd., 8th Dist. Cuyahoga No. 96376, 2011-Ohio-5179. Under a de novo

standard of review, we give no deference to the trial court’s decision. Brownlee at

¶ 9.

In construing the validity or enforceability of an arbitration provision,

we are mindful that whether a party has agreed to arbitration is a matter of contract.

Maestle v. Best Buy Co., 8th Dist. Cuyahoga No. 79827, 2005-Ohio-4120, ¶ 10, citing

First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S.Ct. 1920, 131

L.Ed.2d 985 (1995); Palumbo v. Select Mgt. Holdings, Inc., 8th Dist. Cuyahoga

No. 82900, 2003-Ohio-6045, ¶ 18. Thus, when deciding whether a party has agreed

to arbitrate, courts should apply ordinary principles that govern the formation of

contracts. Seyfried v. O’Brien, 2017-Ohio-286, 81 N.E.3d 961, ¶ 19 (8th Dist.), citing

First Options at 944; Roberts v. KND Dev. 51, L.L.C., 8th Dist. Cuyahoga

No. 108473, 2020-Ohio-4986, ¶ 10, citing Avery v. Academy Invests., L.L.C., 8th

Dist. Cuyahoga No. 107550, 2019-Ohio-3509, ¶ 9.

“‘A valid arbitration agreement, like any contract, requires an offer

and acceptance that is supported by consideration and is premised on the parties’

meeting of the minds as to the essential terms of the agreement.’” Rousseau v. Setjo,

L.L.C., 8th Dist. Cuyahoga No. 109237, 2020-Ohio-5002, ¶ 8, quoting Corl v.

Thomas & King, 10th Dist. Franklin No. 05AP-1128, 2006-Ohio-2956, ¶ 8. “‘The

party seeking to compel arbitration bears the burden of establishing the existence of

an enforceable arbitration agreement [with] the party against whom the moving

party seeks enforcement.’” Dorgham v. Woods Cove III, 8th Dist. Cuyahoga

No. 106838, 2018-Ohio-4876, ¶ 16, quoting Fifth Third Bank v. Senvisky, 8th Dist.

Cuyahoga No. 100030, 2014-Ohio-1233, ¶ 11.

In this case, the parties do not dispute that the arbitration provision

included in the original Employment Agreement was valid and fully enforceable

during Dr. Costin’s employment with Cleveland Eye Clinic. Dr. Costin argues,

however, that the arbitration provision contained in the original agreement was

“explicitly disclaimed” by the negotiated terms of the Amended Employment

Agreement executed on August 19, 2021. Dr. Costin summarizes his position as

follows:

The language of the Amendment is unambiguous, “[n]either Employee

nor Employer shall have any further obligation under the Employment

Agreement effective as of the termination date.” This paragraph can

admit only one interpretation, that the parties “specifically invalidated

the mandatory arbitration clause contained within Costin’s

employment contract,” and that the “remaining clauses specifically

enumerated in this Amendment are the only ones that can be newly

enforced after August 21, 2021, and do not include the arbitration

clause.”

The parties to the Amendment took pains to make sure certain

provisions of the Employment Agreement survived[.] * * * Notably

absent from this list of provisions that “shall survive the termination of

the Employment Agreement and remain in full force and effect” is

Section 16 (Mediation/Arbitration). If they had intended to preserve

the arbitration provision they could have, but they did not.

Appellants counter that the arbitration provision contained in the

original Employment Agreement is still valid and enforceable, stating:

Costin’s own complaint establishes that an agreement to arbitrate

exists – it is attached as Exhibit 1 to the complaint and found in Section

16. All the claims asserted by Costin are derived and based on the

Employment Agreement containing the arbitration agreement and,

therefore, are arbitrable.

***

No basis in fact exists to disregard the clear and unambiguous

contractual requirement in Section 16.2 to submit all of Dr. Costin’s

claims derived from the compensation provision therein to final and

binding arbitration through the AHLA[.]

Appellants further reiterate their position that the court committed

reversible error by “issuing its order without conducting a jury trial on the

arbitrability issue as required by R.C. 2711.03(B), despite appellants[’] request for

the same.”

It is well settled that a written contract may be modified or amended

by the express agreement of the parties to it either in writing or by acts of the parties

which evince a meeting of their minds in agreement to modify its terms upon any

particular point. Bank One Trust Co. v. Wigner, 10th Dist. Franklin No. 87AP-329,

1988 Ohio App. LEXIS 2211 (June 9, 1988), citing Hotchner v. Neon Prods., Inc.,

163 F.2d 672 (6th Cir.1947). “A contract cannot be unilaterally modified, and parties

to a contract must mutually consent to a modification.” Hanna v. Groom, 10th Dist.

Franklin No. 07AP-502, 2008-Ohio-765, ¶ 27. Courts presume that the intent of the

parties to a contract resides in the language they chose to employ in the agreement.

Kelly v. Med. Life Ins. Co., 31 Ohio St.3d 130, 509 N.E.2d 411 (1987), paragraph one

of the syllabus. When the terms in a contract are unambiguous, courts will not in

effect create a new contract by finding intent not expressed in the clear language

employed by the parties. Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241,

246, 374 N.E.2d 146 (1978).

Preliminarily, we find no merit to appellants’ position that the trial

court erred by failing to hold a trial pursuant to R.C. 2711.03(B). Although

appellants included a jury demand in their motion to compel, there remained no

unresolved issues of material fact before the trial court. Rather, the court’s judgment

relied exclusively on its interpretation of the relevant employment contract and the

amendment executed by the parties during Costin’s term of employment with

Cleveland Eye Center. See Nour v. Shawar, 10th Dist. Franklin No. 13AP-1070,

2014-Ohio-3016, ¶ 6 (“The construction of a written contract is a matter of law for a

trial court.”), citing Alexander at paragraph one of the syllabus. Because appellants

failed to demonstrate that a genuine issue of material fact existed regarding the

validity or enforceability of the arbitration agreement, we find the trial court was

permitted to issue a decision on the contested issues of law without conducting a

trial pursuant to R.C. 2711.03(B). Liese, 11th Dist. Portage No. 2003-P-0033, 2004-

Ohio-5322, at ¶ 39 (“[O]nly a party which raises a material issue of fact as to whether

there was an enforceable and applicable arbitration provision is entitled to an actual

trial.”); Haight v. Cheap Escape Co., 2d Dist. Montgomery No. 25345, 2013-Ohio-

182, ¶ 29 (“After ‘hearing’ the parties pursuant to R.C. 2711.03(A), the trial court

specifically found that appellees’ claims were not subject to the terms of the

arbitration agreement. Accordingly, the trial court was not required to further

consider any additional arguments [at a trial under R.C. 2711.03(B)].”).

We are equally unpersuaded by appellants’ limited interpretation of

the Amended Agreement. Viewing the express terms of the written agreements in

their entirety, we find the parties mutually agreed to modify the terms of the original

agreement such that certain provisions of the Employment Agreement would

remain in full force and effect following the designated termination date, while all

other provisions would expire. Whether the terms of the modified agreement will

limit or otherwise impair Dr. Costin’s ability to prove his claims below is not

presently before this court.8 Nevertheless, as it relates to the existence of an

enforceable arbitration provision, the Amended Agreement unambiguously alters

the scope of the parties’ mutual rights and responsibilities following the designated

termination date, including the manner in which any claim or dispute would be

resolved post termination. Specifically, the arbitration provision contained in the

original Employment Agreement was not incorporated into the Amended

Agreement and, therefore, expired as of September 30, 2021. Viewing the

unambiguous terms of the modified agreement, we find the decision to exclude the

arbitration provision from the Amended Agreement was intentional and is binding

moving forward.9

Under the foregoing circumstances, we find, as a matter of law, the

parties contractually agreed to extinguish their duties to arbitrate under the clear

8 To this point, this court believes it is premature to address, and therefore takes

no stance on, the trial court’s statement in the judgment entry that “[t]his contract

amendment, however, does not relieve Northern Ohio Eye Consultants (or its

successor(s)) of their obligations to plaintiff that arose while the employment contract

was still in effect and were never fulfilled.”

9 As consideration for the Amended Agreement, Dr. Costin’s right to conduct an

independent audit was not incorporated into the Amended Agreement.

terms of the Amended Agreement.10 In the absence of a valid and enforceable

arbitration agreement, the trial court did not err in denying appellants’ motion to

compel arbitration without holding a trial. For these same reasons, the court did

not err in denying appellants’ motion to stay the proceedings or discovery pending

arbitration.

The sole assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellants 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.

EILEEN T. GALLAGHER, JUDGE

FRANK DANIEL CELEBREZZE, III, P.J., and

MICHELLE J. SHEEHAN, J., CONCUR

10 Having determined that the negotiated terms of the Amended Agreement

prevail, we decline to address whether Midwest Vision was entitled to enforce the

arbitration provision in the original Employment Agreement as a nonsignatory to the

agreement.