JUPd 0-20^^ CLERK OF COURT SUPREME COURT OF OHIO IN THE SUPREME COURT OF OHIO CASE NO, CA BARBARA ZINDROSKI, ET AL.

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1 IN THE SUPREME COURT OF OHIO S BARBARA ZINDROSKI, ET AL. V. Appellees PARMA CI'tY SCHOOL DISTRICT, et al. CASE NO, CA On Appeal from the Cuyahoga County Court of Appeals, Ninth Appellate District Court of Appeals Case No. CV Appellants MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANTS, PARMA CITY SCHOOL DISTRICT BOARD OF EDUCATION, ET AL. SUSAN L. GRAGFL, ESQ. ( ) RICHARD L. STOPER, JR. ( ) ROTATORI, BENDER, GRAGEL, STOPER & ALEXANDER CO., LPA 800 Leader Bldg. 526 Superior Avenue, N.E. 800 Leader Building Cleveland, Ohio Attorneys for Appellees SHAWN W. MAESTLE ( ) SMaestle@,wcstonhurd. com HILARY S. TAYLOR ( ) H'I'aylor(owestonhurd.com Weston Hurd LLP i'he Tower at Erieview 1301 East 9"' Street, Suite 1900 Cleveland, Ohio Fax Attorneys forappellants, Parma City School District, et al. JUPd 0-20^^ CLERK OF COURT SUPREME COURT OF OHIO

2 TABLE OF CONTENTS Pa2^e TABLE OF CONTENTS......i EXPLANATION OF WHY THIS IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST OR INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION STATEMENT OF THE CASE AND FACTS...3 LAW AND ARGUMENT Proposition of Law: A Trial Court's Vacating Of Its Earlier Decision To Stay The Matter Pending Arbitration Is Tantamount To A Denial Of A Party's Right To Arbitrate And Is Thus A Final Appealable Order...5 CONCLUSION CERTIFICATE OF SERVICE...9 APPENDIX i

3 EXPLANATION OF WHY THIS IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST OR INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION This case presents the Court with its apparent first opportunity to determine whether an order which vacates an earlier order to stay proceedings pending arbitration is final and immediately appealable pursuant to R.C (C) which provides in pertinent part: 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 pursuant to the Rules of Appellate Procedure and, to the extent not in conflict with those rules, Chapter 2505 of the Revised Code. As the statute unambiguously provides the denial of a motion stay pending arbitration is a final order subject to immediate appellate review. Certainly an order which vacates an earlier order which stayed an action pending arbitration is an order which in effect denies a party's right to arbitrate. Accordingly, the order as having denied the right to arbitrate falls squarely within the statutory grant of immediate appellate review. This Court has expressly held that the denial of party's right to arbitration is immediately reviewable. 7aylor Building Corporation of America v. Ben-Field, 117 Ohio St.3d 352, 2008-Ohio-938 at 27-30; Gerig v. Kahn, 95 Ohio St.3d 478, 480, Ohio-2581 at 9, Fn. 7. Likewise, various courts of appeals have followed suit and recognized that the denial of a party's right to arbitrate is immediately reviewable by the appellate court.

4 STATEMENT OF THE CASE AND FACTS Appellee, Barbara Zindroski, filed a complaint in the Cuyahoga County Common Pleas Court alleging that she was improperly treated under the terms of the Collective Bargaining Agreement between her union and Appellant, the Parma City School District Board of Education. In short, Appellee, Zindroski, alleged that she resigned from professional employment to join the school district allegedly because she was promised by the school board and members of the school administration that when she completed her Bachelor's Degree she would be paid the Master's Degree scheduled salary in the Collective Bargaining Agreement applicable at the time she obtained her degree. Appellee further alleges that she subsequently obtained her Bachelor's Degree with honors from Kent State University and asked and demanded that the Appellant adhere to the alleged promise to compensate her at the Master's Degree salary schedule. '1'he Collective Bargaining Agreement for which Appellee as a union member is bound, contains a clear and unambiguous arbitration clause. The arbitration clause requires Ms. Zindroski to arbitrate her claims. In accordance with that contractual provision, Appellant filed a Motion to Dismiss And/Or Stay the Proceeding Pending Arbitration. 'The trial court initially granted Appellant's request and stayed the matter pending arbitration. 3

5 Thereafter, when the arbitration proceedings did not fall in line with Ms. Zindroski's belief as to the merits of her claim, Ms. Zindroski asked the trial court to vacate the stay. The trial court vacatcd the stay and Appellant appealed that decision to the Eighth District Court of Appeals. On April 23, 2008, the Eighth District Court of Appeals dismissed the appeal for want of a final appealable order. 4

6 LAW AND ARGUMENT 1. Proposition of Law: A Trial Court's Vacating Of Its Earlier Decision To Stay The Matter Pending Arbitration Is Tantamount To A Denial Of A Party's Right To Arbitrate And Is Thus A Final Appealable Order. The right to appeal a Court of Common Pleas' Order or Judgment is constitutionally established in 0. Const. Art. IV Sec. (3)(B)(II) which provides in pertinent part: Courts of Appeal shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the Court of Appeal within the District... Pursuant to this constitutional authority, either a judgment or final order is within an appellate court's plenary jurisdiction. While generally, final orders are reviewed under R.C wherein the Ohio legislation has defined what a "final order" is, separately, the Ohio legislature determined that orders which affect the cnforcement of a party's tights to arbitration set forth in a contract are immediately appealable pursuant to R.C R.C spccifically provides at Subsection (C): An order under division (B) of this section that grants or denies a stay of a trial of any action pending arbitration, including, but not limited to, an order that is based upon a determination of the Court that a party has waived arbitration under the arbitration agreement, is a final order and may be rcviewed, affirmed, modified, or revcrsed on appeal pursuant to the Rules of Appellate Procedure and, 5

7 to the extent not in conflict with those rules, Chapter of the Revised Code. Originally, the trial court, on February 13, 2007, stayed the underlying action pending arbitration. Thereafter, the trial court without determining whether the arbitration procedure was complied with as required under R.C , in effect denied Appellant's right to the continued stay pending arbitration and vacated its previous ruling. See Trial Court Order entered February 8, Since there is no dispute that the trial court's original granting of the stay and subsequent denial of the continued stay affects the Appellants' rights to arbitration pursuant to the written contract, this matter is final and appealable pursuant to R.C (C). Indeed, this Court recently, confirmed that the immediate appeal of orders affecting the party's rights to arbitration. See Gerig v. Kahn, 95 Ohio St. 3d 478, 480, 2002 Ohio 2581 at paragraph 9, F.N. 7. Moreover, various appellate courts have consistently held that an order denying or granting the right to arbitrate is immediately reviewable. See, Schmidt v. Bankers Title & EscrowAgency, Inc., 2007 Ohio 3924 (8th Dist.), Muhammad P. Serpentzni Chevrolet, Inc., 2006 Ohio 3970 (8th Dist.); Felix v. Ganley Chevrolet, Inc., 2006 Ohio 4500 (8th Dist.); and Frank Novak & Sons, Inc. v. Greater Cleveland Growth Association, 1996 Ohio App. Lexis 3260, (8th Dist. No (August 1, 1996); State, Ex. Kel. v. Honorable James D. Bates, 2006-Ohio-2621 (6`' Dist.) at 8; Hocking Tlalley Community Hosiital v. Community 6

8 Health Plan of Ohio, 2003-Ohio-4243 (4`'' Dist.) at 10; Harlamert v. Fischer Attached Homes, Ltd., 2003-Ohio-674 (5`h Dist.) at 4; Oncology Division of UINA, Inc. v. Community Insurance Co., 2002-Ohio-4800 (1s` Dist.) at 7; Owens Flooring Co. v. Hummel Construction Co., 140 Ohio App.3d 825 (11`'' Dist. 2000); Gri^th v. Linton, 130 Ohio App.3d 746 (10`hDist. 1998); Sumver Co. Pte. Ltd. P. Diversey Cor[i., 1996 Ohio App. LEXIS 749, (1s` Dist. No. C February 28, 1996); and Barnes v. Andover Village Ketirement Comm., Ltd., 2007-Ohio-412 (11 "' Dist.) at 16. 7

9 CONCLUSION As this Court has recognized, the Oli.io legislature has provided for the immediate appealability of any and all orders which affect the party's right to proceed to arbitration. In this matter while procedurally different than all other cases this Court has confronted in the past, the end result is that the Appellants were denied their right to proceed with this matter through arbitration as expressly required by the parties Collective Bargaining Agreement. Because this matter appears to be an issue of first impression with regard to the procedural aspects of this case and since the Appellants were denied a clear right as set forth by Ohio General Assembly, this Court's extraordinary jurisdiction is warranted. Respectfully submitted, ud D-a.r,^Ij /wrnw SHAWN W. MAESTLE ( ) SMaestle@westonhurd. com HIL,ARY S. TAYLOR ( ) HTaylorgwestonhurd. com Weston Hurd LLP The Tower at Erieview 1301 East 9th Street, Suite 1900 Cleveland, Ohio (216) (216) (fax) Attorneys forappellants 8

10 CERTIFICATE OF SERVICE A copy of the foregoing MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANTS PARMA CITY SCHOOL DISTRICT, ET AL. was forwarded by First Class United States Mail, postage prepaid this 9th day of June, 2008, to the following: SUSAN L. GRAGEL, ESQ. RICHARD L. STOPER, ESQ. ROTATORI, BENDER, GRAGEL STOPER & ALEXANDER CO., LPA 800 LEADER BLDG. 526 SUPERIOR AVE., N.E. CLEVELAND, OHIO Attorneys forappellees ^SbaU)v^ u ^ ^UA C!^a^ IP"v (CMIsO-) SHAWN W. MAESTLE ( ) SMaestle@westonhurd.com 9

11 APPENDIX Eighth District Court of Appeals Opinion & Judgment Entry...A Tab 10

12 TAaurt of App,eais of 04Y.u, E*t4 :49istrirt County of Cuyahoga Gerald E. Fuerst, Clerk of Courts BARBARA ZINDROSKI, ET AL. Appellee COA NO. LOWER COURT NO CP CV vs- COMMON PLEAS COURT PARMA CITY SCHOOL DISTRICT, ET AL. Appellant MOTION NO Date 04/23108 JournalEnbY MOTION BY APPELLEE TO DISMISS APPEAL IS GRANTED, RECEIVED FOR FILING APR BECEIVED FOR FILING ApR GERALD E.FUERST OLERK OP T E C U T OF APPEALS BY DEP, Judqe COLLEEN CONWAY COONEY, Concurs CV imi iim iuu im ui 4@16 56 Pa^ I 4 2