In Al Barto v. Ben D. Imhoff, Inc. (Dec. 11, 2006), 9th Dist. No. 06CA0025, 2006-Ohio-6479, the 9th District Court of Appeals upheld the trial court’s denial of a motion to stay pending arbitration. Barto was the subcontractor (“Sub”) in privity of contract with the general contractor, Ben D. Imhoff, Inc. (“GC”). After a dispute arose, the Sub was terminated and filed a lawsuit seeking payment for services rendered. The GC and project Owner filed a motion to stay pending arbitration, based on an arbitration clause in the GC’s contract with the Owner and a provision in the Subcontract providing that “Contractor shall have the same legal rights and privileges against the Subcontractor herein as the Owner has against the Contractor.” The GC argued that the Subcontract incorporated the arbitration clause by using this language.
The trial court disagreed, holding that a party cannot be compelled to arbitrate a matter when it has not agreed to do so. The Subcontract expressly incorporated only the “specifications, drawings, schedules and addendas prepared by Mitchell Associates, Inc.” into the Subcontract. The parties could have easily incorporated the arbitration provision, all obligations, or even the entirety of the GC’s contract with the Owner, but did not. The Sub never specifically agreed to arbitrate the dispute and the trial court correctly denied the motion to compel arbitration.