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Case Information
Filed
2023-04-26
Status
CLOSED
Type
Civil Austintown
Docket
33 entries
Disposition
dismiss
Parties
Plaintiff
Orlando, Darrell|Orlando, Michael
Defendant
Fred Martin Ford Inc|Capitol One
Lawyers
Docket Entries
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- ADDITIONAL DEFENDANTS Receipt: 412487 Date: 04/26/2023
- HEARING SCHEDULED Event: SMALL CLAIM Date: 06/15/2023 Time: 9:15 am Judge: DESANTO, DONALD Location: COUNTY COURT # 4
- Issue Date: 05/01/2023 Service: SMALL CLAIMS COMPLAINT Method: (A) CERTIFIED MAIL Cost Per: $0.00 FRED MARTIN FORD INC 4701 MAHONING AVE YOUNGSTOWN, OH 44515 Tracking No: 941472669904220364682
- Issue Date: 05/01/2023 Service: SMALL CLAIMS COMPLAINT Method: (A) CERTIFIED MAIL Cost Per: $0.00 CAPITOL ONE 7933 PRESTON RD PLANO, TX 75024 Tracking No: 941472669904220364683
- SUCCESSFUL SERVICE Method : (A) CERTIFIED MAIL Issued : 05/01/2023 Service : SMALL CLAIMS COMPLAINT Served : 05/08/2023 Return : 05/09/2023 On : FRED MARTIN FORD INC Signed By : JODI ROSEN Reason : (A) SUCCESSFUL SERVICE Comment : Tracking #: 941472669904220364682
- SUCCESSFUL SERVICE Method : (A) CERTIFIED MAIL Issued : 05/01/2023 Service : SMALL CLAIMS COMPLAINT Served : 05/23/2023 Return : 05/30/2023 On : CAPITOL ONE Signed By : SCOTT ANDERSON Reason : (A) SUCCESSFUL SERVICE Comment : Tracking #: 941472669904220364683
- MOTION TO TRANSFER TO REGULAR DOCKET FILED BY Attorney: RUDLOFF, RANDIL J (5590)
- DEFENDANT FRED MARTIN FORD INC'S MOTION TO DISMISS OR STAY PROCEEDINGS FILED BY Attorney: RUDLOFF, RANDIL J (5590)
- MOTION TO TRANSFER TO REGULAR DOCKET FILED BY Attorney: RUDLOFF, RANDIL J (5590) Receipt: 414912 Date: 06/13/2023
- JUDGMENT ENTRY: UPON MOTION OF DEFENDANT, FRED MARTIN FORD, INC, SUPPORTED BY AFFIDAVIT, AND FOR GOOD CAUSE SHOWN, THE WITHIN CASE IS TRANSFERRED FROM THE SMALL CLAIMS DOCKET OF THIS COURT TO THE REGULAR DOCKET, AND ANY SMALL CLAIMS HEARING SCHEDULED HEREIN FOR JUNE 15, 2023 IS CONTINUED. MOTION TO DISMISS FILED 6/8/23 TO BE SET FRO NON ORAL HEARING IN 30 DAYS. /S/DJD /S/JUDGE SCOTT D HUNTER
- HEARING SCHEDULED Event: NON-ORAL HEARING - MOTION TO DISMSS Date: 07/21/2023 Time: 11:00 am Judge: DESANTO, DONALD Location: COUNTY COURT # 4
- ENTRY OF 6/21/23 SENT TO ATTY RANDIL J RUDLOFF, DARRELL ORLANDO, MICHAEL ORLANDO AND CAPITOL ONE
- NOTICE OF NON ORAL HEARING SENT TO ATTY RANDIL J RUDLOFF, DARRELL ORLANDO AND MICHAEL ORLANDO
- DECISION OF MAGISTRATE: THE PROCEEDINGS This matter came on for non-oral hearing on July 21, 2023 on the Motion to Dismiss or Stay Proceeding filed by the Defendant, Fred Martin Ford, Inc., on June 8, 2023. Also considered was the Plaintiff's untitled response filed July 21, 2023. PRESENT WERE Neither party nor counsel was required to appear as the matter was considered by way of non-oral hearing. FINDINGS OF FACT 1. Plaintiffs filed their small claim complaint on April 26, 2023 against defendants, Fred Martin Ford, Inc., hereinafter Fred Martin, and Capitol One, for the sum of $5,000.00. A cursory reading of the complaint indicates that same involves the sale of a motor vehicle and alleges collusion and fraud. Service of process by certified mail was perfected upon defendant, Fred Martin, on May 8, 2023 with service perfected upon defendant, Capital One, on May 23, 2023. Upon the motion of defendant, Fred Martin Ford, the matter was transferred to the court's regular docket on June 21, 2023. 2. In its motion to dismiss or stay proceedings defendant, Fred Martin, attaches a purchase order by and between the plaintiffs and defendant, Fred Martin, dated August 23, 2021 for the purchase of a 2012 Ford Escape. The defendant argues that the language contained within such purchase order requires any disputes by and between the parties to be resolved pursuant to binding arbitration to be conducted by the National Arbitration Forum. Based upon such contractual language, and a review of applicable statutes and judicial decisions, Fred Martin argues that plaintiff's complaint should be dismissed or alternatively stayed until such time as arbitration has been conducted. 3. As indicated, the plaintiffs filed an untitled pleading on July 21, 2023. A cursory review of such pleading reflects that it is a response in opposition to Defendant's motion to dismiss or stay proceedings. The Magistrate notes that it does not appear that service of such response was made upon either defendant as required by Civil Rule 5(A) nor does such pleading contain a proof of service as required by Civil Rule 5 (B)(4). 4. The purchase order between the plaintiffs and defendant, Fred Martin, and attached to the motion to dismiss, states in pertinent part: The undersigned consumer and Fred Martin Ford, Inc., by its acceptance hereof, hereby voluntarily, knowingly, irrevocably and unconditionally waive any right to have a jury participate in resolving any dispute, whether based on contract, tort, under a statute or otherwise, and whether for money damages, penalties, declaratory or equitable relief, between or among the undersigned and Fred Martin Ford, Inc., arising out of or in any way related to the contract between the parties for the purchase, lease or repair of any vehicle by Fred Martin Ford, Inc. and any other related document or relationship between the undersigned consumer and Fred Martin Ford, Inc. In addition, the parties voluntarily, knowingly, irrevocably and unconditionally agree that any disputes between them, whether based on contract, tort, under a statute or otherwise, and whether for money damages, penalties or declaratory or equitable relief, shall be resolved by binding arbitration. (emphasis added). The arbitration shall be conducted by the National Arbitration Forum (NAF) under the Code of Procedure in effect at the time the Claim is filed. Rules and forms of the National Arbitration Forum shall be obtained and Claims may be filed at any National Arbitration Forum office, www.arb-forum.com or P. 0. Box 50191, Minneapolis, Minnesota 55405, telephone number 1-800-474-2371. If the NAF is unable or unwilling to act as arbitrator, we may substitute another nationally recognized, independent arbitration organization that uses a similar code of procedure. Any arbitration hearing will take place within Mahoning County. Judgment upon any arbitration award may be entered in any court having jurisdiction. The arbitrator shall follow existing substantive law and applicable statues of limitations and shall honor any Claims or privilege recognized by law. If any party requests, the arbitrator shall write an opinion concerning the reasons for the award. No Claim submitted to arbitration is heard by a jury and no Claim may be brought as a class action or as a private attorney general. You will not have the right to act as a class representative or participate as a member of a class of claimants with respect to any Claim. RESULT OF THIS ARBITRATION SECTION IS THAT, EXCEPT AS PROVIDED ABOVE, CLAIMS CANNOT BE LITIGATED IN COURT, INCLUDING SOME CLAIMS THAT COULD HAVE BEEN TRIED BEFORE A JURY, AS CLASS ACTIONS OR AS PRIVATE ATTORNEY GENERAL ACTIONS. A clear reading of the contract language, in conjunction with a review of the plaintiffs' complaint, reflects that the plaintiffs' claim must be submitted to arbitration pursuant to the terms of the agreed language within such purchase form. Such contract language precludes suit in this court until such time as an arbitration hearing has been held in accordance with the terms the parties' agreement. 5. The Magistrate notes that R.C. 2711.02 provides that, B) 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. (emphasis added). Based upon such statutory language and the Seventh Appellate Court decision in Star Construction & Demo v. D.A. Bentley Construction, 2022 Ohio 112, the magistrate finds that this matter should be stayed pending arbitration. The Court notes that such stay applies to defendant, Fred Martin, only, and does not preclude further proceedings, if any, by and between plaintiffs and defendant, Capital One. DECISION 1. Defendant, Fred Martin Ford, Inc.'s motion to dismiss is overruled. 2. Defendant, Fred Martin Ford, Inc.'s motion to stay these proceedings pending arbitration is granted. 3. Matter stayed as to defendant, Fred Martin Ford, Inc. IT IS SO ORDERED. /S/MAGISTRATE DONALD J DESANTO Pursuant to Civil Rule 53(D)(3)(a)(iii) a party shall not assign as error the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civil Rule 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion as required by Civil Rule 53(D)(3)(b).
- DECISION OF MAGISTRATE SENT TO DARRELL ORLANDO, MICHAEL ORLANDO, ATTY RANDIL J RUDLOFF, CAPITOL ONE
- SEPARATE ANSWER OF DEFENDANT CAPITAL ONE FILED BY Attorney: RUDLOFF, RANDIL J (5590)
- SEPERATE ANSWER OF DEFENDANT FRED MARTIN FORD INC FILED BY Attorney: RUDLOFF, RANDIL J (5590)
- PER MAGISTRATE: SET FOR PRE TRIAL
- HEARING SCHEDULED-DISMISSED Event: CIVIL PRE TRIAL Date: 10/27/2023 Time: 9:50 am Judge: DESANTO, DONALD Location: COUNTY COURT # 4 Result: DISMISSED
- NOTICE OF CIVIL PRE TRIAL SET FOR ATTY RANDILL J RUDLOFF, DARRELL ORLANDO AND MICHAEL ORLANDO
- JOURNAL ENTRY ADOPTING THE MAGISTRATE'S DECISION: The attached decision was filed by the Magistrate of this Court on 7/28/23. The Court finds that no written objections have been timely filed. The Court has conducted an independent review of the Magistrate's Decision and finds that such Decision is well supported and there is no error or defect on the face of such Decision. Accordingly, such attached Magistrate's Decision is adopted in its entirety, pursuant to Civil Rule 53(D)(4), as a permanent Order of the Court. /S/JUDGE SCOTT D HUNTER
- ADOPITION OF MAGISTRATE'S DECISION AND DECISION SENT TO ATTY RANDIL J RUDLOFF, DARRELL ORLANDO, MICHAEL ORLANDO AND CAPITOL ONE
- NOTICE OF DISMISSAL-PURSUANT TO OHIO CIVIL RUL 41 (A) PLAINTIFF'S HEREBY DISMISS THE WITHIN CASE WITHOUT RECORD, WITH PREJUDICE AND AT PLAINTIFF'S COSTS, THE PARTIES HAVING SSETTLED ALL CLAIMS HEREIN. /S/DARRELL J ORLANDA PLAINTIFF /S/MICHAEL T ORLANDO PLAINTIFF.
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Full Analytics Report
- Complete case narrative
- Judge details and rulings
- Case disposition and outcome
- All docket entries
- Related cases and filings
$20
One-time purchase
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