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Frank Novak & Sons8/1/1996
PER CURIAM
JUDGMENT: Dismissed.
The issue in this appeal is whether the trial court's order denying a motion to dismiss and to compel arbitration is a final appealable order. A final appealable order is "an order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial." Bell v. Mt. Sinai Medical Ctr. (1993), 67 Ohio St.3d 60, 62; R.C. 2505.02.
An order affecting a substantial right is one which would foreclose future relief if not immediately appealable. Id. at 63. Generally, denial of a motion to dismiss does not result in the foreclosure of future relief. Lakewood v. Pfeifer (1992), 83 Ohio App.3d 47. The error can always be assigned on appeal at the end of trial. Consequently, a denial of a motion to dismiss and to compel arbitration is not a final appealable order.
However, the denial or granting of a stay pending arbitration is a final appealable order under R.C. 2711.02. R.C. 2711.02 also provides that the trial court must be satisfied that the action should be referred to arbitration. The arbitration agreement in this case was between third party defendant-appellant Gates, McDonald & Company and defendant-appellee COSE, who was sued by Frank Novak & Sons, Inc.
Frank Novak & Sons, Inc. was a participant in a group program that offered affordable workers compensation coverage to small employers by pooling their risks with those of other small businesses. The program was sponsored by COSE and serviced by Gates under a Service agreement with COSE.
On March 6, 1995, Novak filed a complaint against COSE alleging breach of contract, fraud, breach of fiduciary duty, promissory estoppel, and misrepresentation. On May 23, 1995, COSE filed a third party complaint for indemnification against Gates. The Service Agreement between Gates and COSE included the following provision:
All disputes and controversies of every kind and nature between Gates and COSE that may arise as to the existence, construction, validity, interpretation or meaning, performance, nonperformance, enforcement, operation, breach, continuance or termination of this agreement shall be submitted to arbitration * * *
An award rendered by a majority of the arbitrators pursuant to this agreement shall be final and binding on all parties to the proceeding during the period of this agreement *
The parties stipulate that the provisions hereof shall be a complete defense to any suit, action or proceeding instituted in any federal, state or local court or before any administrative tribunal with respect to any controversy or dispute arising during the period of this agreement and which is arbitratable (sic) as herein set forth.
On July 24, 1995, Gates moved to dismiss the third party complaint filed by COSE. Gates alleged that, under the Service Agreement, any disputes between Gates and COSE had to be submitted to arbitration. Thereafter, on August 15, 1995, COSE amended its third party complaint to include "common law" claims for contribution and indemnification. On September 1, 1995, Gates moved to dismiss the amended complaint arguing that it did not state any claims not covered by the arbitration clause. On October 5, 1995, the trial court denied the motion to dismiss. This appeal followed, and Gates assigned the following error:
THE TRIAL COURT SHOULD HAVE DISMISSED OR STAYED THE CLAIMS OF THE APPELLEE IN FAVOR OF ARBITRATION PURSUANT TO
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