As Reported by House Civil and Commercial Law Committee 1
123rd General Assembly 4
Regular Session Sub. H. B. No. 401 5
1999-2000 6
REPRESENTATIVE SALERNO 8
_________________________________________________________________ 9
A B I L L
To amend sections 2711.02 and 2711.03 of the Revised 11
Code to make certain changes applicable to 12
commercial construction contracts in the
Arbitration Law. 13
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 15
Section 1. That sections 2711.02 and 2711.03 of the 17
Revised Code be amended to read as follows: 18
Sec. 2711.02. (A) AS USED IN THIS SECTION AND SECTION 28
2711.03 OF THE REVISED CODE, "COMMERCIAL CONSTRUCTION CONTRACT" 30
MEANS ANY WRITTEN CONTRACT OR AGREEMENT FOR THE CONSTRUCTION OF 31
ANY IMPROVEMENT TO REAL PROPERTY, OTHER THAN AN IMPROVEMENT THAT 32
IS USED OR INTENDED TO BE USED AS A SINGLE-FAMILY, TWO-FAMILY, OR 33
THREE-FAMILY DETACHED DWELLING HOUSE AND ACCESSORY STRUCTURES 34
INCIDENTAL TO THAT USE.
(B) If any action is brought upon any issue referable to 37
arbitration under an agreement in writing for arbitration, the 38
court in which the action is pending, upon being satisfied that 39
the issue involved in the action is referable to arbitration 40
under an agreement in writing for arbitration, shall on 41
application of one of the parties stay the trial of the action
until the arbitration of the issue has been had in accordance 42
with the agreement, provided the applicant for the stay is not in 43
default in proceeding with arbitration. An 44
(C) EXCEPT AS PROVIDED IN DIVISION (D) OF THIS SECTION, AN 47
order under DIVISION (B) OF this section that grants or denies a 48
stay of a trial of any action pending arbitration, including, but 49
2
not limited to, an order that is based upon a determination of 50
the court that a party has waived arbitration under the 51
arbitration agreement, is a final order and may be reviewed, 52
affirmed, modified, or reversed on appeal pursuant to the Rules 53
of Appellate Procedure and, to the extent not in conflict with 54
those rules, Chapter 2505. of the Revised Code. 55
(D) IF AN ACTION IS BROUGHT UNDER DIVISION (B) OF THIS 57
SECTION UPON ANY ISSUE REFERABLE TO ARBITRATION UNDER AN 59
AGREEMENT IN WRITING FOR ARBITRATION THAT IS INCLUDED IN A 60
COMMERCIAL CONSTRUCTION CONTRACT, AN ORDER UNDER THAT DIVISION 61
THAT DENIES A STAY OF A TRIAL OF THE ACTION PENDING ARBITRATION, 62
INCLUDING, BUT NOT LIMITED TO, AN ORDER THAT IS BASED UPON A 63
DETERMINATION OF THE COURT THAT A PARTY HAS WAIVED ARBITRATION 64
UNDER THE ARBITRATION AGREEMENT, IS A FINAL ORDER AND MAY BE 65
REVIEWED, AFFIRMED, MODIFIED, OR REVERSED ON APPEAL PURSUANT TO 66
THE RULES OF APPELLATE PROCEDURE AND, TO THE EXTENT NOT IN 68
CONFLICT WITH THOSE RULES, CHAPTER 2505. OF THE REVISED CODE. 69
Sec. 2711.03. (A) The party aggrieved by the alleged 78
failure of another to perform under a written agreement for 80
arbitration may petition any court of common pleas having 81
jurisdiction of the party so failing to perform for an order 82
directing that such THE arbitration proceed in the manner
provided for in such THE WRITTEN agreement. Five days' notice in 84
writing of such application THAT PETITION shall be served upon 86
the party in default. Service thereof OF THE NOTICE shall be 87
made in the manner provided for the service of a summons. The 88
court shall hear the parties, and, upon being satisfied that the 90
making of the agreement for arbitration or the failure to comply 91
therewith WITH THE AGREEMENT is not in issue, the court shall 92
make an order directing the parties to proceed to arbitration in 94
accordance with the agreement. If
(B) IF the making of the arbitration agreement or the 97
failure to perform it is in issue IN A PETITION FILED UNDER 98
DIVISION (A) OF THIS SECTION, the court shall proceed summarily 99
3
to the trial thereof OF THAT ISSUE. If no jury trial is demanded 100
AS PROVIDED IN THIS DIVISION, the court shall hear and determine 101
such THAT issue. When such an EXCEPT AS PROVIDED IN DIVISION (C) 102
OF THIS SECTION, IF THE issue OF THE MAKING OF THE ARBITRATION 103
AGREEMENT OR THE FAILURE TO PERFORM IT is raised, either party 105
may, on or before the return day of the notice of application, 106
THE PETITION, MAY demand a jury trial of such THAT issue, and 107
upon such. UPON THE PARTY'S demand FOR A JURY TRIAL, the court 108
shall make an order referring the issue to a jury called and 109
impaneled in the manner provided in civil actions. If the jury 110
finds that no agreement in writing for arbitration was made or 111
that there is no default in proceeding thereunder UNDER THE 112
AGREEMENT, the proceeding shall be dismissed. If the jury finds 113
that an agreement for arbitration was made in writing and that 114
there is a default in proceeding thereunder UNDER THE AGREEMENT, 115
the court shall make an order summarily directing the parties to 116
proceed with the arbitration in accordance with such THAT 117
agreement. 118
(C) IF A WRITTEN AGREEMENT FOR ARBITRATION IS INCLUDED IN 120
A COMMERCIAL CONSTRUCTION CONTRACT AND THE MAKING OF THE 121
ARBITRATION AGREEMENT OR THE FAILURE TO PERFORM IT IS IN ISSUE IN 123
A PETITION FILED UNDER DIVISION (A) OF THIS SECTION, THE COURT 124
SHALL PROCEED SUMMARILY TO THE TRIAL OF THAT ISSUE, AND THE COURT
SHALL HEAR AND DETERMINE THAT ISSUE. 126
Section 2. That existing sections 2711.02 and 2711.03 of 128
the Revised Code are hereby repealed. 129