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