As Passed by the House                        1            

123rd General Assembly                                             4            

   Regular Session                             Sub. H. B. No. 401  5            

      1999-2000                                                    6            


  REPRESENTATIVES SALERNO-MOTTLEY-ROBINSON-CORBIN-CATES-BUCHY-     8            

                          AMSTUTZ-JONES                            9            


_________________________________________________________________   10           

                          A   B I L L                                           

             To amend sections 2711.02 and 2711.03 of the Revised  12           

                Code to make certain changes applicable to         13           

                commercial construction contracts in the                        

                Arbitration Law.                                   14           




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        16           

      Section 1.  That sections 2711.02 and 2711.03 of the         18           

Revised Code be amended to read as follows:                        19           

      Sec. 2711.02.  (A)  AS USED IN THIS SECTION AND SECTION      29           

2711.03 OF THE REVISED CODE, "COMMERCIAL CONSTRUCTION CONTRACT"    31           

MEANS ANY WRITTEN CONTRACT OR AGREEMENT FOR THE CONSTRUCTION OF    32           

ANY IMPROVEMENT TO REAL PROPERTY, OTHER THAN AN IMPROVEMENT THAT   33           

IS USED OR INTENDED TO BE USED AS A SINGLE-FAMILY, TWO-FAMILY, OR  34           

THREE-FAMILY DETACHED DWELLING HOUSE AND ACCESSORY STRUCTURES      35           

INCIDENTAL TO THAT USE.                                                         

      (B)  If any action is brought upon any issue referable to    38           

arbitration under an agreement in writing for arbitration, the     39           

court in which the action is pending, upon being satisfied that    40           

the issue involved in the action is referable to arbitration       41           

under an agreement in writing for arbitration, shall on            42           

application of one of the parties stay the trial of the action                  

until the arbitration of the issue has been had in accordance      43           

with the agreement, provided the applicant for the stay is not in  44           

default in proceeding with arbitration.  An                        45           

      (C)  EXCEPT AS PROVIDED IN DIVISION (D) OF THIS SECTION, AN  48           

order under DIVISION (B) OF this section that grants or denies a   49           

                                                          2      


                                                                 
stay of a trial of any action pending arbitration, including, but  50           

not limited to, an order that is based upon a determination of     51           

the court that a party has waived arbitration under the            52           

arbitration agreement, is a final order and may be reviewed,       53           

affirmed, modified, or reversed on appeal pursuant to the Rules    54           

of Appellate Procedure and, to the extent not in conflict with     55           

those rules, Chapter 2505. of the Revised Code.                    56           

      (D)  IF AN ACTION IS BROUGHT UNDER DIVISION (B) OF THIS      58           

SECTION UPON ANY ISSUE REFERABLE TO ARBITRATION UNDER AN           60           

AGREEMENT IN WRITING FOR ARBITRATION THAT IS INCLUDED IN A         61           

COMMERCIAL CONSTRUCTION CONTRACT, AN ORDER UNDER THAT DIVISION     62           

THAT DENIES A STAY OF A TRIAL OF THE ACTION PENDING ARBITRATION,   63           

INCLUDING, BUT NOT LIMITED TO, AN ORDER THAT IS BASED UPON A       64           

DETERMINATION OF THE COURT THAT A PARTY HAS WAIVED ARBITRATION     65           

UNDER THE ARBITRATION AGREEMENT, IS A FINAL ORDER AND MAY BE       66           

REVIEWED, AFFIRMED, MODIFIED, OR REVERSED ON APPEAL PURSUANT TO    67           

THE RULES OF APPELLATE PROCEDURE AND, TO THE EXTENT NOT IN         69           

CONFLICT WITH THOSE RULES, CHAPTER 2505. OF THE REVISED CODE.      70           

      Sec. 2711.03.  (A)  The party aggrieved by the alleged       79           

failure of another to perform under a written agreement for        81           

arbitration may petition any court of common pleas having          82           

jurisdiction of the party so failing to perform for an order       83           

directing that such THE arbitration proceed in the manner                       

provided for in such THE WRITTEN agreement.  Five days' notice in  85           

writing of such application THAT PETITION shall be served upon     87           

the party in default.  Service thereof OF THE NOTICE shall be      88           

made in the manner provided for the service of a summons.  The     89           

court shall hear the parties, and, upon being satisfied that the   91           

making of the agreement for arbitration or the failure to comply   92           

therewith WITH THE AGREEMENT is not in issue, the court shall      93           

make an order directing the parties to proceed to arbitration in   95           

accordance with the agreement.  If                                              

      (B)  IF the making of the arbitration agreement or the       98           

failure to perform it is in issue IN A PETITION FILED UNDER        99           

                                                          3      


                                                                 
DIVISION (A) OF THIS SECTION, the court shall proceed summarily    100          

to the trial thereof OF THAT ISSUE.  If no jury trial is demanded  101          

AS PROVIDED IN THIS DIVISION, the court shall hear and determine   102          

such THAT issue.  When such an EXCEPT AS PROVIDED IN DIVISION (C)  103          

OF THIS SECTION, IF THE issue OF THE MAKING OF THE ARBITRATION     104          

AGREEMENT OR THE FAILURE TO PERFORM IT is raised, either party     106          

may, on or before the return day of the notice of application,     107          

THE PETITION, MAY demand a jury trial of such THAT issue, and      108          

upon such.  UPON THE PARTY'S demand FOR A JURY TRIAL, the court    109          

shall make an order referring the issue to a jury called and       110          

impaneled in the manner provided in civil actions.  If the jury    111          

finds that no agreement in writing for arbitration was made or     112          

that there is no default in proceeding thereunder UNDER THE        113          

AGREEMENT, the proceeding shall be dismissed.  If the jury finds   114          

that an agreement for arbitration was made in writing and that     115          

there is a default in proceeding thereunder UNDER THE AGREEMENT,   116          

the court shall make an order summarily directing the parties to   117          

proceed with the arbitration in accordance with such THAT          118          

agreement.                                                         119          

      (C)  IF A WRITTEN AGREEMENT FOR ARBITRATION IS INCLUDED IN   121          

A COMMERCIAL CONSTRUCTION CONTRACT AND THE MAKING OF THE           122          

ARBITRATION AGREEMENT OR THE FAILURE TO PERFORM IT IS IN ISSUE IN  124          

A PETITION FILED UNDER DIVISION (A) OF THIS SECTION, THE COURT     125          

SHALL PROCEED SUMMARILY TO THE TRIAL OF THAT ISSUE, AND THE COURT               

SHALL HEAR AND DETERMINE THAT ISSUE.                               127          

      Section 2.  That existing sections 2711.02 and 2711.03 of    129          

the Revised Code are hereby repealed.                              130