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
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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
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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