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As Passed by the House
123rd General Assembly
Regular Session
1999-2000 | Sub. H. B. No. 401 |
REPRESENTATIVES SALERNO-MOTTLEY-ROBINSON-CORBIN-CATES-BUCHY-
AMSTUTZ-JONES
A BILL
To amend sections 2711.02 and 2711.03 of the Revised Code to make certain
changes applicable to commercial construction contracts in the Arbitration
Law.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2711.02 and 2711.03 of the Revised Code be amended to
read as follows:
Sec. 2711.02. (A) AS USED
IN THIS SECTION AND SECTION 2711.03 OF
THE REVISED CODE, "COMMERCIAL
CONSTRUCTION CONTRACT" MEANS ANY WRITTEN CONTRACT OR AGREEMENT FOR
THE CONSTRUCTION OF ANY IMPROVEMENT TO REAL PROPERTY, OTHER THAN
AN IMPROVEMENT THAT IS USED OR INTENDED TO BE USED AS A
SINGLE-FAMILY, TWO-FAMILY, OR THREE-FAMILY DETACHED DWELLING HOUSE
AND ACCESSORY STRUCTURES INCIDENTAL TO THAT USE.
(B) If any action is brought upon any issue
referable to arbitration under an agreement in writing for
arbitration, the court in which the action is pending, upon being
satisfied that the issue involved in the action is referable to
arbitration under an agreement in writing for arbitration, shall
on application of one of the parties stay the trial of the action
until the arbitration of the issue has been had in accordance
with the agreement, provided the applicant for the stay is not in
default in proceeding with arbitration. An
(C) EXCEPT AS PROVIDED IN DIVISION (D) OF THIS SECTION,
AN order under DIVISION (B) OF this
section that grants or denies a stay of a trial of any action
pending arbitration, including, but not limited to, an order that
is based upon a determination of the court that a party has
waived arbitration under the arbitration agreement, is a final
order and may be reviewed, affirmed, modified, or reversed on
appeal pursuant to the Rules of Appellate Procedure and, to the
extent not in conflict with those rules, Chapter 2505. of the
Revised Code.
(D) IF AN ACTION IS BROUGHT UNDER DIVISION (B) OF THIS
SECTION
UPON ANY ISSUE REFERABLE TO ARBITRATION UNDER AN AGREEMENT IN WRITING FOR
ARBITRATION THAT IS INCLUDED IN A COMMERCIAL CONSTRUCTION CONTRACT, AN ORDER
UNDER THAT DIVISION THAT DENIES A STAY OF A TRIAL OF THE ACTION
PENDING ARBITRATION, INCLUDING, BUT NOT LIMITED TO, AN ORDER THAT
IS BASED UPON A DETERMINATION OF THE COURT THAT A PARTY HAS WAIVED
ARBITRATION UNDER THE ARBITRATION AGREEMENT, IS A FINAL ORDER AND
MAY BE REVIEWED, AFFIRMED, MODIFIED, OR REVERSED ON APPEAL
PURSUANT TO THE RULES OF APPELLATE PROCEDURE AND,
TO THE EXTENT
NOT IN CONFLICT WITH THOSE RULES, CHAPTER 2505. OF THE
REVISED CODE.
Sec. 2711.03. (A) The party aggrieved by the alleged failure of
another to
perform under a written agreement for arbitration may petition any court of
common pleas having jurisdiction of the party so failing to perform for an
order directing that such THE arbitration proceed in the manner
provided for in
such THE WRITTEN agreement. Five days' notice in writing of
such application THAT PETITION shall be
served upon the party in default. Service thereof OF THE
NOTICE shall be made in the manner
provided for the service of a summons. The court shall hear the parties,
and,
upon being satisfied that the making of the agreement for arbitration or the
failure to comply
therewith WITH THE AGREEMENT is not in issue, the court shall
make an order directing the parties
to proceed to arbitration in accordance with the agreement. If
(B) IF the making of
the arbitration agreement or the failure to perform it is in issue IN A
PETITION FILED UNDER DIVISION (A) OF THIS SECTION, the court
shall proceed summarily to the trial thereof OF THAT ISSUE. If
no jury trial is demanded AS PROVIDED IN THIS DIVISION,
the court shall hear and determine such THAT issue. When
such an EXCEPT AS PROVIDED IN DIVISION (C) OF THIS SECTION, IF
THE issue OF THE MAKING OF THE ARBITRATION AGREEMENT OR THE FAILURE TO
PERFORM IT is raised,
either party may, on or before the return day of the notice of
application, THE PETITION, MAY demand a jury trial of
such THAT issue, and upon such. UPON THE
PARTY'S demand FOR A JURY TRIAL, the court shall make
an order referring the issue to a jury called and impaneled in the manner
provided in civil actions. If the jury finds that no agreement in writing for
arbitration was made or that there is no default in proceeding
thereunder UNDER THE AGREEMENT, the
proceeding shall be dismissed. If the jury finds that an agreement for
arbitration was made in writing and that there is a default in proceeding
thereunder UNDER THE AGREEMENT, the court shall make an order
summarily directing the parties to
proceed with the arbitration in accordance with such THAT
agreement.
(C) IF A WRITTEN AGREEMENT FOR ARBITRATION IS INCLUDED IN A
COMMERCIAL CONSTRUCTION CONTRACT AND THE MAKING OF THE ARBITRATION AGREEMENT
OR THE FAILURE TO PERFORM IT IS IN
ISSUE IN A PETITION FILED UNDER DIVISION (A) OF THIS SECTION, THE
COURT SHALL PROCEED SUMMARILY TO THE TRIAL OF THAT ISSUE, AND THE COURT SHALL
HEAR AND DETERMINE
THAT ISSUE.
Section 2. That existing sections 2711.02 and 2711.03 of the Revised Code are
hereby repealed.
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