 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Barr v. HCF11/14/2005
150, 2004-Ohio-829, . An abuse of discretion suggests more than an error of law or judgment but instead implies that the trial court's attitude was unreasonable, arbitrary, or unconscionable. See Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{ } In this case, appellant moved the trial court to compel arbitration. R.C. 2711.03 provides a method of direct enforcement of arbitration clauses through an order to compel. See Maestle v. Best Buy Co., 100 Ohio St.3d 330, 2003-Ohio-6465.
{ } R.C. 2711.03 states, in pertinent part, the following:
{ } "(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 the arbitration proceed in the manner provided for in the written agreement. * * * The court shall hear the parties, and, upon being satisfied that the making of the agreement for arbitration or the failure to comply 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.
{ } "(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 of that issue. If no jury trial is demanded as provided in this division, the court shall hear and determine that issue. * * * f the issue of the making of the arbitration agreement or the failure to perform it is raised, either party, on or before the return day of the notice of the petition, may demand a jury trial of that issue. * * *." (Emphasis added.)
{ } R.C. 2711.03(A) requires that a hearing be held to determine whether "the making of the agreement for arbitration or the failure to comply with the agreement is not in issue." If the court determines that the validity of the arbitration is in issue, then the statute requires the court proceed summarily to a jury trial on the sole issue of the validity of the arbitration provision. R.C. 2711.03(B); Benson v. Spitzer Mgt., Inc., Cuyahoga App. No. 83558, 2004-Ohio-4751.
{ } We find the trial court committed reversible error when it did not hold the statutorily mandated hearing. The trial court only filed a short journal entry. It denied appellant's motion on the basis of Small v. HCF of Perrysburg, Inc., 159 Ohio App.3d 66, 2004-Ohio-5757, stating the arbitration clause was unenforceable on equity grounds.
{ } The second assignment of error is sustained. Given our ruling on the second assignment of error, the first assignment of error has been rendered moot and will not be addressed.
{ } Judgment reversed and the cause is remanded for further proceedings.
POWELL, P.J., and YOUNG, J., concur.
|