Harsco Corp. v. Crane Carrier Co. ( 1997 )

Thomas F. Bryant, Judge,

concurring separately.

I concur in the result reached and the judgment we enter, but I do not agree with the legal analysis pronounced by the majority based on the “abuse of discretion” standard of our review. I do not agree that R.C. 2711.02 affords any discretion to the trial court in ordering stay of proceedings pending arbitration in the circumstances covered by that statute.

Here, the trial court either was mistaken about or ignored the effort of the defendant to protect its right to answer by asserting that right as an affirmative defense by answer.

While conceivably some fact finding may be necessary to discover the default of a party or lack of such in proceeding with arbitration, once it is determined that no default has occurred, the law is clear that the judge “shall” enter the order of stay.

No trial judge has discretion to enter an order clearly contrary to an express statute.

However, the facts recited in the majority opinion satisfy determination of no default by the party seeking arbitration; hence, review for error of law equally requires reversal. Therefore, I concur only in the judgment entered.