Fuller Enterprises, Inc. v. Hardin Const. Group, Inc., A94A1254
| Citation | 451 S.E.2d 483,215 Ga.App. 549 |
| Decision Date | 22 November 1994 |
| Docket Number | No. A94A1254,A94A1254 |
| Court | Georgia Court of Appeals |
| Parties | FULLER ENTERPRISES, INC. v. HARDIN CONSTRUCTION GROUP, INC. |
Sonja L. Salo, Atlanta, for appellant.
Smith & Fleming, Robert O. Fleming, Jr., Atlanta, for appellee.
Fuller Enterprises, Inc. ("Fuller") appeals from the trial court's order denying its motion for a protective order in an arbitration confirmation proceeding against Hardin Construction Group, Inc. ("Hardin").
Fuller and Hardin entered into a construction contract with an arbitration clause, and during the course of performance, a dispute arose concerning the contract. The parties submitted the dispute to arbitration pursuant to the contract, and the arbitration panel returned an award in favor of Fuller. Fuller filed an application for confirmation of the award in superior court. Hardin filed an answer with affirmative defenses and contemporaneously served Fuller with discovery requests. Fuller filed a motion for a protective order arguing the information sought was irrelevant to the confirmation and appeals the trial court's denial of the motion.
1. Fuller asserts discovery under the Civil Practice Act ("CPA") is not permitted in arbitration confirmation proceedings under the Georgia Arbitration Code, OCGA § 9-9-1 et seq., because the confirmation is initiated by an "application" as opposed to a "complaint." We agree.
Court addressed the applicability of the CPA in proceedings initiated by filing an application as opposed to a complaint. In Vlass, the issue was whether, in a foreclosure confirmation proceeding, the debtor was entitled to service of the application for confirmation in accordance with the CPA. The debtor argued that since a confirmation proceeding was a special statutory proceeding that did not expressly provide for service of the application on the debtor, OCGA § 9-11-81 required service in accordance with the CPA. OCGA § 9-11-81 provides the CPA "shall apply to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict [t]herewith are expressly prescribed by law...."
The court reasoned since OCGA § 9-11-1 provides the CPA Vlass, supra at 296-297, 430 S.E.2d 732. The court went on to state (Citations, punctuation and indention omitted.) Id.
Although the court in Vlass reviewed the application of the CPA to foreclosure confirmations, we find its analysis applicable here as well. OCGA § 9-9-4(a)(2) provides that an application for confirmation of an arbitration award shall be made "by motion and shall be heard in the manner provided by law and rule of court for the making or hearing of motions, provided that the motion shall be filed [and served] in the same manner as a complaint in a civil action." (Emphasis supplied.) While an application for arbitration confirmation is filed and served in the same manner as a complaint, we do not believe that alone is sufficient to treat it as a complaint. OCGA § 9-9-4 clearly provides the application shall be treated as a motion.
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HARDIN CONST. GROUP v. Fuller Enterprises
...based on our holding that discovery is not permitted in actions to confirm arbitration awards. Fuller Enterprises v. Hardin Constr. Group, 215 Ga.App. 549, 551(1), 451 S.E.2d 483 ( 1994). The Supreme Court of Georgia reversed, however, based upon its conclusion that limited discovery relati......
- Palmer v. Taylor, A94A1226
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Fuller Enterprises v. Hardin Const. Group, Inc., A94A1254
...Constr. Group v. Fuller Enterprises, 265 Ga. 770, 462 S.E.2d 130 (1995), the decision of this court in Fuller Enterprises v. Hardin Constr. Group, 215 Ga.App. 549, 451 S.E.2d 483 (1994), is reversed, and the judgment of the trial court is hereby affirmed. Judgment affirmed. BIRDSONG, P.J., ......
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Hardin Const. Group, Inc. v. Fuller Enterprises, Inc.
...precluding discovery by Hardin. The trial court denied the motion and the Court of Appeals reversed. Fuller Enterprises v. Hardin Construction Group, 215 Ga.App. 549, 451 S.E.2d 483 (1994). We granted certiorari to determine whether in an arbitration award confirmation proceeding it is perm......
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Construction Law - Brian J. Morrissey
...165. Id., 449 S.E.2d at 632-33. 166. Id., 449 S.E.2d at 633. 167. Id. at 32, 449 S.E.2d at 633. 168. Id. 169. Id. 170. Id. 171. Id. 172. 215 Ga. App. 549, 451 S.E.2d 483 (1994). 173. Id. at 549, 451 S.E.2d at 483. 174. Id. at 550, 451 S.E.2d at 484. 175. Id. at 549-50, 451 S.E.2d at 483-84.......
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Construction Law - Brian J. Morrissey
...MERCER L. REV. 87, 114-15 (1995). 179. 265 Ga. 770, 462 S.E.2d 130 (1995). 180. See Fuller Enters., Inc. v. Hardin Constr. Group, Inc., 215 Ga. App. 549, 451 S.E.2d 483 (1994), rev'd, 265 Ga. 770, 462 S.E.2d 130 (1995). 181. 265 Ga. at 770, 462 S.E.2d at 130. 182. Id. at 771, 462 S.E.2d at ......