Kamara v. Homes

• Decision Date: 11 February 2022
• Docket Number: A21A1258
• Parties: KAMARA v. MARK ANTHONY HOMES et al.
• Court: Georgia Court of Appeals

362 Ga.App. 596

869 S.E.2d 551

KAMARA

v.MARK ANTHONY HOMES et al.

A21A1258

Court of Appeals of Georgia.

February 11, 2022

The Braig Firm, M. Khurram Baig, Atlanta, for Appellant.

Mark Ferguson, pro se.

Phipps, Senior Appellate Judge.

This appeal marks the second appearance of these parties in this Court. Mahktar Kamara first appealed from the superior court's order denying his petition to vacate an arbitration award entered under the Georgia Arbitration Code, OCGA § 9-9-1 et seq., in a dispute with Mark Anthony Homes ("MAH") and Mark Ferguson. While his first appeal was pending, Kamara filed a "Motion to Extend Time to Confirm Arbitration Award or Alternatively to Confirm Arbitration Award and Stay Ruling on Confirmation of Award Pending Resolution of Plaintiff's Appeal of the Motion to Vacate" ("Motion to Confirm") in the superior court. Kamara now appeals from the superior court's order denying his Motion to Confirm. For the following reasons, we reverse.

The record shows that Kamara entered into an agreement with MAH for the construction of a home on Kamara's property. A dispute arose between the parties, and Kamara filed a demand for arbitration. The arbitrator awarded $290,020 in favor of Kamara against MAH on December 3, 2019. The arbitration award stated that "Mark Ferguson, [i]ndividually, is not a [p]arty to this arbitration and therefore is not personally liable under this [a]ward."

Kamara filed a petition to vacate the arbitration award, taking issue with the fact that the award was not also against Ferguson.

After the superior court denied Kamara's petition to vacate, Kamara filed a notice of appeal on April 24, 2020, and the ensuing appeal was docketed in this Court as Case No. A20A2019. On November 6, 2020, while the appeal was pending in this Court, Kamara filed the Motion to Confirm, requesting the superior court to extend the time for him to confirm the award "so as to preserve the award pending the Court of Appeals ruling" on Kamara's appeal. Alternatively, Kamara moved to confirm the arbitration award but requested the superior court to stay its ruling on the motion to confirm until we ruled on his pending appeal.

On January 4, 2021, we affirmed the superior court's order denying Kamara's petition to vacate the arbitration award. Kamara subsequently amended his Motion to Confirm on January 20, 2021, withdrawing the portions of his original motion requesting the superior court to stay its ruling and again seeking to confirm the arbitration award. The superior court filed this Court's remittitur in Case No. A20A2019 on February 1, 2021, and, on February 2, 2021, denied Kamara's Motion to Confirm on the basis that Kamara was not permitted to amend his claims to add a motion to confirm the arbitration award after the superior court had entered the order denying his motion to vacate the arbitration award. Kamara filed a motion for reconsideration, which the superior court denied, stating in its order: "While the use of the word ‘claims’ in the February [2 order] may have been inartful, the reasoning behind the February [2 order] — the [superior court's] lack of jurisdiction due to the entry of the final judgment — is sound." Kamara now appeals from the denial of his Motion to Confirm.

In four enumerations of error, Kamara contends that the superior court erred by denying his Motion to Confirm. We agree.

We first note that Kamara has not cited any authority specifically addressing the validity of a motion to confirm an arbitration award filed within one year of the delivery of the arbitration award but after the filing of a notice of appeal of an order denying a motion to vacate the same arbitration award, and we have found no such authority. The lack of authority is perhaps not surprising — the issue arises in this case only because Kamara petitioned to vacate the arbitration award, and then, while the appeal of the denial of his petition to vacate was pending, sought to protect his ability to confirm the award in the event his appeal was unsuccessful.

We begin our analysis with OCGA § 9-9-12, which provides: "The court shall confirm an award upon application of a party made within one year after its delivery to him, unless the award is vacated or modified by the court[.]" An arbitration award confirmation proceeding is a special statutory proceeding, not a civil suit.

Hardin Constr. Group v. Fuller Enterprises , 265 Ga. 770, 771, 462 S.E.2d 130 (1995). Pursuant to OCGA § 9-9-4 (a) (2), an application for confirmation of an arbitration award is made by motion. Here, the arbitration award was made on December 3, 2019,¹ and Kamara filed his Motion to Confirm on November 6, 2020. Kamara argues that the superior court erred in denying his Motion to Confirm because the motion was filed within one year after the delivery of the arbitration award and the award was neither vacated nor modified by the court.

We must consider, however, whether Kamara's Motion to Confirm, which was filed while his appeal of the superior court's denial of his motion to vacate was pending before this Court, was properly before the superior court. Because Kamara filed his Motion to Confirm while the appeal was pending, the superior court did not have jurisdiction to rule on the motion when it was filed. See Avren v. Garten , 289 Ga. 186, 190 (6), 710 S.E.2d 130 (2011) ("The supersedeas of a ... notice of appeal deprives the trial court of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, are without effect.") (citation and punctuation omitted). See also Mughni v. Beyond Mgmt. Group, Inc. , 349 Ga. App. 398, 402-403 (3), 825 S.E.2d 829 (2019) (notice of appeal of order confirming arbitration award divested trial court of jurisdiction to consider motion to vacate the...