Martin v. RocCorp, Inc., A93A1837

• Decision Date: 06 January 1994
• Docket Number: No. A93A1837,A93A1837
• Parties: MARTIN et al. v. RocCORP, INC.
• Court: Georgia Court of Appeals

Page 671

441 S.E.2d 671

212 Ga.App. 177

MARTIN et al. v. RocCORP, INC.

No. A93A1837.

Court of Appeals of Georgia.

Jan. 6, 1994.

Reconsideration Denied Feb. 25, 1994.

R. Mansell McCord, Jr., Carl V. Kirsch, Atlanta, for appellants.

Shapiro, Fussell, Wedge & Smotherman, Seth R. Price, Atlanta, for appellee.

POPE, Chief Judge.

This case arises from a contract for the sale of most of the assets of A & W Pet Care Products to Petscription, Inc. ("purchaser") by agreement dated December 29, 1987. As part of that agreement, the purchaser agreed to pay E. Thomas Martin and Rob R. Adams, Jr. certain sums in consideration for their agreement not to compete for a period of ten years. The agreement also contained an arbitration clause and a clause providing that the agreement should be construed in accordance with the laws of the State of Georgia. That agreement was subsequently modified several times by the parties in the manner provided by the agreement. One modification, a document titled "Purchase Agreement & Supply Contract Modification" (the "modification"), substituted RocCorp, Inc. as the purchaser. Disputes later arose between the parties to this litigation concerning the effect of this modification on the agreement.

The disputes were submitted for arbitration, with Adams and Martin asserting a breach of contract claim against RocCorp, and RocCorp submitting a claim for damages for alleged non-compete violations by Martin and Adams. After the arbitration hearing, the arbitrator issued an award ordering RocCorp to pay Adams and Martin a certain sum plus interest on their breach of contract claim, to be paid in accordance with the formula set forth in the arbitration award, and ordering Martin and Adams to pay RocCorp $75,990 for damages on RocCorp's claim based on violations of the non-compete clause. Adams and Martin filed a motion in Gwinnett Superior Court to vacate the award. This appeal follows the denial of their motion.

Adams and Martin argue the superior court should have set aside the award of the arbitrator because the arbitrator considered parol evidence and in so doing ignored Georgia law concerning contract construction. They further argue that because the arbitrator overstepped his authority by ignoring applicable Georgia law concerning contract construction, they are entitled to vacation of the award of the arbitrator pursuant to OCGA § 9-9-13(b)(3).

We do not agree. In reviewing the trial court's order in this case we are mindful that "[t]he function of the trial court in proceedings to confirm or vacate an arbitration award should be severely limited in order not to frustrate the purpose of avoiding litigation by resorting to arbitration." Cotton States Mut. Ins. Co. v. Nunnally Lumber Co., 176 Ga.App. 232, 236(4), 335 S.E.2d 708 (1985). Assuming the choice of law provision in the agreement should be construed as a restriction on the arbitrator that he must adhere to the construction of contract rules applicable in Georgia as Martin and Adams argue, Georgia law provides that " '[t]he construction [that] will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part.' OCGA § 13-2-2(4)." Caribbean Lumber Co. v. Anderson, 205 Ga.App. 415, 417(2), 422 S.E.2d 267 (1992). The argument advanced by Adams and Martin that "[u]nder the plain and unambiguous meaning of the words of the ... agreement RocCorp, Inc. is obligated to pay to [Martin and Adams] 5% of the first $510,417 of the annual net sales of RocCorp, Inc. for the specified nine-year period," ignores that rule of construction.

Although we agree with Martin and Adams that the language of the agreement is not ambiguous, paragraph 8 of the agreement cannot be read in a vacuum as they urge. That paragraph is titled ...