Pace Const. Corp. v. Northpark Associates, Ltd. Partnership

• Court: Georgia Court of Appeals
• Writing for the Court: JOHNSON; POPE; BEASLEY
• Citation: Pace Const. Corp. v. Northpark Associates, Ltd. Partnership, 450 S.E.2d 828, 215 Ga.App. 438 (Ga. App. 1994)
• Decision Date: 21 October 1994
• Docket Number: Nos. A94A1439,A94A1440,s. A94A1439
• Parties: PACE CONSTRUCTION CORPORATION et al. v. NORTHPARK ASSOCIATES, L.P. H.J. RUSSELL CONSTRUCTION COMPANY, INC. v. NORTHPARK ASSOCIATES, L.P.

Page 828

450 S.E.2d 828

215 Ga.App. 438

PACE CONSTRUCTION CORPORATION et al. v. NORTHPARK ASSOCIATES, L.P.

H.J. RUSSELL CONSTRUCTION COMPANY, INC. v. NORTHPARK ASSOCIATES, L.P.

Nos. A94A1439, A94A1440.

Court of Appeals of Georgia.

Oct. 21, 1994.

Reconsiderations Denied Dec. 5, 1994.

Certiorari Denied March 10, 1995.

Varner, Stephens, Wingfield & Humphries, J.D. Humphries III, Eric L. Nelson, Atlanta, for Pace Const. Corp.

Gleaton, Scofield, Egan & Jones, M. Michael Egan, Jr., Marla M. Eastwood, Atlanta, for H.J. Russell Const. Co.

Smith, Currie & Hancock, Glower W. Jones, Atlanta, for Northpark Associates.

JOHNSON, Judge.

Northpark Associates, L.P. brought a breach of contract action against Pace Construction Corporation, H.J. Russell Construction Company, Inc. (as successor to Interstate Construction Company), Henry C. Beck Company, Transamerica Insurance Company and Seaboard Surety Company. In its complaint Northpark requested the court to, among other things, compel arbitration pursuant to the terms of the parties' contract. Northpark filed a motion to stay judicial proceedings pending arbitration. Pace, Beck, Transamerica and Seaboard filed a motion to stay arbitration, Russell and Interstate filed a motion to dismiss the action, and Pace filed a motion to dismiss or, in the alternative, for summary judgment. The trial court granted Northpark's motion to stay judicial proceedings pending arbitration and denied the defendants' motions to stay arbitration, to dismiss and for summary judgment. The court ordered Pace, Interstate and Russell to proceed to arbitration. In Case No. A94A1439, Pace and Beck appeal from the trial court's denial of their motions to dismiss and for summary judgment, and the grant of Northpark's motion to compel arbitration. In Case No. A94A1440, Russell appeals from the trial court's grant of Northpark's motion to compel arbitration.

Northpark contends these appeals must be dismissed because the order appealed from is not a final judgment and the appellants failed to follow the interlocutory appeal procedures set forth in OCGA § 5-6-34(b). We agree.

The grant of an application to compel arbitration is not directly appealable pursuant to OCGA § 5-6-34(a)(4), but is instead an interlocutory matter reviewable pursuant to OCGA § 5-6-34(b). McAllaster v. Merrill Lynch, etc., 212 Ga.App. 697, 443 S.E.2d 9 (1994); see Phillips Constr. Co. v. Cowart Iron Works, 250 Ga. 488, 490, 299 S.E.2d 538 (1983). A party seeking appellate review from an interlocutory order must follow the interlocutory application procedure set forth in OCGA § 5-6-34(b), which includes obtaining a certificate of immediate review from the trial court. Scruggs v. Ga. Dept. of Human Resources, 261 Ga. 587, 589(1), 408 S.E.2d 103 (1991). We note the case relied upon by Pace, Beck and Russell, Bartlett v. Dimension Designs, 195 Ga.App. 845, 395 S.E.2d 64 (1990), which stated an order directing arbitration is directly appealable pursuant to OCGA § 5-6-34(a)(4), is inconsistent with the Supreme Court's holding in Phillips Constr., supra, and was not followed by this court in McAllaster. We overrule Bartlett to the extent it authorizes the direct appeal of an order compelling arbitration. In addition, because our order granting supersedeas pending these appeals was based upon Bartlett, it must be vacated.

We are also without jurisdiction to entertain the defendants' appeals from the denials of their motions to dismiss and for summary judgment. Interlocutory appeal procedures must be followed to appeal from the denial of a motion to dismiss where, as here, the case is still pending below. See OCGA § 5-6-34(a)(1); compare Spivey v. Safeway Ins. Co., 210 Ga.App. 775, 776(1), 437 S.E.2d 641 (1993). Similarly, the denial of a motion for summary judgment must be appealed in accordance with the interlocutory appeal provisions of OCGA § 5-6-34(b). Lumbermen's Underwriting Alliance v. Atlantic Wood Indus., 207 Ga.App. 392, 427 S.E.2d 861 (1993). Because the interlocutory application procedures were not followed, these appeals must be dismissed for lack of jurisdiction.

Appeals dismissed and order of supersedeas vacated.

POPE, C.J., McMURRAY and BIRDSONG, P.JJ., and ANDREWS and BLACKBURN, JJ., concur.

BEASLEY, P.J., SMITH and RUFFIN, JJ., dissent in part.

BEASLEY, Presiding Judge, dissenting in part.

I respectfully dissent to the dismissal of the appeals from the grant of plaintiff Northpark's motion to compel arbitration.

In Phillips Constr. Co. v. Cowart Iron Works, 250 Ga. 488, 491, 299 S.E.2d 538 (1983), the Supreme Court remanded the case so that the trial court could vacate the original order and reenter it in order to entertain a certificate for immediate review. We should do the same in this case for the following reasons.

As recognized in Phillips, supra at 489, 299 S.E.2d 538, a trial court's decision to compel arbitration has "significant consequences" which, if it is in error, results in the expensive and time-consuming waste described by the Supreme Court. That is especially true in this multi-party construction case. We can easily give the opportunity to avoid this by such a remand, which could conserve judicial resources in the end. The Supreme...