Torres v. Piedmont Builders, Inc.

• Court: Georgia Court of Appeals
• Writing for the Court: Doyle
• Citation: Torres v. Piedmont Builders, Inc., 686 S.E.2d 464, 300 Ga. App. 872 (Ga. App. 2009)
• Decision Date: 10 November 2009
• Docket Number: No. A09A1241.,A09A1241.
• Parties: TORRES et al. v. PIEDMONT BUILDERS, INC. et al.

686 S.E.2d 464

300 Ga. App. 872

TORRES et al. v. PIEDMONT BUILDERS, INC. et al.

No. A09A1241.

Court of Appeals of Georgia.

November 10, 2009.

Kenneth R. Ozment, Atlanta, for appellants.

Carol V. Clark, for appellees.

DOYLE, Judge.

William Torres and Jack Sawyer, Jr. ("Owners") appeal from the dismissal of their application to appoint an arbitrator pursuant to OCGA § 9-9-7(b)(1), contending that the superior court erred in ruling that the arbitration of their construction dispute should be administered by the arbitration group named in their construction contract. Discerning no error, we affirm.

Because the relevant facts are undisputed and the error asserted presents a question of law, we review the superior court's ruling de novo.¹ The Owners entered into a contract with Piedmont Builders, Inc. ("Piedmont"), for the construction of a home. After a disagreement arose, the Owners filed a "Motion for the Appointment of an Arbitrator" pursuant to OCGA § 9-9-7, requesting that the superior court appoint an arbitrator to resolve their dispute. In their motion, the Owners asserted that the arbitration provision in the construction contract did not specify the arbitrator or a method for determining one; therefore, they sought appointment of one of three arbitrators named in their motion. The superior court dismissed the action and ordered that the arbitration be administered by Construction Arbitration Associates, Inc. ("CAA"), which is named in the arbitration agreement. The Owners then filed this appeal.

1. As a preliminary matter, we address Piedmont's assertion that we lack jurisdiction because the Owners failed to follow the procedures for interlocutory appeal under OCGA § 5-6-34(b). Piedmont argues that the case is not directly appealable, relying on Goshayeshi v. Mehrabian² and Pace Constr. Corp. v. Northpark Associates,³ which state that "[t]he 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)." However, in those cases, the appeals did not arise from final judgments;⁴ here, the appeal arises from a final order dismissing the original action in its entirety, and the case is no longer pending in the superior court. Accordingly, we conclude that this appeal is from a final judgment directly appealable under OCGA § 5-6-34(a)(1).⁵ Piedmont's motion to dismiss the appeal is denied.

2. Turning to the merits of the Owners' appeal, we first examine whether the superior court erred because, as the Owners argue, the construction contract did not provide a method for appointing the arbitrator. The language of the construction contract provides as follows:

The Contractor and the Owner agree that any disputes or claims arising out of the contract or breach thereof shall be decided by arbitration in accordance with the Official Code of Georgia annotated Sec. 9-1-1, et seq. and with the rules and procedures of Construction Arbitration Associates, Ltd. and shall be made within a reasonable time, but not less than 30 days after the dispute has arisen.

It is undisputed that the rules and procedures of CAA provide that to initiate arbitration, "two copies of the contract including the arbitration provision shall be submitted with a Demand. Upon receipt, CAA shall appoint an Arbitrator from the Construction Arbitration Panel. After that selection, CAA shall give notice of such appointment to both parties." The Owners concede that the parties agreed to arbitration and that they agreed to follow the rules and procedures of CAA. In light of this, it would be inherently inconsistent to use some other method of appointing an arbitrator outside of CAA rules. Therefore, based on the plain language of the construction contract, the superior court did not err in sending the arbitration to CAA for resolution in accordance with its rules and procedures.

3. The Owners also contend that the superior court should have disqualified CAA because CAA allegedly demonstrated bias during the resolution of the Owners' application in the superior court. We disagree.

"[T]he question of whether or not to disqualify an arbitrator on grounds of partiality addresses itself to the sound discretion of the trial court."⁶ Accordingly, absent an abuse of that discretion, we will uphold the superior court's ruling here.

Prior to responding to the Owners' application in the superior court, Piedmont wrote a letter to CAA, with a copy to the Owners' attorney, seeking clarification as to whether CAA allows other companies to use its rules of arbitration, whether the CAA had experience with cases involving similar contract language, and how CAA rules determine who is the arbitrator. Because Piedmont's letter requested a response to both parties, "there is no issue of ex parte contact." CAA...