O.C.G.A. § 9-9-4 (2019)

Annotations

Editor’s notes. Ga. L. 2000, p. 1589, § 16, not codified

by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000. Law reviews. For survey article on construction law, see 60 Mercer L. Rev. 59 (2008).

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the provisions, decisions under former Code Section 9-9-84 are included in the annotations for this Code section. Venue. - The state arbitration law, O.C.G.A. § 9-9-1 et seq., due to preemption by the federal arbitration code, 9 U.S.C. § 1 et seq., when interstate commerce is involved, will never be applicable where one party is not from Georgia. Tampa Motel Mgt. Co. v. Stratton of Fla., Inc., 186 Ga. App. 135, 366 S.E.2d 804, 1988 Ga. App. LEXIS 276 (1988). Limited discovery permitted. - Even though a confirmation proceeding is not a civil action, the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, governing discovery applies; thus, limited discovery relating to affirmative defenses to confirmation of an arbitration award may be permitted. Hardin Constr. Group, Inc. v. Fuller Enters., Inc., 265 Ga. 770, 462 S.E.2d 130, 1995 Ga. LEXIS 719 (1995). Motion to set aside arbitration award can be brought in pending suit. - Owners timely moved to set aside an arbitration award on their breach of contract and fraud claims arising out of the construction of a house because they sought to set aside the award in a judicial foreclosure suit concerning the house. Witherington v. Adkins, 271 Ga. App. 837, 610 S.E.2d 561, 2005 Ga. App. LEXIS 98 (2005), cert. denied, No. S05C1105, 2005 Ga. LEXIS 488 (Ga. June 30, 2005).

Role of court. - Pursuant to both O.C.G.A. § 9-9-1 et seq. and the Federal Arbitration Act, 9 U.S.C. § 1 et seq., the trial court properly considered the scope of the arbitrable issues in an employment agreement wherein companies sought to enjoin one of their executives from taking a position with their competitor, both for reasons of potential disclosure of trade secrets and confidential information and due to a non-competition covenant in the employment agreement. Although a court should not pass on the merits of an arbitrable controversy but rather merely determine the arbitrability thereof, pursuant to O.C.G.A. § 9-9-4(d) and (e), the trial court properly found that the noncompete covenant was overly broad and therefore unenforceable, and it was not included in either the temporary restraining order issued against the executive’s employment with the competitor or the order compelling arbitration. BellSouth Corp. v. Forsee, 265 Ga. App. 589, 595 S.E.2d 99, 2004 Ga. App. LEXIS 111 (2004), cert. denied, No. S04C1078, 2004 Ga. LEXIS 425 (Ga. May 24, 2004). Because the jurisdictional issues the subcontractor raised could not be resolved until after a de novo examination of whether the parties agreed to arbitrate their dispute, the superior court’s order confirming an arbitration award had to be vacated, and the case remanded, and if

the court found that the parties agreed to the version of their subcontractor’s agreement which contained the choice of forum and arbitration clause, personal jurisdiction and venue were proper and the arbitrator’s award was to be confirmed. Panhandle Fire Prot., Inc. v. Batson Cook Co., 288 Ga. App. 194, 653 S.E.2d 802, 2007 Ga. App. LEXIS 1163 (2007). Role of arbitrator. - Court of Appeals erroneously held that the arbitrator, and not the court, should have decided whether arbitration was barred by res judicata, as: (1) no presumption existed that an arbitrator was in a better position than a court to apply a legal doctrine such as res judicata; (2) the parties did not expressly reserve the issue for arbitration; and (3) there was no presumption under Georgia law that the application of a procedural bar such as res judicata was a matter to be determined exclusively by an arbitrator. Bryan County v. Yates Paving & Grading Co., 281 Ga. 361, 638 S.E.2d 302, 2006 Ga. LEXIS 1033 (2006). Arbitration under O.C.G.A. § 9-94(d) was properly compelled for debtors’ claim for a setoff from amounts due under a note because the parties’ agreement contained an arbitration provision, and the setoff claim sought affirmative relief, which arose from the parties’ business relationship. Dunaway v. UAP/GA AG. Chem., Inc., 301 Ga. App. 282, 687 S.E.2d 211, 2009 Ga. App. LEXIS 1362 (2009), cert. denied, No. S10C0550, 2010 Ga. LEXIS 297 (Ga. Mar. 29, 2010). Arbitrator did not overstep the arbitrator’s authority under O.C.G.A. § 9-9-

13(b)(3) in denying debtors’ claim for a setoff from amounts due under a note because the award reflected the fact that the arbitrator considered the debtors’ evidence and produced a definite award. Dunaway v. UAP/GA AG. Chem., Inc., 301 Ga. App. 282, 687 S.E.2d 211, 2009 Ga. App. LEXIS 1362 (2009), cert. denied, No. S10C0550, 2010 Ga. LEXIS 297 (Ga. Mar. 29, 2010). Trial court properly granted a former employer’s motion to compel arbitration because there was a causal connection between the former employee’s claims for defamation, tortious interference with a business expectancy, and lost income and the former employee’s employment and termination and the arbitration agreement clearly provided that the agreement applied to any employment-related claims. Wedemeyer v. Gulfstream Aero. Corp., 324 Ga. App. 47, 749 S.E.2d 241, 2013 Ga. App. LEXIS 793 (2013), cert. denied, No. S14C0198, 2014 Ga. LEXIS 146 (Ga. Feb. 24, 2014). Claims not arbitrable. - Trial court did not err in failing to refer all claims to arbitration in a libel action because the libel and invasion of privacy (false light) claims were not immediate, foreseeable results of the performance of the bill of sale for the purchase of the trailer, which the defendants claimed was stolen, but arose solely and independently from the defendants subsequent advertisements for the return of the trailer and payment of a reward. Cate v. Patterson, 354 Ga. App. 108, 840 S.E.2d 489, 2020 Ga. App. LEXIS 135 (2020).