Opinion
A99A0039.
DECIDED: MARCH 3, 1999 — CERT. APPLIED FOR.
Arbitration award. Fulton State Court. Before Judge Mather.
Bowman S. Garrett, Jr., for appellants.
Greenfield, Bost Kliros, William L. Bost, Jr., Thad C. Gould, Hawkins Parnell, Jeb T. Branham, Matthew F. Barr, Warner S. Fox, for appellee.
Phoenix Fire Restoration Company, Inc. ("Phoenix") sued M. O. Akintobi and Dolly Akintobi (collectively "Akintobi") for breach of contract. Phoenix sought damages for unpaid invoices, consequential damages, and attorney's fees. In a counterclaim, Akintobi, inter alia, sought attorney's fees. After the parties consented to binding arbitration, both sides requested attorney's fees. The arbitrator found solely in favor of Phoenix and awarded it $72,498.76 which included $24,575.60 in attorney's fees. Under OCGA § 9-9-13 (b) (4), Akintobi applied to vacate the arbitrator's award claiming that the parties did not agree to arbitrate the issue of attorney's fees. After determining that the fees issue was properly before the arbitrator, the court denied Akintobi's motion, and subsequently confirmed the arbitration award. Held:
Akintobi's sole enumeration of error is that the trial court erred in confirming the arbitration award because neither the written contract nor the parties' arbitration agreement expressly provided for the recovery of attorney's fees.
OCGA § 9-9-13 (b) sets forth the exclusive grounds upon which an arbitration award may be vacated. Greene v. Hundley, 266 Ga. 592, 595-596 (3) ( 468 S.E.2d 350) (1996). The Georgia Arbitration Code requires a trial court to confirm an award upon timely application by a party, unless one of the statutory grounds for vacating or modifying the award is established. Haddon v. Shaheen Co., 231 Ga. App. 596, 596-597 (1) ( 499 S.E.2d 693) (1998). "[T]he power of a court to vacate an arbitration award has been severely limited in order not to frustrate the legislative purpose of avoiding litigation by resort to arbitration." Id. (Emphasis in original.)
Here, nothing on the face of the arbitration award including the award of attorney fees appears to be the result of corruption, fraud, or misconduct. Greene, 266 Ga. at 596. Nor does the award evince any partiality or overstepping by the arbitrator. Gilbert v. Montlick, 232 Ga. App. 91, 93 (2) ( 499 S.E.2d 731) (1998). In fact, although no contract provided for attorney fees, the record demonstrates that both sides vigorously pursued such fees before the arbitrator. Not only did Akintobi fail to object to the evidence of Phoenix's attorney fees at arbitration, Akintobi submitted its own evidence of attorney fees. In so doing, Phoenix and Akintobi implicitly agreed to arbitrate that issue. See Hope Assoc. v. Marvin M. Black, Co., 205 Ga. App. 561, 562 (1) ( 422 S.E.2d 918) (1992). Inasmuch as Akintobi failed to sustain its burden of showing that the arbitrator's decision was "completely irrational" or constituted a "manifest disregard for the law," it must be upheld. Amerispec Franchise v. Cross, 215 Ga. App. 669, 671 (1) ( 452 S.E.2d 188) (1997); OCGA § 9-9-13 (b).
Judgment affirmed. Smith and Eldridge, JJ., concur.