Hundley v. Greene

461 S.E.2d 250, 218 Ga. App. 193
CourtCourt of Appeals of Georgia
DecidedNovember 9, 1995
DocketA95A0122
StatusPublished
Cited by5 cases

This text of 461 S.E.2d 250 (Hundley v. Greene) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hundley v. Greene, 461 S.E.2d 250, 218 Ga. App. 193 (Ga. Ct. App. 1995).

Opinions

Birdsong, Presiding Judge.

This is an appeal from the superior court’s confirmation of an arbitrator’s award in a construction dispute between Hundley and Butt, who are the homeowners, and the contractor Stephen Greene individually and d/b/a Stephen Greene Construction. The arbitrator found favorably to Greene and two independent contractors who were not parties to the arbitration agreement and did not participate in the arbitration.

Appellants in their statement of fact cite evidence of several claims, viz.: that Greene charged appellants more than the contract price; that when appellants had already paid Greene more than the contract price the house was incomplete and so defectively constructed that appellants had to fire Greene; that completion of the [194]*194house and repair of the defective construction will cost about $50,000 above the maximum agreed price; that Greene charged appellants for 7,076 finish bricks and 2,300 fill bricks which are missing, according to appellants’ expert who counted the bricks in the house, and that this evidence was not refuted by Greene; that Greene charged appellants for 400 pieces of lumber which were not used in the house; that an independent contractor double-billed appellants for footings; that Greene’s painter sprayed paint over mildewed siding; that two months after being fully paid, the framer filed a materialmen’s lien, although the house is out-of-square and the county issued a stop-work order because the framer did not complete the job properly; that Greene built the brick underpinning two feet lower than required by contract, with ensuing water problems; that Greene never completed trim work; that although Greene guaranteed the floors, an inspection nine days after he was fired revealed the flooring had cracked, which will cost $12,000 to $18,000 to repair. Appellants specifically describe, with citations to the record, those and other defects too numerous to recount here.

The trial court found, however, that as appellants offered “no independent evidence” of fraud, corruption or misconduct in the arbitrator’s award or that the arbitrator overstepped his authority, the trial court had no authority to review and “rehash” the award and that it was the “duty” of the trial court to confirm it, citing Raymer v. Foster & Cooper, Inc., 195 Ga. App. 200, 202 (393 SE2d 49). Appellants contend the arbitrator exceeded his authority by failing to adhere to rules of contract construction, and by awarding Greene a bonus and making awards to persons who were not parties to the construction contract and arbitration agreement and who declined to participate in the arbitration. Held:

1. Appellees Greene move to dismiss the appeal as frivolous. They contend the appeal does not challenge the judgment within the framework of OCGA § 9-9-13 (b) as to grounds for vacating an arbitration award. The appeal is not frivolous.

2. The trial court is required by law to accept the arbitrator’s findings of fact and may vacate the award only “if the court finds that the rights of [a] party were prejudiced by: (1) Corruption, fraud, or misconduct in procuring the award; (2) Partiality of an arbitrator appointed as a neutral; (3) An overstepping by the arbitrators of their authority or such imperfect execution of it that a final and definite award upon the subject matter submitted was not made; or (4) A failure to follow the procedure of this [law], unless the party applying to vacate the award continued with the arbitration with notice of this failure and without objection.” OCGA § 9-9-13 (b).

Appellees Greene are incorrect in asserting that the evidence in an arbitrated case is irrelevant to show any ground named in OCGA [195]*195§ 9-9-13 (b) for vacating the award. It is true that an appellate court has no authority to weigh evidence when the factfinder has ruled on that evidence, but that rule hinges on the requirement that there be evidence to support the findings in the first place. See, e.g., OCGA § 5-4-12 (b) which sets a “substantial” evidence standard for the superior court’s certiorari review of “any inferior judicatory” or a case heard before “any person exercising judicial powers” (OCGA § 5-4-3); and see, e.g., OCGA § 50-13-19 (h) (5) and (6) which allows review of administrative rulings to determine whether an administrative decision is “[cjlearly erroneous in view of the reliable, probative, and substantial evidence on the whole record” or is so “[arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.” In other cases where the legislature has made no such direction, the lower judicatory’s findings may be reversed or vacated as not supported by “any evidence.” See Green Room v. Confederation Life Ins. Co., 215 Ga. App. 221 (1) (450 SE2d 290). Whenever any award is not supported by any evidence it is “clearly erroneous.” Bd. of Equalization v. York Rite &c. of Savannah, 209 Ga. App. 359 (433 SE2d 299); Covrig v. Miller, 199 Ga. App. 864, 865 (406 SE2d 239).

Arbitration cases are controlled exclusively by the Georgia Arbitration Code, OCGA § 9-9-1 et seq., but they are not exempt from the general requirement that a finding of fact be supported by evidence. See Raymer, supra at 202 (1) (c); Cotton States Mut. Ins. Co. v. Nunnally Lumber Co., 176 Ga. App. 232, 235-237 (335 SE2d 708). In Cotton States at p. 235, we addressed a contention that the arbitrators’ award was “totally inconsistent with the overwhelming weight of the evidence.” We held that “[t]he record contains conflicting testimony. . . . Nor [does the evidence] unequivocally support a finding of liability by Nunnally. . . . [The arbitrators] had province to judge the credibility of the witnesses and the weight of the evidence and their apparent judgment is supported by the evidence. See Cartledge v. Cutliff, 21 Ga. 1 (1857).” (Emphasis supplied.) Id. at 235-236. In Division 4 of Cotton States (pp. 236-237), we addressed a contention that the trial court erroneously applied an “any evidence” standard rather than the statutorily mandated one, and we concluded that it was not necessary to determine whether the trial court erroneously applied an “any evidence” standard of review, since the trial court did not depart from the statutory standard of review. But we also held the trial court made findings of fact which were “not clearly erroneous and indeed, are supported by the record.” Id. at 237. In Amerispec Franchise v. Cross, 215 Ga. App. 669, 671 (452 SE2d 188), we cited the general rule that “ ‘an arbitrator’s decision must be upheld unless it is completely irrational or it constitutes a manifest disregard of the law.’ Bartlett v. Dimension Designs, 195 Ga. App. 845, [196]*196848 (395 SE2d 64) (1990), overruled on other grounds, Pace Constr. Corp. v. Northpark Assoc., 215 Ga. App. 439 (450 SE2d 828) (1994).” (Emphasis supplied.) An award is “completely

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610 S.E.2d 640 (Court of Appeals of Georgia, 2005)
Hundley v. Greene
472 S.E.2d 570 (Court of Appeals of Georgia, 1996)
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468 S.E.2d 350 (Supreme Court of Georgia, 1996)
Stringer v. Harkleroad & Hermance
463 S.E.2d 152 (Court of Appeals of Georgia, 1995)

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Bluebook (online)
461 S.E.2d 250, 218 Ga. App. 193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hundley-v-greene-gactapp-1995.