WHOLE COURT
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
November 30, 2012
In the Court of Appeals of Georgia A12A1144. KENT v. MITCHELL. AD-053
ADAMS, Judge.
The trial court granted Tina Mitchell’s application to confirm an attorney fee
arbitration award against Jeffrey B. Kent and entered judgment against Kent in the
amount of $2,500.1 On appeal, Kent claims that the trial court erred by substantively
modifying the arbitration award when it changed the party against whom the award
was made from his professional corporation to him individually. We agree and
therefore reverse.
According to Kent, Mitchell engaged the law firm Jeffrey B. Kent, P.C. in
connection with a business dispute and paid a retainer of $2,500. At some point,
1 Kent was subsequently disbarred for his conduct in representing a different client. In re Kent, 287 Ga. 129 (694 SE2d 665) (2010). Mitchell requested that her retainer be returned. When that did not happen, Mitchell
filed a petition for fee arbitration with the State Bar of Georgia. In an award dated
February 20, 2009, the arbitrators ruled in her favor and awarded a refund of her
$2,500 retainer. Mitchell then filed an application to confirm the arbitration award
pursuant to the State Bar of Georgia’s Fee Arbitration Rules and OCGA § 9-9-12, and
that application was granted. The issue on appeal is whether the trial court
substantively modified the award by changing the party against whom the award was
originally entered.
The caption to the arbitrator’s award and the body of the award itself make
clear that the parties to the arbitration were Tina Mitchell, Petitioner, and Jeffrey B.
Kent PC c/o Mr. Jeffrey Brooks Kent, Respondent. The award specifically states that
the fee dispute is between Mitchell and Jeffery B. Kent PC. When Mitchell filed her
application to confirm the arbitration award, she changed the respondent to “Jeffrey
B. Kent” with no mention of his professional corporation. In his response to
Mitchell’s application, Kent pointed out that he was not a party to the arbitration or
the arbitration award. The trial court nonetheless entered judgment against Kent
individually.
2 The corporation of Jeffrey B. Kent PC is a distinct legal entity from Jeffrey B.
Kent, an individual. See Clarence L. Martin, P.C. v. Wallace, 248 Ga. App. 284, 286
(1) (546 SE2d 55) (2001). Although Kent may have been the attorney Mitchell dealt
with at the corporation, a claim against his professional corporation is not
automatically a claim against him too. See OCGA § 14-7-3; Henderson v. HSI
Financial Svcs., 266 Ga. 844, 846 (2) (471 SE2d 885) (1996) (professional
corporation and its shareholders enjoy the same rights, privileges, and immunities as
the shareholders of business corporations); see also OCGA § 14-7-4 (b) (professional
corporation necessarily acts through its officers, employees, and agents).
When a trial court confirms an arbitration award, the judgment must be entered
in conformity with the award. Thacker Constr. Co. v. A Betterway Rent-A-Car, 186
Ga. App. 660, 663 (368 SE2d 178) (1988). “Of course, an award can be modified; but
a modification cannot be substantive, it cannot affect the merits of the case.” Id.
Changing parties to the award is a substantive modification. See id. When the trial
court entered judgment against Kent individually, it substantively modified the
arbitration award.
Although the record in this case is sparse, it does not support the trial court’s
order. If there were additional materials that would provide such support, Mitchell
3 could have provided them. 2 In every case, the appellee has ample opportunity to
designate anything in the record or the transcript of the evidence that has not been
designated by the appellant. “In the absence of any attempt on the [Mitchell]’s part
to exercise these remedies, we must assume that the record before us is complete in
all relevant respects.” Boats for Sail, Inc. v. Sears, 158 Ga. App. 74, 74-75 (1) (279
SE2d 314) (1981). Based on the existing record, we must reverse.
Judgment reversed. Miller, P.J., Doyle, P.J., Ray and Branch, JJ., concur.
Barnes, P.J., and McFadden, J., dissent.
2 Mitchell has attached documents to her brief that are not part of the appellate record, but we cannot consider them. See Georgia Court of Appeals Rule 24 (g).
4 A12A1144. KENT v. MITCHELL. BA-053
BARNES, Presiding Judge, dissenting.
Because Kent has failed to show error on the record, I respectfully dissent from
the majority opinion reversing the trial court’s grant of the application of Kent’s
former client to confirm her fee arbitration award against him.
Because Kent, “as appellant, has the burden to affirmatively show error by the
record,” we must consider his contentions in light of the meager, 23-page appellate
record. Azordegan v. Ebrahimi, 311 Ga. App. 509 (1) (716 SE2d 528) (2011).
Consistent with Kent’s notice of appeal, the record includes only the client’s
application for confirmation, Kent’s answer, and the superior court’s final order
confirming the award. While Kent argues that the superior court substantively
modified the arbitration award by confirming it against him individually, rather than
against his professional corporation, the record does not affirmatively establish error. The body of the award includes the arbitrators’ finding that “Petitioner paid for
service from the attorney Respondent, . . . who has not provided evidence of any
valuable service performed on behalf of petitioner.” The award was made by a panel
of arbitrators pursuant to the State Bar’s Fee Arbitration program, which “is designed
to provide a convenient mechanism to resolve disputes between lawyers and clients
over fees, and is administered by the State Bar Committee on the Arbitration of Fee
Disputes.” Farley v. Bothwell, 306 Ga. App. 801 (703 SE2d 397) (2010), citing State
Bar Rules, Part VI, Arbitration of Fee Disputes, Preamble, 247 Ga. A-2. And under
State Bar Rules 6-201 (f) and 6-402, Kent would only have been allowed to
participate in the arbitration hearing if he had agreed to be bound by the arbitrators’
decision, and he admitted in his answer to the confirmation petition that he presented
evidence during the proceeding. Thus, the record supports the trial court’s
confirmation of the award against Kent individually.
Kent’s argument that he only appeared at the hearing on behalf of his
professional corporation and that the award was only against his corporation is
unpersuasive in light of the entire award and his answer to the petition admitting he
presented evidence to the arbitration panel. As noted previously, it is the appellant’s
2 burden to show error on the record, and this Kent has not done. See Afraknteh v.
Halstead, 259 Ga. App. 645, 646 (578 SE2d 126) (2003).
Free access — add to your briefcase to read the full text and ask questions with AI
WHOLE COURT
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
November 30, 2012
In the Court of Appeals of Georgia A12A1144. KENT v. MITCHELL. AD-053
ADAMS, Judge.
The trial court granted Tina Mitchell’s application to confirm an attorney fee
arbitration award against Jeffrey B. Kent and entered judgment against Kent in the
amount of $2,500.1 On appeal, Kent claims that the trial court erred by substantively
modifying the arbitration award when it changed the party against whom the award
was made from his professional corporation to him individually. We agree and
therefore reverse.
According to Kent, Mitchell engaged the law firm Jeffrey B. Kent, P.C. in
connection with a business dispute and paid a retainer of $2,500. At some point,
1 Kent was subsequently disbarred for his conduct in representing a different client. In re Kent, 287 Ga. 129 (694 SE2d 665) (2010). Mitchell requested that her retainer be returned. When that did not happen, Mitchell
filed a petition for fee arbitration with the State Bar of Georgia. In an award dated
February 20, 2009, the arbitrators ruled in her favor and awarded a refund of her
$2,500 retainer. Mitchell then filed an application to confirm the arbitration award
pursuant to the State Bar of Georgia’s Fee Arbitration Rules and OCGA § 9-9-12, and
that application was granted. The issue on appeal is whether the trial court
substantively modified the award by changing the party against whom the award was
originally entered.
The caption to the arbitrator’s award and the body of the award itself make
clear that the parties to the arbitration were Tina Mitchell, Petitioner, and Jeffrey B.
Kent PC c/o Mr. Jeffrey Brooks Kent, Respondent. The award specifically states that
the fee dispute is between Mitchell and Jeffery B. Kent PC. When Mitchell filed her
application to confirm the arbitration award, she changed the respondent to “Jeffrey
B. Kent” with no mention of his professional corporation. In his response to
Mitchell’s application, Kent pointed out that he was not a party to the arbitration or
the arbitration award. The trial court nonetheless entered judgment against Kent
individually.
2 The corporation of Jeffrey B. Kent PC is a distinct legal entity from Jeffrey B.
Kent, an individual. See Clarence L. Martin, P.C. v. Wallace, 248 Ga. App. 284, 286
(1) (546 SE2d 55) (2001). Although Kent may have been the attorney Mitchell dealt
with at the corporation, a claim against his professional corporation is not
automatically a claim against him too. See OCGA § 14-7-3; Henderson v. HSI
Financial Svcs., 266 Ga. 844, 846 (2) (471 SE2d 885) (1996) (professional
corporation and its shareholders enjoy the same rights, privileges, and immunities as
the shareholders of business corporations); see also OCGA § 14-7-4 (b) (professional
corporation necessarily acts through its officers, employees, and agents).
When a trial court confirms an arbitration award, the judgment must be entered
in conformity with the award. Thacker Constr. Co. v. A Betterway Rent-A-Car, 186
Ga. App. 660, 663 (368 SE2d 178) (1988). “Of course, an award can be modified; but
a modification cannot be substantive, it cannot affect the merits of the case.” Id.
Changing parties to the award is a substantive modification. See id. When the trial
court entered judgment against Kent individually, it substantively modified the
arbitration award.
Although the record in this case is sparse, it does not support the trial court’s
order. If there were additional materials that would provide such support, Mitchell
3 could have provided them. 2 In every case, the appellee has ample opportunity to
designate anything in the record or the transcript of the evidence that has not been
designated by the appellant. “In the absence of any attempt on the [Mitchell]’s part
to exercise these remedies, we must assume that the record before us is complete in
all relevant respects.” Boats for Sail, Inc. v. Sears, 158 Ga. App. 74, 74-75 (1) (279
SE2d 314) (1981). Based on the existing record, we must reverse.
Judgment reversed. Miller, P.J., Doyle, P.J., Ray and Branch, JJ., concur.
Barnes, P.J., and McFadden, J., dissent.
2 Mitchell has attached documents to her brief that are not part of the appellate record, but we cannot consider them. See Georgia Court of Appeals Rule 24 (g).
4 A12A1144. KENT v. MITCHELL. BA-053
BARNES, Presiding Judge, dissenting.
Because Kent has failed to show error on the record, I respectfully dissent from
the majority opinion reversing the trial court’s grant of the application of Kent’s
former client to confirm her fee arbitration award against him.
Because Kent, “as appellant, has the burden to affirmatively show error by the
record,” we must consider his contentions in light of the meager, 23-page appellate
record. Azordegan v. Ebrahimi, 311 Ga. App. 509 (1) (716 SE2d 528) (2011).
Consistent with Kent’s notice of appeal, the record includes only the client’s
application for confirmation, Kent’s answer, and the superior court’s final order
confirming the award. While Kent argues that the superior court substantively
modified the arbitration award by confirming it against him individually, rather than
against his professional corporation, the record does not affirmatively establish error. The body of the award includes the arbitrators’ finding that “Petitioner paid for
service from the attorney Respondent, . . . who has not provided evidence of any
valuable service performed on behalf of petitioner.” The award was made by a panel
of arbitrators pursuant to the State Bar’s Fee Arbitration program, which “is designed
to provide a convenient mechanism to resolve disputes between lawyers and clients
over fees, and is administered by the State Bar Committee on the Arbitration of Fee
Disputes.” Farley v. Bothwell, 306 Ga. App. 801 (703 SE2d 397) (2010), citing State
Bar Rules, Part VI, Arbitration of Fee Disputes, Preamble, 247 Ga. A-2. And under
State Bar Rules 6-201 (f) and 6-402, Kent would only have been allowed to
participate in the arbitration hearing if he had agreed to be bound by the arbitrators’
decision, and he admitted in his answer to the confirmation petition that he presented
evidence during the proceeding. Thus, the record supports the trial court’s
confirmation of the award against Kent individually.
Kent’s argument that he only appeared at the hearing on behalf of his
professional corporation and that the award was only against his corporation is
unpersuasive in light of the entire award and his answer to the petition admitting he
presented evidence to the arbitration panel. As noted previously, it is the appellant’s
2 burden to show error on the record, and this Kent has not done. See Afraknteh v.
Halstead, 259 Ga. App. 645, 646 (578 SE2d 126) (2003).
Considering the context of this arbitration award, along with Kent’s failure to
establish error on the record, we should affirm the trial court’s confirmation.
Accordingly, I respectfully dissent from the majority opinion.
I am authorized to state that Judge McFadden joins in this dissent.
3 A12A1144. KENT v. MITCHELL. BA-053
MCFADDEN, Judge, dissenting.
I respectfully dissent, and join fully in Presiding Judge Barnes’s dissenting
opinion. I write separately to set out my view that Kent is personally liable under the
terms of the rules governing the State Bar’s fee arbitration program, which were
promulgated by the Supreme Court of Georgia.
He has since been disbarred, but at the time of the subject proceedings Kent
was a lawyer. “Lawyers practicing in a professional corporation still owe a duty to
clients and remain personally liable to them for acts of professional negligence.”
Henderson v. HSI Financial Services, 266 Ga. 844, 845 (1) (471 SE2d 885) (1996). As a member of the State Bar of Georgia, Kent was subject to its rules
governing the practice of law and the conduct of lawyers. Those rules have been
promulgated by our Supreme Court after consultation with the State Bar and reflect
an intent to bind individual lawyers.
Where the dispute is between a lawyer and client, those rules provide – even
if “the respondent lawyer refuses to be bound” – that “the award rendered will be
considered as prima facie evidence of the fairness of the award and the burden of
proof shall shift to the lawyer to prove otherwise.” Rule 6-502. Here, Kent agreed to
be bound. So, upon a showing that he refused to pay the award, the superior court was
authorized and required to enter judgment on it. Rule 6-501.
That judgment was properly entered against Kent personally. It is true that Rule
6-501 speaks of the “parties.” But the arbitration rules speak of “parties” when
referring to both lawyer and client and of the “lawyer” when speaking of the lawyer.
Rule 6-201 (h) (2), 6-402, 6-501, 6-502. Under the State Bar’s rules, “‘Lawyer,’
denotes a person authorized by the Supreme Court of Georgia or its Rules to practice
law in the State of Georgia. . . .” Rule 1.0 (j). Although now stripped of that authority,
Kent remains, under the terms of those rules, bound by his agreement and personally
liable.