McAllaster v. Merrill Lynch, Pierce, Fenner & Smith, Inc.

Court of Appeals of Georgia

McAllaster v. Merrill Lynch, Pierce, Fenner & Smith, Inc.

443 S.E.2d 9, 212 Ga. App. 697, 94 Fulton County D. Rep. 1437, 1994 Ga. App. LEXIS 408

Court of Appeals of Georgia·Decided March 31, 1994·No. A94A0321·Published·Cited by 9 cases

Opinions

McMurray, Presiding Judge.

Richard E. McAllaster brought a multi-count action against Merrill Lynch, Pierce, Fenner & Smith, Inc. (“Merrill Lynch”) and Robert H. Thorne, for damages allegedly sustained after McAllaster’s termination of employment from Merrill Lynch. Merrill Lynch filed a motion to compel arbitration pursuant to the parties’ agreement to submit such disputes to arbitration. McAllaster filed a motion to stay any such arbitration. The trial court granted Merrill Lynch’s motion to compel arbitration and denied McAllaster’s motion to stay arbitration. McAllaster filed this direct appeal and also filed an application for interlocutory appeal pursuant to OCGA § 5-6-34 (b), stating that “[b]oth appeal procedures are pursued since if order at issue may be considered a final order since the trial court did not retain jurisdiction.”

McAllaster’s interlocutory application was denied on September 27, 1993, in Georgia Court of Appeals Case No. A93I0292. We now consider McAllaster’s direct appeal. Held:

The grant of an application to compel arbitration is not equitable in nature, but “operates merely to stay further proceedings in a pending action when entered by the court in which the action is pending [and] ‘ “. . . is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” ’ Bloomfield v. Liggett & Myers, 230 Ga. 484, 485 (198 SE2d 144) (1973).” Tillman Group v. Keith, 201 Ga. App. 680 (1), 681 (411 SE2d 794). Consequently, the order granting Merrill Lynch’s motion to compel arbitration does not constitute an equitable injunction directly appealable pursuant to OCGA § 5-6-34 (a) (4), but resolves an interlocutory matter reviewable pursuant to OCGA § 5-6-34 (b). Phillips Constr. Co. v. [698] Cowart Iron Works, 250 Ga. 488, 490 (299 SE2d 538). But see Bartlett v. Dimension Designs, Ltd., 195 Ga. App. 845, 846 (2) (395 SE2d 64). The case sub judice must therefore be dismissed.

Decided March 31, 1994. Karsman, Brooks & Callaway, Stanley E. Harris, Jr., for appellant. Hunter, MacLean, Exley & Dunn, F. Saunders Aldridge III, for appellees.

Appeal dismissed.

Birdsong, P. J., Beasley, P. J., Cooper, Johnson and, Smith, JJ., concur. Pope, C. J., Andrews and Blackburn, JJ., concur specially.

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McMurray, Presiding Judge.

Richard E. McAllaster brought a multi-count action against Merrill Lynch, Pierce, Fenner & Smith, Inc. (“Merrill Lynch”) and Robert H. Thorne, for damages allegedly sustained after McAllaster’s termination of employment from Merrill Lynch. Merrill Lynch filed a motion to compel arbitration pursuant to the parties’ agreement to submit such disputes to arbitration. McAllaster filed a motion to stay any such arbitration. The trial court granted Merrill Lynch’s motion to compel arbitration and denied McAllaster’s motion to stay arbitration. McAllaster filed this direct appeal and also filed an application for interlocutory appeal pursuant to OCGA § 5-6-34 (b), stating that “[b]oth appeal procedures are pursued since if order at issue may be considered a final order since the trial court did not retain jurisdiction.”

McAllaster’s interlocutory application was denied on September 27, 1993, in Georgia Court of Appeals Case No. A93I0292. We now consider McAllaster’s direct appeal. Held:

The grant of an application to compel arbitration is not equitable in nature, but “operates merely to stay further proceedings in a pending action when entered by the court in which the action is pending [and] ‘ “. . . is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” ’ Bloomfield v. Liggett & Myers, 230 Ga. 484, 485 (198 SE2d 144) (1973).” Tillman Group v. Keith, 201 Ga. App. 680 (1), 681 (411 SE2d 794). Consequently, the order granting Merrill Lynch’s motion to compel arbitration does not constitute an equitable injunction directly appealable pursuant to OCGA § 5-6-34 (a) (4), but resolves an interlocutory matter reviewable pursuant to OCGA § 5-6-34 (b). Phillips Constr. Co. v. [698] Cowart Iron Works, 250 Ga. 488, 490 (299 SE2d 538). But see Bartlett v. Dimension Designs, Ltd., 195 Ga. App. 845, 846 (2) (395 SE2d 64). The case sub judice must therefore be dismissed.

Decided March 31, 1994. Karsman, Brooks & Callaway, Stanley E. Harris, Jr., for appellant. Hunter, MacLean, Exley & Dunn, F. Saunders Aldridge III, for appellees.

Appeal dismissed.

Birdsong, P. J., Beasley, P. J., Cooper, Johnson and, Smith, JJ., concur. Pope, C. J., Andrews and Blackburn, JJ., concur specially.

McAllaster v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 443 S.E.2d 9, 212 Ga. App. 697, 94 Fulton County D. Rep. 1437, 1994 Ga. App. LEXIS 408 (Ga. Ct. App. 1994).

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