Walton Acoustics, Inc. v. Currahee Construction Co.

Court of Appeals of Georgia

Walton Acoustics, Inc. v. Currahee Construction Co.

399 S.E.2d 265, 197 Ga. App. 659, 1990 Ga. App. LEXIS 1458

CourtCourt of Appeals of Georgia

DecidedNovember 20, 1990

DocketA90A1069

StatusPublished

Cited by7 cases

This text of 399 S.E.2d 265 (Walton Acoustics, Inc. v. Currahee Construction Co.) 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.

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Walton Acoustics, Inc. v. Currahee Construction Co., 399 S.E.2d 265, 197 Ga. App. 659, 1990 Ga. App. LEXIS 1458 (Ga. Ct. App. 1990).

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Opinions

Pope, Judge.

This is an appeal from the trial court’s grant of the motion of Currahee Construction Company, Inc. (Currahee) to vacate an arbitration award. Walton Acoustics, Inc. (Walton) and Currahee had entered arbitration pursuant to a construction contract between them. The arbitrator awarded Walton $13,756.47 on the contract, $728.81 in attorney fees and $305.61 administration fees and expenses. Currahee moved the trial court to vacate the award on the basis that it improperly included attorney fees. Held:

We affirm. OCGA § 9-9-97 (a) provides: “Unless otherwise pro[660]*660vided in the agreement to arbitrate, the arbitrators’ expenses and fees, together with other expenses, not including counsel fees, incurred in the conduct of the arbitration, shall be paid as provided in the award.” In Hughes & Peden, Inc. v. Budd Contracting Co., 193 Ga. App. 656 (388 SE2d 753) (1989), this court held that attorney fees are not recoverable in an arbitration action. Walton argues that attorney fees are recoverable under OCGA § 13-6-11. We disagree. OCGA § 9-9-97, enacted in 1978, controls over OCGA § 13-6-11 because it is the later expression of the legislature on the subject of attorney fees in this context. “The courts are to be guided by the last expression of the General Assembly on a subject.” Board of Trustees v. Christy, 246 Ga. 553, 555 (272 SE2d 288) (1980). We do not find persuasive Walton’s argument that Jamison v. West, 191 Ga. App. 431 (4) (382 SE2d 170) (1989), stands for the proposition that attorney fees pursuant to OCGA § 13-6-11 may be recovered in an arbitration action, if timely and properly pleaded. Rather, we hold that Jamison stands only for the proposition that expenses, but not attorney fees, may be recovered. We note specifically that the pertinent portion of OCGA § 9-9-97 (a) allows recovery of “other expenses” incurred in the conduct of the arbitration.

Nor can we agree that the trial court has the power simply to set aside the award of attorney fees and confirm the remaining award. As logical as this would be, the statutory scheme does not permit it. OCGA § 9-9-93 (b) (3) provides that an award may be vacated if the arbitrator oversteps his authority, as was done in this case. The dissent’s reliance on OCGA § 9-9-97 (b) is misplaced. That Code section allowed the trial court to reduce or disallow fees or expenses it found excessive. However, to qualify as “excessive” the fees or expenses must have been authorized. Attorney fees were not authorized. This is the reason OCGA § 9-9-97 (b) is not discussed in Hughes & Peden, supra. In following the mandate of Hughes & Peden, supra, the trial court properly set aside the entire award.

Judgment affirmed.

Deen, P. J., McMurray, P. J., Banke, P. J., and Cooper, J., concur. Carley, C. J., Birdsong, Sognier and Beasley, JJ., dissent.

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Pope, Judge.

This is an appeal from the trial court’s grant of the motion of Currahee Construction Company, Inc. (Currahee) to vacate an arbitration award. Walton Acoustics, Inc. (Walton) and Currahee had entered arbitration pursuant to a construction contract between them. The arbitrator awarded Walton $13,756.47 on the contract, $728.81 in attorney fees and $305.61 administration fees and expenses. Currahee moved the trial court to vacate the award on the basis that it improperly included attorney fees. Held:

We affirm. OCGA § 9-9-97 (a) provides: “Unless otherwise pro[660]*660vided in the agreement to arbitrate, the arbitrators’ expenses and fees, together with other expenses, not including counsel fees, incurred in the conduct of the arbitration, shall be paid as provided in the award.” In Hughes & Peden, Inc. v. Budd Contracting Co., 193 Ga. App. 656 (388 SE2d 753) (1989), this court held that attorney fees are not recoverable in an arbitration action. Walton argues that attorney fees are recoverable under OCGA § 13-6-11. We disagree. OCGA § 9-9-97, enacted in 1978, controls over OCGA § 13-6-11 because it is the later expression of the legislature on the subject of attorney fees in this context. “The courts are to be guided by the last expression of the General Assembly on a subject.” Board of Trustees v. Christy, 246 Ga. 553, 555 (272 SE2d 288) (1980). We do not find persuasive Walton’s argument that Jamison v. West, 191 Ga. App. 431 (4) (382 SE2d 170) (1989), stands for the proposition that attorney fees pursuant to OCGA § 13-6-11 may be recovered in an arbitration action, if timely and properly pleaded. Rather, we hold that Jamison stands only for the proposition that expenses, but not attorney fees, may be recovered. We note specifically that the pertinent portion of OCGA § 9-9-97 (a) allows recovery of “other expenses” incurred in the conduct of the arbitration.

Nor can we agree that the trial court has the power simply to set aside the award of attorney fees and confirm the remaining award. As logical as this would be, the statutory scheme does not permit it. OCGA § 9-9-93 (b) (3) provides that an award may be vacated if the arbitrator oversteps his authority, as was done in this case. The dissent’s reliance on OCGA § 9-9-97 (b) is misplaced. That Code section allowed the trial court to reduce or disallow fees or expenses it found excessive. However, to qualify as “excessive” the fees or expenses must have been authorized. Attorney fees were not authorized. This is the reason OCGA § 9-9-97 (b) is not discussed in Hughes & Peden, supra. In following the mandate of Hughes & Peden, supra, the trial court properly set aside the entire award.

Judgment affirmed.

Deen, P. J., McMurray, P. J., Banke, P. J., and Cooper, J., concur. Carley, C. J., Birdsong, Sognier and Beasley, JJ., dissent.

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399 S.E.2d 265, 197 Ga. App. 659, 1990 Ga. App. LEXIS 1458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walton-acoustics-inc-v-currahee-construction-co-gactapp-1990.

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