2020 Georgia Code
Title 9 - Civil Practice
Chapter 9 - Arbitration
Article 1 - General Provisions
Part 1 - Arbitration Code
§ 9-9-6. Application to Compel or Stay Arbitration; Demand for Arbitration; Consolidation of Proceedings

1. A party aggrieved by the failure of another to arbitrate may apply for an order compelling arbitration. If the court determines there is no substantial issue concerning the validity of the agreement to submit to arbitration or compliance therewith and the claim sought to be arbitrated is not barred by limitation of time, the court shall order the parties to arbitrate. If a substantial issue is raised or the claim is barred by limitation of time, the court shall summarily hear and determine that issue and, accordingly, grant or deny the application for an order to arbitrate. If an issue claimed to be arbitrable is involved in an action pending in a court having jurisdiction to hear a motion to compel arbitration, the application shall be made by motion in that action. If the application is granted, the order shall operate to stay a pending or subsequent action, or so much of it as is referable to arbitration.
2. Subject to subsections (c) and (d) of this Code section, a party who has not participated in the arbitration and who has not made an application to compel arbitration may apply to stay arbitration on the grounds that:
   1. No valid agreement to submit to arbitration was made;
   2. The agreement to arbitrate was not complied with; or
   3. The arbitration is barred by limitation of time.
3. A party may serve upon another party a demand for arbitration. This demand shall specify:
   1. The agreement pursuant to which arbitration is sought;
   2. The name and address of the party serving the demand;
   3. That the party served with the demand shall be precluded from denying the validity of the agreement or compliance therewith or from asserting limitation of time as a bar in court unless he makes application to the court within 30 days for an order to stay arbitration; and
   4. The nature of the dispute or controversy sought to be arbitrated; provided, however, that the demand for arbitration may be amended by either party to include disputes arising under the same agreement after the original demand is served.
4. After service of the demand, or any amendment thereof, the party served must make application within 30 days to the court for a stay of arbitration or he will thereafter be precluded from denying the validity of the agreement or compliance therewith or from asserting limitation of time as a bar in court. Notice of this application shall be served on the other parties. The right to apply for a stay of arbitration may not be waived, except as provided in this Code section.
5. Unless otherwise provided in the arbitration agreement, a party to an arbitration agreement may petition the court to consolidate separate arbitration proceedings, and the court may order consolidation of separate arbitration proceedings when:
   1. Separate arbitration agreements or proceedings exist between the same parties or one party is a party to a separate arbitration agreement or proceeding with a third party;
   2. The disputes arise from the same transactions or series of related transactions; and
   3. There is a common issue or issues of law or fact creating the possibility of conflicting rulings by more than one arbitrator or panel of arbitrators.
6. If all the applicable arbitration agreements name the same arbitrator, arbitration panel, or arbitration tribunal, the court, if it orders consolidation under subsection (e) of this Code section, shall order all matters to be heard before the arbitrator, panel, or tribunal agreed to by the parties. If the applicable arbitration agreements name separate arbitrators, panels, or tribunals, the court, if it orders consolidation under subsection (e) of this Code section, shall, in the absence of an agreed method of selection by all parties to the consolidated arbitration, appoint an arbitrator.
7. In the event that the arbitration agreements in proceedings consolidated under subsection (e) of this Code section contain inconsistent provisions, the court shall resolve such conflicts and determine the rights and duties of various parties.
8. If the court orders consolidation under subsection (e) of this Code section, the court may exercise its discretion to deny consolidation of separate arbitration proceedings only as to certain issues, leaving other issues to be resolved in separate proceedings.

(Code 1933, § 7-307, enacted by Ga. L. 1978, p. 2270, § 1; Code 1981, §9-9-86; Code 1981, §9-9-6, as redesignated by Ga. L. 1988, p. 903, § 1.)

- For article, "Construction Law," see 63 Mercer L. Rev. 107 (2011). For annual survey on trial practice and procedure, see 67 Mercer L. Rev. 257 (2015).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the provisions, decisions under former Code Section 9-9-86 are included in the annotations for this Code section.

- There was no statutory provision requiring clients of defendant company and owner to apply for an order compelling arbitration before seeking arbitration where such an order would have had no effect on the defendants' absence from the proceedings, and state law does not unequivocally reject ex parte arbitration. Deer Creek, Inc. v. Section 1031 Servs., Inc., 235 Ga. App. 891, 510 S.E.2d 853 (1999).

Because an agreement contained multiple promises based on multiple considerations, the agreement was not severable; consequently, pursuant to O.C.G.A. § 13-1-8(a), the trial court erred in granting a motion to compel arbitration and stay proceedings. Harris v. SAL Fin. Servs., 270 Ga. App. 230, 606 S.E.2d 293 (2004).

- Trial court did not err in considering whether under the standards of O.C.G.A. § 9-9-6(a) the court could decide a party's petition to compel arbitration because Georgia courts generally apply Georgia law to procedural matters and, therefore, the trial court properly determined that the court lacked subject matter jurisdiction over the petition since an action was pending in Illinois and there was no showing that § 9-9-6(a) was preempted by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. BDO USA, LLP v. Coe, 329 Ga. App. 79, 763 S.E.2d 742 (2014).

- Question of whether one party waived the party's right to compel arbitration by failing to comply with a purported condition precedent was a question for the arbitrator to resolve. Web IV, LLC v. Samples Constr., LLC, 349 Ga. App. 607, 824 S.E.2d 107 (2019).

- A motion for summary judgment is not a proper procedural vehicle by which to seek to enforce an arbitration provision in a limited warranty, because the remedy of a defendant who is aggrieved by the refusal of a plaintiff to arbitrate is to apply to the court for a stay of proceedings pending arbitration. Tillman Group, Inc. v. Keith, 201 Ga. App. 680, 411 S.E.2d 794 (1991).

Plaintiff was not required to proceed under subsection (a) of O.C.G.A. § 9-9-6 simply because defendant declined to participate; instead, it was proper for plaintiff to proceed under subsection (c) of O.C.G.A. § 9-9-6. Yeremian v. Ellis, 239 Ga. App. 805, 521 S.E.2d 596 (1999).

Party aggrieved by the failure of another to arbitrate may apply for an order compelling arbitration. Pursuant to O.C.G.A. § 9-9-6(a), if a court determines there is no substantial issue concerning the validity of the agreement to submit to arbitration or compliance therewith and the claim sought to be arbitrated is not barred by limitation of time, the court shall order the parties to arbitrate. Yates Paving & Grading Co. v. Bryan County, 265 Ga. App. 578, 594 S.E.2d 756 (2004).

Practical difficulties that a plaintiff faced in attempting to arbitrate the plaintiff's dispute with the defendant did not show that there was any defect in the formation of an arbitration provision or that the contract terms themselves were substantively unconscionable. Moreover, both the FAA and Georgia law provided that a party aggrieved by the failure of another to arbitrate under an agreement could apply for an order compelling arbitration, and the plaintiff did not avail oneself of this remedy. Kaspers v. Comcast Corp., F.3d (11th Cir. Nov. 16, 2015)(Unpublished).

Defendant's refusal to participate in arbitration or to file any response thereto waived defendant's contentions regarding the validity of the arbitration clause of the contract or compliance therewith. Yeremian v. Ellis, 239 Ga. App. 805, 521 S.E.2d 596 (1999).

- Trial court correctly granted the construction company's motion to compel arbitration because the question of whether the contract's dispute resolution provisions imposed a condition precedent to arbitration was a threshold issue of procedural arbitrability that arose out of and related to the agreement itself; thus, the issue had to be resolved by an arbitrator rather than by the trial court. Web IV, LLC v. Samples Constr., LLC, 349 Ga. App. 607, 824 S.E.2d 107 (2019).

- Trial court erred in refusing to compel arbitration as to all counts of buyers' complaint against a seller to recover damages for construction defects in the buyers' new home because the parties intended to submit the types of claims in dispute to an arbitrator when the parties agreed to submit to arbitration not only construction defect claims but also "all other claims between the parties;" the arbitration clause in the agreement was not limited to claims sounding in contract but applied to "all other claims" without limitation. Order Homes, LLC v. Iverson, 300 Ga. App. 332, 685 S.E.2d 304 (2009).

In the homeowners' negligent misrepresentation claim, the trial court erred in denying the company's motion to compel arbitration based on the company's recommendation of a contractor who provided discounts to its members, such as the homeowners, because the homeowners' allegations against the company touched a matter - their membership with the company - covered by the arbitration agreement. DBGS, LLC v. Kormanik, 333 Ga. App. 33, 775 S.E.2d 283 (2015).

In a legal malpractice case, the trial court erred in refusing to enforce an arbitration clause in the parties' engagement agreement based on unconscionability because arbitration was favored under Georgia law and there was no evidence that the attorneys took advantage of the client. There was no blanket rule that the attorneys were required to explain the possible disadvantages of arbitration to the client. Summerville v. Innovative Images, LLC, 349 Ga. App. 592, 826 S.E.2d 391 (2019), cert. granted, No. S19C1026, 2019 Ga. LEXIS 861 (Ga. 2019), overruled on other grounds by Bowen v. Savoy, 308 Ga. 204, 839 S.E.2d 546 (2020).

An arbitration clause in a contract between an attorney and a client was voidable at the client's option because of the attorney's conflict of interest; thus, it was error not to grant the client's motion to stay arbitration. Moreover, even if the clause were enforceable, the common-law indemnification and contribution claims the attorney sought to arbitrate arose independently of the contract and thus were not covered by the arbitration clause. Harris v. Albany Lime & Cement Co., 291 Ga. App. 474, 662 S.E.2d 160 (2008).

Magistrate court was "a court having jurisdiction to hear a motion to compel arbitration" within the contemplation of subsection (a) of O.C.G.A. § 9-9-6, for purposes of determining whether a house vendor had waived its right to arbitration by litigating the merits of a breach of warranty claim in the magistrate court without filing a motion to compel arbitration. Tillman Group, Inc. v. Keith, 201 Ga. App. 680, 411 S.E.2d 794 (1991).

- City's unsuccessful action in petitioning the public service commission to stop a new electric service provider from providing electricity to the water utility was not an action inconsistent with the right to arbitrate, as that action was against a non-party in a regulatory proceeding that lacked jurisdiction to compel arbitration; the issue of whether the city and the water utility's electric service contract was terminated due to a flood was not involved in the proceedings before the public service commission, and if the water utility had been concerned about its right to arbitrate rather than defaulting on the contract, it could have, but did not, demand a stay of litigation in order to arbitrate. Macon Water Auth. v. City of Forsyth, 262 Ga. App. 224, 585 S.E.2d 131 (2003).

Trial court did not err in enforcing a 30-day limitations period in a contract between a general contractor and a subcontractor for the subcontractor to request arbitration of a dispute between the parties after notice by the contractor of default by the subcontractor and staying arbitration to the subcontractor, when the subcontractor waited more than 30 days to file for arbitration following the delivery of a decision letter by the contractor that the subcontractor had not complied with the agreement. Holt & Holt, Inc. v. Choate Constr. Co., 271 Ga. App. 292, 609 S.E.2d 103 (2004).

In a dispute over construction of a home in which homeowners sought rescission, the trial court was required to order arbitration, under O.C.G.A. § 9-9-6(a), because the arbitration clause in the parties' contract specifically provided that they intended to arbitrate even claims seeking rescission, and the homeowners did not challenge the validity of the arbitration clause itself, nor was their claim barred by the limitation of time. D. S. Ameri Constr. Corp. v. Simpson, 271 Ga. App. 825, 611 S.E.2d 103 (2005).

- Trial court did not err in denying a limited liability company's (LLC) motion under O.C.G.A. § 9-9-6(b) to stay an arbitration sought by a construction company because the LLC waived the LLC's right to stay the arbitration by participating in the process for 18 months, and the construction company's demands for arbitration put the LLC on notice that the LLC's claims arose out of an understanding between the parties; by participating in and failing to object to the arbitration process, the LLC waived any right the LLC had to stay the proceedings. Atl. Station, LLC v. Vratsinas Constr. Co., 307 Ga. App. 398, 705 S.E.2d 191 (2010).

- House vendor, by litigating the merits of the purchasers' breach of warranty claim in the magistrate court without filing a motion to compel arbitration or otherwise seeking to initiate arbitration proceedings, waived its right to insist upon arbitration. Tillman Group, Inc. v. Keith, 201 Ga. App. 680, 411 S.E.2d 794 (1991).

Judgment staying arbitration was affirmed as an assignee acquired only the rights held by the assignor and the assignor failed to raise an arbitration defense, participated in discovery, and agreed to extend the discovery period in a related case with a limited liability company; the assignor waived its entitlement to arbitration, and the assignee's entitlement to arbitration was waived. M. Homes, LLC v. Southern Structural, Inc., 281 Ga. App. 380, 636 S.E.2d 99 (2006).

Trial court properly denied the appellants' motion to compel arbitration of new claims asserted in an amended petition because the appellants waived the appellants' right to arbitration under a partnership agreement by failing to assert the right in a timely manner and, instead, participating in almost five years of very costly litigation, which was inconsistent with the right to arbitration. Schinazi v. Eden, 351 Ga. App. 151, 830 S.E.2d 531 (2019), cert. denied, No. S19C1526, 2020 Ga. LEXIS 108 (Ga. 2020).

- Contractor sued a limited liability company (LLC) and the company's owner to recover payment. As the claims asserted by the contractor were "related to" the contractor's contract with the LLC, even if the claims did not "arise out of" the contract, and the owner was not a party to the contract, the owner's motion to compel arbitration under O.C.G.A. § 9-9-6(a) was properly denied. Tillman Park, LLC v. Dabbs-Williams Gen. Contrs., LLC, 298 Ga. App. 27, 679 S.E.2d 67 (2009).

- Consolidation of arbitration of a doctor's claims against the doctor's lawyer with the lawyer's fee claim against the doctor was not mandatory under O.C.G.A. § 9-9-6(h). Doman v. Stapleton, 256 Ga. App. 4, 567 S.E.2d 348 (2002).

Cited in Phillips Constr. Co. v. Cowart Iron Works, Inc., 250 Ga. 488, 299 S.E.2d 538 (1983); Worsham v. Krause, 272 Ga. 528, 529 S.E.2d 373 (2000); Brown v. Premiere Designs, Inc., 266 Ga. App. 432, 597 S.E.2d 466 (2004).

RESEARCH REFERENCES

ALR.

- Which statute of limitations applies to efforts to compel arbitration of a dispute, 77 A.L.R.4th 1071.

Consolidation by state court of arbitration proceedings brought under state law, 31 A.L.R.6th 433.

What statute of limitations applies to action to compel arbitration pursuant to § 301 of Labor Management Relations Act (29 USCS § 185), 96 A.L.R. Fed. 378.

Application of equitable estoppel by nonsignatory to compel arbitration - federal cases, 39 A.L.R. Fed. 2d 17.

Application of equitable estoppel against nonsignatory to compel arbitration under federal law, 43 A.L.R. Fed. 2d 275.