Bryan County v. Yates Paving & Grading Co.

HUNSTEIN, Presiding Justice,

dissenting.

At a time when both the legislature and courts of this State are encouraging participation in arbitration as a means of providing a more efficient and less costly means of resolving disputes, a majority of this Court ignores the arbitration scheme established by the legislature, the policy favoring arbitration of disputes, and the language of the parties’ arbitration agreement and holds that a claim of res judicata raised in defense to a dispute under the contract is not an arbitrable issue. Consistent with the provisions of the Georgia Arbitration Code limiting the issues to be considered by trial courts when ruling on motions to compel arbitration and the parties’ agreement to refer to arbitration all of the claims, disputes, and other matters arising out of or relating to the public works contract, I would agree with the Court of Appeals and hold that the applicability of Bryan County’s res judicata defense was an issue to be decided by the arbitrator. Accordingly, I respectfully dissent.

The Georgia Arbitration Code, OCGA § 9-9-1 et seq. (“GAC”), provides that “[a] written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit any *365controversy thereafter arising to arbitration is enforceable without regard to the justiciable character of the controversy.” OCGA § 9-9-3. Under the GAC, the court’s review of a motion to compel arbitration is limited to deciding two issues: whether a valid agreement to arbitrate exists and whether the claim in dispute is arbitrable under the language of the arbitration agreement. OCGA§§ 9-9-2 (c), 9-9-3, 9-9-6.4 All other issues, whether procedural or substantive, are to be submitted to the arbitrator for consideration. See OCGA §§ 9-9-3, 9-9-4 (d). In this case, it is well-established that the parties’ agreement to arbitrate is valid, see Bryan County v. Yates Paving & Grading Co., 251 Ga. App. 441, 443 (554 SE2d 584) (2000), and that the claim underlying the dispute is arbitrable under the language of that agreement. Thus, the two issues for the trial court under the GAC already have been decided in this case.

The majority, however, rejects the legislature’s determination that all other issues are for the arbitrator and instead creates a new, judicially imposed issue for courts to resolve. Ignoring both the State policy favoring arbitration of disputes and the language of the GAC restricting the role of the court where parties agree to arbitrate, the majority justifies its holding on three separate bases. The majority first argues that trial courts are authorized to consider issues of res judicata because application of the doctrine is a procedural issue not requiring courts to determine the merits of the underlying dispute. This holding, however, directly contravenes OCGA § 9-9-4 (d), the statute prohibiting courts from considering either the tenability or the merits of a claim with respect to which arbitration is sought.

The majority opinion further concludes that the issue of res judicata was for the court to decide because that issue did not arise out of or relate to the contract documents. That conclusion is not supported by the record. The parties’ arbitration agreement provides that “all claims, disputes and other matters in question between [the parties] arising out of, or relating to the Contract Documents or the breach thereof will be decided by arbitration.” The dispute in this case, as properly framed by the complaint, was whether Yates was entitled to damages based on Bryan County’s allegedly wrongful conduct under the public works contract. In defense, Bryan County argued that Yates’ claim for damages was precluded under the doctrine of res judicata. Clearly, a defense to a claim for damages under the contract arises out of or is related to the contract documents, regardless of whether such defense requires the court or *366arbitrator to reach the merits of the underlying claim. Moreover, the majority opinion’s similar conclusion that nothing in the language of the parties’ arbitration agreement indicates that the parties intended the arbitrator to resolve res judicata issues turns on their head general rules of statutory construction. The broad and comprehensive scope of the parties’ arbitration agreement, requiring arbitration of all issues between the parties in any way arising out of or related to the contract, cannot reasonably be interpreted to mean that the parties intended to refer to arbitration all claims, disputes or other matters except issues of res judicata. In this regard, parties intending to refer to arbitration all issues and claims pertaining to a particular dispute or transaction are forewarned that to successfully do so it no longer is sufficient to agree to arbitrate “all claims, disputes and other matters in question.”

Finally, the majority opinion concludes that courts should decide issues of res judicata because requiring a court to submit such issues to arbitration would extend the process of resolving disputes. The majority, however, fails to explain how courts, with their heavy caseloads and formal evidentiary requirements, are better able than arbitrators to quickly and inexpensively decide issues of res judicata. This is especially true where, as in this case, the proceeding giving rise to the claim of res judicata took place not in the trial court, but in a previous arbitration. In such cases, the arbitrator would be in at least as good a position, if not better, than the court to determine whether the specific claim was or could have been raised in the prior arbitration proceeding. Instead, the majority opinion eliminates the efficiencies created by the legislature by requiring courts to consider not only the enforceability and scope of the parties’ arbitration agreement, but also the potential affect of every asserted defense to determine whether it is or could be dispositive of the underlying claim.

Given that the GAC was drafted in large part to mirror the Federal Arbitration Act, 9 USC § 1 et seq. (“FAA”), and the express admonition in the GAC that “[i]n determining any matter arising under this part, the court shall not consider whether the claim with respect to which arbitration is sought is tenable nor otherwise pass upon the merits of the dispute,” OCGA § 9-9-4 (d), I would follow the rationale of the United States Supreme Court in Howsam v. Dean Witter Reynolds, Inc., 537 U. S. 79 (123 SC 588, 154 LE2d 491) (2002), and hold that issues of procedural arbitrability are presumptively for the arbitrator.5 *367Applying this rationale,* ****6 I would conclude that a claimed defense of res judicata does not present a “gateway dispute” about whether the agreement to arbitrate is valid or whether the particular claim in dispute falls within the scope of the agreement. Rather, it is a question, like waiver, delay, laches, and estoppel, that bears on the final disposition of the parties’ dispute and, as such, presents an issue of procedural arbitrability for the arbitrator to decide. See Klay v. United Health Group, Inc., 376 F3d 1092, 1109 (11th Cir. 2004) (courts are empowered to resolve disputes solely involving whether claim should be resolved in court or arbitration; arbitrator is empowered, absent contrary agreement, to determine whether particular claim may be successfully litigated at all due to statute of limitations, laches, justiciability, etc.).

Decided November 30, 2006. McCorkle, Pedigo & Johnson, David H. Johnson, Crown, Rountree & Stewart, Charles H. Brown, for appellant. Leonard W. Childs, Jr., Brannen, Searcy & Smith, David R. Smith, Joseph Y. Rahimi II, for appellees. I am authorized to state that Chief Justice Sears and Justice Benham join this dissent.

When raised by the parties, the legislature also granted trial courts limited discretion to consider whether the claim sought to be arbitrated is barred by limitation of time. OCGA§ 9-9-5 (a).

That is not to say that parties could not agree as part of their arbitration agreement that procedural issues bearing on the final disposition of the dispute are to be reserved for judicial determination. Arbitration is a matter of contract, and parties are free to agree who shall *367resolve particular disputes. See Galindo v. Lanier Worldwide, Inc., 241 Ga. App. 78, 83 (526 SE2d 141) (1999) (who decides issue of arbitrability depends upon parties’ intent in arbitration agreement); North Augusta Assoc. Ltd. Partnership v. 1815 Exchange, Inc., 220 Ga. App. 790 (2) (469 SE2d 759) (1996) (agreement to arbitrate is simply contract matter between parties). In light of the general presumption that such procedural questions are for the arbitrator, as well as the broad State and Federal policies favoring arbitration, however, I would hold that to successfully do so parties must include in the arbitration agreement clear and unmistakable language indicating their intent to have a court, rather than an arbitrator, interpret and apply the doctrine of res judicata. See Howsam, supra, 537 U. S. at 85.

Because courts have unique and well-established interests in preserving and enforcing their own judgments, interests which do not attach to the same degree to confirmation of arbitration awards, I would limit application of this presumption to cases in which the proceeding giving rise to a claim of res judicata involved a prior arbitration. See OCGA §§ 9-9-12, 9-9-13 (arbitration award may be vacated by trial court only if arbitrator exceeds authority or manifestly disregards law or award procured by fraud).