ELLINGTON, Chief Judge.
The Fulton County Superior Court entered judgment confirming an arbitration award, which required SCSJ Enterprises, Inc., and Shandton Williams (collectively, SCSJ) to pay approximately $800,000 to Hansen & Hansen Enterprises, Inc., and Juden Enterprises, Inc. (collectively, Hansen). SCSJ appeals this ruling, arguing that the trial court erred in returning the case to arbitration; the trial court erred in confirming the arbitration award; and the judgment was inconsistent with the arbitration award. For the reasons that follow, we affirm.
This is the third appearance of this case before this Court. The dispute arose after SCSJ Enterprises purchased two UPS Store franchises from Hansen. In connection with the purchase, SCSJ executed two $250,000 promissory notes, one in favor of Hansen and one in favor of Juden Enterprises.
Hansen appealed, and in Hansen & Hansen Enterprises v. SCSJ Enterprises, Inc., 299 Ga.App. 469, 682 S.E.2d 652 (2009), we affirmed the judgment in part, reversed in part, and remanded the case with direction. Succinctly stated, this Court ruled that the arbitrator knew and applied the applicable Georgia law with respect to the fraud claim, and thus the trial court erred in concluding the arbitrator manifestly disregarded the law. Id. at 472, 682 S.E.2d 652. We also concluded that the arbitrator did not overstep its authority in awarding attorney fees, and the trial court erred in concluding otherwise. Id. at 472-473(2)(a), 682 S.E.2d 652. Finally, we agreed with the trial court that no final arbitration award had been made because the arbitrator failed to consider Hansen's counterclaim on the promissory notes. Although the promissory notes did not contain an arbitration clause, the notes expressly incorporated the sales agreement, which required arbitration of "any and all disputes." Id. at 473-474(2)(b), 682 S.E.2d 652. This Court remanded the case to the trial court with direction to "vacate the arbitrator's award consistent with this opinion and order a rehearing before the same arbitrator on Hansen's counterclaim only." (Citations omitted.) Id. at 474, 682 S.E.2d 652.
On remand, the trial court entered an order confirming the arbitrator's award with respect to SCSJ's claims, but vacating that portion of the award dismissing Hansen's counterclaim. SCSJ appealed, and we reversed. See SCSJ Enterprises v. Hansen & Hansen Enterprises, 306 Ga.App. 188, 702 S.E.2d 12 (2010). The sole issue on appeal was whether the trial court properly vacated a portion of the arbitrator's award. We found that the trial court erred because an arbitration award may only be vacated in its entirety. Id. at 189, 702 S.E.2d 12. We nonetheless noted that vacatur of the entire award did not render the prior proceeding a nullity because, under OCGA § 9-9-13(e), rehearing before the arbitrator could be limited to the specific issue necessitating the vacatur. Id. at 190, 702 S.E.2d 12. Therefore, we remanded the case and directed the trial court to vacate the arbitrator's entire award and to direct the arbitrator to consider Hansen's counterclaims. Id.
Following our ruling, SCSJ filed a motion to dismiss the arbitration proceedings. According to SCSJ, the fact that the arbitration award had been vacated meant that no final award had been made, which permitted SCSJ to terminate arbitration in accordance with the original sales contract. The trial court denied the motion.
The trial court then vacated the prior arbitration award in its entirety and remanded the case to the arbitrator directing him to consider Hansen's counterclaim for nonpayment of the promissory notes. The arbitrator issued a new award in which it found in favor of Hansen on the counterclaims on the promissory notes.
The trial court confirmed the arbitration award and entered judgment against SCSJ and Williams "jointly and severally, in the amount of $789,863.18." The court also required payment of arbitration fees, attorney
1. In its first enumeration of error, SCSJ contends that it was entitled to terminate arbitration proceedings under the sales contract and, thus, the trial court erred in remanding the case to the arbitrator. The arbitration clause in the contract provided, in pertinent part, that the arbitration shall promptly proceed to hearing and determination provided, however, that "if a final decision has not been rendered within thirty (30) days after the conclusion of the [arbitration] hearing, then any party may terminate the arbitration and proceed to litigation." Although the arbitrator issued a final decision, SCSJ contends that this Court's subsequent ruling, which vacated the decision, meant no final award had been rendered, permitting SCSJ to terminate arbitration proceedings.
Arbitration in Georgia is a matter of contract. See Helms v. Franklin Builders, 305 Ga.App. 863, 864, 700 S.E.2d 609 (2010) (construction of arbitration agreement is question of law subject to de novo review). As such, "[t]he construction of an arbitration clause in a contract is subject to the ordinary rules of contract construction." (Citation omitted.) South Point Retail Partners v. North American Properties Atlanta, 304 Ga.App. 419, 421(1), 696 S.E.2d 136 (2010). One such rule requires that we interpret a contract in accordance with its plain language. See id. at 422(1), 696 S.E.2d 136. Another "well-established rule of contract interpretation [is] that the construction which will uphold a contract in whole and in every part is to be preferred. It is likewise well established that a court should avoid an interpretation of a contract which renders portions of the language of the contract meaningless." (Citation and punctuation omitted.) Etowah Environmental Group v. Advanced Disposal Svcs., 297 Ga.App. 126, 131-132(2), 676 S.E.2d 456 (2009).
The contract at issue provided that a party could avoid arbitration and proceed to litigation if no final decision was rendered. Here, it is undisputed that the arbitrator rendered a final decision. SCSJ essentially contends that the vacatur of that decision rendered it a nullity. But the mere fact that an award is vacated is not synonymous with the award never having been made. See, e.g., SCSJ Enterprises, 306 Ga.App. at 190, 702 S.E.2d 12 ("vacatur of the entire arbitration award will not render the prior proceedings a nullity"). Indeed, if we were to interpret the contract in the manner advocated by SCSJ, we would render the arbitration provision largely meaningless. Accordingly, this argument lacks merit.
2. According to SCSJ, the trial court erred in confirming the award because the arbitrator exceeded his authority by: (a) issuing an award against Williams, who was not a party to the arbitration agreement; (b) issuing an award that deviates from the liquidated damages provisions set forth in the promissory notes; and (c) misinterpreting various default provisions.
The bases for vacating an arbitrator's award are limited to those set forth in OCGA § 9-9-13, and these bases must be strictly construed by the courts.
(a) SCSJ asserts that the arbitrator exceeded his authority in issuing an award against Williams, who was not a
Here, Williams signed two guaranties, which obligated him to repay specific notes. The notes, in turn, expressly provided that they were made "subject to the terms and conditions of [the] Memorandum of Sale," which included an arbitration clause. Accordingly, Williams' obligations under the guaranty agreements encompass SCSJ's obligations under the promissory note. Under these circumstances, equitable estoppel may be applied to require Williams' participation in arbitration. See Helms v. Franklin Builders, Inc., 305 Ga.App. at 866, 700 S.E.2d 609. Moreover, it was Williams who initiated arbitration proceedings against Hansen, and "[a] party cannot rely on [a] contract when it works to [his] advantage and then repute it when it works to [his] disadvantage." (Citation and punctuation omitted.) Id.
(b) SCSJ maintains that the arbitration award does not conform to the liquidated damages provisions specified in the promissory notes. Pretermitting whether the arbitrator departed from the terms of the underlying agreements, SCSJ has presented no basis for this Court to reverse the trial court's judgment.
SCSJ does not contend that the arbitrator overstepped his authority as contemplated by OCGA § 9-9-13(b)(3). Rather, SCSJ asks this Court to ascertain whether the evidence was sufficient to support the arbitrator's awards against both SCSJ and Williams individually. But "an appellate court will not consider the sufficiency of the evidence underlying an arbitrator's award." (Punctuation and footnote omitted.) Phan v. Andre & Blaustein, LLP, 309 Ga.App. 191, 195(2), 709 S.E.2d 863 (2011) ("`[A]llowing an appellate court to make a determination of the sufficiency of the evidence in arbitration cases would only frustrate the purpose of arbitration. A primary advantage of arbitration is the expeditious and final resolution of disputes by means that circumvent the time and expense associated with civil litigation.'").
(c) In a related argument, SCSJ asserts that the arbitrator misinterpreted the various default provisions under the documents. For the reasons discussed in Division (2)(b), this argument does not present a valid basis for vacating the award.
3. SCSJ contends that the trial court erred in confirming the arbitration award because the arbitrator manifestly disregarded the law by rejecting SCSJ's defense of failure of consideration and/or recoupment. We disagree.
As we made clear in our decision in Hansen & Hansen, manifest disregard of the law involves a two part inquiry:
(Citations and punctuation omitted.) 299 Ga. App. at 471(1), 682 S.E.2d 652.
SCSJ has not shown that the arbitrator deliberately disregarded the law. To the contrary, the arbitrator included with his award a detailed legal memorandum in which
4. SCSJ contends that the trial court erred in issuing a judgment that did not conform to the arbitration award. The arbitrator entered an award against SCSJ in favor of Juden Enterprises for $394,931.59; an award against SCSJ in favor of Hansen & Hansen Enterprises for $394,931.59; and an award against Williams as guarantor for $789,863.18. The trial court then entered judgment, finding that "Hansen & Hansen Enterprises, Inc., and Juden Enterprises, Inc., are entitled to recover from Defendants SCSJ Enterprises, Inc., and Shandton Williams, jointly and severally, in the amount of $789,863.18." According to SCSJ, this judgment "inherently assumes an indivisible character to the arbitration award." SCSJ also suggests that the award constitutes a double recovery.
Under OCGA § 10-7-1, a guarantor is jointly and severally liable with the principal unless the contract provides otherwise. As Williams signed an unconditional guaranty for both notes that does not preclude joint liability, we fail to see how the trial court's order improperly assumes an indivisible character. See, e.g., Hassell v. First Nat. Bank of Newton County, 218 Ga.App. 231, 232(1), 461 S.E.2d 245 (1995) (guarantor jointly and severally liable with principal). We further see no impermissible double recovery. We agree that the arbitrator was somewhat inartful in drafting the award without specifying that the amount owed by Williams under the guaranties was joint and several with SCSJ. But, given the fact that Williams' individual liability arises solely from his role as a guarantor, it cannot reasonably be argued that his obligations would be in addition to the obligations of the principal. See OCGA § 10-7-1. To the extent the arbitrator's award was vague or confusing, the trial court clarified in its judgment that Williams' liability was joint and several with SCSJ.
In a related argument, SCSJ contends the trial court lacked authority to clarify the arbitrator's ruling in the judgment. In support of this contention, SCSJ cites Phan v. Andre & Blaustein, supra. SCSJ reads this case too broadly. In Phan, we held that a trial court could not enter judgment in an amount greater than that awarded by the arbitrator. See id. at 196(3), 709 S.E.2d 863. We did not hold, however, that the trial court's judgment must track the exact language of the arbitration award. As long as a trial court's judgment does not affect the merits of the arbitrator's ruling, reversal is not required. See Lowe v. Center Neurology Assoc., 288 Ga.App. 166, 169(2), 653 S.E.2d 318 (2007). Furthermore, a trial court may interpret and enforce an ambiguous arbitration award as long as the ambiguity can be resolved from the record. See Flender Corp. v. Techna-Quip Co., 953 F.2d 273, 280(II)(3) (7th Cir.1992). Here, the trial court's judgment does not undermine the merits of the arbitration award. If anything, the judgment simply clarified an ambiguity. See id.
Judgment affirmed.
PHIPPS, P.J., concurs.
DILLARD, J., concurs in judgment only.
