MAHKTAR KAMARA v. MARK ANTHONY HOMES ( 2022 )

FIFTH DIVISION
RICKMAN, C. J.,
MCFADDEN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
February 11, 2022
In the Court of Appeals of Georgia
A21A1258. KAMARA v. MARK ANTHONY HOMES et al.
PHIPPS, Senior Appellate Judge.
This appeal marks the second appearance of these parties in this Court.
Mahktar Kamara first appealed from the superior court’s order denying his petition
to vacate an arbitration award entered under the Georgia Arbitration Code, OCGA §
9-9-1 et seq., in a dispute with Mark Anthony Homes (“MAH”) and Mark Ferguson.
While his first appeal was pending, Kamara filed a “Motion to Extend Time to
Confirm Arbitration Award or Alternatively to Confirm Arbitration Award and Stay
Ruling on Confirmation of Award Pending Resolution of Plaintiff’s Appeal of the
Motion to Vacate” (“Motion to Confirm”) in the superior court. Kamara now appeals
from the superior court’s order denying his Motion to Confirm. For the following
reasons, we reverse.
The record shows that Kamara entered into an agreement with MAH for the
construction of a home on Kamara’s property. A dispute arose between the parties,
and Kamara filed a demand for arbitration. The arbitrator awarded $290,020 in favor
of Kamara against MAH on December 3, 2019. The arbitration award stated that
“Mark Ferguson, [i]ndividually, is not a [p]arty to this arbitration and therefore is not
personally liable under this [a]ward.”
Kamara filed a petition to vacate the arbitration award, taking issue with the
fact that the award was not also against Ferguson. After the superior court denied
Kamara’s petition to vacate, Kamara filed a notice of appeal on April 24, 2020, and
the ensuing appeal was docketed in this Court as Case No. A20A2019. On November
6, 2020, while the appeal was pending in this Court, Kamara filed the Motion to
Confirm, requesting the superior court to extend the time for him to confirm the
award “so as to preserve the award pending the Court of Appeals ruling” on Kamara’s
appeal. Alternatively, Kamara moved to confirm the arbitration award but requested
the superior court to stay its ruling on the motion to confirm until we ruled on his
pending appeal.
On January 4, 2021, we affirmed the superior court’s order denying Kamara’s
petition to vacate the arbitration award. Kamara subsequently amended his Motion
2
to Confirm on January 20, 2021, withdrawing the portions of his original motion
requesting the superior court to stay its ruling and again seeking to confirm the
arbitration award. The superior court filed this Court’s remittitur in Case
No. A20A2019 on February 1, 2021, and, on February 2, 2021, denied Kamara’s
Motion to Confirm on the basis that Kamara was not permitted to amend his claims
to add a motion to confirm the arbitration award after the superior court had entered
the order denying his motion to vacate the arbitration award. Kamara filed a motion
for reconsideration, which the superior court denied, stating in its order: “While the
use of the word “claims” in the February [2 order] may have been inartful, the
reasoning behind the February [2 order] — the [superior court’s] lack of jurisdiction
due to the entry of the final judgment — is sound.” Kamara now appeals from the
denial of his Motion to Confirm.
In four enumerations of error, Kamara contends that the superior court erred
by denying his Motion to Confirm. We agree.
We first note that Kamara has not cited any authority specifically addressing
the validity of a motion to confirm an arbitration award filed within one year of the
delivery of the arbitration award but after the filing of a notice of appeal of an order
denying a motion to vacate the same arbitration award, and we have found no such
3
authority. The lack of authority is perhaps not surprising — the issue arises in this
case only because Kamara petitioned to vacate the arbitration award, and then, while
the appeal of the denial of his petition to vacate was pending, sought to protect his
ability to confirm the award in the event his appeal was unsuccessful.
We begin our analysis with OCGA § 9-9-12, which provides: “The court shall
confirm an award upon application of a party made within one year after its delivery
to him, unless the award is vacated or modified by the court[.]” An arbitration award
confirmation proceeding is a special statutory proceeding, not a civil suit. Hardin
Constr. Group v. Fuller Enterprises, 265 Ga. 770, 771 (462 SE2d 130) (1995).
Pursuant to OCGA § 9-9-4 (a) (2), an application for confirmation of an arbitration
award is made by motion. Here, the arbitration award was made on December 3,
2019,1 and Kamara filed his Motion to Confirm on November 6, 2020. Kamara argues
that the superior court erred in denying his Motion to Confirm because the motion
was filed within one year after the delivery of the arbitration award and the award was
neither vacated nor modified by the court.
1
For purposes of our analysis, we are treating December 3, 2019, as the
delivery date. In his appellate brief, Kamara does not contend that the delivery date
was later.
4
We must consider, however, whether Kamara’s Motion to Confirm, which was
filed while his appeal of the superior court’s denial of his motion to vacate was
pending before this Court, was properly before the superior court. Because Kamara
filed his Motion to Confirm while the appeal was pending, the superior court did not
have jurisdiction to rule on the motion when it was filed. See Avren v. Garten, 289
Ga. 186, 190 (6) (710 SE2d 130) (2011) (“The supersedeas of a . . . notice of appeal
deprives the trial court of the power to affect the judgment appealed, so that
subsequent proceedings purporting to supplement, amend, alter or modify the
judgment, whether pursuant to statutory or inherent power, are without effect.”)
(citation and punctuation omitted). See also Mughni v. Beyond Mgmt. Group, Inc.,
349 Ga. App. 398, 402-403 (3) (825 SE2d 829) (2019) (notice of appeal of order
confirming arbitration award divested trial court of jurisdiction to consider motion to
vacate the same arbitration award).
It could be argued that Kamara’s Motion to Confirm was not properly before
the superior court because, at the time it was filed, the superior court did not have
jurisdiction to rule on the motion. See Avren, 289 Ga. at 190 (6); Mughni, 349 Ga.
App. at 402-403 (3). Under the facts of this case, however, we find that even though
the superior court did not have jurisdiction to rule on the motion when it was filed,
5
the motion was properly before the court at the time it was ruled upon. First, the
superior court did not rule on Kamara’s Motion to Confirm until it had received and
filed this Court’s remittitur from Kamara’s appeal from the order denying his motion
to vacate. After remittitur, a court may act upon motions filed pending remittitur. See
Marsh v. Way, 255 Ga. 284, 284 (1) (336 SE2d 795) (1985). Furthermore, “there is
precedent in the law for treating a premature filing as ripening into effectiveness.”
Woodgrain Millwork/Windsor Wood Windows v. Millender, 250 Ga. App. 204, 207
(1) (b) (551 SE2d 78) (2001) (prematurely filed workers’ compensation claim ripened
upon expiration of statutory six-month waiting period). See also Bowman v. State,
358 Ga. App. 612, 614 (1), n. 2 (856 SE2d 11) (2021) (“the doctrine of ripening has
been employed broadly in civil cases”). Although Kamara contends that he was
required to file his motion to confirm by December 3, 2020, in order to preserve his
ability to have the arbitration award enforced, Kamara’s appeal of the order denying
his petition to vacate suspended the one-year period of limitation for filing the
application to confirm the arbitration award. See Hardin Constr. Group v. Fuller
Enterprises, 233 Ga. App. 717, 720 (1) (505 SE2d 755) (1998) (physical precedent
only) (limitation period for filing application to confirm an arbitration award
suspended during appeal). Consequently, Kamara could have filed his Motion to
6
Confirm after his appeal of the order denying his motion to vacate was no longer
pending. “To hold that the [superior] court could not have properly considered the
motion unless [Kamara] had taken the redundant and perfunctory step of refiling the
motion would place form over substance and this we decline to do.” Marsh, 255 Ga.
at 284 (1) (citation and punctuation omitted). Accordingly, even if Kamara’s Motion
to Confirm was filed prematurely, we find that the motion ripened, and was deemed
to be filed, when the superior court filed this Court’s remittitur on February 1, 2021.
Because the one-year period for filing an application to confirm the arbitration award
had been suspended, see Hardin Constr. Group, 233 Ga. App. at 720 (1), the Motion
to Confirm was therefore timely filed. When the superior court ruled on the Motion
to Confirm on February 2, 2021, the arbitration award had not been vacated or
modified by the superior court. It follows that the superior court erred by denying
Kamara’s Motion to Confirm. See OCGA § 9-9-12.
Judgment reversed. Rickman, C. J., and McFadden, P. J., concur.
7