Hilton Construction Co. v. Martin Mechanical Contractors, Inc. , 166 Ga. App. 40 ( 1983 )

Carley, Judge,

concurring specially.

I agree that the judgment of the trial court should be affirmed. However, I cannot join the majority in the reasoning it utilizes to arrive at that conclusion. The majority correctly states that there is no independent source of federal jurisdiction over arbitration proceedings under the Federal Arbitration Act and that “[s]ubject matter jurisdiction must exist through source other than [Title 9 USCA], such as diversity of citizenship or a federal question.” It appears that there was no such independent basis of federal jurisdiction in this case and that the proceeding was properly brought in the Superior Court of Clarke County. However, I cannot embrace the majority’s construction of the relevant portions of Title 9 USCA so as to hold that a state court otherwise having jurisdiction over the proceeding has authority to affirm but not to vacate an award of an arbitrator. I see absolutely no difference in meaning of the words “in any of the courts of the United States...” as used in Section 3 and the import of “United States court in and for the district wherein the award was made ...” as utilized in Section 10. Since under circumstances of this case, the Superior Court of Clarke County had jurisdiction over this proceeding, it could take any action which could be taken by a federal court having jurisdiction over the case.

Therefore, the trial court was correct in reaching and ruling upon the merits and, in reviewing this case, we must determine the correctness of that ruling. The essence of this case is that appellants contend that either appellee herein, Martin Mechanical Contractors, Inc., or another subcontractor, Stephenson Associates, Inc., was responsible for certain defects in the work under their respective subcontracts. Appellee instituted arbitration proceedings with appellants. Appellants repeatedly requested of the arbitrator that Stephenson be made a party to the arbitration. However, at no time prior to the award, did appellants demand arbitration as to Stephenson or seek any judicial direction. Stephenson was never a party to the arbitration between appellants and appellee and is not a party to this proceeding. In fact, appellants did not file a demand for arbitration as to Stephenson until five months after the award. Although the trial court opined that had appellants instituted arbitration vis-a-vis Stephenson, a motion to consolidate at that time and before an award may have been appropriate, the trial court further concluded that the record showed that the arbitrator had no power or authority to compel joinder of Stephenson and that, therefore, there was no abuse of the arbitrator’s power which would justify vacation of the award. I believe that the trial court was correct and that its judgment should be affirmed.