Kent v. Mitchell

Adams, Judge.

The trial court granted Tina Mitchell’s application to confirm an attorney fee arbitration award against Jeffrey B. Kent and entered judgment against Kent in the amount of $2,500.¹ On appeal, Kent claims that the trial court erred by substantively modifying the arbitration award when it changed the party against whom the award was made from his professional corporation to him individually. We agree and therefore reverse.

According to Kent, Mitchell engaged the law firm Jeffrey B. Kent, P.C. in connection with a business dispute and paid a retainer of $2,500. At some point, Mitchell requested that her retainer be returned. When that did not happen, Mitchell filed a petition for fee arbitration with the State Bar of Georgia. In an award dated February 20, 2009, the arbitrators ruled in her favor and awarded a refund of her $2,500 retainer. Mitchell then filed an application to confirm the arbitration award pursuant to the State Bar of Georgia’s Fee Arbitration Rules and OCGA § 9-9-12, and that application was granted. The issue on appeal is whether the trial court substantively modified the award by changing the party against whom the award was originally entered.

The caption to the arbitrator’s award and the body of the award itself make clear that the parties to the arbitration were Tina Mitchell, Petitioner, and Jeffrey B. Kent, P.C. do Mr. Jeffrey Brooks Kent, Respondent. The award specifically states that the fee dispute is between Mitchell and Jeffrey B. Kent, P.C. When Mitchell filed her application to confirm the arbitration award, she changed the respondent to “Jeffrey B. Kent” with no mention of his professional corporation. In his response to Mitchell’s application, Kent pointed out that he was not a party to the arbitration or the arbitration award. The trial court nonetheless entered judgment against Kent individually.

The corporation of Jeffrey B. Kent, P.C. is a distinct legal entity from Jeffrey B. Kent, an individual. See Clarence L. Martin, P.C. v. Wallace, 248 Ga. App. 284, 286 (1) (546 SE2d 55) (2001). Although Kent may have been the attorney Mitchell dealt with at the corporation, a claim against his professional corporation is not automatically a claim against him too. See OCGA § 14-7-3; Henderson v. HSI Financial Svcs., 266 Ga. 844, 846 (2) (471 SE2d 885) (1996) (professional corporation and its shareholders enjoy the same rights, privileges, and immunities as the shareholders of business corporations); see also OCGA § 14-7-4 (b) (professional corporation necessarily acts through its officers, employees, and agents).

When a trial court confirms an arbitration award, the judgment must be entered in conformity with the award. Thacker Constr. Co. v. A Betterway Rent-A-Car, 186 Ga. App. 660, 663 (368 SE2d 178) (1988). “Of course, an award can be modified; but a modification cannot be substantive, it cannot affect the merits of the case.” Id. Changing parties to the award is a substantive modification. See id. When the trial court entered judgment against Kent individually, it substantively modified the arbitration award.

Although the record in this case is sparse, it does not support the trial court’s order. If there were additional materials that would provide such support, Mitchell could have provided them.² In every case, the appellee has ample opportunity to designate anything in the record or the transcript of the evidence that has not been designated by the appellant. “In the absence of any attempt on [Mitchell’s] part to exercise these remedies, we must assume that the record before us is complete in all relevant respects.” Boats for Sail v. Sears, 158 Ga. App. 74, 74-75 (1) (279 SE2d 314) (1981). Based on the existing record, we must reverse.

Judgment reversed.

Miller, P. J., Doyle, P. J., Ray and Branch, JJ., concur. Barnes, P. J., and McFadden, J., dissent.

1 Kent was subsequently disbarred for his conduct in representing a different client. In the Matter of Kent, 287 Ga. 129 (694 SE2d 665) (2010).

2 Mitchell has attached documents to her brief that are not part of the appellate record, but we cannot consider them. See Georgia Court of Appeals Rule 24 (g).