SUMMERVILLE et al.
INNOVATIVE IMAGES, LLC; and vice versa.
BARNES, P. J., MERCIER and BROWN, JJ.
BARNES, PRESIDING JUDGE.
Images, LLC ("Innovative") sued James Darren
Summerville, Summerville Moore, P. C., and the Summerville
Firm, LLC (collectively, "the Summerville
Defendants") for legal malpractice. The Summerville
Defendants acknowledged service of the summons and the
complaint but did not file a timely answer. The trial court
subsequently granted the Summerville Defendants' motion
to open default but denied their motion to compel arbitration
on the ground that the arbitration clause contained in the
parties' attorney-client contract was unconscionable. The
trial court issued a certificate of immediate review from its
order denying the motion to compel arbitration, and the
Summerville Defendants filed an application for interlocutory
appeal. This Court granted the application, leading to the
Summerville Defendants' appeal of the trial court's
order denying their motion to compel arbitration in Case No.
A19A0258. In Case No. A19A0321, Innovative cross-appeals from
the trial court's order granting the Summerville
Defendants' motion to open the default. For the reasons
discussed below, we reverse the trial court's order
denying the Summerville Defendants' motion to compel
arbitration, and we affirm the trial court's order
granting their motion to open the default.
Summerville Defendants contend that the trial court erred in
denying their motion to compel arbitration.
the Georgia Arbitration Code ("GAC"), OCGA §
9-9-1 et seq., "a party may seek an order compelling
arbitration, and upon a challenge to the validity of the
agreement, the trial court 'shall summarily hear and
determine that issue and, accordingly, grant or deny the
application for an order to arbitrate.'"Kindred
Nursing Centers v. Chrzanowski, 338 Ga.App. 708, 713 (1)
(791 S.E.2d 601) (2016), quoting OCGA § 9-9-6 (a).
Whether the contracting parties have submitted a particular
dispute to arbitration and the validity of the arbitration
provision are questions for judicial determination unless the
parties clearly and unmistakably provided otherwise in their
contract. Salinas v. Atlanta Gas Light Co., 347
Ga.App. 480, 482 (1) (819 S.E.2d 903) (2018); Harris v.
Albany Lime & Cement Co., 291 Ga.App. 474, 475 (1)
(662 S.E.2d 160) (2008).
by these principles, we turn to the factual and procedural
background pertinent to the main appeal in this case. In July
2013, Innovative retained Mr. Summerville and his law firm to
represent it in post-trial proceedings following an adverse
civil judgment, and the parties executed an attorney-client
engagement agreement that set out the terms of the
representation (the "Engagement Agreement"). A
section of the Engagement Agreement entitled "Other
Important Terms" included a choice-of-law clause stating
that the "agreement and its performance are governed by
the laws of the State of Georgia." That section of the
Engagement Agreement also included an arbitration clause (the
"Arbitration Clause" or the "Clause")
Any dispute arising under this agreement will be submitted to
arbitration in Atlanta, Georgia under the rules and
procedures of the State Bar of Georgia Committee on the
Arbitration of Attorney Fee Disputes, if concerning fees, or
by an arbitrator to be agreed to by the parties, if
concerning any other matter. Alternatively, you may choose to
arbitrate any dispute arising under this agreement in Atlanta
by a single arbitrator provided through the Atlanta office of
Judicial Arbitration and Mediation Service
("JAMS"). The decision of any such arbitrator or
arbitrators shall be binding, conclusive, and not appealable.
In the event a dispute is not or cannot be arbitrated, the
parties consent to the jurisdiction of and venue in the
courts of Fulton County, Georgia.
October 2017, Innovative filed the present legal malpractice
action in the State Court of Fulton County against the
Summerville Defendants for the allegedly negligent post-trial
representation of Innovative in the underlying civil suit,
asserting claims for breach of professional negligence,
breach of contract, and breach of fiduciary duties. During
the course of the litigation,  the Summerville Defendants filed
a motion to stay discovery, compel arbitration, and dismiss
the legal malpractice action based on the Arbitration Clause
(the "Motion to Compel Arbitration"). Innovative
opposed the Motion to Compel Arbitration, contending, among
other things, that the Arbitration Clause was unconscionable
because the Summerville Defendants had not advised Innovative
of the possible disadvantages associated with arbitration.
trial court denied the Summerville Defendants' Motion to
Compel Arbitration, agreeing with Innovative that the
Arbitration Clause was unconscionable. The trial court
reasoned that although the GAC does not prohibit the
arbitration of legal malpractice claims, Rule 1.4 (b) of the
Georgia Rules of Professional Conduct (the "State Bar
Rules") and American Bar Association
("ABA") Formal Opinion 02-425 support imposing
a legal requirement on attorneys to explain to their
prospective clients the possible disadvantages of binding
arbitration clauses contained in attorney-client engagement
contracts, such as the waiver of the right to a jury trial,
the potential waiver of broad discovery, and the waiver of
the right to appeal. And, because there was no evidence in
the record that the Summerville Defendants explained the
Arbitration Clause to their prospective client, Innovative,
before the Engagement Agreement was signed, the trial court
found that the Arbitration Clause was unconscionable and thus
Summerville Defendants contend that the trial court erred in
denying their Motion to Compel Arbitration on the ground that
the Arbitration Clause was unconscionable. We agree.
unconscionable contract is one abhorrent to good morals and
conscience. It is one where one of the parties takes a
fraudulent advantage of another. It is an agreement that no
sane person not acting under a delusion would make and that
no honest person would take advantage of." (Citations
and punctuation omitted.) William J. Cooney,
P.C. v. Rowland, 240 Ga.App. 703, 704 (524 S.E.2d 730)
(1999). A contract is not unconscionable if permitted by
statute. Avery v. Aladdin Products Div.
&c., 128 Ga.App. 266, 267 (2) (196 S.E.2d 357)
(1973). See William J. Cooney, P.C., 240 Ga.App. at
704 ("That which the law itself specifically permits
cannot be unconscionable."). Moreover, in determining
whether a contract is unconscionable, we must bear in mind
that "Georgia law recognizes and protects the freedom of
parties to contract," William J. Cooney, P.C.,
240 Ga.App. at 705, and
contracts will not be avoided by the courts as against public
policy, except where the case is free from doubt and where an
injury to the public interest clearly appears. Absent a
limiting statute or controlling public policy, parties may
contract with one another on whatever terms they wish[, ] and
the written contract defines the full extent of their rights
(Citations and punctuation omitted.) Hall v. Fruehauf
Corp., 179 Ga.App. 362, 362 (346 S.E.2d 582) (1986).
arbitration clauses, "Georgia has . . . enacted the
[GAC], evidencing the legislature's conclusion that
arbitration is not in violation of the public policy of this
State and, therefore, cannot be said, per se, to be
unconscionable." Results Oriented v. Crawford,
245 Ga.App. 432, 437 (1) (a) (538 S.E.2d 73) (2000),
aff'd, Crawford v. Results Oriented, 273 Ga. 884
(548 S.E.2d 342) (2001). See Order Homes v. Iverson,
300 Ga.App. 332, 334-335 (1) (685 S.E.2d 304) (2009)
("In enacting the GAC, the General Assembly established
a clear public policy in favor of arbitration.")
(punctuation and footnote omitted). Furthermore, an
arbitration clause is not unconscionable because the
contracting parties have differing levels of sophistication
or different understandings of how arbitration is conducted.
See Crawford v. Great American Cash Advance, 284
Ga.App. 690, 693-694 (1) (c) (644 S.E.2d 522) (2007). And,
when a party signs a contract containing an arbitration
clause, the party is presumed to have read and understood the
clause. Holt & Holt v. Choate Constr. Co., 271
Ga.App. 292, 294 (1) (609 S.E.2d 103) (2004). See also
Northwest Plaza v. Northeast Enterprises, 305
Ga.App. 182, 189-190 (1) (699 S.E.2d 410) (2010) (where
representatives of corporation signed contract, corporation
was charged with having read the contract and understood its
terms); Ghertner v. Solaimani, 254 Ga.App. 821, 825
(563 S.E.2d 878) (2002) (contracting parties who agree to an
arbitration clause are "presumed to know the law"
pertaining to arbitration).
present case, in addition to the foregoing well-settled
principles counseling against a finding of unconscionability,
there was no evidence that the Summerville Defendants took
advantage of Innovative, fraudulently or otherwise. Nor was
there any evidence that Innovative was induced by the
Summerville Defendants to forego reading the Engagement
Agreement or inquiring into any of its terms, including the
Arbitration Clause. Nevertheless, the trial court declined to
enforce the Arbitration Clause on the ground of
unconscionability based on its conclusion that, as a matter
of public policy, lawyers have a duty to explain the possible
disadvantages of arbitration clauses to their prospective
clients before engagement agreements are executed, and there
was no indication in the record that such an explanation had
been provided to Innovative. In support of its conclusion that
public policy had been violated, the trial court relied on
the duty of communication imposed on attorneys by State Bar
Rule 1.4 (b) and the interpretation of Model Rule 1.4 (b)
found in ABA Formal Opinion 02-425, reasoning that both were
"relevant and persuasive in deciding whether [the
Arbitration Clause was] an unconscionable imposition in a
true that "contractual provisions between attorneys and
clients which violate the public interest are
unenforceable," Nelson & Hill v. Wood, 245
Ga.App. 60, 66 (2) (537 S.E.2d 670) (2000), and that public
policy may be informed by the State Bar Rules. See, e.g.,
Eichholz Law Firm v. Tate Law Group, 310 Ga.App.
848, 851-853 (1) (714 S.E.2d 413) (2011) (fee-splitting
provision of joint venture agreement, which permitted law
firm to receive portion of contingency fee where firm's
representation had been terminated by client before fee was
earned, violated State Bar Rule 1.5 (e) (2) and was
unenforceable on public policy grounds); Harris v. Albany
Lime & Cement Co., 291 Ga.App. 474, 475-477 (1) (662
S.E.2d 160) (2008) (arbitration clause entered into between
attorney and existing client was voidable at the option of
the client on public policy grounds, where the attorney had
an "egregious conflict of interest" in violation of
State Bar Rule 1.8 (a); while the attorney was representing
the client in a pending defective construction lawsuit in
which the attorney also was named as a defendant, the
attorney had persuaded the client to execute an agreement
with him and his businesses pertaining to the renovation of
the house in question that contained an arbitration clause).
Notably, however, "[t]he fact that this case involves an
attorney-client relationship does not mean that the rules of
professional conduct preempt statutory law and case law
regarding contracts." William J. Cooney, P.C.,
240 Ga.App. at 705.
our legislature's strong public policy preference in
favor of arbitration as expressed in the GAC, and in light of
our aforementioned case law regarding arbitration clauses and
unconscionability, we decline to adopt a blanket rule that an
arbitration clause in an attorney-client contract is
unconscionable and against public policy if the attorney did
not explain the potential disadvantages of the clause to his
prospective client before execution of the contract. In
reaching this conclusion, we are mindful that "the
legislature is empowered by the Constitution to decide public
policy, and to implement that policy by enacting laws[, ] . .
. [and] the power of the courts to declare a contract
provision void for being in contravention of a sound public
policy is a very delicate and undefined power" that
should be exercised cautiously. (Citations and punctuation
omitted.) Jones v. Federated Mut. Ins. Co., 346
Ga.App. 237, 243 (2) (b) (816 S.E.2d 105) (2018).
Furthermore, the Supreme Court of Georgia has the
"inherent and exclusive authority to govern the practice
of law in Georgia," Nodvin v. State Bar of Ga.,
273 Ga. 559, 559 (1) (544 S.E.2d 142) (2001), and the Supreme
Court has not addressed whether ABA Formal Opinion 02-425
should be adopted as the proper interpretation of State Bar
Rule 1.4 (b). Accordingly, for these combined reasons, we
conclude that the trial court erred in finding the
Arbitration Clause unconscionable and in denying the
Summerville Defendants' Motion to Compel
Innovative contends that the trial court's denial of the
Summerville Defendants' Motion to Compel Arbitration
should be affirmed on the alternative ground that the
Arbitration Clause was discretionary rather than mandatory
with respect to any dispute other than over attorney fees.
See generally Estate of Nixon v. Barber, 340 Ga.App.
103, 105 (1) (796 S.E.2d 489) (2017) (trial court will be
affirmed if "right for any reason"); Reese
Realty Co. v. Pal Realty Co., 182 Ga.App. 215, 217 (2)
(355 S.E.2d 125) (1987) ("[A] judgment which is correct
will not be reversed merely because the wrong reason is given
for granting it."). According to Innovative, the
Arbitration Clause gave it the option to arbitrate any
non-fee disputes arising under the Engagement Agreement but
did not compel such arbitration. We are unpersuaded.
construction of an arbitration clause in a contract is
subject to the ordinary rules of contract construction,"
and "[t]he cardinal rule of contract construction is to
ascertain the intention of the parties." (Citations and
punctuation omitted.) South Point Retail Partners v.
North American Properties Atlanta, 304 Ga.App. 419, 421
(1) (696 S.E.2d 136) (2010). "It is well settled that
when the terms of a written contract are clear and
unambiguous, the court is to look to the contract alone to
find the parties' intent." (Citation and punctuation
omitted.) Shelnutt v. Mayor & Aldermen of
the City of Savannah, 333 Ga.App. 446, 452 (3) (776
S.E.2d 650) (2015). Hence, "[w]here the language of the
contract is plain, unambiguous, and capable of only one
reasonable interpretation, construction of the contract is
not permitted, and the language of the contract is given
effect." (Citations and punctuation omitted). Joja
Partners v. Abrams Properties, 262 Ga.App. 209, 211 (1)
(585 S.E.2d 168) (2003). That is the situation here.
Arbitration Clause in the Engagement Agreement stated that
"[a]ny dispute arising under this agreement will be
submitted to arbitration." For non-fee disputes arising
under the Engagement Agreement, the Arbitration Clause
further stated that the arbitration would be conducted
"by an arbitrator to be agreed to by the parties,"
or "[a]lternatively, . . . by a single arbitrator
provided through the Atlanta office of Judicial Arbitration
and Mediation Service ('JAMS')" chosen by
Innovative. Taken together, these provisions plainly and
unambiguously gave Innovative two choices over how to select
an arbitrator for non-fee disputes arising under the
Engagement Agreement, but not the option to disregard the
Arbitration Clause altogether and proceed with litigation.
See Joja Partners, 262 Ga.App. at 211 (1)
(arbitration provision gave party some choice among
alternatives, but not the option to litigate). See also
Shelnutt, 333 Ga.App. at 453 (3) (treating the word
"will" as mandatory language).
true that the Arbitration Clause further provided that
"[i]n the event a dispute is not or cannot be
arbitrated, the parties consent to the jurisdiction of and
venue in the courts of Fulton County, Georgia." But that
venue provision, when read in pari materia with the other
language of the Arbitration Clause, would apply only in the
limited circumstances where both contracting parties chose to
waive arbitration or the arbitration clause was deemed
unenforceable by a court. Any other construction would render
meaningless the mandatory language that "[a]ny dispute
arising under the agreement will be submitted to
arbitration," a result that clearly must be avoided.
(Emphasis supplied.) See Paul v. Paul, 235 Ga. 382,
384 (219 S.E.2d 736) (1975) ("[T]hat construction will
be favored which gives meaning and effect to all of the terms
of the contract over that which nullifies and renders
meaningless a part of the language therein
contained[.]") (citation and punctuation omitted).
to Innovative's argument, the Arbitration Clause was
mandatory based on its clear and unambiguous language.
Consequently, the trial court's denial of the Summerville
Defendants' Motion to Compel Arbitration cannot be
affirmed on the alternative ground that the Arbitration
Clause was optional.
its cross-appeal, Innovative contends that the trial court
erred in granting the Summerville ...