GAINESVILLE MECHANICAL, INC.
AIR DATA, INC.
BARNES, P. J., MERCIER and BROWN, JJ.
Mechanical, Inc. appeals from an order of the superior court
confirming an arbitration award in favor of Air Data, Inc.
Gainesville Mechanical contends that the superior court erred
by failing to conclude that the arbitrator's written
award demonstrates a manifest disregard of the law. For the
reasons explained below, we disagree and affirm.
one of the statutory grounds listed in OCGA § 9-9-13
(b), a superior court must confirm an arbitration award; on
appeal, this Court "will not reverse an order confirming
an award unless the appellant demonstrates that a statutory
ground exists." Airtab v. Limbach Co., 295
Ga.App. 720, 721 (673 S.E.2d 69) (2009). The only statutory
ground relevant to this case is whether the rights of
Gainesville Mechanical "were prejudiced by . . . [t]he
arbitrator's manifest disregard of the law." OCGA
§ 9-9-13 (b) (5). "[A]s provided in the statute, a
showing of prejudice is required" and "the burden
of proof is on the one seeking to set aside an award."
Bennett v. Builders II, 237 Ga.App. 756, 757 (3)
(516 S.E.2d 808) (1999). In this case, the arbitrator's
award reflects that it received evidence over the course of
six days of hearings, but the record before us does not
include a transcript of the arbitration proceedings.
Accordingly, Gainesville Mechanical attempts to show
prejudice from the arbitrator's alleged manifest
disregard of the law solely from the face of the
arbitrator's 14-page "Final Award."
order, the arbitrator summarized the evidence briefly and
determined that Gainesville Mechanical paid Air Data only
$32, 000, less than half the $72, 770 it was entitled to
under its contract. It also determined that due to the
directive of a general contractor on the construction
project, Gainesville Mechanical instructed Air Data to work 7
days a week for 10 hours a day for an extended period of
time. Additionally, the arbitrator concluded that Gainesville
Mechanical required Air Data to conduct testing on mechanical
systems before the building was enclosed and even before
Gainesville Mechanical's work and that of other trades
was complete in the very areas where Air Data was asked to
test. Gainesville Mechanical ultimately fired Air Data and
hired another contractor to perform the work at a cost of
over $149, 985, at a time when the building was opened and
occupied and the work could be performed by a single
outlining these facts, the arbitrator concluded that
[w]hile only rarely governing a construction dispute, the
Arbitrator determines that the facts of this case call for
the application of the legal doctrine of cardinal change. . .
. While the term cardinal change is primarily utilized in
Federal Government construction cases, Georgia and other
states often adopt other terminology such as quantum meruit,
abandonment of contract, and fundamental breach. A Nevada
decision explained: The cardinal change doctrine serves to
provide a breach remedy for contractors who are directed to
perform work which is not within the general scope of the
contract and which is not redressable under the contract.
Thus a cardinal change occurs when the work is so drastically
altered that the contractor effectively performs duties that
are materially different from those which the contractor
(Punctuation omitted; emphasis omitted.) Later in his order,
the arbitrator stated:
Based upon the Arbitrator's findings as to the above
pertinent occurrences on the project, the final step is to
assign damages resulting from these occurrences.
Air Data claims entitlement to:
1.Compensatory damages of $258, 704.
2. Interest of $144, 000 through December 17, 2017.
3. $151, 384 for attorneys' ...