McLellan v. Chilivis, Cochran, Larkins & Bever LLP

The trial court did not lack subject matter jurisdiction on grounds that the parties agreed to submit to binding arbitration, because the law firm's former client took actions in the litigation that were inconsistent with the alleged arbitration rights.

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Following a jury trial, A. Anthony McLellan, Mach II Software, Inc. “McLellan” and Newco appeal from a $671,939.69 judgment in favor of Chilivis, Cochran, Larkins & Bever, LLP “Chilivis”. McLellan asserts that 1 the trial court’s order should be vacated because it lacked subject matter jurisdiction; and 2 the trial court erred by denying his motion for a continuance. For the reasons set forth below, we affirm. 1. McLellan asserts the trial court lacked subject matter jurisdiction to try the case because the parties agreed to submit their dispute to binding arbitration. We disagree. “Subject matter jurisdiction is conferred to a court by state law, and cannot be extended or divested by waiver or agreement of the parties.” Citations omitted. Euler-SIAC S.P.A. v. Drama Marble Co. , 274 Ga. App. 252, 254 n. 2 1 617 SE2d 203 2005.

To the extent McLellan argues that the Georgia Arbitration Code precludes a verdict in Chilivis’s favor, we find that he waived this argument by acting in a manner inconsistent with this right to the prejudice of Chilivis. See Ed Voyles Jeep-Chrysler v. Wahls , 294 Ga. App. 876, 877-878 670 SE2d 540 2008. The record shows that Chilivis filed suit against McLellan for attorney fees on February 4, 2000 in connection with legal work Chilivis provided to McLellan and Mach II Software, Inc., a corporation for which McLellan served as chief executive officer. Before McLellan filed an answer, he entered into a stipulation with Chilivis in which they agreed to “in good faith consider, separately or in combination, mediation, arbitration, compromise or settlement.” The stipulation also provided that if it were terminated by either party, McLellan would then have 45 days to file an answer and responses to Chilivis’s first request for admissions.

McLellan v. Chilivis, Cochran, Larkins & Bever LLP

The trial court did not lack subject matter jurisdiction on grounds that the parties agreed to submit to binding arbitration, because the law firm's former client took actions in the litigation that were inconsistent with the alleged arbitration rights.

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