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McLellan v. Chilivis, Cochran, Larkins & Bever, LLP
Citations: 692 S.E.2d 26; 302 Ga. App. 562; 2010 Fulton County D. Rep. 623; 2010 Ga. App. LEXIS 181Docket: A09A1645
Court: Court of Appeals of Georgia; March 2, 2010; Georgia; State Appellate Court
A. Anthony McLellan and his associated entities appealed a judgment of $671,939.69 awarded to Chilivis, Cochran, Larkins, Bever, LLP, following a jury trial. McLellan contended that the trial court lacked subject matter jurisdiction due to an alleged agreement to submit their dispute to binding arbitration and that his motion for a continuance was improperly denied. The Court of Appeals of Georgia affirmed the trial court's decision, concluding that subject matter jurisdiction is dictated by state law and cannot be altered by party agreement. Furthermore, McLellan waived his right to arbitration by engaging in litigation actions inconsistent with that claim, such as failing to assert the arbitration defense when responding to the complaint and participating fully in the trial process without raising the issue. The record indicated that McLellan and Chilivis had previously entered into a stipulation regarding dispute resolution but subsequently acted in ways that undermined that stipulation, leading to a waiver of any arbitration rights. The court cited several precedents to support its ruling. McLellan contends that the trial court erred by denying his counsel's motion for continuance during the trial set for November 27, 2007. The timeline indicates that McLellan's counsel was unaware of the trial date until November 19, 2007, despite receiving a demand for trial on October 12, 2007, and the case being listed in a trial calendar published on November 5, 2007. Counsel had not communicated with McLellan for five years and only located him in Australia the day before the trial, where McLellan was unable to attend the trial. On the trial date, counsel moved for a continuance, stating he could not proceed without McLellan's presence due to numerous statements made by McLellan that he could not address. The trial court denied the motion, citing a lack of communication between McLellan and his counsel, suggesting abandonment. On appeal, McLellan argues he was entitled to a continuance under OCGA 9-10-154, which allows for a continuance if a party is providentially prevented from attending trial. The court noted that "providential" refers to causes like illness or death, and McLellan's absence stemmed from his and his counsel's lack of communication rather than a providential cause. The trial court's discretion in denying the continuance was deemed appropriate, as McLellan failed to demonstrate due diligence in maintaining contact regarding the case. The court affirmed the trial court's judgment, emphasizing that parties must remain aware of trial proceedings and cannot avoid responsibility for their attendance.