BRIAN BROWN v. MORGAN AND MORGAN, JACKSONVILLE, PLLC

majority opinion

FIRST DIVISION

BARNES, P. J.,

MARKLE and HODGES, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.gov/rules

June 30, 2026

In the Court of Appeals of Georgia

A26A1141. BROWN et al. v. MORGAN AND MORGAN

ATLANTA, PLLC.

A26A1229. BROWN v. MORGAN AND MORGAN

JACKSONVILLE, PLLC et al.

HODGES, Judge.

Spouses Brian and Veronica Brown sued Morgan & Morgan Atlanta, PLLC

and/or Morgan & Morgan Jacksonville, PLLC (collectively the “law firms”),

pursuing tort claims, punitive damages, and attorney fees. The law firms moved to

dismiss the suits on various grounds, including that the asserted claims were subject

to mandatory arbitration. The trial court denied the motions, and the law firms

appealed. This Court affirmed in part, vacated in part, and reversed in part,

specifically directing the trial court to determine (i) whether the relevant

circumstances demonstrated mutual assent to the contract containing the arbitration clause, and (ii) whether the arbitration clause was rendered unenforceable by OCGA

§ 9-9-2(c)(9). Morgan and Morgan Atlanta, PLLC v. Brown, 373 Ga. App. 459, 467-68(1)(d),(e), 473(3)(d),(e) (908 SE2d 727) (2024). On remand, the trial court

concluded that the parties mutually assented to the representation agreement and

OCGA § 9-9-2(c)(9) did not apply. Accordingly, the court granted the law firms’

renewed motions to compel arbitration. In Case Number A26A1141, Brian and

Veronica Brown appeal this ruling as to Morgan & Morgan Atlanta, and in Case

Number A26A1229, Brian Brown alone appeals the ruling as to Morgan & Morgan

Jacksonville. For the following reasons, we affirm the superior court’s decisions in

both cases.

Georgia courts are tasked with “uphold[ing] arbitration agreements when

possible.” Kindred Nursing Ctrs. Ltd. Partnership v. Chrzanowski, 338 Ga. App. 708,

715(1) (791 SE2d 601) (2016). See also Helms v. Franklin Builders, 305 Ga. App. 863,

865 (700 SE2d 609) (2010) ( “[T]he Georgia General Assembly has established a clear

public policy in favor of arbitration.”).

Whether there is a valid agreement to arbitrate is generally

governed by state law principles of contract formation, and is appropriate

for determination by the court. As the part[ies] seeking arbitration,

Morgan & Morgan Jacksonville [and Morgan & Morgan Atlanta] bear[]

the burden of proving the existence of a valid and enforceable agreement

to arbitrate. And generally, as with other contracts, where a binding

arbitration agreement was bargained for and signed by the parties, it is

the complaining party that bears the burden of proving that it

nevertheless is unenforceable on grounds of unconscionability or some

other defense.

Brown, 373 Ga. App. at 464(1) (citations and punctuation omitted). “This Court

reviews the grant or denial of a motion to compel arbitration de novo to see if the trial

court’s decision is correct as a matter of law; but we defer to the trial court’s factual

findings unless they are clearly erroneous.” Id. at 468(1)(d) n. 5 (citation and

punctuation omitted).

So viewed, the record shows that in June 2020, Brian Brown retained Morgan

& Morgan Jacksonville to represent him in a dispute involving a motor vehicle

accident that occurred in Chatham County, Georgia. Brian admits that he signed a

document captioned “Authority to Represent” (hereinafter “representation

agreement”) with the following agreement to arbitrate:

By executing this fee agreement I agree that, with one exception,

any and all disputes between me and the Firm arising out of this

Agreement, The Firm’s relationship with me or The Firm’s

performance of any past, current or future legal services, whether those services are [the] subject of this particular engagement letter or otherwise, will be resolved through a binding arbitration proceeding to be conducted under the auspices of the Commercial Arbitration Rules of the American Arbitration Association in Georgia. The disputes subject to binding arbitration will include without limitation, disputes regarding attorneys’ fees, or costs and those alleging negligence, malpractice, breach of fiduciary duty, fraud or any claim based upon a statute. Both the agreement of the parties to arbitrate all disputes and the results and awards rendered through the arbitration will be final and binding on The Firm and me and may be specifically enforced by legal proceedings. Arbitration will be the sole means of resolving such disputes, and both parties waive their rights to resolve disputes by court proceedings or any other means. The parties have agreed that judgement may be entered on the award of any court of competent jurisdiction in the state of Georgia and, therefore, any award rendered shall be binding. The arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The one exception to my agreement to arbitrate concerns ethical grievances which I may have. Nothing in this agreement limits, in any way, my right to pursue any ethical grievance against The Firm as permitted by

applicable law.

I understand that by agreeing to arbitration as a mechanism to

resolve all potential controversies, disputes, or claims between us, I am waiving certain rights, including the right to bring an action in court, the

right to a jury trial, the right to broad discovery, and the right to an

appeal. I understand that in the context of arbitration, a case is decided

by an arbitrator (one or more), not by a judge or a jury. I agree that, in the

event of such controversy, dispute, or claim between us, the prevailing

party will be entitled to recover from the losing party all costs and

expenses he, she, or it incurs in bringing and prosecuting, or defending,

the arbitration, including reasonable attorneys’ fees and costs.

I have been advised to review this letter carefully to be certain that

it accurately sets forth our agreement. In the event that I do not

understand anything in this letter, I will let The Firm know so further

written explanations can be provided.

NOTICE: I am aware that this agreement contains provisions

requiring arbitration of fee disputes. I am aware that I should consult

with another lawyer about the advisability of making an agreement

with mandatory arbitration requirements. Arbitration proceedings

are ways to resolve disputes without use of the court system. By

entering into agreements that require arbitration, I give up (waive)

my right to go to court to resolve those disputes by a judge or jury.

These are important rights that should not be given up without

careful consideration.

Morgan & Morgan Jacksonville represented Brown pursuant to the representation

agreement, and Brian’s claim was settled for $750,000 in 2021.

On March 3, 2023, Brian and Veronica sued Morgan & Morgan Atlanta relating

to its legal representation. The complaint expressly set forth two substantive counts:

(i) professional negligence; and (ii) breach of fiduciary duties, alleging that the law

firm overlooked coverage potentially available to settle Brian’s claim. Additionally, the

complaint sought punitive damages and attorney fees. By special appearance, Morgan

& Morgan Atlanta filed an answer claiming, among other things, that the suit should

be dismissed because it had never represented either of the Browns. That same day,

Morgan & Morgan Atlanta also filed a motion to dismiss the complaint pursuant to

OCGA § 9-11-12(b)(6), asserting that Brian Brown, but not Veronica Brown, had been

represented by Morgan & Morgan Jacksonville in connection with the referenced

automobile accident. Morgan & Morgan Atlanta attached to its answer a

representation agreement that identified “Brian Brown” as the client and “Morgan

& Morgan Jacksonville, PLLC” as “The Firm.”1

The record includes two representation agreements signed by different individuals on behalf of Morgan & Morgan Jacksonville. The Browns admit that the representation agreements “contain the same provisions,” including the same arbitration provisions.

On June 21, 2023, Brian Brown alone filed suit against Morgan & Morgan

Jacksonville.2 The complaint listed similar factual allegations as the Browns’

complaint against Morgan & Morgan Atlanta, and expressly set forth the same counts

for (i) professional negligence, (ii) breach of fiduciary duty, (iii) punitive damages, and

(iv) attorney fees. Morgan & Morgan Jacksonville filed an answer, as well as a motion

to dismiss the complaint and compel arbitration, attaching the representation

agreement. Morgan & Morgan Jacksonville argued that Brian Brown’s claims should

be dismissed for failure to state a claim upon which relief may be granted, because

arbitration provided his sole remedy.

The trial court entered orders denying the law firms’ motions, finding that

although Brian agreed to mandatory arbitration, there were questions regarding the

validity or enforceability of the representation agreement that must be resolved by a

jury. The law firms appealed. This Court affirmed in part, vacated in part, and

reversed in part, rejecting the Browns’ primary objections to arbitration and

Brian also named Seth Diamond in that lawsuit, but did not mention his involvement in the action. While Morgan & Morgan Jacksonville and Diamond have filed a joint brief, the claims of error do not appear to advance arguments separately as to Diamond. Therefore, all references in this opinion to Morgan & Morgan Jacksonville shall also apply to Diamond.

remanding the cases for the trial court to resolve two remaining arguments raised by

the Browns: (i) whether the relevant circumstances demonstrated mutual assent to the

contract containing the arbitration clause, and (ii) whether the arbitration clause was

rendered unenforceable by OCGA § 9-9-2(c)(9). Brown, 373 Ga. App. at 467-68(1)(d),(e), 473(3)(d),(e).

Following remand, the law firms renewed their motions to compel arbitration.

The trial court granted the law firms’ renewed motions to compel arbitration,

concluding that the parties mutually assented to the representation agreement

containing the arbitration clause and that OCGA § 9-9-2(c)(9) does not apply to the

arbitration provision in the representation agreement. The Browns appeal the court’s

decisions.

Case No. A26A1141

In this case, Brian and Veronica Brown argue that the trial court erred in

granting Morgan & Morgan Atlanta’s motion to compel arbitration in three material

ways: by (1) finding mutual assent to the arbitration provision of the representation

agreement; (2) finding that the Georgia Arbitration Code did not render the

arbitration provision in the representation agreement unenforceable as one relating to

terms and conditions of employment; and (3) allowing the law firms to inject a new

argument regarding the Federal Arbitration Act.

1. Turning to the Browns’ first enumeration of error in this case, the Browns

argue that the trial court erred in determining that the parties mutually assented to the

representation agreement containing the arbitration provision. Specifically, they assert

that the case involves two signed copies of the representation agreement, and because

the law firm signatures are different on the agreements and the law firms cannot prove

who actually signed the operative agreement, the firms “cannot prove mutual assent

of the particular parties at issue/if the signatory had authority to bind any of the

defendants to this action, Morgan & Morgan’s Atlanta office, or any other person or

entity for that matter.” This argument lacks merit.

As we found in our prior opinion in this case, the law firms’ failure to identify

the particular individual who signed the representation agreement on behalf of

Morgan & Morgan Jacksonville is not dispositive because “under Georgia law, [even]

a written, unsigned contract can be enforceable if the parties mutually assent to its

terms.” Brown, 373 Ga. App. at 467(1)(d) (citation and punctuation omitted). Our

Supreme Court has explained:

In some instances, the only conduct of the parties manifesting intent is

the express language of the agreement. In other instances, the

circumstances surrounding the making of the contract, such as

correspondence and discussions, are relevant in deciding if there was a

mutual assent to an agreement, and courts are free to consider such

extrinsic evidence.

Cox Broad. Corp. v. Nat’l Collegiate Athletic Ass’n, 250 Ga. 391, 395 (297 SE2d 733)

(1982). Accord Comvest, LLC v. Corp. Secs. Group, 234 Ga. App. 277, 280-81(3) (507

SE2d 21) (1998) (“Parties may become bound by the terms of a contract, even though

they do not sign it, where their assent is otherwise indicated, such as by the acceptance

of benefits under the contract, or the acceptance by one of the performance by the

other.”) (citation and punctuation omitted). Our analysis then turns on whether —

despite the law firms’ inability to explain any discrepancies in the representation

agreements and identify who actually signed the operative agreement containing the

arbitration provision — the parties mutually assented to the representation agreement.

In determining if parties had the mutual assent or meeting of the minds

necessary to reach [an] agreement, courts apply an objective theory of

intent whereby one party’s intention is deemed to be that meaning

[which] a reasonable man in the position of the other contracting party

would ascribe to the first party’s manifestations of assent, or that

meaning which the other contracting party knew the first party ascribed

to his manifestations of assent.

Cox Broad. Corp., 250 Ga. at 395.

Here, it is undisputed that both parties signed the representation agreement.

Brian Brown alleged in his complaint and admitted in his affidavit that he retained

Morgan & Morgan Jacksonville to represent him, signing the fee agreement. Morgan

& Morgan Atlanta admitted via its verified answer that Morgan & Morgan

Jacksonville represented the Browns, and the record contains two representation

agreements signed by someone purportedly representing Morgan & Morgan

Jacksonville.3 As the trial court correctly noted, “[w]hile [the Browns] contend

The Browns continue to argue that the identification of the individual who signed the representation agreement on behalf of Morgan & Morgan Jacksonville is crucial to determine whether the arbitration provision applies. However, this Court already rejected that precise argument, explaining that the correct inquiry is not “whether the person who signed the [r]epresentation [a]greement could be identified,” but “whether the relevant circumstances demonstrated mutual assent to the contract.” Brown, 373 Ga. App. at 468(1)(d). In addition, the law firms assert that, on remand, Morgan & Morgan Jacksonville identified the individuals who signed the two representation agreements, but the trial court found that such evidence was unnecessary to demonstrate mutual assent. We agree that the individual who signed the representation agreement is not crucial to determine whether the parties mutually assented to the agreement, and the Browns’ assertion that the trial court failed to permit “necessary discovery” regarding this issue lacks merit.

Morgan & Morgan has not identified the natural person who signed the [a]greement

on its behalf, there is no dispute that someone signed on behalf of Morgan & Morgan

and, facially, the [a]greement contains signatures on behalf of both [p]arties.”4 These

signatures alone demonstrate that the parties mutually assented to the representation

agreement: “The affixing of their signatures to the instrument by the parties shows

their mutual assent to its terms and provisions.” Extremity Healthcare v. Access to Care

Am., 339 Ga. App. 246, 252(1) (793 SE2d 529) (2016) (citation and punctuation

omitted). See also Ayer v. Norfolk Timber Inv., 291 Ga. App. 409, 411-12(1) (662 SE2d

221) (2008) (noting that “any writing … in which the party charged admits, over his

signature, all of the terms of the contract insisted upon by the opposite party, is

In their reply brief, the Browns raise an argument regarding Morgan & Morgan Atlanta’s ability to enforce the arbitration provision as a non-signatory to the representation agreement. We will not consider this argument because it was not enumerated as error or argued in the Browns’ initial appellate brief. As a general rule, “[a]n appellant who raises an argument for the first time in a reply brief is not entitled to have that argument considered.” City of Atlanta v. Mays, 301 Ga. 367, 372(3) (801 SE2d 1) (2017); Amendia, Inc. v. Robinson, _ Ga. App. _ (928 SE2d 770), A26A0419, slip op. at 16(4) (Ga. App. Apr. 7, 2026) (refusing to consider legal and factual arguments raised for the first time in a reply brief). “Once an error has been abandoned in an initial brief, it cannot be resurrected by supplying argument and citation of authority in a reply brief.” Befekadu v. Addis Int’l Money Transfer, 332 Ga. App. 103, 108(2) (772 SE2d 785) (2015) (citation omitted).

sufficient” to prove his assent to the contractual terms) (citation and punctuation

omitted).

Moreover, the trial court also found mutual assent through performance,

specifically concluding that “Morgan & Morgan represented [Brian] Brown pursuant

to the [r]epresentation [a]greement that he signed.” Indeed, a signature is not the only

way to show mutual assent. A party’s acceptance can be inferred by performance

under the contract: “Assent to the terms of a contract may be given other than by

signatures. If one of the parties has not signed, his acceptance is inferred from a

performance under the contract, in part or in full, and he becomes bound.” Burson v.

Milton Hall Surgical Assocs., 343 Ga. App. 159, 167(2) (806 SE2d 239) (2017) (citation

and punctuation omitted). “Written signature to a contract is to afford mutuality, but

is not the only method of obtaining mutuality. Part performance by both parties

satisfies the requisites of mutuality and the statute of frauds.” Atlanta v. Foster &

Cooper, Inc., 136 Ga. App. 159, 160(1) (220 SE2d 724) (1975). Accord Lankford v.

Orkin Exterminating Co., 266 Ga. App. 228, 229(1) (597 SE2d 470) (2004) (“The law

is plain that by accepting benefits and making payments under the contract, appellants

ratified it even if the signature was irregular.”); Valiant Steel & Equip. v. Roadway

Express, 205 Ga. App. 237, 240(3) (421 SE2d 773) (1992) (“If one of the parties has

not signed, his acceptance is inferred from a performance under the contract, in part

or in full, and he becomes bound.”) (citations and punctuation omitted). Here, the

trial court correctly held that Morgan & Morgan Jacksonville’s performance in

representing Brian independently established mutual assent, and we find no clear error

in this factual finding. See Brown, 373 Ga. App. at 468(1)(d) n. 5 (noting that this

Court defers to the trial court’s factual findings unless they are clearly erroneous).

After considering the writings and actions of the parties surrounding the making

of the representation agreement, it is clear that there was a meeting of the minds upon

the rights and obligations relating to the agreement. Brian and Morgan & Morgan

Jacksonville signed the representation agreement that included the arbitration

provision, Morgan & Morgan Jacksonville performed under the contract, and Brian

accepted the settlement check procured by Morgan & Morgan Jacksonville on his

behalf. Accordingly, we agree with the trial court that the circumstances demonstrate

that the parties intended to form and, in fact, formed a binding contract, and this

contract contained a provision requiring arbitration of any claims between them.

2. The Browns also take issue with the trial court’s conclusion that OCGA § 9-9-2(c)(9) does not apply to render the arbitration provision in the representation

agreement unenforceable. We find no merit in this argument.

OCGA § 9-9-2(c)(9) provides that arbitration clauses in employment contracts are

not enforceable “unless the clause agreeing to arbitrate is initialed by all signatories

at the time of the execution of the agreement[.]” See Vasudeva v. Dagnew, 361 Ga.

App. 244, 247(1) (862 SE2d 326) (2021) (“Under OCGA § 9-9-2(c)(9), an arbitration

clause in an employment contract is unenforceable unless the clause is initialed by all

signatories at the time of the execution of the agreement.”) (citation and punctuation

omitted). The Browns argue that the plain terms of the representation agreement

drafted by the law firms and signed by Brian show that it is one for employment. As

evidence that the agreement is one for employment, the Browns point to the following:

(i) just above the signature line on the representation agreement, the document reads,

“The above employment is hereby accepted upon the terms and conditions stated

herein.” and (ii) the agreement includes a provision wherein Brian “agree[s] to

reimburse the attorneys for all advanced costs immediately upon any termination of

the attorneys’ employment.” (Emphasis omitted.) Based on these phrases, the

Browns contend that there is no ambiguity that the representation agreement is an

employment contract, and to the extent that the law firms claim there is any

ambiguity, the agreement was drafted by a sophisticated party, a law firm, and is to be

construed against the drafter.

Contrary to the Browns’ assertions, however, the representation agreement at

issue in this case is not an employment contract. In Sams v. Olah, 225 Ga. 497, 506(8)

(169 SE2d 790) (1969), the Georgia Supreme Court specifically considered whether

a lawyer could be considered an “employee” of a client. The Court held:

The State Bar of Georgia is not a labor organization, the lawyer is not an

employee, nor is the client an employer, within the meaning of the Act.

The engagement of counsel does not create the relation of master and

servant[.] The employment carries with it duties and obligations apart

from serving the client. He represents the client. The attorney not only

serves his client, but the court also, and through the court he serves in a

measure the public.

Id. (citation and punctuation omitted). See also Vollrath v. Collins, 272 Ga. 601, 603(2)

(533 SE2d 57) (2000) (“The engagement of counsel does not create the relation of

master and servant. A lawyer is employed, not hired. The employment carries with it

duties and obligations apart from serving the client. He represents the client. An

attorney at law acts as an agent for his client/principal.”) (citations and punctuation

omitted). Our Supreme Court reiterated this ruling, explaining that the Supreme

Court regulates the practice of law

to assure the public that the practice of law will be a professional service

and not simply a commercial enterprise. The primary distinction is that

a profession is a calling which demands adherence to the public interest

as the foremost obligation of the practitioner. As an officer of the court,

the lawyer’s obligation to the courts and the public is as significant as the

obligation to clients.

AFLAC, Inc. v. Williams, 264 Ga. 351, 352-53(1) (444 SE2d 314) (1994) (citations and

punctuation omitted). We agree with the trial court that under this settled law an

attorney is not an employee of a client. Neither have the Browns cited any authority

demonstrating that a law firm is an “employee” of a client. See generally George v.

Ashland-Warren, Inc., 254 Ga. 95, 96(1) (326 SE2d 744) (1985) (holding that “a

corporation is not an ‘employee’” for purposes of the Workers’ Compensation Act);

Dep’t of Human Res. v. Johnson, 264 Ga. App. 730, 734(1) (592 SE2d 124) (2003)

(holding that a corporation could not be an “employee” under the Georgia Tort

Claims Act).

Moreover, despite the Browns’ argument that the four-page representation

agreement “identifies itself, on three separate occasions, as one for ‘employment[,]’”

they have failed to demonstrate that Brian was Morgan & Morgan Jacksonville’s

employer. The record instead establishes that the law firm was an independent

contractor, and OCGA § 9-9-2(c)(9) does not apply to such employment contracts

under Georgia law. See jOjA Partners, LLC v. Abrams Props., 262 Ga. App. 209, 212(3)

(585 SE2d 168) (2003) (holding that OCGA § 9-9-2(c)(9) strictly applies only to

employees and not independent contractors). Under Georgia law, employee status

rests on the “substance of the parties’ relationship, not [the parties’] characterization

of the relationship[.]” Eudy v. Universal Wrestling Corp., 272 Ga. App. 142, 145(2)

(611 SE2d 770) (2005). Indeed, the word “employment” is a generic term that can be

used to refer to the employment of employees or independent contractors. See, e.g.,

Ga. Messenger Serv. v. Bradley, 311 Ga. App. 148, 150(1) (715 SE2d 699) (2011)

(“Here, the employment contract between Wise and GMS designates Wise as an

independent contractor.”); Owens v. BarclaysAmerican/Mortg. Corp., 218 Ga. App.

160, 161(1) (460 SE2d 835) (1995) (“In an employer-independent contractor

relationship, the employer has the right merely to require results in conformity with

the employment agreement, and the independent contractor retains the right to

perform the work by his own means, method and manner.”) (citation and punctuation

omitted).

In determining whether the relationship of parties under a contract

for performance of labor is that of employer and servant or that of

employer and independent contractor, the chief test lies in whether the

contract gives, or the employer assumes, the right to control the time,

manner, and method of executing the work as distinguished from the

right merely to require certain definite results in conformity to the

contract.

Augusta Chronicle v. Woodall, 360 Ga. App. 576, 577(1) (859 SE2d 617) (2021) (citation

and punctuation omitted); accord Bradley, 311 Ga. App. at 150(1). In this case, Morgan

& Morgan Jacksonville is an independent contractor based on the substance of the

representation agreement. That agreement gave Brian no right to control Morgan &

Morgan Jacksonville’s work, but rather gave Morgan & Morgan Jacksonville broad

discretion to manage Brian’s representation. Morgan & Morgan Jacksonville was paid

on a contingency fee basis only if it was successful in representing the client, was given

discretion to file a lawsuit if warranted solely in its professional judgment, and had the

discretion to retain other counsel as it deemed necessary to represent Brian as its

client. In addition, there is no dispute that the representation agreement gave Morgan

& Morgan Jacksonville, not Brian, “the right to control the time, manner, and method

of executing the work[.]” Woodall, 360 Ga. App. at 577(1) (citation and punctuation

omitted). Accordingly, Morgan & Morgan Jacksonville was an independent contractor

at all times relevant to this lawsuit, and OCGA § 9-9-2(c)(9) does not apply. See jOjA

Partners, 262 Ga. App. at 212(3).

We agree with the trial court and conclude that the attorney-client

representation agreement in this case was not an employment contract subject to the

requirement of OCGA § 9-9-2(c)(9). Consequently, the Browns’ reliance on OCGA

§ 9-9-2(c)(9) is without merit.5

To the extent that the Browns attempt to expand this enumeration of error to include an argument that the representation agreement excludes claims relating to ethical grievances, we decline to address that argument. “Matters not enumerated as error will not be considered on appeal.” Adamson v. Sanders, 279 Ga. 187, 188 (611 SE2d 44) (2005). See also Complete Wiring Solutions v. Astra Group, 335 Ga. App. 723, 726 (781 SE2d 597) (2016) (holding that “arguments raised in the appellate brief are not made issues on appeal unless they are properly enumerated as error”) (citation and punctuation omitted). Moreover, the Browns have abandoned this argument by (i) consistently asserting that this case involves “legal malpractice,” (ii) failing to cross appeal the trial court’s determination that the case involved a legal “malpractice action” after arguing that the case was an “ethical grievance” exempt from the agreement to arbitrate malpractice disputes, and (ii) stating in supplemental briefing on remand that “[t]he only matters for this [trial c]ourt to consider on remand are (1) whether there was mutual assent to the agreement, and (2) whether the agreement

3. The Browns argue that the trial court erred in allowing the law firms to assert

on remand that the Federal Arbitration Act should apply in this case and preempt the

Georgia Arbitration Code. This argument misses the mark.

The trial court’s order specifically notes that “[d]ue to its conclusion that

OCGA § 9-9-2(c)(9) does not apply to the [r]epresentation [a]greement, this [c]ourt

need not address [the law firms’] alternative argument that application of OCGA § 9-9-2(c)(9) is preempted by the FAA.” Nonetheless, the court then proceeds to find

that the Federal Arbitration Act preempts OCGA § 9-9-2(c)(9). Having concluded

that the trial court properly found that OCGA § 9-9-2(c)(9) does not apply in this

case, we decline to address the validity of the trial court’s alternative holding

regarding the Federal Arbitration Act.

In short, the trial court did not err in granting Morgan & Morgan Atlanta’s

renewed motion to compel arbitration in this case involving Brian and Veronica

Brown.

pertained to employment under OCGA § 9-9-2. Determination of issues beyond these two specific directives arising out of the arbitration agreement, as commanded by the Georgia Court of Appeals, would be inappropriate.” See State v. Jackson, 295 Ga. 825, 827-28 (764 SE2d 395) (2014) (reversing the trial court’s grant of a motion for new trial post-remand on a ground that had been abandoned prior to the original ruling on the motion for new trial).

Case No. A26A1229

4. In this case, Brian Brown alone argues that the trial court erred in granting

Morgan & Morgan Jacksonville and Diamond’s motion to compel arbitration in the

same three material ways he and his wife argued in Case No. A26A1141: by (1) finding

mutual assent to the arbitration provision of the representation agreements; (2)

finding that the Georgia Arbitration Code did not render the arbitration provision in

the representation agreement unenforceable as one relating to terms and conditions

of employment; and (3) allowing the law firms to inject a new argument regarding the

Federal Arbitration Act. Because Brian’s arguments are identical in Case Nos.

A26A1141 and A26A1229, and no distinction is made between Morgan & Morgan

Atlanta and Morgan & Morgan Jacksonville, we affirm the trial court’s order granting

Morgan & Morgan Jacksonville

and Diamond’s renewed motion to compel arbitration.6

Judgments affirmed in both cases. Barnes, P. J., and Markle, J., concur.

As in Case No. A26A1141, Brian attempts to expand his enumerations of error to include an argument that the representation agreement excludes claims relating to ethical grievances. We likewise decline to address that argument in this case. As stated in footnote 5, “[m]atters not enumerated as error will not be considered on appeal.” Adamson, 279 Ga. at 188. See also Complete Wiring Solutions, 335 Ga. App. at 726. Moreover, as in Case No. A26A1141, Brian has abandoned this argument by (i) consistently asserting that this case involves legal “malpractice,” (ii) failing to cross appeal the trial court’s determination that the case involved a “legal malpractice action” after arguing that the case was an “ethical grievance” exempt from the agreement to arbitrate malpractice disputes, and (ii) stating in supplemental briefing on remand that “[t]he only matters for this [c]ourt to consider on remand are (1) whether there was mutual assent to the agreement, and (2) whether the agreement pertained to employment under OCGA § 9-9-2. Determination of issues beyond these two specific directives arising out of the arbitration agreement, as commanded by the Georgia Court of Appeals, would be inappropriate.” See Jackson, 295 Ga. at 827-28.

BRIAN BROWN v. MORGAN AND MORGAN, JACKSONVILLE, PLLC

Authorities cited

Opinion · public domain