Odion v. Avesis, Inc., 327 Ga. App. 443

Odion, pro se, sues Avesis entities alleging breach of contract, misrepresentation, fraud, conspiracy, tortious interference, and constitutional violations related to a 2007 audit and provider status actions.
Parties’ agreement contains a broad arbitration clause and an explicit injunctive-relief exception allowing court action to enforce the contract.
Trial court dismissed with prejudice, holding the claims fell within compulsory arbitration and were not medical-malpractice exceptions.
Odion argued waiver of arbitration rights, medical-malpractice exception, and that injunctive-relief claims were not arbitrable; Avesis answered and moved to dismiss.
On appeal, the court: (i) dismisses the corporate entities from Odion’s appeal for lack of licensed representation; (ii) reverses dismissal of injunctive-relief claims as non-arbitrable; (iii) vacates and remands remaining arbitrable claims for non-prejudicial handling; (iv) addresses waiver and procedure issues; (v) notes lack of preservation on disqualification claim.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are injunctive-relief claims arbitrable?	Odion—injunctive relief falls outside arbitration per agreement.	Avesis—arbitration clause covers disputes and injunctive relief is subject to arbitration.	Injunctive-relief claims are not arbitrable; reversed with respect to these claims.
Are the remaining breach, tort, and constitutional claims arbitrable?	Odion—remaining claims may be outside arbitration due to exceptions.	Avesis—remaining claims arise from the contract and are arbitrable.	Remaining claims are subject to arbitration; trial court correctly applied arbitration to them.
Was there a waiver of the arbitration clause by Avesis?	Odion—Avesis waived by inconsistent conduct.	Avesis invoked arbitration promptly and did not waive rights.	Waiver did not occur; arbitration rights were not extinguished.
Should the arbitrable claims have been dismissed without prejudice?	Odion—dismissal should be without prejudice to arbitrate later.	Dismissal with prejudice consistent with final disposition.	Dismissal should be without prejudice; remand for proceedings not inconsistent with arbitration.

Helms v. Franklin Builders, 305 Ga. App. 863 (Ga. Ct. App. 2010) (Arbitrability and dismissal considerations in contract disputes)
Nat. Parents’ Resource Institute for Drug Ed. v. Peachtree Hotel Co., 201 Ga. App. 637 (Ga. Ct. App. 1991) (Permissible responses to arbitrable claims, including dismissal)
Weyant v. MacIntyre, 211 Ga. App. 281 (Ga. Ct. App. 1993) (Waiver analysis for arbitration rights when actions inconsistent with arbitration)
McCormick-Morgan, Inc. v. Whitehead Elec. Co., 179 Ga. App. 10 (Ga. Ct. App. 1986) (Arbitration-demand requirements and waiver considerations)
Tillman Group v. Keith, 201 Ga. App. 680 (Ga. Ct. App. 1991) (Waiver and timing of invoking arbitration rights)
Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (Ga. 1986) (Conflict between arbitration testimony and arbitration rights)
Chambers v. Citizens & Southern Nat. Bank, 242 Ga. 498 (Ga. 1978) (Arbitration-related defenses and remedies)
Ransom v. Holman, 305 Ga. App. 533 (Ga. Ct. App. 2010) (Vacating dismissal and remanding when appropriate)
Sampson v. Haywire Ventures, 278 Ga. App. 525 (Ga. Ct. App. 2006) (Remand when dismissal proper but prejudicial)