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AAA Restoration Co. v. Peek

Court of Appeals of Georgia

July 14, 2015

AAA RESTORATION COMPANY, INC.
v.
PEEK

Arbitration. Henry Superior Court. Before Judge Amero.

Giacoma, Schleicher, Roberts & Daughdrill, Brian E. Daughdrill, Matthew Momtahan, for appellant.

Glover & Davis, Peter A. Durham, for appellee.

OPINION

Page 628

Branch, Judge.

AAA Restoration Company, Inc. (" AAA" ), appeals from an order of the Henry County Superior Court denying AAA's motion to stay the lawsuit brought against it by Florence Dianne Peek and to compel arbitration of Peek's claims against AAA. AAA contends that the trial court erred in finding that a corporate misnomer as to the arbitral forum designated in the arbitration clause of the parties' agreement meant that the arbitral forum was unavailable. AAA further argues that even if the parties' designated arbitral forum is unavailable, the trial court misapplied our decision in Miller v. GGNSC Atlanta, 323 Ga.App. 114 (746 S.E.2d 680) (2013), to find that this unavailability rendered

Page 629

the arbitration clause void and unenforceable and that therefore the appointment of a substitute arbitrator pursuant to OCGA § 9-9-7 (b) was not required. For reasons explained more fully below, we agree that the trial court erred in finding the arbitration clause unenforceable and in refusing to appoint a substitute arbitrator. Accordingly, we reverse the trial court's order and remand the case for entry of an order requiring the parties to arbitrate Peek's claims against AAA and appointing a substitute arbitrator.

Because " [t]he question of whether a valid and enforceable arbitration agreement exists ... represents a question of law," we review de novo a trial court's order granting or denying a motion to compel arbitration. Yates v. CACV of Colorado, 303 Ga.App. 425 (693 S.E.2d 629) (2010) (citation and footnote omitted).

The facts relevant to this appeal are undisputed. On July 16, 2013, a fire occurred at Peek's residence in Newnan, resulting in the destruction of a significant portion of the home. Approximately three weeks later, Peek signed a written agreement (" the Agreement" ) with AAA for the demolition of her fire-damaged residence and for the construction of a new home on the same lot. The Agreement contained an arbitration clause, initialed by both Peek and a representative of AAA, which provides:

All disputes arising from or related to this Agreement shall be resolved by binding arbitration in accordance with the Construction Arbitration Association (of Atlanta) according to their Commercial rules. The locale of any such arbitration shall be Atlanta, Fulton County, Georgia. The dispute shall be heard and decided by a single arbitrator selected pursuant to the applicable arbitration rules.

[333 Ga.App. 153] A dispute eventually arose between the parties and in March 2014, Peek filed suit against AAA asserting claims for rescission, fraud, negligent misrepresentation, violations of the Deceptive Trade Practices Toward the Elderly Act (OCGA § 10-1-850 et seq.), violations of the Fair Business Practices Act (OCGA § 10-1-390 et seq.), negligence, intentional infliction of emotional distress, and conversion. Peek also sought declaratory relief, attorney fees, and punitive damages. In its answer, AAA asserted that the trial court lacked jurisdiction, as the Agreement required the parties to arbitrate their dispute. AAA also filed a motion to dismiss for lack of jurisdiction together with a motion to stay the action and compel arbitration. In her response, Peek asserted that the arbitration clause was void and unenforceable because the designated arbitral forum, Construction Arbitration Association (of Atlanta), did not exist. AAA then filed a reply in which it claimed that it intended the Agreement to designate " Construction Arbitration Associates, Ltd.," as the arbitrator. In support of this assertion, AAA submitted the affidavit of its assistant vice president, Michael McCune. McCune averred that " AAA has always understood the [Agreement's arbitration clause] to mandate the arbitration of any disputes between the parties to be before Construction Arbitration Associates, Ltd." ; and that " it was the intent of AAA to resolve any disputes between AAA and Peek through Construction Arbitration Associates, Ltd., as that was the pattern and business practice of AAA."

Following a hearing on the motion to compel arbitration, the trial court denied the same. At the request of AAA, and over the objection of Peek, the trial court certified its order for immediate review. This Court then granted AAA's application for an interlocutory appeal.

1. AAA first argues that, as evidenced by the affidavit of AAA's vice president, the arbitration clause simply misidentifies Construction Arbitration Associates, Ltd., as Construction Arbitration Association (of Atlanta). AAA further contends that this Court is free to correct the misnomer in the Agreement's arbitration clause and ...


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