SECOND DIVISION

ANDREWS, P. J.,

MILLER and BRANCH, 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.

http://www.gaappeals.us/rules/

July 10, 2015

In the Court of Appeals of Georgia

A15A0258. DBGS, LLC d/b/a DIRECTBUY OF GREENVILLE v.

KORMANIK et al.

MILLER, Judge.

Chris and Mary Kormanik sued DBGS, LLC d/b/a DirectBuy of Greenville

(“DirectBuy”) for negligent misrepresentation because they were unhappy with the

work performed by a contractor recommended to themby DirectBuy. DirectBuy filed

a motion to compel arbitration, which the trial court denied on the ground that the

Kormaniks’ claim did not fall within the scope of the arbitration clause in their

membership agreement with DirectBuy. DirectBuy appeals, contending that the trial

court erred in denying its motion to compel arbitration. For the reasons that follow,

we reverse. 
“The question of arbitrability, i.e., whether an agreement creates a duty for the

parties to arbitrate the particular grievance, is undeniably an issue for judicial

determination.” (Footnote omitted.) Order Homes, LLC v. Iverson, 300 Ga. App. 332,

332-333 (685 SE2d 304) (2009). In reviewing the denial of a motion to compel

arbitration, we determine whether the trial court was correct as a matter of law. See

id. 

The undisputed facts show that DirectBuy is a South Carolina company that

sells home furnishings and fixtures to its members. The Kormaniks are Georgia

residents. On March 17, 2012, the Kormaniks entered into a membership agreement

or contract with DirectBuy. The membership agreement provided:

Our Club staff and our Club Ownersstand ready to help you resolve any

problem you may encounter with your Membership or with any order

you place through DirectBuy, but if we are not able to achieve a

satisfactory resolution for you, you and we agree to avoid the needless

delays, expenses, and uncertainties of court proceedings by submitting

all such unresolved disputes exclusively to private, expedited, and

confidential arbitration[.]

(Emphasis supplied.) 

The Kormaniks purchased products and materials for their home renovation

from DirectBuy. DirectBuy also provided the Kormaniks with a list of contractors

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that offered discounts to DirectBuy members. From this list, the Kormaniks selected

a contractor for their home renovation. Dissatisfied with the contractor’s work, the

Kormaniks filed suit against him and DirectBuy.

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Thereafter, DirectBuy sought to arbitrate the Kormaniks’ claim. After the

Kormaniks refused, DirectBuy filed a motion to compel arbitration, which the trial

court denied on the ground that the Kormaniks’ claimfor negligent misrepresentation

did not involve their DirectBuy membership or relate to a problem with their order.

We granted interlocutory review, and this appeal ensued. 

In related enumerations of error, DirectBuy contends that the trial court erred

in denying its motion to compel arbitration. We agree. 

“Arbitration in Georgia is a matter of contract. As such, the construction of an

arbitration clause in a contract is subject to the ordinary rules of contract

construction.” (Citation and punctuation omitted.) Wedemeyer v. Gulfstream

Aerospace Corp., 324 Ga. App. 47, 50 (1) (749 SE2d 241) (2013).

Georgia has a clear public policy in favor of arbitration. See Order Homes,

supra, 300 Ga. App. at 334-335 (1); see also OCGA § 9-9-1 et seq. Under OCGA §

1 The Kormaniks also filed suit against the bank that financed their home

renovation. 

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9-9-6 (a), a party may move the court to compel arbitration, and if “there is no

substantial issue concerning the validity of the agreement to submit to arbitration or

compliance therewith and the claim sought to be arbitrated is not barred by limitation

of time,” the trial courtshall order the parties to arbitrate. Since Georgia’s arbitration

code closely tracks federal arbitration law, we look to federal cases for guidance in

construing our own arbitration statutes.

2 See Order Homes, LLC, supra, 300 Ga. App.

at 335 (1).

As a matter of federal law, any doubts concerning the scope of arbitrable issues

should be resolved in favor of arbitration. See Moses H. Cone Mem. Hosp. v. Mercury

Constr. Corp., 460 U. S. 1, 24-25 (IV) (C) (103 SCt 927, 74 LE2d 765) (1983);

DiMambro-NorthendAssocs. v. Blanck-Alvarez, Inc., 251 Ga. 704, 707 (1)(309 SE2d

364) (1983) (adopting the United State Supreme Court’s construction of the scope

and purpose of the Federal Arbitration Act). Arbitration “should not be denied unless

it may be said with positive assurance that the arbitration clause is not susceptible of

2 Moreover, because the Kormaniks are Georgia residents and DirectBuy is a

South Carolina company, the Federal Arbitration Act also applies to this case. See

American Gen. Financial Svcs. v. Jape, 291 Ga. 637, 638 (1) (732 SE2d 746) (2012)

(The Federal Arbitration Act “applies in state and federal courts to all contracts

containing an arbitration clause that involves or affects interstate commerce.”)

(citation omitted); see also 9 USC §§ 1; 2.

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an interpretation that covers the asserted dispute.” (Citations omitted.) AT&T

Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 650 (II)

(106 SCt 1415, 89 LE2d 648) (1986). 

“In determining whether a particular claimfalls within the scope of the parties’

arbitration agreement, we focus on the factual allegationsin the complaint rather than

the legal causes of action asserted.” (Citation omitted.) Genesco, Inc. v. T. Kakiuchi

& Co., Ltd., 815 F2d 840, 846 (II) (2nd Cir. 1987). If the allegations underlying the

claims “touch matters” covered by the parties’ agreement, then those claims must be

arbitrated. See id. 

Here, the Kormaniks assert in their complaint that they purchased 90 percent

of the products and materials for their home renovation from DirectBuy and selected

a contractor from DirectBuy’s list of preferred installers. The Kormaniks further

contend that DirectBuy negligently misrepresented that the contractor was qualified

and the contractor’s work was unsatisfactory. The Kormaniks argue that the word

“membership” as used in the arbitration clause is limited to membership benefits and

privileges and does not include DirectBuy’s recommendation of a contractor. Our

review of the record, however, shows that DirectBuy’s recommendation of a

contractor who provides discounts to its members is an added value or benefit of a

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DirectBuy membership. Thus, the Kormaniks’ allegations against DirectBuy touch

a matter — their DirectBuymembership — covered by the arbitration agreement. See

Genesco, supra, 815 F2d at 846 (II). Moreover, any doubts concerning the scope of

arbitrable issuesshould be resolved in favor of arbitration. See Moses H. Cone Mem.

Hosp., supra, 460 U. S. at 24-25 (IV) (C). Accordingly, the Kormaniks’ claim must

be arbitrated and the trial court erred in denying DirectBuy’s motion to compel

arbitration. 

Judgment reversed. Andrews, P. J., concurs. Branch, J., concurs in judgment

only.

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