South Point Retail Partners LLC v. North Am. Properties Atlanta

The arbitration clause in the parties' consulting and marketing agreement did not encompass the appellee's claim for $924,647, which appellant allegedly owed for certain pre-development costs associated with development of shopping center.

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This dispute arises from an agreement between South Point Retail Partners, LLC, and North American Properties Atlanta, Ltd. “NAP”. NAP filed a claim with the American Arbitration Association, alleging that South Point breached the agreement by failing to make certain payments when due. South Point then filed this action in the Superior Court of Fulton County, seeking a judgment declaring that the arbitration clause in the parties’ agreement does not encompass NAP’s claim and seeking to enjoin the arbitration pending adjudication of South Point’s declaratory judgment action. The trial court denied South Point’s motion for an injunction and granted NAP’s motion to dismiss South Point’s declaratory judgment action for failure to state a claim upon which relief can be granted. South Point appeals, contending that the trial court misconstrued the arbitration clause in the parties’ agreement and, consequently, erred in granting NAP’s motion to dismiss. For the reasons explained below, we reverse. “We review de novo the trial court’s grant of a motion to dismiss. A motion to dismiss may be granted only where a plaintiff would not be entitled to relief under any set of facts that could be proven in support of the plaintiff’s claim.” Citations and punctuation omitted. Johnson v. Bd. of Commrs., Bibb County , 302 Ga. App. 266 __SE2d__ 2010.

For the purpose of evaluating NAP’s motion to dismiss, we assume that South Point can prove the following facts as averred in its complaint. See id. In 2005, investors organized South Point to develop a shopping center in McDonough. South Point and NAP entered a “pre-development” agreement under which NAP provided certain services to South Point, including applying for rezoning and negotiating with certain anchor retailers.

South Point Retail Partners LLC v. North Am. Properties Atlanta

The arbitration clause in the parties' consulting and marketing agreement did not encompass the appellee's claim for $924,647, which appellant allegedly owed for certain pre-development costs associated with development of shopping center.

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