Kent and Andrea Laird sued Peter Risbergs for fraud and defective workmanship in connection with a home built by Risbergs and purchased by the Lairds. After a year of litigation, Risbergs demanded arbitration based on a provision in a warranty agreement issued to the Lairds in connection with the home sale. The trial court ordered the case to arbitration, which the Lairds appeal. We hold that since the evidence reveals that the Lairds did not sue pursuant to the warranty agreement and since the remaining uninitialed arbitration provision in the sales contract under which contract the Lairds did sue was strictly voluntary, the trial court erred in ordering the parties to arbitration as opposed to allowing the case to proceed to trial. 1. Similar to our review of the grant of summary judgment, which involves the elimination of all genuine issues of material fact, the standard of review from the grant of a motion to compel arbitration is whether the trial court was correct as a matter of law. Tigner v. Shearson-Lehman Hutton, Inc. , 201 Ga. App. 713, 715 411 SE2d 800 1991. The dispositive issue on appeal here is whether the Lairds can be held to the mandatory arbitration provision in the warranty agreement in this case, which agreement the Lairds did not use as a basis for their lawsuit. We hold that they cannot, and that the trial court therefore erred in ordering the Lairds to submit to arbitration.
The record reveals that on June 15, 1998, the Lairds entered a New Construction Purchase and Sale Agreement the Agreement with Risbergs for the construction and purchase of a new home. The Agreement provided that Risbergs would supply to the Lairds at closing or at a reasonable time thereafter a Quality Builder’s 2/10 Warranty the Warranty, and that the Lairds would waive any implied warranties in favor of those provided in the express Warranty. The only reference to arbitration in the Agreement was as follows: All parties to this Agreement acknowledge that, in the event of a dispute arising after execution of this Agreement, there is a voluntary “Binding Arbitration Procedure” available to the parties to this Agreement in accordance with the Official Code of Georgia O.C.G.A. Sec. 9-9-1 et seq., provided all parties to this Agreement concur in writing to abide by same . Emphasis supplied. The portions of the Agreement referencing the Warranty made no mention of any additional arbitration provisions that would be included as a part of the Warranty. It is further undisputed that the Lairds did not mark their initials next to the arbitration clause in the Agreement.
