We granted defendant-appellant jOjA Partners, LLC’s “jOjA” application for discretionary appeal to consider whether the Cobb County Superior Court erred in denying jOjA’s motion to compel arbitration and motion for immediate stay in the underlying action. Therein, plaintiff-appellee Abrams Properties, Inc. seeks a declaratory judgment, damages, and OCGA § 13-6-11 attorney fees against jOjA, averring breach of contract, breach of fiduciary duties, and conversion. On appeal, jOjA contends that the superior court erred in finding: the Asset Management Agreement “Agreement” in issue showed that the parties intended arbitration to serve as an optional rather than exclusive remedy for disputes arising under the Agreement; the termination of the Agreement before electing arbitration vitiated any requirement to arbitrate; no duty to arbitrate obtained because the parties failed to initial the arbitration provisions of the Agreement under OCGA § 9-9-2 c; and the right to compel arbitration was waived for jOjA’s failure to “diligently and in good faith attempt to resolve” the dispute of the parties before electing to serve its arbitration demand. Because the findings of the superior court are in error, we reverse. On December 22, 2000, jOjA and Abrams entered into the Agreement by which jOjA was engaged as an independent contractor to provide certain services relating to the administration, management, supervision, leasing, and disposition of Abram’s real estate assets. Evidence of a dispute between the parties arose on August 12, 2002, when by letter to Abrams, subject: Notice of Failure to Perform Under Asset Management Agreement, jOjA notified Abrams that it was in breach of the Agreement for failure to pay the full commission owing upon its sale of a Florida shopping center on Abrams’ behalf. The letter gave Abrams ten days to cure. On August 16, 2002, Abrams sent jOjA its “Notice of Failure to Perform Duties and Obligations Under the Contract” by letter, contending that jOjA had breached seven of its duties under the Agreement. On August 22, 2002, Abrams further wrote jOjA in response to its August 12, 2002 letter, denying any breach of the Agreement and demanding withdrawal of “improper notice and demand for payment.” The following day, jOjA notified Abrams of its termination of the Agreement and election to pursue arbitration in the event the parties cannot “amicably resolve this dispute within thirty 30 days, i. e. on or before September 22, 2002.” On September 20, 2002, Abrams terminated the Agreement and filed the instant action in the trial court. Five days later, jOjA filed its motion to compel arbitration and motion for stay. On October 16, 2002, jOjA timely answered denying the material allegations of Abrams’ complaint and counterclaimed seeking damages, punitive damages, and OCGA § 13-6-11 attorney fees, averring breach of the Agreement from its perspective as well as tortious interference with business/contractual relations. Held :
1. The superior court erred in concluding that the permissive use of the word “may” rather than the obligatory word “shall” in Article 12 of the Agreement, made arbitration an optional remedy under the Agreement.
