author: Branch, Judge.

text:
    A13A0038.
    McGEE et al. v. PATTERSON et al.
    (746 SE2d 719)
   Branch, Judge.

Willie and Audrey McGee filed suit against the members of the board of directors of their homeowner’s association alleging that the board members breached the association’s declaration of covenants, breached their duty of good faith and fair dealing, and intentionally inflicted emotional distress on the McGees. The McGees, acting pro se at most times, sought damages, reimbursement of certain association assessments, attorney fees, and other relief. Following cross-motions for summary judgment, the trial court entered a final order in which it denied the McGees’ motion, granted the defendants’ motion, ordered the McGees to pay unpaid assessments and late fees, and warned the McGees that if they filed any additional suits that “lack merit,” they would be “punishable by the full contempt powers of [the] Court, including the potential award of attorneys’ fees.” We hold that the trial court’s order contains several errors of fact and law, which require us to reverse in part.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

Construed in favor of the McGees, the record shows that the McGees are homeowners in the Magnolia Estates subdivision located in Fulton County. In April 2006, the subdivision’s developer, Ross Mundy Custom Homes, Inc. (“Ross Mundy” or the “Declarant”), recorded a “Declaration of Protective Covenants” for Magnolia Estates (the “Covenants”), which became effective immediately and binding upon all homeowners. Section 5.2 of the Covenants provides that when 75 percent of the lots in the development had been conveyed to the homeowners, the Magnolia Estates Homeowner’s Association (the “MEHOA”) would be formed. Although the record does not show when or even whether the 75 percent requirement was met or precisely when the MEHOA was formed, it is undisputed that it was formed by May or June 2008. The initial board of directors was comprised of Anthony Holton, president; Connie Hill, vice president; Victoria White, secretary; and Gladys Kendricks, treasurer.

Under Article 6 of the Covenants, the MEHOA is authorized to assess the owners for the purpose of “promoting the health, safety, welfare, common benefit, and enjoyment of the Owners and the maintenance of the [common areas].” The Covenants provide that each lot owner is required to pay annual dues “to provide for the continued attractiveness of the Development and to provide for sufficient funding of the Homeowner’s Association.” The Covenants initially provided for assessments of $200 per year for each lot owner but granted the board authority to increase the assessments as necessary through the annual budgeting process.

In 2009, Mr. McGee, pro se, filed suit in Fulton County Magistrate Court against Hill, in her capacity as vice president of the MEHOA, alleging that she spent association funds without following the procedure required by the Covenants, refused to disclose association financial records, fraudulently used association funds for her personal use, and initiated a process to collect the 2009 assessment even though her term of office expired on December 31,2008. Because the action included an allegation of fraud, it was transferred to superior court. It appears that Mr. McGee thereafter added Anthony Holton as a defendant. Mr. McGee filed a second lawsuit against Holton and Hill on June 3, 2009.

On June 20,2009, board members Holton, Hill, and White, along with at least three members of the association and Audrey McGee, met to discuss the two pending suits against Holton and Hill. The board minutes state that the MEHOA would pay legal fees incurred by Holton and Hill in defense of the two suits. On July 27, 2009, via a check signed by Holton and Hill, the MEHOA paid the law firm of Bips and Bips $2,500 for legal fees incurred defending Holton and Hill in the suits filed by Mr. McGee.

Pamela Patterson became the president of the MEHOA for the year 2010, and, at the same time, Edward Quarles became an officer (either vice president or treasurer), appellant Audrey McGee became the secretary, and Maurice Scott became the member-at-large.

On April 12, 2010, one of Mr. McGee’s suits against Holton and Hill was dismissed with prejudice by the trial court. (Mr. McGee dismissed the other suit with prejudice on May 13, 2010.) At a meeting of the new board on April 22,2010, Patterson stated that the lawyers had advised her that the McGee litigation had been dropped, and she raised the issue of MEHOA paying the additional legal fees incurred by the former board members, Holton and Hill, since the time of the prior payment, but the issue was tabled at the request of some of those present. Another meeting was held two weeks later on the same topic, but it is unclear what transpired. Eventually Audrey McGee and Quarles resigned their board positions as a result of the conflict regarding the fees. They were succeeded by Gayle Holton as secretary and Kim Forbes as treasurer. The board made a second payment of attorney fees to Bips and Bips in late April 2010.

Patterson did not call for an election of new board members in the fall of 2010 as dictated by the Covenants. But the board met on September 27, 2010, and, for the 2011 budget, decided to raise the annual assessment to $400 per year per homeowner because of mounting expenses. The board purchased director and officer liability insurance on October 6, 2010. The board held a second meeting on October 16,2010, at which the topic of increased assessments for 2011 was again raised. The board thereafter distributed a letter to the homeowners that included a copy of the proposed 2011 budget along with a revenue and expense report for 2010 (through October 15, 2010). The 2010 revenue and expense report showed a line item for payment of legal fees incurred by previous MEHOA board members. The proposed 2011 budget included an increase in assessments to $400 per lot and an allocation for the board to purchase insurance for the members of the MEHOA board.

In November 2010, the board recorded an amendment to the Covenants, which, among other things, provided for annual dues of $400. On January 5,2011, the McGees recorded a document intended to strike the November amendment to the Covenants. In the spring of 2011, the board hired JWAManagement to perform some services for the board, including legal services for responding to the McGees’ attempt to strike the November amendment to the Covenants.

The McGees refused to pay the new assessment at the beginning of 2011 and have testified that they have no intention of paying. In April 2011, the board called a meeting of the homeowners and brought an armed security officer who approached the McGees with his gun clearly visible. The McGees felt intimidated, and it appeared to them that the board’s intent was to silence their opinion.

On June 15, 2011, the McGees filed the present action against Patterson, Gayle Holton, Forbes, and Scott; the McGees have twice amended their complaint. In their second amended complaint, the McGees allege that the 2011 board was illegitimate because the board members failed to hold a valid election in the fall of 2010 to elect a new board; rather, the board members continued to hold the positions to which they had been elected for the year 2010. In addition, the McGees identified seven actions taken by the 2010 and 2011 boards that they allege were improper and caused them harm: (1) the 2010 board filed an invalid amendment to the Covenants in November 2010; (2) the “illegitimate” 2011 board had no authority to hire JWA Management to respond to the McGees’ attempt to strike the invalid amendment; (3) the 2011 board lacked authority to raise the assessment from $200 to $400 without a proper meeting of the association or notice as required by the Covenants; (4) the 2011 board lacked authority to reimburse Mr. Holton and Hill for the legal fees incurred defending against Mr. McGee’s two earlier suits; (5) the 2011 board lacked authority to purchase director and officer liability insurance; (6) the 2011 board lacked authority to hire a management company to maintain the day-to-day operations of the MEHOA; and (7) the 2010 board allowed the erection of an advertising sign in violation of Section 3.15 of the Covenants. The McGees allege that these illegitimate actions taken by the 2010 and 2011 boards constitute a breach of contract, i.e., the Covenants. They further allege that by way of the same illegitimate actions, along with bringing an armed guard to a board meeting in 2011, the defendants breached their duty of good faith and fair dealing and intentionally inflicted emotional distress on the McGees. Finally, the McGees contend the defendants should be liable for the McGees’ attorney fees.

The defendants, represented by an attorney, answered the complaint, but acting pro se, the defendants also filed counterclaims of libel, slander, and tortious interference with contractual or business relations. The trial court granted summary judgment in favor of the defendants on the plaintiffs’ claims; the court’s order is silent regarding the counterclaims. We find several errors in the trial court’s order.

1. The McGees contend the trial court erred by concluding that because they have yet to pay the increased assessment, they “lack standing to bring the instant suit.” We agree.

The appellees, in their appellate brief, and the trial court, in an order drafted by defense counsel, cite Parker v. Clary Lakes Recreation Assn., 272 Ga. 44 (526 SE2d 838) (2000), for the proposition that because the McGees have not paid the increased assessment, they lack standing to file this action.

We first find that the appellees’ citation to Parker is plainly misleading. In Parker, the plaintiff sought an interlocutory injunction to prevent the association from collecting or retaining amended assessments because they “were illegal under the bylaws and restrictive covenants.” Id. at 44. Following a hearing, the trial court “expressed its intention to deny a preliminary injunction because [the plaintiff was] ‘in bad standing. He hasn’t paid any money, and he has no harm from this.’ ” Id. In affirming the trial court, the Supreme Court first cited the law that “a demonstration of irreparable injury is not an absolute prerequisite to interlocutory injunctive relief.” (Citations omitted; emphasis supplied.) Id. at 45. The Supreme Court then concluded that the trial court did not err because it did not require a showing of irreparable harm; instead it properly balanced the absence of harm to the plaintiff and the potential harm to the association that would arise from the grant of injunctive relief, as well as assessed the strength of the plaintiff’s legal position. Id. Thus, the decision in Parker is inapposite and plainly does not support the conclusion that the McGees lacked standing because they had not paid the increased assessment.

Second, the Covenants themselves expressly provide that “the individual property owners of Lots in said subdivision shall have the right to enforce these Covenants.” The right of the individual owners to enforce the Covenants is expressed repeatedly in the Covenants:

This Declaration and the Restrictions contained herein shall [inure] to the benefit of and shall [be] enforceable by (a) The Declarant . . . ; and (b) the [MEHOA], and (c) The Architectural Control Committee, and (d) each Owner, his legal representative, heirs, successors, and assigns. . . .
Nothing contained in these Covenants shall be deemed to affect or limit the right of . . . any Owner to enforce the restrictions by appropriate judicial proceedings or to recover damages. . . .
Any violation of any of the Covenants herein set forth by a person, firm or corporation obligated to comply with the same, in such event, any person entitled to protection under these Covenants may proceed at law or in equity or in any court, either civil or criminal, to prevent a reoccurrence of said violation or to recover damages for such violation.

(Emphasis supplied.) Accordingly, pursuant to the clear language of the Covenants, the McGees had standing to enforce the restrictive covenants. See, e.g., Mack v. Armstrong, 147 Wn. App. 522, 527-528 (6) (195 P3d 1027) (Wash. App. 2008) (covenants’ plain language granted standing to any owner to enforce the covenants in law or equity); see also Johnson v. Tlush, 468 S2d 1023, 1025 (Fla. App. 1985) (construction of private dock abutting common area violated rights of association property owners, “giving them standing to enforce [association] covenants and restrictions imposed by the developer for the benefit of all”). For the above reasons, the trial court erred by holding that the McGees lacked standing.

2. The McGees contend the trial court erred when it found as a matter of fact that the MEHOA was governed by bylaws in addition to the Covenants. We agree. There is no evidence in the record to show that any bylaws were adopted by the MEHOA after it was formed, and Mrs. McGee averred that bylaws were never adopted. The only related evidence in the record is an unauthenticated and unrecorded copy of bylaws that predate the formation of the MEHOA that were attached as an exhibit to the defendants’ brief in the trial court; as such, they are insufficient to support the trial court’s finding. See generally McRae v. Hogan, 317 Ga. App. 813, 816 (a), n. 2 (732 SE2d 853) (2012) (rules for admissibility of evidence, including rules for authentication of documents, apply in summary judgment proceedings). See also Pruett v. Commercial Bank of Ga., 206 Ga. App. 103, 105 (424 SE2d 284) (1992) (“unsworn exhibits attached to trial briefs in support of the motions for summary judgment” are insufficient to establish undisputed facts). The trial court therefore erred by determining as a matter of undisputed fact that the MEHOA was governed by bylaws in addition to the Covenants. Construing the evidence in the light most favorable to the McGees, there remains an issue of fact on this point.

3. The McGees contend the trial court erred by finding that their claim that the defendants failed to hold elections in the fall of 2010 for the 2011 board was without merit. There is an issue of fact on this issue.

The Covenants require annual meetings “on approximately the 1st day of October, to re-elect officers who shall serve for one year.” Audrey McGee deposed that the fall 2010 elections were never held and that the board members’ terms expired at the end of the year. The McGees contend that any action taken by the board after the board failed to hold elections in 2010 are invalid. The trial court held that regardless of whether elections were held, all of the defendants’ subsequent actions were authorized by the Georgia Nonprofit Corporation Code and that the defendants’ inability to hold an election resulted from the McGees’ own conduct.

(a) The trial court relied on the purported bylaws to find as a matter of fact that the MEHOA was organized as a nonprofit corporation under the Georgia Nonprofit Corporation Code, OCGA § 14-3-101 et seq. The court concluded that the failure of the board to hold the required elections was of no legal consequence because the board’s actions were proper under OCGA § 14-3-805 (d). But as shown in Division 2, an issue of fact remains regarding whether the MEHOA is governed by bylaws in addition to the Covenants. Consequently, the appellees have failed to place competent evidence in the record necessary to establish that the MEHOA is subject to the Georgia Nonprofit Corporation Code and OCGA § 14-3-805 (d) therein.

Improper elections or the failure to hold elections can strip the acting board members of their authority to act. See Hall v. Town Creek Neighborhood Assn., 320 Ga. App. 897, 900 (740 SE2d 816) (2013) (where board was never appointed, “there was no body that had the authority to levy the assessments at issue”). Accordingly, based on the record developed so far, the trial court erred by concluding that the board’s failure to follow the procedure for electing new board members was of no possible legal consequence based on OCGA § 14-3-805 (d).

(b) The defendants claim, and the trial court held, that as a matter of undisputed fact the McGees’ own actions thwarted the defendants’ ability to hold an election because no member of the association was willing to serve. But the record shows that there is also an issue of fact on this point. Mrs. McGee, who had been on the nominating committee in the past, specifically averred that she provided the board information about potential residents willing to serve on the board.

(c) Although the trial court erred on the 2011 election issue addressed in this Division, the effect of the error is limited by an admission by the McGees. The McGees state in their appellate brief that the 2010 board was properly elected, and Mrs. McGee deposed that the 2010 board was authorized to serve until December 31,2010. It follows that the McGees concede that none of the actions taken by the 2010 board prior to December 31, 2010, are invalid as a result of the failure to hold elections for the 2011 board.

In sum, there remain issues of fact and law regarding the validity of the 2011 board and its actions subsequent to December 31, 2010.

4. The McGees contend that the trial court erred by granting summary judgment on their breach of contract claim that the defendants improperly increased the assessment to $400 by failing to provide the McGees proper notice of the increase as required by the Covenants. There is an issue of fact here, as well.

(a) Section 6.3 of the Covenants authorizes the board to increase the assessments as necessary through the annual budgeting process, but that process requires the board to give notice to the homeowners of the new budget and assessment 30 days prior to the end of the fiscal year:

Should an increase in the dues be necessary in the future, the Board of the Association shall prepare a budget covering the estimated costs of operating the Association for the coming year. . . . The board shall deliver to each member a copy of the budget and a notice of assessment for the following year at least 30 days prior to the end of the Association’s fiscal year. The budget and the assessment shall become effective unless disapproved at a meeting by a majority of the Total Association Vote. If the membership disapproves the proposed budget or the Board fails for any reason so to determine the budget for the succeeding year, then and until such time as a budget shall have been determined as provided herein, the budget in effect for the then current year shall continue for the succeeding year.

(Emphasis supplied.)

Under the rules of contract interpretation, this Court must attempt to give meaning to all provisions of the contract and look to “the whole contract... in arriving at the construction of any part.” OCGA § 13-2-2 (4); see Horwitz v. Weil, 275 Ga. 467, 468 (569 SE2d 515) (2002). First, the covenant provides that the board “shall” provide the requisite notice. In general, the use of the term “shall” indicates a command or a mandatory requirement. See generally Cumrine v. IPG, Inc., 186 Ga. App. 384, 387 (1) (367 SE2d 581) (1988) (construing the word “shall” in a buy-sell agreement as a command); Alimenta Processing Corp. v. South Ga. Pecan Co., 185 Ga. App. 330, 331 (364 SE2d 84) (1987) (construing the word “shall” in a lease agreement as “mandatory”). Moreover, the final clause of the covenant provides the remedy for failure. It states that if the board fails “for any reason so to determine the budget... then and until such time as a budget shall have been determined as provided herein, the budget in effect for the then current year shall continue for the succeeding year.” The two highlighted phrases relate back to the entire procedure for establishing a new budget/increased assessment and thereby provide that a failure to follow the procedure, including providing the notice required to each member of the association, invalidates any attempted increase. Thus, construed as a whole, the covenant quoted above mandates that proper notice be given in order for the board to raise the assessment.

The McGees contend the association’s fiscal year ended on September 30 and that they did not receive a copy of the budget and a notice of assessment for the following year at least 30 days prior to the end of the 2010 fiscal year. But there is an issue of fact regarding this assertion because neither party has introduced any evidence to establish the association’s fiscal year — whether ending on September 30 or December 31, and we find none in the record. There is, therefore, an issue of fact as to whether the McGees received a timely copy of the 2011 budget and a notice of assessment as required by the Covenants in order for the MEHOA to raise the assessments.

(b) The issue of fact regarding notice of an increased assessment affects all actions that the board attempted to take as a part of the 2011 budget process but not those taken independently of that action by the 2010 board prior to December 31, 2010. The affected actions would obviously include the increase in assessment to $400. Because the issue has not been developed or addressed below, we leave it for the finder of fact to determine whether certain other board actions about which the McGees complain were a part of the 2011 budget process, such as the board’s decision to indemnify past board members for legal fees, the board’s decision to purchase director and officer liability insurance, the board’s decision to hire JWA Management, and the board’s decision to pay additional legal fees to defend against the McGees’ attempt to strike an amendment to the Covenants.

5. The McGees assert that the trial court erred by granting summary judgment on their claim of a breach of good faith and fair dealing. The McGees’ claim is based on the defendants’ failure to give notice of the proposed 2011 budget as required by the Covenants.

“Every contract implies a covenant of good faith and fair dealing in the contract’s performance and enforcement____[B]ut the covenant cannot be breached apart from the contract provisions it modifies and therefore cannot provide an independent basis for liability.” (Citations omitted.) Myung Sung Presbyterian Church v. North American Assn. of Slavic Churches & Ministries, 291 Ga. App. 808, 810 (2) (662 SE2d 745) (2008). Here, as already shown, the Covenants require the board to give notice at a certain time, and there is an issue of fact regarding whether the McGees received such notice in a timely manner. Because there is an issue of fact regarding breach of the specific provision of the Covenants for which the McGees allege breach of the duty of good faith and fair dealing, we reverse the grant of summary judgment on this ground as well. See Layer v. Clipper Petroleum, 319 Ga. App. 410, 419 (6) (735 SE2d 65) (2012).

6. The McGees’ claim that the trial court erred by granting summary judgment on their claim of intentional infliction of emotional distress is without merit. The presence of an armed security guard at a meeting does not rise to the level of extreme and outrageous conduct required to support such a claim. See generally Garcia v. Shaw Indus., 321 Ga. App. 48, 52 (1) (b) (741 SE2d 285) (2013) (“a claim of intentional infliction of emotional distress requires a showing of ‘extreme and outrageous conduct,’ which means much more than malice”) (punctuation and footnote omitted).

7. The McGees assert that the trial court erred by granting summary judgment on their claim that the individual defendants should have to reimburse the MEHOA for improper expenditures. The McGees argue that they filed this claim on behalf of all “the other homeowners and members of the MEHOA that are being affected by the actions of the Defendants” and that any recovery should go back to the MEHOA. The McGees’ claim fails because they “lack[ ] standing to assert those derivative claims without counsel as only a licensed attorney is authorized to represent a corporation in a proceeding in a court of record.” (Footnote omitted.) Leventhal v. Post Properties, 276 Ga. App. 742, 745 (2) (624 SE2d 223) (2005).

8. The McGees assert that the trial court erred by granting summary judgment on their claim that they are entitled to attorney fees under OCGA § 13-6-11. They seek to recover the fees they incurred during the brief period of time they were represented by counsel.

For the remaining claims, we reverse the grant of summary judgment but only to a very limited extent. OCGA § 13-6-11 establishes three grounds for an award of fees: bad faith, stubborn litigiousness, and unnecessary trouble and expense:

First, for the McGees’ claims for which we uphold summary judgment in favor of the appellees, the McGees’ claim for attorney fees fails as a matter of law. See Building Materials Wholesale v. Triad Drywall, 287 Ga. App. 772, 777-778 (3) (653 SE2d 115) (2007).

The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.

Because there is a bona fide controversy regarding the McGees’ remaining claims, they cannot recover under OCGA § 13-6-11 on the ground that the defendants were stubbornly litigious or caused unnecessary trouble and expense during the litigation. See David G. Brown, P.E. v. Kent, 274 Ga. 849, 850 (561 SE2d 89) (2002).

Decided July 16, 2013.

Willie L. McGee, pro se.

Audrey McGee, pro se.

Downey & Cleveland, Robert C. Harrison, Blair J. Cash, for appellees.

The McGees could potentially recover fees under OCGA § 13-6-11 based on the defendants’ actions in the underlying transaction. Kent, supra at 850. For those claims we reverse summary judgment on the McGees’ claim for attorney fees. “Only in the rare case where there was absolutely no evidence to support the award of expenses of litigation would the trial court be authorized to grant summary adjudication on such issues.” (Citation omitted.) American Medical Transport Group v. Glo-An, Inc., 235 Ga. App. 464, 467 (3) (509 SE2d 738) (1998), cited with approval in Covington Square Assoc. v. Ingles Markets, 287 Ga. 445, 447 (696 SE2d 649) (2010).

Judgment affirmed in part and reversed in part, and case remanded.

Phipps, C. J., and Ellington, P. J., concur.

       Audrey McGee deposed that Ross Mundy went out of business in 2008. On June 6,2008, Ross Mundy recorded a “Quitclaim Deed and Partial Release of Security Deed” and a “First Amendment to the Declaration,” pursuant to which it deeded its rights to the common areas of the development to MEHOA and made amendments to the Covenants to terminate its (Ross Mundy’s) authority to take certain actions under the Covenants.

       The Covenants require annual meetings “on approximately the 1st day of October, to re-elect officers who shall serve for one year.” The McGees admit that all of the board members prior to the 2011 board were elected properly.

       Although the McGees verified their initial complaint, there are virtually no specific allegations of fact therein, and the amended complaints are not verified.

       The McGees do not challenge the trial court’s ruling that their claim regarding an improper sign was moot given that the defendants had taken the sign down.

       We also find no evidence in the record that the MEHOA ever submitted itself to the terms of the Georgia Property Owners’Association Act, OCGA § 44-3-220 et seq. See OCGA § 44-3-222 (“Any declaration or amendment intending to bring or avail a development of the benefits and provisions of this article shall state an affirmative election to be so governed.”).

       OCGA § 14-3-805 (d) provides: “Despite the expiration of a director’s term, the director continues to serve until the director’s successor is elected, designated, or appointed and qualifies, or until there is a decrease in the number of directors.”

       Should a homeowner fail to pay the assessment, he or she is subject to interest, late charges, and a lien upon their real property.

       The record shows that Board meetings were held on September 27, 20X0 and on October 16, 2010, at which the board agreed to increase the assessments for 2011. Forbes, the board treasurer, averred that she sent the notice letter “following the October 16,2010 meeting.” The McGees admit that they received the notice 46 days after October 1,2010, which would be more than 30 days prior to December 31.


source: Caselaw Access Project

license: Public Domain

text:
    A13A0061, A13A0062.
    MILLER v. GGNSC ATLANTA, LLC; and vice versa.
    (746 SE2d 680)
   Branch, Judge.

These cross-appeals require us to determine the enforceability of a consumer arbitration agreement that was executed as part of a nursing home admissions process. Specifically, we must decide whether the unavailability of the selected arbitral forum (in this case, the National Arbitration Forum or “NAF’) renders the agreement impossible to enforce and therefore void. For the reasons explained herein, we answer that question in the affirmative. We therefore vacate the order of the trial court in Case No. A13A0061 which, although it denied the motion of the defendant/appellee to dismiss, compel arbitration, and stay discovery, nevertheless found that the arbitration agreement was enforceable. We remand Case No. A13A0061 for proceedings consistent with this opinion. We dismiss as moot the appeal in Case No. A13A0062.

The facts relevant to this appeal are undisputed. In January 2010, Michael Miller was admitted to Golden Living CenterNorthside (“GLC-Northside”), a nursing home and convalescent center located in Atlanta. At the time of his admission to GLCNorthside, Miller executed a number of forms contained in the Golden Living “admissions packet.” One of those forms was a “Resident and Facility Arbitration Agreement.” The Arbitration Agreement provides, in relevant part:

It is understood and agreed by Facility[] and Resident that any and all claims, disputes, and controversies (hereinafter collectively referred to as a “claim” or collectively as “claims”) arising out of, or in connection with, or relating in any way to the Admission Agreement or any service or health care provided by the Facility to the Resident shall be resolved exclusively by binding arbitration to be conducted at a place agreed upon by the Parties, or in the absence of such an agreement, at the Facility, in accordance with the National Arbitration Forum Code of Procedure, which is hereby incorporated into this Agreement, and not by lawsuit or resort to court process. This agreement shall be governed by and interpreted under the Federal Arbitration Act, U.S.C. Sections 1-16.
In the event a court having jurisdiction finds any portion of this agreement unenforceable, that portion shall not be effective and the remainder of the agreement shall remain effective.
It is the intention of the parties to this Arbitration Agreement that it shall inure to the benefit of and bind the parties, their successors, and assigns, including without limitation ... all persons whose claim is derived through or on behalf of the Resident, including any ... child, guardian, executor, legal representative, administrator, or heir of the Resident. The parties further intend that this agreement is to survive the lives or existence of the parties hereto.

(Emphasis supplied.)

Rule 1 (A) of the NAF Code of Procedure in effect at the time the respective arbitration agreements were executed provides, in relevant part:

Parties who contract for or agree to arbitration provided by the [NAF] or this Code of Procedure agree that this Code governs their arbitration proceedings, unless the Parties agree to other procedures. This Code shall be deemed incorporated by reference into every Arbitration Agreement [ ] which refers to the National Arbitration Forum ... or this Code of Procedure, unless the Parties agree otherwise. This Code shall be administered only by the National Arbitration Forum or by any entity or individual providing administrative services by agreement with the National Arbitration Forum.

(Emphasis supplied.)

The NAF is headquartered in Minneapolis, Minnesota. In July 2009, the Minnesota Attorney General filed a complaint against the NAF and related entities alleging violations of the Minnesota Prevention of Consumer Fraud Act (Minn. Stat. § 325F.69), the Minnesota Uniform Deceptive Trade Practices Act (Minn. Stat. § 325D.44), and the Minnesota False Statements in Advertising Act (Minn. Stat. § 325F.67). The complaint sought civil penalties as well as an injunction barring the NAF from engaging in those practices of the organization that allegedly violated the relevant statutes. On July 17, 2009, the parties entered into a consent judgment under which the NAF agreed that it would not administer, process, or “[i]n any manner participate in” any consumer arbitration filed on or after July 24, 2009.

In April 2011, Miller filed suit in the State Court of Fulton County against GLC-Northside and related entities. Relying on the Arbitration Agreement, Golden Living filed a motion to dismiss, to compel arbitration, and to stay discovery. Miller opposed the motion, arguing that the designation of the NAF as the arbitral forum was an integral term of the Arbitration Agreement, and that the unavailability of either the NAF or its Code of Procedure rendered the contract impossible to enforce and therefore void. He further argued that the Arbitration Agreement should not be enforced because it is substantively and procedurally unconscionable. Finally, Miller asserted that he was legally incompetent to execute the Arbitration Agreement, because at the time of his admission to GLC-Northside he had just undergone two major surgeries, was in significant pain, and was under the influence of narcotic pain killers.

The trial court found that the Agreement was not impossible to perform and that it was neither substantively nor procedurally unconscionable. The court nevertheless denied the motion to compel arbitration, finding that there existed a jury question as to whether Miller was legally competent to execute the Agreement. Miller then sought a certificate of immediate review, to allow him to appeal the trial court’s rulings as to impossibility and unconscionability. The trial court granted that certificate, and this Court granted Miller’s application for an interlocutory appeal. In Case No. A13A0061, Miller appeals the trial court’s rulings that the Arbitration Agreement is not void because of either impossibility or unconscionability. GLC-Northside has filed a cross-appeal in Case No. A13A0062, in which it challenges the trial court’s finding that a jury question exists as to Miller’s competency to execute the Arbitration Agreement. We now turn to the merits of these appeals.

1. The “question of whether a valid and enforceable arbitration agreement exists . . . represents a question of law.” (Citation and footnote omitted.) Yates v. CACV of Colorado, LLC, 303 Ga. App. 425 (693 SE2d 629) (2010). We therefore review de novo a trial court’s order granting or denying a motion to compel arbitration. Dunaway v. UAP/GA AG. Chem., 301 Ga. App. 282, 284-285 (1) (687 SE2d 211) (2009).

Case No. A13A0061

2. We first address the question of whether the Arbitration Agreement is void because of impossibility of performance • — • i.e., because neither the NAF, as the chosen arbitral forum, nor, consequently, its Code of Procedure is available to the parties. We begin our analysis by noting that a written agreement to arbitrate is by definition a contract. In deciding the validity of such an agreement, therefore, we apply the usual rules of Georgia law regarding the construction and enforcement of contracts. See Yates, supra at 430 (1). The normal defenses to enforcement of a contract apply to arbitration agreements, including the defense of impossibility. See Triad Health Mgmt. of Ga., III v. Johnson, 298 Ga. App. 204, 209 (3) (679 SE2d 785) (2009) (“generally applicable contract defenses . . . may invalidate arbitration agreements to which the FAA applies”) (citation omitted); Kothari v. Tessfaye, 318 Ga. App. 289, 294-295 (1) (a) (i) (733 SE2d 815) (2012) (recognizing that impossibility of performance is a contract defense); OCGA § 13-3-5 (impossible conditions in a contract are “void and are binding upon no one”). Here, Miller argues that because the Arbitration Agreement designates the NAF as the parties’ exclusive arbitral forum, and because the NAF is legally barred from conducting consumer arbitrations, the agreement is impossible to perform. We agree.

Under Georgia law, the cardinal rule of contract construction is to ascertain the intent of the parties, as evidenced by the language of the contract. Garrett v. Southern Health Corp. of Ellijay, 320 Ga. App. 176, 182 (1) (739 SE2d 661) (2013). And “[i]f the terms of a contract are plain and unambiguous, the contractual terms alone determine the parties’ intent.” (Citation omitted.) Id. Accordingly, while we recognize the “liberal federal policy favoring arbitration agreements,” Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U. S. 1, 24 (IV) (C) (103 SCt 927, 74 LE2d 765) (1983), that policy does not allow us to rewrite the parties’ agreement. Rather, the law obligates us to enforce the plain terms of the contract into which the parties entered. Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U. S. 52, 53-54 (115 SCt 1212, 131 LE2d 76) (1995) (when applying the Federal Arbitration Act, courts must still “ensure that private agreements to arbitrate are enforced according to their terms”) (citation and punctuation omitted).

Golden Living argues that the Arbitration Agreement is not impossible to enforce because the contract is governed by the Federal Arbitration Act (“FAA”), and section 5 of that statute permits a court to appoint a substitute arbitrator. Although this issue has never been addressed by a Georgia appellate court, the United States Court of Appeals for the Eleventh Circuit has previously held that where the parties’ chosen arbitral forum has failed or is otherwise unavailable, section 5 of the FAA may apply, in some circumstances, to allow the naming of a substitute arbitrator. Brown v. ITT Consumer Financial Corp., 211 F3d 1217, 1222 (II) (A) (3) (11th Cir. 2000). Brown stated that where the language of the agreement reflects that the choice of arbitral forum “is an integral part of the agreement to arbitrate,” then the agreement will be considered void if the forum is unavailable. Id. See also Reddam v. KPMG, LLP, 457 F3d 1054, 1060 (B) (9th Cir. 2006), overruled on other grounds as recognized in Atlantic Nat. Trust LLC v. Mt. Hawley Ins. Co., 621 F3d 931, 940 (III) (9th Cir. 2010) (“when a court asks whether a choice of forum is integral, it asks whether the whole arbitration agreement becomes unenforceable if the chosen arbitrator cannot or will not act”). If, on the other hand, the agreement shows that the selection of a particular forum was merely an “ancillary logistical concern,” section 5 will apply and a substitute arbitrator may be named. Brown, supra at 1222 (II) (A) (3).

The “integral term vs. ancillary logistical concern” test articulated in Brown has been adopted by the large majority of jurisdictions confronted with the question of whether section 5 of the FAA allows a court to name a substitute arbitrator where the parties’ designated forum has failed or is otherwise unavailable. This test is consistent with Georgia contract law, in that it focuses on and requires a court to give effect to the intent of the contracting parties, as evidenced by the contract’s language. This test is also consistent with the provisions of the FAA, which requires courts to enforce arbitration agreements according to their terms. See 9 USC §§ 2, 3, 4. For these reasons, we adopt the “integral term vs. ancillary logistical concern” test for determining whether an arbitration agreement becomes unenforceable where the arbitral forum designated therein is unavailable for any reason.

The question before us, therefore, is whether the Arbitration Agreement reflects that the selection of the NAF as the arbitral forum was integral to that agreement. In other words, does the language of the Arbitration Agreement indicate that the parties intended to arbitrate their claims only if the NAF was available to administer that arbitration? For reasons explained below, we find that it does.

As other courts confronted with this issue have found, “an arbitration agreement’s express designation of a single arbitration provider weighs in favor of a finding that the designated provider is integral to the agreement to arbitrate.” Rivera v. American Gen. Financial Svcs., 150 N. M. 398 (259 P3d 803, 812-813 (II) (Q) (N.M. 2011). See also Smith Barney, Inc. v. Critical Health Systems of North Carolina, 212 F3d 858, 862 (II) (4th Cir. 2000) (“Where the parties have agreed explicitly to settle their disputes before particular arbitration fora, that agreement must control.”). Here, the Arbitration Agreement provides that any disputes between the parties “shall be resolved exclusively through binding arbitration” conducted “in accordance with the National Arbitration Forum Code of Procedure, which is hereby incorporated into this Agreement,...” (Emphasis supplied.) And the NAF’s Code of Procedure, in turn, provides that only the NAF may administer that Code. The Arbitration Agreement’s use of the mandatory “shall” and the word “exclusively,” together with its express incorporation of the NAF Code, indicates that the parties did not have a general agreement to arbitrate; rather, they contracted to arbitrate only before the NAF. Id. (holding that the arbitration agreement’s use of terms such as “shall” and “exclusively” and its incorporation of the NAF Code, showed that the parties have “evince[d] [an] intent to arbitrate exclusively before a particular arbitrator, not simply an intent to arbitrate generally”) (citation and punctuation omitted). Accordingly, we find that the designation of the NAF as the arbitral forum is an integral term of the contract at issue. See Riley v. Extendicare Health Facilities, 826 NW2d 398, 411 (Wis. App. 2012) (the arbitration agreement’s incorporation of the NAF Code “draws NAF into the Agreement to a degree as integral as the agreement to arbitrate itself”); Carideo v. Dell, Inc., 2009 WL 3485933, *5 (II) (B) (W.D. Wash. 2009) (finding that the availability of the NAF was an integral term where the arbitration clause “designates NAF’s code of procedure as the applicable rules [,]” a fact that “underscores NAF’s importance to the arbitration clause”).

The conclusion that the availability of the NAF Code (and by extension the NAF) is integral to the agreement is further supported by Rules 48 (D) and (E) of the NAF Code, which provide:

D. The Director or Arbitrator may decline the use of arbitration for any dispute, controversy, [or] Claim . .. that is not a proper or legal subject matter for arbitration or where the agreement of the Parties has substantially modified a material portion of the Code. If the Parties are denied the opportunity to arbitrate a dispute, controversy, or Claim before the Forum, the Parties may seek legal and other remedies in accord with applicable law.
E. In the event of a cancellation of this Code, any Party may seek legal and other remedies regarding any matter upon which an Award or Order has not been entered.

(Emphasis supplied.)

That part of Rule 48 (D) which provides that the NAF may decline to arbitrate the parties’ claims if their agreement has “substantially modified a material portion of the Code” shows that unless the NAF Code in its entirety applies to the arbitration, the parties’ agreement to arbitrate may be unenforceable. This language demonstrates, therefore, that both the NAF and its Code are an essential part of the agreement to arbitrate. See Carr, supra at 336-337 (a reading of the NAF Code in its entirety “indicates that the designation of the NAF as the arbitral forum is integral to the agreement”); Riley, supra at 409 (“[t]he NAF Rules of Procedure, in turn, confirm that the [agreement’s] designation of the application of the NAF rules is integral to that agreement”).

Moreover, both Rules 48 (D) and (E) make clear that if the parties cannot arbitrate pursuant to the NAF Code (which itself requires arbitration by the NAF), they are not obligated to arbitrate in an alternate forum. Rather, if the NAF is unavailable, the parties are free to seek legal remedies — i.e., to file a traditional lawsuit. See Black’s Law Dictionary (9th ed. 2009) (defining “legal remedy” as “[a] remedy historically available in a court of law, as distinguished from a remedy historically available only in equity’).

In spite of the foregoing, Golden Living argues that because the Arbitration Agreement contains a severance clause, we should find that the designation of the NAF as the arbitral forum is not an integral term of that Agreement. Specifically, Golden Living contends that this clause allows a court to sever from the Arbitration Agreement the requirement that NAF administer the arbitration. The court could then employ section 5 of the FAA to appoint a substitute arbitrator, who would conduct the arbitration pursuant to the NAF Code. In support of this argument, Golden Living cites two cases from South Dakota, Wright v. GGNSC Holdings LLC, 808 NW2d 114, 120 (S.D. 2011) and Jones v. GGNSC Pierre LLC, 684 FSupp.2d 1161, 1167-1168 (D. S.D. 2010), both of which involved the interpretation of an arbitration agreement that is identical to the one at issue. Wright, supra at 116, n. 1; Jones, supra at 1163. We find the reasoning of these cases, however, wholly unpersuasive.

First, neither of these opinions acknowledges or applies the cardinal rule of Georgia law regarding contract construction, which is to ascertain the intent of the parties as evidenced by the terms of the written agreement. Indeed, neither opinion contains any discussion regarding the intent of the parties or how the language of the arbitration agreement reflects that intent. Moreover, both courts articulate what appears to be a deliberate decision to disregard the plain language of Rule 1 (A) of the NAF Code. See Wright, supra at 120 (acknowledging that Rule 1 (A) “provide [s] that only the NAF [can] ‘administer’ its Code of Procedure,” but finding “that point of little significance”); Jones, supra at 1167-1168 (holding that because the contract only referenced the NAF Code, as opposed to the NAF itself, the selection of NAF as the arbitral forum was merely “implied”). In addition to ignoring the plain language of Rule 1 (A), neither opinion even acknowledges the existence of, much less gives effect to, the relevant language of Rules 48 (D) and (E). Regardless of what the law may be in South Dakota, however, we are not at liberty to ignore the specific terms of the parties’ written agreement and “rewrite or revise a contract under the guise of construing it.” (Citation and punctuation omitted.) Rabun & Assoc. Constr. v. Berry, 276 Ga. App. 485, 487 (1) (623 SE2d 691) (2005). See also Grange Mut. Cas. Co. v. Fulcher, 306 Ga. App. 109, 111 (701 SE2d 547) (2010) (“Where the contractual language unambiguously governs the factual scenario before the court, the court’s job is simply to apply the terms of the contract as written, regardless of” which party benefits.) (footnote omitted).

Additionally, Golden Living’s argument that the existence of a severance clause can render any contract term •— including the designation of an arbitrator —■ nonessential misapprehends Georgia law regarding severable contracts. Like other aspects of contractual interpretation, “[t]he issue of the severability of a contract is determined by the intention of the parties, as evidenced by the terms of the contract.” (Citations and punctuation omitted.) Horne v. Drachman, 247 Ga. 802, 805 (2) (280 SE2d 338) (1981). Thus, before deciding whether a contract provision is severable, a court must determine whether that provision is integral to the contract. And the severance of an essential contract term “is not allowed,” even where the contract contains a severance clause. AMB Property, L.P. v. MTS, Inc., 250 Ga. App. 513, 515 (551 SE2d 102) (2001). See also Nolley v. Maryland Cas. Ins. Co., 222 Ga. App. 901, 904 (4) (476 SE2d 622) (1996) (in determining whether a contract provision is severable, the question is whether the provision “is of the essence of the contract”) (citation and punctuation omitted). Here our analysis shows that the designation of the NAF as the arbitral forum is an integral term of the agreement at issue; accordingly, we are not at liberty to sever that provision.

As the foregoing demonstrates, the Arbitration Agreement by its terms provides that the procedural law governing the arbitration proceedings would be the NAF Code; that the arbitrators would be members of the NAF, who are the only people authorized to administer and apply the NAF Code; and that in the absence of the NAF and/or the NAF Code as written, the parties would not be obligated to arbitrate their disputes but instead would be free to seek legal remedies. Accordingly, we find that the availability of the NAF Code of Procedure and, consequently, the availability of NAF as an arbitral forum, are integral to the Arbitration Agreement. “To hold otherwise would require us to impose a strained construction on a straightforward agreement. It is far better to interpret the agreement based on what is specified, rather than attempt to incorporate other remote rules by reference.” (Citation omitted.) Smith Barney, supra at 862. As one court has explained,

[t]he unavailability of [the] NAF as arbitrator presents compounding problems that threaten to eviscerate the core of the parties’ agreement. To appoint a substitute arbitrator!, who would have to apply procedural rules other than the NAF Code,] would constitute a wholesale revision of the arbitration clause.

Carideo, supra at *6. We therefore find that section 5 of the FAA does not apply in this case, as that law would “allow a court to select and impose on the contracting parties a substitute arbitrator inconsistent with the plain terms of their contract.” Rivera, supra at 815. Rather, the unavailability of the NAF and its Code render the Arbitration Agreement impossible to enforce.

Decided July 16, 2013

Watkins, Lourie, Roll & Chance, Lance D. Lourie, Stephen R. Chance, Suzanne T. Fink, Slover, Prieto, Marigliano & Holbert, Michael A. Prieto, Summerville Moore, J. Darren Summerville, for appellant.

Hawkins & Parnell, Christian J. Lang, Patricia M. Peters, Daniel N. Mills, for appellee.

3. In light of our holding in Division 2, we need not address whether the trial court erred in finding that the Arbitration Agreement was neither substantively nor procedurally unconscionable. Given our finding that the Arbitration Agreement is unenforceable, we vacate the order of the trial court and remand this case for proceedings consistent with this opinion.

Case No. A13A0062

4. In this case, GLC-Northside has appealed the trial court’s finding that a triable question of fact exists as to Miller’s competency to execute the Arbitration Agreement. Based on Division 2 of this opinion, this appeal is dismissed as moot. See Clark v. State, 301 Ga. App. 354, 355 (687 SE2d 593) (2009) (as a general rule, if a party “would receive no benefit by reversal of the case, it is moot”) (citation and punctuation omitted). See also OCGA § 5-6-34 (d) (“[n]othing in this subsection shall require the appellate court to pass upon questions which are rendered moot”).

Judgment vacated and case remanded in Case No. A13A0061. Appeal dismissed as moot in Case No. Al 3A0062.

Phipps, C. J., and Ellington, P. J., concur.

       GLC-Northside is operated by GGNSC Atlanta, LLC, the named defendant/appellee in Case No. A13A0061 and the cross-appellant in Case No. A13A0062.

       The “Facility” is GLC-Northside.

       Footnote 1 of the Arbitration Agreement states that “[i]nformation about the National Arbitration Forum including a complete copy of the Code of Procedure, can be obtained from the Forum,” and it provides the telephone and fax numbers for the NAF, as well as the address for the NAF website.

       The complaint alleged, among other things, that the NAF was affiliated with a New York hedge fund that was owned by one of the country’s major debt collection enterprises; that the Forum marketed its arbitration services to consumer creditors, such as credit card companies and auto finance agencies, as a “collections tool”; and that in marketing its services, the NAF made a number of misrepresentations, failing to show that it was aligned with creditors against consumers.

       The NAF Code of Procedure defines “consumer” to include any individual whose claim against a business or entity arises “[fjrom a transaction or event involving any aspect of healthcare.” The parties do not dispute that under the terms of the Arbitration Agreement, the current actions would be considered consumer arbitrations.

       We note that Golden Living provided Miller the arbitration agreement at issue for his signature almost six months after the NAF had entered into the consent order agreeing not to conduct any consumer arbitrations.

       Miller’s complaint asserts claims for professional negligence, violations of the Georgia Bill of Rights for residents of long term care facilities, negligence per se (based on violations of state and federal Medicare regulations), negligence, failure to provide sufficient and proper staffing, and punitive damages.

       Section 5 of the FAA provides:
      If in the agreement provision be made for a method of naming or appointing an arbitrator or arbitrators or an umpire, such method shall be followed; but if no method be provided therein, or if a method he provided and any party thereto shall fail to avail himself of such method, or if for any other reason there shall be a lapse in the naming of an arbitrator or arbitrators or umpire, or in filling a vacancy, then upon the application of either party to the controversy the court shall designate and appoint an arbitrator or arbitrators or umpire, as the case may require, who shall act under the said agreement with the same force and effect as if he or they hadbeen specifically named therein; and unless otherwise provided in the agreement the arbitration shall be by a single arbitrator.
      9 USC § 5.

       We note that Brown involved an arbitration agreement that required the arbitration to be conducted “under the Code of Procedure of the National Arbitration Forum.” Brown, supra at 1220 (I). The entity in question in Brown, however, was not the same entity that is involved in the current case. Rather “the National Arbitration Forum” mentioned in Brown was defunct by the time the plaintiff filed his claim in the district court. Id. at 1220-1221 (I).

        See Khan v. Dell Inc., 669 F3d 350, 354 (3rd Cir. 2012); Reddam, 457 F3d at 1060; Meskill v. GGNSC Stillwater Greeley, LLC, 862 FSupp.2d 966, 974 (D. Minn. 2012); Diversicare Leasing Corp. v. Nowlin, 2011 WL 5827208, at *5 (W.D.Ark. 2011); Klima v. Evangelical Lutheran Good Samaritan Society, 2011 WL 5412216, at *3 (D. Kan. 2011); Ranzy v. Extra Cash of Texas, 2010 WL 936471, at *4-5 (S.D. Tex. 2010), aff’d, Ranzy v. Tijerina, 393 FedAppx. 174 (5th Cir. 2010);
        Zechman v. Merrill Lynch, Pierce, Fenner & Smith, 742 FSupp. 1359, 1364 (N.D. Ill. 1990); Carr v. Gateway, Inc., 944 NE2d 327, 333 (Ill. 2011); Rivera v. American Gen. Fin. Svcs., 259 P3d 803, 811-812 (N.M. 2011); Grant v. Magnolia Manor-Greenwood, 383 S. C. 125 (678 SE2d 435) (S.C. 2009); Riley v. Extendicare Health Facilities, 826 NW2d 398, 405 (Wis. App. 2012); Licata v. GGNSC Malden Dexter LLC, 2012 WL 1414881, *8 (Mass. Super. 2012); Stewart v. GGNSC-Canonsburg, L.P., 9 A3d215, 218-219 (Pa. Super. 2010). We note that the majority of these cases addressed whether an arbitration agreement designating the NAF as the arbitral forum was enforceable even though the NAF was no longer available to conduct the arbitration. As noted infra at note 13, the majority of these courts reached the same conclusion that we reach here, namely that the unavailability of the NAF and its Code of Procedure renders the Arbitration Agreement unenforceable.

       The restriction imposed by NAF Rule 1 (A) appears to be a unique feature of the NAF Code. We take judicial notice of the rules of both the American Arbitration Association (“AAA”) and JAMS, which are publicly available on the organizations’ respective web sites. See In the Interest of D. W., 318 Ga. App. 725, 728 (2) (734 SE2d 543) (2012) (judicial notice may be taken of facts which are beyond dispute and “are readily ascertainable by reference to some reliable source”) (citation and punctuation omitted). Neither set of rules provides that they may be administered exclusively by the entity that created them. See www.adr.org/commercial (AAA Rules); www.jamsadr.com/rules-comprehensive-arbitration (JAMS Rules). We further note that the NAF Code differs in many significant respects from the special rules promulgated by both the AAA and JAMS for use in arbitrations involving consumer disputes, and which would apply to an arbitration arising out of treatment of a resident in a nursing home. See www.adr.org/consumer; www.jamsadr.com/rules-consumer-minimum-standards. These unique features of the NAF Code further support our conclusion, discussed infra, that arbitration before the NAF is an integral term of the contract at issue. See Carr, supra at 330 (finding the selection of NAF was an integral term of an arbitration clause because that forum “has a very specific set of rules and procedures that has implications for every aspect of the arbitration process”) (citation and punctuation omitted). See also Singleton v. Grade A Market, 607 FSupp.2d 333, 339 (D. Conn. 2009) (finding the designation of a specific arbitral forum was an integral term of the agreement to arbitrate where the rules of the selected forum would substantively impact the arbitration process and perhaps the outcome); Grant, supra at 439 (“[w]here designation of a specific arbitral forum has implications that may substantially affect the substantive outcome of the resolution, we believe that it is neither ‘logistical’ nor ‘ancillary^ ”) (citation omitted).

       We note that Golden Living’s argument that we should allow a non-NAF arbitrator to apply the NAF Code of Procedure assumes that there remains in effect an NAF Code applicable to consumer arbitrations. That proposition is doubtful, at best. The NAF rules in the record are dated August 1, 2008. NAF is prohibited by court order, however, from arbitrating any consumer claim that is filed after July 24, 2009. Given that NAF is now barred from administering consumer arbitrations, other courts have found that “there cannot be any NAF rules that remain ‘in effect’ for administering consumer disputes.” Rivera, supra at 814, citing
        Carideo, supra at *5 (“because NAF does not arbitrate consumer disputes filed after July 24, 2009, there are simply no NAF rules currently in effect for such arbitrations”). See also Riley, 826 NW2d at 410 ("even if the court were to appoint a substitute arbitrator, no applicable NAF rules exist for the substitute arbitrator to apply”).

       We note that our holding is in accord with the majority of courts that have interpreted substantially similar agreements. See Ranzy, 393 FedAppx at 17Q-,Klima, supra at *5-6; Carideo,
        supra at *6; Rivera, supra at 815; Carr, supra at 336-337; Riley, supra at 410-411; Geneva-Roth, Capital v. Edwards, 956 NE2d 1195, 1203 (Ind. App. 2011); Stewart, supra at 219; Licata, supra at *8. But see Meskill, supra at 975; Jones, supra at 1169; Wright, supra at 121.