WAFFLE HOUSE, INC.
MCFADDEN, P. J., BRANCH and BETHEL, JJ.
House, Inc. brings this interlocutory appeal from the trial
court's denial of its motion to compel arbitration.
Because the trial court erred in determining that the
relevant arbitration agreement did not require arbitration of
the underlying claims in this case, we reverse.
standard of review from the denial of a motion to compel
arbitration is whether the trial court was correct as a
matter of law." D.S. Ameri Constr. Corp. v.
Simpson, 271 Ga.App. 825, 826 (611 S.E.2d 103) (2005)
(footnote omitted). Moreover, as this case involves the
interpretation of an agreement between the parties, we note
that "the construction of a contract is a matter of law
for the court that is subject to de novo review."
appeal arises from a lawsuit filed against Waffle House by
Pamela Pavesi, the court-appointed guardian and custodian of
Brian Mikeals. The record before usindicates that in July 2010,
Mikaels began working at a Waffle House restaurant which was
then run by a franchisee of Waffle House. In October 2015,
the restaurant where Mikaels worked was re-purchased from the
franchisee by Waffle House. That day, all employees of that
restaurant, including Mikaels, were notified that their
employment with the franchisee had ended and that they had
been hired by Waffle House on a probationary basis. Mikaels
and the other employees were also notified that in order to
obtain regular, non-probationary employment with Waffle
House, they would be required to re-apply for employment and
complete and agree to the terms of a variety of documents,
including an arbitration agreement. Mikaels completed and
submitted an electronic version of the documents, which
included his assent to the arbitration agreement, on November
time, Waffle House's electronic document system was
encountering a number of difficulties such that Waffle House
could not contemporaneously confirm that Mikaels and others
had completed the electronic paperwork, including their
assent to the arbitration agreement. As a result, Mikaels and
others were asked to complete and sign paper versions of
employment application materials, which included an
arbitration agreement. Mikaels did so on November 14, 2015.
December 23, 2015, while at work, one of Mikaels'
co-workers placed an illegal substance in his drink which
caused him to suffer severe injuries. Pavesi, his
court-appointed guardian and custodian, brought suit on
Mikaels' behalf against Waffle House alleging claims for
negligent hiring, supervision, and retention of Mikaels'
co-worker who attacked him. Pavesi's lawsuit also alleged
that Waffle House had been negligent in its training of its
employees and managers and that it had negligently failed to
keep the work premises safe. Pavesi's suit sought damages
and demanded a jury trial.
House answered the complaint and filed an emergency motion to
compel arbitration. In support of its motion, Waffle House
argued that the arbitration agreements signed by Mikaels on
November 6 and November 14 required the claims alleged in
Pavesi's suit to be handled through mandatory binding
a hearing, the trial court denied this motion. In its ruling,
the trial court found that the November 14 agreement
superseded the November 6 agreement because the two
agreements contained materially different terms while
addressing the same subject matter. Specifically, the trial
court noted that the "choice of law" provisions in
the two agreements were materially different.
November 6 agreement contained a clause providing that
"[t]his Arbitration Program shall be governed by and
interpreted in accordance with the Federal Arbitration Act
and any federal common law interpreting that Act." In
contrast, the November 14 agreement contained a clause
providing that the "agreement should be construed in a
manner consistent with the principles and provisions of the
Federal Arbitration Act . . . [T]his Agreement shall be
governed by and interpreted in accordance with the laws of
the State of Georgia[.]"
November 14 agreement also provided that it was to apply to
claims "arising out of any aspect of or pertaining in
any way to [Mikaels'] employment[.]" The agreement
further provided that "claims that are arbitrable . . .
include, but are not limited to . . . tort claims[.]"
The November 14 agreement also contained a merger clause,
indicating that it was the "complete agreement of
[Mikaels and Waffle House] on the subject of arbitration
the choice of law provision in the November 14 agreement, the
trial court determined that by providing that the agreement
was to be "governed by and interpreted in accordance
with the laws of the State of Georgia, " the parties had
agreed that any arbitration of Mikaels' claims against
Waffle House was governed by Georgia law, and that
accordingly the Georgia Arbitration Code, not the Federal
Arbitration Act, would apply. Further, the trial court
determined that because the Georgia Arbitration Code had been
interpreted to exclude personal bodily injury claims from its
coverage, Mikaels could not be compelled to arbitrate his
claims against Waffle House pursuant to the November 14
agreement. The trial court further ruled that Mikaels'
claims were not subject to mandatory arbitration because his
injuries were not the result of his employment relationship
with Waffle House, and were thus not covered by the November
its order, the trial court filed a certificate of immediate
review authorizing Waffle House to seek an interlocutory
appeal. Waffle House filed an application seeking such review
with this Court, which we granted. This appeal followed.
Waffle House first argues that the trial court erred by
finding that the November 6 and November 14 agreements
contained materially different terms, such that the
agreements merged, with the terms of the November 14