CELLAIRIS FRANCHISE, INC. et al.
BARNES, P. J., MCMILLIAN and MERCIER, JJ.
Barnes, Presiding Judge.
appellant is Samaca, LLC ("Samaca"), a Florida
limited liability company. The appellees are Cellairis
Franchise, Inc. ("Cellairis") and Global Cellular,
Inc. ("Global"), Georgia corporations, and Cell
Phone Mania, LLC ("CPM"), a Florida limited
liability company (collectively "appellees").
Samaca appeals from the trial court's order granting the
appellees, motion to dismiss the complaint and to compel
arbitration. Samaca contends that the trial court erred in
denying its motion to strike, making certain factual findings
as to the purchase and renewal of the franchise leases, and
in finding that the arbitration agreements were not
superceded and inconsistent with a forum selection clause.
Following our review, we affirm.
standard of review from the [grant] of a motion to compel
arbitration is whether the trial court was correct as a
matter of law. Further, the construction of a contract is a
question of law for the court that is subject to de novo
review." (Footnotes omitted.) D. S. Ameri Constr.
Corp. v. Simpson, 271 Ga.App. 825, 826 (611 S.E.2d 103)
(2005). "The [appellees], as the parties seeking
arbitration, bear the burden of proving the existence of a
valid and enforceable agreement to arbitrate. And the
validity of an arbitration agreement is generally governed by
state law principles of contract formation." (Citations
and punctuation omitted.) McKean v. GGNSC Atlanta,
329 Ga.App. 507, 509 (1) (765 S.E.2d 681) (2014).
facts pertinent to this appeal demonstrate that Cell Phone
Mania operated four franchises located at the Dolphin Mall in
Miami, Florida, under franchise agreements with Cellairis.
Global, an affiliate of Cellairis, licensed the spaces from
the operator of the Dolphin Mall, and Cell Phone Mania
sub-licensed the spaces to operate the franchises in Dolphin
Mall from Global. On June 30, 2014, Cell Phone Mania and
Samaca reached an agreement for Samaca to purchase Cell Phone
Mania's four franchises, and in conjunction with the
sale, Samaca entered into four new franchise agreements (the
"Franchise Agreement") with Cellairis. The
Franchise Agreements contained an arbitration clause, whereby
Samaca and Cellairis agreed to arbitrate:
all controversies, claims, or disputes between Company and
FRANCHISEE arising out of or relating to: a. This agreement
or any other agreement between Company and FRANCHISEE; b. The
relationship between FRANCHISEE and Company; c. The scope and
validity of this Agreement or any other agreement between
Company and FRANCHISEE, specifically including whether any
specific claim is subject to arbitration at all
(arbitrability questions) and/or d. The offer or sale of the
franchise opportunity .... Any claims by or against any
affiliate of the Company may be joined, in the Company's
sole discretion, in the arbitration.
also entered into four new sub-license agreements (the
"Sub-License Agreements") with Global to acquire
Cell Phone Mania's sub-licenses to operate the franchises
in the mall. The Sub-License Agreements, also effective June
30, 2014, contained a similar agreement, whereby Samaca and
Global agreed to arbitrate:
all controversies, claims, or disputes between Company and
Sub-licensee arising out of or relating to: a. This Agreement
or any other agreement between Company and Sub-licensee; b.
The relationship between Sub-licensee and Company; c. The
scope and validity of this Agreement or any other agreement
between Company and Sub-licensee, specifically including
whether any specific claim is subject to arbitration at all
(arbitrability questions); and/or d. Any agreement relating
to the purchase of products or services by Sub-licensee from
Company .... Any claims by or against any affiliate of the
Company may be joined, in the Company's sole discretion
in the arbitration.
on the same day or within the same time period, Cell Phone
Mania, Samaca, and Cellairis executed an Assignment and
Assumption Agreement (the "AA Agreement"),
effective September 1, 2014, reflecting the parties'
various assignments and assumptions related to the purchase
of the franchises and sub-licensing of the mall spaces. The
AA Agreement also stated that Samaca was required to sign new
franchise and sub-license agreements which were
"attached to this Agreement" and "incorporated
herein by this reference, " and that it would abide by
all of the "terms, conditions, and requirements" of
the Franchise and Sub-License Agreements. However, those new
agreements within the AA Agreement were not signed. The AA
Agreement contained a choice of law provision stating, in
pertinent part, that:
This Agreement shall be governed by and construed under the
laws of the State of Georgia, without regard to its conflicts
of laws provisions. The parties acknowledge and agree that
the Georgia State Courts for Fulton County, Georgia, or if
such court lacks jurisdiction, the U.S. District for the
Northern District of Georgia, shall be the sole and exclusive
venue and sole and exclusive proper forum in which to
adjudicate any case or controversy arising either, directly
or indirectly, under or in connection with this Agreement and
the parties further agree that, in the event of litigation
arising out of or in connection with this Agreement in these
courts, they will not contest or challenge the jurisdiction
or venue of these courts. The parties expressly consent and
submit to the jurisdiction and venue of these courts, and the
parties waive any defenses of lack of personal jurisdiction,
improper venue and forum non conveniens.
further provided that, the "Agreement may be executed in
several counterparts, each of which shall be deemed as an
original, but all of which together shall constitute one and
the same instrument."
took possession of the four franchise units on October 1,
2014 and began operating the franchise units. However, later
in 2014, Cellairis, Global, and Samaca learned that Dolphin
Mall would not renew the licenses for the franchise locations
at Dolphin Mall. In March 2015, Samaca sued Cellaris and
Global in state court in Florida seeking to rescind the
Franchise Agreement and Sub-License Agreements. Cellairis and
Global moved to dismiss that action based on the arbitration
clauses and because the complaint failed to state a claim.
Before the Court ruled on that motion, Samaca voluntarily
dismissed its suit, and subsequently initiated the underlying
complaint in Georgia state court.
appellees filed a motion to dismiss and compel arbitration
based on the arbitration agreements in the Franchise
Agreements and the Sub-License Agreements. In response,
Samaca amended its complaint to allege that the AA Agreement
and attendant choice of law provision superseded the
Franchise Agreements and Sub-License Agreements and their
attendant arbitration clauses. The trial court granted the
appellees motion to dismiss and to compel arbitration,
finding that, contrary to Samaca's contention, the
arbitration agreements contained in the Franchise and
Sub-licensing Agreements were not superceded by the AA
Initially we note that, as is the case here, "the
[Federal Arbitration Act] FAA applies in state and federal
courts to all contracts containing an arbitration clause that
involves or affects interstate commerce." (Citation
omitted.) American Gen. Financial Svcs. v. Jape, 291
Ga. 637, 638 (1) (732 S.E.2d 746) (2012). "[T]he first
task of a court asked to compel arbitration of a dispute is
to determine whether the parties agreed to arbitrate that
dispute."(Citation, punctuation, and emphasis omitted.)
Primerica Financial Svcs. v. Wise, 217 Ga.App. 36,
40 (5) (456 S.E.2d 631) (1995). And as a matter of contract,
"a party cannot be required to submit to arbitration any
dispute which he has not agreed so to ...