Hillcrest Foods, Inc. v. Mikeals

• Decision Date: 20 May 2021
• Docket Number: A21A0126
• Court: Georgia Court of Appeals
• Parties: HILLCREST FOODS, INC. v. MIKEALS.

359 Ga.App. 529

859 S.E.2d 510

HILLCREST FOODS, INC.

v.MIKEALS.

A21A0126

Court of Appeals of Georgia.

May 20, 2021

Hall Booth Smith, Walter J. Bibbins, Jr., Brittanie D. Browning, Edgar A. Neely IV, for Appellant.

Deitch & Rogers, Gilbert H. Deitch, Andrew Timothy Rogers, Kara Elizabeth Phillips, William Michael D'Antignac ; Ashenden & Associates, Thomas John Ashenden, Bondurant Mixson & Elmore, Naveen Ramachandrappa, for Appellee.

Markle, Judge.

Hillcrest Foods, Inc., appeals from the trial court's denial of its petition to stay arbitration or, in the alternative, to consolidate the arbitration proceedings arising from its dispute with Brian E. Mikeals. Because we conclude this issue is moot, we lack jurisdiction and must dismiss this appeal.

The underlying facts of this case are as follows: Hillcrest was the owner and operator of a Waffle House franchise restaurant where Mikeals worked until October 2015. As a condition of his employment, Mikeals was required to sign an arbitration agreement, indicating that any disputes between the parties would be submitted to arbitration.

In October 2015, the restaurant was re-purchased by Waffle House, and Mikeals's employment with Hillcrest ended; he was then hired directly by Waffle House. Mikeals was required to complete another arbitration agreement, which was identical to the previous agreement he signed while employed by Hillcrest.

During their shift on December 23, 2015, a co-worker placed an illegal substance in Mikeals's drink, causing him to suffer severe injuries. Months later, in May 2016, Mikeals filed suit against Waffle House, asserting claims for negligent hiring, supervision, retention and training.¹ The dispute between Mikeals and Waffle House was ordered to arbitration.²

Approximately three years after Mikeals was injured, and while the arbitration between Mikeals and Waffle House was pending, Mikeals's counsel notified Hillcrest of his potential claims against Hillcrest and his intent to demand arbitration. Hillcrest objected to arbitration, contending that Mikeals's personal injury claims against it were time-barred by the statute of limitation under OCGA § 9-9-5 (a)³ and, therefore, the American Arbitration Association ("AAA") lacked jurisdiction. An arbitrator appointed to consider Hillcrests's objections to arbitration found that Mikeals's claims against Hillcrest were timely and denied Hillcrest's objection. Thereafter, Mikeals initiated this arbitration action against Hillcrest, asserting the same negligent hiring, supervision, retention and training claims as asserted against Waffle House.

In October 2019, Hillcrest filed its petition to stay arbitration or, in the alternative, to consolidate arbitration proceedings with the Waffle House proceeding. The trial court denied Hillcrest's petition, finding that (1) Hillcrest waived any right to seek a stay of arbitration from the trial court by submitting to arbitration proceedings; (2) the arbitrator already found the claims to be timely; and (3) consolidation of the two proceedings was not permitted under the AAA rules, which governed the dispute according to the terms of the arbitration agreement. The trial court thus dismissed the case. Notably, the parties entered arbitration in 2020 and the arbitrator issued a final award in December 2020. Hillcrest now appeals.

In its appellate brief, Hillcrest concedes that the arbitration hearing has occurred. Mikeals moved to dismiss Hillcrest's appeal on the ground that the only two forms of relief that Hillcrest requested on appeal, reversal of the trial court's denial of its petition to stay arbitration and to consolidate the arbitration proceedings, were now moot, as the arbitration had already been completed and a final award issued.

In response, Hillcrest argues this appeal is not moot because: the arbitrator's award has not yet been confirmed; vacating the arbitration award prevents Mikeals from recovering on time-barred claims; reversal of the trial court's order renders the arbitration proceedings a nullity; and dismissing the appeal as moot amounts to res judicata. These contentions are meritless.

Mootness "is an issue of jurisdiction and must be determined before a court addresses the merits of a claim." Sweet City Landfill, LLC v. Elbert County , 347 Ga. App. 311, 318 (4), 818 S.E.2d 93 (2018) ; see also In the Interest of M. F. , 305 Ga. 820, 828 S.E.2d 350 (2019). Pursuant to OCGA § 5-6-48 (b) (3), "[n]o appeal shall be dismissed or its validity affected for any cause nor shall consideration of any enumerated error be refused, except ... [w]here the questions presented have become moot." "A case is moot when its resolution would amount to the determination of an abstract question not arising upon existing facts or rights. When the act that is the subject of [the requested] relief is completed, then the matter is moot and no longer subject to appeal." (Citations and punctuation omitted.) City of Comer v. Seymour , 283 Ga. 536, 537, 661 S.E.2d 539 (2008) ; see also Collins v. Lombard Corp. , 270 Ga. 120, 121 (1), 508 S.E.2d 653 (1998). When an appeal is moot, we must dismiss it. Mgt. Electronic Registration Systems, Inc. v. Samuel , 308 Ga. App. 237, 239, 707 S.E.2d 154 (2011).

Here, Hillcrest sought a stay of arbitration or the consolidation of the two arbitration proceedings, and its petition was denied. Rather, arbitration proceeded to a conclusion. Accordingly, any ruling this Court would make regarding the trial court's denial of the relief Hillcrest sought "would be an abstract exercise unrelated to any existing facts." Seymour , 283 Ga. at 537, 661 S.E.2d 539 ; see also Samuel , 308 Ga. App. at 239, 707 S.E.2d 154. And because the relief Hillcrest seeks in this appeal is now moot, we lack jurisdiction, and we must dismiss this appeal.⁴ OCGA § 5-6-48 (b) (3) (dismissal is warranted where the questions presented on appeal have become moot); Seymour , 283 Ga. at 537, 661 S.E.2d 539.

To the extent Hillcrest argues that this Court should vacate the arbitration award, we are not persuaded. Requesting this Court to vacate the arbitration award is new relief for which this Court also lacks jurisdiction in this appeal. As we have held,

[i]t is well settled that issues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken. Nor may a plaintiff alter the course of its arguments mid-stream, raising issues on appeal that were not raised before the trial court.

(Citation omitted.) American Academy of Gen. Physicians, Inc. v. LaPlante , 340 Ga. App. 527, 529 (1), 798 S.E.2d 64 (2017) ; see also Pfeiffer v. Ga. Dept. of Transp. , 275 Ga. 827, 829 (2), 573 S.E.2d 389 (2002).

As the award has yet to be confirmed by the trial court, it would be...