Noah Smith v. Adventure Air Sports Kennesaw, LLC ( 2020 )

FOURTH DIVISION
DILLARD, P. J.,
RICKMAN and BROWN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
October 6, 2020
In the Court of Appeals of Georgia
A20A1118. SMITH et al. v. ADVENTURE AIR SPORTS
KENNESAW, LLC et al.
DILLARD, Presiding Judge.
Noah Edward Smith, along with his parents, Dewayne Smith and Leah Smith,
appeal from the trial court’s grant of Adventure Air Sports Kennesaw, LLC and Scott
Rice’s1 motion to compel arbitration. The Smiths argue that (1) the contract between
the parties is unenforceable, (2) the contract was unconscionable, (3) Adventure Air
Sports negligently failed to follow its own procedures, and (4) Dewayne and Leah’s
arguments are separate from Noah’s contentions. For the reasons set forth infra, we
affirm in part, vacate in part, and remand for further proceedings consistent with this
opinion.
1
For the sake of simplicity, we refer to Adventure Air Sports Kennesaw, LLC
and Scott Rice collectively as “Adventure Air Sports” throughout this opinion.
This Court reviews the grant or denial of a motion to compel arbitration de
novo to see if the trial court’s decision is correct as a matter of law;2 but we defer to
the trial court’s factual findings unless they are clearly erroneous.3 So viewed, the
record shows that Adventure Air Sports is an indoor facility that consists of
trampolines, foam pits, games, and other amusement activities. And prior to
purchasing tickets or participating in facility activities, a patron must execute a
contractual waiver, which he or she is given the opportunity to read and sign
electronically. To agree to the terms of the contract, the patron must provide his or her
name, address, date of birth, email address, and telephone number. The contract
provides, in pertinent part, a release of liability as follows:
(1) RELEASE OF LIABILITY: I acknowledge that my or my
child(ren)/ward(s)’s use of ADVENTURE AIR SPORTS’ facilities and
2
See Schinazi v. Eden, 351 Ga. App. 151, 156 (830 SE2d531) (2019) (“[T]his
Court reviews the record de novo to determine whether the trial court’s denial of the
motion to compel arbitration is correct as a matter of law.” (punctuation omitted));
Kindred Nursing Ctrs. Ltd. Partnership v. Chrzanowski, 338 Ga. App. 708, 708-09
(791 SE2d 601) (2016) (same).
3
See Schinazi, 351 Ga. App. at 156 (“[W]e defer to the trial court’s findings
of fact upon which its denial was based unless those findings are clearly erroneous.”);
Ed Voyles Jeep-Chrysler, Inc. v. Wahls, 294 Ga. App. 876, 877 (670 SE2d 540)
(2008) (explaining that, in context of determining whether a party has waived its right
to arbitrate, “the findings upon which the conclusion is based are predicate questions
of fact, which may not be overturned unless clearly erroneous”).
2
participation in Activities offered by ADVENTURE AIR SPORTS
entails known and unknown risks that could result in physical or
emotional injury including, but not limited to[,] broken bones, sprained
or torn ligaments, paralysis, death, or other bodily injury. I understand
that such risks simply cannot be eliminated without jeopardizing the
essential qualities of the Activities. Despite all known and unknown
risks, I hereby expressly assume all risks associated with participation
in the Activities offered by ADVENTURE AIR SPORTS and
voluntarily remise, release, acquit, and satisfy and forever discharge
ADVENTURE AIR SPORTS and agree to hold it harmless of and from
all, and all manner of action and actions or omission(s), cause and cause
of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills specialties, covenants, contracts, controversies, agreement,
promises, variances, trespasses, damages, judgments, executions, claims
and demands whatsoever, in law or in equity, including, but not limited
to, any and all claims which allege negligent acts and/or omissions
committed by ADVENTURE AIR SPORTS, whether the action arises
out of any damage, loss, personal injury, or death to me or my
child(ren)/ward(s) while participating in or as a result of participation in
any of the Activities. This Release of Liability, is effective and valid
regardless of whether the damages, loss or death is a result of any act or
omission on the part of ADVENTURE AIR SPORTS.4
4
This portion of the agreement, as with others, requires the signing party to
check a small box beside it in acknowledgment.
3
The contract then goes on to provide for arbitration as follows: “Any controversy
between the parties hereto involving any claim arising out of or relating to a breach
of agreement, shall be submitted to and be settled by final and binding arbitration in
Cobb County, Georgia, in accordance with the then current Commercial Arbitration
Rules of the American Arbitration Association.”
At the end of reviewing the electronic agreement, the patron clicks the “accept”
button and receives a system-generated signature certificate that reflects the date and
time the contract was executed. A copy of this form is also saved to the Adventure
Air Sports computer system and emailed to the patron, at which point entry tickets
may be purchased. Importantly, when a patron is a minor, a parent or legal guardian
must execute the agreement on the minor’s behalf and identify the minor in the
contract. And if the parent does not accompany the minor to the facility, prior to
being admitted, an employee will check the Adventure Air Sports database for an
executed waiver and will also check a copy of the signing parent or guardian’s
driver’s license, at which point the electronic waiver is marked as “validated.”
On March 31, 2017, a contract was executed on behalf of Noah Smith, who
was then 17 years old. It is undisputed that, rather than have one of his parents sign
the contract, Noah executed the agreement in his father Dewayne’s name without his
4
parents’ permission or knowledge. Then, on June 26, 2017, Adventure Air Sports
asked Noah to perform trampoline maneuvers to create a promotional marketing
video. So, on that day, Noah did not purchase a ticket and was instead paid a small
sum as compensation for his time and the use of his image. Tragically, while Noah
performed maneuvers on the trampoline, he suffered serious and debilitating injuries,
resulting in paralysis caused by an injury to his spinal cord. Dewayne was not with
Noah at the facility that day, nor had he ever accompanied his son to Adventure Air
Sports. But in the Adventure Air Sports computer system, Noah’s waiver was marked
as “validated,” meaning an employee reviewed a copy of Dewayne’s driver’s license
prior to admitting Noah into the facility.
On April 5, 2019, the Smiths filed suit against Adventure Air Sports and its
chief operating officer, Scott Rice, to recover for the injuries Noah sustained.
Adventure Air Sports went on to file a motion to dismiss the Smiths’ suit and compel
arbitration based on the contract executed prior to Noah’s use of the trampoline park.
The trial court granted Adventure Air Sports’s motion, and this appeal by the Smiths
follows.
5
1. For starters, the Smiths argue that the contract is unenforceable because it
was executed by a minor.5 We disagree.
The Smiths are correct that, generally speaking, “the contract of a minor is
voidable.”6 But minors may be estopped from voiding contracts when those
agreements are induced by fraud and deceit, such as when a false representation is
made by a minor as to the minor’s age.7 And while we have never had the opportunity
5
The Smiths also argue the trial court erred by compelling tort claims to
arbitration when it is against the plain language of the contract. But because they did
not raise this argument before the trial court, we do not address it on appeal. See,
e.g., Flesch v. Flesch, 301 Ga. 779, 781 (1) (b) (804 SE2d 67) (2017) (explaining that
court will not consider a legal argument advanced for the first time on appeal);
Harper v. Harper, 267 Ga. App. 553, 557 (2) (600 SE2d 659) (2004) (noting that
appellate court will not consider an argument raised for the first time on appeal);
Chiaka v. Rawles, 240 Ga. App. 792, 796 (4) (525 SE2d 162) (1999) (“This court will
not consider arguments neither raised nor ruled on in the trial court and that are
asserted for the first time on appeal.”).
6
OCGA § 13-3-20 (a); see Mrozinski v. Pogue, 205 Ga. App. 731, 736 (3) (423
SE2d 405) (1992) (“[C]ontracts entered by minors . . . are merely voidable but not
void, and . . . the minority of an individual does not in and of itself prohibit that
individual from entering a contract.”). See generally Stoudenmire v. HSBC Bank USA,
333 Ga. App. 374, 375 (776 SE2d 483) (2015) (“A void contract is one that has no
effect whatsoever and is incapable of being ratified, while a voidable contract is one
that is unenforceable at the election of the injured party.”).
7
See Zobrist v. Bennison, 268 Ga. 245, 248 (3) (486 SE2d 815) (1997)
(“Waivers or estoppels are not ordinarily . . . imputable against infants, except an
estoppel in pais based on fraud and deceit by an infant who has reached an age of
discretion when fraud can be imputed against him.” (punctuation omitted)); Brown
6
to address a factual situation in which a minor has forged his parent or legal
guardian’s signature in order to execute a contract and enjoy its benefits, we see no
meaningful distinction between this case and those in which a minor has lied about
his or her age.8 Indeed, estoppels do not apply to or affect minors, “except in cases
v. Anderson, 186 Ga. 220, 220 (1) (197 SE 761) (1938) (same); Carney v. Southland
Loan Co., 92 Ga. App. 559, 561 (1) (88 SE2d 805) (1955) (“While ordinarily waivers
and estoppels are not imputable to infants, an estoppel in pais based on fraud and
deceit will be imputed to an infant who has reached the age of discretion.”);
Siegelstein v. Fenner & Beane, 66 Ga. App. 345, 345 (6) (17 SE2d 907) (1941) (“It
has been several times decided by this court that a minor may under certain
circumstances be estopped from avoiding a contract which was induced by a false
representation as to his age.”); Clemons v. Olshine, 54 Ga. App. 290, 290 (2) (187 SE
711) (1936) (“A defendant is estopped from exercising his privilege of avoiding a fair
and reasonable contract upon the ground of his minority at the time the agreement
was made, where it appears that he has received, enjoyed, and consumed its
irrestorable benefits, and, where it appears that the plaintiff, dealing in good faith,
was induced to act to his injury by reason of the false and fraudulent representation
of the defendant with respect to his apparent majority, and that, in view of all the
surrounding facts and circumstances, the plaintiffs was justified in accepting such
representation as true, and was free from fault or negligence on his own part, such as
a failure to use all ready means of ascertaining the truth touching the defendant’s
apparent majority.” (punctuation omitted)); Watters v. Arrington, 39 Ga. App. 275,
275 (146 SE 773) (1929) (same); Hood v. Duren, 33 Ga. App. 203, 203 (125 SE 787)
(1924) (same).
8
We disagree, then, with the Smiths’ contention that the trial court erred in
finding that Noah was estopped from avoiding the contract based upon inapposite
precedent.
7
[in which] a[ ] [minor’s] fraudulent act or representation is made with a view to
deceive or defraud.”9
The key question before us, then, is “whether the minor has arrived at those
years of discretion when a fraudulent intent could be reasonably imputed to him.”10
And this rule is made analogous to situations in which it is “sought to hold a minor
responsible for a tort or crime involving fraud, and his capacity for conceiving or
executing a fraudulent intent is to be determined.”11 Indeed, once it is determined that
the minor had the capacity for conceiving and executing a fraudulent intent, it is
unnecessary for the other contracting party to
go further and prove that they made an independent investigation as to
the age of the [minor], [when] no fact or circumstance appears in the
evidence . . . to throw some doubt or suspicion on the truthfulness of the
representation, and thus prevent [the other party] from relying wholly
9
Jones v. Cooner, 137 Ga. 681, 681 (74 SE 51) (1911); accord Smith v. Lamb,
103 Ga. App. 157, 159 (118 SE2d 924) (1961); Clemons, 54 Ga. App. at 290 (2).
10
Clemons, 54 Ga. App. at 290 (2) (punctuation omitted); accord Nichols v.
English, 223 Ga. 227, 229 (154 SE2d 239) (1967); Wolff v. Hawes, 105 Ga. 153, 153
(31 SE 425) (1898); Smith, 103 Ga. App. at 159.
11
Clemons, 54 Ga. App. at 290 (2).
8
thereon, but charge [the other party] with the duty of making an
additional investigation.12
Additionally, in Georgia, a person may be considered or found guilty of a crime
once a person “has attained the age of 13 years at the time of the act, omission, or
negligence constituting the crime.”13 And as for civil liability, “[i]nfancy is no defense
to a tort action so long as the defendant has reached the age of discretion and
accountability prescribed by Code Section 16-3-1 for criminal offenses.”14 Here,
Noah was 17 when he executed the contract for his own benefit by using his father’s
name. Thus, at 17, Noah certainly had the capacity to conceive and execute a
fraudulent intent, and the trial court did not err by concluding that he was estopped
from voiding the contract.15
12
Id.
13
OCGA § 16-3-1.
14
OCGA § 51-11-6; see, e.g., Horton v. Hinely, 261 Ga. 863, 863-64 (1) (413
SE2d 199) (1992) (explaining that under OCGA § 51-11-6, nine-year-old boys who
set fire to another boy’s body were immune from tort liability); Hatch v. O’Neill, 231
Ga. 446, 447 (1) (202 SE2d 44) (1973) (holding that nine-year-old was immune from
tort liability because he was younger than the age applicable to criminal liability).
15
See supra note 7; see also Off the Wall & Gameroom LLC v. Gabbai, Case
No. 4D19-2657, 2020 WL 4668055, at *4 (Fla. Dist. Ct. App. Aug.12, 2020) (holding
that 13-year-old who was injured at trampoline facility after forging an adult’s
9
2. Next, the Smiths argue that even if the arbitration agreement is valid, it is
unconscionable. Again, we disagree.
An unconscionable contract is “abhorrent to good morals and conscience”16 and
is an agreement in which “one of the parties takes a fraudulent advantage of
another.”17 But an agreement is not unconscionable merely because it appears to favor
one party over another or may lead to hardship.18 Indeed, we have repeatedly
emphasized that parties should “be entitled to contract on their own terms without the
courts saving one side or another from the effects of a bad bargain.”19 As a result, in
electronic signature to gain entry could not void the contract under the defense of
infancy because “the child intentionally misrepresented information on the release
and waiver agreement”).
16
Innovative Images, LLC v. Summerville, Case No. S19G1026, 2020 WL
5357820, at *7 (3) (b) (Ga. Sept. 8, 2020); Thomas v. T & T Straw, Inc., 254 Ga. App.
194, 195 (561 SE2d 495) (2002).
17
Innovative Images, 2020 WL 5357820, at *7 (3) (b); Thomas, 254 Ga. App.
at 195.
18
See Thomas, 245 Ga. App. at 195 (noting that parties are free to enter into
contracts “even though they may enter into contracts that are unreasonable or which
may lead to hardship” and that a contract is not unconscionable “simply because the
terms appear to favor” one party over another); William J. Cooney, P.C. v. Rowland,
240 Ga. App. 703, 705 (524 SE2d 730) (1999) (“[Parties] should be permitted to enter
into contracts that may actually be unreasonable or which may lead to hardship.”).
19
Thomas 245 Ga. App. at 196; accord Rome Healthcare LLC v. Peach
Healthcare Sys., Inc., 264 Ga. App. 265, 272 (4) (590 SE2d 235) (2003); see Langley
10
the absence of a showing that Noah “was fraudulently induced into signing the . . .
v. MP Spring Lake, LLC, 307 Ga. 321, 329 n.4 (834 SE2d 800) (2019) (“Georgia law
recognizes and protects the freedom of parties to contract even though parties may
enter into contracts that are unreasonable or which may lead to hardship.”
(punctuation omitted)); see also Innovative Images, 2020 WL 5357820, at *5 (3) (a)
(“[R]ecognizing that all people who are capable of contracting shall be extended the
full freedom of doing so if they do not in some manner violate the public policy of
this state, this Court has long emphasized that courts must exercise extreme caution
in declaring a contract void as against public policy and may do so only [when] the
case is free from doubt and an injury to the public clearly appears.” (punctuation
omitted)). To the extent the Smiths suggest that the contract violated public policy,
this argument is likewise without merit. See, e.g., Shields v. RDM, LLC, __ Ga. App.
__, __ (1) (844 SE2d 297, 301 (1)) (2020) (“[E]xculpatory clauses in Georgia are
valid and binding, and are not void as against public policy when a business relieves
itself from its own negligence.” (punctuation omitted)); Innovative Images, 2020 WL
5357820, at *5 (3) (a) (“[I]n enacting the Georgia Arbitration Code, the General
Assembly established a clear public policy in favor of arbitration.” (punctuation
omitted)); Carrion v. Smokey, Inc., 164 Ga. App. 790, 790 (298 SE2d 584) (1982)
(“The General Assembly has enacted no statute which either expressly or impliedly
forbids contractual waivers of liability by participants in sporting or recreational
events.” (punctuation omitted)). Additionally, the Federal Arbitration Act preempts
our state law exempting “personal bodily injury” claims from arbitration. See
Davidson v. A. G. Edwards & Sons, Inc., 324 Ga. App. 172, 173 (1) (a) (748 SE2d
300) (2013) (“Although this Court has not previously addressed whether the [Federal
Arbitration Act] preempts OCGA § 9-9-2 (c) (10), insofar as it exempts from
arbitration “personal bodily injury” claims, we find no reason why there should not
be preemption in this regard as well. The FAA preempts any state law that conflicts
with its provisions or undermines the enforcement of private arbitration agreements.”
(footnote omitted)).
11
agreement, [ ]or that [he] was delusional or insane at the time the contract was
signed,”20 we find no reversible error in the face of Noah’s admitted forgery.21
20
Thomas 245 Ga. App. at 196; see also Innovative Images, 2020 WL
5357820, at *7-8 (3) (b) (discussing substantive and procedural unconscionability,
and explaining that, as to substantive unconscionability, “the General Assembly has
expressed a policy permitting arbitration agreements in the GAC, and arbitration can
be beneficial to either attorneys or clients, so we cannot say that no sane client would
enter a contract that mandated arbitration of future legal malpractice claims and no
honest lawyer would take advantage of such a provision,” and as to procedural
unconscionability, “it is the complaining party that bears the burden of proving that
it was essentially defrauded in entering the agreement” (punctuation omitted)).
21
The Smiths’ contention that Noah’s age made the contract unconscionable
is a nonstarter. Exculpatory clauses in Georgia are valid, binding, and not void as
against public policy, see Shields, __ Ga. App. at __ (1) (844 SE2d at 301 (1)). And
as the trial court rightly concluded, Noah’s age under these circumstances did not
make him incapable of understanding what he was executing or, indeed, from
perpetrating a fraud in admittedly signing the agreement by forging his father’s
electronic signature. See Mullis v. Speight Seed Farms, Inc., 234 Ga. App. 27, 29 (505
SE2d 818) (1998) (“A non-inclusive list of some factors courts have considered in
determining whether a contract is procedurally unconscionable includes the age,
education, intelligence, business acumen and experience of the parties, their relative
bargaining power, the conspicuousness and comprehensibility of the contract
language, the oppressiveness of the terms, and the presence or absence of a
meaningful choice.”). Although the trial court did not explicitly address the argument
of unconscionability in its ruling, this is a question of law, which, in light of the
court’s other rulings, does not require remand on this particular question. See Massey
v. Allstate Ins. Co., 341 Ga. App. 462, 462 (2) n.9 (2017) (exercising discretion to
address question of law in the first instance when “the material facts are undisputed”);
see also Aetna Workers’ Comp. Access, LLC v. Coliseum Med. Ctr., 322 Ga. App.
641, 647 (2) (746 SE2d 148) (2013) (“The construction of contracts is initially a
question of law for the court.”).
12
3. Although the Smiths include an enumerated error that Adventure Air Sports
should be unable to assert an equitable remedy against Noah because it has “unclean
hands,” the Smiths limit this assertion to their enumeration of errors and fail to
include it as a separate argument within their appellate brief, thereby abandoning the
contention by failing to provide argument or citation of authority in support of same.22
But to the extent the Smiths argue within their brief that Adventure Air Sports “did
not follow its own procedures,” and was, accordingly, negligent in failing to discover
Noah’s fraud, we will address that claim.
Specifically, the Smiths assert that Adventure Air Sports did not use reasonable
diligence to determine whether Dewayne authorized the “signature” on the agreement
at issue. But as detailed and explained supra, the evidence established that Adventure
Air Sports had a procedure of checking the driver’s license of the parent or guardian
22
See CT. OF APPEALS R. 25 (a) (2) (“Part Two [of the appellate brief] shall
consist of the enumeration of errors and shall contain a statement of jurisdiction as
to why this Court, and not the Supreme Court, has jurisdiction. A separately filed
enumeration of errors is not required.”); CT. OF APPEALS R. 25 (a) (3) (“Part Three [of
the appellate brief] shall contain the argument and citation of authorities. It shall also
include a concise statement of the applicable standard of review with supporting
authority for each issue presented in the brief.”); CT. OF APPEALS R. 25 (c) (1) (“The
sequence of arguments in the briefs shall follow the order of the enumeration of
errors, and shall be numbered accordingly.”); CT. OF APPEALS R. 25 (c) (2) (“Any
enumeration of error that is not supported in the brief by citation of authority or
argument may be deemed abandoned.”).
13
who executed the electronic agreement and marking electronic waivers “validated”
after doing so. And in this case, there was evidence that Noah’s waiver was marked
“validated” in Adventure Air Sports’ computer system. Accordingly, the assertion
that Adventure Air Sports did not follow its own procedures is without merit.23
4. Finally, the Smiths argue that even if Noah’s claims must be arbitrated,
Dewayne and Leah’s claims are separate from Noah’s claims and should not be sent
to arbitration. And because the trial court’s order failed to explicitly rule upon
Dewayne and Leah’s claims, we must remand this case for further proceedings
consistent with this opinion.
Adventure Air Sports’s motion to dismiss and compel arbitration addressed
both Noah’s claims, as well as the claims brought separately by Dewayne and Leah,
and the Smiths responded to those arguments. And at the hearing on the motion to
dismiss and compel arbitration, the trial court asked the parties whether Dewayne and
23
See McKean v. GGNSC Atlanta, LLC, 329 Ga. App. 507, 514 (3) (765 SE2d
681) (2014) (“[T]he party asserting the benefit of estoppel must have acted in good
faith, and must have exercised reasonable diligence.” (punctuation omitted)); see also
Clemons, 54 Ga. App. at 291 (1) (“It was unnecessary for the plaintiffs to go further
and prove that they made an independent investigation as to the age of the defendant,
where no fact or circumstance appears in the evidence, such as the very youthful
appearance of the defendant, to throw some doubt or suspicion on the truthfulness of
the representation, and thus prevent them from relying wholly thereon, but charge
them with the duty of making an additional investigation.”).
14
Leah were estopped by Noah’s actions. But the trial court’s order only addresses
Noah’s claims when it concludes that Noah was estopped from voiding the
agreement. The trial court did not provide any conclusions of law as to Dewayne and
Leah’s claims, nor does it acknowledge that Noah’s parents brought separate claims.
In fact, the order fails to even include Dewayne and Leah in the style of the case.
Accordingly, although we affirm the trial court’s order as it applies to Noah’s
claims, we vacate the trial court’s order to the extent that it also dismissed and
submitted Dewayne and Leah’s claims to arbitration,24 and we remand for findings
or fact and conclusions of law as to Dewayne and Leah’s claims.25
Judgment affirmed in part, vacated in part, and case remanded with direction.
Rickman and Brown, JJ., concur.
24
It is undisputed by the parties that this was the impact of the trial court’s
order.
25
See Helton v. United Servs. Auto. Ass’n, 354 Ga. App. 208, 213-14 (2) (840
SE2d 692) (2020) (vacating grant of summary judgment and remanding to trial court
to consider arguments in the first instance); Strength v. Lovett, 311 Ga. App. 35,
44-45 (2) (b) (714 SE2d 723) (2011) (remanding question not reached by trial court).
15