Thе only issue presented in this claim for injuries allegedly caused by a pest control treatment is whether the appellants are required to submit to arbitration as ordered by the trial court. The written contract contains an arbitration clause, but the appellants claim that the arbitration clause should not apply to them or to these claims. We disagree, and we affirm the trial court’s judgment.
At the time of events giving rise to this action, Scott and Ashley Lankford and Ashley’s mother, Ann Lang, lived together in a “beautiful old house” in Savаnnah. Ashley Lankford is named on the contract as the customer, and it is signed by “Ann Lang for Ashley Lankford.” The one-page contract specifically identifies the pests to be exterminated as “American Cockroaches” and provides for a monthly fee оf $32 to cover “one treatment monthly and additional treatments as deemed necessary by Orkin or requested by the Customer.” The contract also contains an arbitration clause, which provides that “all disputes between the parties” shall be referred to mediation and arbitration and that “the parties expressly agree that their mutual rights and obligations and the conduct of any arbitration proceeding shall be controlled by the Federal Arbitration Act.” Orkin treated the house 11 times between November 12, 1999 and July 21, 2000, and payments were made on a regular basis. Additional treatment was provided on three occasions. The Lankfords acknowledged in their brief below that “Orkin treated the Lankford home and that Ashley Lankford accepted the benefits and paid for those services.” Lang signed many of the service tickets, although some are unsigned and one displays a different but illegible signature.
The incident giving rise to this action occurred on July 21, 2000, eight days after the last regular treatment. The Lankfords’ neighbor was planning to cut down a tree overhanging the Lankfords’ house, and the Lankfords and Lang acknowledge that they requested an additional treatment of their attic to prevent the migration of “palmettobugs” from the tree to the Lankford house. They claim that this treatment caused the house to fill with toxic dust, resulting in serious personal injury to Ashley Lankford and Lang and also extensive property damage. They also claim that cleanup efforts by Rollins, Orkin’s parent company, were ineffective and caused additional property damage. Scоtt Lankford claims loss of consortium.
This action was originally filed by Scott and Ashley Lankford in September 2000 against Orkin and its parent company, Rollins.
Orkin and Rollins filed a motion to stay proceedings and compel arbitration, and in February 2001, the Lankfords dismissed their complаint without prejudice. In May 2002, the action was renewed by the Lankfords, and Lang appeared as an additional plaintiff.
1
Orkin and Rollins again filed a
1. In their first enumeration of error, appellants contend that they are not bound by the arbitration clause in the contract because Lang, not Ashley Lаnkford, signed the contract and did so without authority. They also contend that, if Ashley Lankford ratified the contract, neither Lang nor Scott Lankford was a third-party beneficiary of the contract. The general law provides that a beneficiary need not be sрecifically named in a contract, so long as the contract shows that it was intended for the third-party’s benefit.
Northen v. Tobin,
As appellants acknowledged in their brief below, “[t]here is no real dispute that Orkin treated the Lankford home and that Ashley Lankford accepted the benefits and paid for those services.” With respect to Lang, she personally aсcepted and signed for the majority of the treatments over the eight-month course of the contract. Scott Lankford’s claim for loss of consortium is entirely dependent upon his wife’s claim and stands or falls with it.
Sewell v. Dixie Region Sports Car Club &c.,
The law is plain that by accepting benefits and mаking payments under the contract, appellants ratified it even if the signature was irregular.
Comvest, L.L.C. v. Corporate Securities Group,
2. Appellants also contend that they are not bound by the arbitration clause of the contract because the “specialized treatment” on which they base their claim was not part of the contract. They argue that the July 21, 2000 treatment was not covered by the contract because it was a different treatment intended for “palmettobugs” rather than cockroaches. They also claim there was no mutuality of assent for the price of the additional treatment and that it was an unenforceable oral “agreement to agree.”
Appellеes deny that the “palmettobug” treatment was outside the scope of the contract, pointing to both an affidavit and an authoritative work in the field of pest control stating that “palmettobug” is merely one of a number of synonyms for “American cockroach.” Appellants presented no facts to contradict this assertion. Moreover, the contract provides that service under the contract will “consist [ ] of one treatment monthly and additional treatments as deemed necessary by Orkin or requested by the Customer.” It further provides that “Orkin will service the inside of the residence during the month at no additional charge if requested by the customer.” An assistant vice president for Orkin testified by affidavit that all applications performed by Orkin are made under a written pеst control agreement and that a separate treatment not called for under the existing contract would require a separate written agreement. The pest control service manager for Orkin at the time of the incident identified 12 service tiсkets generated on visits to appellants’ home, and distinguished between tickets for regular treatment, which show an amount paid and a monthly balance
“The burden is on the party alleging error tо show it affirmatively by the record and when the burden is not met, the judgment complained of is assumed to be correct and must be affirmed.” (Punctuation omitted.)
Afraknteh v. Halstead,
3. Appellants note that Rollins is not a party to the contract. Therefore, they contend, their claims against Rollins for ineffective and negligent cleanup of the pesticide are indеpendent of their claims against Orkin, and Rollins cannot assert the arbitration clause with respect to the claims against it. Appellees respond that appellants’ claims against Orkin and Rollins are “inextricably intertwined” because they arise out of thе same set of facts: the allegedly negligent pest control treatment applied to appellants’ home.
We recently addressed this issue in
AutoNation Financial Svcs. Corp. v. Arain,
In deciding whether a nonsignatory should be bound to an arbitration agreement, we noted that in earlier decisions such as
Comvest,
supra, “this Court has considered a number of other factors in this context, including the status of the parties as joint tortfeasors, the relationship of the claims to the arbitration contract, and the existence of an agency relationship.”
AutoNation,
supra at 758 (3). We also looked to the decisions of the federal appeals courts, particularly
MS Dealer Svc. Corp. v. Franklin,
While
AutoNation
is not binding precedent, Court of Appeals Rule 33 (a), we find the authorities and reasoning persuasive, and they are applicable to the facts of this case as well. Here, appellants have sued Rollins and Orkin togethеr. They seek to hold Rollins liable for the actions of Orkin under a theory of respondeat superior. Such a claim depends directly upon the underlying facts of appellants’ claim against Orkin. Appellants have asserted other claims against Orkin and Rollins jointly. Certainly, the claim against
4. In their remaining enumerations of error, appellants сontend the grant of the motion violates their constitutional right to trial by jury and that grant of the motion was erroneous because appellees’ jury demand was inconsistent with their motion for arbitration. Appellees point out that these claims of error wеre not raised below. It is axiomatic that matters neither raised nor ruled on below, particularly constitutional questions, may not be considered on appeal. “We do not consider issues raised for the first time on appeal, because the trial сourt has not had opportunity to consider them.” (Citation and punctuation omitted.)
Padilla v. Melendez,
Judgment affirmed.
Notes
While this was not within the six-month renewal period under OCGA § 9-11-41 (e), it was within the statute of limitation. The incident in question occurred in July 2000.