Estate of Barbara Owens v. Fundamental Clinical and Operational Services, LLC

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Estate of Barbara Owens, by and through her Personal
Representative, Mary Jane McCraw, Individually and on
behalf of Statutory Beneficiaries, Respondent,

v.

Fundamental Clinical and Operational Services, LLC;
Fundamental Administrative Services, LLC,; THI of
South Carolina, LLC; THI of South Carolina at
Spartanburg, LLC d/b/a Magnolia Manor-Spartanburg,
Appellants.

Appellate Case No. 2020-001107

Appeal From Spartanburg County
J. Mark Hayes, II, Circuit Court Judge

Unpublished Opinion No. 2023-UP-272
Submitted June 1, 2023 – Filed July 19, 2023

AFFIRMED IN PART AND DISMISSED IN PART

Stephen Lynwood Brown, Russell Grainger Hines,
Donald Jay Davis, Jr., all of Clement Rivers, LLP, of
Charleston, for Appellants.

Gary W. Poliakoff and Raymond Paul Mullman, Jr., both
of Poliakoff & Assoc., PA, of Spartanburg; Whitney
Boykin Harrison, of McGowan Hood Felder & Phillips,
of Columbia; Patrick E. Knie, of Knie & Shealy
Attorneys at Law, of Spartanburg; and Edward John
Waelde, of Greenville, all for Respondent.

PER CURIAM: Fundamental Clinical and Operational Services, LLC;
Fundamental Administrative Services, LLC; THI of South Carolina, LLC; and THI
of South Carolina at Spartanburg, LLC d/b/a Magnolia-Manor Spartanburg (the
Facility; collectively, Appellants) appeal the circuit court's denial of their motion to
compel arbitration on the wrongful death and survival actions of the Estate of
Barbara Owens, by and through her personal representative, Mary Jane McCraw,
individually and on behalf of statutory beneficiaries (the Estate). They also appeal
the circuit court's confidentiality order concerning discovery (Confidentiality
Order). Appellants argue (1) the circuit court erred in denying the motion to
compel arbitration and, in turn, the motions to stay; (2) the circuit court erred in
rejecting their merger argument; (3) in the alternative to the first two arguments,
the circuit court erred in denying Appellants' alternative request for limited
discovery; and (4) the circuit court erred in entering the Confidentiality Order. We
affirm in part and dismiss in part.

1. We hold the circuit court did not err in denying the motion to compel arbitration
because the admission agreement and the arbitration agreement did not merge. See
Zabinski v. Bright Acres Assocs., 346 S.C. 580, 596, 553 S.E.2d 110, 118 (2001)
("The question of the arbitrability of a claim is an issue for judicial determination,
unless the parties provide otherwise."); New Hope Missionary Baptist Church v.
Paragon Builders, 379 S.C. 620, 625, 667 S.E.2d 1, 3 (Ct. App. 2008) ("Appeal
from the denial of a motion to compel arbitration is subject to de novo review");
Stokes v. Metro. Life Ins. Co., 351 S.C. 606, 609-10, 571 S.E.2d 711, 713 (Ct. App.
2002) ("However, the circuit court's factual findings will not be overruled if there
is any evidence reasonably supporting them."); Wilson v. Willis, 426 S.C. 326, 335,
827 S.E.2d 167, 172 (2019) ("Whether an arbitration agreement may be enforced
against a nonsignatory to the agreement is a matter subject to de novo review by an
appellate court."); Coleman v. Mariner Health Care, Inc., 407 S.C. 346, 355, 755
S.E.2d 450, 455 (2014) (concluding that by their own terms, language in the
admission agreement that "recognize[d] the 'separatedness' of [the arbitration
agreement and the admission agreement]" and a clause allowing the arbitration
agreement to "be disclaimed within thirty days of signing while the admission
agreement could not" indicated the parties' intention "that the common law
doctrine of merger not apply"); Hodge v. UniHealth Post-Acute Care of Bamberg,
LLC, 422 S.C. 544, 562-63, 813 S.E.2d 292, 302 (Ct. App. 2018) (determining an
admissions agreement and arbitration agreement did not merge because the fact
"the [a]dmission [a]greement indicated it was governed by South Carolina law,
whereas the [a]rbitration [a]greement stated it was governed by federal law[,]"
"each document was separately paginated and had its own signature page[,]" and
"the [a]rbitration [a]greement stated signing it was not a precondition to
admission" evidenced the parties' intention that the documents be construed as
separate instruments). Here, as in Coleman, the plain language of the arbitration
agreement and the admission agreement indicated the two agreements were to be
considered separate from one another. Here, as in Hodge, (1) the two agreements
were governed by different bodies of laws because the admission agreement was
governed by state law and the arbitration agreement was governed by federal law;
(2) each document was separately labeled, numbered, and contained its own
signature page; and (3) both parties agreed that signing the arbitration agreement
was not a prerequisite to admission. Thus, we affirm the circuit court's denial of
the motion to compel arbitration.

Because we find the documents did not merge, we need not address Appellants'
equitable estoppel argument, and we also dismiss as moot their appeal of the
circuit court's denial of the motion to stay. See Futch v. McAllister Towing of
Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (ruling an
appellate court need not address remaining issues when its resolution of a prior
issue is dispositive); Coleman, 407 S.C. at 356, 755 S.E.2d at 455 ("Since there
was no merger here, appellants' equitable estoppel argument was properly denied
by the circuit court."); Hodge, 422 S.C. at 563, 813 S.E.2d at 302 (concluding
"equitable estoppel would only apply if documents were merged").

2. We hold the circuit court did not err in denying Appellants' request to conduct
limited discovery to question McCraw concerning her alleged apparent authority to
bind Owens to arbitration. McCraw's testimony alone could not establish she had
apparent authority to act on Owens's behalf because apparent agency relies on the
actions and representation of the principal, not the agent. See Hodge, 422 S.C. at
577, 813 S.E.2d at 310 ("[A]n agency may not be established solely by the
declarations and conduct of an alleged agent." (alteration in original) (quoting
Frasier v. Palmetto Homes of Florence, Inc., 323 S.C. 240, 245, 473 S.E.2d 865,
868 (Ct. App. 1996))); Thompson v. Pruitt Corp., 416 S.C. 43, 54-55, 784 S.E.2d
679, 686 (Ct. App. 2016) ("Either the principal must intend to cause the third
person to believe that the agent is authorized to act for him, or he should realize
that his conduct is likely to create such belief." (quoting Froneberger v. Smith, 406
S.C. 37, 47, 748 S.E.2d 625, 630 (Ct. App. 2013))); Snell v. Parlette, 273 S.C. 317,
322-23, 256 S.E.2d 410, 412-13 (1979) (holding the testimony of the purported
agent that she was acting as the agent of her ten nonresident relatives when she
signed a listing agreement was entitled to some weight, but was "insufficient
without more to establish an agency relationship"); Hodge, 422 S.C. at 578, 813
S.E.2d at 310 (holding that because apparent agency involved the patient's
representations to the nursing facility, the deposition of the patient's husband, who
signed the admission and arbitration agreements, would not add anything to that
determination).

3. We dismiss Appellants' appeal of the Confidentiality Order because it is a
discovery order and, therefore, not immediately appealable. See Tucker v. Honda
of S.C. Mfg., Inc., 354 S.C. 574, 577, 582 S.E.2d 405, 406 (2003) ("[A]n order
compelling discovery does not ordinarily involve the merits of the case and may
not be appealed."); id. at 577, 582 S.E.2d at 406-07 ("Since a contempt order is
final in nature, an order compelling discovery may be appealed only after the trial
court holds a party in contempt."); id. at 577, 582 S.E.2d at 407 ("Thus, a party
may comply with the order and waive any right to challenge it on appeal or refuse
to comply with the order, be cited for contempt, and appeal."). The possibility of
disclosure of confidential information pursuant to a Confidentiality Order does not
make the order immediately appealable. See Wieters v. Bon-Secours-St. Francis
Xavier Hosp., Inc., 381 S.C. 332, 332-33, 673 S.E.2d 417, 418 (2009) (vacating
this court's review of a discovery order that may have resulted in the disclosure of
confidential information because the order was not immediately appealable);
Tucker, 354 S.C. at 577, 582 S.E.2d at 406-07 (holding an order compelling
discovery is not immediately appealable even when it may result in the disclosure
of confidential communications). Additionally, Appellants' opposition to the
Confidentiality Order did not transform a discovery issue into an injunction. See
Richardson v. Halcyon Real Estate Servs., Op. 5981 (S.C. Ct. App. Apr. 19, 2023)
(Howard Adv. Sh. No. 15 at 84, 89) (rejecting appellant's argument that a
discovery sanctions order was immediately appealable because the circuit court's
prohibition on conduct in violation of Rule 30(j)(8), SCRCP, was in the nature of
an injunction). Furthermore, we decline to accept the appeal of the Confidentiality
Order with the appeal of the denial of the motion to compel arbitration because the
issues Appellants raise concerning the Confidentiality Order do not have a
sufficient nexus to the appeal of the arbitration order. See Hodge, 422 S.C. at 575
n.9, 813 S.E.2d at 309 n.9 (noting that while discovery orders generally are not
immediately appealable, "courts may accept appeals of interlocutory orders not
ordinarily immediately appealable when appealed with a companion issue proper
for review but not when the issues appealed lack a sufficient nexus").
AFFIRMED IN PART AND DISMISSED IN PART. 1

WILLIAMS, C.J., and GEATHERS and VERDIN, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.