David M. Johnson, Sr. v. Palmetto Solar, 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

David Mack Johnson, Sr., Respondent,

v.

Palmetto Solar, LLC; Palmetto South Carolina Solar I,
LLC; Brightest Solar, Inc.; Sunlight Financial, LLC;
Cross River Bank; Great America Services Corporation;
and Robert Dodge, Defendants,

of which Palmetto Solar, LLC; Palmetto South Carolina
Solar I, LLC; Brightest Solar, Inc.; Sunlight Financial,
LLC; Cross River Bank; and Robert Dodge are the
Appellants.

Appellate Case No. 2021-000977

Appeal From Colleton County
Bentley Price, Circuit Court Judge

Unpublished Opinion No. 2023-UP-125
Submitted February 1, 2023 – Filed March 29, 2023

REVERSED

Matthew A. Abee and Madison Caroline Guyton, both of
Nelson Mullins Riley & Scarborough, LLP, of Columbia,
for Appellants Cross River Bank; Palmetto Solar, LLC;
Palmetto South Carolina Solar I, LLC; and Sunlight
Financial, LLC.

William P. Tinkler, of Tinkler Law Firm LLC, of
Charleston, for Appellants Brightest Solar, Inc., and
Robert Dodge.

Mark David Ball and John Elliott Parker, Jr., both of
Parker Law Group, LLP, of Hampton, for Respondent.

PER CURIAM: Palmetto Solar, LLC; Palmetto South Carolina Solar I, LLC;
Brightest Solar, Inc.; Sunlight Financial, LLC; Cross River Bank; and Robert
Dodge (collectively, Appellants) appeal a circuit court order denying their motion
to compel arbitration with David M. Johnson, Sr., as premature. Appellants argue
the circuit court erred by (1) finding their motion to compel arbitration was not ripe
for consideration, (2) denying their motion because a valid arbitration agreement
existed and Johnson's claims fell within the scope of the agreement, and (3) failing
to dismiss Cross River Bank when Johnson failed to serve it with process. We
reverse.

1. We hold Appellants' motion to compel arbitration was ripe for consideration by
the circuit court because Appellants presented evidence of an arbitration agreement
entered into by the parties. See 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."); id.
("Nevertheless, a circuit court's factual findings will not be reversed on appeal if
any evidence reasonably supports the findings."); S.C. Code Ann. § 15-48-20(a)
(2005) ("On application of a party showing an agreement . . . and the opposing
party's refusal to arbitrate, the court shall order the parties to proceed with
arbitration, but if the opposing party denies the existence of the agreement to
arbitrate, the court shall proceed summarily to the determination of the issue so
raised and shall order arbitration if found for the moving party, otherwise, the
application shall be denied."); Hous. Auth. of City of Columbia v. Cornerstone
Hous., LLC, 356 S.C. 328, 334, 588 S.E.2d 617, 620 (Ct. App. 2003) ("The initial
inquiry to be made by the [circuit] court is whether an arbitration agreement exists
between the parties."); id. at 335, 588 S.E.2d at 620 ("The determination of
whether an arbitration agreement exists is 'a matter to be forthwith and summarily
tried by the [c]ourt.'" (quoting Jackson Mills, Inc. v. BT Cap. Corp., 312 S.C. 400,
404, 440 S.E.2d 877, 879 (1994))).
2. We hold the circuit court erred by denying Appellants' motion to compel
arbitration because Johnson failed to meet his burden to show his claims were not
suitable to arbitration. Accordingly, we reverse the circuit court's denial of
Appellants' motion to compel arbitration. See Rhodes v. Benson
Chrysler-Plymouth, Inc., 374 S.C. 122, 126, 647 S.E.2d 249, 251 (Ct. App. 2007)
("South Carolina favors arbitration."); Masters v. KOL, Inc., 431 S.C. 28, 37, 846
S.E.2d 893, 897 (Ct. App. 2020) ("Therefore, 'the party resisting arbitration bears
the burden of proving that the claims at issue are unsuitable for arbitration.'"
(quoting Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 91 (2000)));
Landers v. FDIC, 402 S.C. 100, 109, 739 S.E.2d 209, 213-14 (2013) ("A clause
which provides for arbitration of all disputes 'arising out of or relating to' the
contract is construed broadly." (quoting Prima Paint Corp. v. Flood & Conklin
Mfg. Co., 388 U.S. 395 (1967))); New Hope Missionary Baptist Church, 379 S.C.
at 627, 667 S.E.2d at 4 ("[W]hen a party argues fraud in the inducement of an
entire contract, but not the arbitration agreement itself, arbitration cannot be
avoided.").

3. We hold the circuit court erred by not dismissing Cross River Bank as a party
because the record shows Johnson failed to serve Cross River Bank with the
summons and complaint. See Chastain v. Hiltabidle, 381 S.C. 508, 515, 673
S.E.2d 826, 829 (Ct. App. 2009) ("When an issue is raised to but not ruled upon by
the trial court, the issue is preserved for appeal only if the party raises the same
issue in a Rule 59(e) motion."); Graham Law Firm, P.A. v. Makawi, 396 S.C. 290,
294-95, 721 S.E.2d 430, 432 (2012) ("The [circuit] court's findings of fact
regarding validity of service of process are reviewed under an abuse of discretion
standard."); Rule 5(d), SCRCP ("Upon failure to serve the summons and
complaint, the action may be dismissed by the court on the court's own initiative or
upon application of any party."); Rule 12(b)(5), SCRCP (explaining that a party
may assert a defense of insufficiency of service of process before filing a
responsive pleading).

REVERSED. 1

THOMAS, MCDONALD, and HEWITT, JJ., concur.

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