Parmar v. Minhas

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

Rajinder Parmar, Respondent,

v.

Balbir S. Minhas, Midlands Gastroenterology, PC, and
Midlands Endoscopy Center, LLC, Appellants.

Appellate Case No. 2017-000994

Appeal From Richland County
DeAndrea G. Benjamin, Circuit Court Judge
Jean Hoefer Toal, Circuit Court Judge

Unpublished Opinion No. 2019-UP-331
Heard September 10, 2019 – Filed October 9, 2019

AFFIRMED

Robert L. Widener, of Burr & Forman, LLP, of
Columbia, for Appellants.

Edward Wade Mullins, III, of Bruner Powell Wall &
Mullins, LLC, of Columbia, for Respondent.

PER CURIAM: Balbir S. Minhas, Midlands Gastroenterology, PC, and Midlands
Endoscopy Center, LLC (collectively, Appellants) appeal the circuit court's order
granting Rajinder Parmar's motion to confirm an arbitration award. Appellants
argue the circuit court erred in (1) failing to find the shareholders' agreements
precluded Parmar from recovery; (2) compelling arbitration; (3) failing to vacate
the arbitrator's award; (4) failing to reduce the arbitrator's award to avoid double
recovery; (5) awarding prejudgment interest; and (6) confirming the arbitrator's
award although it was not timely issued. We affirm pursuant to Rule 220(b),
SCACR, and the following authorities:

1. As to whether the circuit court erred in failing to find the shareholders'
agreements precluded Parmar from recovery: Gissel v. Hart, 382 S.C. 235, 241,
676 S.E.2d 320, 323 (2009) ("When a dispute is submitted to arbitration, the
arbitrator determines questions of both law and fact."); C-Sculptures, LLC v.
Brown, 403 S.C. 53, 56, 742 S.E.2d 359, 360 (2013) ("Generally, an arbitration
award is conclusive and courts will refuse to review the merits of an award."
(quoting Gissel, 382 S.C. at 241, 676 S.E.2d at 323)); Gissel, 382 S.C. at 241, 676
S.E.2d at 323 ("Case law [to vacate an arbitration award] presupposes something
beyond a mere error in construing or applying the law. Even a 'clearly erroneous
interpretation of the contract' cannot be disturbed." (quoting Trident Tech. Coll. v.
Lucas & Stubbs, Ltd., 286 S.C. 98, 108, 333 S.E.2d 781, 787 (1985))).

2. As to whether the circuit court erred in compelling arbitration: Zabinski v.
Bright Acres Assocs., 346 S.C. 580, 597, 553 S.E.2d 110, 118 (2001) ("To decide
whether an arbitration agreement encompasses a dispute, a court must determine
whether the factual allegations underlying the claim are within the scope of the
broad arbitration clause, regardless of the label assigned to the claim. Any doubts
concerning the scope of arbitrable issues should be resolved in favor of
arbitration." (internal citations omitted)); id. at 598, 553 S.E.2d at 119 ("A broadly-
worded arbitration clause applies to disputes that do not arise under the governing
contract when a 'significant relationship' exists between the asserted claims and the
contract in which the arbitration clause is contained."); id. at 597, 553 S.E.2d at
118 ("[U]nless the court can say with positive assurance that the arbitration clause
is not susceptible to an interpretation that covers the dispute, arbitration should be
ordered.").

3. As to whether the circuit court erred in failing to vacate the arbitrator's
award based on the arbitrator's authority and Rule 7.5 of the American Health
Lawyers Association Rules: S.C. Code Ann. § 15-48-130(a)(3) (2005) (providing
a court shall vacate an arbitration award if the arbitrator exceeded his powers); id.
at § 15-48-130(a) ("[T]he fact that the [arbitrator's] relief was such that it could not
or would not be granted by a court of law or equity is not [a] ground for vacating
or refusing to confirm the award."); Gissel, 382 S.C. at 241, 676 S.E.2d at 323
(stating to vacate an arbitrator's award, the "governing law ignored by the arbitrator
must be well defined, explicit, and clearly applicable"); Helms Realty, Inc. v.
Gibson-Wall Co., 363 S.C. 334, 339, 611 S.E.2d 485, 487–88 (2005) (holding the
appellant has the burden of providing a record sufficient for the appellate court to
review).

4. As to whether the circuit court erred in failing to reduce the arbitrator's
award to avoid double recovery: Inman v. Imperial Chrysler-Plymouth, Inc., 303
S.C. 10, 13, 397 S.E.2d 774, 776 (Ct. App. 1990) (defining election of remedies as
"the act of choosing between different remedies allowed by law" based on the
same facts); id. at 15, 397 S.E.2d at 777 (noting the defendant could raise an
election of remedies issue at any stage of the case); Oaks at Rivers Edge Prop.
Owners Ass'n v. Daniel Island Riverside Developers, LLC, 420 S.C. 424, 443-44,
803 S.E.2d 475, 485–86 (Ct. App. 2017) (finding there was no double recovery for
the award of damages where the alleged damages were for different losses).

5. As to whether the circuit court erred in awarding prejudgment interest:
Fitigues, Inc. v. Varat Enters., 813 F.Supp. 1336, 1340 n.1 (N.D. Ill. 1992)
(interpreting South Carolina law as permitting the district court to award
prejudgment interest despite the arbitrator's failure to award it because the
arbitrator did not have the authority to award prejudgment interest for the time
between the arbitration award and the district court's confirmation of the award).
See generally Philip L. Bruner & Patrick J. O'Connor, Jr., 8 Bruner & O'Connor on
Construction Law § 21:252, Awarding Interest (June 2018) ("Where the arbitrators
have authority to award prejudgment interest, it has been held that the trial court
may not award interest for the period of time prior to the date of the arbitration
award. Courts generally may award prejudgment interest from the date of the
award to the date of the judgment, notwithstanding the failure of the arbitrators to
mention post-award interest in their decision.").

6. As to whether the circuit court erred in confirming the award although it was
not timely issued: S.C. Code Ann. §15-48-90(b) (2005) ("A party waives the
objection that an award was not made within the time required unless he notifies
the arbitrators of his objection prior to the delivery of the award to him."); Grant v.
Magnolia Manor-Greenwood, Inc., 383 S.C. 125, 131, 678 S.E.2d 435, 438 (2009)
(requiring strict adherence to the arbitration rules of the agreement where the
selection of the rules was an integral part of the arbitration agreement and not
merely an ancillary concern). See generally Samuel Estreicher & Steven C.
Bennett, Untimely Arbitration Awards, 235 N.Y.L.J. No. 59 at 1 (2006) ("[T]he
weight of modern authority is that untimeliness of an award is typically not fatal to
enforceability of an award."); Success Vill. Apartments, Inc. v. Amalgamated Local
376, Int'l Union United Auto. Aerospace & Agric. Implement Workers of Am.,
UAW, 380 F.Supp.2d 95, 98 (D. Conn. 2005) (holding that despite state regulations
requiring the issuance of arbitration awards at a specific time, there was no basis to
set aside the award when the plaintiff did not object to the delay prior to the
issuance of the award).

AFFIRMED.

SHORT, THOMAS, and GEATHERS, JJ., concur.