Kevin Greene v. Palmetto Prince George Operating, 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

Kevin Greene, as Attorney in Fact for and on behalf of
Eleanor Greene Wragg, Respondent,

v.

Palmetto Prince George Operating, LLC d/b/a Prince
George Healthcare Center; Palmetto Health Care LLC;
Murray Forman, Individually; and Richard Porter,
Individually, Defendants,

Of Whom Palmetto Prince George Operating, LLC d/b/a
Prince George Healthcare Center; Palmetto Health Care,
LLC; and Richard Porter, Individually, are the
Appellants.

Appellate Case No. 2020-001167

Appeal From Georgetown County
Benjamin H. Culbertson, Circuit Court Judge

Unpublished Opinion No. 2023-UP-396
Submitted December 4, 2023 – Filed December 13, 2023

AFFIRMED

Stephen Lynwood Brown, Russell Grainger Hines,
Donald Jay Davis, Jr., Matthew Oliver Riddle, Gaillard
Townsend Dotterer, III, all of Clement Rivers, LLP, of
Charleston, for Appellants.

Kevin Greene, of Georgetown, pro se.

PER CURIAM: Palmetto Prince George Operating, LLC d/b/a Prince George
Healthcare Center (the Facility), Richard Porter, and Palmetto Health Care, LLC
(collectively, Appellants) appeal the circuit court's order denying their motions to
stay as well as the circuit court's denial of the Facility and Porter's motions to
compel to arbitration the claims of Kevin Greene, as Attorney in Fact for and on
behalf of Eleanor Greene Wragg. On appeal, the Facility and Porter argue the
circuit court erred by denying their motions to compel arbitration and thus also
erred in denying Appellants' motions to stay. The Facility and Porter further
contend that "[a]t a minimum" the circuit court should have granted the Facility
and Porter's alternative request to conduct limited discovery to address gaps in the
evidentiary record bearing on the Arbitration Agreement's enforceability. We
affirm pursuant to Rule 220(b), SCACR.

We hold the circuit court did not err by denying the Facility's motion to compel
arbitration.1 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.").

Initially, we hold Wendal Greene (Wendal) did not have authority to execute the
Arbitration Agreement on Wragg's behalf because the evidence in the record does
not support the existence of an agency relationship. See Froneberger v. Smith, 406
S.C. 37, 49, 748 S.E.2d 625, 631 (Ct. App. 2013) ("Agency is the fiduciary
relationship that arises when one person (a 'principal') manifests assent to another
person (an 'agent') that the agent shall act on the principal's behalf and subject to
the principal's control." (quoting Restatement (Third) of Agency § 1.01 (2006)));

1
Because we hold the circuit court did not err by denying Porter and the Facility's
motions to compel arbitration, it also did not err by denying Appellants' motions to
stay the case until the conclusion of arbitration proceedings.
Hodge v. UniHealth Post-Acute Care of Bamberg, LLC, 422 S.C. 544, 565, 813
S.E.2d 292, 304 (Ct. App. 2018) ("A party asserting agency as a basis of liability
must prove the existence of the agency, and the agency must be clearly established
by the facts." (quoting McCall v. Finley, 294 S.C. 1, 6, 362 S.E.2d 26, 29 (Ct. App.
1987))); Vereen v. Liberty Life Ins. Co., 306 S.C. 423, 427, 412 S.E.2d 425, 428
(Ct. App. 1991) (explaining the burden of establishing agency is on the party
asserting that a principal agency relationship exists); Hodge, 422 S.C. at 565, 813
S.E.2d at 304 ("The existence of an agency relationship is . . . determined by the
relation, the situation, the conduct, and the declarations of the party sought to be
charged as principal." (quoting Langdale v. Carpets, 395 S.C. 194, 201, 717 S.E.2d
80, 83 (Ct. App. 2011))); id. at 566, 813 S.E.2d at 304 ("A true agency relationship
may be established by evidence of actual or apparent authority." (quoting R & G
Constr., Inc. v. Lowcountry Reg'l Transp. Auth., 343 S.C. 424, 432, 540 S.E.2d
113, 117 (Ct. App. 2000))). Although the Facility and Porter argue that the
declaration of the Facility's Admissions Director, Angela Burns, "is the only
evidence in the record on the points addressed therein," nothing in Burns's
declaration supports a finding that Wragg conferred actual or apparent authority on
Wendel, to bind her to the Arbitration Agreement. A review of the record does not
establish how Wragg represented to the Facility that Wendal was her agent—there
is no evidence to support that Wragg was present when Wendal signed the
Arbitration Agreement or that Wragg conferred authority through a legal
document. See Froneberger, 406 S.C. at 47, 748 S.E.2d at 630 ("Under South
Carolina law, '[t]he elements which must be proven to establish apparent agency
are: (1) that the purported principal consciously or impliedly represented another to
be his agent; (2) that there was a reliance upon the representation; and (3) that there
was a change of position to the relying party's detriment.'" (quoting Graves v.
Serbin Farms, Inc., 306 S.C. 60, 63, 409 S.E.2d 769, 771 (1991))); Hodge, 422
S.C. at 566, 813 S.E.2d at 304 ("[A]n agency may not be established solely by the
declarations and conduct of an alleged agent." (quoting Cowburn v. Leventis, 366
S.C. 20, 39-40, 619 S.E.2d 437, 448 (Ct. App. 2005))); Thompson v. Pruitt Corp.,
416 S.C. 43, 55, 784 S.E.2d 679, 686 (Ct. App. 2016) ("Further, the authority
conveyed by a principal to an agent to handle finances or make health care
decisions does not encompass executing an agreement to resolve legal claims by
arbitration, thereby waiving the principal's right of access to the courts and to a
jury trial."). Moreover, although the Facility and Porter contend Respondent failed
to prove incapacity at the time the Admission Agreement and Arbitration
Agreement were signed, the only evidence in the record regarding competency is
the Facility's own Admission Documentation, in which a selection was made of
four choices regarding Wragg's cognitive skills for daily decision making. The
choice selected—"Moderately Impaired"—indicated that selection was appropriate
for the following: "The resident's decisions were poor, the resident required
reminders, cues, and supervision in planning, organizing, and correcting daily
routines." We acknowledge the assessment may have included input from staff
and family members who had direct knowledge of Wragg's ability over time, as
indicated on the Admission Documentation; however, this selection suggests
Wragg may not have had the ability to confer authority on Wendal. See
Froneberger, 406 S.C. at 47-48, 748 S.E.2d at 630 (holding that to establish
apparent authority, the proponent must show, among other things, "the purported
principal consciously or impliedly represented another to be his agent"). 2

Next, we hold the Admission Agreement and the Arbitration Agreement did not
merge. Est. of Solesbee by Bayne v. Fundamental Clinical & Operational Servs.,
LLC, 438 S.C. 638, 648-49, 885 S.E.2d 144, 149 (Ct. App. 2023), cert. pending
(finding the admission agreement and arbitration agreement did not merge after
considering (1) the admission agreement provided it was governed by South
Carolina law and the arbitration agreement provided it was governed by federal
law, (2) the arbitration agreement recognized the two documents were separate by
stating the arbitration agreement "shall survive any termination or breach of this
Agreement or the Admission Agreement," (3) the documents were separately
paginated and had their own signature pages, and (4) signing the arbitration
agreement was not a precondition to admission); 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, 422 S.C. at 562-63, 813 S.E.2d at 302
(determining an admissions agreement and arbitration agreement did not merge
because the fact "the [a]dmissions [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 Solesbee and Hodge, (1) the two agreements

2
Additionally, because the Facility and Porter do not argue how Wragg ratified the
Arbitration Agreement after Wendal executed it, we find this argument abandoned.
See R & G Constr., Inc. v. Lowcountry Reg'l Transp. Auth., 343 S.C. 424, 437, 540
S.E.2d 113, 120 (Ct. App. 2000) (declaring an issue is deemed abandoned if
argument in appellate brief is only conclusory).
were governed by different bodies of law 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; (3) the arbitration agreement recognized the two documents were
separate, stating the arbitration agreement "shall survive any termination or breach
of this Agreement or the Admission Agreement"; and (4) the Facility
acknowledged that signing the Arbitration Agreement was not a prerequisite to
admission to the Facility. Thus, the Admission Agreement and Arbitration
Agreement did not merge. Because we find the documents did not merge, a
controlling consideration of whether the Arbitration Agreement bound Wragg, we
decline to reach the Facility's remaining argument. 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); Est. of Solesbee, 438 S.C. at 649, 885 S.E.2d at 149
(determining that because the admission agreement and arbitration agreement did
not merge, the equitable estoppel argument was properly denied); 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").

Finally, we hold the circuit court did not err by denying the Facility's request to
conduct limited discovery to address gaps in the evidentiary record bearing on the
Arbitration Agreement's enforceability under an agency theory. See Est. of
Solesbee, 438 S.C. at 651, 885 S.E.2d at 150 ("Because we find the trial court
correctly held there was no merger of the Agreements and Magnolia's equitable
estoppel argument was properly denied, we also find the court did not err in
denying its request for further discovery when it would not have changed the
result.").

AFFIRMED. 3

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

3
We decide this case without oral argument pursuant to Rule 215, SCACR.