Kelsey v. House of Blues Myrtle Beach

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

Douglas Kelsey, Plaintiff,

v.

House of Blues Myrtle Beach Restaurant Corporation;
HOB Entertainment, Inc.; and Travis Scott Wagoner,
Defendants.

AND

House of Blues Myrtle Beach Restaurant Corporation,
Appellant,

v.

Throttlefest, LLC; American Outlaw Spirits
Incorporated; Full Throttle LLC; and Full Throttle Sloon
Shine, LLC, Respondents.

Appellate Case No. 2020-000407

Appeal From Horry County
Benjamin H. Culbertson, Circuit Court Judge
William A. McKinnon, Circuit Court Judge

Unpublished Opinion No. 2024-UP-064
Heard May 1, 2023 – Filed February 21, 2024
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED

Christian Stegmaier, of Collins & Lacy, PC, of
Columbia, and Kyle Lee Brady, of Anderson, for
Appellant.

M. Dawes Cooke, Jr. and John William Fletcher, both of
Barnwell Whaley Patterson & Helms, of Charleston, for
Respondent Throttlefest, LLC.

Brian C. Duffy and Patrick Coleman Wooten, both of
Duffy & Young, LLC, of Charleston, for Respondents
American Outlaw Spirits Incorporated, Full Throttle,
LLC, and Full Throttle Sloon Shine, LLC.

PER CURIAM: In this civil case, House of Blues Myrtle Beach Restaurant
Corporation (House of Blues) appeals the circuit court's orders dismissing its
third-party claims against Throttlefest, LLC (Throttlefest); Full Throttle, LLC (Full
Throttle); Full Throttle Sloon Shine, LLC (Sloon Shine); and American Outlaw
Spirits, Inc. (American Outlaw) (collectively, Respondents). First, House of Blues
argues the circuit court erred by granting Throttlefest's Rule 12(b)(6), SCRCP,
motion. Specifically, House of Blues argued the circuit court erred by (1)
considering matters outside the complaint, (2) improperly requiring it to plead or
show Throttlefest's settlement with the first-party plaintiffs was not in good faith
and relying on Smith v. Tiffany1 in finding dismissal of its contribution claim
would not impact its due process and equal protection rights, (3) finding its claims
were barred by the statute of limitations, and (4) dismissing its tort and equity
claims based upon the existence of its contract with Throttlefest. Second, House of
Blues argues the circuit court erred by dismissing Full Throttle, Sloon Shine, and
American Outlaw pursuant to Rule 12(b)(2), SCRCP, for lack of personal
jurisdiction. We affirm in part, reverse in part, and remand.

1
419 S.C. 548, 799 S.E.2d 479 (2017) (holding the Uniform Contribution Among
Tortfeasors Act precluded the defendant from joining another tortfeasor when such
tortfeasor had already settled with the plaintiff and been released from the lawsuit).
FACTS

Douglas Kelsey and another plaintiff (collectively, the plaintiffs) commenced the
underlying first-party action on May 12, 2017. They alleged they were injured in a
motorcycle-on-motorcycle collision when a motorcycle Travis Wagoner was
driving struck their motorcycles shortly after Wagoner departed an event called
Throttle Fest (the Event) held on House of Blues' premises on May 16, 2014. The
plaintiffs alleged Wagoner was driving in an impaired condition after being
overserved alcohol at the Event.

In their amended complaint filed in July 2017, they named House of Blues; House
of Blues Concerts, Inc.; HOB Entertainment, Inc.; Respondents; Michael Ballard;
Jesse James Dupree2; Michael Garner; and Wagoner as defendants in the action.
With respect to all defendants aside from Wagoner, the plaintiffs alleged causes of
action for respondeat superior, agency, and negligent supervision, asserting the
defendants unlawfully served Wagoner when he was in an intoxicated condition
during the Event. The plaintiffs subsequently settled with and agreed to
voluntarily dismiss Throttlefest, Full Throttle, and Sloon Shine from the lawsuit.
The plaintiffs additionally voluntarily dismissed American Outlaw, Ballard, and
Dupree from the case.

Kelsey3 filed a second amended complaint in October 2019, naming only House of
Blues 4 and Wagoner as defendants. Kelsey alleged causes of action for negligence
per se and public nuisance against House of Blues. House of Blues filed an answer
and third-party complaint, naming Respondents as third-party defendants. House
of Blues asserted claims against Respondents for breach of contract, negligent
misrepresentation, negligence, equitable indemnification, contractual
indemnification, and contribution. House of Blues asserted it entered a
"Co-Promotion Agreement" (the Agreement) with Throttlefest with an effective
date of March 19, 2014, regarding "the functions and acts necessary for promoting
and conducting the [Event], to be held May 9-17, 2014." House of Blues referred
to several specific provisions of the Agreement in the complaint.

2
Ballard is the sole managing member of Full Throttle and Sloon Shine, and
Dupree is the sole incorporator of American Outlaw.
3
The other plaintiff was not included in the second amended complaint.
4
The complaint also named HOB Entertainment, Inc., but in its answer, House of
Blues stated it was the real party in interest as it related to all House of Blues
defendants.
Throttlefest filed its answer and moved pursuant to Rule 12(b)(6), SCRCP, to
dismiss House of Blues' complaint. In support of its motion, Throttlefest argued
(1) Kelsey gave it a release in good faith, which extinguished its liability to Kelsey
and thereby discharged any liability to House of Blues; (2) its relationship with
House of Blues was governed solely by contract, thus barring House of Blues'
causes of action sounding in tort and equity; (3) Throttlefest neither owed a duty
nor breached any duty owed to House of Blues; and (4) House of Blues' claims
were barred by the statute of limitations. Throttlefest also attached a copy of the
Agreement. In opposing the motion, House of Blues first argued Throttlefest's
arguments required the circuit court to consider matters outside of the face of the
complaint and it would be inappropriate to convert the motion into a motion for
summary judgment because it was not given a reasonable opportunity to present
materials pertinent to such a motion. Second, it contended Throttlefest's settlement
with Kelsey (the Settlement) was not made in good faith and dismissal based upon
the Settlement would violate House of Blues' rights to due process and equal
protection. Third, it argued the Agreement did not preclude its tort and equity
claims because it was permitted to plead alternative theories of liability.
Specifically, it argued some of Throttlefest's duties arose outside of the Agreement
and it anticipated Throttlefest would dispute the validity and scope of the
Agreement. Finally, it asserted that the statute of limitations defense required
reference to material outside of the complaint and that, regardless, the earliest date
upon which it knew or should have known of its third-party claims was October
20, 2016, when it learned of the first-party claims.

The circuit court, Circuit Court Judge Benjamin H. Culbertson, heard the motion
on January 8, 2020. Throttlefest repeated its prior arguments and referenced
material outside of the complaint, including the Settlement and deposition
testimony obtained in the first-party suit. House of Blues again argued the court
was required to consider the motion under the 12(b)(6), SCRCP, standard, which
limited the court to considering only the answer and third-party complaint, and that
Throttlefest's motion would be more appropriately made under Rule 56, SCRCP.

On February 4, 2020, the circuit court issued an order granting Throttlefest's
motion to dismiss "[a]fter considering all materials filed and submitted by both
parties." The circuit court stated it could consider documents outside the pleadings
in deciding the motion when the documents were "integral to the complaint,
explicitly relied on in the complaint, and where the plaintiff does not challenge
their authenticity." The circuit court concluded section 15-38-50 of the South
Carolina Code (2005) 5 and the holding in Tiffany 6 precluded House of Blues' claim
for contribution because Throttlefest settled with Kelsey and "received a full and
final release of all liability and damages of any kind relating to the injuries [he]
sustained from the accident." Further, it rejected House of Blues' argument that its
due process or equal protection rights would be violated by not allowing
Throttlefest back into the case.

The circuit court next concluded the three-year statute of limitations barred House
of Blues' claims for breach of contract, contractual indemnity, negligent
misrepresentation, and negligence. House of Blues either knew or should have
known of at least some of Throttlefest's breaches of the Agreement or misconduct
during the Event, which occurred in May 2014. The circuit court rejected House
of Blues' contention that its causes of action did not accrue until October 20, 2016,
when it learned of Kelsey's injuries. It further rejected House of Blues' argument
that equitable tolling or estoppel applied.

The circuit court next held the Agreement precluded House of Blues' claims for
negligent misrepresentation, negligence, and equitable indemnification because the
claims pertained to Throttlefest's conduct during the Event and it alleged the
Agreement concerned "'the functions and acts necessary for promoting and
conducting' the Event." The circuit court thus concluded the third-party complaint
sounded in breach of contract rather than tort. The circuit court concluded House
of Blues' equitable indemnification claim must also be dismissed because the
Agreement contained cross-indemnification provisions. House of Blues filed a
motion to reconsider, which the circuit court denied by Form 4 Order.

The remaining defendants, American Outlaw, Full Throttle, and Sloon Shine
(collectively, the Non-Hosting Respondents) each filed a motion to dismiss
pursuant to Rules 12(b)(2) and 12(b)(6), SCRCP. The circuit court, Circuit Court
Judge William A. McKinnon, heard the motions and issued an order dismissing the
Non-Hosting Respondents, finding it lacked personal jurisdiction over them and
House of Blues failed to state a claim for which relief could be granted against

5
See § 15-38-50(2) ("When a release or a covenant not to sue . . . is given in good
faith to one of two or more persons liable in tort for the same injury . . . it
discharges the tortfeasor to whom it is given from all liability for contribution to
any other tortfeasor.").
6
See 419 S.C. at 561, 799 S.E.2d at 486 (holding that according to the terms of the
covenant not to execute, a settling defendant had no additional liability to any
non-settling defendant or other alleged tortfeasors pursuant to section 15-38-50).
them. Thereafter, House of Blues filed a motion to reconsider, which the circuit
court granted in part and substituted a new order in place of its prior order; in its
July 31, 2020 substituted order, the circuit court dismissed the Non-Hosting
Respondents solely on the ground that it lacked personal jurisdiction over these
parties. The appeals of the February 4, 2020 and July 31, 2020 orders followed. 7

ANALYSIS

I. Rule 12(b)(6), SCRCP, Dismissal

House of Blues argues Throttlefest's motion to dismiss pursuant to Rule 12(b)(6),
SCRCP, required consideration of matters outside of the pleadings and that it had
no notice the motion to dismiss would be converted to a motion for summary
judgment and therefore had no opportunity to submit evidence to challenge
Throttlefest's arguments. We agree.

We hold the circuit court erred by granting Throttlefest's motion to dismiss
pursuant to Rule 12(b)(6) because its ruling required consideration of matters
outside of House of Blues' answer and third-party complaint and the motion was
not properly converted to a motion for summary judgment. See Doe v. Marion,
373 S.C. 390, 395, 645 S.E.2d 245, 247 (2007) ("In reviewing the dismissal of an
action pursuant to Rule 12(b)(6), SCRCP, the appellate court applies the same
standard of review as the trial court."); Carnival Corp. v. Hist. Ansonborough
Neighborhood Ass'n, 407 S.C. 67, 74, 753 S.E.2d 846, 850 (2014) ("In considering
a motion to dismiss under Rule 12(b)(6), a court must base its ruling solely on the
allegations set forth in the complaint."); Marion, 373 S.C. at 395, 645 S.E.2d at
247 ("If the facts alleged and inferences reasonably deducible therefrom, viewed in
the light most favorable to the plaintiff, would entitle the plaintiff to relief on any
theory, then dismissal under Rule 12(b)(6) is improper."); id. at 395, 645 S.E.2d at
248 ("The complaint should not be dismissed merely because the court doubts the
plaintiff will prevail in the action.").

Here, the circuit court expressly stated it considered the Settlement in ruling upon
the motion but did not state it had converted the motion to a motion for summary
judgment. House of Blues argued at the hearing that the circuit court must limit its
consideration to matters contained in the third-party complaint. Because House of
Blues was not on notice the motion to dismiss would be converted to a motion for

7
House of Blues and Kelsey entered into a settlement agreement on June 30, 2020,
and Kelsey signed a release on August 28, 2020.
summary judgment, House of Blues was not provided a reasonable opportunity to
respond to Throttlefest's arguments. See Rule 12(b), SCRCP ("If, on a motion
[pursuant to Rule 12(b)](6) to dismiss for failure of the pleading to state facts
sufficient to constitute a cause of action, matters outside the pleading are presented
to and not excluded by the [c]ourt, the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56[, SCRCP,] and all parties shall
be given reasonable opportunity to present all material made pertinent to such a
motion by Rule 56." (emphasis added)); Rule 56(c), SCRCP ("The motion shall be
served at least [ten] days before the time fixed for the hearing. The adverse party
may serve opposing affidavits not later than two days before the hearing. The
judgment sought shall be rendered forthwith if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law."); Rule 56(e), SCRCP (setting forth
requirements regarding submissions of affidavits in support of a Rule 56(c) motion
and stating that "[w]hen a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the mere allegations or
denials of his pleading, but his response, by affidavits or as otherwise provided in
this rule, must set forth specific facts showing that there is a genuine issue for
trial"); see also Brown v. Leverette, 291 S.C. 364, 367, 353 S.E.2d 697, 698-99
(1987) ("It is our view the language of [Rule 12(b)] is clear, and it states plainly
that the trial court may treat a 12(b)(6) motion as a motion for summary judgment
and consider matters presented outside of the pleadings if the parties are afforded a
reasonable opportunity to respond to such matters in accordance with Rule[s] 56(c)
and (e) . . . . The notice provisions in Rule 56 are incorporated into Rule
12(b)(6)."); id. at 367, 353 S.E.2d at 699 (holding the circuit court erred in
considering the defendant's supporting affidavits in ruling on a 12(b)(6) motion
when its finding that the defendant did not owe a duty to the plaintiff was not
apparent from the face of the complaint and "could only have been discerned from
the affidavits" and the circuit court had given "no notice to the parties that it was
going to consider the affidavits and hear the 12(b)(6) motion as a motion for
summary judgment").

Specifically, as to House of Blues' claim for contribution, the circuit court could
not have ruled upon that issue without considering the Settlement. See Carnival
Corp., 407 S.C. at 74, 753 S.E.2d at 850 ("In considering a motion to dismiss
under Rule 12(b)(6), [SCRCP,] a court must base its ruling solely on the
allegations set forth in the complaint."); Brown, 291 S.C. at 367, 353 S.E.2d at
698-99 ("[T]he trial court may treat a 12(b)(6) motion as a motion for summary
judgment and consider matters presented outside of the pleadings if the parties are
afforded a reasonable opportunity to respond to such matters in accordance with
Rule 56(c) and (e) . . . ."); cf. Doe v. Bishop of Charleston, 407 S.C. 128, 133-35,
135 n.2, 754 S.E.2d 494, 497-98, 498 n.2 (2014) (holding the trial court did not err
in considering a settlement agreement in deciding a motion to dismiss when the
plaintiffs alleged matters in their complaint related to the settlement). House of
Blues' third-party complaint did not mention the Settlement. Even if the circuit
court properly considered Throttlefest's answer in ruling on the motion,
Throttlefest did not attach the Settlement to its answer. The Settlement was not
provided to the circuit court until the hearing, at which time House of Blues argued
the circuit court should not consider matters outside of the third-party complaint.
Further, House of Blues argued it had not conducted discovery regarding the
Settlement and whether it was made in good faith was unclear. Based on the
foregoing, we conclude the circuit court erred in considering the Settlement
because House of Blues did not have a reasonable opportunity to respond to
Throttlefest's arguments pertaining to the Settlement.

As to the expiration of the statute of limitations, we hold it is not clear from the
face of the complaint that the statute had expired as to any of House of Blues'
claims. House of Blues alleged it did not have notice of its claims until October
20, 2016, when it learned of Kelsey's accident. Throttlefest argued House of Blues'
claims accrued at the time of the Event because that is when the conduct House of
Blues complained of occurred. We hold a determination of this question required
consideration of matters outside of the complaint. See Spence v. Spence, 368 S.C.
106, 123, 628 S.E.2d 869, 878 (2006) ("[A]n affirmative defense ordinarily may
not be asserted in a motion to dismiss under Rule 12(b)(6) unless the allegations of
the complaint demonstrate the existence of the affirmative defense.");
CoastalStates Bank v. Hanover Homes of S.C., LLC, 408 S.C. 510, 517, 759 S.E.2d
152, 156 (Ct. App. 2014) ("Pursuant to the discovery rule, a breach of contract
action accrues not on the date of the breach, but rather on the date the aggrieved
party either discovered the breach, or could or should have discovered the breach
through the exercise of reasonable diligence." (quoting Maher v. Tietex Corp., 331
S.C. 371, 377, 500 S.E.2d 204, 207 (Ct. App. 1998))); see also Brown, 291 S.C. at
367, 353 S.E.2d at 699 (holding the circuit court erred in ruling on a statute of
limitations defense in considering a 12(b)(6) motion to dismiss when such defense
"w[as] not apparent from the face of the complaint"). Thus, we conclude the
circuit court erred by dismissing House of Blues' claims based on the running of
the statute of limitations.

As to the circuit court's conclusion the Agreement precluded House of Blues from
asserting tort and equity claims against Throttlefest, we hold this also required
consideration of matters outside of the complaint. House of Blues alleged
Throttlefest owed it duties arising outside the scope of the Agreement. This
allegation was sufficient to survive a Rule 12(b)(6) motion, and the circuit court
erred in dismissing House of Blues' tort and equity claims because it considered
matters outside of the third-party complaint in ruling on this issue. See Tommy L.
Griffin Plumbing & Heating Co. v. Jordan, Jones & Goulding, Inc., 320 S.C. 49,
54-55, 463 S.E.2d 85, 88 (1995) ("A breach of a duty which arises under the
provisions of a contract between the parties must be redressed under contract, and
a tort action will not lie. A breach of a duty arising independently of any contract
duties between the parties, however, may support a tort action."); see also Marion,
373 S.C. at 395, 645 S.E.2d at 248 ("The complaint should not be dismissed
merely because the court doubts the plaintiff will prevail in the action.").

As to House of Blues' argument that the circuit court erred by relying on Tiffany to
support its finding that dismissal of the contribution claim would not impact its due
process and equal protection rights, House of Blues acknowledged during oral
argument that its settlement with Kelsey—which occurred after the proceedings
below—dispensed with this issue. We therefore hold this issue is moot and decline
to address it. See Sloan v. Friends of the Hunley, Inc., 369 S.C. 20, 26, 630 S.E.2d
474, 477 (2006) ("A moot case exists where a judgment rendered by the court will
have no practical legal effect upon an existing controversy because an intervening
event renders any grant of effectual relief impossible for the reviewing court. If
there is no actual controversy, this [c]ourt will not decide moot or academic
questions." (citation omitted)).

We decline to address House of Blues' remaining arguments that the circuit court
erred by failing to allow it to amend its complaint and by failing to toll the running
of the statute of limitations because our decision to reverse the circuit court's order
granting Throttlefest's motion to dismiss is dispositive. See Futch v. McAllister
Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999)
(holding an appellate court need not address remaining issues when the disposition
of a prior issue is dispositive).

II. Rule 12(b)(2), SCRCP, Dismissal

House of Blues argues the circuit court erred by concluding it did not have
personal jurisdiction of the Non-Hosting Respondents. House of Blues argues
Throttlefest acted as an agent of the Non-Hosting Respondents in entering into the
Agreement. House of Blues further contends that Ballard and Dupree, who both
attended the Event, did so as representatives of their respectively owned
companies. House of Blues therefore argues Ballard's and Dupree's conduct during
the Event was sufficient to confer personal jurisdiction over the Non-Hosting
Respondents. We disagree.

We hold the circuit court did not err in concluding House of Blues failed to
establish these entities had sufficient contacts to confer personal jurisdiction. See
Cockrell v. Hillerich & Bradsby Co., 363 S.C. 485, 491, 611 S.E.2d 505, 508
(2005) (holding that in reviewing the circuit court's ruling on a question of personal
jurisdiction, "[t]he decision of the [circuit] court should be affirmed unless
unsupported by the evidence or influenced by an error of law"); id. ("At the pretrial
stage, the burden of proving personal jurisdiction over a nonresident is met by a
prima facie showing of jurisdiction either in the complaint or in affidavits."); see
also Coggeshall v. Reprod. Endocrine Assocs. of Charlotte, 376 S.C. 12, 16, 655
S.E.2d 476, 478 (2007) ("When a motion to dismiss attacks the allegations of the
complaint on the issue of jurisdiction, the court is not confined to the allegations of
the complaint but may resort to affidavits or other evidence to determine
jurisdiction."). In its third-party complaint, House of Blues alleged that American
Outlaw is a Georgia corporation, that Full Throttle and Sloon Shine are South
Dakota companies, and that these companies transact business in South Carolina.
House of Blues additionally alleged that Full Throttle and Sloon Shine produced
and sold liquor under the brand S'loon Shine and that American Outlaw produced
and sold liquor under the brand American Outlaw liquor. However, House of
Blues argues only that the circuit court had specific—as opposed to general—
jurisdiction over the Non-Hosting Respondents. The circuit court has specific
jurisdiction of a party only when the cause of action arises from that party's actions
as enumerated in section 36-2-803 of the South Carolina Code (Supp. 2023). See
Coggeshall, 376 S.C. at 16, 655 S.E.2d at 478 ("Specific jurisdiction is the State's
right to exercise personal jurisdiction because the cause of action arises specifically
from a defendant's contacts with the forum; specific jurisdiction is determined
under [section] 36-2-803 . . . ."); see also § 36-2-803(A) ("A court may exercise
personal jurisdiction over a person who acts directly or by an agent as to a cause of
action arising from the person's: (1) transacting any business in this State; . . . (3)
commission of a tortious act in whole or in part in this State; . . . [or] (7) entry into
a contract to be performed in whole or in part by either party in this State . . . .");
§ 36-2-803(B) ("When jurisdiction over a person is based solely upon this section,
only a cause of action arising from acts enumerated in this section may be asserted
against him."). Here, although House of Blues alleged S'loon Shine and American
Outlaw liquors were being served, sold, and promoted at Throttlefest, its claims
regarding the service of alcohol to an intoxicated person did not arise out of or
relate to the brand or type of alcohol being served at the Event. Thus, the alleged
service of the Non-Hosting Respondents' brands of alcohol at the Event did not
give rise to House of Blues' allegations. Accordingly, the allegation that the
Non-Hosting Respondents transact business in South Carolina was insufficient to
confer specific personal jurisdiction over these parties. See Coggeshall, 376 S.C.
at 20, 655 S.E.2d at 480 ("As noted in subsection (B)[ of section 36-2-803],
jurisdiction under this section is limited to a cause of action arising from a specific
activity within this State."); id. at 16, 655 S.E.2d at 478 ("The exercise of personal
jurisdiction . . . must comport with due process requirements and must not offend
traditional notions of fair play and substantial justice."); id. ("Due process requires
some act by which the defendant purposefully avails itself of the privilege of
conducting activities within the forum state."); Cockrell, 363 S.C. at 491, 611
S.E.2d at 508 ("Because South Carolina treats its long-arm statute as coextensive
with the due process clause, the sole question becomes whether the exercise of
personal jurisdiction would violate due process."); see also Bristol-Myers Squibb
Co. v. Superior Ct. of Cal., S.F. Cnty., 582 U.S. 255, 262 (2017) ("In order for a
state court to exercise specific jurisdiction, 'the suit' must 'aris[e] out of or relat[e]
to the defendant's contacts with the forum.'" (alterations in original) (quoting
Daimler AG v. Bauman, 571 U.S. 117, 127 (2014))).

Next, we hold no evidence shows the Non-Hosting Respondents entered into a
contract to be performed in this state and therefore subsection 36-2-803(A)(7) does
not apply. See § 36-2-803(A)(7) ("A court may exercise personal jurisdiction over
a person who acts directly or by an agent as to a cause of action arising from the
person's . . . entry into a contract to be performed in whole or in part by either party
in this State . . . ."). House of Blues did not allege any of the Non-Hosting
Respondents was a party to the Agreement. Moreover, House of Blues did not
allege it engaged with Throttlefest under the impression that Throttlefest was an
agent for any of the Non-Hosting Respondents when entering into the Agreement.
Therefore, we reject House of Blues' argument Throttlefest was acting as an agent
of the Non-Hosting Respondents in entering into the Agreement. See Hodge v.
UniHealth Post-Acute Care of Bamberg, LLC, 422 S.C. 544, 564, 813 S.E.2d 292,
303 (Ct. App. 2018) ("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
Froneberger v. Smith, 406 S.C. 37, 49, 748 S.E.2d 625, 631 (Ct. App. 2013))); see
also Cowburn v. Leventis, 366 S.C. 20, 39, 619 S.E.2d 437, 448 (Ct. App. 2005)
("An agency relationship may be established by evidence of actual or apparent
authority." (quoting Charleston, S.C. Registry for Golf Tourism, Inc. v. Young
Clement Rivers Tisdale, LLP, 359 S.C. 635, 642, 598 S.E.2d 717, 721 (Ct. App.
2004))); id. ("The 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, 62, 409 S.E.2d 769, 771 (1991))); id. at 39-40,
619 S.E.2d at 448 ("[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))).

Finally, we hold no evidence shows the Non-Hosting Respondents committed a
tortious act in whole or in part in this state in relation to House of Blues' claims.
See § 36-2-803(A)(3) ("A court may exercise personal jurisdiction over a person
who acts directly or by an agent as to a cause of action arising from the
person's . . . commission of a tortious act in whole or in part in this State . . . .").
We reject House of Blues' contention that Michael Garner was acting as an agent
of the Non-Hosting Respondents. See Hodge, 422 S.C. at 564, 813 S.E.2d at 303
("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 Froneberger, 406
S.C. at 49, 748 S.E.2d at 631)); see also Cowburn, 366 S.C. at 39, 619 S.E.2d at
448 ("The 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, 306 S.C. at
62, 409 S.E.2d at 771)); id. at 39-40, 619 S.E.2d at 448 ("[A]n agency may not be
established solely by the declarations and conduct of an alleged agent." (alteration
in original) (quoting Frasier, 323 S.C. at 245, 473 S.E.2d at 868)). Kelsey's
complaint alleged Garner, also known as "Fajita Mike," sold and gave out shots of
S'loon Shine liquor at the Event, and that Garner gave Wagoner two consecutive
shots of liquor between 11:15 and 11:30 p.m., even though he was visibly
intoxicated. House of Blues alleged that throughout the Event, Garner was acting
as the employee or agent of Respondents and that Respondents failed to properly
train and supervise him. However, the Non-Hosting Respondents submitted
affidavits from Ballard and Dupree, who both attested Garner was neither
employed by nor an agent of the Non-Hosting Respondents during the Event.
House of Blues did not supply evidence to contradict the statements in these
affidavits. Thus, no evidence shows the Non-Hosting Respondents employed
Garner or represented him to be their agent. Further, we reject House of Blues'
arguments that Ballard and Dupree were acting as agents of their respective
companies during the Event because it supplied no evidence showing these
individuals attended the Event as agents of their respective companies. See
Walden v. Fiore, 571 U.S. 277, 291 (2014) ("[I]t is the defendant, not the plaintiff
or third parties, who must create contacts with the forum State."). Accordingly,
House of Blues has failed to provide a basis for imputing the conduct of Garner,
Ballard, or Dupree to the Non-Hosting Respondents.

Based on the foregoing, we affirm the circuit court's dismissal of the Non-Hosting
Respondents pursuant to Rule 12(b)(2) for lack of personal jurisdiction.8

CONCLUSION

We reverse the circuit court's order granting Throttlefest's Rule 12(b)(6) motion to
dismiss. We affirm the circuit court's order granting the Non-Hosting
Respondent's Rule 12(b)(2) motion to dismiss based on lack of personal
jurisdiction. Accordingly, the circuit court's order is

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

KONDUROS and VINSON, JJ., and LOCKEMY, A.J., concur.

8
We decline to address the Non-Hosting Respondents' arguments regarding
additional sustaining grounds. See I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C.
406, 420, 526 S.E.2d 716, 723 (2000) ("It is within the appellate court's discretion
whether to address any additional sustaining grounds."); id. at 420 n.9, 526 S.E.2d
at 723 n.9 ("The appellate court may find it unnecessary to discuss respondent's
additional sustaining grounds when its affirmance is grounded in an issue
addressed by the lower court.").