Plaza Development Services v. Joe Harden Builder, Inc., No. 1191

CourtCourt of Appeals of South Carolina
Writing for the CourtBELL; SANDERS, C.J., and LITTLEJOHN
Citation370 S.E.2d 893,296 S.C. 115
Docket NumberNo. 1191
Decision Date16 May 1988
PartiesPLAZA DEVELOPMENT SERVICES, a South Carolina Joint Venture, Appellant, v. JOE HARDEN BUILDER, INC., Baker Masonry, Inc., Grayco Steel, Inc., Richard E. Martin, AIA and Associates, and United States Fidelity and Guaranty Company, Respondents. . Heard

Page 893

370 S.E.2d 893
296 S.C. 115
PLAZA DEVELOPMENT SERVICES, a South Carolina Joint Venture, Appellant,
v.
JOE HARDEN BUILDER, INC., Baker Masonry, Inc., Grayco Steel,
Inc., Richard E. Martin, AIA and Associates, and
United States Fidelity and Guaranty
Company, Respondents.
No. 1191.
Court of Appeals of South Carolina.
Heard May 16, 1988.
Decided July 11, 1988.
Certiorari Denied Oct. 5, 1988.

Page 894

[296 S.C. 116] L. Franklin Elmore, Columbia, for appellant.

Hubert J. Bell, Jr., J. Alexander Porter and Sidney R. Barrett, Jr. of Porter & Doster, Atlanta, Ga., Michael W. Battle and John B. McCutcheon, Jr., Conway, Thomas E. Pedersen, Charleston, DeWitt T. Black, III, Hilton Head Island, Robert M. Erwin, Jr., Myrtle Beach, and Saunders M. Bridges, Jr., Florence, for respondents.

BELL, Judge:

Plaza Development Services commenced this action for damages for alleged defects in the design and construction of a residential building. The complaint alleged counts in negligence, breach of implied and express warranties, fraud, and unfair trade practices. The defendant Joe Harden [296 S.C. 117] Builder, Inc., moved to dismiss the action against it pursuant to Rule 12(b)(1), S.C.R.Civ.P., on the ground the claims are subject to arbitration under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. The defendant United States Fidelity and Guaranty Company moved to dismiss Plaza's negligence, implied warranty, and fraud causes of action pursuant to Rule 12(b)(6), S.C.R.Civ.P., for failure to state a claim upon which relief can be granted. By separate orders, the circuit court granted the motions to dismiss. Plaza appeals. We affirm.

I.

We first address the granting of Harden's motion.

A related action involving the same parties, the same subject matter, and the same issue of arbitration was previously adjudicated by the circuit court. In that action, the court ordered the dispute between Plaza and Harden to compulsory arbitration. We affirmed the prior order. See Plaza Development Services v. Joe Harden Builder, Inc., 294 S.C. 430, 365 S.E.2d 231 (Ct.App.1988). In this appeal, Plaza again seeks to avoid arbitration.

A.

Plaza first argues that the arbitration clause was not before the circuit court and therefore could not be considered in ruling

Page 895

on the motion. The argument is without merit. The arbitration clause was incorporated as an exhibit to the judge's order. Moreover, Plaza did not raise this issue in the circuit court. An issue not presented to the circuit court...

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4 practice notes
  • Murphy v. Owens-Corning Fiberglas Corp., No. 3354.
    • United States
    • Court of Appeals of South Carolina
    • 11 Junio 2001
    ...subsequently by our courts. The McLeod case was cited as a general related authority in Plaza Dev. Services v. Joe Harden Builder, Inc., 296 S.C. 115, 370 S.E.2d 893 (Ct.App.1988). In that case, this court held that an order granting a Rule 12(b)(6), SCRCP, motion as to some but not all cla......
  • Murphy v. Murphy, 3203
    • United States
    • Court of Appeals of South Carolina
    • 26 Junio 2000
    ...subsequently by our courts. The McLeod case was cited as a general related authority in Plaza Development Services v. Joe Harden Builder, 296 S.C. 115, 370 S.E.2d 893 (Ct. App. 1988). In that case, this court held that an order granting a Rule 12(b)(6), SCRCP, motion as to some but not all ......
  • Link v. School Dist. of Pickens County, No. 23211
    • United States
    • United States State Supreme Court of South Carolina
    • 7 Febrero 1990
    ...limiting agreement on employee's at-will employment status. 2 Our research reveals that Plaza Dev. Services v. Joe Harden Builder, Inc., 296 S.C. 115, 370 S.E.2d 893 (Ct.App.1988), stands in complete conflict with Lebovitz on this point. Plaza Dev. Services is accordingly overruled to the e......
  • Blanks v. Rawson, No. 1190
    • United States
    • Court of Appeals of South Carolina
    • 11 Julio 1988
    ...of the lake. Before the fence was constructed, they could sit on their back porch and look at the lake across the Rawson property. Rawson [296 S.C. 115] received permission from the developer to construct the The Declaration of Restrictions does not contain language creating a covenant of v......
4 cases
  • Murphy v. Owens-Corning Fiberglas Corp., No. 3354.
    • United States
    • Court of Appeals of South Carolina
    • 11 Junio 2001
    ...subsequently by our courts. The McLeod case was cited as a general related authority in Plaza Dev. Services v. Joe Harden Builder, Inc., 296 S.C. 115, 370 S.E.2d 893 (Ct.App.1988). In that case, this court held that an order granting a Rule 12(b)(6), SCRCP, motion as to some but not all cla......
  • Murphy v. Murphy, 3203
    • United States
    • Court of Appeals of South Carolina
    • 26 Junio 2000
    ...subsequently by our courts. The McLeod case was cited as a general related authority in Plaza Development Services v. Joe Harden Builder, 296 S.C. 115, 370 S.E.2d 893 (Ct. App. 1988). In that case, this court held that an order granting a Rule 12(b)(6), SCRCP, motion as to some but not all ......
  • Link v. School Dist. of Pickens County, No. 23211
    • United States
    • United States State Supreme Court of South Carolina
    • 7 Febrero 1990
    ...limiting agreement on employee's at-will employment status. 2 Our research reveals that Plaza Dev. Services v. Joe Harden Builder, Inc., 296 S.C. 115, 370 S.E.2d 893 (Ct.App.1988), stands in complete conflict with Lebovitz on this point. Plaza Dev. Services is accordingly overruled to the e......
  • Blanks v. Rawson, No. 1190
    • United States
    • Court of Appeals of South Carolina
    • 11 Julio 1988
    ...of the lake. Before the fence was constructed, they could sit on their back porch and look at the lake across the Rawson property. Rawson [296 S.C. 115] received permission from the developer to construct the The Declaration of Restrictions does not contain language creating a covenant of v......

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