Plaza Development Services v. Joe Harden Builder, Inc., 1083
| Decision Date | 25 January 1988 |
| Docket Number | No. 1083,1083 |
| Citation | 294 S.C. 430,365 S.E.2d 231 |
| Court | South Carolina Court of Appeals |
| Parties | PLAZA DEVELOPMENT SERVICES, A South Carolina Joint Venture, Appellant, v. JOE HARDEN BUILDER, INC., and Baker Masonry, Inc., Respondents. |
L. Franklin Elmore of Ogletree, Deakins, Nash, Smoak and Stewart, Columbia, and John P. Henry, of Thompson & Gwin, Conway, for appellant.
Michael W. Battle of Lovelace & Battle, Conway, Hubert J. Bell, Jr. of Smith, Currie & Hancock, Atlanta, Ga., Dewitt T. Black, III of Black & Biel, Hilton Head Island; and Thomas E. Pederson, Charleston, for respondents.
Respondent-subcontractor, Baker Masonry, Inc., (Baker) filed a demand for arbitration with the American Arbitration Association (AAA) against respondent-general contractor, Joe Harden Builder (JHB). JHB filed a demand for arbitration with AAA against appellant-developer, Plaza Development Services, a South Carolina Joint Venture (Plaza), and sought consolidation with the pending Baker arbitration proceeding. Plaza appeals from the lower court's order denying Plaza's motion for a temporary injunction and granting JHB's motion to compel arbitration and to consolidate arbitration proceedings. We affirm.
The controversy arose out of the construction of a condominium. Plaza is the developer and owner of the condominium, JHB is the general contractor and Baker is the masonry subcontractor. The project was substantially complete in August 1984, but a dispute arose between Plaza and JHB over final payment, change orders and liquidated damages. The contract between Plaza and JHB contains an arbitration clause and JHB filed a demand for arbitration with the AAA. Before the disputes could reach the arbitration stage, they were resolved by a settlement agreement between Plaza and JHB. The agreement resolved a number of issues and created a $25,000 escrow account. The $25,000 account was to be withheld from JHB to guarantee its performance of warranty work on the project for which JHB was responsible. The warranty was to extend until August 21, 1985 at which time JHB was to receive the balance of the principal and interest remaining in the escrow account provided JHB was not in default of the contract or the agreement.
On February 19, 1986, Baker initiated an arbitration proceeding against JHB by filing its demand with the AAA. JHB then demanded arbitration against Plaza to recover the $25,000 held in escrow and requested the AAA consolidate the two arbitration proceedings. Baker sought payment of over $30,000 allegedly due under the masonry subcontract. JHB denied any award was due Baker and counterclaimed against Baker for indemnification due to defective brickwork as alleged by Plaza. The cause or causes of the defective brickwork were investigated but were not completely determined. A number of causes were postulated including defective masonry work as well as defective plans and specifications. JHB made repeated demands for the release of the escrow funds but Plaza refused because of the extensive defects. Should the defective brickwork be found to have resulted from the masonry construction, JHB contends Baker was ultimately responsible.
On May 6, 1986, Plaza instituted an action in the circuit court seeking to enjoin JHB, pendente lite and permanently, from proceeding with the arbitration against Plaza and from consolidating the two proceedings. JHB answered and further moved to compel arbitration and consolidation. The trial judge denied the relief sought by Plaza and granted JHB's motion to compel and to consolidate.
Plaza contends the contract between Plaza and JHB was never before the court and, therefore, the court had no evidence before it upon which to base its finding that the contract included an arbitration clause. The contract appears in the transcript of record and includes an arbitration provision. This contract was attached as an exhibit to JHB's motion to compel and, according to the Statement of the Case, was introduced into evidence. Parties are bound by factual statements in the...
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