Samuel v. Schumacher Homes of S.C., 2022-UP-148

• Court: Court of Appeals of South Carolina
• Writing for the Court: PER CURIAM:
• Decision Date: 23 March 2022
• Parties: Everett Samuel, Jr., Respondent, v. Schumacher Homes of South Carolina, Heather McCarley, and Dave Boldman, Appellants.
• Docket Number: Appellate 2019-001972,2022-UP-148

Everett Samuel, Jr., Respondent,
v.
Schumacher Homes of South Carolina, Heather McCarley, and Dave Boldman, Appellants.

No. 2022-UP-148

Appellate No. 2019-001972

Court of Appeals of South Carolina

March 23, 2022

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.

Submitted March 17, 2022

Appeal From Darlington County Roger E. Henderson, Circuit Court Judge

Kenneth Michael Barfield and John William Fletcher, both of Barnwell Whaley Patterson & Helms, LLC, of Charleston, for Appellants.

Vincent Austin Sheheen and Gregory Brian Collins, both of Savage Royall & Sheheen, of Camden, for Respondent.

PER CURIAM:

Schumacher Homes of South Carolina, Heather McCarley, and Dave Boldman (collectively, Appellants) appeal the circuit court's denial of their

1

motion to dismiss Everett Samuel, Jr.'s action against them and compel arbitration. We affirm pursuant to Rule 220(b), SCACR.

1. We hold the issue of waiver of arbitration through litigation is one for the court to decide rather than arbitrators. We find Appellants' reliance on BG Group, PLC v. Republic of Argentina is misplaced because the waiver defenses the Supreme Court held were for arbitrators to decide did not include waiver of arbitration through litigation. See BG Grp., PLC v. Republic of Argentina, 572 U.S. 25, 35 (2014) (stating procedural matters including claims of "waiver, delay, or a like defense to arbitrability" are for arbitrators to decide (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 (1983))); Glass v. Kidder Peabody & Co. 114 F.3d 446, 455 n.62 (4th Cir. 1997) (noting these defenses bear "no relation to the 'default' a party may cite to contest a stay of litigation under section 3 of the [Federal Arbitration Act]"); 9 U.S.C.A. § 3 (West) (stating the courts should stay an action which involves "any issue referable to arbitration under an agreement in writing for such arbitration" until arbitration is completed, "providing the applicant for the stay is not in default in proceeding with such arbitration" (emphasis added)); Glass, 114 F.3d at 455 n.62 (stating section 3 default, which may be considered by the court, "encompasses the limited range of circumstances when a party seeking arbitration has 'substantially utiliz[ed] the litigation machinery' before pursuing arbitration, and permitting the moving party to arbitrate would seriously 'prejudice the party opposing the stay'" (alteration in...