R.J. Griffin & Co. v. Beach Club II Homeowners Ass'n , 384 F.3d 157 ( 2004 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
R.J. GRIFFIN & COMPANY, d/b/a 
Sebrell/Griffin & Company, a/k/a
Sebrell/Griffin General Contractors,
Plaintiff-Appellant,
v.  No. 03-2177
BEACH CLUB II HOMEOWNERS
ASSOCIATION, INCORPORATED,
Defendant-Appellee.

R.J. GRIFFIN & COMPANY, d/b/a 
Sebrell/Griffin & Company, a/k/a
Sebrell/Griffin General Contractors,
Plaintiff-Appellant,
 No. 03-2178
v.
BEACH CLUB III ATWINDY HILL,
Defendant-Appellee.

R.J. GRIFFIN & COMPANY, d/b/a 
Sebrell/Griffin & Company, a/k/a
Sebrell/Griffin General Contractors,
Plaintiff-Appellant,
v.  No. 03-2179
BEACH CLUB AT WINDY HILL
CONDOMINIUM ASSOCIATION,
Defendant-Appellee.

2 R.J. GRIFFIN v. BEACH CLUB II
Appeals from the United States District Court
for the District of South Carolina, at Florence.
C. Weston Houck, District Judge.
(CA-99-3002-4-12; CA-99-3952-4-12; CA-99-3953-4-12)
Argued: June 4, 2004
Decided: September 16, 2004
Before WILKINSON, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by published opinion. Judge Michael wrote the opinion, in
which Judge Wilkinson and Judge Luttig joined.
COUNSEL
ARGUED: David Lamar Little, Jr., ROBINSON, BRADSHAW &
HINSON, P.A., Rock Hill, South Carolina, for Appellant. John Pat-
rick Henry, THOMPSON & HENRY, Conway, South Carolina, for
Appellees. ON BRIEF: Scott W. Gaylord, ROBINSON, BRAD-
SHAW & HINSON, P.A., Rock Hill, South Carolina, for Appellant.
Emma Ruth Brittain, THOMPSON & HENRY, Myrtle Beach, South
Carolina, for Appellees.
OPINION
MICHAEL, Circuit Judge:
After a South Carolina homeowners association discovered con-
struction defects in its condominium building, it sued the general con-
tractor in state court for negligence and breach of the implied
warranty of good workmanship. The general contractor then sued the
association in federal court, proceeding under the Federal Arbitration
Act (FAA), 9 U.S.C. § 1 et seq., to force arbitration under clauses in
the general construction contract and the master deed. The homeown-
R.J. GRIFFIN v. BEACH CLUB II 3
ers association is not a party to the general contract, nor does it seek
a direct benefit from the contract in asserting its claims. The general
contractor is not a third-party beneficiary of the master deed and is
not otherwise entitled to invoke its arbitration clause. We therefore
affirm the district court’s order denying the general contractor’s
motion to compel arbitration.
I.
This consolidated appeal involves three related cases filed by R.J.
Griffin & Company (Griffin), a construction company, against a
homeowners association in the District of South Carolina. In each
case Griffin seeks to compel the homeowners association to arbitrate
claims asserted against Griffin in a state court action filed in Horry
County, South Carolina. Because the arbitration provisions and legal
issues are identical in the three cases before us, the parties agreed to
base their arguments on the record in R.J. Griffin & Co. v. Beach
Club II Homeowners Ass’n, No. 03-2177 (4th Cir.). The facts are as
follows.
On October 27, 1995, Drake Development Corporation IV (Drake),
as owner, entered into a general construction contract with Griffin, as
contractor. Drake agreed to pay Griffin $4.8 million to construct a
forty-five unit condominium known as The Beach Club II at Windy
Hill (The Beach Club), located in North Myrtle Beach, South Caro-
lina. Section 7.9.1 of the general conditions in the contract requires
that "[a]ll claims, disputes and other matters in question between the
Contractor [Griffin] and the Owner [Drake] arising out of, or relating
to, the Contract Documents or the breach thereof . . . shall be decided
by arbitration." J.A. 129.
After Griffin completed construction of The Beach Club in 1996,
Drake filed a master deed for the property in the Register of Deeds
for Horry County, South Carolina. The deed imposes certain restric-
tions and obligations on the Grantor (Drake), the owners of individual
condominium units, and the Beach Club II Homeowners Association,
Inc. (the Association), an entity charged by the deed to maintain the
common elements of The Beach Club property. Article XXIV of the
deed requires the arbitration of "any dispute arising out of use, owner-
ship or occupancy of . . . the Common Elements . . . and any com-
4 R.J. GRIFFIN v. BEACH CLUB II
plaint against the Grantor." J.A. 114. Griffin, the contractor, is not a
party to the deed, nor is it referred to anywhere in the deed’s provi-
sions.
After Drake conveyed title to the buyers of the individual condo-
minium units, the building began leaking water through its exterior
walls. A subsequent inspection revealed numerous construction
defects. On March 2, 1999, the Association filed a complaint in South
Carolina state court against Griffin, Drake, and two other defendants.
The complaint, as amended, asserted claims against Griffin for negli-
gence and breach of the implied warranty of good workmanship.
Later, on September 7, 1999, Griffin filed a complaint in federal court
seeking an order, under the FAA and South Carolina state law, to
compel the Association to arbitrate its negligence and breach of war-
ranty claims. Griffin alleged that the Association was subject to man-
datory arbitration based on provisions in the general construction
contract and The Beach Club master deed. Griffin filed a motion to
compel arbitration, but the district court dismissed Griffin’s com-
plaint, citing principles of abstention. We reversed and remanded,
instructing the district court to rule on the merits of Griffin’s motion
to compel arbitration. R.J. Griffin & Co. v. Beach Club II Homeown-
ers Ass’n, 3 Fed. Appx. 43 (4th Cir. 2001) (unpublished). On remand
the district court denied Griffin’s motion to compel, and Griffin
appeals for the second time.
II.
Griffin argues that the Association is compelled to arbitrate its neg-
ligence and breach of warranty claims under two separate arbitration
provisions. First, Griffin asserts that equitable estoppel binds the
Association to the general contract’s arbitration provision. Second,
Griffin asserts that it is a third-party beneficiary of the master deed,
which permits it to invoke the deed’s arbitration provision. Griffin
says in the alternative that the Association is equitably estopped from
avoiding the master deed’s arbitration provision.
A.
Griffin’s main argument is that the arbitration clause in the general
contract is enforceable against the Association through the doctrine of
R.J. GRIFFIN v. BEACH CLUB II 5
1
equitable estoppel. Generally, "arbitration is a matter of contract and
a party cannot be required to submit to arbitration any dispute which
[it] has not agreed" to arbitrate. Int’l Paper Co. v. Schwabedissen
Maschinen & Anlagen GMBH, 206 F.3d 411, 416 (4th Cir. 2000)
(quoting United Steelworkers v. Warrior & Gulf Navigation Co., 363
U.S. 574, 582 (1960)). Of course, it is well established that "a party
can agree to submit to arbitration by means other than personally
signing a contract containing an arbitration clause." Id. This happens
when "theories arising out of common law principles of contract and
agency law" are used to bind nonsignatories to arbitration agreements.
Id. at 417 (quoting Thomson-CSF v. Am. Arbitration Ass’n, 64 F.3d
773, 776 (2d Cir. 1995)). In the present case Griffin asserts that the
Association, though not a signatory to the general contract, is equita-
bly estopped from avoiding the contract’s arbitration provision.
The doctrine of equitable estoppel "precludes a party from assert-
ing rights he otherwise would have had against another when his own
conduct renders assertion of those rights contrary to equity." Id. at
417-18 (internal quotation marks and citations omitted). In the context
of arbitration, the doctrine applies when one party attempts "to hold
[another party] to the terms of [an] agreement" while simultaneously
1
In deciding whether a party may be compelled to arbitrate a dispute,
we "apply ordinary state law principles that govern the formation of con-
tracts," First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944
(1995), and "the federal substantive law of arbitrability," Moses H. Cone
Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). In other
words,
state law determines questions concerning the validity, revoca-
bility, or enforceability of contracts generally, but the Federal
Arbitration Act . . . create[s] a body of federal substantive law
of arbitrability, applicable to any arbitration agreement within
the coverage of the Act. Because the determination of whether
[the Association], a nonsignatory, is bound by the [general] con-
tract presents no state law question of contract formation or
validity, we look to the federal substantive law of arbitrability to
resolve this question.
Int’l Paper Co. v. Schwabedissen Maschinen & Anlagen GMBH, 206
F.3d 411, 417 n.4 (4th Cir. 2000) (internal quotation marks and citations
omitted).
6 R.J. GRIFFIN v. BEACH CLUB II
trying to avoid the agreement’s arbitration clause. Hughes Masonry
Co., Inc. v. Greater Clark County Sch. Bldg. Corp., 659 F.2d 836, 838
(7th Cir. 1981). We have held more specifically that "[a] nonsignatory
is estopped from refusing to comply with an arbitration clause when
it [is seeking or] receives a direct benefit from a contract containing
an arbitration clause." Schwabedissen, 206 F.3d at 418 (quotation
marks and citations omitted). Our job here is to determine whether the
Association is seeking a direct benefit from the general construction
contract between Drake and Griffin.
Our guidance for this inquiry comes from Schwabedissen, 206 F.3d
411, where we applied the "direct benefits" theory of estoppel in
affirming the enforcement of an arbitration award. In that case Inter-
national Paper Company (by a predecessor) agreed to buy an indus-
trial saw from Wood Systems, Inc., a distributor. Wood Systems, in
turn, engaged its manufacturer, Schwabedissen Maschinen & Anlagen
GMBH, to build the saw according to specifications set forth in a con-
tract between Wood and Schwabedissen. The saw was delivered to
International Paper in due course, but it never worked properly. Wood
Systems went bankrupt in the meantime, and International Paper sued
Schwabedissen in district court, alleging "breach of contract . . . and
breach of warranties" based on the Wood-Schwabedissen contract. Id.
at 414. The district court granted Schwabedissen’s motion to compel
International Paper to arbitrate based on an arbitration clause in the
Wood-Schwabedissen contract. After Schwabedissen won in arbitra-
tion, the district court enforced the award against International Paper.
On appeal to us International Paper repeated its argument that it was
not bound to arbitrate because it was not a signatory to the Wood-
Schwabedissen contract. We disagreed because "a party may be
[equitably] estopped from asserting that the lack of his signature on
a written contract precludes enforcement of the contract’s arbitration
clause when he has consistently maintained that other provisions of
the same contract should be enforced to benefit him." Id. at 418.
Because International Paper was seeking to gain a direct benefit from
certain provisions in the Wood-Schwabedissen contract, we held that
it was estopped from avoiding the contract’s arbitration provision. As
we explained:
The Wood-Schwabedissen contract provides part of the fac-
tual foundation for every claim asserted by International
R.J. GRIFFIN v. BEACH CLUB II 7
Paper against Schwabedissen. . . . International Paper
alleges that Schwabedissen failed to honor the warranties in
the Wood-Schwabedissen contract and it seeks damages,
revocation, and rejection "in accordance with" that contract.
International Paper’s entire case hinges on its asserted rights
under the Wood-Schwabedissen contract; it cannot seek to
enforce those contractual rights and avoid the contract’s
[arbitration] requirement.
Id.
In urging arbitration in this case, Griffin relies on the first sentence
of the block quote to argue that a nonsignatory seeks a direct benefit
whenever a "contract provides part of the factual foundation" for its
complaint. Appellant’s Br. at 18. Griffin does not read far enough. As
the quote ultimately reveals, we concluded that International Paper’s
"entire case" — to recover because the saw was a lemon — "hinge[d]
on its asserted rights under the Wood-Schwabedissen contact."
Schwabedissen, 206 F.3d at 418 (emphasis added). In attempting to
enforce those rights, International Paper was seeking a direct benefit
from the contract, and it was therefore estopped from avoiding the
part of the contract that required arbitration. Id.
Having reviewed Schwabedissen, we turn to whether the Associa-
tion is seeking a direct benefit from the construction contract between
Drake and Griffin. The Association makes two claims against Griffin.
First, it claims that Griffin was negligent in constructing the condo-
minium. Under South Carolina law "a cause of action in negligence
will be available where a builder has violated a legal duty." Kennedy
v. Columbia Lumber & Mfg. Co., 384 S.E.2d 730, 737 (S.C. 1989).
As the Supreme Court of South Carolina explained:
A violation of a building code violates a legal duty for
which a builder can be held liable in tort for proximately
caused losses. [South Carolina law also] imposes a legal
duty on builders to undertake construction commensurate
with industry standards. Where a building code or industry
standard does not apply, public policy further demands the
imposition of a legal duty on a builder to refrain from con-
8 R.J. GRIFFIN v. BEACH CLUB II
structing housing that he knows or should know will pose
serious risks of physical harm.
Id. (citation omitted). The Association’s negligence claim is that Grif-
fin violated legal duties, as described in Columbia Lumber, by
(among other things) constructing separation walls, installing studs,
and using combustible materials in a manner that violated the Stan-
dard Building Code. The Association’s second claim against Griffin
is for breach of the implied warranty of good workmanship. Under
South Carolina law "a contractor who constructs a dwelling impliedly
warrants that the work will be performed in a careful, diligent, work-
manlike manner." 17 S.C. Jur. Constr. Law § 54. See also Columbia
Lumber, 384 S.E.2d at 736. The warranty arises from a contractor’s
role as a builder, not "from the construction contract to which the
builder is a party." Columbia Lumber, 384 S.E.2d at 736. The Associ-
ation’s implied warranty claim relies on the same factual allegations
as its negligence claim.
Griffin argues that by bringing these two claims, the Association
is seeking a direct benefit from the general contract. Specifically,
Griffin argues that because "the general contract was . . . the source
of both the duty and warranty that Griffin allegedly breached and that
gave rise to the Association’s claims," Appellant’s Br. at 18, the
Association is necessarily seeking a direct benefit from that contract.
Griffin’s argument ignores the basis for the Association’s claims.
Under South Carolina common law the legal duties Griffin allegedly
violated arise from its role as the builder of the Beach Club condo-
minium; these duties are not dependent on the terms of the general
contract. See Columbia Lumber, 384 S.E.2d at 736-37. It is true that
the formation of the contract meant that Griffin would construct the
condominium, thereby assuming the common law duties South Caro-
lina places on a builder. Griffin’s assumption of these duties benefit-
ted the Association, but the benefit flowed from South Carolina law,
not from the construction specifications of the general contract. See
Mag Portfolio Consultant v. Merlin Biomed Group, 268 F.3d 58, 61
(2d Cir. 2001) (equitable estoppel does not apply when a benefit
results from "the contractual relation of parties to an agreement . . .
[and] not . . . [from] the agreement itself"); Coots v. Wachovia Sec.,
Inc., 304 F. Supp. 2d 694, 699 (D. Md. 2003) (benefit is indirect if
it "flows as a result of contract formation").
R.J. GRIFFIN v. BEACH CLUB II 9
Griffin also argues that language in paragraph nine of the Associa-
tion’s complaint in state court demonstrates that it is seeking a direct
benefit from the general contract. Paragraph nine alleges:
In the construction of the Beach Club II condominium proj-
ect, the Defendants violated the Standard Building Code;
failed to use good construction practices; failed to follow
manufacturer’s requirements and recommendations; failed
to follow industry standards; failed to comply with the
appropriate standard of care; and failed to follow the plans
and specifications.
J.A. 99 (emphasis added). According to Griffin, this paragraph shows
"that the Association . . . seeks to recover damages for Griffin’s
alleged failure to follow the plans and specifications in [the general]
contract." Appellant’s Br. at 19. We disagree. Although paragraph
nine includes the allegation that the defendants collectively (Griffin,
Drake, the architect, and the stucco system supplier) failed to follow
the plans and specifications, this allegation is not the basis for either
of the Association’s claims against Griffin. Rather, the alleged wrong-
ful conduct supporting the Association’s claims against Griffin is
spelled out specifically in paragraph ten, which alleges:
The Defendants were negligent, reckless, willful and wanton
and grossly negligent in the design and construction of the
Beach Club II condominium building in numerous particu-
lars including but not limited to the following: . . .
AS TO [GRIFFIN]
a. In constructing the tenant separation walls
in a manner that does not comply with the Stan-
dard Building Code . . . .
b. In using combustible material in a Type I
construction in violation of the Standard Building
Code . . . .
c. In failing to fire stop concealed horizontal
spaces . . . .
10 R.J. GRIFFIN v. BEACH CLUB II
f. In failing to properly install the . . . stud sys-
tem in violation of the Standard Building Code.
...
J.A. 99. These and other acts (improper installation of the stucco sys-
tem, for example) alleged in paragraph ten are premised on violations
of legal duties imposed on builders by South Carolina common law.
Again, "a [South Carolina] builder may be liable to a home buyer in
tort . . . where (1) the builder has violated an applicable building code;
(2) the builder has deviated from industry standards; or (3) the builder
has constructed housing that he knows or should know will pose seri-
ous risks of physical harm." Columbia Lumber, 384 S.E.2d at 738.
Even if the Association could have asserted a claim against Griffin
for breaching the general contract, that does not mean the Association
cannot bring a case based on extra-contractual duties that South Caro-
lina law imposes on a builder. South Carolina holds that "if a builder
performs construction in such a way that he violates a contractual
duty only, then his liability is only contractual. If he acts in a way as
to violate a legal duty, however, his liability is both in contract and
in tort." Columbia Lumber, 384 S.E.2d at 737. Griffin thus has two
sets of duties: one arises out of its role as a builder, and the other
arises out of its construction contract with Drake. The Association’s
claims are premised on the former; its claims do not hinge on any
rights it might have under the general contract. See Schwabedissen,
206 F.3d at 418. This means that Griffin’s liability will be determined
by its duties as a builder under South Carolina common law, not by
its duties under the general contract. Accordingly, the Association, in
asserting its claims, is not seeking a direct benefit from the provisions
of the general contract it did not sign, and the doctrine of equitable
estoppel cannot be used to force the Association to arbitrate.
Our conclusion does not mean that a nonsignatory may use artful
pleading to avoid arbitration when "in substance . . . [it] is attempting
to hold [a party] to the terms of [an] agreement." Hughes Masonry
Co., 659 F.2d at 838. For example, if the Association brought a negli-
gence or breach of implied warranty claim because the developer
"had contracted [with Griffin] for blue paint but instead received
brown," Columbia Lumber, 384 S.E.2d at 737 n.3, Griffin would have
a case for arbitration. That is because Griffin’s failure to provide the
R.J. GRIFFIN v. BEACH CLUB II 11
correct color of paint would violate a duty "created solely by [the gen-
eral] contract." Id. at 737. But here the Association is seeking to
enforce extra-contractual common law rights created by South Caro-
lina to protect homeowners from shoddy construction practices. A
homeowner (or his or her association) asserting these rights "[i]n a
Suit at common law" is entitled to a jury trial under the Seventh
Amendment. See U.S. Const. amend. VII. A party may, of course,
waive the jury trial right by signing an agreement to arbitrate or by
binding itself to arbitration as a nonsignatory through traditional prin-
ciples of contract or agency law. See Schwabedissen, 206 F.3d at 416-
17. In this case, the Association did not sign the general contract, and
it did not otherwise bind itself to arbitrate under that contract.
B.
Griffin next argues that it may compel the Association to arbitrate
based on the arbitration provision in the master deed. Griffin is not
a signatory to the master deed, which is binding only "upon [the]
Grantor [Drake] . . . and upon all parties who may subsequently
become co-owners of apartments . . . and their respective heirs, legal
representatives, successors, and assigns." J.A. 115. Griffin neverthe-
less maintains that it is an intended third-party beneficiary of the deed
and may therefore invoke its arbitration provision.2 Under South Car-
olina law,
Generally, a third person not in privity of contract with the
contracting parties has no right to enforce a contract. How-
ever, when the contract is made for the benefit of the third
person, that person may enforce the contract if the contract-
ing parties intended to create a direct, rather than an inciden-
tal or consequential, benefit to such third person.
Goode v. St. Stephens United Methodist Church, 494 S.E.2d 827, 833
(S.C. Ct. App. 1997). In order to determine whether the parties
intended Griffin to be a third-party beneficiary, we must look within
2
Because this issue presents a question of the parties’ intentions during
contract formation, see Goode v. St. Stephens United Methodist Church,
494 S.E.2d 827, 833 (S.C. Ct. App. 1997), we apply South Carolina con-
tract law. See supra n.1, at 5.
12 R.J. GRIFFIN v. BEACH CLUB II
"the four corners of the deed." Gardner v. Mozingo, 358 S.E.2d 390,
392 (S.C. 1987).
Griffin argues that the plain language of the master deed’s arbitra-
tion provision indicates that the parties intended to benefit Griffin.
Article XXIX of the deed says that the "Owner or occupant agrees
that any dispute arising out of use, ownership, or occupancy of an
apartment of the Common Elements . . . and any complaint against
the Grantor [Drake] shall be settled by binding arbitration." J.A. 114.
Griffin contends that this provision makes "two different [categories]
of claims [subject to arbitration]: (i) any dispute arising out of the use,
ownership, or occupancy of the common elements, and (ii) any com-
plaint against Drake — the Grantor under the master deed." Appel-
lant’s Br. at 21-22. Because Drake is mentioned in the second
category, but not the first, Griffin argues that the first category was
"intended to secure arbitration of ‘any dispute’ involving the common
elements, not only those disputes involving the Grantor." Id. at 23.
The first arbitration category does appear to cover "common ele-
ments" disputes that might not involve Drake, for example, a dispute
between unit owners. That does not mean, however, that the parties
to the master deed intended to extend the benefit of arbitration to any
third party who is not bound by the deed. We "cannot [read words]
into a contract which impart intent wholly unexpressed when the con-
tract was executed." Blakeley v. Rabon, 221 S.E.2d 767, 769 (S.C.
1976). Simply put, Griffin is not referred to, either directly or indi-
rectly, in any part of the master deed. Accordingly, we agree with the
district court that "the language of the master deed does not clearly
indicate that, at the time of contracting, the parties intended to provide
Griffin with a direct benefit." J.A. 216.
Griffin also argues that an affidavit submitted by Russell Drake
proves that the parties to the master deed intended to benefit Griffin.
Mr. Drake says that "the arbitration agreement in the Master Deed
[was] designed to benefit not only Drake, but also . . . Griffin." J.A.
131. Under South Carolina law the "terms of an unambiguous deed
may not be varied or contradicted by evidence drawn from sources
other than the deed itself." Mozingo, 358 S.E.2d at 392. There is an
ambiguity only if "the terms of the contract [or deed] are reasonably
susceptible of more than one interpretation." South Carolina Dept.
Natural Res. v. Town of McClellanville, 550 S.E.2d 299, 302 (S.C.
R.J. GRIFFIN v. BEACH CLUB II 13
2001). Griffin has not pointed to any part of the deed that is reason-
ably susceptible to the interpretation that the parties intended for the
arbitration provision to benefit Griffin. As a result, we may not con-
sider Mr. Drake’s affidavit.
Finally, Griffin contends that the Association is equitably estopped
from avoiding the arbitration clause in the master deed. The master
deed requires the Association to maintain the common elements of
The Beach Club, and this gives the Association standing to assert the
claims against Griffin for shoddy workmanship. Therefore, Griffin
argues, because the Association has "invoked the benefits of its status
as the homeowners association under the master deed, [it] cannot
simultaneously avoid the terms of the arbitration provision." Appel-
lant’s Br. at 30. This argument misses a key element of estoppel.
Equitable estoppel operates to prevent one party from holding another
to the terms of an agreement while simultaneously avoiding the same
agreement’s arbitration clause. See Hughes Masonry Co., 659 F.2d at
838. Here, the Association is not attempting to hold Griffin to any
term of the master deed. Although the deed authorizes the Association
to bring claims such as those asserted against Griffin, the claims
themselves have nothing to do with the breach of any provision of the
master deed. In this circumstance, Griffin cannot invoke equitable
estoppel to force the Association to arbitrate under the master deed.
In sum, Griffin is not a third-party beneficiary of the master deed,
nor can equitable estoppel be invoked here to enforce the deed’s arbi-
tration provision. Accordingly, Griffin may not compel arbitration
under the master deed.
III.
We affirm the district court’s order denying Griffin’s motion to
compel arbitration.
AFFIRMED