Steve Jhun v. Imagine Castle, LLC

SECOND DIVISION
MILLER, P. J.,
MERCIER, J., and SENIOR APPELLATE JUDGE PHIPPS

NOTICE: Motions for reconsideration must be
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March 2, 2021

In the Court of Appeals of Georgia
A20A1724. JHUN et al. v. IMAGINE CASTLE, LLC et al. MI-059

MILLER, Presiding Judge.

Steven and Yun Suk Jhun seek review of the trial court’s order compelling

arbitration in their contract action against Imagine Castle, LLC and Alfred and

Patricia Hughes. The Jhuns argue on appeal that (1) the trial court erred when it

allowed Imagine Castle, an unlicensed contractor, to enforce the arbitration provision

and that (2) the trial court abused its discretion when it stayed the proceedings against

the Hughes defendants because they were not parties to the arbitration agreement. We

conclude that the trial court did not err in either respect and therefore affirm its orders

compelling arbitration between the Jhuns and Imagine Castle and staying the

remainder of the case pending arbitration.
 Whether a valid and enforceable arbitration agreement exists is a
question of law for the court. We therefore review a trial court’s order
granting or denying a motion to compel arbitration de novo. The
appellees, as the parties seeking arbitration, bear the burden of proving
the existence of a valid and enforceable agreement to arbitrate. And the
validity of an arbitration agreement is generally governed by state law
principles of contract formation.

(Citations and punctuation omitted.) McKean v. GGNSC Atlanta, LLC, 329 Ga.

App. 507, 509 (1) (765 SE2d 681) (2014).

The record shows that the Jhuns and Imagine Castle entered into a contract for

Imagine Castle to perform remodeling, electrical, plumbing, and structural work in

the Jhuns’ house. Alfred Hughes is the owner of Imagine Castle, and both Alfred and

Patricia Hughes were Imagine Castle’s principals. The contract was later amended to

include an arbitration agreement between the Jhuns and Imagine Castle. That

agreement provided that “[a]ny . . . claim or dispute of any kind or nature between

Contractor/Builder and Homeowner/Buyer arising out of or relating in any manner

to this Agreement or this transaction . . . shall be decided by binding arbitration” and

that “[a]ny questions regarding the interpretation of this arbitration provision or about

the arbitrability of a dispute . . . shall be decided by the arbitrator[.]” The agreement

further provided that the Federal Arbitration Act (“FAA”) would govern the

arbitration.

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 According to the Jhuns’ complaint, Alfred Hughes represented to the Jhuns that

he was a properly licensed contractor. Sometime after the work began, the Jhuns

discovered that Imagine Castle was providing shoddy and incomplete work that was

not compliant with the requisite ordinances, building codes, and industry standards.

Imagine Castle also billed the Jhuns for materials that had not been ordered and for

work that had not been completed. The Jhuns questioned Imagine Castle regarding

the completion of the work and then refused to make any further payments. Imagine

Castle stopped working on the project, and the Jhuns hired other contractors to

complete the work.

The Jhuns later sued Imagine Castle and the Hugheses for negligence, fraud,

conversion, and civil conspiracy and sought punitive damages, costs, and attorney

fees. The Jhuns also asked the trial court to declare the contract unenforceable and

void as a matter of public policy because Imagine Castle was not a properly licensed

contractor and, in the alternative, raised a claim of breach of contract. In their answer,

the defendants admitted that none of them were properly licensed.

The defendants then moved to compel arbitration between the Jhuns and

Imagine Castle based on the arbitration agreement in the contract and also moved to

stay the proceedings against the Hughes defendants pending arbitration. The Jhuns

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opposed the motion on the basis that the arbitration agreement was unenforceable

under OCGA § 43-41-17 (b) because the defendants were not licensed contractors.

The trial court granted the motion to compel arbitration and stayed the action against

the Hughes defendants during arbitration, concluding that the enforceability of the

contract was a matter for the arbitrator to determine. We granted the Jhuns’

application for an interlocutory appeal from the trial court’s order.

1. As their first enumeration of error, the Jhuns argue that the trial court erred

when it allowed an unlicensed contractor to enforce an arbitration provision in a

housing construction contract because OCGA § 43-41-17 (b) decrees that any

contractors who are unlicensed cannot enforce a contract. We disagree.

Under the FAA, “[w]here there is a specific challenge attacking the validity of

an arbitration agreement, the court and not the arbitrator should decide whether the

arbitration provision is enforceable.” (Citations omitted.) Crawford v. Great

American Cash Advance, Inc., 284 Ga. App. 690, 692-693 (1) (644 SE2d 522)

(2007). However, “a challenge to the validity of the contract as a whole, and not

specifically to the arbitration clause, must go to the arbitrator.” (Citation omitted.) Id.

at 695 (3).

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 In response to the defendants’ motion to compel arbitration, the Jhuns did not

allege any specific challenge to the arbitration agreement itself. Instead, their

challenge to the arbitration agreement is part and parcel of their argument that the

entire contract is unenforceable due to the defendants’ unlicensed status. Under

standard FAA arbitration law, therefore, this is a challenge to the entirety of the

contract that must be settled by the arbitrator. See Crawford, supra, 284 Ga. App. at

695 (3) (challenge to loan contracts as illegal under the Georgia Payday Loan Act was

required to be sent to the arbitrator despite the fact that the relevant arbitration

provision was contained within the allegedly illegal contracts).

The Jhuns, relying on Georgia’s contractor statute, nevertheless argue that this

general rule does not apply in this case and that the the contract is per se

unenforceable. That law states that “[a]s a matter of public policy, any contract

entered into . . . for the performance of work for which a residential contractor or

general contractor license is required . . . and which is between an owner and a

contractor who does not have a valid and current license required for such work . . .

shall be unenforceable in law or in equity by the unlicensed contractor.” OCGA § 43-

41-17 (b). Such a contract is considered void, “at least as far as [the contractor’s] right

to enforce it in law or in equity.” (Citations omitted.) Saks Mgmt. & Assoc., LLC v.

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Sung Gen. Contracting, Inc., 356 Ga. App. 568, 573 (2) (a) (849 SE2d 19) (2020).

The Jhuns argue that the statute’s command that any contracts entered into by

unlicensed contractors shall be “unenforceable” means that unlicensed contractors

cannot enforce any part of the contract, even arbitration provisions. They argue that

allowing Imagine Castle to enforce this arbitration provision would defeat the public

policy established by the Legislature in OCGA § 43-41-1 “to safeguard homeowners

against faulty, inadequate, inefficient, and unsafe residential and general contractors.”

The Jhuns’ arguments are unavailing. Georgia law already generally provides

that “[any] contract that is against the policy of the law cannot be enforced.”

(Emphasis supplied.) OCGA § 13-8-2 (a). Despite this statutory language, we have

previously affirmed orders to arbitrate when a party argues that a contract is

unenforceable or void as against public policy. In Crawford, supra, 284 Ga. App. at

695-696 (3), for instance, the defendant in a contract action argued that certain loan

contracts were illegal and void under the Georgia Payday Loan Act, which decrees

that any loan transactions that are in violation of the Act “shall be void ab initio.”

OCGA § 16-17-3. As part of that argument, she also claimed that the trial court erred

in applying an arbitration provision that was contained in the loan contracts.

Crawford, supra, 284 Ga. App. at 695 (3). Although the Legislature had made it quite

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clear that payday lending is against the public policy of Georgia, OCGA § 16-17-1,

we nevertheless concluded that “Crawford’s contention that the contracts are illegal

in their entirety is an issue for the arbitrator, not the court, to decide.” Crawford,

supra, 284 Ga. App. at 695 (3).1

Second, we also find this case to be controlled by the United States Supreme

Court case Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440 (126 SCt 1204,

163 LE2d 1038) (2006). In Cardegna, the Supreme Court determined that a challenge

to a contract that was allegedly void under Florida public policy did not render the

arbitration provision in that contract unenforceable. Id. at 445-446 (II) (B). As the

Court explained,

[f]irst, as a matter of substantive federal arbitration law, an arbitration
provision is severable from the remainder of the contract. Second, unless
the challenge is to the arbitration clause itself, the issue of the contract’s
validity is considered by the arbitrator in the first instance. Third, this
arbitration law applies in state as well as federal courts. . . . [Therefore,]
because respondents challenge the Agreement, but not specifically its

1
We further note that, while the Jhuns are correct that the Legislature clearly
established a strong public policy “to safeguard homeowners against faulty,
inadequate, inefficient, and unsafe residential and general contractors,” OCGA § 43-
41-1, the Legislature has similarly “established a clear public policy in favor of
arbitration.” (Citation and punctuation omitted.) Innovative Images, LLC v.
Summerville, ___ Ga. ___ (3) (a) (848 SE2d 75) (2020).

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 arbitration provisions, those provisions are enforceable apart from the
remainder of the contract.

Id. at 445-446 (II) (B). In reaching its conclusion, the United States Supreme Court

flatly rejected the argument that this severability analysis, and therefore enforcement

of an otherwise valid arbitration agreement contained within an unenforceable

contract, could turn on an individual state’s law or public policy. Id. at 446-448 (II)

(B)-(C). “It is true . . . that [this] rule permits a court to enforce an arbitration

agreement in a contract that the arbitrator later finds to be void. But it is equally true

that [the Jhuns’] approach permits a court to deny effect to an arbitration provision

in a contract that the court later finds to be perfectly enforceable.” Cardegna, supra,

546 U. S. at 448-449 (II) (C); see also Crawford, supra, 284 Ga. App. at 695-696 (3)

(applying Cardegna in an arbitration dispute proceeding under the FAA).

Because the Jhuns do not raise any challenge that is specific to the arbitration

provision in the contract, we conclude that the trial court did not err when it granted

the defendants’ motion to compel arbitration.

2. The Jhuns also argue that the trial court erred when it stayed their claims

against the Hughes defendants, who were not parties to the arbitration agreement,

pending the arbitration. We discern no abuse of discretion.

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 The power to stay proceedings is incidental to the power inherent in
every court to control the disposition of the causes on its docket with
economy of time and effort for itself, for counsel, and for litigants. How
this can best be done calls for the exercise of judgment, which must
weigh competing interests and maintain an even balance. We review a
trial court’s decision to grant a motion to stay for abuse of discretion.

(Citations omitted.) Austin v. Nagareddy, 344 Ga. App. 636, 638 (811 SE2d 68)

(2018). In situations where some claims are arbitrable and some are not, a trial court

may stay the litigation as to the non-arbitrable claims in appropriate circumstances,

but it is not required to do so. See Moses H. Cone Mem. Hosp. v. Mercury Constr.

Corp., 460 U. S. 1, 20 (IV) (A) n.23 (103 SCt 927, 74 LE2d 765) (1983) (“In some

cases, of course, it may be advisable to stay litigation among the non-arbitrating

parties pending the outcome of the arbitration. That decision is one left to the . . . state

trial court under applicable state procedural [rules] as a matter of its discretion to

control its docket.”); Krut v. Whitecap Housing Group, LLC, 268 Ga. App. 436, 443

(2) (c) (602 SE2d 201) (2004) (concluding, however, that trial courts are not required

to stay the non-arbitrable claims pending arbitration “even where the result would be

the possibly inefficient maintenance of separate proceedings in different forums.”)

(citation omitted).

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 The Jhuns’ claims against the Hughes defendants in this case stem entirely

from their status as employees and managers of Imagine Castle, through which the

Jhuns allege that they were personally involved in the commission of fraudulent and

other tortious acts. As such, the majority of the significant issues in this case, such as

whether the contract is enforceable under OCGA § 43-41-17, will essentially be the

same for all defendants. Because the Jhuns’ claims against the Hughes defendants and

those against Imagine Castle are intimately related, the trial court did not abuse its

discretion in staying the claims against the Hughes defendants while the remaining

parties pursue arbitration.

The trial court thus properly compelled arbitration between the Jhuns and

Imagine Castle, and it did not abuse its discretion by staying the proceedings against

the Hughes defendants. We therefore affirm its order.

Judgment affirmed. Mercier, J., and Senior Appellate Judge Herbert E.

Phipps, concur.

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