{ "id": 3806182, "name": "D.P. SOLUTIONS, INC., Plaintiff v. XPLORE-TECH SERVICES PRIVATE LIMITED, PANKAJ DHANUKA AND KISHORE SARAOGI, Defendants", "name_abbreviation": "D.P. Solutions, Inc. v. Xplore-Tech Services Private Ltd.", "decision_date": "2011-05-03", "docket_number": "No. COA10-1229", "first_page": "632", "last_page": "637", "citations": [ { "type": "official", "cite": "211 N.C. App. 632" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "640 S.E.2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637774 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "844" } ], "opinion_index": 0, "case_paths": [ "/se2d/640/0840-01" ] }, { "cite": "599 S.E.2d 54", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631479 ], "year": 2004, "pin_cites": [ { "page": "59", "parenthetical": "quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/599/0054-01" ] }, { "cite": "637 S.E.2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637327 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "554", "parenthetical": "citation omitted" }, { "page": "554" } ], "opinion_index": 0, "case_paths": [ "/se2d/637/0551-01" ] }, { "cite": "181 N.C. App. 723", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8376132 ], "year": 2007, "pin_cites": [ { "page": "729" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0723-01" ] }, { "cite": "610 S.E.2d 293", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "296" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 630", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8472320 ], "year": 2005, "pin_cites": [ { "page": "634" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0630-01" ] }, { "cite": "170 S.E.2d 477", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "482", "parenthetical": "stating that \"[a]ll contemporaneously executed written instruments between the parties, relating to the subject matter of the contract, are to be construed together in determining what was undertaken\"" } ], "opinion_index": 0 }, { "cite": "275 N.C. 634", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559757 ], "year": 1969, "pin_cites": [ { "page": "640", "parenthetical": "stating that \"[a]ll contemporaneously executed written instruments between the parties, relating to the subject matter of the contract, are to be construed together in determining what was undertaken\"" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0634-01" ] }, { "cite": "700 S.E.2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "page": "111" }, { "page": "111-12" } ], "opinion_index": 0 }, { "cite": "694 S.E.2d 392", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "parenthetical": "quotation omitted" }, { "parenthetical": "quotation omitted" } ], "opinion_index": 0 }, { "cite": "363 N.C. 856", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "pin_cites": [ { "parenthetical": "quotation omitted" } ], "opinion_index": 0 }, { "cite": "682 S.E.2d 746", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "749" }, { "page": "749" } ], "opinion_index": 0 }, { "cite": "199 N.C. App. 743", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4170264 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "747" }, { "page": "747" } ], "opinion_index": 0, "case_paths": [ "/nc-app/199/0743-01" ] }, { "cite": "11 S.E. 175", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1890, "pin_cites": [ { "page": "176" } ], "opinion_index": 0 }, { "cite": "105 N.C. 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652747 ], "year": 1890, "pin_cites": [ { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/nc/105/0328-01" ] }, { "cite": "484 S.E.2d 435", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "440" }, { "page": "440" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 139", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11709024 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "145-46" }, { "page": "145-46" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0139-01" ] }, { "cite": "187 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1972, "pin_cites": [ { "page": "755" }, { "parenthetical": "citation omitted" }, { "page": "755" } ], "opinion_index": 0 }, { "cite": "281 N.C. 140", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574023 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "145" }, { "page": "145" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0140-01" ] }, { "cite": "341 S.E.2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "quotations omitted" } ], "opinion_index": 0 }, { "cite": "315 N.C. 590", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715201, 4718241, 4716523, 4717616, 4717112 ], "year": 1986, "pin_cites": [ { "parenthetical": "quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0590-04", "/nc/315/0590-05", "/nc/315/0590-01", "/nc/315/0590-02", "/nc/315/0590-03" ] }, { "cite": "331 S.E.2d 726", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "731" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 16", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526532 ], "year": 1985, "pin_cites": [ { "page": "23-24" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0016-01" ] }, { "cite": "605 S.E.2d 153", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "parenthetical": "quotation omitted" }, { "parenthetical": "quotation omitted" }, { "parenthetical": "quotation and citations omitted" } ], "opinion_index": 0 }, { "cite": "359 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3794209, 3799976, 3793513, 3800274, 3796792, 3798971, 3799454 ], "year": 2004, "pin_cites": [ { "parenthetical": "quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0191-07", "/nc/359/0191-01", "/nc/359/0191-04", "/nc/359/0191-05", "/nc/359/0191-03", "/nc/359/0191-02", "/nc/359/0191-06" ] }, { "cite": "165 N.C. App. 181", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8996191 ], "year": 2004, "pin_cites": [ { "page": "188", "parenthetical": "quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0181-01" ] }, { "cite": "180 N.C. App. 414", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8242690 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "418", "parenthetical": "citation omitted" }, { "page": "418-19" } ], "opinion_index": 0, "case_paths": [ "/nc-app/180/0414-01" ] } ], "analysis": { "cardinality": 601, "char_count": 12070, "ocr_confidence": 0.722, "pagerank": { "raw": 4.856319230494445e-08, "percentile": 0.3052029288194022 }, "sha256": "66f46b8d60a6848f9bde0a3f6d23ec2c246450e0b2b3d11e5925d8dc88f02903", "simhash": "1:543bcc2e36ffb055", "word_count": 1890 }, "last_updated": "2023-07-14T21:31:50.212435+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STROUD and HUNTER, JR., concur." ], "parties": [ "D.P. SOLUTIONS, INC., Plaintiff v. XPLORE-TECH SERVICES PRIVATE LIMITED, PANKAJ DHANUKA AND KISHORE SARAOGI, Defendants" ], "opinions": [ { "text": "THIGPEN, Judge.\nThe issue raised on this appeal is whether the individual defendants, Pankaj Dhanuka and Kishore Saraogi, can compel arbitration of personal guarantees, made in their individual capacity, based on the arbitration clause contained in a Share Purchase Agreement entered into between Plaintiff and the corporate defendant. We conclude they cannot and affirm the order of the trial court.\nThe evidence of record tends to show that DP Solutions, Inc. (\u201cPlaintiff\u2019) and Xplore-Tech entered into a Share Purchase Agreement (\u201cAgreement\u201d) on 12 April 2007. The Agreement contained an arbitration clause. On 23 April 2007, Defendants Dhanuka and Saraogi. entered into a Personal Guarantee of the Share Purchase Agreement (\u201cGuarantee\u201d), which did not contain an arbitration clause. On 22 March 2010, Plaintiff filed a complaint alleging Defendant XploreTech \u201cfailed and refused to pay [Plaintiff] the consideration for the transaction owed to [Plaintiff] under the Agreement in an amount in excess of $3,200,000.\u201d Plaintiff further alleged that \u201cPankaj Dhanuka and Kishore Saraogi personally guaranteed . . . payment of $610,000 (USD) to [Plaintiff]\u201d and that \u201c[t]he total amount of $610,000 has not been paid to [Plaintiff] as . . . guaranteed by Pankaj Dhanuka and Kishore Saraogi[.]\u201d Plaintiffs also alleged that the court should \u201cdisregard [the] corporate entity,\u201d Xplore-Tech.\nOn 2 June 2010, Defendants filed a motion to dismiss and to compel arbitration or to stay the proceedings pending arbitration, arguing that the Agreement contained a dispute resolution clause, which stated that \u201c[a]ny dispute which cannot be settled within 20 days of consultation, shall be submitted to arbitration at the request of any Party[.]\u201d Defendants prayed that the court \u201cplace the case on inactive status\u201d and \u201ccompel arbitration].]\u201d\nOn 9 July 2010, the trial court entered an order staying the breach of contract claim against Defendant Xplore-Tech and compelling arbitration \u201cper Section 11.12 of the Share Purchase Agreement[.]\u201d The order, however, decreed that Plaintiffs remaining claims against Defendants Dhanuka and Saraogi were not stayed and would proceed to trial. From this order, Defendants appeal.\nPrimarily we note that \u201c[a]n order denying defendants\u2019 motion to compel arbitration is not a final judgment and is interlocutory.\u201d Raper v. Oliver House, LLC, 180 N.C. App. 414, 418, 637 S.E.2d 551, 554 (2006) (citation omitted). \u201cHowever, an order denying arbitration is immediately appealable because it involves a substantial right, the right to arbitrate claims, which might be lost if appeal is delayed.\u201d Raper, 180 N.C. App. at 418-19, 637 S.E.2d at 554.\n\u201cThe question of whether a dispute is subject to arbitration is an issue for judicial determination.\u201d Revels v. Miss Am. Org., 165 N.C. App. 181, 188, 599 S.E.2d 54, 59, disc. review denied, 359 N.C. 191, 605 S.E.2d 153 (2004) (quotation omitted). \u201cThis determination involves a two-step analysis requiring the trial court to ascertain both (1) whether the parties had a valid agreement to arbitrate, and also (2) whether the specific dispute falls within the substantive scope of that agreement.\u201d Id. (quotation omitted).\nA dispute can only be settled by arbitration if a valid arbitration agreement exists. The party seeking arbitration must show that the parties mutually agreed to arbitrate their disputes. The trial court\u2019s findings regarding the existence of an arbitration agreement are conclusive on appeal where supported by competent evidence, even where the evidence might have supported findings to the contrary. However, the trial court\u2019s determination of whether a dispute is subject to arbitration is a conclusion of law that is reviewable de novo on appeal.\nId. (quotation and citations omitted).\nIn the case sub judice, Defendants do not argue that the Guarantee contained an arbitration clause. Rather, Defendants\u2019 sole argument on appeal is that the arbitration clause in the Agreement between Plaintiff and Defendant Xplore-Tech should also apply to the personal Guarantee of Defendants Dhanuka and Saraogi.\n\u201c[Arbitration is simply a matter of contract between the parties; it is a way to resolve those disputes \u2014 but only those disputes \u2014 that the parties have agreed to submit to arbitration.\u201d Evangelistic Outreach Ctr., 181 N.C. App. at 726, 640 S.E.2d at 843 (quotation omitted). \u201cBecause the duty to arbitrate is contractual, only those disputes which the parties agreed to submit to arbitration may be so resolved[;] [t]o determine whether the parties agreed to submit a particular dispute or claim to arbitration, we must look at the language in the agreement[.]\u201d Rodgers Builders, Inc. v. McQueen, 76 N.C. App. 16, 23-24, 331 S.E.2d 726, 731 (1985), disc. review denied, 315 N.C. 590, 341 S.E.2d 29 (1986) (quotations omitted).\n\u201cA guaranty of payment is an absolute promise by the guarantor to pay the debt at maturity if it is not paid by the principal debtor.\u201d EAC Credit Corp. v. Wilson, 281 N.C. 140, 145, 187 S.E.2d 752, 755 (1972). \u201cThe obligation of the guarantor is separate and independent of the obligation of the principal debtor, and the creditor\u2019s cause of action against the guarantor ripens immediately upon failure of the principal debtor to pay the debt at maturity.\u201d Id. (citation omitted) \u201cThe rights of the plaintiff against the guarantor arise out of the guaranty contract and must be based on the contract.\u201d Hudson v. Game World, 126 N.C. App. 139, 145-46, 484 S.E.2d 435, 440 (1997). \u201cA guaranty is a special contract, and the guarantor is not in any sense a party to the note.\u201d Coleman v. Fuller, 105 N.C. 328, 330, 11 S.E. 175, 176 (1890).\n\u201cWhen the language of a contract is clear and unambiguous, construction of the contract is a matter for the court.\u201d Self-Help Ventures Fund v. Custom Finish, LLC, 199 N.C. App. 743, 747, 682 S.E.2d 746, 749 (2009), appeal dismissed, 363 N.C. 856, 694 S.E.2d 392 (2010) (quotation omitted). \u201cIt is a well-settled principle of legal construction that [i]t must be presumed the parties intended what the language used clearly expresses, and the contract must be construed to mean what on its face it purports to mean.\u201d Id. (quotation omitted).\nDefendants cite Ellison v. Alexander, \u2014 N.C. App. -, -, 700 S.E.2d 102, 111 (2010), for the proposition that when the \u201calleged liability arises from [a defendant\u2019s] actions as an agent of the corporate signatory to the arbitration agreement, [the] [defendant is entitled to enforce the arbitration clause.\u201d Ellison, however, is distinguishable from this case. In Ellison, the \u201c[plaintiffs\u2019 claims [were] predicated\u201d on the defendant\u2019s misrepresentations of facts \u201cin his capacity as CEO and director in order to induce Plaintiffs to invest\u201d in the corporate signatory, and the plaintiffs\u2019 complaint \u201callege[d] actions taken by Defendant in his capacity as an officer and director\u201d of the corporate signatory. Ellison, - N.C. App. at \u2014, 700 S.E.2d at 111-12. Here, although Defendants Dhanuka and Saraogi contend they were acting as corporate agents, Defendants do not explain how they were acting as the corporate agents of Defendant Xplore-Tech when they entered into the Guarantee. Moreover, the express terms of the Guarantee state that Defendants Dhanuka and Saraogi were acting in their individual capacities:\nIf for any reason the amounts of $500,000 within 90 days of the Signed Purchase Agreement and/or the amount not to exceed $110,000 within 180 days of the signed Purchase Agreement are not paid by either Help Desk Now, Inc. or Xplore-Tech Services Private Limited, Punkaj Dhanuka and Kishore Saraogi will personally pay the amount(s) owed within 15 days of the dates that such unpaid amounts were to have been paid. This personal guarantee by both Punjak Dhanuka and Kishore Saraogi is provided to assure both DPSI and its Shareholders that have provided funding to Help Desk NOW, Inc., and that is to be repaid, that the amounts agreed upon will be paid. (Emphasis added).\nThe Guarantee further provides, without mention of arbitration, the following:\nThis unconditional personal guarantee from both individuals, if necessary, may be enforced in the courts of the U.S., India, or both the U.S. and India, if necessary. All expenses associated with DPSI\u2019s and its Shareholders to collect on this Guarantee from the guarantors will be borne by the guarantors or be awarded to DPSI and the Shareholders in a court of law. (Emphasis added).\nBased on the foregoing evidence, and because the law requires that \u201c[t]he obligation of [a] guarantor is separate and independent of the obligation of the principal debtor[,]\u201d Wilson, 281 N.C. at 145, 187 S.E.2d at 755, the parties\u2019 rights \u201carise out of the guaranty contract and must be based on the contract[,]\u201d Hudson, 126 N.C. App. at 145-46, 484 S.E.2d at 440, and this Court presumes \u201cthe parties intended what the language used clearly expresses[,]\u201d Self-Help Ventures Fund, 199 N.C. App. at 747, 682 S.E.2d at 749, we hold that the trial court did not err by concluding Defendants Dhanuka and Saraogi could not compel arbitration of the personal Guarantee, made in their individual capacities, based on the arbitration clause in the Agreement between Defendant Xplore-Tech and Plaintiff.\nAFFIRMED.\nJudges STROUD and HUNTER, JR., concur.\n. Pankaj Dhanuka and Kishore Saraogi are citizens and residents of India and also principals of Xplore-Tech (hereinafter, \u201cDefendants Dhanuka and Saraogi,\u201d \u201cDefendant Xplore-Tech,\u201d or collectively, \u201cDefendants\u201d).\n. The two contracts were not \u201ccontemporaneously executed written instruments!.]\u201d Yates v. Brown, 275 N.C. 634, 640, 170 S.E.2d 477, 482 (1969) (stating that \u201c[a]ll contemporaneously executed written instruments between the parties, relating to the subject matter of the contract, are to be construed together in determining what was undertaken\u201d).\n. Defendants argue the \u201cclaim to impose all the alleged liability of Xplore-Tech under the [Agreement] to Dhanuka and Saraogi pursuant to an \u2018alter ego\u2019 theory . . . should be governed by the [Agreement] and not by the Guarantee.\u201d We agree. Any claim regarding the corporate entity, Defendant Xpore-Tech, including piercing the corporate veil, must necessarily have been made pursuant to the Agreement, which contained an arbitration clause, rather than the Guarantee, because Defendant XploreTech was not a party to the Guarantee.\n. We note the trial court did not make findings of fact, and this Court has required that the findings of fact \u201cstate the grounds for the trial court\u2019s denial of defendant\u2019s motion to stay and compel arbitration.\u201d Ellis-Don Constr., Inc. v. HNTB Corp., 169 N.C. App. 630, 634, 610 S.E.2d 293, 296 (2005). However, Defendants do not argue in their brief that the findings of fact were deficient. \u201cIssues not presented and discussed in a party\u2019s brief are deemed abandoned.\u201d N.C. R. App. 28(a) (2011). Moreover, \u201cthe evidence in the present case was simple, and the issue very clear.\u201d Evangelistic Outreach Ctr. v. Gen. Steel Corp., 181 N.C. App. 723, 729, 640 S.E.2d 840, 844 (2007). The question for the trial court was whether Defendants Dhanuka and Saraogi met the \u201cthreshold requirement [to] show the existence of an agreement to arbitrate.\u201d Id.", "type": "majority", "author": "THIGPEN, Judge." } ], "attorneys": [ "Blanco Tackabery & Matamoros, P.A., by Elliot A. Fus, for Defendants.", "Sharpless & Stavola, P.A., by Eugene E. Lester III, for Plaintiff." ], "corrections": "", "head_matter": "D.P. SOLUTIONS, INC., Plaintiff v. XPLORE-TECH SERVICES PRIVATE LIMITED, PANKAJ DHANUKA AND KISHORE SARAOGI, Defendants\nNo. COA10-1229\n(Filed 3 May 2011)\nArbitration and Mediation\u2014 personal guarantee \u2014 arbitration clause \u2014 agreement between plaintiff and corporate defendant\nThe trial court did not err by concluding that individual defendants could not compel arbitration of a personal guarantee, made in their individual capacities, based on an arbitration clause in an agreement between corporate defendant and plaintiff.\nAppeal by Defendants from order entered 9 July 2010 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 24 February 2010.\nBlanco Tackabery & Matamoros, P.A., by Elliot A. Fus, for Defendants.\nSharpless & Stavola, P.A., by Eugene E. Lester III, for Plaintiff." }, "file_name": "0632-01", "first_page_order": 640, "last_page_order": 645 }