FIRST DIVISION BARNES, P. J., MARKLE and HODGES, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
May 1, 2026
In the Court of Appeals of Georgia A26A0694. DAWON AND COMPANY USA, LLC v. JOONWOO SOLUTIONS, LLC.
BARNES, Presiding Judge.
We granted this interlocutory appeal to consider whether the trial court erred
when it denied defendant Dawon and Company USA, LLC (“Dawon”)’s motion to
dismiss and to compel arbitration in this dispute arising from the construction of an
electric vehicle battery facility in Bartow County. On appeal, Dawon argues that the
trial court erred because the parties’ so-called “second contract” was not separate
from and did not supersede their first, which contained an arbitration provision. We
agree and reverse.
As the Georgia Supreme Court has noted, and “because . . . an incorrect
determination that a dispute is not subject to arbitration may cause the parties unnecessary expense and delay,” trial courts should, “except in the clearest cases, .
. . certify orders denying a motion to compel arbitration.” Am Gen. Financial Svcs. v.
Jape, 291 Ga. 637, 644 n. 3 (732 SE2d 746) (2012) (citation modified). “[W]e review
de novo a trial court’s order granting or denying a motion to compel arbitration,” but
“the factual findings on which the ruling is based . . . will not be overturned unless
clearly erroneous.” C. R. of Thomasville, LLC v. Hannaford, 363 Ga. App. 581, 582
(871 SE2d 679) (2022) (citation modified).”The party seeking arbitration bears the
burden of proving the existence of a valid and enforceable agreement to arbitrate[,]”
and the question whether there is a valid agreement to arbitrate is “a matter of
contract . . . generally governed by state law principles of contract formation[.]” Id.
The record shows that in January 2024, plaintiff Joonwoo Solutions, LLC and
Dawon entered into a written “service agreement” by which Joonwoo would perform
certain construction work on the battery facility for $6.8 million. This first agreement
contained the following provision:
With the exception of any third party claim (impleader) asserted by Dawon against the SUBSUBCONTRACTOR [Joonwoo], if at any time any dispute, claim or controversy should arise between Dawon and [Joonwoo] with respect to any matter or thing arising out of or related to, or involved in any matter with this Agreement or with the construction project,
2 which dispute, claim or controversy is not controlled or determined by the dispute resolution procedures of the Subcontract, then such dispute, controversy of claim shall be settled by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association (“AAA”) and the Federal Arbitration Act. . . . This obligation to arbitrate survives any termination of this Agreement under other provisions thereof.
(Emphasis supplied.) The agreement also provided that in the event of Joonwoo’s
default, it “agree[d] to pay Dawon such reasonable attorney’s fees and related costs
as [it] may expend therein.” In a section entitled “Changes,” the agreement stated
that the parties would not change the terms of the contract without a written order.
That portion of the agreement further stated that the “Parties acknowledge that no
course of conduct or dealing between the Parties shall serve as a basis for any variation
of the requirements of the Agreement[.]”
On August 26, 2024, the parties entered into a so-called “second agreement”
clarifying that Dawon would pay $1.4 million of the agreed amount by September 4,
2024. The second agreement, which was executed in Korean, also stated that Joonwoo
would “adhere to the schedule for the designated section works by August 31” and
3 and would “make every effort to complete any defective or unfinished works by the
project’s conclusion.” Both parties signed this document.
In February 2025, however, after conflicts arose over the work and payment,
Joonwoo filed this action against Dawon and other defendants, alleging that the
project had run into significant delays and that Dawon was indebted to it for more
than $2 million. Joonwoo alleged that under the August 26 agreement, Dawon was
required to pay Joonwoo $1.4 million and that this agreement, which amounted to a
change order, concerned work that was outside the scope of the original agreement.
Joonwoo conceded that the “full terms of repayment for that work were to be agreed
upon later.” Joonwoo set out counts for breach of contract based on the agreements,
along with unjust enrichment and quantum meruit.
In May 2025, Dawon filed a motion to dismiss and to compel arbitration,
attaching the January 2024 service agreement and arguing that it contained a
mandatory arbitration clause which covered all disputes between it and Joonwoo
arising from the project. According to Dawon, although it had terminated the
agreement in December 2025 due to Joonwoo’s material breaches, the obligation to
arbitrate survived that termination. Thus, Dawon reasoned, dismissal of the lawsuit
4 was appropriate, along with recovery of the attorney fees expended in enforcing the
arbitration provisions of the agreement.
Joonwoo responded to the dismissal motion, arguing that the dispute between
it and Dawon stemmed from three separate agreements. Joonwoo claimed that after
executing the first agreement, the parties entered into the second agreement, which
did not reference the original agreement and was therefore independent of it.
Furthermore, Joonwoo argued, the parties then entered a third agreement, which was
not reduced to writing and concerned custodial services. Joonwoo claimed that the
arbitration agreement did not apply to it because it was a “subsubcontractor” under
the original agreement.
The trial court held a hearing, after which it found that Joonwoo’s claims
related solely to the August 2024 second agreement. The trial court stated that on the
hearing date, Joonwoo filed a Second Amended Complaint, which removed portions
of the complaint which had been based on the parties’ original January 2024
agreement. The court then found that the second agreement did not contain an
arbitration clause and did not incorporate by reference the original agreement.
Therefore, the trial court denied Dawon’s motion to dismiss, noting, however, that
5 it was not ruling on whether claims in the First Amended Complaint made under the
original agreement were subject to arbitration. The court explicitly limited its ruling
to Joonwoo’s claims under the second agreement. The trial court then certified its
ruling for review, and we granted Dawon’s timely application.
On appeal, Dawon repeats its argument that the parties’ dispute is subject to
arbitration.1
The parties’ first agreement was a six-page agreement accompanied by
seventeen appendices, which addressed the scope and quality of the work, insurance
coverage, the construction time schedule, and the timing and manner of payment. The
parties’ second agreement, executed in August 2025, consisted of a one-page
document written in Korean. Though the parties’ translations of this document differ
slightly, both versions of the second agreement are entitled “Agreement on Additional
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FIRST DIVISION BARNES, P. J., MARKLE and HODGES, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
May 1, 2026
In the Court of Appeals of Georgia A26A0694. DAWON AND COMPANY USA, LLC v. JOONWOO SOLUTIONS, LLC.
BARNES, Presiding Judge.
We granted this interlocutory appeal to consider whether the trial court erred
when it denied defendant Dawon and Company USA, LLC (“Dawon”)’s motion to
dismiss and to compel arbitration in this dispute arising from the construction of an
electric vehicle battery facility in Bartow County. On appeal, Dawon argues that the
trial court erred because the parties’ so-called “second contract” was not separate
from and did not supersede their first, which contained an arbitration provision. We
agree and reverse.
As the Georgia Supreme Court has noted, and “because . . . an incorrect
determination that a dispute is not subject to arbitration may cause the parties unnecessary expense and delay,” trial courts should, “except in the clearest cases, .
. . certify orders denying a motion to compel arbitration.” Am Gen. Financial Svcs. v.
Jape, 291 Ga. 637, 644 n. 3 (732 SE2d 746) (2012) (citation modified). “[W]e review
de novo a trial court’s order granting or denying a motion to compel arbitration,” but
“the factual findings on which the ruling is based . . . will not be overturned unless
clearly erroneous.” C. R. of Thomasville, LLC v. Hannaford, 363 Ga. App. 581, 582
(871 SE2d 679) (2022) (citation modified).”The party seeking arbitration bears the
burden of proving the existence of a valid and enforceable agreement to arbitrate[,]”
and the question whether there is a valid agreement to arbitrate is “a matter of
contract . . . generally governed by state law principles of contract formation[.]” Id.
The record shows that in January 2024, plaintiff Joonwoo Solutions, LLC and
Dawon entered into a written “service agreement” by which Joonwoo would perform
certain construction work on the battery facility for $6.8 million. This first agreement
contained the following provision:
With the exception of any third party claim (impleader) asserted by Dawon against the SUBSUBCONTRACTOR [Joonwoo], if at any time any dispute, claim or controversy should arise between Dawon and [Joonwoo] with respect to any matter or thing arising out of or related to, or involved in any matter with this Agreement or with the construction project,
2 which dispute, claim or controversy is not controlled or determined by the dispute resolution procedures of the Subcontract, then such dispute, controversy of claim shall be settled by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association (“AAA”) and the Federal Arbitration Act. . . . This obligation to arbitrate survives any termination of this Agreement under other provisions thereof.
(Emphasis supplied.) The agreement also provided that in the event of Joonwoo’s
default, it “agree[d] to pay Dawon such reasonable attorney’s fees and related costs
as [it] may expend therein.” In a section entitled “Changes,” the agreement stated
that the parties would not change the terms of the contract without a written order.
That portion of the agreement further stated that the “Parties acknowledge that no
course of conduct or dealing between the Parties shall serve as a basis for any variation
of the requirements of the Agreement[.]”
On August 26, 2024, the parties entered into a so-called “second agreement”
clarifying that Dawon would pay $1.4 million of the agreed amount by September 4,
2024. The second agreement, which was executed in Korean, also stated that Joonwoo
would “adhere to the schedule for the designated section works by August 31” and
3 and would “make every effort to complete any defective or unfinished works by the
project’s conclusion.” Both parties signed this document.
In February 2025, however, after conflicts arose over the work and payment,
Joonwoo filed this action against Dawon and other defendants, alleging that the
project had run into significant delays and that Dawon was indebted to it for more
than $2 million. Joonwoo alleged that under the August 26 agreement, Dawon was
required to pay Joonwoo $1.4 million and that this agreement, which amounted to a
change order, concerned work that was outside the scope of the original agreement.
Joonwoo conceded that the “full terms of repayment for that work were to be agreed
upon later.” Joonwoo set out counts for breach of contract based on the agreements,
along with unjust enrichment and quantum meruit.
In May 2025, Dawon filed a motion to dismiss and to compel arbitration,
attaching the January 2024 service agreement and arguing that it contained a
mandatory arbitration clause which covered all disputes between it and Joonwoo
arising from the project. According to Dawon, although it had terminated the
agreement in December 2025 due to Joonwoo’s material breaches, the obligation to
arbitrate survived that termination. Thus, Dawon reasoned, dismissal of the lawsuit
4 was appropriate, along with recovery of the attorney fees expended in enforcing the
arbitration provisions of the agreement.
Joonwoo responded to the dismissal motion, arguing that the dispute between
it and Dawon stemmed from three separate agreements. Joonwoo claimed that after
executing the first agreement, the parties entered into the second agreement, which
did not reference the original agreement and was therefore independent of it.
Furthermore, Joonwoo argued, the parties then entered a third agreement, which was
not reduced to writing and concerned custodial services. Joonwoo claimed that the
arbitration agreement did not apply to it because it was a “subsubcontractor” under
the original agreement.
The trial court held a hearing, after which it found that Joonwoo’s claims
related solely to the August 2024 second agreement. The trial court stated that on the
hearing date, Joonwoo filed a Second Amended Complaint, which removed portions
of the complaint which had been based on the parties’ original January 2024
agreement. The court then found that the second agreement did not contain an
arbitration clause and did not incorporate by reference the original agreement.
Therefore, the trial court denied Dawon’s motion to dismiss, noting, however, that
5 it was not ruling on whether claims in the First Amended Complaint made under the
original agreement were subject to arbitration. The court explicitly limited its ruling
to Joonwoo’s claims under the second agreement. The trial court then certified its
ruling for review, and we granted Dawon’s timely application.
On appeal, Dawon repeats its argument that the parties’ dispute is subject to
arbitration.1
The parties’ first agreement was a six-page agreement accompanied by
seventeen appendices, which addressed the scope and quality of the work, insurance
coverage, the construction time schedule, and the timing and manner of payment. The
parties’ second agreement, executed in August 2025, consisted of a one-page
document written in Korean. Though the parties’ translations of this document differ
slightly, both versions of the second agreement are entitled “Agreement on Additional
Cost Handling for S-JV Project.” Both versions of the agreement also provided that
Joonwoo would adhere to the schedule for the designated work by August 31 and make
a good faith effort to complete the work by the project’s end. Neither version of the
second agreement describes the nature of the work that Joonwoo is to perform,
1 Dawon’s motion to strike Joonwoo’s brief is denied. 6 addresses the many issues covered by the original agreement, or mentions arbitration
or dispute resolution.
Given the abbreviated nature of the parties’ second agreement, the trial court
erred when it concluded that the second agreement was not subject to the arbitration
provisions of the first agreement. “[T]o determine if an existing contract has been
superseded and discharged, the parties must subsequently enter upon a valid and
inconsistent agreement completely covering the subject-matter embraced by the
original contract.” Samaca, LLC v. Cellairis Franchise, 345 Ga. App. 368, 372 (1) (813
SE2d 416) (2018) (citation modified). “Thus, terms of those contracts must
completely cover the same subject matter and be inconsistent.” Id.; see also Atlanta
Integrity Mtg. v. Ben Hill United Methodist Church, 286 Ga. App. 795, 797 (650 SE2d
359) (2007) (“Under the merger rule, an existing contract is superseded and
discharged whenever the parties subsequently enter upon a valid and inconsistent
agreement completely covering the subject-matter embraced by the original
contract.”) (citation modified). The second agreement did not supersede the first
agreement and was not “separate” from it because, as contemplated by the first, the
second “[arose] out of or [was related to . . . or involved in any matter with . . . the
7 construction project,” such that any “dispute, claim or controversy is not controlled
or determined by the dispute resolution procedures” of any other agreement.
In short, the second agreement here was not inconsistent with the original
agreement, nor did it begin to approach the broad scope of that agreement. Rather, the
second agreement concerned only cost and scheduling adjustments, and did not
address dispute resolution at all. Because the second agreement thus did not cover all
of the items involved in the first agreement, the first agreement’s arbitration provision
remained enforceable. See Simmons Co. v. Deutsche Financial Servs. Corp., 243 Ga.
App. 85, 90 (2) (532 SE2d 436) (2000) (“since all of the issues in the underlying suit
were compelled to arbitration, there was nothing left for the trial court to resolve . .
.”). The trial court therefore erred when it denied Dawon’s motions to compel
arbitration and to dismiss the complaint.
Judgment reversed. Markle and Hodges, JJ., concur.