Arbitration – Home Purchase – Unconscionable Limitations Period – Severable – Separate Warranty Provisions

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In the contract pursuant to which the plaintiff-buyers bought a home from the defendant-builder, the final two sentences of the arbitration provision unconscionably shorten the limitation period for claims from three years to either 90 or 30 days, depending upon the claim. Although there is no severability clause in the arbitration provision, the offending sentences are distinct, and it is possible for this court to simply delete the offending language without affecting the basis of the parties’ bargain or rewriting their agreement.

We sever the final two sentences from the remainder of the arbitration clause, and we affirm the circuit court’s order compelling arbitration as thus modified.

Where plaintiffs ask this court to address the merits of the circuit court’s decision as to the enforceability of the arbitration clause and to reverse the order compelling arbitration, the order granting defendant’s motion to dismiss and compelling arbitration is appealable.

Plaintiffs challenge the validity of the contract’s limited warrant provision; however, the limited warranty provision is a completely separate provision in the purchase agreement and contains no reference to arbitration or to the arbitration clause. Further, the arbitration provision contains no cross references to the limited warranty provision. Because the two provisions were completely separate and did not cross-reference one another, this court need not construe them together to determine the scope of the warranties or how different disputes were to be handled. The circuit court did not err in reviewing the arbitration provision in isolation from the remainder of the purchase agreement, including the limited warranty provision.

Huskins v. Mungo Homes, LLC (Lawyers Weekly No. 011-014-23, 13 pp.) (James Lockemy, A.J.) Appealed from Richland County Circuit Court (DeAndrea Benjamin, J.) Charles Harry McDonald, Beth Richardson, Brady Ryan Thomas, Matthew Anderson Nickles and Terry Richardson for appellants; Steven Raymond Kropski and David Overstreet for respondent. S.C. App.