BB&T v. Abikhaled

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Branch Banking and Trust Company, Respondent,

v.

Elie Abikhaled and Ghazi Abikhaled, Appellants.

Appellate Case No. 2015-000158

Appeal From Richland County
Deadra L. Jefferson, Circuit Court Judge

Unpublished Opinion No. 2016-UP-389
Submitted May 1, 2016 – Filed August 3, 2016

AFFIRMED

Thomas E. Lydon, of McAngus Goudelock & Courie,
LLC, of Columbia, for Appellants.

Joseph Kershaw Spong and Paul Hamilton Hoefer, both
of Robinson McFadden & Moore, PC, of Columbia, for
Respondent.

PER CURIAM: Elie and Ghazi Abikhaled (Appellants) appeal the circuit court's
order granting Branch Banking and Trust Company's (BB&T) motion to strike
Appellants' demand for a jury trial. Appellants contend the jury trial waiver clause
found in the guaranty agreements between Appellants and BB&T was
unenforceable as to the underlying factual allegations supporting counterclaims
pled before the circuit court. Appellants further argue any application of the clause
to the allegations would be unconscionable. We find the plain and ordinary
meaning of the clause encapsulates the factual allegations asserted by Appellants.
See Carolina First Bank v. BADD, L.L.C., 414 S.C. 289, 292, 778 S.E.2d 106, 108
(2015) ("Whether a party is entitled to a jury trial is a question of law, which this
[c]ourt reviews de novo . . . ."); Beach Co. v. Twillman, Ltd., 351 S.C. 56, 63-64,
566 S.E.2d 863, 866 (Ct. App. 2002) ("A party may waive the right to a jury trial
by contract. Such a waiver must be strictly construed as the right to trial by jury is
a substantial right. However, terms in a contract provision must be construed using
their plain, ordinary and popular meaning." (citations omitted)). We find the
clause was not procured by any absence of meaningful choice, was conspicuously
found in the guaranty, and was not unconscionable. See Simpson v. MSA of Myrtle
Beach, Inc., 373 S.C. 14, 24-25, 644 S.E.2d 663, 668 (2007) ("In South Carolina,
unconscionability is defined as the absence of meaningful choice on the part of one
party due to one-sided contract provisions, together with terms that are so
oppressive that no reasonable person would make them and no fair and honest
person would accept them."); see also Gladden v. Boykin, 402 S.C. 140, 146, 739
S.E.2d 882, 885 (2013) (stating a court should examine "whether an important
clause was particularly inconspicuous, as if the drafter intended to obscure the
term"). Accordingly, we affirm.1

AFFIRMED.

HUFF, KONDUROS, and GEATHERS, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.