South Carolina Court of Appeals Rules on Jury Trials and Class Action Waivers in Master Deeds - Decision is a good development for developers

by Nexsen Pruet, PLLC

Nexsen Pruet, PLLC

[co-author: William Chase McNair]

2016 Case Notes: Real Estate
December 19, 2016

The South Carolina Court of Appeals has offered insight into its opinion on the issue of whether a developer may contractually create and enforce jury trial and class action waivers in a master deed.   The Court’s position is good news for developers and those who represent them.[i]

In The Gates at Williams-Brice Condominium Association and Katharine Swinson, individually, and on behalf of all other similarly situated v. DDC Construction, et al, 2016 WL 4537655,  the Court specifically examined whether jury trial and class action waivers included in a master deed are  enforceable.    The Court, reversing the circuit court, found the waivers enforceable.

A number of entities (collectively, “Developer”) developed The Gates at Williams-Brice condominium community (“Gates”).  Following the filling of a lawsuit by Katharine Swinson (“Swinson”) individually, and on behalf of others similarly situated, and the Gates at Williams-Brice Condominium Association (“Homeowners”), alleging faulty workmanship during construction. Developer, electing not to attempt to enforce the contractual arbitration provision, moved for a nonjury trial and to strike the class action allegations.  The circuit court denied those motions.  Developer appealed and the Court of Appeals reversed.

The Court of Appeals focused on four pivotal issues: (1) timeliness of Developer in raising mode of trial issue; (2) ineffectiveness of subsequent amendment of Master Deed; (3) enforceability of waivers and (4) whether Developer’s choice not to pursue arbitration equated to a waiver of a nonjury trial.

In analyzing the timeliness of Developer’s motion for a nonjury trial and to strike a jury trial demand and class action allegations, the Court recognized the requirement that a party must timely raise mode of trial issues at the first opportunity. Foggie v. CSX Transportation, Inc., 315 S.C. 17, 431 S.E.2d 587 (1993).  The requirement is to place an opposing party on notice of the issues at stake.  See Shirley’s Iron Works, Inc. v City of Union, 403 S.C. 560, 573-74, 743 S.E.2d 778, 785 (2013).  In examining Foggie and related cases, the Court concluded, however, that the first opportunity requirement deals with preserving a mode of trial issue for appellate consideration, rather than raising the issue to the circuit court for consideration.  Thus, the Court concluded that Developer met the first opportunity requirement by timely appealing the circuit court’s order denying its request for a nonjury trial.  The Court further noted that there were general denials related to the class action allegations and the jury trial demand included in the answers of various defendants in the action.[ii]

The next issue examined by the Court was the Homeowners’ amendment of the Master Deed to eliminate the wavier of a jury trial and of a class action.  This amendment was done more than six months after the filing of the original complaint.  Having determined that the owners knowingly, voluntarily and intelligently waived their rights to a jury trial and to a class action, the Court found that the amendments could not apply retroactively to remove the otherwise agreed upon waivers; such amendment would effectively substitute a new obligation for the original bargain of the parties.  See generally Armstrong v. Ledges Homeowners Ass’n, 633 S.E. 2d 78, 87 (N.C. 2006).  The Court, unaware of any South Carolina authority which would allow contracting parties to unilaterally alter agreed upon provisions once litigation has begun, concluded that permitting such an amendment is against the weight of authority.  See Ellis v. Taylor, 316 S.C. 245, 449 S.E.2d 487, 488 (1994) (“The court’s duty is to enforce the contract made by the parties regardless of its wisdom or folly, apparent unreasonableness,  or the parties’ failure to guard their rights carefully.”)

As to the third issue addressed by the Court, South Carolina has long recognized that the right to a jury trial may be waived by contract.  See North Charleston Joint Venture v. Kitchens of Island Fudge Shoppe, Inc., et al, citing, Leasing Serv. Corp. v. Crane 804 F.2d 828 (4th Cir. 1986).  When a person signs a document, he is responsible for using reasonable care to protect himself by reading the document, making sure of its contents.  Regions Bank v. Schmauch, 354 S.C. 648, 582 S.E.2d 432 (Ct. App. 2003).  Here, the terms of the Master Deed, including the waiver of a jury trial and of a class action, were expressly incorporated into each purchase contract.  By signing the contract at closing, each homeowner was deemed to have read the Master Deed.  Additionally, the Master Deed was also incorporated into the bylaws of the Homeowners’ Association, which were available to all who purchased units. 

The waivers, in all bold capital letters on the last page of the Master Deed, were conspicuous and unambiguous.  The waivers did not limit liability or the right to seek legal remedy; rather, the owners and Developer waived their rights to a jury trial and class action lawsuit.   Even if the owners were unaware of the inclusion of the waiver provisions, they cannot avoid the effects of the waivers merely by arguing they were unaware that the provisions were included in the Master Deed absent a showing that the waivers are oppressive and one-sided.

Lastly, the Court found that the Developer did not waive its right to a nonjury trial and to proceed without a class simply because it did not elect to arbitrate.  The circuit court pointed to various actions by Developer in support of its conclusion that Developer waived its right to arbitrate and, consequently, its rights to a nonjury trial and to proceed without a class.  On review, the Court found, however, that Developer’s decision to request a nonjury trial is wholly unrelated to its decision not to arbitrate.   In reaching its conclusion, the Court again relied upon the Master Deed, in which the Developer included language addressing both alternative dispute resolution and the jury trial waiver, finding that such inclusion was intended to afford the opportunity to either arbitrate or seek a nonjury trial.

While at the time of this writing, a Motion for Rehearing is still pending, this opinion demonstrates the Court’s inclination to enforce jury trial and class action waivers included in a master deed.   That said, there appears to be no harm in the inclusion of clear, conspicuous and obvious waivers at this time, even if the Court’s opinion is eventually modified.

[i] A Motion for Rehearing is currently pending.  Until such time as there is a disposition as to that Motion, this opinion is not established law.

[ii] The Court also relied upon the Homeowner’s subsequent amendment of the Master Deed in support of its conclusion that the Homeowners were on notice of the mode of trial issue following the receipt of one defendant’s answer.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Nexsen Pruet, PLLC | Attorney Advertising

Written by:

Nexsen Pruet, PLLC

Nexsen Pruet, PLLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.