Huskins v. Huskins

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Amanda Leigh Huskins and Jay R. Huskins, Appellants,

v.

Mungo Homes, LLC, Respondent.

Appellate Case No. 2018-000889

Appeal From Richland County
DeAndrea G. Benjamin, Circuit Court Judge

Opinion No. 5916
Heard May 5, 2021 – Filed June 1, 2022

AFFIRMED AS MODIFIED

Charles Harry McDonald, of Belser & Belser, PA; Beth
B. Richardson, of Robinson Gray Stepp & Laffitte, LLC;
Brady Ryan Thomas, of Richardson, Thomas,
Haltiwanger, Moore & Lewis; and Matthew Anderson
Nickles, of Rogers, Patrick, Westbrook & Brickman,
LLC, all of Columbia; and Terry E. Richardson, Jr., of
Richardson, Thomas, Haltiwanger, Moore & Lewis, of
Barnwell, all for Appellants.

Steven Raymond Kropski and David W. Overstreet, both
of Earhart Overstreet, LLC, of Charleston, for
Respondent.
LOCKEMY, A.J.: Amanda Leigh Huskins and Jay R. Huskins (collectively, the
Huskinses) appeal the circuit court's order granting Mungo Homes, LLC's
(Mungo's) motion to dismiss and compel arbitration. The Huskinses argue the
circuit court erred in (1) finding the limitations period contained in the arbitration
provision was not one-sided, oppressive, and unconscionable; (2) finding the
arbitration provision applied mutually to Mungo and the Huskinses; (3) failing to
consider the one-sided and oppressive terms of a limited warranty provision in
determining whether the arbitration agreement was unconscionable; and (4)
granting the motion to dismiss the Huskinses' claims involving the limited
warranty provision even though it concluded the arbitration provision did not
include claims arising under the limited warranty provision. We affirm the circuit
court's order as modified.

FACTS AND PROCEDURAL HISTORY

The Huskinses entered into a purchase agreement (the Purchase Agreement) with
Mungo in June 2015 for the purchase of a new home in the Westcott Ridge
subdivision in Irmo. The Purchase Agreement consisted of three pages. The top
of the first page provided: "THIS AGREEMENT IS SUBJECT TO
ARBITRATION PURSUANT TO S.C. CODE 15-48-10 ET SEQ."1 The second
page included a paragraph with the heading "LIMITED WARRANTY" (the
Limited Warranty provision), which stated the following:

The Seller to furnish the Purchaser, at closing, a limited
warranty issued by Quality Builders Warranty
Corporation, a sample copy of which is available for
inspection prior to closing at the offices of the Seller
during reasonable business hours, said limited warranty
is hereinafter referred to as the Quality Builders
Warranty Corporation Limited Warranty.

THE QUALITY BUILDERS WARRANTY
CORPORATION LIMITED WARRANTY ISSUED TO
THE PURCHASER IN CONNECTION WITH THIS
TRANSACTION IS IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, ANY
WARRANTY OF HABITABILITY, SUITABILITY

1
See S.C. Code Ann. § 15-48-10 to -240 (2005) (establishing the South Carolina
Uniform Arbitration Act (the UAA)).
 FOR RESIDENTIAL PURPOSES,
MERCHANTABILITY, OR FITNESS FOR A
PARTICULAR PURPOSE IS HEREBY EXCLUDED
AND DISCLAIMED. SELLER SHALL IN NO EVENT
BE LIABLE FOR CONSEQUENTIAL OR PUNITIVE
DAMAGES OF ANY KIND. THERE IS NO
WARRANTY WHATSOEVER ON TREES, SHRUBS,
GRASS, VEGETATION OR EROSION CAUSED BY
LACK THEREOF NOR ON SUBDIVISION
IMPROVEMENTS INCLUDING, BUT NOT LIMITED
TO, STREETS, ROADS, SIDEWALKS, SEWER,
DRAINAGE OR UTILITIES. PURCHASER AGREES
TO ACCEPT SAID LIMITED WARRANTY IN LIEU
OF ALL OTHER RIGHTS OR REMEDIES,
WHETHER BASED ON CONTRACT OR TORT. This
limited warranty will be incorporated in the deed
delivered at closing.

The issuance of a certificate of completion or occupancy
or final inspection approval by any governmental entity
shall constitute a final determination, binding on the
parties that the Property and improvements are in full
compliance with all applicable laws, regulations and
building codes.

The next page contains a paragraph with the heading "ARBITRATION AND
CLAIMS" and states,

Any claim, dispute or other matter in question between
the parties hereto arising out of this Agreement, related to
this Agreement or the breach thereof, including without
limitation, disputes relating to the Property,
improvements, or the condition, construction or sale
thereof and the deed to be delivered pursuant hereto,
shall be resolved by final and binding arbitration before
three (3) arbitrators, one selected by each party, who
shall mutually select the third, pursuant to the South
Carolina Uniform Arbitration Act. Arbitration shall be
commenced by a written demand for arbitration to the
other party specifying the issues for arbitration and
 designating the demanding parties [sic] selected
arbitrator. Each and every demand for arbitration shall
be made within ninety (90) days after the claim, dispute
or other matter in question has arisen, except that any
claim, dispute or matter in question arising from either
party's termination of this Agreement shall be made
within thirty (30) days of the written notice of
termination. Any claim, dispute or other matter in
question not asserted within said time periods shall be
deemed waived and forever barred.

In July 2017, the Huskinses filed an action against Mungo alleging the Purchase
Agreement violated South Carolina law by disclaiming certain implied warranties
without providing a reduction in sales price or other benefit to the purchaser for
relinquishing such rights. The Huskinses alleged causes of action for (1) breach of
contract and the implied covenant of good faith and fair dealing, (2) unjust
enrichment, (3) violation of the South Carolina Unfair Trade Practices Act
(SCUTPA),2 and (4) declaratory relief regarding the validity of the waiver and
release of warranty rights and the validity of Mungo's purported transfer of all
remaining warranty obligations to a third party. They did not allege any problems
with the home.

Mungo filed a motion to dismiss and compel arbitration, arguing the Huskinses'
claims were subject to arbitration pursuant to the Arbitration and Claims provision
(the Arbitration Clause) contained in the Purchase Agreement. The Huskinses
filed a memorandum opposing the motion, arguing the Arbitration Clause was
unconscionable and unenforceable. They asserted the court should consider the
Purchase Agreement's limitations on warranties as part of the agreement to
arbitrate and thus find the Arbitration Clause was unconscionable. In addition, the
Huskinses argued a provision contained in the Arbitration Clause that limited the
time to bring a claim to thirty or ninety days was unconscionable, could not be
severed, and rendered the entire Arbitration Clause unenforceable.

After hearing the motion, the circuit court issued an order granting the motion to
dismiss and compelling arbitration. The circuit court found that although the
Huskinses lacked a meaningful choice, the terms of the Arbitration Clause were
not one-sided and oppressive, and the Arbitration Clause was therefore not
unconscionable. In considering whether the terms were one-sided and oppressive,

2
S.C. Code Ann. § 39-5-10 to -730 (1976 & Supp. 2021).
the circuit court found that (1) the Limited Warranty provision must be read in
isolation from the Arbitration Clause, and (2) the terms in the Arbitration Clause
pertaining to the ninety-day time limit were not one-sided and oppressive because
they did not waive any rights or remedies otherwise available by law. The
Huskinses filed a motion to reconsider pursuant to Rule 59(e), SCRCP, which the
circuit court summarily denied. This appeal followed.

ISSUES ON APPEAL

1. Did the circuit court err in finding the provision limiting the time in which to
bring a claim was not one-sided, oppressive, and unconscionable?

2. Did the circuit court err in failing to consider the Limited Warranty provision as
part of the Arbitration Clause and thus failing to find the Arbitration Clause
unconscionable?

3. Did the circuit court err by granting Mungo's motion to dismiss the Huskinses'
action when it involved claims falling under the Limited Warranty provision?

STANDARD OF REVIEW

"An appellate court applies the same standard of review as the trial court when
reviewing the dismissal of an action pursuant to Rule 12(b)(6), SCRCP." Cap.
City Ins. Co. v. BP Staff, Inc., 382 S.C. 92, 99, 674 S.E.2d 524, 528 (Ct. App.
2009). "The trial court's grant of a motion to dismiss will be sustained only if the
facts alleged in the complaint do not support relief under any theory of law." Id.

"Arbitrability determinations are subject to de novo review. Nevertheless, a circuit
court's factual findings will not be reversed on appeal if any evidence reasonably
supports the findings." Simpson v. MSA of Myrtle Beach, Inc., 373 S.C. 14, 22,
644 S.E.2d 663, 667 (2007) (citation omitted).

LAW AND ANALYSIS

I. APPEALABILITY

As an initial matter, Mungo maintains the circuit court's order is not immediately
appealable. The Huskinses argue that under Widener v. Fort Mill Ford, 381 S.C.
522, 674 S.E.2d 172 (Ct. App. 2009), the order was immediately appealable
because it granted Mungo's Rule 12(b)(6), SCRCP, motion to dismiss. We agree.
Our supreme court has held our state procedural rules—rather than the Federal
Arbitration Act (FAA)—govern appealability of arbitration orders.3 See Toler's
Cove Homeowners Ass'n, Inc. v. Trident Const. Co., 355 S.C. 605, 611, 586 S.E.2d
581, 584-85 (2003) (holding that "because South Carolina's procedural rule on
appealability of arbitration orders, rather than the FAA rule, [wa]s applicable, the
court's order compelling arbitration [wa]s not immediately appealable").
Ordinarily, an order granting a motion to compel arbitration is not immediately
appealable. See § 15-48-200(a) (providing that "[a]n appeal may be taken from:
(1) An order denying an application to compel arbitration . . . ; (2) An order
granting an application to stay arbitration . . . ; (3) An order confirming or denying
confirmation of an award; (4) An order modifying or correcting an award; (5) An
order vacating an award without directing a rehearing; or (6) A judgment or decree
entered pursuant to the provisions of th[e UAA]"). However, the "[d]ismissal of an
action pursuant to Rule 12(b)(6) is appealable." Williams v. Condon, 347 S.C. 227,
233, 553 S.E.2d 496, 500 (Ct. App. 2001).

In Widener, this court held an order dismissing the action without prejudice and
ordering arbitration was immediately appealable, reasoning that "[b]y dismissing
[the] action, the [circuit] court finally determined the rights of the parties[, and]
therefore, [this court had] jurisdiction pursuant to section 14-3-330 of the South
Carolina Code [(2017)]." 381 S.C. at 524, 674 S.E.2d at 173-74; see also
§ 14-3-330(2) (providing the appellate courts have jurisdiction in an appeal from
"[a]n order affecting a substantial right made in an action when such order (a) in
effect determines the action and prevents a judgment from which an appeal might
be taken or discontinues the action, . . . or (c) strikes out . . . any pleading in any
action"). The appellant in Widener argued the dismissal of the action prejudiced
him because the statute of limitations would bar him from bringing any future
action after the conclusion of the arbitration proceedings. Id. at 525, 674 S.E.2d at
174. This court did not decide the merits of the case but reversed and remanded
the matter to the trial court to vacate the dismissal and enter an order staying the
action "pending the outcome of the arbitration proceedings." Id. In contrast, the
court in Toler's Cove—which did not involve a Rule 12(b)(6) dismissal—found the

3
See 9 U.S.C. § 16(a)(3) (providing that under the FAA, an appeal may be taken
from "a final decision with respect to an arbitration"); see also Stedor Enters., Ltd.
v. Armtex, Inc., 947 F.2d 727, 731 (4th Cir. 1991) (holding "when a district court
compels arbitration in a proceeding in which there are no other issues before the
court, that order is final . . . because the court has disposed of the whole case on the
merits").
order compelling arbitration was not immediately appealable but addressed the
merits of the appeal "because [the] issues [we]re capable of repetition and need[ed]
to be addressed." 355 S.C. at 611, 586 S.E.2d at 584-85.

Here, as in Widener, the Huskinses appeal an order dismissing the case, which is
an appealable order. See Williams, 347 S.C. at 233, 553 S.E.2d at 500 (stating an
order dismissing an action pursuant to Rule 12(b)(6) is immediately appealable).
In dismissing the Huskinses' claims, the circuit court addressed only the issue of
the enforceability of the Arbitration Clause. Unlike the appellant in Widener, the
Huskinses do not argue the dismissal prejudiced them; rather, they ask this court to
address the merits of the circuit court's decision as to the enforceability of the
Arbitration Clause and reverse the order compelling arbitration. We find the order
granting the motion to dismiss and compelling arbitration is appealable, and we
address the merits because the issue is capable of repetition. See Toler's Cove, 355
S.C. at 611, 586 S.E.2d at 584-85 (finding an order compelling arbitration was not
immediately appealable but reviewing the issues on the merits because they were
"capable of repetition and need[ed] to be addressed").

II. ENFORCEABILITY OF ARBITRATION AGREEMENT

The Huskinses argue the Arbitration Clause was unenforceable because it included
unconscionable terms that cannot be severed, including the Limited Warranty
provision and a "limitation of claims" provision. We address each of these
arguments in turn.

A. Limited Warranty Provision

The Huskinses challenge the validity of the Limited Warranty provision and assert
it must be read together with the Arbitration Clause because it encompassed
warranty claims and the provisions cross-referenced one another and were thus
substantively intertwined. We disagree.

"Arbitration clauses are separable from the contracts in which they are imbedded."
Hous. Auth. of Columbia v. Cornerstone Hous., LLC, 356 S.C. 328, 338, 588
S.E.2d 617, 622 (Ct. App. 2003) (quoting Jackson Mills Inc. v. BT Cap. Corp., 312
S.C. 400, 403, 440 S.E.2d 877, 879 (1994)). "[T]he issue of [the arbitration
clause's] validity is distinct from the substantive validity of the contract as a
whole." Id. (alteration in original) (quoting Munoz v. Green Tree Fin. Corp., 343
S.C. 531, 540, 542 S.E.2d 360, 364 (2001)). "Even if the overall contract is
unenforceable, the arbitration provision is not unenforceable unless the reason the
overall contract is unenforceable specifically relates to the arbitration provision."4
New Hope Missionary Baptist Church v. Paragon Builders, 379 S.C. 620, 630, 667
S.E.2d 1, 6 (Ct. App. 2008) (quoting Cornerstone Hous., 356 S.C. at 340, 588
S.E.2d at 623); see also Smith v. D.R. Horton, Inc., 417 S.C. 42, 48, 790 S.E.2d 1,
4 (2016) (noting the "Prima Paint doctrine" required that "in conducting an
unconscionability inquiry, courts may only consider the provisions of the
arbitration agreement itself, and not those of the whole contract"); Prima Paint
Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967).

In D.R. Horton, instead of considering the arbitration agreement separately from
the entire contract, our supreme court considered the warranty provisions and the
arbitration provisions of the contract together and construed "the entirety of
paragraph 14, entitled 'Warranties and Dispute Resolution,' as the arbitration
agreement." 417 S.C. at 48, 790 S.E.2d at 4. The court stated,

As the title indicates, all the subparagraphs of paragraph
14 must be read as a whole to understand the scope of the
warranties and how different disputes are to be handled.
The subparagraphs within paragraph 14 contain
numerous cross-references to one another, intertwining
the subparagraphs so as to constitute a single provision.

Id. The Arbitration Clause in this case differs from that in D.R. Horton. Although
D.R. Horton also involved a home purchase agreement, there, Paragraph 14 of the
agreement was titled "Warranties and Dispute Resolution" and consisted of
subparagraphs 14(a) through 14(j). Id. at 45, 790 S.E.2d at 2 (emphasis added).
Two of the subparagraphs stated the parties agreed to arbitrate any disputes related
to the warranties contained in the purchase agreement and any claims arising out of
the construction of the home. Id. In most of the remaining subparagraphs of
Paragraph 14, D.R. Horton expressly disclaimed all warranties except for a
ten-year structural warranty, and subparagraph 14(i) stipulated D.R. Horton was

4
Although the circuit court determined the UAA governed the parties' dispute, the
application of the UAA as opposed to the FAA does not affect our analysis. See
Munoz, 343 S.C. at 540, 542 S.E.2d at 364 ("Under the FAA, an arbitration clause
is separable from the contract in which it is embedded and the issue of its validity
is distinct from the substantive validity of the contract as a whole."); Simpson, 373
S.C. at 22 n.1, 644 S.E.2d at 667 n.1 (noting that "even in cases where the FAA
otherwise applies, general contract principles of state law apply in a court's
evaluation of the enforceability of an arbitration clause").
not "liable for monetary damages of any kind." Id. Here, however, the Limited
Warranty provision is a completely separate provision in the Purchase Agreement
and contains no reference to arbitration or the Arbitration Clause. Further, the
Arbitration Clause 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. This case is therefore
distinguishable from D.R. Horton, and the circuit court did not err in reviewing the
Arbitration Clause in isolation from the remainder of the Purchase Agreement,
including the Limited Warranty provision.

B. Limitation of Claims Provision

The Huskinses argue the Arbitration Clause was unenforceable because it required
a demand for arbitration to be filed within ninety days of the date the claim,
dispute, or other matter arose, or within thirty days if the claim, dispute, or other
matter arose from either party's termination of the Purchase Agreement or such
claims would be forever barred. They assert this "limitation of claims" provision
restricted the statutory limitations period from three years to ninety days and was
not severable from the Arbitration Clause. The Huskinses additionally contend
that, as a practical matter, this provision applied only to purchasers and such "lack
of mutuality" further demonstrated the "one-sided and oppressive nature" of the
arbitration clause. We agree this provision abbreviates the statute of limitations
period and is one-sided and oppressive. Nevertheless, we find the arbitration
clause is enforceable because the unconscionable provision is severable.

"Arbitration is a matter of contract law and general contract principles of state law
apply to a court's evaluation of the enforceability of an arbitration clause."
Parsons v. John Wieland Homes & Neighborhoods of the Carolinas, Inc., 418 S.C.
1, 6, 791 S.E.2d 128, 131 (2016); see also Palmetto Constr. Grp., LLC v.
Restoration Specialists, LLC, 432 S.C. 633, 639, 856 S.E.2d 150, 153 (2021),
("[W]hen considered in the proper context, our statements that the law 'favors'
arbitration mean simply that courts must respect and enforce a contractual
provision to arbitrate as it respects and enforces all contractual provisions. There
is, however, no public policy—federal or state—'favoring' arbitration."), reh'g
denied, S.C. Sup. Ct. Order dated Apr. 20, 2021. "[A] contract may be invalid—
and courts may properly refuse to enforce it—when it is unconscionable. A court
may invalidate an arbitration clause based on defenses applicable to contracts
generally, including unconscionability." Doe v. TCSC, LLC, 430 S.C. 602, 612,
846 S.E.2d 874, 879 (Ct. App. 2020). "Unconscionability has been recognized 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." Carolina
Care Plan, Inc. v. United HealthCare Servs., Inc., 361 S.C. 544, 554, 606 S.E.2d
752, 757 (2004). "In analyzing claims of unconscionability in the context of
arbitration agreements, the Fourth Circuit has instructed courts to focus generally
on whether the arbitration clause is geared towards achieving an unbiased decision
by a neutral decision-maker." Simpson, 373 S.C. at 25, 644 S.E.2d at 668.

1. Unconscionability

a. Absence of Meaningful Choice

We conclude the evidence showed the absence of a meaningful choice on the part
of the Huskinses. See id. at 25, 644 S.E.2d at 669 ("In determining whether a
contract was 'tainted by an absence of meaningful choice,' courts should take into
account the nature of the injuries suffered by the plaintiff; whether the plaintiff is a
substantial business concern; the relative disparity in the parties' bargaining power;
the parties' relative sophistication; whether there is an element of surprise in the
inclusion of the challenged clause; and the conspicuousness of the clause."
(quoting Carlson v. Gen. Motors Corp., 883 F.2d 287, 295 (4th Cir. 1989))); id.
("Absence of meaningful choice on the part of one party generally speaks to the
fundamental fairness of the bargaining process in the contract at issue."). The
Huskinses were average purchasers of residential real estate, were not represented
by independent counsel, and were not a substantial business concern to Mungo
such that they possessed more bargaining power than any other average homebuyer
would. Therefore, evidence supports the circuit court's finding that the Huskinses
lacked a meaningful choice in entering the agreement to arbitrate.

b. Oppressive and One-Sided Terms

Next, we conclude the evidence does not support the circuit court's finding that the
terms contained in the limitation of claims provision were not one-sided and
oppressive.

South Carolina provides for a three-year statute of limitations in an "action upon a
contract, obligation, or liability, express or implied." S.C. Code Ann. § 1-3-530(1)
(2005). Section 15-3-140 of the South Carolina Code (2005) provides:
 No clause, provision or agreement in any contract of
whatsoever nature, verbal or written, whereby it is agreed
that either party shall be barred from bringing suit upon
any cause of action arising out of the contract if not
brought within a period less than the time prescribed by
the statute of limitations, for similar causes of action,
shall bar such action, but the action may be brought
notwithstanding such clause, provision or agreement if
brought within the time prescribed by the statute of
limitations in reference to like causes of action.

The final two sentences of the Arbitration Clause effectively shorten the statutory
period to ninety days and provide an even shorter period of thirty days when the
"claim, dispute[,] or matter in question" arises from either party's termination of
the Purchase Agreement. Even though this provision purports to apply equally to
both parties, as a practical matter, it would disproportionately affect the
homebuyer's ability to bring a claim. Further, it is not "geared towards achieving
an unbiased decision by a neutral decision-maker." See Simpson, 373 S.C. at 25,
644 S.E.2d at 668. We conclude this provision violates sections 15-3-140 and
15-3-530 and is therefore unconscionable and unenforceable. See id. at 29-30, 644
S.E.2d at 671 ("The general rule is that courts will not enforce a contract [that] is
violative of public policy, statutory law, or provisions of the Constitution."). We
next consider whether this provision is severable or renders the entire Arbitration
Clause unenforceable.

2. Severability

Although the Arbitration Clause contains no severability clause, section
36-2-302(1) allows this court to effectively sever the unconscionable provision.
See S.C. Code Ann. § 36-2-302(1) (2003) ("If the court as a matter of law finds the
contract or any clause of the contract to have been unconscionable at the time it
was made the court may refuse to enforce the contract, or it may enforce the
remainder of the contract without the unconscionable clause, or it may so limit the
application of any unconscionable clause as to avoid any unconscionable result.");
see also Simpson, 373 S.C. at 25, 644 S.E.2d at 668 ("If a court as a matter of law
finds any clause of a contract to have been unconscionable at the time it was made,
the court may refuse to enforce the unconscionable clause, or so limit its
application so as to avoid any unconscionable result."); see also Doe, 430 S.C. at
615, 846 S.E.2d at 880 ("Courts have discretion though to decide whether a[n
arbitration clause] is so infected with unconscionability that it must be scrapped
entirely, or to sever the offending terms so the remainder may survive."); cf. D.R.
Horton, 417 S.C. at 50 n.6, 790 S.E.2d at 5 n.6 (declining to consider "whether the
unconscionable provisions [we]re severable" when the agreement lacked a
severability clause and because "doing so would be the result of the Court
rewriting the parties' contract rather than enforcing their stated intentions").

As we stated, we find the final two sentences of the Arbitration Clause shortening
the statutory limitations period were unconscionable. Nevertheless, we conclude
sections 15-3-540 and 36-2-302(1) operate to sever this portion of the Arbitration
Clause. Here, as in D.R. Horton, the Arbitration Clause did not contain a
severability clause. On the other hand, unlike D.R. Horton, the offending
provision is distinct and constitutes the final two sentences of the Arbitration
Clause. Thus, notwithstanding the lack of a severability clause, it is possible for
this court to simply delete the offending language without affecting the basis of the
parties' bargain or rewriting their agreement. Based on the foregoing, we sever the
final two sentences from the remainder of the Arbitration Clause and we affirm the
circuit court's order compelling arbitration as modified.

III. DISMISSAL OF WARRANTY CLAIMS

Finally, we find the Huskinses' contention that the circuit court erred in dismissing
claims related to the Limited Warranty provision when it found the Limited
Warranty "f[ell] outside" of the Arbitration Clause is without merit. The circuit
court did not find such claims fell outside of the scope of the Arbitration Clause.
Rather, in considering the enforceability of the Arbitration Clause, the circuit court
concluded the Limited Warranty provision was separable and that the Arbitration
Clause did not specifically limit the Huskinses' ability to bring a warranty action in
a judicial setting. The circuit court additionally concluded the Arbitration Clause
provided that all claims and disputes arising out of the Purchase Agreement were
subject to arbitration. Thus, we conclude this argument is without merit.

CONCLUSION

For the foregoing reasons, we find the order dismissing the Huskinses' complaint
and compelling arbitration was immediately appealable. We affirm, as modified,
the order dismissing the complaint and compelling arbitration.

AFFIRMED AS MODIFIED.

MCDONALD and HEWITT, JJ., concur.