THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS
PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
THE STATE OF
In The Court of Appeals
GMAC Commercial Mortgage Corporation, Respondent,
F.C. “Tally” Roberts, Jr., Appellant.
S. Jackson Kimball, III, Special Circuit Court Judge
Unpublished Opinion No. 2005-UP-542
Heard September 13, 2005 – Filed October 12, 2005
Bruce M. Simpson, of
Charlotte, North Carolina and James W. Bradford, Jr., of York, for Appellant.
Robert C. Byrd, of
Charleston, for Respondent.
PER CURIAM: GMAC Commercial Mortgage Corporation (GMAC) filed this action to collect on 24 loans personally guaranteed by F.C. “Tally” Roberts, Jr. The trial court granted GMAC’s motion to add U.S. Bank National Association (U.S. Bank) as a party plaintiff. The court also granted GMAC’s motion to strike Roberts’ demand for a jury trial. Roberts appeals. We affirm.
The guaranties in this case secured loans totaling greater than $18 million made by Franchise Mortgage Acceptance Company, LLC to either Acme Petroleum and Fuel Company or Acme Properties Limited Partnership (Borrowers). Roberts was the chief executive officer of Borrowers and personally guaranteed the loans. U.S. Bank is the current owner and holder of the loans and guaranties. GMAC is the servicer of the loans and is allegedly authorized to sue on U.S. Bank’s behalf.
After Borrowers defaulted, GMAC filed this collection action. In response, Roberts demanded a jury trial and asserted that GMAC is not the real party in interest and lacks standing to bring the action. GMAC moved to join U.S. Bank as a party plaintiff and to strike Roberts’ demand for a jury trial based on waivers contained in the guaranties.
The trial court found the jury trial waivers to be valid and enforceable and granted the motion to join U.S. Bank as a party plaintiff.
I. Joinder of U.S. Bank as a Party Plaintiff
Roberts contends the trial court erred in granting the motion to join U.S. Bank as a party plaintiff. We disagree.
The South Carolina Rules of Civil Procedure permit “all persons” to join an action as plaintiffs “if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action.” Rule 20(a), SCRCP. In Twelfth RMA Partners v. National Safe Corp., 335 S.C. 635, 638, 518 S.E.2d 44, 45-46 (Ct. App. 1999), a party who was not the holder of a note and guaranty moved on the day of trial to substitute the holder of the note as the proper party. The court allowed the substitution finding no prejudice to the defendant as no new claims were added and the subject of the claim remained the same.
Although U.S. Bank was added rather than substituted, we find the analysis in Twelfth RMA Partners sound. U.S. Bank’s claim arises from the same transactions or occurrences as GMAC’s claim—the notes and guaranties. Furthermore, the trial court correctly noted that any substantive defenses Roberts has may still be asserted at trial. Roberts has failed to show any prejudice resulting from the joinder. We find the motion for joinder was properly granted.
II. Waiver of Right to Jury Trial
Roberts next argues the trial court erred in granting GMAC’s motion to strike his demand for a jury trial, in part because GMAC did not have standing to assert the waivers. We find no error.
First, we find GMAC’s alleged lack of standing immaterial as we find the trial court properly allowed the Bank to be joined as a party. On the merits of the waivers, we likewise find no error. Each guaranty contains the following provision:
21. NO JURY TRIAL. The Guarantors waive all rights to trial by jury in any litigation or other proceeding relating to or arising out of this Guaranty or any of the other Loan Documents. The Guarantors acknowledge that: (i) the provisions of this waiver have been fully disclosed to and discussed by each Guarantor and the Lender, and shall be subject to no exceptions; (ii) this waiver is made knowingly, intentionally and willingly by each Guarantor as part of a bargained-for loan transaction; and (iii) the Lender has not in any way agreed with, represented or intimated to any Guarantor or any of their representatives that the provisions of this waiver shall not be fully enforced in all instances.
Each guaranty also contains a choice of law provision stating that the law of
Roberts argues the waivers are not enforceable because they were not knowingly, voluntarily, and intelligently made, in part because he allegedly did not have an opportunity to read the documents at closing.
Roberts relies on his affidavit, which states he did not have the opportunity to read the agreements at closing. However, the guaranties provide that Roberts made the waivers knowingly and voluntarily. Furthermore, Roberts is an experienced business person and was represented by a prominent law firm at the time he executed the guaranties. Roberts’ counsel issued an opinion letter to the lender stating he had examined the loan documents and guaranties and had represented Roberts in the transaction. The opinion letter clearly indicated a thorough review of the guaranties, including the waiver provisions. As did the trial court, we find the waiver provisions valid under either
III. Unpreserved Issues
Roberts raised the following unpreserved issues on appeal: 1) application of S.C. Code Ann. § 33-15-102(a); 2) GMAC’s waiver by delay; 3) application of waiver of jury trial provision to tort counterclaims; 4) GMAC’s improper use of joinder rules; and 5) GMAC’s reliance on irrelevant materials not timely submitted to the court. As to the first three issues, these issues are not preserved for appellate review, as they were not ruled upon by the trial court. See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (“It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review.”). As to the fourth and fifth issues, these issues are not preserved as they were raised for the first time in Roberts’ reply brief. See Continental Ins. Co. v. Shives, 328 S.C. 470, 474 n.2, 492 S.E.2d 808, 811 n.2 (Ct. App. 1997) (An appellant may not use the reply brief to argue issues not argued in the initial brief.).
We find the trial court properly granted the motion to join U.S. Bank as a party plaintiff. We further find the jury trial waiver provisions are valid and enforceable under either
HEARN, C.J., STILWELL, and KITTREDGE, JJ., concur.
GMAC originally brought this action in
 The law of the place where a thing is located. Black’s Law Dictionary 911 (6th ed. 1990).