Connecticut Nat. Bank v. L & R Realty

• Citation: 46 Conn.App. 443,699 A.2d 297
• Decision Date: 26 August 1997
• Docket Number: No. 16092,16092
• Court: Appellate Court of Connecticut
• Parties: CONNECTICUT NATIONAL BANK v. L & R REALTY et al.

Page 297

699 A.2d 297

46 Conn.App. 443

CONNECTICUT NATIONAL BANK v. L & R REALTY et al.

No. 16092.

Appellate Court of Connecticut.

Argued June 6, 1997.

Decided Aug. 26, 1997.

Robert G. Skelton, New Haven, for appellants (defendants).

Robert M. Dombroff, with whom was Ann Siczewicz, Hartford, for appellee (plaintiff).

Before DUPONT, C.J., and LAVERY and HEIMAN, JJ.

HEIMAN, Judge.

The defendants appeal from the judgment of the trial court rendered in favor of the plaintiff in this foreclosure action. On appeal, the defendants claim that the trial court improperly (1) found that there was sufficient evidence to support a judgment in favor of the plaintiff, (2) lacked jurisdiction to set law days after dismissal of the first appeal, (3) granted the plaintiff's motion to strike the counterclaims from the jury list, (4) awarded attorney's fees, (5) held the plaintiff could enforce the note, and (6) held the subordination agreement was unenforceable.

This case is governed by our decision in the companion lender liability action, L & R Realty v. Connecticut National Bank, 46 Conn.App. 432, 699 A.2d 291 (1997). The claims of L & R Realty (L & R) in that action are essentially identical to L & R's counterclaims in this foreclosure action. ¹ In L & R Realty v. Connecticut National Bank, supra, at 442, 699 A.2d at 296-297, we concluded that because the only evidence before the trial court was the signed loan documents containing the jury trial waiver provisions, there was not sufficient evidence before the trial court to enable it to make the factual determination of whether L & R had knowingly, intelligently and voluntarily waived its constitutional right to a jury trial. Thus, we concluded that the trial court improperly granted Connecticut National Bank's motion to strike L & R's lender liability claims from the jury docket. Accordingly, we reversed the judgment of the trial court and remanded the case with direction to deny Connecticut National Bank's motion to strike the lender liability claims from the jury docket and to conduct an evidentiary hearing to determine whether L & R's contractual jury trial waiver was valid. Our decision in L & R Realty v. Connecticut National Bank, supra at 432, 699 A.2d at 291, is, therefore, dispositive of this appeal. ²

The judgment is reversed and the case is remanded with direction to deny the plaintiff's motion to strike the lender liability claims from the jury docket and to conduct an evidentiary hearing in accordance with L & R Realty v. Connecticut National Bank, supra, 46 Conn.App. 432, 699 A.2d 291.

LAVERY, Judge, dissenting.

I respectfully dissent from the majority opinion as to the trial court's striking of L & R Realty's claim for a jury trial. I agree with the trial court that by signing the note, mortgage deed and guarantee, with the jury waiver clause, the defendants waived all claims to a trial by jury and that the action is in equity. There are two issues: (1) whether the jury waiver clauses located in the loan documents should be enforced and (2) whether the trial court was correct in its ruling that the action was essentially equitable.

I

The defendants admit in their pleadings, i.e., answer, special defenses and counterclaims, that they signed and executed the commercial mortgage documents including the guarantee for which they received $500,000. Both the note and the guarantee securing the note contain sections in bold type clearly waiving the right to a jury trial. There is no allegation anywhere before the trial court that they did not know the clause was in the documents, that they did not understand the clause or that they were coerced into signing the documents with the clause in it.

In determining whether a contractual jury waiver provision is enforceable, courts require that the provision be agreed to knowingly and voluntarily. Our Supreme Court has held: "In Noren v. Wood, 72 Conn. 96, 98, 43 A. 649 [1899], we said that the right to a jury trial is a right which, like other rights, may be waived but that it is a right the waiver of which is not to be inferred without reasonably clear evidence of the intent to waive. See Leahey v. Heasley, 127 Conn. 332, 336, 16 A.2d 609 [1940]. Whether a party has waived his right to a jury trial presents a question of fact for the trial court. Stevens v. Mutual Protection Fire Ins. Co., 84 N.H. 275, 283, 149 A. 498." Krupa v. Farmington River Power Co., 147 Conn. 153, 156, 157 A.2d 914 (1959), cert. denied, 364 U.S. 506, 81 S.Ct. 281, 5 L.Ed.2d 258 (1960).

Furthermore, our Supreme Court affirmed the waiver of a jury trial based entirely on a waiver provision contained in a lease. Nowey v. Kravitz, 133 Conn. 394, 395-96, 51 A.2d 495 (1947). "A right of trial by jury even when guaranteed by the constitution may be waived.... [A] binding agreement for such a waiver made in advance of the institution of such an action does not violate public policy; and there is no reason why such an agreement should not be given effect...." Id. at 396, 51 A.2d 495.

Courts in other jurisdictions have compared the waiver of a jury trial by contract to the widely accepted practice of requiring arbitration of future disputes.

The Appeals Court of Massachusetts has held: "The right to a jury trial may also be waived by contract. That is not surprising, as courts have been receptive to contractual waivers of broader procedural rights than the one involved here. Private parties, for example, may be bound by a contract requiring arbitration of future disputes.... Agreements in advance to arbitrate, it should be noted, eliminate not only the right to a jury trial on the merits of a dispute, but the right to any judicial trial. See also D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 185-86, 92 S.Ct. 775, 782-83, 31 L.Ed.2d 124 (1972) (upholding a contract that included waiver in advance of due process rights considerably more comprehensive than the right to a jury trial)." (Internal citations omitted.) Chase Commercial Corp. v. Owen, 32 Mass.App.Ct. 248, 588 N.E.2d 705 (1992). Looking to New York case law, David v. Manufacturers Hanover Trust Co., 59 Misc.2d 248, 298 N.Y.S.2d 847 (N.Y.Sup.App.Term 1969) held that waiver of a jury trial is neither unconscionable nor against public policy.

New York courts have held that "[a]s a general proposition, contract provisions waiving a jury trial 'are valid and enforceable, unless adequate basis to deny enforcement is set forth by the challenging party.' " Barclays Bank of New York v. Heady Electric Co., Inc., 174 A.D.2d 963, 571 N.Y.S.2d 650, 652 (3 Dept.1991). Additionally, the United States Court of Appeals for the Sixth Circuit held that "in the context of an express contractual waiver the objecting party should have the burden of demonstrating that its consent to the provisions was not knowing and voluntary." K.M.C. Co., Inc. v. Irving Trust Co., 757 F.2d 752, 758 (6th Cir.1985). "In determining whether to give effect to the contractual [jury] waiver against an objecting party the court should start with a presumption in favor of validity in the interest of liberty of contract. This would require the objecting party to point to some one or more matters that render the provision improper." 5 J. Moore, Federal Practice (2d Ed.1984) p 38.46, p. 38-400.

In the present case, the jury waiver clauses in the note and mortgage are no different from those that are enforced in leases or...