L & R Realty v. Connecticut Nat. Bank

• Citation: 699 A.2d 291,46 Conn.App. 432
• Decision Date: 26 August 1997
• Docket Number: No. 14969,14969
• Court: Appellate Court of Connecticut
• Parties: L & R REALTY et al. v. CONNECTICUT NATIONAL BANK.

Page 291

699 A.2d 291

46 Conn.App. 432

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

No. 14969.

Appellate Court of Connecticut.

Argued June 6, 1997.

Decided Aug. 26, 1997.

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

Robert M. Dombroff, with whom was Ann M. Siczewics, Hartford, for appellee (defendant).

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

HEIMAN, Judge.

The plaintiffs appeal from the judgment of the trial court rendered in favor of the defendant in this lender liability action. On appeal, the plaintiffs claim that the trial court improperly (1) granted the defendant's motion to strike the lender liability claims from the jury docket, (2) found the subordination agreement unenforceable, (3) held that the defendant was excused from subordinating because the plaintiffs could not satisfy the Mechanics Savings Bank commitment, (4) held that the plaintiffs had failed to mitigate their damages, and (5) failed to recuse itself. We conclude that the trial court improperly granted the defendant's motion to strike the lender liability claims from the jury docket and, accordingly, we reverse the judgment of the trial court.

The following facts are pertinent to our resolution of this appeal. On or about June 30, 1989, the Connecticut National Bank (CNB) loaned L & R Realty (L & R) $500,000 in connection with the purchase by L & R of approximately three acres of land in Colchester. At the June 30, 1989 closing, L & R delivered to CNB (1) a commercial promissory note in the principal amount of $500,000 (the note), (2) a guaranty agreement (the guaranty) by which the general partners of L & R personally guaranteed payment of the note, (3) a mortgage by which L & R created a first mortgage lien on the Colchester property in favor of CNB to secure due performance of L & R's obligations under the note, and (4) a collateral assignment of rents and security agreement by which L & R provided CNB with further security for the performance of L & R's obligations due under the note.

The general partners of L & R claimed that prior to the closing, a senior vice president of CNB orally agreed to subordinate its mortgage to any future construction mortgage placed on the Colchester property. In reliance on this oral subordination agreement, L & R began construction on the Colchester property. In a letter dated October 26, 1990, another CNB vice president wrote to L & R that CNB intended "to stand behind the verbal representation made by [L & R's] prior account officer concerning the subordination of the bank's mortgage on the Colchester parcel."

On March 25, 1991, L & R received a commitment from Mechanics Savings Bank that it would loan L & R funds for construction on the Colchester property. L & R notified CNB of the construction loan and requested that CNB subordinate its mortgage to this new construction mortgage. On April 15, 1991, CNB refused to subordinate their mortgage to this new construction mortgage without additional collateral. This refusal prevented the construction loan from closing. In April, 1991, L & R stopped paying the CNB note. On February 24, 1992, CNB commenced an action to foreclose its mortgage. L & R responded by bringing a lender liability action against CNB, claiming compensatory and punitive damages on a number of theories: (1) breach of the subordination agreement, (2) promissory estoppel, (3) breach of good faith and fair dealing, (4) fraud, (5) wrongful interference with prospective business relations, (6) economic duress, and (7) engagement in unfair and deceptive practices in violation of CUTPA. L & R also asserted the those claims as counterclaims in the foreclosure action.

In November, 1992, the trial court consolidated the foreclosure and the lender liability actions. After a nine day trial, the trial court found that the note, the mortgage, and the other security documents delivered by L & R at the closing constituted a complete, final and integrated agreement, and, thus, the trial court found that there was no valid subordination agreement. Accordingly, on June 20, 1995, the trial court rendered judgment in favor of CNB in both the foreclosure and the lender liability actions. This appeal from the judgment in the lender liability action follows.

The plaintiffs first claim that the trial court improperly granted the defendant's motion to strike the plaintiffs' lender liability claims from the jury docket. Specifically, the plaintiffs argue that, in this case, where the record before the trial court, Hurley, J., was devoid of evidence that the jury trial waiver clauses located in the loan documents ¹ were entered into knowingly, voluntarily, and intelligently, the trial court was required to conduct an evidentiary hearing to make that factual determination. ²

Certain additional facts are necessary to an understanding of our resolution of this claim. On November 2, 1993, the defendant moved to strike the plaintiffs' lender liability claims from the jury docket "on the ground that each of the plaintiffs waived their right to a trial by jury in the loan documents which form the basis for this action." On November 22, 1993, the parties' attorneys briefly presented their arguments on the motion to strike to the trial court, Hurley, J. The plaintiffs' attorney argued that the trial court should hold an evidentiary hearing to determine whether the contractual jury trial waivers located in the loan documents constituted a voluntary, intelligent, and knowing waiver of the right to a jury trial. Counsel for the defendant argued that the plaintiffs, one of whom was an attorney, signed a note and guarantee that contained an express waiver of the right to a jury trial, and that the execution of such documents automatically constituted a valid contractual waiver of the right to a jury trial. The trial court did not conduct any form of an evidentiary hearing, and heard no testimony. The trial court took the motion on the papers. Thus, when deciding this motion to strike, the trial court had nothing before it except the defendant's motion to strike the plaintiffs' claims from the jury docket, the plaintiffs' opposition to this motion to strike, the attached memoranda of law, and brief oral arguments by the parties' attorneys. Because attorney arguments, written or oral, do not constitute evidence; see Roberts v. Roberts, 32 Conn.App. 465, 475, 629 A.2d 1160 (1993); the trial court had before it no evidence, except perhaps a copy of the signed loan documents, when it ruled on the motion to strike.

On November 26, 1993, the trial court granted the defendant's motion to strike the plaintiffs' claims from the jury docket. The trial court ruling consisted of one line: "The court finds that by signing the note the [plaintiffs] waived all claims to a trial by jury."

In 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), our Supreme Court held 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.... Whether a party has waived his right to a jury trial presents a question of fact for the trial court." (Citations omitted.) Neither Krupa nor any subsequent Connecticut appellate case, however, has defined what constitutes "reasonably clear evidence of the intent to waive the right to a jury trial" or by what standard and method the trial court should make that factual determination. Thus, whether a trial court is required to conduct an evidentiary hearing in order to determine whether a contractual jury trial waiver was made knowingly, voluntarily and intelligently represents an issue of first impression in Connecticut.

We begin by examining our law regarding the general concept of waiver. " 'Waiver involves an intentional relinquishment of a known right.... There cannot be a finding of waiver unless the party has both knowledge of the existence of the right and intention to relinquish it.' " Cassella v. Kleffke, 38 Conn.App. 340, 347, 660 A.2d 378, cert. denied, 235 Conn. 905, 665 A.2d 899 (1995). "Inherent in the concept of waiver is the notion of assent, which is an act of understanding that presupposes that the party to be affected has knowledge of its rights but does not want to assert them." Fisette v. DiPietro, 28 Conn.App. 379, 385, 611 A.2d 417 (1992). "Waiver may be inferred from the circumstances if it is reasonable so to do.... Whether conduct constitutes a waiver is a question of fact.... When the trial court is required to make a finding that depends on issues of fact which are disputed due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and cross-examine adverse witnesses.... In order to prevail at this trial-like hearing the movant must introduce evidence to establish his claim." (Citations omitted; internal quotation marks omitted.) Cassella v. Kleffke, supra at 347, 660 A.2d 378. The party claiming waiver has the burden of proving the claim. See Cleary v. Zoning Board, 153 Conn. 513, 518, 218 A.2d 523 (1966).

Our Superior Courts have dealt extensively with the specific issue of whether an evidentiary hearing is required to determine the validity of a contractual jury trial waiver. While Connecticut Superior Court opinions are by no means binding upon us, they may be persuasive. See Johnson v. Murzyn, 1 Conn.App. 176, 181, 469 A.2d 1227, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984).

Our Superior Courts have found that a valid and enforceable contractual jury trial waiver must have been made knowingly, intelligently and voluntarily. See Connecticut National Bank v. Romagna, Superior Court, judicial district of New London at New London, Docket No. 521920, 1994 WL 685005 (December 1, 1994). Our Superior Courts further explain that "[w]aiver may be made...