1993 Conn. Super. Ct. 5933 | Conn. Super. Ct. | 1993
The plaintiff claims that the defendants waived their right to trial by jury by virtue of the fact that a provision in the printed promissory note and the printed guaranty agreements contained a paragraph to that effect in the documents. See plaintiff's Exhibits A, B and C.
The court set the matter down for and conducted an evidentiary hearing on the question of waiver.
Waiver is the intentional relinquishment of a known right. Rosenthal v. State Bar Examining Committee,
The party claiming waiver has the burden of proving its claim. Cleary v. Zoning Board,
The defendant, Raymond W. Brennan, was called to testify. He was president of the defendant corporation. There was a previously existing line of credit. The plaintiff's representative, Mr. Ferris, came to the defendant's place of business. Mr. Ferris claimed that the plaintiff bank would accelerate the existing line of credit obligations if the defendant Toyota, Inc., did not provide security in the form of personal guarantees by Mr. Brennan and his daughter, the defendant Lynn B. Creighton. Mr. Ferris claimed it was an "update of the file." The entire transaction took ten to fifteen minutes. No attorneys were present. The new note was a single demand note at: "the Bank's Base Rate . . . plus 1.5%, with an initial rate of interest of 10%." He did not read the multiple other paragraphs of the note. He personally endorsed CT Page 5935 the note and signed the guaranty. He understood that he was guaranteeing the payments and signed the guarantee presented to him. He did not read the text of the note or the guarantee.
He did not read the provision concerning waiver of jury trial. Realistically there was no real choice but to sign the note, or have the line of credit revoked, the previous note called and go under for lack of essential credit to run a business such as this.
The testimony of Mr. Brennan's daughter Lynn Creighton affirmed the testimony of Mr. Brennan. Mr. Ferris did not mention anything to her or her father concerning jury trial nor did she read the provision concerning jury trial. All she knew was that she was guaranteeing the note. The transaction was brief and pro forma.
Mr. Ferris was in the courtroom with plaintiff's counsel. There was ample opportunity to contradict any of the above facts. No such contradiction was accomplished.
The court finds that none of the defendants knew of the provisions concerning jury waiver.
DISCUSSION
The right to jury trial is guaranteed by Section 19 of Article
The plaintiff cites Nowey v. Kravitz,
The plaintiff further relies upon the case of Batter Building Materials Co. v. Kirschner,
Neither of the cited cases stand for the proposition that the mere signing of a document purporting to waive a constitutional right will be automatically enforced against a party.
Parties may by statute waive their right to the constitutional right to trial by jury. Conn. Gen. Stats. 52-214 provides for waiver by inaction. Yet that waiver is within the format of the court proceedings itself, under the auspices of attorneys who are able to intelligently advise and counsel parties as to the extent of the right and the serious nature of abandoning such right. However, even within that framework the Supreme Court has concluded that the statute allowing such waiver . . . "should be construed so as not to deprive a party of his full right to trial by a jury." See Leahey v. Heasley,
Similarly, an in court election by a party does constitute actual waiver of the constitutional right to jury trial (see State v. Rankin,
Waiver of the constitutional right to jury trial may be made within the context of judicial safeguards. Waiver may be made by the specific and knowing agreement of the parties. The mere inclusion of a waiver provision in a document does not in and of itself automatically in all instances constitute a binding waiver by the party against whom waiver is claimed.
The court finds from the evidence that the defendants did not know of the waiver provision in the documents. The court finds that the arbitrary urging imposed upon the defendants to CT Page 5937 immediately sign these documents so as to "update the file", under threat of accelerating the previous notes, constitutes both mistake and unfair dealing as concerns the purported waiver of the constitutional right to trial by jury. This case is ordered to be on the jury docket.
The motion of the plaintiff to strike the claim for jury trial is denied.
Sullivan, J.