17 Conn. L. Rptr. 639 | Conn. Super. Ct. | 1996
This action arises out of a loan from the defendant, Webster Bank (Webster), to the plaintiff. Happens, LLC (Happens), for the purchase of a condominium complex. The plaintiffs assert a variety of claims based upon Webster's alleged breach of an agreement to provide "end-loan financing" to the purchasers of the individual condominium units. Webster filed an answer and also a counterclaim seeking to foreclose the mortgage that CT Page 6345 secured the underlying loan. The plaintiff filed a claim for a jury trial on April 3, 1996. The plaintiff has not yet filed a pleading in response to the counterclaim.
Webster has filed a motion to strike this case from the jury docket on the grounds that: (1) the plaintiff waived its right to a jury trial pursuant to the terms of the note, mortgage and guaranty supporting the underlying loan, each of which contain a clear and conspicuous waiver of the right to trial by jury; (2) the claim for a jury trial, dated April 3, 1996, was untimely pursuant to General Statutes §
The defendant claims first that the plaintiff waived its right to a jury trial pursuant to a jury waiver provision in the note, mortgage and guaranty supporting the underlying loan. Because the jury waiver provision in each of the above documents is clear and conspicuous, because the plaintiffs were represented by counsel when they signed the loan documents, and because there is nothing to suggest that there was any meaningful disparity in the relative bargaining power of the parties, the defendants contend that the plaintiff has knowingly and intentionally waived its right to a jury trial.
The plaintiff does not argue that it was unaware of or did not understand the waiver provision, but rather contends that an evidentiary hearing, at which the defendant bears the burden of proof, is necessary before the court can determine whether the purported waiver is valid and enforceable. The defendant argues that the fact that the plaintiff was represented by counsel strongly militates in favor of a finding that the plaintiff had a choice as to whether to accept the waiver provision and that its failure to submit any information, whether in the form of an affidavit or otherwise, to suggest that the waiver was not knowing and voluntary or to rebut the defendant's claim, eliminates the need for an evidentiary hearing.
"The constitution of Connecticut, article
In determining whether the jury waiver in an agreement between the parties should be enforced, a court should consider the following factors: "(1) whether the jury waiver was conspicuous; (2) whether the parties were represented by counsel; (3) whether the parties were on equal footing in their negotiations; and (4) whether the party objecting to the waiver actually had a choice as to whether to accept the waiver provision." Centerbank v. Fazzone, Superior Court, judicial district of Litchfield at Litchfield, Docket No. 066746 (October 19, 1995) (Pickett, J., 15 CONN. L. RPTR. 377, 378). "Whether a party has waived his right to a jury trial presents a question of fact for the trial court." Krupa v. Farmington River Power Co.,supra,
Other courts have apparently made waiver determinations without the benefit of an evidentiary hearing. See PeabodyInternational v. Coordination Technology, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 103418 (May 18, 1992) (Nigro, J., 6 CONN. L. RPTR. 437, 441) (motion to strike from the jury docket based on jury waiver in lease granted where there was "no information presented to this court that [the defendant] was not represented during negotiations, that the lease was not negotiated with care, that [it] was on unequal rooting and forced to accept the sublease as tendered. or that it was without choice but to accept"); AdvestCred. Corp. v. Pellicci's, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 093900 (April 4, 1991) (Mottolese, J.) (motion to strike from the jury docket granted despite the fact that the defendant indicated in his deposition that he did not read the documents before he signed them and that he would not have understood the jury waiver provision anyway, where the defendant had spent his entire adult life working or managing the restaurant in connection with which the documents were signed, he was not coerced or pressured into signing, he was not in a "no real choice" situation, and the waiver provisions were not in obscure locations or written in fine print).
In the present case, the waiver provisions were not in obscure locations or in fine print, and there has been no information presented to the court that the plaintiff was not represented by counsel during negotiations, that the parties were on unequal footing in their negotiations, or that the plaintiff had no choice as to whether to accept the waiver provision. Nevertheless, given the status of the right to jury trial in our state and nation's jurisprudence, this court is in accord with those cases that require an evidentiary hearing before determining that the right to a jury trial has been waived. SeeBank of Boston Connecticut v. Rusconi, supra, 9 CSCR at 1091.
The defendant also argues that Happens' jury claim was untimely under General Statutes §
In Home Oil Co. v. Todd, supra, the plaintiff had filed a motion to strike the defendant's claim for the jury docket, asserting that the defendant's jury claim was not timely in accordance with General Statutes §
The court in Home Oil Co. concluded that the defendant's "`Reply to Matters in Avoidance' was a pleading that joined new issues of fact in this case, and, therefore, the ten day period under §
In the present case, the defendant filed an answer along with a counterclaim on February 13, 1996. The plaintiff filed a claim for a jury trial on April 3, 1996, at a point in time when no CT Page 6349 viable ten-day period under §
Although the plaintiff's jury claim was premature, "a premature' jury trial request . . . [is] a continuing authority to the clerk to place the cause on the jury docket upon the joining of issue." Id., 343. In light of the April 3, 1996 claim by the plaintiff for a jury trial, therefore. the eventual joining of issue if and when the plaintiff files an answer to the defendant's counterclaim would require his case to be entered on the jury trial docket.
In its reply memorandum, the defendant suggests that the joining of an issue of fact with respect to the defendant's equitable counterclaim may not start the running of a new ten-day period under §
The defendant's final contention is that the plaintiff is not entitled to a jury trial on the defendant's counterclaim for foreclosure. "[F]oreclosure actions are equitable in nature and, therefore, do not give rise to a right to a jury trial under article
In Northeast Savings. F.A. v. Plymouth Commons Realty Corp.,supra,
In summary, the plaintiff's claim to the jury docket is timely. It is not, however, entitled to a jury trial on the defendant's foreclosure action. As to whether the plaintiff has waived their right to a jury trial entirely. that is a matter that cannot and should not be determined without an evidentiary hearing. If, after such a hearing, the court finds that the plaintiff has not knowingly and voluntarily waived its right to a jury trial, "the trial court must determine whether to conduct the trial of the legal and equitable claims jointly or separately." Northeast Savings, F.A. v. Plymouth Commons Realty,supra,
The motion to strike from the jury docket is therefore denied, without prejudice, subject to the defendant's seeking an evidentiary hearing as to the issue of waiver.
SILBERT, J. CT Page 6351
