This certified joint appeal concerns the enforceability of a written waiver of the right to a jury trial contained in commercial loan documents. The trial court had struck the cases from the jury docket. The Appellate Court, in a divided opinion, reversed the ensuing judgment of the trial court, holding that an evidentiary hearing on the enforceability of the written waiver was required. We granted certification to appeal,
The facts, as set out by the Appellate Court, are as follows. "On or about June 30, 1989, the Connecticut National Bank (CNB) loaned L and 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 (note), (2) a guarantee agreement (guarantee) 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
"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 the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. L & R also asserted those claims as counterclaims in the foreclosure action." L & R Realty v. Connecticut National Bank, 46 Conn.App. 432, 433-34, 699 A.2d 291 (1997).
Prior to trial, L & R filed claims for a jury trial in both the foreclosure and lender liability actions. CNB subsequently filed motions to strike the cases from the jury docket based on contractual waivers of the right
The cases subsequently were consolidated for trial before Austin, J. "After a nine day trial, the trial court
L & R appealed from both judgments, claiming, inter alia, that the trial court improperly had stricken the cases from the jury docket without holding an evidentiary hearing to determine whether the contractual jury trial waivers had been voluntary and knowing.
On appeal, CNB argues that: (1) the written waiver was prima facie evidence that L & R knowingly and voluntarily had waived its right to a jury trial; (2) because L & R had not alleged that its waiver had been involuntary, no evidentiary hearing to determine its enforceability was required; and (3) the evidence before the trial court was sufficient to permit the court to evaluate the voluntariness of the waiver provisions under the criteria outlined by the Appellate Court, and was sufficient to support the trial court's conclusions that the waivers were, in fact, voluntary.
The standard by which the trial court determines the validity of a jury trial waiver is a question of law that is subject to de novo review. See Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 694 A.2d 1319 (1997) (de novo review of standard set forth by trial court in jury instruction regarding whether product defectively designed). Once that standard has been established, "[w]hether 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, dismissed and cert. denied, 364 U.S. 506, 81 S.Ct. 281, 5 L. Ed.2d 258 (1960). "We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported." Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980). "A finding is clearly erroneous when although there is evidence to support it, the
The constitution of Connecticut, article first, § 19, provides that "[t]he right of trial by jury shall remain inviolate." That provision "guarantees the right to a jury trial in all cases for which such a right existed at the time of the adoption of that constitutional provision in 1818. Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., 227 Conn. 175, 182, 629 A.2d 1116 (1993); Skinner v. Angliker, 211 Conn. 370, 373-74, 559 A.2d 701 (1989)." Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 153, 645 A.2d 505 (1994); see also State v. Gannon, 75 Conn. 206, 234, 52 A. 727 (1902) (historical overview of right to trial by jury). The seventh amendment to the United States constitution, which is binding upon only the federal courts; Colt v. Eves, 12 Conn. 242, 251 (1837); also provides that "[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved...." We consider federal precedent regarding this language because, like the parallel provision in our state constitution, it has been interpreted to permit waiver of the fundamental right to a jury trial, in advance of litigation, by agreement among the parties. See, e.g., K.M.C. Co. v. Irving Trust Co., 757 F.2d 752, 756 (6th Cir. 1985); Smith-Johnson Motor Corp. v. Hoffman Motors Corp., 411 F. Sup. 670, 675-77 (E.D. Va. 1975).
Although fundamental, the right to a trial by jury is subject to certain limitations. See, e.g., Bishop v. Kelly, 206 Conn. 608, 618, 539 A.2d 108 (1988) (generally no right to jury trial for statutory actions established prior to 1818); Franchi v. Farmholme, Inc., 191 Conn. 201,
Moreover, the right to a jury trial may be waived. "[T]he right to a jury trial is a right which, like other rights, may be waived but ... 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 ." Krupa v. Farmington River Power Co., supra, 147 Conn. 156; see also Gargiulo v. Delsole, 769 F.2d 77 (2d Cir. 1985) (right to jury trial is fundamental and waiver not lightly to be inferred); Leasing Service Corp. v. Crane, 804 F.2d 828, 833 (4th Cir. 1986) (right to jury trial may be waived by "contract executed before litigation is contemplated"); K.M.C. Co. v. Irving Trust Co., supra, 757 F.2d 755-56 (same); Phoenix Leasing, Inc. v. Sure Broadcasting, Inc., 843 F. Sup. 1379, 1384 (D. Nev. 1994), aff'd, 89 F.3d 846 (9th Cir. 1996) (same).
We do not write on a clean slate with respect to the enforceability of prelitigation contractual jury trial waivers. In Nowey v. Kravitz, 133 Conn. 394, 396, 51 A.2d 495 (1947) (per curiam), this court stated that "a binding agreement for such a waiver made in advance of the institution of such action does not violate public
We begin by noting that jury trial waivers entered into in advance of litigation are similar to arbitration agreements in that both involve the relinquishment of the right to have a jury decide the facts of the case. We have explicitly stated that "[a]rbitration affords a contractual remedy with a view toward expediting disputes. Naugatuck v. AFSCME, [190 Conn. 323, 326, 460 A.2d 1285 (1983)]. Arbitration is favored because it is intended to avoid the formalities, delay, expense and vexation of ordinary litigation. Bridgeport v. Bridgeport Police Local 1159, [183 Conn. 102, 107, 438 A.2d 1171 (1981)]." (Internal quotation marks omitted.) Daginella v. Foremost Ins. Co., 197 Conn. 26, 33-34, 495 A.2d 709
The majority of other jurisdictions that have addressed prelitigation contractual jury trial waivers has concluded that such waivers generally are enforceable.
The United States Supreme Court, in considering the contractual waiver of due process rights in a sales agreement, has stated that the standards appropriate to determining the validity of waivers of such rights in criminal cases would not necessarily apply to a contractual waiver in the context of civil litigation, although the court stated that "a waiver of constitutional rights in any context must, at the very least, be clear." (Emphasis in original.) Fuentes v. Shevin, 407 U.S. 67, 95, 92 S.Ct. 1983, 32 L. Ed.2d 556 (1972). When jury trial waiver agreements are entered into in the context of contract negotiations, there is a far greater likelihood that the waiver was agreed to as part of a mutually beneficial contractual arrangement and far less danger of overreaching and duress by the party seeking to enforce the waiver. In accordance with this reasoning, we conclude that it is appropriate to apply a lower standard in determining the enforceability of prelitigation contractual jury trial waivers than for waivers in criminal cases. See Krupa v. Farmington River Power Co., supra, 147 Conn. 156 (waiver of right to jury trial, occurring during rather than in advance of litigation, enforceable where there is "reasonably clear evidence of the intent to waive"). We therefore conclude that jury trial waivers entered into in advance of litigation are enforceable where there is clear evidence of an intent to waive.
We next address the question of what may constitute evidence of the intent to waive the right to a jury trial. Although they may differ as to the standard by which the enforceability of prelitigation contractual jury trial waivers must be judged and as to the allocation of the
We note that evidence regarding the conspicuousness of the waiver clause would likely be apparent on the face of the agreement. Information regarding the remaining factors, however, is more likely to be in the hands of the party seeking to avoid enforcement of the jury trial waiver. It is, therefore, appropriate to place the burden of production as to these factors on the party seeking to avoid enforcement of the waiver.
Significantly, at oral argument on the motion to strike the cases from the jury docket, L & R merely rested on its claim that an evidentiary hearing was required because the CNB bore the burden of proving that the waiver was knowing and voluntary. L & R did not allege that the waivers had been entered into involuntarily, nor did it come forward with evidence of lack of intent to be bound. Although L & R pointed out that Gail LeFoll, who had signed a guarantee containing a waiver,
The judgment is reversed and the case is remanded to the Appellate Court to address the issues remaining on appeal.
In this opinion the other justices concurred.
In addition, the loan guarantee signed by Gail LeFoll, Raymond LeFoll's wife, contained a jury waiver provision that was printed in boldface on the signature page providing as follows: "The undersigned irrevocably waives all right to a trial by jury in any proceeding hereafter instituted by or against the undersigned in respect of this guaranty or any collateral securing this guaranty." The loan guarantee signed by Raymond LeFoll did not contain a jury waiver clause.