Opinion
No. CV04 0085853S
January 12, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE JURY CLAIM
This case arose as a collection matter with the plaintiff bringing an action against the individual defendant Joanne Watkins and Take Two Productions, LLC of which she was a member prior to its dissolution. The issue before the court is whether the defendant, Joanne Watkins, is entitled to elect a jury trial. The contract at issue between Leasecomm Corporation, as lessor, and Take Two Productions, LLC, as lessee, contains a clause underlined and in bold stating that:
The Parties hereby agree that this Agreement is made in, governed by, to be performed in, and shall be construed in accordance with the laws of the Commonwealth of Massachusetts. They further consent and submit to the jurisdiction of the Courts of the Commonwealth of Massachusetts and expressly agree to such forum for the bringing of any suit, action or other proceeding arising out of their obligations hereunder, and expressly waive any objection to venue in any such Courts and waive any right to a trial by jury so that trial shall be by and only to the Court. It is further agreed and understood that the corporate headquarters of Leasecomm Corporation is located within the venue of The District Court Department of the Trial Court, within Middlesex County.
It is undisputed that Joanne Watkins signed the lease as the duly authorized president of the LLC.
At issue, is the significance of Joanne Watkins having made an individual personal guaranty. The plaintiff argues that Joanne Watkins, by signing the personal guaranty, assented to all of the terms and conditions of the lease as are the parties to the lease. The defendant argues convincingly that the underlined, bold language referred to above has essentially four elements. The personal guaranty clause, just above the signature of the personal guarantor, incorporates specifically two of those four elements: "The undersigned specifically understands and also agrees with the bold, underlined provision stated above submitting and consenting to the laws and jurisdiction of the Commonwealth of Massachusetts for any action whatsoever arising out of this Lease."
If the plaintiff which drafted this document, wanted all four of those elements incorporated into the personal guaranty, it certainly could have inserted them all rather than just having inserted the two dealing with jurisdiction and choice of laws. The plaintiff's failure to include the jury waiver language in the personal guaranty section evidences an intention on the part of the plaintiff that it did not intend to so bind the personal guarantor.
The defendant, Joanne Watkins, testified that she is an inexperienced business person who did not consult an attorney to set up her LLC or to review the terms of this document. Moreover, either she did not read or did not appreciate the significance of the jury waiver language and thus lacked a clear intent to be bound by that language. In Connecticut, we are guided by LR Realty v. Connecticut National Bank, 246 Conn. 1, 16 (1998), wherein the court reiterated that while commercial jury trial waivers are presumptively enforceable, the party seeking to avoid the waiver may come forward and demonstrate that it did not intend to waive the right to a jury trial by a preponderance of the evidence. Among the other points which the L R Realty case considered were whether the party seeking to avoid enforcement can show an inequity of bargaining power, that he or she was not represented by counsel, that the language was not conspicuous or was not in a place close to the signature and whether the party had an opportunity to negotiate the terms of the agreement. This reasoning was followed in Fleet National Bank v. Fiore Neylan Travel, CV03-0828385 (August 5, 2004) wherein the court, Sheldon, J., upheld the jury waiver but only because there was a jury waiver both in the section pertaining to the contract itself and in the personal guaranty section. In the instant case, the section for the personal guaranty had no such jury waiver and, in fact, it was conspicuously absent.
The court, in Chase Commercial Corporation v. Owen, CT Page 830 32 Mass.App.Ct. 248 (1992), held that a jury waiver claim would be upheld but only because the defendants were "sophisticated businessmen familiar with the terms of the instruments they signed." Id. at page 249. Moreover, the personal guaranty clause in the Chase Commercial Corp., case contained a universal incorporation of all of the terms of the lease, unlike the case at bar.
For the foregoing reasons, the Motion to Strike the Jury Claim is denied.
The Court
By Shluge, J.