![]() 'Waivers of Jury Trial' 'Waivers of Jury Trial' By Gary S. Kessler, Kessler & Collins, P.C., Friend of IREM Gary Kessler It is becoming common in commercial leases for the Tenant and Landlord to agree to waive their right to a jury trial in connection with any dispute that may arise between them. This is accomplished, in some cases, by agreeing to binding arbitration. In other cases, the parties expressly waive their right to a jury trial, agreeing instead to hear all disputes before a trial judge. The cost of arbitration can run into the thousands of dollars when you include the cost of administering the proceeding typically charged by the American Arbitration Association and the charge of up to three arbitrators at $600/hour each. While arbitration has its benefits, such as quicker access to a final hearing and less discovery, in many cases the costs outweigh the benefits and a simple jury trial waiver is the most efficient. Many attorneys did not believe such agreements to be enforceable. ![]() Since the California Constitution provides that a waiver of jury trial could only occur in a method permitted by statute, the Supreme Court examined the California statutes and found only six ways that a party could forfeit his right to a trial by jury. None of those six was by a contractual waiver. Jury waiver agreements are contractual agreements in which the parties agree that if a dispute arises and suit is filed, the parties waive their right to a trial by jury. The case is still filed in court, but if the matter proceeds to trial, the trial judge hears the testimony and decides the case. However, a few years ago the Texas Supreme Court concluded that not only are they enforceable but a party can be deemed to have waived a jury trial without ever agreeing in writing to do so. In an original mandamus action, the Court in In Re The Prudential Insurance Co. Call of duty world at war zombies pc crack apps. Of America and Four Partners, LLC d/b/a Prizm Partners, Realtors, the Texas Supreme Court considered a retail lease that contained the following jury-trial waiver: 'In the event that Landlord commences any summary proceeding or action for nonpayment of rent or other charges provided for in this Lease, Tenant shall not interpose any counterclaim of any nature or description in any such proceeding or action. Tenant and Landlord both waive a trial by jury of any and all issues arising in any action or proceedings between the parties hereto or their successors, under or connected with this Lease, or any of its provisions.' ![]() The lease was personally guaranteed by the owners of the tenant, a limited partnership that operated a restaurant in a shopping center. The guaranty did not contain a waiver of the right to a jury trial; however, it guaranteed the tenant's 'full and timely performance and observance of all the covenants, terms, conditions, provisions and agreements' in the lease. Less than a year after occupying the premises, the tenant and the guarantors sued the landlord apparently for breach of the implied warranty of suitability based on the persistent 'odor of sewage' entering the restaurant. Prudential counterclaimed for amounts due under the lease and guaranty. The tenant and guarantors requested a trial by jury. The tenant argued that the waiver of jury trial in the lease was against public policy and was not effective in an action to rescind the lease. Lease Waiver Of Jury Trial Form CaliforniaThe guarantors also argued that the guaranty they signed was a separate agreement and did not contain a waiver and therefor the cause of action against them should go to a jury. As you can imagine, the tenants believed that they would have a better chance of getting out of the lease from a jury than a single judge. The Texas Supreme Court showed no mercy to the tenants. It ruled that not only was the waiver effective as to the lease action against the tenant it was also effective as to claims against the guarantors even though the guaranty was silent on the issue of waiver. The majority of the Court first addressed the arguments based on public policy. The court reasoned that personal rights are routinely waived. It was also persuaded by the fact that of the six (6) state Supreme Courts to address this issue, courts in Alabama, Connecticut, Missouri, Nevada and Rhode Island found such waivers to be enforceable, and only Georgia had reached a contrary conclusion.
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