The Wisconsin Supreme Court issued a decision in Parsons v. Associated Banc-Corp., 2017 WI 37, upholding the enforceability of a contractual pre-litigation jury waiver. The court also found that although the motion to strike plaintiff’s jury demand was filed almost three years after the litigation commenced, it was not untimely. The majority decision is written by Justice Ziegler, and Justice Kelly did not participate. As has been the case in recent Supreme Court decisions, there is a spirited dissent, in this case drafted by Justice Ann Walsh Bradley and joined by Justice Abrahamson.

The majority provides little discussion of the facts in the case, labeling them “largely unimportant” to the legal issues to be decided. However, according to the limited facts discussed, the parties were involved in a real estate project wherein the plaintiffs, Taft Parsons, Jr. and Carol Parsons, were planning to develop their own homes and others on their block in the City of Milwaukee into row-houses. In May 2004, Taft Parsons signed a Promissory Note to Associated Bank for a loan to finance the project, which included a jury waiver provision. The project ultimately collapsed and the Parsons filed suit against Associated Bank in May 2011. The Parsons eventually whittled down their claims, focusing on allegations of racketeering and negligent hiring, training and supervision. The complaint and amended complaint both included a demand for a 12-person jury, and the Parsons paid the jury fee to the circuit court in January 2013. Over a year later, Associated Bank filed a motion to strike the jury demand, citing the jury-waiver provision in the Promissory Note. The Parsons countered that the motion to strike was untimely, that Associated had waived its right to object to the jury demand. They also argued that Carol Parsons had not signed the jury waiver and therefore, did not waive her right to a jury and that the provision should not be enforced because Taft Parsons had no ability to negotiate the term out of Associated Bank’s standard promissory note agreement.

The circuit court granted the bank’s motion to strike. It held the jury waiver was enforceable for two principal reasons: first, the clause was adequately conspicuous (in bold, capital letters set off from the rest of the agreement) and, second, Taft Parsons was an “intelligent business man who undoubtedly has experience reviewing paperwork and entering into contracts.” Id., ¶ 11. The court rejected the Parsons’ untimeliness argument on the grounds that they provided no legal authority in support and found the language of the waiver sufficiently broad to encompass Carol Parsons, even though she had not signed the contract.

The court of appeals granted the Parsons’ petition for review of a non-final order and ultimately reversed the circuit court decision. The court of appeals agreed that a party may waive his or her right to a jury trial. However, it explained that Associated Bank bore the burden of proving Parsons “understood the scope of and the specific nature of the rights given up by the waiver.” Id., ¶ 14. Based on an affidavit filed by Taft Parsons, the court of appeals determined the waiver was not knowingly and voluntarily made. Although unnecessary to its disposition of the case, the court of appeals also determined the waiver was invalid as procedurally and substantively unconscionable, because it believed that issue might arise on remand. Finally, the court of appeals determined the circuit court had erred in allowing the motion to strike on the grounds that the motion was untimely, the right to object had been waived under Wis. Stat. § 805.01(3), and Associated Bank was equitably estopped from raising the issue.

The Wisconsin Supreme Court accepted Associated Bank’s petition for review, and reversed the court of appeals decision. The court explained that a party’s right to waive a civil jury trial is “settled law,” which can be based on statutory authority or, as here, on common law by contract. Id., ¶ 21. Applying the general tenets of contract law, the court found the jury waiver unambiguous and concluded that there was no need for additional evidence that the waiver was made knowingly and voluntarily. The court found the court of appeals’ determination on unconscionability was erroneous given the limited record before it. Finally, the court rejected the Parsons’ arguments with respect to the timeliness of the motion to strike on the grounds that there was no statutory directive on the issue and that any reliance on a jury demand by the Parsons was unreasonable because Taft had signed the jury waiver.

Focusing on the constitutional nature of the right, the dissent argued that any waiver of a jury trial must be entered into knowingly and voluntarily. It spent a great deal of time discussing the facts of the case, including many—such as the criminal conviction of one bank employee—that occurred well after the jury-waiver provision was signed. The dissent relied on these facts to find that Parsons’ waiver was not knowingly and voluntarily made. Finally, the dissent argued that the motion to strike should be barred by equitable estoppel.

The majority’s opinion is in line with the well-established Wisconsin case law allowing parties freedom of contract, which some may have questioned after the court of appeals’ decision in this case. Ultimately, the golden rule of contract law remains eternal—make sure you read (and understand) everything you sign! The case also serves as yet another example of one court with members following two glaringly different approaches to the law.

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