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Pers Travel8/15/2002
t the plaintiff "had little, if any, opportunity to negotiate provisions." Id. From this the court concluded that "such an inequality in relative bargaining positions suggests that the asserted waiver was neither knowing nor intentional." Id.
We do not find Dreiling persuasive, nor did the Tenth Circuit in Telum, Inc. v. E.F. Hutton Credit Corp., 859 F.2d 835 (10th Cir. 1988), cert. denied, 490 U.S. 1021 (1989). The Telum case arose from a dispute between two commercial parties over a lease agreement which contained a jury waiver provision. The court distinguished the rulings in Dreiling and National Equipment Rental v. Hendrix, holding:
[Those] decisions relied on facts such as inconspicuous fine print or a gross disparity in bargaining power to invalidate jury waiver provisions. Telum and Hutton, on the other hand, were both sophisticated parties, and the provision here was in the normal print size of the contract. Telum, 859 F.2d at 837.
Here, as in Telum, the parties are sophisticated commercial entities, and there is nothing in the record that would lead us to find any significant disparity in their relative bargaining power. Pers was free either to negotiate over the inclusion of a jury waiver provision or to find alternative office space.
Nor is the situation here comparable to that in Whirlpool, in which the plaintiff sought to enforce a jury waiver clause contained in a promissory note. Throughout the negotiation of the note, Whirlpool knew that Mr. Sevaux was desperate for a cash infusion in order to sustain his business. The court held that despite Mr. Sevaux's business acumen, Whirlpool "had significantly more bargaining power" during the negotiations, leading it to conclude that the jury waiver clause was not agreed upon knowingly and voluntarily. 866 F. Supp. at 1106. No such inequality of bargaining power is shown on this record. Moreover, Pers has made no claim, nor produced any evidence to suggest, that there was fraud, duress, or mistake. The fact that a party may elect not to read a contract before signing it does not invalidate the contract, and the failure of Pers' representative to read the lease closely did not nullify the jury waiver clause.
Finally, Pers asserts that it had no legal assistance when the lease was agreed upon, whereas Canal Square states that, had this been raised as an issue in the trial court, it could have offered "testimony that the Tenant was represented by an attorney in the negotiation of the lease." Either way, Pers has not established that it lacked sufficient opportunity to review the lease before signing it. See Interdonato, 521 A.2d at 1133.
The judgment is therefore
Affirmed.
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