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Harrington v. Pulte Home Corp.9/27/2005
d, "to predicate the legality of a consensual arbitration agreement upon the parties' express waiver of jury trial would be as artificial as it would be disastrous." Id.; accord Snowden v. CheckPoint Check Cashing, 290 F.3d 631, 637 (4th Cir. 2002) ("Common sense dictates that we reject this argument. ' he loss of the right to a jury trial is a necessary and fairly obvious consequence of an agreement to arbitrate.'") (quoting Sydnor v. Conseco Fin. Servicing Corp., 252 F.3d 302, 307 (4th Cir. 2001)); Pierson v. Dean, Witter, Reynolds, Inc., 742 F.2d 334, 339 (7th Cir. 1984) ("[Parties] cannot use their failure to inquire about the ramifications of [the arbitration] clause to avoid the consequences of agreed-to arbitration."). Thus, we interpret the arbitration clause as an effective statement that the right to jury trial will not be afforded.
Returning to the claim that appellees were unaware of the clause, we note that fact questions on a reasonable-expectations theory may be raised "if the adhering party never had an opportunity to read the term, or if it is illegible or otherwise hidden from view." Darner, 140 Ariz. at 392, 682 P.2d at 397 (quoting Restatement § 211 cmt. f); see Rocz v. Drexel Burnham Lambert, Inc., 154 Ariz. 462, 466, 743 P.2d 971, 975 (App. 1987) (noting customer was bound by clearly worded arbitration clause whether or not she read it). Here, however, the record shows that the arbitration clause began with a bold "ARBITRATION." The font size for the text was neither abnormally small nor different from the other contract provisions. The page containing the arbitration provision was initialed by appellees. The page contained a total of only eight paragraphs on one of the contracts; as to the other contract the pertinent page only contained seven paragraphs. Thus, the arbitration clause in these cases was not obscure.
Accordingly, we conclude that the lack of a conspicuous and explicit waiver of the right to jury trial does not mean the arbitration clause was beyond appellees' reasonable expectations. The test from Darner must be applied. The arbitration clause in the contracts here passes that test.
d. Must a Jury Trial be "Knowingly" Waived in a Civil Setting?
Appellees' second argument is that the waiver of jury trial rights in this setting must be made knowingly, intelligently, and voluntarily. It is well established in federal jurisprudence that a test of waiver applied to other constitutional rights, i.e., that waiver be shown to be an intentional relinquishment or abandonment of a known right or privilege, is not applied to the right to a jury trial in a civil action. See, for examination of federal authorities, 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2321 (2d ed. 1995), citing, inter alia, U.S. v. Moore, 340 U.S. 616, 621 (1951) (failure to demand jury trial in accordance with requirements of civil rule is waiver). As the authors of the treatise explain, " aiver by failure to make a timely demand is complete even though it was inadvertent and unintended and regardless of explanation or excuse." 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2321 (2d ed. 1995).
Arizona law is in accord. Obtaining a jury trial in civil litigation is not automatic. As in federal courts, waivers are routinely imposed for failure of a party to comply with the procedure required to request a jury trial. Pursuant to Arizona Rule of Civil Procedure 38(b), a jury trial must be demanded "in writing at any time after the commencement of the action, but not later than the date of setting the case for trial or ten days after a motion to set the case for trial is served, whichever f
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