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Harrington v. Pulte Home Corp.9/27/2005
irst occurs." Parties who wish to preserve the right must take affirmative action, and failure to act constitutes waiver. Ariz. R. Civ. P. 38(d); Johnson v. Mofford, 193 Ariz. 540, 547, 36, 975 P.2d 130, 137 (App. 1998) ("The right to a jury trial is waived by failing to object to a proceeding without a jury and failing to request a jury."). The right to a jury trial may also be waived by failure to appear and participate in mandatory, court-supervised, arbitration. See Ariz. R. Civ. P. 74(k); Lane v. City of Tempe, 202 Ariz. 306, 307-08, 7-11, 44 P.3d 986, 987-88 (2002).
The United States Supreme Court has explained that, " lmost without exception, the requirement of a knowing and intelligent waiver has been applied only to those rights that the Constitution guarantees," at or before trial, "to a criminal defendant in order to preserve a fair trial." Schneckloth v. Bustamonte, 412 U.S. 218, 237 (1973). "Our cases do not reflect an uncritical demand for a knowing and intelligent waiver in every situation where a person has failed to invoke a constitutional protection." Id. at 235. In Schneckloth, for example, the court held that the requirement of a "knowing and intelligent waiver" does not apply to a determination whether consent to search is voluntary for purposes of the Fourth Amendment. Id. at 241. In the context of procedural due process rights, the Court described its cases as indicating only that "every reasonable presumption should be indulged against . . . waiver" and that waiver would not be presumed. Id. at 235 n.16 (citation omitted).
Thus, we reject appellees' arguments that an arbitration clause can only be effective through knowing and voluntary consent. The arbitration clause here is consistent with appellees' reasonable expectations under Arizona contract law.
e. But what about Broemmer?
Appellees argue, however, that the Arizona Supreme Court's language in Broemmer requires us to strike the arbitration clause. We disagree.
In Broemmer the court used a reasonable-expectations theory to strike an "Agreement to Arbitrate" signed prior to a patient undergoing a clinical abortion. 173 Ariz. at 149, 840 P.2d at 1014. Part of the reason for the Arizona Supreme Court's decision was the fact that "there was no conspicuous or explicit waiver of the fundamental right to a jury or any evidence that such rights were knowingly, voluntarily and intelligently waived." Id. at 152, 840 P.2d at 1017. Appellees focus on this language to argue that Broemmer adopted a rule that any waiver of a civil jury trial must be "knowingly, voluntarily and intelligently" made in order for an arbitration agreement to be upheld. This was not the holding in Broemmer. Broemmer expressly rejected such a rule. It stated:
e decline the invitation to write a sweeping, legislative rule concerning all agreements to arbitrate. Instead, we decide this case.
Id. at 153, 840 P.2d at 1018. Thus, Broemmer did not announce a new rule supplanting Darner and the doctrine of reasonable expectations set forth therein.
Broemmer is also distinguishable on the facts. Broemmer did not invalidate the "Agreement to Arbitrate" in that case solely on the grounds that it did not contain an express waiver of the right to a jury trial. Although the court referred to that factor, Id. at 152, 840 P.2d at 1017, the case involved other significant and complicating factors that are not present here. First, the party seeking to set aside the arbitration clause was a young woman claiming to be the victim of medical malpractice. Id. at 149-50, 840 P.2d at 1014-15. She was seeking an abortion and experiencing great stress at the time the arbitration ag
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