Contractual Waiver of Right to Trial By Jury


Ex parte Warren Averett Companies, LLC, [Ms. 1210010, June 17, 2022] __ So. 3d __ (Ala. 2022). The Court (Bolin, J.; Wise, Sellers, Mendheim, and Stewart, JJ., concur; Mitchell, J., concurs specially; Shaw and Bryan, JJ., concur in the result; Parker, C.J., dissents) issues a writ of mandamus to the Jefferson Circuit Court directing it to vacate its order denying Warren Averett Companies, LLC’s (“Warren Averett”) motion to strike jury demand.

The Court applies the Gaylord Department Stores of Alabama, Inc. v. Stephens, 404 So. 2d 586, 588 (Ala. 1981) factors to determine “whether to enforce a contractual waiver of the right to trial by jury: (1) whether the waiver is buried deep in a long contract; (2) whether the bargaining power of the parties is equal; and (3) whether the waiver was intelligently and knowingly made.” Ms. *9.

The subject Professional Services Agreement (“PSA”) also contained an arbitration provision which Warren Averett was held to have breached, thereby waiving arbitration. The Court rejects Respondent Fagan’s argument that Warren Averett’s breach of the arbitration provision also precluded enforcement of the jury waiver provision:

[T]he parties’ expressed intent, not only in the language of the jury-waiver provision, but also in having two separate provisions addressing arbitration and jury waiver, is contrary to Fagan’s argument that Warren Averett’s breach of the arbitration and the costs-and-fees provisions prevented its ability to enforce the jury-waiver provision. Also, like in Sloan Southern [Homes, LLC v. McQueen, 955 So. 2d 401, 402 (Ala. 2006)], in which this Court determined that “the AAA option” was “the functional equivalent of a severability clause,” 955 So. 2d at 404 (emphasis omitted), in this case the jury-waiver provision is the functional equivalent to a severability clause with respect to the dispute-resolution provisions of § 19 of the PSA.

Ms. *15.

The Court also rejects Fagan’s argument that Warren Averett’s two-year delay in asserting the jury waiver provision was unjustified and explains “[t]he trial court granted Warren Averett’s motion to compel arbitration, and Fagan sought review of that decision. We reversed that decision; on remand, the trial court set a scheduling conference, and Warren Averett filed its motion to strike Fagan’s jury demand. Although there was a delay between the time that Fagan demanded a jury and the time that Warren Averett sought to strike that demand, Fagan has not shown that she was prejudiced by that passage of time.” Ms. *23.

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