Bank South, N.A. v. Howard , 264 Ga. 339 ( 1994 )

Benham, Presiding Justice.

Bank South sued Howard on a guaranty which contained a provision in which Howard purported to waive the right to a jury trial in any action on the guaranty. Based on that provision, the trial court struck Howard’s demand for jury trial. The Court of Appeals reversed the trial court’s judgment, holding that a valid waiver of jury trial must be knowing and voluntary, and that since Howard could not have known when he signed the guaranty contract what the basis and circumstances of a future claim on the guaranty might be, his waiver could not have been knowing and voluntary. Howard v. Bank South, N.A., 209 Ga. App. 407 (4) (433 SE2d 625) (1993). We granted certiorari to consider whether a pre-litigation contractual waiver of jury trial is enforceable under the laws of Georgia.

Civil litigants in this state’s courts are guaranteed the right to a jury trial by the Constitution of Georgia¹ and the Civil Practice Act.² Waiver of that right is a matter which is “carefully controlled” by statute. Manderson &c. v. Gore, 193 Ga. App. 723 (5) (389 SE2d 251) (1989). The constitutional guarantee of the right to trial by jury refers to two circumstances in which the right may be waived: when no issuable defense is filed and when the parties fail to demand a jury trial. OCGA § 9-11-39 (a) provides for waiver by express stipulation, either written and filed in the record or made orally in open court. By their terms, both the statute and the Constitution plainly contemplate the pendency of litigation at the time of the waiver. We conclude, therefore, that pre-litigation contractual waivers of jury trial are not provided for by our Constitution or Code and are not to be enforced in cases tried under the laws of Georgia.

Our conclusion is bolstered by the similarity between waiver of jury trial and confession of judgment. Like a waiver of jury trial, a confession of judgment entails giving up valuable rights.³ Both are provided for by statutes which, by their terms, contemplate the pendency of litigation.⁴ As to both acts, the Court of Appeals has held that foreign judgments based on pre-litigation contractual provisions are not contrary to the policy or laws of this state. Melnick v. Bank of Highwood, 151 Ga. App. 261 (1) (259 SE2d 667) (1979), for confessions of judgment; Manderson &c., supra, for jury trial waivers. Waiver of jury trial and confession of judgment differ, however, in that this court has been silent with regard to pre-litigation waivers of jury trial, but has made clear that the only type of confession of judgment recognized in litigation in this state is that which arises after the commencement of litigation. Information Buying Co. v. Miller, 173 Ga. 786 (1) (161 SE 617) (1931).

Given the similarity of waivers of jury trial and confessions of judgment, and considering the magnitude of the rights involved and the probability of abuse that exists in both situations, waivers of jury trial are sufficiently analogous to confessions of judgment that the same rule should apply.⁵ Accordingly, we hold, as stated above, that pre-litigation contractual waivers of the right to trial by jury are not enforceable in cases tried under the laws of Georgia.

Judgment affirmed.

All the Justices concur, except Fletcher and Sears-Collins, JJ, who dissent. Hunt, C. J., disqualified.

1 Ga. Const. 1983, Art. I, Sec. I, Par. XI.

Right to trial by jury; number of jurors; selection and compensation of jurors.

(a) The right to trial by jury shall remain inviolate, except that the court shall render judgment without the verdict of a jury in all civil cases where no issuable defense is filed and where a jury is not demanded in writing by either party.

2 OCGA § 9-11-38. Right to jury trial.

The right of trial by jury as declared by the Constitution of the state or as given by a statute of the state shall be preserved to the parties inviolate.

3 The expression “confession of judgment,” as contained in the

code section, has reference to the act of the defendant whereby he admits or confesses the right of the plaintiff to take a judgment against him ....

Thomas v. Bloodworth, 44 Ga. App. 44, 46 (160 SE 709) (1931).

4 As to waiver of jury trial, see footnotes 1 and 2, supra; as to confession of judgment, see OCGA § 9-12-18 (b):

No confession of judgment shall be entered except in the county where the defendant resided at the commencement of the action unless expressly provided for by law. The action must have been regularly filed and docketed as in other cases. . . .

5 In sharp contrast to both waiver of jury trial and confession of judgment is the legislative approach to the issue of arbitration.

In 1988, the General Assembly extensively revised the

statutory provisions governing arbitration, repealing the existing common-law arbitration and construction contract arbitration statutes and enacting the “Georgia Arbitration Code,” OCGA § 9-9-1 et seq. The stated intention of the General Assembly in revising the Arbitration Code was to extend the enforcement of arbitration in Georgia from construction contracts to all contracts in which the parties have agreed to arbitration in writing.

Weyant v. MacIntyre, 211 Ga. App. 281 (1) (438 SE2d 640) (1993).

The legislature has not similarly extended the provisions for either waivers of jury trial or confessions of judgment.