I must respectfully dissent from the decision reached by the majority in this case. I agree with the majority that the trial court had no obligation to grant a request for jury trial under the circumstances presented in this matter and did not abuse its discretion by addressing appellees' first claim relating to a modification of the note in question and the bank's ability to foreclose on the property securing the note. However, I disagree with the proposition that the trial court erred by stating in its nunc pro tunc entry that the bank was estopped from bringing an action to foreclose under the terms of the promissory note.
Appellees' first claim sought declaratory judgment that the revised "agreement" between the parties modified the original promissory note, thus precluding the bank from foreclosing on the property. The trial court rendered judgment in favor of the bank and against appellees on this claim, and found that the bank was not forever precluded from filing a foreclosure action. The trial court further ordered that the bank could not proceed with the foreclosure action in the manner in which it was attempting to do so by virtue of the parties' prior dealings and the lack of sufficient notice. I concur with the trial court's findings as factual *Page 213 circumstances surrounding the issue at bar support such decision. Therefore, I would affirm the conclusion reached by the trial court.