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ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-15-1068
KENNETH W. TILLEY, Opinion Delivered: March 1, 2017
INDIVIDUALLY AND AS TRUSTEE
OF THE KENNETH TILLEY FAMILY APPEAL FROM THE GARLAND
TRUST COUNTY CIRCUIT COURT
APPELLANT [NO. 26CV-11-1194]
V. HONORABLE JOHN HOMER
WRIGHT, JUDGE
MALVERN NATIONAL BANK AND
STEPHEN MOORE
APPELLEES AFFIRMED
KENNETH S. HIXSON, Judge
This appeal arises out of litigation that began as a foreclosure proceeding. Appellant
Kenneth W. Tilley, individually and as trustee of the Kenneth Tilley Family Trust (Tilley),
was a borrower on a loan from appellee Malvern National Bank (MNB). Appellee Stephen
Moore (Moore) was vice president of commercial lending at MNB during most of the time
relevant to the case. MNB filed a foreclosure action against Tilley, and he responded by
denying the allegations and filing a counterclaim against MNB and a third-party complaint
against Moore. Tilley demanded a jury trial, but the circuit court ultimately struck his
demand. After a bench trial, the circuit court ruled in favor of MNB and Moore on all
claims. Tilley appeals and asks our court to hold that (1) the circuit court erred by striking
his demand for jury trial and (2) the circuit court abused its discretion by refusing to admit
evidence of his future lost profits. We affirm.
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I. Background
In July 2010, Tilley and MNB entered into a loan agreement. The loan agreement
included a jury-waiver clause in the event of a dispute between the parties. Tilley executed
a promissory note in favor of MNB with a principal balance of $221,000. The note was
secured through a mortgage on certain real property in Garland County, Arkansas. Tilley
defaulted on the loan. MNB accelerated the note and filed its complaint in foreclosure
against Tilley in November 2011. Tilley answered the complaint, asserted affirmative
defenses, reserved the right to file one or more counterclaims, and demanded a jury trial.
In October 2012, Tilley filed a counterclaim against MNB and a third-party
complaint against Moore. The essence of Tilley’s counterclaim and third-party complaint
is that Moore, acting on behalf of MNB, promised to loan him $350,000 so that he could
fund two development projects. The $350,000 loan was never made to Tilley. For reasons
unrelated to this litigation, Moore resigned from his position at MNB. Following Moore’s
resignation, Tilley entered into further negotiations with other representatives from MNB,
resulting in Tilley and MNB entering into the $221,000 loan agreement instead of the
$350,000 loan Tilley had originally requested and MNB had allegedly agreed on. Tilley
alleged that MNB’s failure to fulfill the promise to loan him $350,000 caused him to default
on the $221,000 loan. Tilley sued for breach of contract, promissory estoppel, violations of
the Arkansas Deceptive Trade Practices Act, tortious interference, negligence, and fraud and
demanded a jury trial.
The circuit court set the case for a jury trial. Shortly thereafter, MNB and Moore
filed a motion to strike Tilley’s jury-trial demand. Generally, they argued that Tilley was
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not entitled to a jury trial because (1) a foreclosure claim and all claims essential to the
foreclosure proceeding should be tried to the court rather than a jury and (2) Tilley had
waived his right to a jury trial in the loan agreement with MNB. 1 Tilley responded by
arguing that he was entitled to a jury trial because his claims were claims at law and because
his waiver of his right to a jury trial in the loan agreement was not knowing and voluntary.
The circuit court struck Tilley’s jury demand, and the parties proceeded to a bench trial.
Following the bench trial, the circuit court ruled in favor of MNB on its foreclosure
claim and against Tilley on his counterclaim and third-party complaint. The circuit court
entered its findings of fact and conclusions of law and then entered a judgment and decree
of foreclosure. Following the entry of these orders, Tilley filed a motion for new trial that
was deemed denied. Tilley timely appealed arguing that (1) the circuit court erred by
striking his jury-trial demand and (2) the circuit court abused its discretion by refusing to
allow him to introduce evidence of his future lost profits.
II. Entitlement to a Jury Trial 2
Whether a party is entitled to a jury trial is a legal issue centered on constitutional
interpretation, reviewable de novo on appeal. Ludwig v. Bella Casa, LLC, 2010 Ark. 435,
1
MNB and Moore attached a copy of the loan agreement that included the jury-
waiver clause to their motion to strike.
2
As a threshold issue, MNB and Moore contend that Tilley failed to preserve the
issues relating to his right to a jury trial. They argue that Tilley was required to appeal from
the order striking his jury demand pursuant to Arkansas Rule of Appellate Procedure–Civil
2(a)(4). We disagree. Our supreme court in Liberty Life Ins. Co. v. McQueen addressed this
precise issue and held that a party may not bring an interlocutory appeal from the denial of
a jury demand. 364 Ark. 367, 219 S.W.3d 172 (2005).
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372 S.W.3d 792. This court is not bound by the decision of the circuit court. First Nat’l
Bank of DeWitt v. Cruthis, 360 Ark. 528, 203 S.W.3d 88 (2005).
In support of his contention that he was entitled to have his counterclaim and third-
party complaint decided by a jury, Tilley asserts that (1) he had a constitutional right to a
jury trial on his claims; (2) the jury-waiver clause in his loan agreement with MNB was
unenforceable as a matter of law; (3) MNB and Moore waived their right to enforce the
jury-waiver provision; (4) his waiver was unenforceable because it was not knowingly and
voluntarily made; and (5) the jury-waiver clause does not apply to his third-party claims
against Moore.
A. The Constitutional Right to a Jury Trial
Tilley contends that he had a constitutional right to a jury trial on his claims, and this
issue involves a question of whether the circuit court erred in trying his claims as a bench
trial. It implicates amendment 80 to the Arkansas Constitution. Amendment 80 only
merged the chancery and circuit courts and did not alter or expand a party’s right to a jury
trial. First Nat’l Bank of DeWitts, 360 Ark. 528, 203 S.W.3d 88. With this merger, circuit
courts simply added to their existing jurisdiction as a court of law the equitable jurisdiction
which the chancery courts held prior to adoption of the amendment. Id. at 533, 203 S.W.3d
at 91–92.
It is a long-standing rule that the right to a jury trial does not extend to foreclosure
proceedings. Riggin v. Dierdorff, 302 Ark. 517, 519, 790 S.W.2d 897, 898 (1990).
Accordingly, it is clear that the circuit court was required to decide MNB’s foreclosure claim
without a jury. MNB and Moore argue that Tilley’s claims must also be tried by a court of
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equity pursuant to the clean-up doctrine. We disagree. “Since Amendment 80 was enacted,
the clean-up doctrine has disappeared because any circuit court now has subject-matter
jurisdiction to hear all justiciable matters not assigned elsewhere, and it has the power to
grant all remedies to the parties before it.” Stokes v. Stokes, 2016 Ark. 182, 41 S.W.3d 113.
With this in mind, we turn our attention to the standard by which Tilley’s
counterclaim and third-party complaint must be evaluated. In determining whether a
particular claim may properly be submitted to a jury, courts must review the historical nature
of the claims to determine whether they must be submitted to a judge as equitable matters
or whether they may be submitted to a jury as legal matters. Nat’l Bank of Ark. v. River
Crossing Partners, LLC, 2011 Ark. 475, 385 S.W.3d 754. Courts should also look to the
remedies sought in the complaint when determining whether a trial by jury is warranted.
Stokes, supra.
Tilley’s counterclaim and third-party complaint included causes of action for breach
of contract, promissory estoppel, violations of the ADTPA, tortious interference,
negligence, and fraud; he sought money damages on each of his claims. In reviewing the
historical nature of these claims and the remedy sought, we conclude that Tilley’s claims are
legal in nature. We hold that the circuit court erred in finding that Tilley did not have a
constitutional right to a jury trial on his historically legal claims. With this determination
reached, we direct our attention to whether the circuit court erred in striking Tilley’s jury
demand pursuant to the jury-waiver clause in the loan agreement.
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B. The Jury-Waiver Clause
MNB and Moore successfully argued to the circuit court that the jury-waiver clause
in the loan agreement precluded a trial by jury. For reference, the jury-waiver clause
provides:
Each party to this Agreement hereby expressly waives any right to trial by jury
of any claim, demand, action or cause of action (1) arising under this
Agreement or any other instrument, document or agreement executed or
delivered in connection herewith, or (2) in any way connected with or
incidental to the dealings of the parties hereto or any of them with respect to
this Agreement or any other instrument, document or agreement executed or
delivered in connection herewith, or the transactions related hereto or
thereto, in each case . . . whether sounding in contract or tort or otherwise,
and each party hereby agrees and consents that any such claim, demand, action
or cause of action shall be decided by court trial without a jury.
First, we dispose of two of Tilley’s arguments in support of reversal that are not
preserved for our review. Tilley argues that MNB and Moore waived their right to enforce
the jury-waiver provision in the loan agreement by filing their motion too late in the
proceedings. Tilley makes this argument for the first time on appeal, and it is well settled
that appellate courts will not consider arguments made for the first time on appeal. Brown
v. Lee, 2012 Ark. 417, 424 S.W.3d 817. We summarily dispose of this point on appeal.
Additionally, Tilley claims that, if held enforceable, the jury-waiver clause bars his
right to a jury trial only against MNB—not Moore. Tilley failed to develop this argument
before the circuit court, and where an argument is not fully developed at the trial level or
on appeal, it is not preserved for review. Omni Holding & Dev. Corp. v. 3D.S.A., Inc., 356
Ark. 440, 156 S.W.3d 228 (2004). Accordingly, we affirm on this point as well.
With these conclusions reached, we turn to whether predispute contractual waivers
of the right to a jury trial are unenforceable under Arkansas law. Tilley argues our
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constitution provides that “[t]he right of trial by jury shall remain inviolate, and shall extend
to all cases at law . . .” See Ark. Const. art. 2, § 7. However, that same section concludes
with the proviso: “[B]ut a jury trial may be waived by the parties in all cases in the manner prescribed
by law.” Id. (emphasis added). Hence, while our constitution clearly emphasizes the
fundamental right to a jury, it also contemplates that the right may be waived.
In Arkansas, “[p]arties to a contract are free to contract upon any terms not contrary
to public policy or the terms of our statutes.” Pest Mgmt., Inc. v. Langer, 369 Ark. 52, 58,
250 S.W.3d 550, 556 (2007). Arkansas allows parties to enter into contracts that control
the manner in which their disputes are resolved. Parties may choose the forum in which
their case will be heard and the law that will govern their case, and they may even choose
to forego the civil justice system and submit to arbitration. See, e.g., Servewell Plumbing, Inc.
v. Summit Contractors, Inc., 362 Ark. 598, 210 S.W.3d 101 (2005); Evans v. Harry Robinson
Pontiac-Buick, Inc., 336 Ark. 155, 983 S.W.2d 946 (1999); Pest Mgmt., Inc., supra. Because
parties are free to enter into contracts that are not contrary to our state’s public policy, and
our constitution itself provides that parties may waive their right to a jury trial, we hold that
predispute contractual waivers of the right to a jury trial—such as the one executed by
Tilley—may be enforceable. They are particularly enforceable when the waiver is entered
into knowingly and voluntarily.
To that end, Tilley argues that the circuit court erred in striking his jury-trial demand
because he did not knowingly and voluntarily waive his right to a jury trial. When
considering whether this jury-waiver clause is valid, we refer to the general rules of
construction and interpretation of contracts. We acknowledge this as our standard and note
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that this is the manner by which other somewhat novel contractual issues—for instance,
arbitration—have been evaluated by our courts. See Alltel Corp. v. Sumner, 360 Ark. 573,
203 S.W.3d 77 (2005).
As a preliminary matter, it is a matter of basic contract law that contracts must
be entered into knowingly and voluntarily. The essential elements of a contract are
(1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, and
(5) mutual obligation. City of Dardanelle v. City of Russellville, 372 Ark. 486, 277 S.W.3d
562 (2008).
Our law provides that if a person signs a document, he or she is bound to know the
contents of that document. Banks v. Evans, 347 Ark. 383, 64 S.W.3d 746 (2002). The fact
that a person signed a contract is evidence of his or her knowledge of the contract.
Carmichael v. Nationwide Life Ins. Co., 305 Ark. 549, 552, 810 S.W.2d 39, 41 (1991).
Here, MNB and Moore attached a copy of the signed loan agreement, which
contained the jury-waiver clause, to their motion to strike. Pursuant to Arkansas law, Tilley
was bound to know the contents of the agreement. Similarly, our law presumes that this
contract was entered into voluntarily; generally, the party attacking voluntariness must allege
and prove otherwise. Bank of the Ozarks, Inc. v. Walker, 2014 Ark. 223, 434 S.W.3d 357.
Tilley attempts in his affidavit challenging the motion to strike to show that he signed this
contract under duress. However, he offered only the conclusory statement that he was
under duress, and this is insufficient evidence of any alleged involuntariness. Robson v.
Tinnin, 322 Ark. 605, 411 S.W.2d 246 (1995). Accordingly, we conclude that the jury-
waiver clause in the loan agreement was enforceable, and we hold that the circuit court
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properly granted the motion to strike Tilley’s jury-trial demand on these grounds. Because
of our holding on this issue, MNB and Moore were entitled to have the entire case heard
as a bench trial, regardless of whether Tilley’s claims were legal or equitable in nature.
III. Evidence of Lost Future Profits
For his final point on appeal, Tilley argues that the circuit court abused its discretion
by applying the new-business rule and refusing to allow him to introduce evidence of future
lost profits. However, Tilley concedes in his reply brief that his argument is moot unless
we reverse the circuit court’s order striking his jury demand. Because we affirm the circuit
court’s decision in this respect, we do not address his final point on appeal.
Affirmed.
HARRISON and BROWN, JJ., agree.
Eichenbaum Liles, P.A., by: James H. Penick III, for appellant.
Wright, Lindsey & Jennings LLP, by: Charles T. Coleman, Adrienne L. Baker, and Kristen
S. Moyers, for appellees.
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