KENNETH W. TILLEY, INDIVIDUALLY AND AS TRUSTEE OF THE KENNETH TILLEY FAMILY TRUST APPELLANT
MALVERN NATIONAL BANK AND STEPHEN MOORE APPELLEES
FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CV-11-1194]
HONORABLE JOHN HOMER WRIGHT, JUDGE
Eichenbaum Liles, P.A., by: James H. Penick III, for
Wright, Lindsey & Jennings LLP, by: Charles T. Coleman,
Adrienne L. Baker, and Kristen S. Moyers, for appellees.
KENNETH S. HIXSON, Judge.
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.
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
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
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 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. 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.
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.
Entitlement to a Jury Trial
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,
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).
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 ...