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WHIRLPOOL FIN. CORP. v. SEVAUX

September 7, 1994

WHIRLPOOL FINANCIAL CORPORATION, a Delaware corporation, Plaintiff/counter-defendant,
v.
JEAN SEVAUX, Defendant/counter-plaintiff.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Plaintiff Whirlpool Financial Corporation ("WFC") brought this complaint against Jean Sevaux ("Sevaux") for his alleged failure to pay on a note. Sevaux has responded with six affirmative defenses and five counterclaims and demanded a jury trial. Presently before this Court is WFC's motion to strike Sevaux's demand for trial by jury. For the reasons set forth below, we deny WFC's motion.

 I. Background *fn1"

 In November 1991, WFC representatives met with Sevaux and Raymond's counsel, Benner Turner, in Venezuela concerning an equity position for WFC in Raymond. At this time WFC orally agreed to purchase a 50% equity interest in Raymond for $ 17 million. Additionally, WFC agreed to advance $ 1 million to Raymond if Sevaux would advance $ 1 million of his own funds to the company.

 In December 1991, WFC representatives and Sevaux discussed the execution of a Term Loan Promissory Note ("Note") by Sevaux in order to secure the $ 1 million to be advanced by WFC. Sevaux alleges that WFC assured him the Note was an interim measure, that he would not be required to make payment on it, and that the proceeds would be converted to a portion of WFC's equity investment in Raymond. He further alleges that these discussions concerned the mechanics of executing the Note, not substantive negotiations on its terms. WFC had a copy of the six-page Note sent to Sevaux. Among its many terms, the Note contained a section for filling in the number of percentage points above prime at which interest would accrue, and a clause stating:

 
. . . BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATED TO THIS NOTE.

 Sevaux alleges that he inserted the applicable interest rate provided by WFC, signed and dated the Note on or about December 20, 1991, and returned it to WFC.

 On July 28, 1992, WFC informed Sevaux that it would not be investing any money into Raymond. Although payment on the Note was originally due July 1, 1992, the parties agreed to extend the time for repayment to November 30, 1992, and later to June 30, 1993. Sevaux failed to repay the Note on the June 30 maturity date.

 On August 5, 1993, WFC filed this action for payment on the Note. On November 4, 1993 Sevaux filed his Answer and Counterclaims against WFC. Sevaux pleaded six affirmative defenses: (1) fraud in the inducement, (2) fraud under 815 ILCS 105/10, (3) estoppel by breach of fiduciary duty, (4) constructive fraud, (5) failure of consideration, and (6) want of consideration under 815 ILCS 105/9. He also pleaded five counterclaims: (1) fraud, (2) breach of contract, (3) promissory estoppel, (4) breach of fiduciary duty and (5) constructive fraud. Essentially, Sevaux alleges that WFC falsely represented an intent to invest $ 17 million in Raymond, and that in reliance on that promise Sevaux signed the $ 1 million Note and invested $ 1 million of his own money into Raymond. WFC is also alleged to have falsely represented that Sevaux would never have to pay on the Note and falsely promised that the $ 17 million investment would extinguish Sevaux's obligation thereunder. Sevaux asserts that because of WFC's scheme he forewent other financial options to his own and Raymond's financial detriment. On December 14, 1993, after WFC filed a motion to dismiss Sevaux's counterclaims and strike affirmative defenses, Sevaux filed an Amended Answer and Counterclaims along with a Demand for Trial by Jury. Although the Amended Answer and Counterclaims contained further factual detail, they essentially tracked the earlier pleadings and WFC moved to dismiss them. *fn2" As of this time, WFC has not filed a reply to Sevaux's counterclaims.

 II. Discussion

 At issue is whether Sevaux timely requested a jury trial in this matter and whether he waived his right to a jury by virtue of the waiver provision in the ...


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