396 A.2d 1013 (Me. 1979), Cyr v. Cote

Citation396 A.2d 1013
Opinion JudgeDELAHANTY,
Party NameEvelyn CYR, Edmond H. Parent, Lillian Ayotte, and Lorraine Gilmore v. Richard G. COTE, Aurore Cote, and Mary A. Bowie.
AttorneyRocheleau & Fournier by Ronald P. Lebel, Lewiston (orally), for plaintiffs. Isaacson & Isaacson by Philip M. Isaacson, Lewiston (orally), for defendants.
Judge PanelBefore McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY, GODFREY and NICHOLS, JJ.
Case DateJanuary 26, 1979
CourtSupreme Judicial Court of Maine

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396 A.2d 1013 (Me. 1979)

Evelyn CYR, Edmond H. Parent, Lillian Ayotte, and Lorraine Gilmore

v.

Richard G. COTE, Aurore Cote, and Mary A. Bowie.

Supreme Judicial Court of Maine.

January 26, 1979

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Rocheleau & Fournier by Ronald P. Lebel, Lewiston (orally), for plaintiffs.

Isaacson & Isaacson by Philip M. Isaacson, Lewiston (orally), for defendants.

Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY, GODFREY and NICHOLS, JJ.

DELAHANTY, Justice.

Suffering from congestive heart failure and related illnesses Willie Parent was admitted to Central Maine Medical Center on July 7, 1975. While hospitalized on July 14, Mr. Parent, by warranty deed, conveyed his only real estate to the defendants-appellees, Aurore and Richard Cote, his daughter and son-in-law. 1 On the same date, he also assigned a savings account of approximately $3,000 to his defendant daughter, Aurore. Parent died on July 18, 1975. His will dated June 19, 1975, which was admitted to probate, essentially divided his entire estate (including savings account and real estate) equally among his seven children.

The present suit, alleging that the conveyance and assignment were the product of the defendants' duress, undue influence, and deceit and Willie Parent's mental incompetency, was commenced by the plaintiffs-appellants,

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four of Parent's children, 2 on December 16, 1975 in Superior Court (Androscoggin County). By special verdict, the jury found undue influence and lack of capacity. Treating the jury verdict as merely advisory, the presiding Justice ordered judgment entered for the defendants.

We deny plaintiffs' appeal.

In their pre-trial memoranda, plaintiffs and defendants requested a jury trial pursuant to M.R.Civ.P. 38(b). Following the pre-trial conference, the case was set down for a jury trial. Shortly before trial, the presiding Justice, who had not participated in the pre-trial conference, ruled that the jury would only be advisory. Having saved this ruling for our consideration by a timely objection, plaintiffs assert that their suit entitled them to a binding jury verdict. Defendants respond that plaintiffs' claims sound in equity, to which no jury trial right exists.

In articulating their respective positions, the parties appropriately focus on art. I, § 20 of the Maine Constitution.

In all civil suits, and in all controversies concerning property, the parties shall have a right to a trial by jury, except in cases where it has heretofore been otherwise practiced . . . .

Our constitutional provision safeguards the right to a jury trial on all legal claims. City of Rockland v. Rockland Water Co., 86 Me. 55, 29 A. 935 (1893). As to equitable issues, viz., "cases where it has heretofore been otherwise practiced", no jury trial right exists by virtue of art. I, § 20, although an advisory jury or trial by consent is available, subject to the limitations set forth in M.R.Civ.P. 39(d).

To determine the often elusive question of whether a claim is legal or equitable, there must be an appraisal of the basic nature of this issue presented, including the relief sought. Portland Pipe Line Corp. v. Environmental Improvement Commission, Me., 307 A.2d 1, Appeal dismissed, 414 U.S. 1035, 94 S.Ct. 532, 38 L.Ed.2d 326 (1973); Farnsworth v. Whiting, 106 Me. 430, 76 A. 909 (1910).

Plaintiffs' complaint asserted deceit, undue influence, duress, and mental incapacity. A constructive trust or damages were requested for the assignment of the savings account. For the real estate, plaintiffs prayed for damages, constructive trust, or cancellation of the deed. Seizing upon their claim of deceit, plaintiffs assert that this issue, sounding in tort, entitled them to a jury trial under art. I, § 20.

Plaintiffs might indeed have a cogent argument were they seriously pressing their deceit claim. See Bolduc v. Therrien, 147 Me. 39, 83 A.2d 126 (1951); Crossman v. Bacon & Robinson Co., 119 Me. 105, 109 A. 487 (1920). Here, however, their pre-trial memorandum omitted deceit as a justiciable issue. No reference was made to deceit in the pre-trial order, nor was the issue tried by the consent of the parties.

Were the jury trial issue determined solely on the basis of the pleadings, any party who desired a jury trial would be able to obtain one by simply injecting a legal issue into a complaint or answer. We are not implying that counsel would knowingly violate M.R.Civ.P. 11; 3 rather, many claims which appear viable at the pleading stage are for a variety of reasons no longer extant by the time of the pre-trial conference. Thus, the pre-trial order supersedes the pleadings, Beck v. Sampson, 158 Me. 502, 186 A.2d 783 (1962), specifies the legal theories upon which the parties are proceeding, and formulates the issues to be tried. Atkins v. Atkins, Me., 376 A.2d 856 (1977). Accordingly, we hold that where the issues raised by the pleadings have been modified by a pre-trial order, the order and not the pleadings controls the jury trial question. See Craig v. Hamilton, 213 Kan. 665, 518 P.2d 539 (1974).

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As framed by the pre-trial order, the issues for trial were undue influence, duress, and lack of capacity. Damages were also set forth as a jury issue. Commenting on these issues, the Justice who...

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