Cyr v. Cote

• Decision Date: 26 January 1979
• Citation: 396 A.2d 1013
• Parties: Evelyn CYR, Edmond H. Parent, Lillian Ayotte, and Lorraine Gilmore v. Richard G. COTE, Aurore Cote, and Mary A. Bowie.
• Court: Maine Supreme Court

Page 1013

396 A.2d 1013

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.

Jan. 26, 1979.

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 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).

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 presided at trial stated:

I considered the issues that were raised in this particular case the same issues as would be raised in a will case. And that I considered it no different from a will case. That, therefore, the jury verdict would be advisory only.

On the contrary, we find the distinction between a will case and the instant suit significant and, as will be elaborated upon below, conclude that such differences entitled plaintiffs to a jury trial on the issues of undue influence, duress, and damages. ⁴

Undue influence and duress typically arise in Probate Court or the Superior Court, sitting as the Supreme Court of Probate, in the context of a will contest where the validity of a will is in dispute. In re Will of Fenwick, Me., 348 A.2d 12 (1975); Sheets v. Estate of Sheets, Me., 345 A.2d 493 (1975); In re Moran's Will, 139 Me. 178, 28 A.2d 239 (1942). Because probate matters were traditionally vested in the ecclesiastical courts, there was no right to a jury trial in the English common-law courts in a proceeding to probate a will. 3 Bowe-Parker, Page on Wills § 26.85 at 180 (rev.1961). As such, in this country, the right to a jury trial in a will contest is not one of constitutional dimension, but if it is to exist at all, the right must be predicated upon statutory authorization. In re Estate of Howard, 58 Cal.App.3d 250, 129 Cal.Rptr. 836 (1976). ⁵

When undue influence or duress therefore arises in a will contest, it is the nature of the proceeding as probate rather than anything inherent in the claim of undue influence or duress which forecloses the possibility of these issues being labeled "legal," to which a jury right would attach.

Here, however, the plaintiffs were not contesting the will. Their concern was with the real estate and savings account which, but for the alleged undue influence and duress resulting in an inter-vivos conveyance, would have passed through the will. Probate Court, which has the power to set aside the will, would not be the appropriate forum to redress plaintiffs' alleged injuries. ⁶

Before reaching the question of whether plaintiffs had a right to a jury trial, we must thus confront the issue of whether plaintiffs had any recourse available at all. Specifically, we face the problem of whether any action can be maintained where, as here, the plaintiffs had only an expectation that they would have received a share of the real estate and savings account under the will and do not deny that at any time before his death the testator could have willed the property to someone else.

We have long protected the expectancy of a prospective advantage in the business realm. In Perkins v. Pendleton, 90 Me. 166, 38 A. 96 (1897), plaintiff was employed by a company which had the right to terminate his employment at will. Defendants, who allegedly unlawfully caused the company to discharge plaintiff, defended by arguing that plaintiff's expectation of continued employment was not a legal right entitled to protection. The Court responded:

(W)herever a person, by means of fraud or intimidation, procures, either the breach of a contract or the discharge of a plaintiff, from an employment, which but for such wrongful interference would have continued, he is liable in damages for such injuries as naturally result therefrom; and that the rule is the same whether by these wrongful means a contract of employment definite as to time is broken, or an employer is induced, solely by reason of such procurement, to discharge an employee whom he would otherwise have retained. Id. at 176-77, 38 A. at 99.

In both Perkins and the instant case, the injured parties had only an expectation of future gain. In both, the third parties, i. e., the company and the testator, were under no legal obligation to the plaintiffs. Both suits in substance alleged that but for the tortious conduct of the defendants, the plaintiffs would have reaped economic benefits. In short, in all material respects, the instant case falls well within the controlling principles of Perkins v. Pendleton. Nor can we perceive any countervailing policy reason not to extend Perkins v. Pendleton, which recognized an action for the wrongful interference with the expectation of a future business relationship, into the area of decedents' estates.

To be sure, courts were initially inclined not to permit such an action. Hall v. Hall, 91 Conn. 514, 100 A. 441 (1916); Hutchins v. Hutchins, 7 Hill 104 (N.Y.1845).

But as Prosser argues,

(t)here is no essential reason for refusing to protect such noncommercial expectancies, (interference with an expected gift or legacy under a will), at least where there is a strong probability that they would have been realized . . . . The problem appears in...