First American Bank West v. Michalenko
Decision Date | 16 June 1993 |
Docket Number | No. 920217,920217 |
Parties | FIRST AMERICAN BANK WEST, as Personal Representative of the Estate of Peter Michalenko, Jr., deceased, Plaintiff, v. Violet E. MICHALENKO, Defendant and Appellant, Carol Hendrickson, Roberta R. Leibner, and Cynthia Nechiporenko, Defendants and Appellees. Civ. |
Court | North Dakota Supreme Court |
Mark V. Larson, of McGee, Hankla, Backes & Wheeler, Ltd., Minot, for defendant and appellant.
Donald A. Negaard, of Pringle & Herigstad, PC, Minot, for defendant and appellee Cynthia Nechiporenko.
Moody M. Farhart, of Farhart, Lian, Maxson, Sorensen, Louser & Zent, Minot, for defendants and appellees Roberta R. Leibner and Carol Hendrickson.
Violet Michalenko appealed from a judgment entered upon a jury verdict declaring a premarital agreement valid. We affirm.
Violet was the niece of Peter Michalenko's first wife, Bertha. Bertha died in 1972. A few weeks after divorcing her first husband in 1973, Violet married Peter. Violet and Peter signed a premarital agreement, each agreeing to relinquish any rights acquired in the other's property by marriage. Under the terms of the agreement, Violet was to receive $5,000 and a life estate in certain property upon Peter's death.
Peter died intestate on December 1, 1990, and First American Bank West was named personal representative of the estate. Because of the uncertainty caused by the premarital agreement, the Bank brought a declaratory judgment action under Chapter 32-23, N.D.C.C., to determine the validity of the agreement. Peter's three daughters and Violet were named as defendants.
Violet asserted that the premarital agreement was invalid because she did not understand it when she signed it, did not receive advice of independent counsel, and did not know the value of Peter's property. The daughters asserted that Violet signed the agreement with full knowledge of the extent of Peter's property, and that Violet was amply provided for through property that she received outside the estate. 1 Two of the daughters, Carol Hendrickson and Roberta Leibner, demanded a jury trial.
After a pretrial conference on November 27, 1991, the district court entered an order setting the case for jury trial on April 7, 1992, and further ordered that all pretrial motions be filed by March 1, 1992. On the morning of trial, Violet moved to strike the jury. The court denied the motion, concluding that it was untimely. The case was submitted to the jury, which returned its verdict declaring the premarital agreement valid. Violet appealed.
Violet asserts that the district court erred in denying her motion to strike the jury. Underlying Violet's assertion is the presumption that there is an absolute right to have an equitable action tried to the court instead of a jury. Violet cites no cases directly supporting this proposition, but relies upon cases such as Production Credit Association of Mandan v. Rub, 475 N.W.2d 532 (N.D.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1235, 117 L.Ed.2d 469 (1992), First National Bank and Trust Co. v. Brakken, 468 N.W.2d 633 (N.D.1991), and Dakota Bank and Trust Co. v. Federal Land Bank of St. Paul, 437 N.W.2d 841 (N.D.1989), in which we held that there is no absolute right to a jury trial in an equitable action. Although we have often held that there is no absolute right to a jury trial in equity, we have never specifically recognized a converse right to have an equitable action tried to the court without a jury.
We find it unnecessary to resolve this issue because we conclude that, even if such a right exists, 2 Violet waived it by failing to make a timely objection. If there is an implicit right to try an equitable action without a jury, that right is no more extensive than the explicit constitutional right to a jury trial in other cases. See N.D. Const. Art. I, Sec. 13. It is well settled that the right to trial by jury is waived if not timely demanded. Rule 38(e), N.D.R.Civ.P.; Hanson v. Williams County, 452 N.W.2d 313 (N.D.1990); Greenwood, Greenwood & Greenwood, P.C. v. Klem, 450 N.W.2d 745 (N.D.1990). Under Rule 39(b), N.D.R.Civ.P., the trial court has broad discretion to grant relief from the waiver of jury trial, and the trial court's determination will not be reversed unless it has abused its discretion. Hanson, supra; Greenwood, supra.
Conversely, if there is a "right" to trial by the court in an equitable action, that right is waived by the failure to timely assert it, and the trial court is accorded broad discretion in determining whether to grant relief from such a waiver. By denying Violet's untimely motion to strike the jury, the court in essence was refusing to grant relief from Violet's waiver of her "right" to have the matter tried to the court.
The parties have inexplicably failed to cite Rule 39(a) and (c), N.D.R.Civ.P., which appears to govern this situation:
The parties also failed to cite Sprenger v. Sprenger, 146 N.W.2d 36 (N.D.1966), in which this court, construing Rule 39(c), concluded that a jury verdict in an equitable action was properly given binding effect where the parties had implicitly consented to trial by jury. The Sprenger court quoted with approval from a leading authority on the corresponding federal rule:
Sprenger, supra, 146 N.W.2d at 40 (quoting 2B Barron & Holtzoff, Federal Practice and Procedure Sec. 891 (1961)). Cf. Landers v. Goetz, 264 N.W.2d 459, 463 (N.D.1978) [ ]
Federal cases consistently hold that a party's failure to object to a demand for jury trial constitutes consent to try the case to the jury under Rule 39(c), F.R.Civ.P. See Thompson v. Parkes, 963 F.2d 885 (6th Cir.1992); Modine Manufacturing Co. v. Allen Group, Inc., 917 F.2d 538 (Fed.Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2017, 114 L.Ed.2d 103 (1991); Whiting v. Jackson State University, 616 F.2d 116 (5th Cir.1980); Stockton v. Altman, 432 F.2d 946 (5th Cir.1970), cert. denied, 401 U.S. 994, 91 S.Ct. 1232, 28 L.Ed.2d 532 (1971); Kelly v. Shamrock Oil & Gas Corp., 171 F.2d 909 (5th Cir.1948), cert. denied, 337 U.S. 917, 69 S.Ct. 1159, 93 L.Ed. 1727 (1949). Leading commentators are in accord:
9 C. Wright & A. Miller, Federal Practice and Procedure: Civil Sec. 2333 (1971) (footnotes omitted). Professor Moore adds:
5 Moore's Federal Practice p 39.11 (2d ed. 1993) (footnote omitted).
As previously noted, the right to trial without a jury is no more extensive than the right to trial with a jury. Accordingly, we believe that an objection to a demand for a jury trial must be made in a timely fashion or the party will be deemed to have waived her objection and consented to trial by jury. When an untimely objection to a jury trial is raised, the trial court is accorded broad discretion in determining whether to allow trial to the court or to the jury.
In this case, two defendants demanded a jury trial in their answer. A pretrial conference was held in November 1991 and the pretrial order set the case for a jury trial. The March 1, 1992 deadline for pretrial motions passed without objection by Violet to the jury trial. In March, Violet submitted requested jury instructions, a clear demonstration of consent to trial by jury....
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