Gilbert v. Cliche

Decision Date04 November 1977
Citation379 A.2d 717
PartiesMichael R. GILBERT v. Violet M. CLICHE.
CourtMaine Supreme Court

Alan C. Sherman, Waterville, for plaintiff.

Marden, Dubord, Bernier & Chandler by Albert L. Bernier, Waterville, for defendant.


WERNICK, Justice.

Plaintiff Michael R. Gilbert appeals from a Superior Court (Kennebec County) judgment for defendant, Violet M. Cliche, entered pursuant to an order of the presiding Justice requiring entry of such judgment notwithstanding a jury verdict in favor of the plaintiff.

We sustain the appeal and remand the case to the Superior Court for further proceedings consistent with this opinion.

Plaintiff commenced a civil action against the defendant (plaintiff's mother) in the Superior Court on April 2, 1975. In a first of two counts the complaint alleged that plaintiff had made repairs and improvements to real property owned by defendant in reliance upon defendant's oral promise to convey it to plaintiff at one-half its appraised value "at a date sometime in the future." Plaintiff claimed that defendant's subsequent refusal to convey the property or to pay plaintiff for the repairs and improvements was a breach of the oral contract. The second count alleged defendant had refused to convey the property to defendant at any price and asked specific performance of the oral contract to convey.

In her answer defendant asserted that her oral promise to sell was not enforceable as a contract, and also that the repairs made by her son were not improvements for which he was entitled to reimbursement. By a counterclaim defendant claimed compensation for rent, taxes and insurance, allegedly owed her by plaintiff in accordance with the terms of a written lease, as well as for damages caused by plaintiff to the real estate and the equipment on it. 1

In the course of pre-trial proceedings, count two of the complaint was dismissed by agreement. As to count one, the pre-trial order defined the issues to be tried as follows:

"If the Plaintiff proves that he reasonably believed that there was a promise to convey in the future as aforesaid and that the Defendant knew that he made improvements which went beyond what was considered repairs under the rental agreement upon the belief that the agreement to convey in the future was valid and that he would not have otherwise made such 'improvements,' then, on the theory of estoppel or acquiesence or unjust enrichment the Plaintiff would be entitled to recover the increase in the fair market value of the property. Whatever credits which may be shown to offset the unjust enrichment may be adduced at trial. Defendant contends that work done on the property constituted repairs under the rental agreement; and, further, that there was no such promise to convey. The sole question in this case will ultimately be whether or not Plaintiff is entitled to recover the amount to which the Defendant was unjustly enriched, less any credits to which she may be entitled."

A jury trial was held limited to a determination of defendant's liability under the issues thus framed. At the conclusion of the evidence, defendant moved that a verdict be directed in her favor. Without ruling on this motion, the presiding Justice submitted the case to the jury (Rule 50(b) M.R.Civ.P.). The jury returned a verdict, in the form of an answer to a special interrogatory, favoring the plaintiff. 2

Immediately thereafter, without defendant's having filed a motion for judgment notwithstanding the verdict, the presiding Justice acted as follows. He first stated:

"The record may show that after the jury has returned an answer to an interrogatory put to it on the issue of liability, counsel are in chambers with the Court, and it is the Court's duty now to rule on the Defendant's motion for a directed verdict in favor of the Defendant. That was the motion which the Court took under advisement at the conclusion of all of the evidence and prior to the case being submitted to the jury upon the issue of liability." (emphasis supplied)

Explaining his reasons, the presiding Justice then ruled:

". . . the motion for a directed verdict in favor of the Defendant is granted, and the Court will order judgment accordingly."

The above-described actions of the presiding Justice raise a threshold procedural question the answer to which becomes dispositive of this appeal.

The presiding Justice believed, as is evident from his remarks, that since he had submitted the case to the jury without ruling on defendant's motion for a directed verdict in her favor, that motion remained open and in need of being ruled upon as such, notwithstanding the supervention of a jury verdict deciding in favor of the plaintiff.

This was an erroneous view. It overlooked that Rule 50(b) M.R.Civ.P. plainly requires, in addition to the pre-verdict motion for directed verdict, that a post-verdict motion be filed invoking the power of the Court to order entry of judgment notwithstanding the verdict returned by the jury.

Even though, here, the presiding Justice acted to order entry of a judgment for the defendant before judgment had been entered on the jury verdict favoring plaintiff, Rule 50(b) was nevertheless applicable. The language in the second sentence of Rule 50(b), "(n)ot later than 10 days after entry of judgment . . ." and "move to have the verdict and any judgment entered thereon set aside . . ." does not mean that Rule 50(b) is in play only after, not before, the entry of judgment on the verdict of a jury. In the "10 days" clause, "entry of judgment" does not connote a condition of the authority of the Court to act but is merely a reference point by which a maximum time limitation is prescribed for the filing of the requisite post-verdict motion for judgment n. o. v. by a party against whom an adverse jury verdict has been returned. Chopping v. First National Bank of Lander, 419 P.2d 710 (Wyo.1966). See also: 5A Moore's Federal Practice, P 50.01, at 2311, 2312 (2d. ed. 19) (discussing the 1963 amendment to Fed.R.Civ.P. 50(b) which struck the phrase, "(w)ithin 10 days after the reception of a verdict . . .", and substituted the words, "(n) ot later than 10 days after the entry of judgment . . .", a change which the appended Committee Note explains ". . . sets the time limit for making the motion for judgment n. o. v." in a manner ". . . consistent with that contained in Rule 59(b) . . . and Rule 52(b) . . ..") In similar vein, the words referring to the invoking of the Court's power to set aside ". . . any judgment entered . . ." on the verdict of the jury do not signify that such a judgment must already have been entered but refer only to the contingency that there may have been a judgment entered on the verdict; in short, in this context, "any judgment" has the same meaning as if the text read "the judgment, if any."

In light of the conceptual anomaly which would be involved if a jury is first allowed to return such verdict as it may see fit and thereafter is "directed" by the presiding Justice to return a contrary verdict, Rule 50(b), in effect, eliminates the "motion for a directed verdict" as the continuingly operative mechanism by which the Court may act to produce a judgment notwithstanding a verdict returned by a jury. The Rule provides:

"Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion." (emphasis supplied)

Thus, Rule 50(b) does not preserve the motion for a directed verdict as such to be ruled upon after submission of the case to a jury; rather, it preserves for "later determination" only the "legal questions raised by . . ." it.

In relation to such "later determination" of the legal questions thus preserved, Rule 50(b) delineates the specific procedure to be followed. It first addresses the alternative in which, after submission, the jury has returned a verdict contrary to the interests of the party who had moved for a directed verdict in his favor. In such instance said party

". . . may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; . . . ." (emphasis supplied)

It is plain from the words underscored that the presiding Justice is not to act on the motion for a directed verdict as such. Rule 50(b) requires a separate motion to be forthcoming by which the Court is asked, first, to eliminate the verdict returned by the jury, by setting it aside, and thereafter, the jury verdict having been removed, to order entry of a judgment in accordance with but not on, or in consequence of, granting the previously filed, but unruled on, motion for a directed verdict.

As his options in ruling upon such separate motion required to be filed after a verdict has been returned, the presiding Justice may, under Rule 50(b),

". . . allow the judgment (which may have been entered on the verdict) to stand or . . . reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict...

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4 cases
  • Olsen v. French
    • United States
    • Maine Supreme Court
    • February 24, 1983 only denotes the outside limit within which the motion for a new trial can be made and not an inside limit. Cf. Gilbert v. Cliche, 379 A.2d 717, 719 (Me.1977). Thus, the motion for a new trial filed December 8, 1981, was pending and available for court action following the cross-claim di......
  • Marcel Hair Gods Corp. v. Nat. Sav. & Trust
    • United States
    • D.C. Court of Appeals
    • October 1, 1979
    ...the trial court from exercising its discretion to decide whether a new trial should be granted instead. Id.; see Gilbert v. Cliche, 379 A.2d 717, 721 & n. 3 (Me.1977). The United States Court of Appeals for the First Circuit has also distinguished Johnson, supra. In First Safe Deposit Natio......
  • Holmes v. Powell
    • United States
    • Alabama Supreme Court
    • October 27, 1978
    ..."entry of the judgment" for purposes of computing the time within which notice of appeal must be filed. Accord, Gilbert v. Cliche, 379 A.2d 717 (Maine, 1977). Therefore the date on which the time for computation began to run in this case was March 28, 1978. Forty-two days from that date was......
  • Gilbert v. Cliche
    • United States
    • Maine Supreme Court
    • March 1, 1979
    ...of defendant notwithstanding the verdict of a jury that defendant was liable to plaintiff. Some fifteen months ago, in Gilbert v. Cliche, Me., 379 A.2d 717 (1977), we decided that the Superior Court's first judgment n. o. v. in favor of defendant must be set aside because the presiding Just......

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