Hatton v. Meade

• Decision Date: 07 January 1987
• Citation: 502 N.E.2d 552,23 Mass.App.Ct. 356
• Parties: Edna HATTON v. Robert MEADE, administrator.
• Court: Appeals Court of Massachusetts

Page 552

502 N.E.2d 552

23 Mass.App.Ct. 356

Edna HATTON v. Robert MEADE, administrator.

Appeals Court of Massachusetts Middlesex.

Argued Nov. 25, 1986.

Decided Jan. 7, 1987.

J. Owen Todd, Boston, for defendant.

Clyde K. Hanyen, Brockton, for plaintiff.

Before GREANEY, C.J. and CUTTER and SMITH, JJ.

CUTTER, Justice.

This is an action in which the plaintiff seeks to enforce a constructive trust upon a house which she claims was given to her by the defendant's decedent. Judgment was entered for the plaintiff on count II of the complaint, later described, and for the defendant on counts I and III. The defendant has appealed from various rulings affecting count II. No appeal from the judgments for the defendant on counts I and III is before us. The evidence would permit the finder of the facts to conclude that the events set out below took place.

The decedent met the plaintiff in high school. After the decedent returned from military service he attended college and law school. While in college the decedent saw the plaintiff every day and they frequently went out socially together. During this period the decedent lived in his parents' house with them. After his father died, he continued to live with his mother, whom he supported. She was elderly, handicapped or disabled, and nearly blind. The decedent continued to see the plaintiff every night.

The plaintiff and the decedent cohabited as early as 1957 on a trip, taken together and with others to a wedding in Pennsylvania. Then and subsequently the decedent introduced her as his wife to a considerable number of persons. They later traveled together and participated in many household and other activities together essentially as if married. The plaintiff admitted that she never met the decedent's principal work supervisor and was not introduced by the decedent as the decedent's wife to some lawyers and others who were close friends of the decedent.

At Christmas, 1972, the decedent gave the plaintiff a Christmas card, signed by the decedent, on which was written, "[T]his is your Christmas gift this year--76 Adena Road," (hereafter the locus). There "was a key attached ... taped to the card." Title to the locus originally was put in the decedent's name only because, so he told the plaintiff, it would be easier for him to get financing without her becoming involved. The plaintiff has made a "diligent search" for the card but has not been able to find it.

The plaintiff moved to the locus in the spring of 1973. The decedent gave the plaintiff the deed (to him) of the locus after the closing and she kept it for four years. The decedent then asked for it to "have it changed over" to her name. The plaintiff returned the deed to the decedent and since then has never seen it or any other deed to the locus. She testified that she never had any doubt that the decedent intended the locus to be hers, because he always "did what he said he was going to do." The decedent paid the mortgage, the taxes, and the insurance on the locus. The decedent and the plaintiff shared the cost of utilities and maintenance. The plaintiff estimated that she had spent about $3,800 in the aggregate to improve the locus.

The decedent and the plaintiff acted and lived in the house as husband and wife, although the decedent never stayed at the locus overnight but always returned to his mother's house. The plaintiff and the decedent had planned to get married. They never did marry, however, because his father became ill, then her father became ill, and then he found it necessary to take care of his mother.

The decedent and the plaintiff each filed tax returns as single taxpayers. The plaintiff never filed any government document as the wife of the decedent except at customs when they returned from Jamaica after going there as husband and wife. Her name at her place of work, her social security number, insurance policies, driver's license, and paycheck all used and use the surname of her parents and not that of the decedent.

The parties entered into a stipulation in this court as follows: The decedent died intestate. He had no brothers or sisters. His sole heir was his mother, who was ninety-three years old at his death. She died testate leaving as the sole beneficiary of her estate a charitable foundation named for the decedent.

The complaint in the present case alleges that the decedent's date of death was January 28, 1981. The defendant was appointed his administrator on May 11, 1981.

The complaint contained three counts. Count I was for services rendered by the plaintiff to the decedent during their relationship. Count II sought establishment of a constructive trust of the locus for the benefit of the plaintiff. Count III asked recognition of a common law marriage between the plaintiff and the decedent. ¹ A jury trial took place on February 21-22, 1985. The defendant filed a motion for a directed verdict on counts I and III at the close of the plaintiff's evidence. At the close of all the evidence the defendant moved "that count II be reserved for decision by the court." This motion was denied. The judge put essentially the following special questions to the jury, and received the following answers:

The defendant then filed a motion for judgment n.o.v. on count II of the complaint, on the basis that the evidence was insufficient to support a verdict for the plaintiff on that count. The motion was denied. Judgment on the jury verdict on the special question on count II was entered on March 25, 1985, ordering the defendant to execute and deliver a deed to the house. The conveyance was to be subject to an existing mortgage and free and clear of all liens for Federal or State taxes owed by the decedent's estate. The defendant has filed a timely appeal from the judgment and asserts as error (a) the denial of the motion that count II be reserved for decision by the court; (b) the denial of the motion for judgment n.o.v.; and (c) the judgment for the plaintiff on count II. The Superior Court docket discloses no motion by the defendant for a new trial.

On appeal, the defendant's original brief raises only the issues (a) whether the jury's verdict that the decedent held the locus on constructive trust for the plaintiff was against the weight of the evidence and thus provided inadequate support for the judgment for the plaintiff on count II, and (b) whether the trial judge erred in denying the defendant's motion for judgment n.o.v. When this court afforded the parties an opportunity to file supplemental letter briefs, the defendant further contended that his failure to file a motion for a directed verdict for the defendant on count II (after the judge's denial of the defendant's motion to reserve count II for his own decision) does not prevent appellate review of the sufficiency of the evidence.

The plaintiff argues that the defendant's motion for judgment n.o.v. as to count II was properly denied because the defendant had failed to move for a directed verdict on count II at the close of all the evidence. See Mass.R.Civ.P. 50(b), 365 Mass. 814 (1974). The plaintiff further contends that the defendant cannot raise the issue of sufficiency of the evidence on appeal without having moved for a directed verdict on count II in the trial court. ² See Martin v. Hall, 369 Mass. 882, 884, 343 N.E.2d 841 (1976); International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 846, 443 N.E.2d 1308 (1983).

1. The plaintiff claimed a jury trial. She was entitled to have one except as provided in Mass.R.Civ.P. 39(a)(2), 365

Mass. 802 (1974). At the request of a party, however, a Superior Court judge may frame issues of fact to be tried by a jury. See G.L. c. 214, § 13; Mass.R.Civ.P. 39(b) and (c), 365 Mass. 802 (1974); Reporters' Notes to Mass.R.Civ.P. 39, Mass.Ann.Laws, Rules of Civ.P. at 176-177 (Law.Coop.1982); Smith & Zobel, Rules Practice, §§ 39-39.6 (1977 & Supp.1986). See also Boston v. Dolan, 298 Mass. 346, 355, 10 N.E.2d 275 (1937); Boston v. Santosuosso, 307 Mass. 302, 323, 30 N.E.2d 278 (1940). The enforcement of trusts, including constructive trusts, is an equitable proceeding and deals with equitable issues. Commissioner of Banks v. Harrigan, 291 Mass. 353, 355-356, 197 N.E. 92 (1935); 5 Scott, Trusts, § 461-462.3 (3d ed. 1967 & Supp.1986); Nolan, Equitable Remedies, § 125 (1975). See and compare Charles River Constr. Co. v. Kirksey, 20 Mass.App.Ct. 333, 337-338, 480 N.E.2d 315 (1986). We hold, however, that it was within the trial judge's discretion to submit to the jury the issue whether the locus was subject to a trust in favor of the plaintiff.

The defendant's motion that the judge reserve the equitable issue for his own decision cannot be considered, in the circumstances, the equivalent of a motion for a directed verdict on count II. That motion alone did not place the trial judge clearly on notice that the defendant was raising or reserving the issue that the evidence was not sufficient to support a verdict for the plaintiff. Indeed, the defendant's motion to reserve count II for decision by the judge was not based upon the insufficiency of the evidence but upon the ground that the existence (or not) of a constructive trust was "not proper for the jury." When the motion to reserve decision on count II was denied, the defendant should have moved for a directed verdict on that count to be sure of protecting his rights. The defendant's failure to do so may be regarded as waiver of any objection to the sufficiency of the evidence to support count II. See Martin v. Hall, 369 Mass. at 884-885, 343 N.E.2d 841.

The authorities establish that, where a losing party has not moved for a directed verdict at the close of all the evidence, rule 50(b) not only precludes (a) the granting to that party of a motion for judgment n.o.v., but also (b) appellate review of the sufficiency of the evidence to support the verdict. See 5A Moore's Federal Practice, p 50.08 (1986 & Supp.1986), and authorities...