Murphy v. Murphy, 980147

• Decision Date: 23 June 1999
• Docket Number: No. 980147,980147
• Citation: 595 N.W.2d 571
• Parties: Sheila MURPHY, as Personal Representative of the Estate of Hugh R. "Red" Murphy, Plaintiff and Appellee, v. Tom MURPHY, Defendant. Shirley Meyer, Personal Representative for the John Redmond Murphy Estate, and Leone Linseth and Rose Hansen, as Guardian and Conservator for Dorothy Murphy, Intervenors and Appellants.
• Court: North Dakota Supreme Court

Page 571

595 N.W.2d 571

1999 ND 118

Sheila MURPHY, as Personal Representative of the Estate of Hugh R. "Red" Murphy, Plaintiff and Appellee, v. Tom MURPHY, Defendant Shirley Meyer, Personal Representative for the John Redmond Murphy Estate, and Leone Linseth and Rose Hansen as Guardian and Conservator for Dorothy Murphy, Intervenors and Appellants.

No. 980147.

Supreme Court of North Dakota.

June 23, 1999.

Rehearing Denied July 16, 1999.

Robert O. Wefald, of Bismarck, for plaintiff and appellee.

James L. Norris, of Bismarck, for intervenors and appellants.

KAPSNER, Justice.

¶1 Shirley Meyer, as the personal representative for the John Redmond Murphy Estate, and Leone Linseth and Rose Hansen, as guardian and conservator for Dorothy Murphy, intervenors in an action by Sheila Murphy, as the personal representative of the Hugh R. "Red" Murphy Estate, against Tom Murphy, appealed orders dismissing their counterclaims, denying them a jury trial, and denying their motions to amend, to add parties, and to join or consolidate this case with another case. We affirm the orders of the trial court.

I.

¶2 On October 18, 1994, Sheila Murphy, as the personal representative of the Estate of Hugh R. "Red" Murphy (Red), filed a complaint against Tom Murphy alleging the estate and Tom owned certain land as tenants in common, each owning an undivided one-half interest. Sheila requested partition of the land's surface estate, leaving the mineral estate undivided. Tom answered contending the property was owned by a partnership between himself and Red. Tom demanded a jury trial, and sought a judgment partitioning both the surface estate and the mineral estate.

¶3 On September 29, 1995, John Redmond Murphy (Jack) and Dorothy Murphy (Intervenors) filed a motion to intervene as defendants under N.D.R.Civ.P. 24. They answered Sheila's complaint alleging all but 400 acres of the land was owned by the Murphy Brothers Ranch Partnership (Partnership) consisting of themselves, Red, and Tom. The Intervenors asserted they were defrauded by Red and his attorney into selling Red and Tom 400 acres of land on November 13, 1992. The Intervenors requested the court order the 400 acres of land returned to them and in exchange they would return the $51,035 paid by Red and Tom for the land. The Intervenors' counterclaim also alleged they had a 22% partnership interest in the land sought to be partitioned and that they "transferred their assets to the Partnership and/or allowed the Partnership to use their property in exchange for the agreement that [they] would have a 22% interest in the Partnership for the rest of their lives." The Intervenors sought judgment providing, in part:

1. That Jack and Dorothy are entitled to the 400 acres of property that they were defrauded into deeding to Red and Tom on November 13, 1992;

2. That the complaint requesting partitioning of the property ... be dismissed and that such property be determined to be Partnership property which Jack and Dorothy have a 22% Partnership interest in for the rest of their lives;

3. A judgment for noneconomic damages for pain, suffering, inconvenience, mental anguish, emotional distress, loss, injury to reputation, humiliation and other nonpecuniary damages in a reasonable sum but not less than fifty thousand dollars.

On November 14, 1995, the trial court granted the motion to intervene and filed the Intervenors' answer and counterclaim.

¶4 In July 1997, Sheila moved for summary judgment arguing the Intervenors' claims against Red's estate should be dismissed with prejudice because the claims should have been filed in the probate action. She contended the Intervenors were barred from bringing the action under the non-claim statute, N.D.C.C. § 30.1-19-03. The Intervenors answered the motion asserting it would have been impossible for them to file a claim "on or before August 28, 1994 in Red's Estate for fraud since the interveners had not even discovered that they had a cause of action for fraud against Red's Estate until just before September 28, 1995."

¶5 On August 25, 1997, the trial court ordered "Shirley Meyer, as Personal Representative for John Redmond Murphy's Estate, be substituted for Jack Murphy and Leone Linseth and Rose Hansen, as Guardian for Dorothy M. Murphy, be substituted for Dorothy Murphy." In November 1997, the trial court denied the Intervenors' motion to amend their complaint, join additional defendants, and join or consolidate the action with a legal malpractice action commenced in Stark County.

¶6 On November 3, 1997, the trial court denied Sheila's summary judgment motion, without comment upon the substance of the motion. After denying the motion, the trial court stated it "determined, and counsel have agreed, that this case is to be bifurcated with the fraud and partnership claims being tried first to the jury, and with the partition action to be tried later to the Court as an equitable action."

¶7 During the pretrial hearing on November 14, 1997, the trial court "call [ed] off the jury" relying on this court's decision in Sargent County Bank v. Wentworth, 547 N.W.2d 753 (N.D.1996). The trial court cited the reasoning from Wentworth, at 761 (citations omitted), which states:

A party has no absolute right to a jury trial in an equitable action, nor is a party entitled to a jury trial when the party raises legal defenses denominated as counter-claims. Even when the counter-claim seeks monetary damages, there is no entitlement to a jury trial if the damage claim is incidental to and dependent upon a primary claim where a jury trial is not allowed. A claim for fraud on the court is in the nature of an equitable action for relief from the judgment. Therefore, the Wentworths were not entitled to a jury trial on their claim for fraud on the court.

¶8 Following a bench trial, on February 13, 1998, the trial court issued an order dismissing the Intervenors' claims with prejudice and ordered the partition trial to be scheduled. On March 16, 1998, the Intervenors filed a motion for certification under N.D.R.Civ.P. 54(b) to allow them to appeal from the order dismissing their claims with prejudice. The Intervenors requested a stay of the partition action until this appeal was complete. On May 1, 1998, the trial court granted the motion for certification and ordered a stay in the partition proceedings. The Intervenors appealed on May 6, 1998.

II.

¶9 The Intervenors contend the trial court erred in denying them their constitutional right to a jury trial. We disagree.

¶10 North Dakota Const. art. I, § 13 preserves the right to a jury trial in all cases in which it was a right at common law. General Elec. Credit Corp. v. Richman, 338 N.W.2d 814, 817 (N.D.1983). "Whether a party is entitled to a jury trial depends on whether the case is an action at law or a claim in equity." Barker v. Ness, 1998 ND 223, p 6, 587 N.W.2d 183. There is no absolute constitutional right to a jury trial in an equitable proceeding absent an express statutory provision. Id.

¶11 An action to partition or quiet title to property is an equitable action, for which there is no right to trial by jury. Dakota Bank & Trust Co. v. Federal Land Bank, 437 N.W.2d 841, 844 (N.D.1989). Whether a party is entitled to a jury trial is complicated when the pleadings seek both legal and equitable relief. Landers v. Goetz, 264 N.W.2d 459, 462 (N.D.1978). "In an equitable action the bringing in of a third party whose claim is legal in nature entitles the third party to a jury trial." Id. A party is not entitled to a jury trial on a damage claim that is merely incidental to and dependent on an equitable claim. General Elec. Credit Corp. v. Richman, 338 N.W.2d 814, 818 (N.D.1983). Thus, there is no right to a jury trial on a claim or counterclaim for damages if it is incidental to or dependent upon a primary claim for which a jury trial is not allowed. See, e.g., Sargent County Bank v. Wentworth, 547 N.W.2d 753, 761 (N.D.1996).

A.

¶12 Although not denominated as such in the pleadings, the first relief sought by the Intervenors is rescission of their transfer of 400 acres to Red and Tom on November 13, 1992. They assert they are entitled to rescission because the transfer was induced by fraud. Whether an action for rescission is legal or equitable in nature depends upon the facts and the actions taken by the party prior to bringing the action. The Intervenors argue the trial court erred in denying them a jury trial. However, we hold their action for rescission was equitable in nature and the Intervenors were not entitled to a jury on that claim.

¶13 A plaintiff who elects to rescind a contract may choose to bring a claim in equity to cancel the contract under N.D.C.C. § 32-04-21. Barker v. Ness, 1998 ND 223, p 10, 587 N.W.2d 183. "Alternatively, the plaintiff may bring an action at law based upon an election to rescind and offer to restore under N.D.C.C. § 9-09-04." Id. A plaintiff must give the defendant notice of the rescission and must promptly make an offer to restore to strictly comply with the requirements of a rescission action at law under N.D.C.C. § 9-09-04. Id. at p 12.

¶14 In Barker v. Ness, 1998 ND 223, p 3, 587 N.W.2d 183, Barker, a home purchaser, brought suit against the vendors, Ness and Smith, alleging they had fraudulently misrepresented the condition of the home. After a bench trial, the trial court concluded the sale of the home should be rescinded. Id. at p 4. Barker appealed from the judgment arguing the trial court erred in denying her a jury trial. Id. at p 5. This court noted whether Barker was entitled to a jury trial was dependent on whether the case was an action in law or a claim in equity. Id. at p 6. Barker's complaint asked the trial court to cancel a contract for the sale of a home and return ownership of the home to Ness and Smith. Id. at p 21. There was "nothing in the record indicating tender of a notice of rescission and offer to restore sufficient under ...