Shark v. Thompson

• Decision Date: 04 September 1985
• Docket Number: No. 10845,10845
• Citation: 373 N.W.2d 859
• Parties: Evan SHARK, Plaintiff, Appellant and Cross-Appellee, v. Carmen THOMPSON, Defendant, Wheeler, Wolf, Peterson, Schmitz, McDonald & Johnson, P.C., a Professional Corporation; and Robert O. Wefald, Defendants, Appellees and Cross-Appellants. Civ.
• Court: North Dakota Supreme Court

Page 859

373 N.W.2d 859

Evan SHARK, Plaintiff, Appellant and Cross-Appellee, v. Carmen THOMPSON, Defendant Wheeler, Wolf, Peterson, Schmitz, McDonald & Johnson, P.C. a Professional Corporation; and Robert O. Wefald Defendants, Appellees and Cross-Appellants.

Civ. No. 10845.

Supreme Court of North Dakota.

Sept. 4, 1985.

Myer Shark, Fargo, for plaintiff, appellant and cross-appellee.

Mackoff, Kellogg, Kirby & Kloster, Dickinson, for defendants, appellees and cross-appellants; argued by Paul F. Ebeltoft, Jr., Dickinson; appearance by Paul G. Kloster, Dickinson.

GIERKE, Justice.

Evan Shark appeals from a judgment dismissing his action against Wheeler, Wolf, Peterson, Schmitz, McDonald & Johnson, P.C. (hereinafter "Wheeler firm") Shark, an experienced businessman and realtor, was for an extended period of time involved in business dealings with Michael and Carmen Thompson. This business relationship was terminated in 1977, and Shark loaned a sum of money to the Thompsons and took a promissory note and mortgage in return. The mortgage, on property denoted by the parties as the "1721 property," lies at the heart of this dispute.

                and Robert O. Wefald, individually. 1  We affirm
                

Carmen and Michael were divorced, and Carmen was awarded the 1721 property in the divorce judgment. When Carmen subsequently attempted to sell the property, she sought satisfaction of the mortgage from Shark to clear the title to the property. Carmen engaged attorney B. Timothy Durick and Shark engaged defendants Wefald and the Wheeler firm to assist in the transaction.

Although the scope of the representation undertaken by Wefald is disputed by the parties, it is clear that Shark and Carmen, who was also a realtor, were conducting negotiations for a settlement of the dispute without the aid of their respective attorneys. It appears from the record that there were agreements, at various times, that Shark would satisfy the mortgage in exchange for a $10,000 cash settlement; for an assignment of Carmen's interest in a contract for deed on property denoted by the parties as "Bluffview;" and for a $6,000 promissory note.

Attorney Durick forwarded an unsigned satisfaction of mortgage to Wefald in late April 1980, and requested that Wefald secure Shark's signature and return it. There is much dispute over the actual signing of the satisfaction of mortgage and its subsequent journey to the closing on the sale of the 1721 property, which occurred on May 1, 1980. Shark contends that he signed his name and his wife's name on the satisfaction, and that it was left at the Wheeler firm's office. He contends that the Wheeler firm and Wefald are responsible for the satisfaction ending up at the closing.

The defendants contend that Shark's secretary picked up the unsigned satisfaction from their office and took it to Shark, who signed his name and his wife's name. The secretary then returned it to the Wheeler firm, where it was notarized, and returned it to Shark. The defendants thus contend that the document left their office, signed and notarized, and was returned to Shark, who was responsible for its appearance at the closing on May 1.

Shark alleges that Wefald was to make certain that an assignment of Carmen's interest in the contract for deed on the Bluffview property was received contemporaneously with the transmittal of the satisfaction of mortgage. Shark never received an assignment of Carmen's interest in the Bluffview contract for deed.

When it became apparent that no assignment was forthcoming from Carmen, Shark commenced suit against Carmen, Wefald, the Wheeler firm, Durick, and Durick's law firm. The claims against Durick and his law firm were dismissed before trial. Shark proceeded to trial against Carmen, Wefald, and the Wheeler firm. At the close of the plaintiff's case, the trial court granted the Wheeler firm's motion for involuntary dismissal under Rule 41(b), N.D.R.Civ.P., but denied Wefald's similar motion. Wefald proceeded to present his defense, but the trial court stopped the proceeding mid-way through Wefald's defense and announced that it had reconsidered Wefald's motion to dismiss under Rule 41(b). The court ruled that Wefald was entitled to dismissal and ended the trial at that point. Judgment was subsequently entered dismissing Shark's claims against Wefald and the Wheeler firm, and Shark has appealed. ²

Shark raised the following issues on appeal:

(1) Did the trial court err in denying Shark a jury trial?

(2) Did the trial court err in excluding evidence on the value of the 1721 mortgage and on Wefald's duty to advise Shark regarding the value of the mortgage?

(3) Did the trial court err in denying Shark's motion to amend the complaint?

(4) Did the trial court err in refusing to issue a protective order or to impose sanctions in connection with discovery activity?

(5) Did the trial court err in excluding evidence on the value of Carmen's interest in the Bluffview contract for deed?

(6) Did the trial court err in dismissing the action pursuant to Rule 41(b)?

(7) Was the trial court's certification pursuant to Rule 54(b), N.D.R.Civ.P., proper?

(8) Did the trial court err in its award of costs to the defendants?

I

Shark contends that the trial court erred in denying him a jury trial. Shark did not demand a jury trial in his complaint, dated December 27, 1982, or in his amended complaint, dated March 4, 1983. Shark did not demand a jury trial until February 29, 1984, when he included a demand for jury trial in his Note of Issue and Certificate of Readiness.

Rule 38(b), N.D.R.Civ.P., provides that a party may demand a trial by jury of issues triable of right by jury by serving "a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue." The last pleadings directed to the issues in this case were the defendants' answers, served on January 17, 1983, or arguably the defendants' answers to the amended complaint, served on April 11, 1983. ³ Shark's demand for jury trial on February 29, 1984, was clearly untimely under Rule 38(b). Rule 38(e) provides that failure of a party to serve a demand in conformity with Rule 38(b) constitutes a waiver of trial by jury. See Dorgan v. Kouba, 274 N.W.2d 167, 172 (N.D.1978) (on Petition for Rehearing). Shark waived his right to trial by jury by failing to serve a timely demand.

Shark also made a motion under Rule 39(b), N.D.R.Civ.P., requesting that the court order a trial by jury. The trial court denied the motion.

Rule 39(b) provides:

"(b) By the Court. Issues not demanded for trial by jury as provided in Rule 38 shall be tried by the court; but, notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues."

Rule 39(b) was adopted from the corresponding federal rule, and we therefore look to interpretive federal caselaw for guidance in construing our rule. See, e.g., Union State Bank v. Woell, 357 N.W.2d 234, 236 (N.D.1984).

The trial court has broad discretion in determining whether to provide relief from waiver and grant a jury trial under Rule 39(b). E.g., Parrott v. Wilson, 707 F.2d 1262, 1267 (11th Cir.), cert. denied, --- U.S. ---, 104 S.Ct. 344, 78 L.Ed.2d 311 (1983). The denial of the motion must be sustained on appeal unless it is shown that the trial court abused its discretion. Wall v. National Railroad In the instant case, Shark has failed to explain the lengthy delay to this Court. The record indicates that Shark's counsel explained to the trial court at the pretrial conference that it was his understanding that a jury trial could be demanded at any time. Counsel's misunderstanding of the rules or a mistaken belief that no demand was necessary amounts to mere inadvertence. Beckham v. Safeco Insurance Co. of America, supra, 691 F.2d at 905; Aetna Casualty and Surety Co. v. Jeppesen & Co., supra, 642 F.2d at 341. We conclude that the trial court did not abuse its discretion in denying Shark's Rule 39(b) motion.

                Passenger Corp., 718 F.2d 906, 909-910 (9th Cir.1983);   Parrot v. Wilson, supra, 707 F.2d at 1267;   Beckham v. Safeco Insurance Co. of America, 691 F.2d 898, 905 (9th Cir.1982).  It is not an abuse of discretion to deny a Rule 39(b) motion when the failure to make a timely demand for a jury trial results from mere oversight or inadvertence on the part of the moving party.   Fredieu v. Rowan Companies, Inc., 738 F.2d 651, 654 (5th Cir.1984);   Parrott v. Wilson, supra, 707 F.2d at 1267;   Rhodes v. Amarillo Hospital District, 654 F.2d 1148, 1154 (5th Cir.1981);   Aetna Casualty and Surety Co. v. Jeppesen & Co., 642 F.2d 339, 341 (9th Cir.1981).
                

II

Shark alleges that the trial court erred in excluding evidence on the value of the 1721 mortgage and on Wefald's duty to advise Shark on the value of the mortgage. Shark contends that this ruling in effect removed one of his main issues from the trial, his allegation that Wefald failed to investigate Durick's assertion that the mortgage had no value and that Wefald failed to investigate and advise Shark of its value.

The defendants made a motion in limine on the opening day of trial requesting that evidence on these issues be excluded. The court granted the motion.

Shark contends that the court erred in granting a motion in limine in a case tried to the court without a jury. A motion in limine is a procedural tool used to ensure that potentially prejudicial evidentiary matters are not discussed in the presence of the jury. It can serve no useful purpose in a nonjury case. Although we disapprove of the procedure employed to exclude the evidence, Shark has not shown that he was harmed by the use of the wrong procedure. If the evidence was properly excludable, erroneous use of a motion in limine to exclude it is not reversible error.

The trial...