Morey v. Stratton
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 147
Docket:	Som-99-600
Submitted
on Briefs:	June 27, 2000
Decided:	July 26, 2000

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, and ALEXANDER, JJ.

PHILIP MOREY

v.

TRAVIS STRATTON et al.

SAUFLEY, J.

	[¶1]  Travis and Lisa Stratton appeal from a judgment and from the
denial of a motion for a judgment as a matter of law or a new trial entered in
the Superior Court (Somerset County, Marsano, J.) following the entry of
judgment upon a jury's verdict in favor of Philip Morey on their claim
regarding certain injuries to Travis.  On appeal, the Strattons contend that
the court erred in instructing the jury on the issue of a joint enterprise. 
Morey cross-appeals from the denial of his motion for costs.  We affirm the
judgment.

I.  BACKGROUND

	[¶2]  Travis and Lisa Stratton leased a house from Philip Morey while
they sought financing for an eventual purchase of the premises.  At the time
that the Strattons were looking at the house, Morey showed Lisa a hinged
stair on a staircase in the house.  This stair had a hook, but no latch, and
could not be secured.  Months later, after the Strattons had moved in, Morey
became concerned about the possible loss of his homeowners insurance on
the house because of the presence of a wood stove that the Strattons had set
up in the cellar.  Morey directed the Strattons to remove the wood stove
before an upcoming inspection by Morey's insurance company.
	[¶3]  Working together with a dolly, the Strattons attempted to move
the stove, which weighed approximately 150 pounds, up the staircase with
the hinged stair.  The dolly apparently caught on the hinged stair and
dropped, and the Strattons lost control of the stove and dolly.  Travis's back
was injured, and he was unable to work for several weeks.
	[¶4]  Morey eventually evicted the Strattons and sued to recover
(1) unpaid rent, (2) compensation for damage to the property "beyond
normal wear and tear," and (3) the principal and interest due on a $2000
loan he had made to the Strattons.  The Strattons admitted their debt on
the loan, but filed a ten-count counterclaim seeking, inter alia, damages in
negligence for Travis's injuries and in quantum meruit for improvements
made to the house.  The Strattons removed the case to the Superior Court
and requested a jury trial.
	[¶5]  After the trial, the jury found that the Strattons' combined
negligence exceeded Morey's regarding the moving of the stove, thus
precluding recovery by the Strattons on their counterclaim for negligence. 
The jury returned verdicts in Morey's favor on his claims for breach of the
lease and for damage to the property, awarding $760 for back rent, but
determining that the damage to the property had zero value.  Although it
found that Morey had engaged in an unfair trade practice, it concluded that
the Strattons were not harmed by that conduct.  Finally, the jury awarded
the Strattons $600 in quantum meruit for improvements to the house.
	[¶6]  Both parties sought costs.  The court declined to award costs to
either party, concluding that "[f]or the purposes of cost[s], neither party was
the prevailing party."{1}  After the Strattons' motion for a new trial or a
judgment as a matter of law was denied, the Strattons appealed, and Morey
cross-appealed.

II.  DISCUSSION

	[¶7]  The Strattons contend that the court erred when it instructed
the jury with respect to the joint enterprise doctrine regarding their efforts
in moving the wood stove.  They argue that the presence of a common
pecuniary interest should be a required element of a joint enterprise.  We
have not previously required such an interest, requiring instead "proof of a
community of interest in and the joint prosecution of a common purpose
under such circumstances that each participant has authority to act for all in
directing and controlling the means of agency employed."  Illingworth v.
Madden, 135 Me. 159, 164, 192 A. 273, 276 (1937); see also Cullinan v.
Tetrault, 123 Me. 302, 306, 122 A. 770, 772 (1923); Trumpfeller v.
Crandall, 130 Me. 279, 287, 155 A. 646, 650 (1931).
	[¶8]  The Strattons, however, have failed to preserve the issue on
appeal.  The record before us reveals no objection to the wording of the jury
instruction, nor does it contain any proposed alternative language.{2} 
Moreover, the record reveals no objection to the jury verdict form, which
neither asked the jury to determine whether a joint enterprise existed nor
asked the jury to determine separately Travis's and Lisa's negligence.  The
language of the verdict form assumed the presence of a joint enterprise,
even though the court appears to have instructed the jury to determine
whether or not a joint enterprise existed before weighing any of the parties'
negligence.  See Thibodeau v. Slaney, 2000 ME 116, 	¶¶ 21-23, --- A.2d ----,
---- (holding absence of objection to jury form constitutes failure to preserve
issue on appeal).
	[¶9]  The absence of an articulated objection to the jury instruction or
verdict form severely restricts appellate review of the issues raised.  "In
order to properly preserve a challenge to a jury instruction, a party must not
only object but must state distinctly the ground for the objection.  A failure
to direct the court's attention to the challenged language of a jury
instruction or to offer a more acceptable version may render the objection
inadequate to preserve the issue for appeal."  Aucella v. Town of Winslow,
628 A.2d 120, 123 (Me. 1993) (citing Fuller v. Central Me. Power Co., 598
A.2d 457, 460 (Me. 1991); M.R. Civ. P. 51(b)); see also Haworth v. Feigon,
623 A.2d 150, 157 (Me. 1993) (holding issue was not preserved when co-
defendant failed to ask that the jury be instructed to separately determine
her liability, and failed to object to an inadequate jury verdict form).
	[¶10]  When the claimed error has not been preserved, we review the
instruction for obvious error.  See Reno v. Townsend, 1997 ME 198, ¶ 4,
704 A.2d 309, 310-11.{3}  Because of the importance of bringing the specific
challenge to the attention of the trial court at a time when the court may
consider and react to the challenge, we will not disturb a verdict unless the
unpreserved error is "of the exceptional kind that seriously affected the
fairness [or] integrity . . . of the proceeding."  Harris v. PT Petro Corp., 650
A.2d 1346, 1349 (Me. 1994) (citing Twin Island Dev. Corp. v. Winchester,
512 A.2d 319, 324 (Me. 1986)).  Thus, we will find obvious error only in the
most "extreme circumstances."  Reno, 1997 ME 198, ¶ 5, 704 A.2d at 311.
	[¶11]  Those circumstances do not exist here.  The Strattons argue
that the law upon which the trial court based its instruction should be
changed, clarified, or augmented, not that the instruction given was
identifiably wrong.  No obvious error exists under these circumstances.{4}
	[¶12]  Finally, notwithstanding Morey's contentions, we find no error
in the court's determination, when viewing the case "as a whole," Dodge v.
United Servs. Auto. Ass'n, 417 A.2d 969, 975 (Me. 1980), that neither party
had prevailed, see Landis v. Hannaford Bros., 2000 ME 111, ¶ 6, --- A.2d
----, ----.
	The entry is:
Judgment affirmed.
                                                        					
Attorneys for plaintiff:

David L. Herzer, Esq.
Norman Hanson & DeTroy, LLC
P O Box 4600
Portland, ME 04112-4600

John P. Frankenfield, Esq.
Law Offices of Anthony Shusta
P O Box 170
Madison, ME 04950

Attorneys for defendants:

Paul F. Macri, Esq.
Willian D. Robitzek, Esq.
Berman & Simmons, P.A.
P O Box 961
Lewiston, ME 04243-0961

Lawrence P. Bloom, Esq.
P O Box 924
Skowhegan, ME 04976

FOOTNOTES******************************** {1} . Some of the original docket entries were unclear, leaving the parties without an apparent final judgment on appeal. After remand to the Superior Court, the court conferred with counsel to craft a written judgment on all outstanding counts of the complaint and counterclaim. In addition to the matters that went to the jury, the court entered judgment in Morey's favor regarding his complaint for failure to pay on the loan and on the Strattons' counterclaim for unjust enrichment. Thus, aside from the undisputed amount owed on the loan, the net judgment amounted to $160 in Morey's favor. {2} . The record on appeal contains only a transcript of the testimony of Travis and Lisa Stratton. The Strattons have not provided any part of the jury instructions conference or the court's jury instructions. From the limited record before us, we can discern no specific objection to the jury instruction as given. The parties appear to agree that the court gave the instruction proposed by Morey's counsel, and contained in the appendix as submitted, verbatim. The only record reference to any objection whatsoever is contained in the trial court's order on the motion for a new trial. There, the court indicated that the Strattons did object, apparently on a general basis, to the court's intention to instruct the jury on joint enterprise. The Strattons concede that they did not object to the jury verdict form. {3} . The applicable rule does not mandate analysis of unpreserved objections for obvious error. See M.R. Civ. P. 51(b). Notwithstanding the plain language of Rule 51, however, we review unpreserved objections to jury instructions for obvious error. See Reno, 1997 ME 198, ¶ 4, 704 A.2d at 310-11. {4} . The Strattons also argue that a "domestic chore" can never constitute a joint enterprise, apparently challenging the sufficiency of the evidence to support the jury's verdict. In the absence of a complete record of the proceedings below, we will assume that there was sufficient evidence to support the jury's findings. See International Paper Realty Corp. v. St. Hilaire, 525 A.2d 1035, 1036 (Me. 1987).