Thе central question presented here is whether the circuit court committed reversible error in submitting this case for determination by a jury. Because the issues presented and remedies requested here are purely equitable and so did not entitle any party to a jury trial, the trial court did err in submitting the case to a jury. Moreover, this error resulted in prejudice to the appellant. Accordingly, we must reverse the judgment of the Circuit Court for St. Mary’s County and remand for independent findings of fact.
*251 (i)
Lester Mattingly Sons is a fanning and excavation business in Leonardtown, Maryland, started by Lester Mattingly, Sr. His sons, Lester Mattingly, Jr. (“Buddy”) and appellee, Aubrey Mattingly (“Aubrey”), worked with him until his death in 1963. After 1963, Buddy and Aubrey worked together to continue the family business. 1 For the most part, Buddy worked on the farm and operated the construction equipment, and Aubrey acquired the excavating jobs for the business. From 1963 until a few years before her death in 1976, Buddy and Aubrey’s mother acted as bookkeeper for the business. After their mother’s death, Aubrey’s wife, Vicki Mattingly, assumed the duties of bookkeeper. There was testimony that the brothers worked “side by side” with “no cross words”; neither “boss[ed] or dominate[d]” the other. There was also testimony, however, that Buddy did not participate in the day-to-day financial affairs of the business; that he just “trusted them [Aubrey and Vicki] to tell [him] what was going on.” During the first year after their father’s death, Buddy earned a salary of three hundred dollars a month from the business. He then stopped receiving any regular income from the business, however, and received only “a few hundred dollars ... once or twice a year.” Instead, Buddy lived off money he had previously made and money which was left to him by his mother and, it was alleged, did not have enough money to make repairs on his home.
In June 1984, at the age of 55, Buddy married appellant, Orie Penny Beasley (“Penny”). It was his first marriage *252 and her third. Although they were both lifelong residents of St. Mary’s County, they chose to marry in Charles County. They attempted to conceal their marriage from Buddy’s family, especially Aubrey, because Buddy believed that Aubrey would disapprove. On their wedding day, at Penny’s request, Buddy granted Penny a general power of attorney and executed a will leaving his entire estate to her, without informing Aubrey of the marriage. Pеnny sent Aubrey three letters asking him to “address and correct the wrongs that have been done [to Buddy in the business.]” Aubrey did not respond to any of the letters. When Aubrey finally learned of the marriage, he was very upset. He believed that Penny wanted to “break up” the family business. Buddy testified that Aubrey “almost every day” told him “to get rid of that woman or get a divorce ... turn your property over to me or get a divorce,” which made Buddy feel “very bad.”
A year and a half later, on December 20, 1985, after several consultations with an attorney (three times without Aubrey present), Buddy executed a no-consideration deed, conveying his share of approximately 626 acres of land to Aubrey and Vicki Mattingly. On the same date he executed another no-consideration deed, conveying an additional 143 acres to Aubrey and Vicki, and reserving a life estate in the land for himself. On January 23, 1986, Buddy entered into a written agreement with Aubrey for the sale of Buddy’s interest in Lester Mattingly Sons. Under the terms of the agreement, Buddy agreed to sell to Aubrey his 40% interest in the business and equipment. Aubrey agreed to pay $50,000.00, plus repay a prior loаn made by Buddy to the partnership in the amount of $23,000, for a total payment of $73,000. This total amount was to be paid at the rate of $10,000 per year beginning two and one-half years later, in July of 1988. Less than a month later, on February 5,1986, Buddy signed a release of Aubrey from “all issues relating to all accounting” between himself and Aubrey for the business known as Lester Mattingly Sons and also released Aubrey “from all liability for claims and demands arising *253 out of the conduct of the business, accounting of funds, and any and all other transactions between us not contained in the Agreement of Sale of my share of the business dated January 23, 1986.”
The parties stipulated that Buddy was competent “to enter into contracts and agreements” and that “his competency” at the time he executed the agreements set forth above “is not an issue in the case.” Nevertheless, Dr. Jonas Rappeport, a forensic psychiatrist, testified that he had evaluated Buddy and determined, from a battery of psychiatric tests, that Buddy was suffering from “dependent personality disorder.” Moreover, on December 21, 1988, Penny, at the request of Buddy, and оver the objection of Aubrey, was appointed the guardian of her husband’s property by the Circuit Court for St. Mary’s County, Mattingly v. Mattingly, Case No. 87-69, December 1988. That holding was affirmed by this Court in an unreported opinion.
The present action was brought by Penny, as the guardian of Buddy’s property, to set aside, on the grounds of “undue influence and other unfair means” by Aubrey, the two deeds, the sales agreement, and the release of liability entered into by Buddy. Penny also sought a dissolution of the partnership and an independent accounting of partnership affairs from 1963 to Februаry 1987, whereby Buddy would receive one-half of the value of the partnership assets, repayment of a $28,000 loan allegedly made by him to Aubrey and Vicki, and half of the proceeds of a right-of-way purchased by Southern Maryland Electric Company (SMECO). Finally, Penny sought recovery of costs, including attorney’s and other fees, plus interest and “damages as may be proper for the delay.”
Aubrey filed a demand for a jury trial, and Penny filed a motion to strike the demand. After a hearing on the motion, the trial court entered an order denying Penny’s motion to strikе. There is no opinion accompanying that order, or explanation for it, in the record. The case was then tried to a jury on four specific issues:
*254 1. Whether Aubrey dominated and coerced Lester to such an extent that Lester was prevented from exercising his own free judgment and choice in executing a deed to Aubrey and Victoria of Lester’s interest in more than 600 acres of land without consideration;
2. Whether Aubrey exerted such influence, with respect to a second deed from Lester to the same parties for 143 acres of land, also without consideration;
3. Whether Aubrey exerted such influence with respect to the transfer of Lester’s share in the brothers’ partnership; and
4. Whether Aubrey exerted such influence with respect to a release by Lester of Aubrey from all claims respecting that partnership.
The jury answered “no” to each of the questions, and the trial court entered judgment in favor of Aubrey and his wife, Vicki.
Penny appeals, presenting four questions:
1. Did the lower court err in submitting this case to the jury?
2. Did the lower court err in determining as a matter of law that there was no confidential relationship between the parties?
3. Did the lower court err in entering judgment for appellees in the absence of clear and convincing evidence that there was no abuse of confidence and that the transactions were fair and proper?
4. Did the lower court err in excluding Dr. Rappeport’s testimony with respect to Lester Mattingly’s competency to make a valid gift?
(ü)
Article 23 of the Maryland Declaration of Rights,
2
like the Seventh Amendment of the United States Constitu
*255
tion, guarantees a right to a jury trial in actions at law.
See Bringe v. Collins,
If a claim is brought that historically would have been filed on the law side of the court and a jury trial is properly demanded, a jury will hear the case. Equitable claims will be decided by the court without a jury.
Hashem v. Taheri,
In order to preserve inviolate the right to a jury trial, however, both the Supreme Court and thе Court of Appeals have directed that when “the existence of both legal and equitable issues within the same case requires the selection between the jury and the court as the determiner of common issues, the discretion of the trial court ‘is very narrowly limited and must, wherever possible, be exercised to preserve jury trial.’ ”
Higgins, supra,
Thus, as a result of the “merger of law and equity” it is often difficult to determine whether a particular case contains at least some legal claim, and so entitles the litigants to a jury trial, or is wholly equitable, and so carries no entitlement to a jury trial. The Court of Appeals has directed that “we turn to the federal case law for guidance in defining the scope of the right to jury trial in Maryland.”
Id.
With these principles in mind, we turn to analysis of the case at hand. The short, four paragraph complaint here (there is no counterclaim or cross-claim), alleges that Buddy is “a disabled person” over whom Aubrey, his brother and partner, exercised “undue influence” and “unfair advantage”; it requests that “all signed documents from April, 1985 through February, 1987 between the parties” be “[s]et aside” and a “complete audit [be done] of the partnership and the affairs of the two brothers.” The complaint then states that “the following are some of the known items which need correction by this Honorable Court:
******
Lester A. Mattingly, Jr. should receive one-half of the accounts receivable;
Repayment of the $28,000 loan from Lester A. Mattingly, Jr. to Defendants at 12% interest;
Payment to Lester A. Mattingly, Jr., of one-half of the
$16,000 SMECO right-of-way;
******
That the Defendants pay all costs of every kind, including ... interest and damages as may be proper for the delay.”
Thus, this is an action for rescission and accounting between partners. An action for rescission or cancellation of a contract or other instrument is traditionally equitable and so was customarily decided by a court of equity before the merger of law and equity.
American Life Ins. Co. v. Stewart,
Analysis of the more important second
Ross
factor also leads to this conclusion because the “relief requested” in the complaint is exclusively equitable in nature. The principal relief requested is rescission. It is well-settled in Maryland that rescission is a purely equitable remedy.
Creamer v. Helferstay,
Thus, to recapitulate, if Penny obtains one equitable remedy, rescission, i.e., by demonstrating an existing part *259 nership between Buddy and Aubrey, she is entitled to another equitable remedy, accounting. In the accounting, she is entitled to have a court determine how much money, if any, Buddy is due from the assets of the partnership and then dissolve the partnership. In the course of the accounting, the court would determine Buddy’s entitlement to the specific dollar amounts requested, i.e., one-half of the value of the partnership assets, the repayment of the $28,000 loan, and one-half of the proceeds from the SMECO right-of-way. Since entitlement to these monies is simply a part of the purely equitable remedy of accounting, it provides no basis for a right to a jury trial.
Indeed, the Supreme Court has specifically recognized that damages which are “restitutionary,”
e.g.,
“disgorgement of improper profits” or “incidental to or intertwined with” certain equitable relief,
e.g.,
an injunction, may be equitable.
Local No. 391 v. Terry, supra,
Dairy Queen v. Wood,
In sum, when this case is examined pursuant to the Ross test it is clear that: (1) before the merger of law and equity, the customary manner of trying this action for rescission and partnership accounting was in an equity court, and (2) the kind of remedies sought here — rescission, accounting and specific monetary amounts pursuant to the accounting — are equitable in nature. Thus, there was no entitlement to a jury trial.
(iii)
Aubrey, perhaps recognizing the inevitability and correctness of the above conclusion, maintains that even if “the lower court erred in submitting the disputed factual issues in this case to a jury, that error was harmless.” This is so, Aubrey claims, because although there is a constitutional right to a jury trial in certain cases, there is no corresponding constitutional right to a bench trial.
See, e.g., United States v. Jackson,
It may well be that a jury is without power or jurisdiction to decide this purely equitable action. As noted above, prior to the merger of law and equity in Maryland, a law court had no jurisdiction over an action for rescission,
Creamer v. Helferstay, supra,
*262
The Court of Appeals, however, has shown great reluctance to order reversal because a trial court’s law/equity choice was erroneous. Instead, it has generally, after acknowledging that law/equity error, simply resolved the case on the merits.
See, e.g., Mayor of Landover v. Brandt,
In any event, we need not so hold since the improper grant of jury trial here was accompanied by error and resulted in actual prejudice which requires reversal and remand. This is so because when the case w;as improperly submitted to a jury, the plaintiff, Penny, on behalf of Buddy, did not get the benefit of the proper, and more lenient, equitable burden of proof standard on the critical issue of confidential relationship. In an action at law, the person claiming the existence of a confidential relationship has the burden of proving that the relationship exists and that fraud by the defendant injured the plaintiff.
Lackey v.
*263
Bullard,
At trial, Penny requested a jury instruction consistent with the equitable burden of proof standard, i.e., that if a fiduciary or confidential relationship exists as to a disputed transaction, the burden of proof is on the benefitting party to prove that the transaction was fair and that it was the deliberate and voluntary act of the other party. The trial court declined to give the instruction 3 finding, as a matter of law, “that there is no sufficient evidence in this case to establish a confidential relationship.” This finding was error.
*264
In fact, although the parties stipulated that Buddy was competent “to enter into contracts and agreements” and that “his competency was not an issue in the case,” there was abundant evidence, from both fact and expert witnesses, from which a fact finder could have concluded that Buddy, who suffered from a dependent personality disorder, heavily relied upon and reposed confidence in Aubrey, and so there was a confidential relationship between the two brothers.
See, e.g., Desser v. Woods,
We remand this case to the circuit court so that it can make independent findings of fact and enter judgment upon the evidence that was presented at the trial before it, consistеnt with the directives set forth in this opinion. Although this procedure has been criticized as forcing the trial judge in view “of the expiration of considerable time between the original trial and the remand ... to rely on an
*265
imperfect recollection of events at trial,” it is recognized that “a balancing of the extent of prejudice to one erroneously denied a nonjury trial against the inconvenience of a new trial, has led courts to follow this course.” Note,
The Right to a Nonjury Trial,
74 Harv.L.Rev. 1176, 1185-86 (1961).
See, e.g., Miller v. O’Brien,
(iv)
In order to assist the trial court in making its independent findings of fact on remand, wе consider the final question— the exclusion of Dr. Rappeport’s expert testimony with respect to Buddy’s capacity to make a valid gift. Dr. Rappeport was called as an expert to testify as to Buddy’s mental condition at the time of the disputed transactions. His testimony was preserved by video deposition, which the jury watched at trial. On cross-examination, counsel for Aubrey and Vicki asked Dr. Rappeport whether, in his opinion, Buddy was capable of making a valid gift. Dr. Rappeport answered, “no.” Counsel for Aubrey and Vicki subsequently withdrew the question and asked the court to exclude the question and answer at trial; the court granted the request.
The admissibility of expert testimony is a matter largely within the discretion of the trial court, and its decision to admit or exclude such testimony will seldom constitute a ground for reversal.
Bloodsworth v. State,
As Penny notes, one of the central issues in the case was the validity of certain gifts made by Buddy to Aubrey and Vicki, and expert opinion “is аdmissible, even
*266
on the ultimate issue of fact, ‘if it is relevant and will aid the trier of fact.’ ” This is an accurate statement of the law. Indeed, at oral argument in this Court, counsel for Aubrey acknowledged that it would
not
have been error for the trial court to admit this testimony. The failure to permit an opinion as to the “ultimate fact,” however, is not error where the expert is permitted to “develop the component of predicate facts that would logically yield that ‘ultimate fact.’ ”
Cirincione v. State,
Accordingly, the exclusion of Dr. Rappeport’s opinion as to Buddy’s ability to make a gift was not error. On the other hand, consideration of this testimony by the fact finder would not be error either. Thus, on remand, in making its independent findings of fact, the trial court may consider all of Dr. Rappeport’s testimony, crediting all, part, or none of it as the trial court deems appropriate.
JUDGMENT VACATED AND REMANDED TO THE CIRCUIT COURT FOR ST. MARY’S COUNTY FOR INDEPENDENT FINDINGS OF FACT CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY APPELLEES.
Notes
. In the complaint it is asserted that the brothers were partners in the business and Buddy so testified at trial. Aubrey denied this in the answer to the complaint, but testified at trial that he and Buddy had worked together in the business and that partnership tax returns listing Buddy and Aubrey as partners were filed "until the time” Buddy "signed his interest over to” Aubrey. Moreover, Aubrey admitted executing a written agreement dated January 23, 1986 (introduced as an exhibit at trial), which evidences his commitment, as the owner of a 60% interest in Lester Mattingly Sons, to purchase from Buddy for |73,000 Buddy's 40% interest in that business.
. Article 23 provides in pertinent part: *255 The right of a trial by Jury of all issues of fact in civil proceedings in the several Courts of Law in this State, where the amount in controversy exceeds the sum of five hundred dollars, shall be inviolably preserved.
. If the case had been one properly tried at law, the trial court’s refusal to give the instruction would not have been error because a confidential relationship does not shift the burden of proof to the benefitting party at law. Thus, the error here is not the trial court’s refusal to instruct the jury with respect to the proper burden of proof at law, but rather the submission of the case to the jury when it should have been tried in equity where a different standard of proof was proper.