Jacobson v. ShrestaJacobson v. Shresta
Case Information
*1 N ebraska a dvaNce s heets v
[6] Clear and convincing evidence means the amount of evi- dence which produces in the trier of fact a firm belief or con- viction about the existence of a fact to be proved and, further, that it is more than a preponderance of the evidence, but less than proof beyond a reasonable doubt. In re Interest of Eden K. & Allison L. , 14 Neb. App. 867, 717 N.W.2d 507 (2006). We conclude that the juvenile court did not commit plain error in finding that there was not clear and convincing evidence that termination of Shawna’s parental rights was in Sylissa’s and Justine’s best interests.
CONCLUSION
For the foregoing reasons, we affirm the juvenile court’s order. ffirmed .
m ichael l. J acobsoN , s pecial a dmiNistrator of the e state of v irgiNia a. J acobsoN , deceased , aNd m yroN J. J acobsoN , appellaNts , . s herry k. s hresta , m.d., aNd g astoN c orNu -l abat , m.d., appellees . ___ N.W.2d ___ Filed July 25, 2014. No. S-11-438.
1.
Statutes: Appeal and Error.
Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court.
2.
Constitutional Law: Jury Trials.
The guaranty of a jury trial is part of
Nebraska’s fundamental law, but
7. Immunity: Political Subdivisions: Public Officers and Employees. The common-law doctrine of governmental immunity applies to a political subdivi- sion’s employees who are acting within the scope of their emplоyment. 8. Immunity: Legislature: Waiver: Appeal and Error. Because the Legislature *2 has determined when and how it will waive the State’s sovereign and governmen- tal immunity, an appellate court will find a waiver of such immunity only where stated by express language or clear implications. 9. Political Subdivisions Tort Claims Act: Immunity: Jury Trials: Waiver. Because a jury trial is not one of the terms of its waiver of governmental immu- nity under Political Subdivisions Tort Claims Act, a party is not entitled to a jury trial on its claim that a defendant is not a political subdivision employee.
Petition for further review from the Court of Appeals, s ievers , p irtle , and r iedmaNN , Judges, on appeal thereto from the District Court for Sheridan County, r aNdall l. l ippstreu , Judge. Judgment of Court of Appeals affirmed.
Christopher P. Welsh and James R. Welsh, of Welsh & Welsh, P.C., L.L.O., for appellants.
Mark A. Christensen, Tracy A. Oldemeyer, Cristin McGarry Berkhausen, and Elizabeth A. Tiarks, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for appellees.
h eаvicaN , c.J., c oNNolly , s tephaN , m c c ormack , and m iller -l ermaN , JJ.
c oNNolly , J.
SUMMARY
Virginia A. Jacobson (Virginia) was admitted to Gordon Memorial Hospital after she began coughing while eating a piece of meat. On March 29, 2003, Sherry K. Shresta, M.D., admitted her, and Gaston Cornu-Labat, M.D., performed an esophagogastroscopy. During the procedure, Virginia “coded.” A piece of meat was found in her throat and suctioned out; a subsequent x ray showed aspiration pneumonia. After remain- ing under the care of Shresta and Cornu-Labat (collectively the defendants) for the next 3 days, Virginia died from com- plications. Virginia’s husband and the special administrator for her estate (collectively the Jacobsons) filed a wrongful death action against the defеndants in the district court for Sheridan County.
The defendants subsequently filed a motion to bifurcate. The threshold issue was whether the defendants were employees of the hospital. The parties stipulated that the hospital was a polit- ical subdivision and that the Jacobsons did not comply with the 1-year statute of limitations for presenting a claim under the Political Subdivisions Tort Claims Act (PSTCA). So, if the defendants were hospital employees, the PSTCA barred the Jacobsons’ action.
Before hearing the bifurcated employment issue, the court rejected the Jacobsons’ claim that they were entitled to a jury trial. On the employment issue, the court found that the defend- ants were employees. It dismissed the Jacobsons’ complaint. On appeal, the Nebraska Court of Appeals determined that the Jacobsons had waived their right to a jury trial and affirmed the trial court’s decision. The Jacobsons seek further review.
We conclude that the Jacobsons, by their silence, could not have waived their right to a jury trial. Nevertheless, because we conclude that the Jacobsons did not have a right to have a *3 jury dеcide whether the defendants were political subdivision employees, we affirm.
BACKGROUND
The record shows that the trial court heard the defendants’
motion for a bifurcated bench trial in a telephonic hearing.
Although the Jacobsons argued that they objected to a bench
trial at this hearing, a transcript of the hearing is not part of
the record. The record does show, however, that the Jacobsons
moved the court to reconsider its ruling and that the court
overruled their request. And before the bench trial began, the
Jacobsons renewed their objection. They argued that under
In rejecting the Jаcobsons’ assignment that the trial court
erred in denying them their right to a jury trial, the Court of
Appeals reasoned that the Jacobsons had waived that right:
[1]
See
[2]
Jacobson v. Shresta
,
Based on the record before us, we find no objection by the Jacobsons to the defendants’ motion to bifurcate before the court ruled on it. . . . The record does not contain any objection by the Jacobsons until after the motion was sustained and the Jacobsons filed a motion to reconsider. Although the Jacobsons state in their brief that they objected to the motion, there is nothing in the record before us to support that contention. We recognize that the Jacobsons “renewed” their objection to the bench trial before trial began, but there is no original objec- tiоn in the record. Therefore, we are unable to determine whether an original objection was made at all, whether it was timely made, and on what grounds it was made. It is incumbent upon the appellant to present a record sup- porting errors assigned; absent such a record, an appellate court will affirm the lower court’s decision regarding those errоrs. . . .
The defendants’ motion to bifurcate the employment issue specifically stated that they were requesting a bench trial on the issue. If the Jacobsons believed they were entitled to a jury trial on the issue, they had an opportu- nity to object and, based on the record before us, did not. Generally, failure to make a timely objection waives the right to assert prejudicial error on appeal. . . . By failing to object to the motion to bifurcate, the Jacobson cannot now challenge the court’s ruling.
ASSIGNMENT OF ERROR
The Jacobsons assign that the Court of Appeals erred in determining that they were not entitled to a jury trial on the bifurcated issue whether the PSTCA barred their medical mal- practice claim against the defendants.
STANDARD OF REVIEW
[1] Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court.
[3]
Jacobson, supra
note 2,
ANALYSIS
The Jacobsons argue that the trial court denied them their constitutional right to a jury trial and that the Court of Appeals erred in concluding that they had waived this right. They acknowledge that the issue whether the defendants were employees would have been stаtutorily required to be tried to a court if they had commenced an action against the hos- pital under the PSTCA. But they argue that because they did not bring their action under the PSTCA, a jury should have decided the issue. They further argue that their conduct did not show a clear and unequivocal intent to waive their right to have a jury decide issues concerning whether the statutory time limitation аpplied.
The defendants argue that the Court of Appeals’ reasoning was correct. Alternatively, they argue that even if the Court of Appeals had reached the merits of the assigned error, the dis- trict court did not abuse its discretion in granting a bifurcated bench trial on the employment issue. They contend that the PSTCA required the issue to be tried to the court.
r ight to J ury t rial aNd
W aiver of the r ight
Whether a party waives a right to a jury trial implicates a constitutional right. We now clarify when and how a party waives that constitutional right.
[2,3]
The right of trial by jury shall remain inviolate, but the Legislature may authorize trial by a jury of a less number than twelve in courts inferior to the District Court, and may by general law authorize a verdict in civil cases in any court by not less than five-sixths of the jury.
We have held that the guaranty of a jury trial is part of
Nebraska’s fundamental law. But we have also held that
this constitutional provision preserves the right to a jury
[5]
See
[6] See,
State v. Kennedy
,
Simpson v. Vondrasek
N ebraska a dvaNce s heets
trial as it existed under the common law when the Nebraska Constitution was adopted in 1875. Negligence and personal injury actions are actions at law. At common law, legal claims were tried by a jury and equitable claims were tried by a court.
The issue is whether a plaintiff waives the right to a jury
trial by failing to object to a defendant’s motion for a bench
trial before the court sustains the motion. Under the Court of
Appeals’ reasoning—despite the Jacobsons’ objection to the
bench trial before it began—they had already waived their
right to a jury trial and could not cure their waiver by objecting
before trial. We believe this rule is contrary to Nebraska’s stat-
utes related to jury trials.
Issues of law must be tried by the court, unless referred as provided in section 25-1129. Issues of fact arising in actions for the recovery of money or of specific real or personal property, shall be tried by a jury unless a jury trial is waived or a reference be ordered as hereinaf- ter provided.
(Emphasis supplied.)
The trial by jury may be waived by the parties in
actions arising on contract, and with assent of the court
in other actions (1) by the consent of the pаrty appear-
ing, when the other party fails to appear at the trial by
himself or attorney; (2) by written consent, in person or
[7]
See, e.g.,
Eihusen v. Eihusen
,
Burlington Northern, Inc. [9] Eihusen, supra note 7. See, also, Storm v. Christenson , 130 Neb. 86, 263
N.W. 896 (1936).
by attorney, filed with the clerk; and (3) by oral consent in open court entered on the journal.
The only statutory exceptions to this waiver list are limited
to county court proceedings under
But there is no comparable statutory demand requirement
for proceedings in district courts. Instead,
We have held that when a party tries a case to the court and the record fails to show that either party protested or objected, we will presume that the parties have waived their right to a jury trial. [13] Similarly, if, during a jury trial, both parties ask the court for a directed verdict without reservation, they have waived the right to a jury trial. [14] Although these cases did not discuss the waiver statute, the facts arguably fell under what [10] See State ex rel. Simpson, supra note 6.
[11] See
State v. Miller
,
on other grounds, State v. Louthan
,
is now
Some of the cases we decided in the early 1900’s could be interpreted as finding a waiver if a party failеd to demand a jury trial. In those cases, however, the parties tried the issues to the court without objection and our statements about waiver seem to be dicta because it is not clear that the issue was raised.
Other early cases show that even if a party initially waived a jury trial, it may later reassert this right. For example, even when a party had stipulated to a bench trial, we held that such stipulations are not to be treated as contracts and that the court has discretion to permit an application to withdraw the waiver if it is timely made and has not been acted on to the prejudice of another party. Also, following an appeal, a litigant’s previ- ous waiver of a jury trial does not preclude the litigant from demanding a jury trial on remand.
Most important, at least one early case indicates that a
waiver of a jury trial will not be inferred from failing to raise
the issue before a pretrial ruling that was similar to the rul-
ing in this case. In
Lett v. Hammond
, we held that a plaintiff
could demand a jury trial for its contract action even after a
defendant had successfully moved the case to the trial court’s
*7
еquity docket, based on the defendant’s equitable accounting
claim. The trial court had ruled that the plaintiff’s demand for
a jury trial was decided at the pretrial hearing to docket the
case as an equitable suit, but we reversed: “When the case
was called for trial, or prior thereto, the plaintiffs, not having
waived their rights to have the issues submitted to a jury, or
[15]
See,
Helming v. Forrester
, 87 Neb. 438, 127 N.W. 373 (1910),
overruled
on other grounds, Criswell v. Criswell
, 101 Neb. 349, 163 N.W. 302
(1917);
Mavity v. Stover
, 68 Neb. 602, 94 N.W. 834 (1903);
Davis v.
Snyder
,
(1902).
[18]
Lett v. Hammond
,
been denied a jury trial, could demand it on whatever docket the case appeared.”
[4] Although we did not discuss
[5] Under a rule of exclusivity, unless a party’s conduct
falls into one of
Id.
at 342,
Rptr. 2d 924 (1993).
[22] See
N ebraska a dvaNce s heets
We next consider whether the Jacobsons had a right to have a jury decide if the defendants were governmental еmployees.
t he J acobsoNs d id N ot h ave a r ight to a J ury t rial to d etermiNe W hether the d efeNdaNts W ere e mployees of p olitical s ubdivisioN In 1875, there was no right to a jury trial on any issue in a suit against the State or its political subdivisions because the common-law doctrine of sovereign immunity, and the related common-law doctrine of governmental immunity, operated to bar such suits at that time. The same is true under the Seventh Amendment to the federal Constitution. The U.S. Supreme Court has held that the Seventh Amendment’s right to a jury trial in civil cases does not apply to the federal government. So “the plaintiff has a right to a trial by jury only where that right is one of ‘the terms of [the Government’s] consent to be sued,’” which term, like the waiver of immunity itself, must be “‘unequivocally expressed.’”
The Sixth Circuit has applied this rule in a case raising a
similar issue to the one presented here. It determined that the
plaintiffs were not entitled to a jury trial on the issue whether
the defendants in a medical malpractice action were acting
within the scope of their employment. Under a federal stat-
ute, employees of specified privatе health care entities were
deemed to be federal employees if the U.S. Attorney General
certified to the court that they were acting within the scope of
their employment. If the certification was made, the plaintiffs’
action was governed by the Federal Tort Claims Act, which
did not guarantee a right to a jury trial. The court rejected
the plaintiffs’ clаim that they were entitled to jury trial on
the employment issue because Congress had the power to
[23]
See,
Bronsen v. Dawes County
, 272 Neb. 320, 722 N.W.2d 17 (2006);
Hatcher v. Bellevue Vol. Fire Dept.
See
Lehman v. Nakshian
,
determine how suits could be prosecuted against entities doing the government’s work.
[6-9] Similarly, the Legislature has the right to decide the terms under which it will waive its sovereign and governmen- tal immunity for tort actions against the State or its politi- cal subdivisions. The common-law doctrine of governmental immunity applies to a political subdivision’s employees who are acting within the scope of their employment. And because the Legislature has determined when and how it will waive the State’s sovereign and governmental immunity, we will find a waiver of such immunity only where stated by express language or clear implications. Because a jury trial is not one of the tеrms of its waiver of governmental immunity under PSTCA, a party is not entitled to a jury trial on its claim that a defendant is not a political subdivision employee.
CONCLUSION
The Court of Appeals erred in determining the Jacobsons had waived their right to a jury trial. Nevertheless, the Jacobsons did not have a right to have a jury decide whether the defendants were employees of a political subdivision. We affirm the decision of the Court of Appeals. ffirmed .
W right and c assel , JJ., not participating. See Livengood v. Nebraska State Patrol Ret. Sys. , 273 Neb. 247, 729 N.W.2d 55 (2007). Brown v. City of Omaha Compare Britton v. City of Crawford , 282 Neb. 374, 803 N.W.2d 508