Jacobson v. Shresta ( 2014 )

Nebraska Advance Sheets
JACOBSON v. SHRESTA 615
Cite as 288 Neb. 615
[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. Ct. 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.
Affirmed.
Michael L. Jacobson, Special Administrator of the
Estate of Virginia A. Jacobson, deceased, and Myron J.
Jacobson, appellants, v. Sherry K. Shresta, M.D.,
and Gaston Cornu-Labat, 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 Neb. Const. art. I, § 6, preserves the right to a
jury trial as it existed under the common law when the Nebraska Constitution was
adopted in 1875.
3. Negligence: Jury Trials. Negligence and personal injury actions are actions at
law that are tried by a jury under the common law.
4. Constitutional Law: Jury Trials: Waiver. A waiver of a jury trial in district
court is statutorily governed by Neb. Rev. Stat. § 25-1126 (Reissue 2008),
because it sets reasonable limits on a constitutional right.
5. Jury Trials: Waiver. In district court, a party’s waiver of a jury trial occurs
only if a court determines that one of three circumstances under Neb. Rev. Stat.
§ 25-1126 (Reissue 2008) applies.
6. Immunity: Legislature: Waiver: Political Subdivisions: Torts. The
Legislature has the right to decide the terms under which it will waive its sov-
ereign and governmental immunity for tort actions against the State or its politi-
cal subdivisions.
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7. Immunity: Political Subdivisions: Public Officers and Employees. The
c
­ ommon-law doctrine of governmental immunity applies to a political subdivi-
sion’s employees who are acting within the scope of their employment.
8. Immunity: Legislature: Waiver: Appeal and Error. Because the Legislature
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,
Sievers, Pirtle, and Riedmann, Judges, on appeal thereto from
the District Court for Sheridan County, Randall L. Lippstreu,
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.
Heavican, C.J., Connolly, Stephan, McCormack, and
Miller-Lerman, JJ.
Connolly, 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 defendants in the district court for
Sheridan County.
Nebraska Advance Sheets
JACOBSON v. SHRESTA 617
Cite as 288 Neb. 615
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).1 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.2 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
jury decide 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
Neb. Rev. Stat. § 25-221 (Reissue 2008), they were entitled to
a jury trial on the employment issue. The district court over-
ruled that objection without comment from the bench.
In rejecting the Jacobsons’ 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 Neb. Rev. Stat. § 13-920(1) (Reissue 2012).
2
Jacobson v. Shresta, 21 Neb. Ct. App. 102, 838 N.W.2d 19 (2013).
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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-
tion 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 errors. . . .
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.3
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.4
3
Jacobson, supra note 2, 21 Neb. Ct. App. at 113, 838 N.W.2d at 30-31.
4
ML Manager v. Jensen, 287 Neb. 171, 842 N.W.2d 566 (2014).
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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 statutorily required to be tried
to a court if they had commenced an action against the hos-
pital under the PSTCA.5 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 applied.
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.
Right to a Jury Trial and
Waiver of the Right
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] Neb. Const. art. I, § 6, provides the constitutional right
to a jury trial:
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.6 But we have also held that
this constitutional provision preserves the right to a jury
5
See Neb. Rev. Stat. § 13-907 (Reissue 2012).
6
See, State v. Kennedy, 224 Neb. 164, 396 N.W.2d 722 (1986); State ex rel.
Simpson v. Vondrasek, 203 Neb. 693, 279 N.W.2d 860 (1979).
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trial as it existed under the common law when the Nebraska
Constitution was adopted in 1875.7 Negligence and personal
injury actions are actions at law.8 At common law, legal
claims were tried by a jury and equitable claims were tried
by a court.9
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. Neb. Rev. Stat. § 25-1104 (Reissue
2008) provides:
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.)
Neb. Rev. Stat. § 25-1129 (Reissue 2008) allows a court to
refer a matter to a referee with written consent of the parties,
and that statute is not at issue here. Section 25-1104 requires a
jury trial on issues of fact unless waived.
Neb. Rev. Stat. § 25-1126 (Reissue 2008) governs the cir-
cumstances in which a court may find that a party has waived
the right to a jury trial:
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 party 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, 272 Neb. 462, 723 N.W.2d 60 (2006).
8
See, e.g., Doe v. Golnick, 251 Neb. 184, 556 N.W.2d 20 (1996); Starlin v.
Burlington Northern, Inc., 193 Neb. 619, 228 N.W.2d 597 (1975).
9
Eihusen, supra note 7. See, also, Storm v. Christenson, 130 Neb. 86, 263
N.W. 896 (1936).
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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 Neb. Rev. Stat. § 25-2705
(Reissue 2008). In county court, § 25-2705 requires a demand
for a jury trial. If a party makes a timely demand, the trial court
has no discretion not to grant the request.10 But unless a party
makes a demand in county court, the statutory right to a jury
trial is waived.11 The only exception to the demand requirement
in county court is for misdemeanor cases that carry the possi-
bility of serious punishment.12
But there is no comparable statutory demand requirement
for proceedings in district courts. Instead, § 25-1126, which
was enacted in 1867, seems obviously intended to set reason-
able limits on the constitutional guarantee of a jury trial. But
despite § 25-1126’s clear specification of the manners in which
a waiver occurs, our case law is not always clear whether a
party can waive a jury trial by failing to demand one. We con-
sider the issue important because it is relevant to whether a
party can waive a jury trial by silence. There are only a handful
of cases deciding this issue, however, and those cases have not
discussed § 25-1126 or its precursors.
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, 226 Neb. 576, 412 N.W.2d 849 (1987).
12
See, State v. Wiltshire, 241 Neb. 817, 491 N.W.2d 324 (1992), overruled
on other grounds, State v. Louthan, 257 Neb. 174, 595 N.W.2d 917 (1999);
State v. Bishop, 224 Neb. 522, 399 N.W.2d 271 (1987).
13
See MFA Ins. Companies v. Mendelhall, 205 Neb. 430, 288 N.W.2d 270
(1980).
14
See, In re Estate of Bose, 136 Neb. 156, 285 N.W. 319 (1939); Segear v.
Westcott, 83 Neb. 515, 120 N.W. 170 (1909).
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is now § 25-1126(3) (waiver “by oral consent in open court
entered on the journal”).
Some of the cases we decided in the early 1900’s could
be interpreted as finding a waiver if a party failed to demand
a jury trial.15 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.16 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.17
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,18 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
equity 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, 45 Neb. 415, 63 N.W. 789 (1895).
16
See McKinney v. County of Cass, 180 Neb. 685, 144 N.W.2d 416 (1966).
17
See Schumacher v. Crane-Churchill Co., 66 Neb. 440, 92 N.W. 609
(1902).
18
Lett v. Hammond, 59 Neb. 339, 80 N.W. 1042 (1899).
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been denied a jury trial, could demand it on whatever docket
the case appeared.”19
[4] Although we did not discuss § 25-1126 in deciding most
of our waiver cases, a waiver of a jury trial in district court is
statutorily governed by § 25-1126, because it sets reasonable
limits on a constitutional right. And § 25-1126 provides an
exclusive list of the manners in which a waiver occurs. The
legal principle of expressio unius est exclusio alterius (the
expression of one thing is the exclusion of the others) recog-
nizes the general principle of statutory construction that an
expressed object of a statute’s operation excludes the statute’s
operation on all other objects unmentioned by the statute.20
Notably, California courts hold that a waiver of a jury trial
should not be implied where a statute provides an exclusive list
of recognized waivers.21
[5] Under a rule of exclusivity, unless a party’s conduct
falls into one of § 25-1126’s three categories, we will not find
a waiver of a constitutional right. Cases in which the parties
tried issues of fact to the court without objection or asked for
a directed verdict should be construed as falling into the “oral
consent” category of waivers.22 Such conduct is inconsistent
with demanding a jury trial, and the trial court’s judgment
operates as its assent to the procedure. In contrast, merely fail-
ing to object, before trial, to a defendant’s request for a bench
trial on a bifurcated affirmative defense cannot be oral consent
in open court to waive a jury trial. In sum, in district court, a
party’s waiver of a jury trial occurs only if a court determines
that one of three circumstances under § 25-1126 applies.
Because none of those circumstances apply here, the Court of
Appeals erred in holding the Jacobsons had waived their right
to a jury.
19
Id. at 342, 80 N.W. at 1043.
20
Pfizer v. Lancaster Cty. Bd. of Equal., 260 Neb. 265, 616 N.W.2d 326
(2000).
21
See, e.g., Cohill v. Nationwide Auto Service, 16 Cal. App. 4th 696, 19 Cal.
Rptr. 2d 924 (1993).
22
See § 25-1126(3).
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We next consider whether the Jacobsons had a right to have
a jury decide if the defendants were governmental employees.
The Jacobsons Did Not Have a Right to a
Jury Trial to Determine Whether the
Defendants Were Employees of
a Political Subdivision
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.23 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.24
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.’”25
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.26 Under a federal stat-
ute, employees of specified private 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’ claim 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., 262 Neb. 23, 628 N.W.2d 685 (2001).
24
See Lehman v. Nakshian, 453 U.S. 156, 101 S. Ct. 2698, 69 L. Ed. 2d 548
(1981).
25
Id., 453 U.S. at 160.
26
See Wilson v. Big Sandy Health Care, Inc., 576 F.3d 329 (6th Cir. 2009).
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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.27 The common-law doctrine of governmental
immunity applies to a political subdivision’s employees who
are acting within the scope of their employment.28 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.29 Because a jury trial is not one
of the terms 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.
Affirmed.
Wright and Cassel, JJ., not participating.
27
See Livengood v. Nebraska State Patrol Ret. Sys., 273 Neb. 247, 729
N.W.2d 55 (2007).
28
Brown v. City of Omaha, 183 Neb. 430, 160 N.W.2d 805 (1968).
29
Compare Britton v. City of Crawford, 282 Neb. 374, 803 N.W.2d 508
(2011).