Abraham v. County of Hennepin, No. CX-00-835

• Decision Date: 09 January 2001
• Docket Number: No. C7-00-1652., No. CX-00-835
• Parties: David ABRAHAM, et al., Appellants, v. COUNTY OF HENNEPIN, Respondent.
• Court: Minnesota Court of Appeals

622 N.W.2d 121

David ABRAHAM, et al., Appellants, v. COUNTY OF HENNEPIN, Respondent.

Nos. CX-00-835, C7-00-1652.

Court of Appeals of Minnesota.

January 9, 2001.

Review Granted March 13, 2001.

Leslie L. Lienemann, Bloomington, MN, (for appellants).

Amy Klobuchar, Hennepin County Attorney, Martin D. Munic, Assistant County Attorney, Minneapolis, MN, (for respondent).

Considered and decided by WILLIS, Presiding Judge, SHUMAKER, Judge, and MULALLY, Judge.¹

OPINION

SHUMAKER, Judge

Appellants sued their employer, respondent Hennepin County, for money damages under the reprisal and retaliation claim provisions of Minnesota's "Whistleblower Act" and Occupational Safety and Health Act. Ruling that the occupational safety and health act provided the exclusive remedy, the district court dismissed the whistleblower claim. The district court denied appellants' motions for a jury trial and for an amended order that would permit an interlocutory appeal. Appellants contend that these rulings were error. Appellants also challenge the district court's findings of fact as being clearly erroneous and contend that the court abused its discretion in awarding respondent the cost incurred in obtaining the trial transcript. We affirm in part, reverse in part, and remand.

FACTS

Appellants Scott Lennander and David Abraham worked in respondent Hennepin County's print shop. In February 1995, Lennander and Abraham complained to their supervisor, Theresa Schaffer, about the air quality in the shop. They claimed that the poor air quality caused them to have headaches, nausea, and difficulty breathing. A property management worker told Schaffer, Lennander, and Abraham that the shop ventilation system had been closed periodically for asbestos abatement work.

In March 1995, Abraham reported the closed ventilation system and the employee illnesses to Minnesota OSHA (MOSHA). On March 22, 1995, a MOSHA inspector made an unannounced inspection of the shop. Appellants' co-worker, Michael Fishman, claims that he saw Lennander sprinkle chemicals on the print shop carpeting during the inspector's visit. After Fishman asked what he was doing, Lennander eventually stopped. Later, Fishman saw Abraham wave a spray can in the air and heard him say, "Let's get some fumes going in here."

Fishman reported his observations to other workers, and eventually Schaffer asked Fishman about the reports. Fishman told Schaffer what he had seen and heard.

Five days after the inspection, the county suspended Lennander and Abraham. Four days later the county notified them that their employment would be terminated on April 7, 1995, because they attempted to skew the MOSHA inspection results.

Lennander and Abraham sued the county, alleging that their discharges violated the anti-reprisal provisions in MOSHA, Minn.Stat. § 182.669 (1996), the Whistleblower Act, Minn.Stat. § 181.932 (1996), and the Minnesota Human Rights Act, Minn.Stat. § 363.03, subd. 7 (1996). They also alleged defamation. The district court granted summary judgment dismissing all claims. Lennander and Abraham appealed only as to the MOSHA and whistleblower claims, and we remanded. See 1998 WL 202771.

On remand, the district court dismissed the whistleblower claim, ruling that MOSHA provided the exclusive remedy for alleged reprisals. The court denied appellants' motion for a jury trial and conducted a bench trial of the MOSHA action. The court denied appellants' motion to amend its order so as to allow an interlocutory appeal and, after a two-week trial, the court found that the county had not violated the MOSHA anti-reprisal law.

At the end of the trial, the court requested written final arguments. To prepare its argument, the county obtained the trial transcript. As part of the county's taxable costs, the court allowed the expense of the trial transcript. Lennander and Abraham appealed.

ISSUES

1. Are appellants entitled to a jury trial for either their claim under the Whistleblower Act or under MOSHA where their request for relief is limited to money damages?

2. May appellants assert, for the same conduct, a whistleblower retaliation cause of action under Minn.Stat. § 181.932 (1996), in addition to a claim of MOSHA reprisal under Minn.Stat. § 182.669 (1996)?

3. May the district court's dismissal of appellants' whistleblower retaliation claim be affirmed on alternative grounds? 4. Did the district court err in denying appellants' request for an amended order permitting appeal prior to trial?

5. Are the district court's findings of facts clearly erroneous, as unsupported by the record?

6. Did the district court err in awarding respondent the cost of the trial transcript for use in closing submissions as part of its costs and disbursements pursuant to Minn.Stat. § 549.04 (2000)?

ANALYSIS

I.

Citing the Minnesota Constitution, a rule of civil procedure, and various Minnesota appellate decisions as their authorities, appellants contend that they are entitled to a jury trial on their whistleblower and MOSHA reprisal claims. Constitutional and statutory interpretations are questions of law for the court and are subject to de novo review. See Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985)

(statutory construction is a legal question subject to de novo review); State ex rel. Mathews v. Houndersheldt, 151 Minn. 167, 170, 186 N.W. 234, 236 (1922) (rules of statutory construction apply when construing a constitutional provision).

The right to a jury trial in civil actions in Minnesota is based in the state constitution: "The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy." Minn. Const. art I, § 4.

A more particular statement of the right to a jury trial is found in the rules of civil procedure:

In actions for the recovery of money only, or of specific real or personal property, the issues of fact shall be tried by a jury, unless a jury trial is waived or a reference is ordered.

Minn. R. Civ. P. 38.01.

Appellants argue that their cases are "cases at law" for the recovery of money only, and thus qualify for jury trial. Appellants also point out that a denial of the right to a jury trial is reversible error. See Olson v. Aretz, 346 N.W.2d 178, 182 (Minn.App.1984)

(holding that where a party has a constitutional right to a jury trial, the denial of that right is reversible error).

The scope of the constitutional guarantee of a jury trial in state civil actions is ascertainable from caselaw, which distinguishes (1) actions at law from causes in equity, and (2) actions existing at the adoption of the constitution from actions created later:

The term "all cases at law" refers to common-law actions as distinguished from causes in equity and certain other proceedings. Art. 1, § 4, preserves unimpaired the right of jury trial as it existed by the laws of the territory at the time our state constitution was adopted * * *.

Breimhorst v. Beckman, 227 Minn. 409, 433, 35 N.W.2d 719, 734 (1949).

If the legislature creates a new action at law, the granting or withholding of a jury trial is a legislative prerogative:

[W]here new rights and remedies are created which were unknown at common law, the giving or withholding of a jury trial is a legislative privilege.

Id. at 434, 35 N.W.2d at 734 (citations omitted).

When a newly created action at law is a fundamentally different substitution for a previously existing common-law action for which a jury trial was available, the legislature still enjoys the privilege of granting or withholding the right of jury trial. Id. So, in Breimhorst, the supreme court held that a workers' compensation claim for money damages for personal injury did not carry a right to jury trial because, in creating such a claim, the legislature did not grant that right, even though the right existed in the preexisting common-law action for money damages. Id.

Throughout the years since Breimhorst, our courts have often considered the issue of when litigants are entitled to jury trials. For example, in Rognrud v. Zubert, 282 Minn. 430, 165 N.W.2d 244 (Minn.1969), the supreme court held that there is no right to a jury trial in an action for specific performance of a contract to convey real estate because historically such an action was equitable rather than legal. Id. at 434, 165 N.W.2d at 247. The appellants in Ewert v. City of Winthrop, 278 N.W.2d 545, 550 (Minn.1979), contended that they were entitled to a jury trial in the appeal of a municipal special assessment to the district court. The supreme court held that the right to appeal a special assessment was statutory and did not exist at common law, and that the legislature, in creating the right, did not allow a jury trial. Id. at 550-51.

The court of appeals in Olson, 346 N.W.2d at 181, held that a claim for the recovery of money alleging lawyer negligence carries a right to a jury trial. Although the court gave as the reason for its decision the principle that if a "claim is for the recovery of money, the Minnesota Constitution assures a right to a jury trial," that statement, if read outside the context of the case, does not accurately describe the constitutional right to a jury trial. Id. at 181. As discussed above, the claim must be an action at law and must have existed when the state constitution was adopted. The mere fact that a claim is solely for the recovery of money will not suffice. If that were the case, workers' compensation claims and human rights act claims, being actions for the recovery of money, would carry a constitutional entitlement to jury trial. But because these actions did not exist when the constitution was adopted, they do not carry jury trial rights.

Finally, in Tyroll v. Private Label Chems., Inc., 505 N.W.2d 54, 56-57 (Minn. 1993), the supreme court considered the right of jury trial in a subrogation action brought by a workers' compensation insurer after the injured...