First Western Bank of Minot v. Wickman, 920253

• Decision Date: 28 May 1993
• Docket Number: No. 920253,920253
• Citation: 500 N.W.2d 896
• Parties: FIRST WESTERN BANK OF MINOT, Plaintiff and Appellee, v. Gerald WICKMAN, Defendant and Appellant, and Alice Wickman, Third Party Plaintiff and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 896

500 N.W.2d 896

FIRST WESTERN BANK OF MINOT, Plaintiff and Appellee, v. Gerald WICKMAN, Defendant and Appellant, and Alice Wickman, Third Party Plaintiff and Appellant.

Civ. No. 920253.

Supreme Court of North Dakota.

May 28, 1993.

Michael S. McIntee of McIntee Law Firm, Towner, for defendant and appellant.

Richard P. Olson of Olson, Burns and Lee, Minot, for plaintiff and appellee.

LEVINE, Justice.

Gerald Wickman and Alice Wickman (Wickmans) appeal from a judgment entered after a bench trial dismissing their counterclaim against First Western Bank for fraud and misappropriation.

The dispositive issue on appeal is whether the trial court wrongfully accepted Wickmans' counsel's waiver of jury trial. ¹ We conclude that it did and we reverse and remand for jury trial.

The Wickmans timely demanded a jury trial on their counterclaim. The trial court denied First Western's pretrial motion to strike the jury trial and again denied First Western's renewal of that motion at the pretrial conference. The trial court determined that the Wickmans were entitled to a jury trial on the legal issues raised by their counterclaim. The court noted, however, that: "If the [Wickmans] want to waive their right to a jury trial, I'd be more than happy to accept that waiver, and deal with the matter as a bench trial. But, I don't think [they] are going to offer us a waiver ... at this point...." Wickmans' counsel responded that he had unavailingly recommended a bench trial to his clients on two prior occasions and would try again after the pretrial conference.

As the pretrial conference neared completion, however, counsel for the parties further discussed the matter off the record in chambers. Following counsel's discussion, and back on the record, the court announced that "counsel have told me that they will stipulate to a bench trial ... if the court will grant a continuance of at least thirty days." ² The bench trial was scheduled accordingly and, subsequently, was conducted without objection.

One of the problems with this case is the error committed when counsel for the Wickmans waived Wickmans' demand for a jury trial without Wickmans' consent. That error was compounded when the trial court, knowing Wickmans had not consented, accepted counsel's stipulation waiving Wickmans' demand for a jury trial. Rule 38(e), N.D.R.Civ.P., says, in part, that "[a] demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties." Rule 39(a), N.D.R.Civ.P., says, in part, that "[w]hen trial by jury has been demanded as provided in Rule 38," it shall be so conducted, unless "the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury...." Under these rules, an attorney may waive a client's right to a jury trial only with the client's consent. Here, the Wickmans' demand for a civil jury trial was withdrawn by their attorney, which is permissible under Rule 39(a), N.D.R.Civ.P. It is clear, however, that the Wickmans did not consent to the waiver, which they must do under Rule 38(e), N.D.R.Civ.P. Reading the two rules together, we conclude that an attorney may withdraw a client's demand for a jury trial, without the actual appearance of the client or the submission of his or her signed statement, only if the attorney is expressly authorized by the client to do so. ³ See Graves v. P.J. Taggares Co., 94 Wash.2d 298, 616 P.2d 1223 (1980). Cf., e.g., Midwest Federal Savings Bank v. Dickinson Econo-Storage, 450 N.W.2d 418, 421 (N.D.1990) ["without the consent of the client, an attorney may not waive his or her client's substantial rights"]. Here, the trial court knew that Wickmans' counsel was without authority, either express or apparent, to waive jury trial. Accordingly, the Wickmans' demand for a jury trial was not properly withdrawn.

However, the Wickmans and their counsel not only appeared and participated in the bench trial that was subsequently conducted, but also failed to object to that proceeding or to renew their demand for a jury trial. In Keller v. Darling, 298 N.W.2d 789 (N.D.1980), counsel for Darling filed a motion for a jury trial upon receiving notice that Darling's lawsuit, originally scheduled for trial by jury, had been rescheduled as a bench trial. Counsel, however, failed to appear at the hearing on the motion and the motion was denied. At the bench trial, counsel for Darling failed to object or to reassert his clients' right to a jury trial. We held that "it was proper for the trial to proceed without a jury," stating further that "[a]ctions or conduct inconsistent with a party's demand for a jury trial may waive that right." Id. at 791. ⁴ Similarly in Udgaard v. Schindler, 31 N.W.2d 776, 780 (N.D.1948), this court held that actions may constitute a waiver of the right to a jury trial, reasoning that:

"The record shows that the trial judge set the case for trial without a jury and that the defendants went to trial without objection or demand for a jury trial. They raised the question for the first time, upon a motion for a new trial. Certainly, the defendants could not voluntarily submit the issues of a case to a court without a jury and hold in reserve their claim of a right to a jury trial in the event the decision should go against them."

Keller and Udgaard are distinguishable. In Keller and Udgaard, it does not appear that either trial judge had actual knowledge that the prior waiver was unauthorized. It is unreasonable, we believe, to require a litigant to voice an objection to a bench proceeding when his or her attorney has wrongfully waived jury trial in the first place and the trial court has wrongfully accepted that waiver. A primary purpose of an objection is to disclose to the trial court the existence of error. It is unjustifiable to insist upon a litigant's objection to disclose an unauthorized waiver of jury trial, when the record unambiguously tells us that the trial court, in fact, had actual knowledge that the waiver was made without the consent of the parties on whose behalf the attorney purported to act. To...