NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

CASSEL, Judge.

INTRODUCTION

Judy Bruna and John Bruna appeal from an adverse jury verdict after a trial where the sole issue for the jury was whether Judy's accident occurred prior to June 9, 2005, and thus, her claim was barred by the statute of limitations. Because the record contains competent evidence to support the verdict and we find no error in the court's use of a general verdict form, we affirm.

BACKGROUND

In June 2005, Judy fell on the concrete outside of a cafe where she had gone with her coworkers, Cissie Maly and Lorree Dunker, to celebrate Maly's birthday. As a result of the fall, Judy sustained an injury.

On June 9, 2009, the Brunas filed a complaint against G & D Appel, LLC, doing business as Riley's Cafe, seeking damages as a result of Judy's fall. G & D Appel filed an answer in which it raised as an affirmative defense that the claim was barred by the statute of limitations. The district court conducted a jury trial, where the sole issue for the jury to decide was whether Judy's fall occurred prior to June 9.

The evidence included medical documents that specified different dates for the accident. A chiropractic physician testified that he treated Judy on June 10, 2005, and that she filled out forms at his office which stated that the date of injury was June 9. Thus, the chiropractor's documentation stated, "Yesterday 6/9/2005 the patient was stepping off of a slab of concrete that was just repaired and it broke." On June 13, Judy filled out an "Accident Information" form at Dr. Benjamin Martin's office and wrote that the date of the accident was June 8. A different record from Martin's office from Judy's June 13 visit shows that she verbally told the doctor's office that she fell on June 8. A registered nurse testified that when Judy visited the office on June 13, she told the nurse that the fall occurred on June 8. On October 14, Judy completed a consent for release of information form which authorized the release of "[a]ll records pertinent to accident on June 8th only." Judy further wrote that the purpose of the disclosure was "accident June 8th '05." An October medical record from a regional medical center similarly states, "Reportedly with falling episode 8 June 2005." Medical records from an October 2007 doctor visit show the date of injury as June 9, 2005. A physician assistant testified that he treated Judy in 2007 and that she told him she fell on June 9, 2005. In a record that the physician assistant completed, he used the phrase "on or about June 9." In a different record completed by Judy, she wrote that the trauma occurred on "June 8/09." A neurosurgeon testified that he treated Judy in 2007, and according to his note, Judy said that the fall occurred on June 9, 2005.

The owners of the cafe notified their insurance company that the accident occurred on June 8, 2005. Darlene Appel, one of the owners of the cafe, testified that on June 13, she received a telephone call from Judy during which Judy stated that she was going to the doctor. Appel then informed her husband that Judy had fallen on Wednesday, June 8. Appel's husband then called their insurance agent to inform him of the accident. The insurance agent's form shows the date of the occurrence as June 8.

Judy's deposition—taken on January 13, 2010—provided conflicting information. She testified, "It's the 9th because [Maly's] birthday . . . is 6/9." Later in the deposition, Judy said that she could not remember if Maly's birthday was on June 7 or 8. Judy also testified in her deposition that she, Maly, and Dunker went to the cafe the day after Maly's birthday. According to the testimony at trial, Maly's birthday is June 7. In Judy's deposition, she testified that she thought she fell in the first part of the week and that she was thinking it was on a Tuesday. However, June 9, 2005, actually fell on a Thursday.

At trial, the parties produced evidence regarding Judy's attempts to secure affidavits from Maly and Dunker regarding the date of the accident. Judy admitted that 2 weeks after her deposition, she presented Maly with an affidavit which stated that Maly would attest to the fact that Judy fell on June 9, 2005. Judy had a similar affidavit prepared for Dunker's signature. Dunker testified that she understood the purpose of the affidavit was to avoid having to appear in court. Dunker testified that she had feelings of regret after signing the affidavit prepared for her because she felt deceived and "[b]ecause it's not what [Judy] told me would be on the paper." Dunker testified that she never told Judy that Dunker knew the date that Judy fell.

The evidence at trial also addressed the witnesses' ability to accurately remember information. Dunker testified that she had noticed that Judy was having trouble with her memory. Also, Maly testified that her son asked Judy to "watch out" for Maly "[b]ecause [Maly] was losing [her] memory, don't remember things." Maly takes medication for memory loss. At trial, Maly testified that they went to the cafe on June 7, 2005. However, she also admitted testifying in her deposition that the fall happened on June 9.

During a jury instruction conference at the trial, the Brunas objected to the proposed verdict forms, claiming that they were confusing to the jury. Verdict form No. 1, for example, stated, "We, the jury, find for the defendant." The Brunas argued that the verdict form allowed the jury to take on the court's role to apply the law under Neb. Rev. Stat. § 25-221 (Reissue 2008) rather than to simply make a determination of fact. The Brunas proposed a verdict form which provided two options: (1) The accident occurred on June 8, 2005, or (2) the accident occurred on June 9. The court responded:

The jury returned a verdict in favor of G & D Appel, and the court entered a judgment in its favor. The Brunas filed a motion for new trial, which the court overruled.

The Brunas timely appeal. Pursuant to authority granted to this court under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument.

ASSIGNMENTS OF ERROR

The Brunas assign two errors. First, they claim that the court erred in failing to grant their motion for a new trial because the jury's verdict was not sustained by sufficient evidence. Second, they allege that the district court erred in failing to use the jury verdict form they proposed relative to the jury's duties in a statute of limitations case. Although the second assignment used the words "jury instruction" rather than "verdict form," its citation to the record pointed to the Brunas' proposed verdict form and the argument in their brief discussed the form. Thus, we have restated the assignment accordingly.

STANDARD OF REVIEW

A jury verdict will not be set aside unless clearly wrong, and it is sufficient if any competent evidence is presented to the jury upon which it could find for the successful party. Orduna v. Total Constr. Servs., 271 Neb. 557, 713 N.W.2d 471 (2006).

The submission of special findings rests within the discretion of the trial court, and unless the record shows an abuse of that discretion, the trial court's decision should stand. Gustafson v. Burlington Northern RR. Co., 252 Neb. 226, 561 N.W.2d 212 (1997). Whether a jury instruction is correct is a question of law, which an appellate court independently decides. Robinson v. Dustrol, Inc., 281 Neb. 45, 793 N.W.2d 338 (2011).

ANALYSIS

Sufficiency of Evidence.

In arguing that there was insufficient evidence to sustain the jury's verdict, the Brunas essentially ask us to reweigh the evidence. But it is for the jury, as trier of the facts, to resolve conflicts in the evidence and to determine the weight and credibility to be given to the testimony of the witnesses. Orduna v. Total Constr. Servs., supra. Here, the jury resolved the conflicts in the evidence in favor of G & D Appel.

There is competent evidence to support the jury's verdict. In determining the sufficiency of the evidence to sustain a verdict in a civil case, an appellate court considers the evidence most favorably to the successful party and resolves evidential conflicts in favor of such party, who is entitled to every reasonable inference deducible from the evidence. Id. The evidence shows that on June 13, 2005, Judy completed a form for her doctor which stated that the accident occurred on June 8 and that she told a nurse that the fall occurred on June 8. On October 14, Judy filled out a release of information form and twice identified June 8 as the date of the accident. An October record from the regional medical center also shows that the "episode" occurred on June 8. Finally, on June 13, the owners of the cafe informed their insurance agent that the accident occurred on June 8. This evidence is sufficient to support the jury's verdict. This assignment of error lacks merit.

Verdict Form.

The Brunas also take issue with the general verdict form used by the court. They argue that the general verdict form violated § 25-221 by allowing the jury to decide an issue of law. Section 25-221 specifies, in pertinent part, "Issues of fact raised by the statute of limitations shall be tried before a jury. . . . Issues of law raised by the statute of limitations shall be determined by the court without a jury."

Jury instructions do not constitute prejudicial error if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and evidence. Malchow v. Doyle, 275 Neb. 530, 748 N.W.2d 28 (2008).

It has long been the law that the use of a general verdict form rather than a special verdict form is a matter entrusted to the district court's discretion. See, Buel v. Chicago, R. I. & P. R. Co., 81 Neb. 430, 116 N.W. 299 (1908); American Fire Ins. Co. v. Landfare, 56 Neb. 482, 76 N.W. 1068 (1898); Reed v. McRill, 41 Neb. 206, 59 N.W. 775 (1894). We find no abuse of discretion in the court's decision to utilize a general verdict form rather than a special verdict form.

We also find no error in the specific content of the verdict form used by the court, viewed in the context of the entire set of jury instructions. The verdict form, considered together with instruction No. 6, properly limited the jury's role to making a finding of fact. Instruction No. 6 states in part that "[t]he only issue for you to decide in this trial is whether Judy Bruna's fall and injury occurred prior to June 9, 2005"; that "[i]f the defendant has not met this burden of proof, then your verdict must be for the plaintiffs"; and that "[o]n the other hand, if the defendant has met this burden of proof, then your verdict must be for the defendant." Of course, as G & D Appel raised the bar of the statute of limitations as an affirmative defense, it had the burden of proof. See Broekemeier Ford v. Clatanoff, 240 Neb. 265, 481 N.W.2d 416 (1992) (stating that if petition, on its face, does not disclose that action is barred by statute of limitations, defendant must plead statute of limitations as affirmative defense and has burden to prove that affirmative defense). Read as a whole, the instructions and verdict forms correctly stated the law and were not misleading. The Brunas' second assignment of error also lacks merit.

CONCLUSION

We conclude that the jury's verdict was not clearly wrong and was supported by competent evidence. Further, we find no error in the court's use of a general verdict form in light of the specific instruction limiting its task to determining a question of fact and directing the jury to render a verdict accordingly. We affirm the judgment of the district court.

AFFIRMED.