C.r.c.p. 38
C.r.c.p. 38
Recent Annotations Deadline for jury fee may not be extended under C.R.C.P. 6(b) because the deadlines are set forth in statute. Defendant who failed to pay jury fee waived his right to a jury trial. Premier Members Fed. Credit Union v. Block, 2013 COA 128, 312 P.3d 276. There is no right to a jury trial under the Colorado Consumer Protection Act. People v. Shifrin, 2014 COA 14, __ P.3d __ [published February 27, 2014]. Annotation I. General Consideration. Law reviews. For article, "Trials: Rules 38-53 ", see 23 Rocky Mt. L. Rev. 571 (1951). For article, "One Year Review of Civil Procedure and Appeals", see 37 Dicta 21 (1960). For article, "One Year Review of Civil Procedure and Appeals", see 38 Dicta 133 (1961). For article, "One Year Review of Civil Procedure and Appeals", see 39 Dicta 133 (1962). For article, "One Year Review of Contracts", see 39 Dicta 161 (1962). For note, "One Year Review of Colorado Law-1964", see 42 Den. L. Ctr. J. 140 (1965). For article, "Will Contests-Some Procedural Aspects", see 15 Colo. Law. 787 (1986). For article, "Right to a Civil Jury Trial: State Versus Federal Court", see 17 Colo. Law. 39 (1988). Applied in Shively v. Bd. of County Comm'rs, 159 Colo. 353, 411 P.2d 782 (1966); Shuman v. Tuxhorn, 29 Colo. App. 152, 481 P.2d 741 (1971); Gleason v. Guzman, 623 P.2d 378 (Colo. 1981); Nat'l Acceptance Co. of Am. v. Mars, 780 P.2d 59 (Colo. App. 1989). II. Where Jury Right Exists. A. In General. Law reviews. For article, "One Year Review of Domestic Relations", see 39 Dicta 102 (1962). Annotator's note. Since section (a) of this rule is similar to § 191 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. Under the Colorado constitution, trial by a jury in a civil action is not a matter of right. Parker v. Plympton, 85 Colo. 87, 273 P. 1030 (1928); Kahm v. People, 83 Colo. 300, 264 P. 718 (1928); Gibson v. Angros, 30 Colo. App. 95, 491 P.2d 87 (1971); Continental Title Co. v. District Court, 645 P.2d 1310 (Colo. 1982). There is no constitutional right to a trial by jury in civil actions. Johnson v. Neel, 123 Colo. 377, 229 P.2d 939 (1951); Federal Lumber Co. v. Wheeler, 643 P.2d 31 (Colo. 1981); Kaitz v. District Court, 650 P.2d 553 (Colo. 1982); Snow Basin, Ltd. v. Boettcher & Co., 805 P.2d 1151 (Colo. App. 1990); First Nat. Bank of Meeker v. Theos, 794 P.2d 1055 (Colo. App. 1990). The right to jury trials in civil cases is regulated by this rule. Gibson v. Angros, 30 Colo. App. 95, 491 P.2d 87 (1971). Where an action is purely legal in nature, the parties are entitled to a jury trial. Miller v. Carnation Co., 33 Colo. App. 62, 516 P.2d 661 (1973); Zimmerman v. Mozer, 10 Bankr. 1002 (Bankr. D. Colo. 1981 ). No other rule of civil procedure enlarges the category of cases in which the right to jury trial shall be had. Miller v. District Court, 154 Colo. 125, 388 P.2d 763 (1964). This rule itself does not enlarge upon the right to jury trial as those rights were fixed by the former code provisions and the judicial pronouncements thereunder. Miller v. District Court, 154 Colo. 125, 388 P.2d 763 (1964). Law-equity distinction survives for determination of right to jury. Although law and equity have been merged under the Colorado rules of civil procedure, the law-equity distinction continues to survive for the purpose of determining whether there is a right to a jury trial in a civil action. Kaitz v. District Court, 650 P.2d 553 (Colo. 1982). Issue of fact must be tried to jury upon demand. Although there is no constitutional right to a jury trial in civil cases in Colorado, an issue of fact must be tried to a jury upon demand in an action for personal injuries. Gleason v. Guzman, 623 P.2d 378 (Colo. 1981). Generally in purely equitable cases, the trial must be to the court. Sieber v. Frink, 7 Colo. 148, 2 P. 901 (1883); Dohner v. Union Cent. Life Ins. Co., 109 Colo. 35, 121 P.2d 661 (1942). When the action is an equitable proceeding, the issues joined are to be tried by the court. Federal Lumber Co. v. Wheeler, 643 P.2d 31 (Colo. 1981). Equity claims are triable by the court and not by jury. Claims sounding in equity are triable by the court and not by a jury. Worchester v. State Farm Mut. Auto. Ins. Co., 172 Colo. 352, 473 P.2d 711 (1970); Faucett v. Hamill, 815 P.2d 989 (Colo. App. 1991). In equity cases, neither party is entitled to a jury trial as a matter of right. Selfridge v. Leonard-Heffner Co., 51 Colo. 314, 117 P. 158 (1911). There is no right to a jury trial in actions which historically were brought before courts of equity. Kaitz v. District Court, 650 P.2d 553 (Colo. 1982); Difede v. Mountain States Tel. & Tel., 763 P. 2d 298 (Colo. App. 1988), rev'd on other grounds, 780 P.2d 533 (Colo. 1989). The right to trial by jury is guaranteed only in actions at law specifically named in section (a). Setchell v. Dellacroce, 169 Colo. 212, 454 P.2d 804 (1969); Gibson v. Angros, 30 Colo. App. 95, 491 P.2d 87 (1971). Whether an issue of fact must be tried to a jury depends upon the character of the action in which the issue is joined. Setchell v. Dellacroce, 169 Colo. 212, 454 P.2d 804 (1969); Gibson v. Angros, 30 Colo. App. 95, 491 P.2d 87 (1971); Miller v. Carnation Co., 33 Colo. App. 62, 516 P.2d 661 (1973); Zimmerman v. Mozer, 10 Bankr. 1002 (Bankr. D. Colo. 1981 ). The character of the action determines whether an issue of fact is to be tried to a court or to a jury. Kaitz v. District Court, 650 P.2d 553 (Colo. 1982); Snow Basin Ltd. v. Boettcher & Co., 805 P.2d 1151 (Colo. App. 1990). Where there were no disputed facts with respect to the plaintiff's forcible entry and detainer claim, and the factual issues to be tried related only to equitable defenses asserted by the defendant, no jury was required. RTV, L.L.C. v. Grandote Int'l Ltd., 937 P.2d 768 (Colo. App. 1996). It is the nature of the relief sought or defense asserted, not the nature of the factual issues presented, that determines whether the right to a jury exists. RTV, L.L.C. v. Grandote Int'l Ltd., 937 P.2d 768 (Colo. App. 1996). Nature of issue does not determine trial by jury. The right to have an issue of fact tried by a jury is not determined by the nature of the issue. Danielson v. Gude, 11 Colo. 87, 17 P. 283 (1887); United Coal Co. v. Canon City Coal Co., 24 Colo. 116, 48 P. 1045 (1897); Cree v. Lewis, 49 Colo. 186, 112 P. 326 (1910). "Basic thrust" doctrine involves a determination of whether a lawsuit, characterized as a whole, will be entitled to a jury under this rule, rather than applying the rule at the outset to each issue within the case. Zimmerman v. Mozer, 10 Bankr. 1002 (Bankr. D. Colo. 1981 ). The original complaint filed in an action fixes the nature of the suit, by what arm of the court it should be tried, and whether either party is entitled to a jury trial. Miller v. District Court, 154 Colo. 125, 388 P.2d 763 (1964). The complaint fixes the nature of a suit. Miller v. Carnation Co., 33 Colo. App. 62, 516 P.2d 661 (1973); Zimmerman v. Mozer, 10 Bankr. 1002 (Bankr. D. Colo. 1981 ). Where the original petition and the third-party complaint states actions sounding in equity, it is proper to deny the third-party respondent's jury demand. In re Malone v. Colo. Nat'l Bank, 658 P.2d 284 (Colo. App. 1982). It is the character of the complaint, rather than that of any counterclaims or defenses subsequently asserted, that fixes the nature of the suit and determines whether it should be tried in equity or at law. First Nat. Bank of Meeker v. Theos, 794 P.2d 1055 (Colo. App. 1990). A cross-complaint may present issues properly triable to a jury. Miller v. District Court, 154 Colo. 125, 388 P.2d 763 (1964). There is no material difference between this rule and the provision of the former Code of Civil Procedure on the subject of compulsory counterclaims to justify abandonment of the rule limiting the right to a jury. Miller v. District Court, 154 Colo. 125, 388 P.2d 763 (1964). Where legal and equitable claims are joined in a complaint, the court must determine whether the basic thrust of the action is equitable or legal in nature. Miller v. Carnation Co., 33 Colo. App. 62, 516 P.2d 661 (1973); Zimmerman v. Mozer, 10 Bankr. 1002 (Bankr. D. Colo. 1981 ); Motz v. Jammaron, 676 P.2d 1211 (Colo. App. 1983), cert. dismissed, 680 P.2d 238 (Colo. 1984); First Nat. Bank of Meeker v. Theos, 794 P.2d 1055 (Colo. App. 1990); Zick v. Krob, 872 P.2d 1290 (Colo. App. 1993). Where plaintiff demands damages only in the event that equitable relief is impossible, he is not entitled as a matter of law to demand a jury. Setchell v. Dellacroce, 169 Colo. 212, 454 P.2d 804 (1969). Until the plaintiff amends his complaint to strip him of his initial demand for equitable relief, he must be held to be pressing for that relief, in which case he is not entitled to demand jury trial. Setchell v. Dellacroce, 169 Colo. 212, 454 P.2d 804 (1969). If a third-party defendant makes a timely demand for a jury trial, the third-party defendant would be entitled to a jury trial on the issues raised between him and the defendant, although not on those issues between the defendant and the plaintiff. Simpson v. Digiallonardo, 29 Colo. App. 556, 488 P.2d 208 (1971). Where a third-party defendant properly demands a jury trial on issues raised by the parties concerning a matter clearly within the scope of this rule, it is error not to have its liability under the third-party complaint determined by a jury, and the fact that the other parties do not desire a jury trial is of no moment. Simpson v. Digiallonardo, 29 Colo. App. 556, 488 P.2d 208 (1971). Either party on appeal from a county court to a district court should be entitled to a jury trial in the district court in actions set forth in this rule. Rupp v. Cool, 147 Colo. 18, 362 P.2d 396 (1961). B. Application of Right. Where plaintiffs seek damages and subsequent injunctive relief, there is a right to a jury trial on the legal issues. Miller v. Carnation Co., 33 Colo. App. 62, 516 P.2d 661 (1973). Where plaintiffs pray primarily for equitable relief, and only in the alternative for a remedy at law, the character of the suit is equitable, and plaintiffs therefore are not entitled to a jury trial. Miller v. Carnation Co., 33 Colo. App. 62, 516 P.2d 661 (1973). Trial court's characterization of an action as equitable was not contrary to law where the primary remedy sought resembled that afforded in actions for partition and where there were also claims for an accounting and for unjust enrichment, all of which are equitable claims. Zick v. Krob, 872 P.2d 1290 (Colo. App. 1993). A suit for specific performance is an equitable action, and being such, it is triable to the court without a jury. Plains Iron Works Co. v. Haggott, 72 Colo. 228, 210 P. 696 (1922). Suit for specific performance is not "for the recovery of specific personal property". While the recovery of specific personal property may result from the successful prosecution of a suit for specific performance of a contract to transfer such personal property, the suit, nevertheless, is not one "for the recovery of specific personal property" within the meaning of this section. Plains Iron Works Co. v. Haggott, 72 Colo. 228, 210 P. 696 (1922). Similarly, the fact that the equitable relief sought would require the conveyance of land does not bring the case within that portion of this rule requiring a jury trial in actions for the recovery of specific real property, inasmuch as that portion deals only with actions at law for the recovery of real property. Setchell v. Dellacroce, 169 Colo. 212, 454 P.2d 804 (1969). The foreclosure of a mortgage is an equitable proceeding, and the issues joined are to be tried by the court. Neikirk v. Boulder Nat'l Bank, 53 Colo. 350, 127 P. 137 (1912); Miller v. District Court, 154 Colo. 125, 388 P.2d 763 (1964). Actions seeking judicial foreclosure of liens have traditionally been considered equitable proceedings. Although such actions typically involve determinations of the existence and amount of indebtedness, and although any ensuing foreclosure decree typically includes a personal monetary award against the debtor founded in contract, the basic thrust of foreclosure proceedings has nevertheless been held to be equitable. First Nat. Bank of Meeker v. Theos, 794 P.2d 1055 (Colo. App. 1990). Where the relief sought is an injunction, the action is therefore equitable in nature, and a defendant has no right to a jury trial. Gibson v. Angros, 30 Colo. App. 95, 491 P.2d 87 (1971). Attachment and garnishment proceedings submitted to court. The remedies of attachment and garnishment were unknown at common law and exist only by reason of statute or rules of procedure enacted pursuant to statutory authority, and it is not error to submit fact issues in a garnishment proceeding to the court rather than to a jury. Worchester v. State Farm Mut. Auto. Ins. Co., 172 Colo. 352, 473 P.2d 711 (1970). Right to jury in replevin action. A replevin action is an action at law and traditionally carries with it the right to a jury trial. Zimmerman v. Mozer, 10 Bankr. 1002 (Bankr. D. Colo. 1981 ). Defendant entitled to jury trial where plaintiff's claims for relief, including replevin, conversion, theft, and fraud, are all traditionally triable to a jury. Citicorp Acceptance Co., Inc., v. Sittner, 772 P.2d 655 (Colo. App. 1989). The Colorado Supreme Court denied certiorari in the case annotated under this catchline in the 1990 replacement volume. See Citicorp Acceptance Co., Inc. v. Sittner, 783 P.2d 838 (Colo. 1989). The fact that an action is for a declaratory judgment is not, in and of itself, determinative of the type of action brought for purposes of determining whether there is a right to a trial by jury. Zick v. Krob, 872 P.2d 1290 (Colo. App. 1993). If the issue of fact involves a trust, it is triable to the court. Cree v. Lewis, 49 Colo. 186, 112 P. 326 (1910). There is no right to jury trial in action to declare trust invalid. The right to jury trial granted by section (a) does not extend to actions to declare a trust invalid. Ayres v. King, 665 P.2d 594 (Colo. 1983). Actions by beneficiary or ward against trustee or guardian in an existing trust or guardianship are generally, but not always, equitable in nature. Kaitz v. District Court, 650 P.2d 553 (Colo. 1982). Where fraud in both the execution and the inducement is available as a defense in an action at law, then under this rule, the defendant is entitled to have this issue go to the jury in an action on a note. Atkinson v. Englewood State Bank, 141 Colo. 436, 348 P.2d 702 (1960). The fact that plaintiff asks for a money judgment is by no means decisive that the action is one at law. Cree v. Lewis, 49 Colo. 186, 112 P. 326 (1910). This rule does not prescribe a jury trial in an annulment proceeding as a matter of right. Young v. Colo. Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961). There is no right to jury trial in action to set aside fraudulent transfer. An action to set aside a fraudulent transfer is traditionally equitable and thus carries with it no right to a jury trial. Zimmerman v. Mozer, 10 Bankr. 1002 (Bankr. D. Colo. 1981 ). In litigation involving statutorily required uninsured motorist coverage, a tort claim against the uninsured motorist is distinct from the insured motorist's contract claim against his or her insurer. In the former case, where the uninsured motorist's liability has been determined by default, public policy precludes the insurer from insisting upon a jury trial although in some respects the insurer may be considered a codefendant. In the latter case, however, the amount of damages payable under the contract is an issue on which the insurer may demand a jury trial. State Farm Mut. Ins. Co. v. Brekke, 105 P.3d 177 (Colo. 2004). There is no right to a jury trial in a mechanic's lien case. Federal Lumber Co. v. Wheeler, 643 P.2d 31 (Colo. 1981). The air pollution control act contains no provision for trial by a jury or for penalty assessment by a jury. Lloyd A. Fry Roofing Co. v. State Dept. of Health Air Pollution Variance Bd., 191 Colo. 463, 553 P.2d 800 (1976). There is not jury trial provision in action for repossession of collateral by secured party. Although this rule provides that a party is entitled to a jury trial upon demand in an action for the recovery of specific real or personal property, the rule is not intended to extend to actions involving the repossession of collateral by a secured party. Western Nat'l Bank v. ABC Drilling Co., 42 Colo. App. 407, 599 P.2d 942 (1979). III. Demand. Upon compliance with this rule a party, to an action may have a jury trial as a matter of right. Jaynes v. Marrow, 144 Colo. 138, 355 P.2d 529 (1960). Right to jury trial, once proper demand is made and fee is paid, may be lost only for reasons stated in C.R.C.P. 39(a). The trial court, in an action for payment of medical benefits, erred in denying the insured a jury trial on the basis that the insured failed to file jury instructions in accordance with C.R.C.P. 121. Neither C.R.C.P. 39(a) nor C.R.C.P. 121 includes a waiver provision on such basis. Whaley v. Keystone, 811 P.2d 404 (Colo. App. 1989). This rule does not specifically cover the time within which demand for jury trial should be made in cases appealed from a county court to a district court. Rupp v. Cool, 147 Colo. 18, 362 P.2d 396 (1961). If the demand for a jury trial in cases appealed from county court is made within a reasonable time prior to trial, and the trial court, under C.R.C.P. 40, is afforded an opportunity to arrange its trial calendar in an expeditious manner, the request for jury trial should be granted. Rupp v. Cool, 147 Colo. 18, 362 P.2d 396 (1961). IV. Waiver. Law reviews. For note, "Does a Motion for a Directed Verdict by Both Parties Constitute a Waiver of the Jury?", see 3 Rocky Mt. L. Rev. 67 (1930). For article, "Selection of a Jury in a Civil Case", see 33 Dicta 179 (1956). Plaintiff specifically waived her right to a jury trial by not paying the jury fee in a timely manner. The second sentence of section (e) applies when a defendant timely requests a jury trial and, in response, a plaintiff then timely pays the jury fee. In that situation, the plaintiff would still be entitled to a jury trial even if the defendant attempts to withdraw his or her request for a jury trial. Crawford v. Melby, 89 P.3d 451 (Colo. App. 2003). Failure to act in accordance with this rule waives right to jury trial regardless of the reasons given in excuse or for neglect. Jaynes v. Marrow, 144 Colo. 138, 355 P.2d 529 (1960). One requesting a jury trial may not later withdraw that request unless his desire for a nonjury trial is acceded to by the remaining parties to the lawsuit. Forster v. Superior Court, 175 Colo. 444, 488 P.2d 202 (1971).
For jurors, see C.R.C.P. 47 and 48; for trial by jury or by the court, see C.R.C.P. 39; for consolidation and separate trial, see C.R.C.P. 42; for filing and serving, see C.R.C.P. 5(d).