Chapter 2 - § 2.6 • RIGHT TO A JURY TRIAL
| Jurisdiction | Colorado |
In a civil action, there is no constitutional right to a jury trial in Colorado.23 Jury trials, however, are provided in Colorado through C.R.C.P. 38.24 C.R.C.P. 38(a) states,
[A] trial by jury is provided by constitution or by statute, including actions for the recovery of specific real or personal property, with or without damages, or for money claimed as due on contract, or as damages for breach of contract, or for injuries to person or property, all issues of fact shall by tried by a jury.
The court must determine "the character of the action" in order to determine whether an issue of fact will be tried before a jury.25 C.R.C.P. 38 may theoretically provide for a trial by jury to recover real property, but in practice a jury trial is rarely granted in quiet title actions. Unless there has been an agreement between the parties, the court will generally be the trier of fact.
§ 2.6.1—Determining The Character Of The Action
In determining the character of the action, the court must look at the plaintiff's "original complaint,"26 which "fixes the nature of the suit as one at law or in equity."27 Only the complaint determines the nature of the suit, not counterclaims or defenses.28 However, in United Bank v. One Center Joint Venture,29 the Colorado Court of Appeals held that an affirmative defense in an answer may permit a jury to hear the case. Plaintiff brought suit in order to recover a deficiency on a promissory note.30 Defendant in its answer raised an affirmative defense that the plaintiff's bid was unconscionable because, as defendant argued, plaintiff purposefully bid below fair market value in order to obtain a higher deficiency judgment on the promissory note.31 Because there was a question as to whether the bid was unconscionable, the matter should have been submitted to a jury.32
To determine whether an action is in law or equity, the courts will first "examine the nature of the remedy sought."33 The action is legal if monetary damages are sought.34 If the action is "seeking to involve the coercive power of the court, such as those seeking injunction or specific performance," the action is in equity and the plaintiff is therefore not entitled to a jury trial.35 An action for declaratory judgment "is not determinative of the type of action brought" and the court must still determine the type of action.36 Even if the action is for recovery of real property37 or monetary damages,38 if the action is equitable in nature, then there is no right to a jury trial.
Courts also examine "the historical nature of the right that a plaintiff is seeking to enforce."39 A claim is in equity "when the plaintiff is seeking to enforce a right originally created in or decided by equity."40 Cases historically "brought before courts of equity" will not be tried to a jury.41
When both legal and equitable claims are made, the court must "determine whether the basic thrust of the action is legal or equitable in nature."42 In Setchell v. Dellacroce,43 the plaintiff prayed for equitable relief but, in the alternative, requested that if the court did not grant his equitable relief, the plaintiff prayed for damages and argued he therefore was entitled to a jury trial. The court ruled that he was not entitled to a jury trial because if he had been granted the equitable relief, he would not have been entitled to damages.44
F.R.C.P. 38 also permits a trial by jury in real estate actions. But like Colorado, jury trials are rarely granted. Federal courts also determine whether the action is in law or equity.45 If the action is in law, then a trial by jury is permitted, but if the action is in equity, no jury trial is permitted.46 The Supreme Court stated in Whitehead v. Shattuck47 that a trial by jury is permitted in an action to recover real property, but circuit courts have not followed the precedent.48
§ 2.6.2—Limitations On Jury Trials In Real Estate Matters
Jury trials are not available in a number of instances in real estate actions. C.R.C.P. 38 does provide "that a party is entitled to a jury trial upon demand in an action for the recovery of specific real property or personal property," but "the rule is not intended to extend to actions involving the repossession of collateral by a secured party."49 Thus, there is no right to a jury trial in foreclosure proceedings, which are equitable in nature.50 The court in Sawyer v. Munz51 ruled that an action to redeem property from a tax sale is equitable in nature and, consequently, not entitled to a jury trial.52
In a quiet title action, a jury trial is typically not permitted. In Federal Deposit Insurance Corp. v. Mars,53 the plaintiff bank sought to quiet title. The defendant made no dispute as to the equitable nature of a quiet title action and the lack of a right to a jury trial in an action to quiet title.54 The defendant's argument was that he was entitled to a jury trial because the plaintiff bank's pleadings were on the issue of "whether the buildings were real property or trade fixtures," and it was therefore an action in replevin.55 But the court found that it is "not the nature of the issues of fact to be tried which determines whether there is a right to a jury, but the character of the action in which they are presented."56 Because the plaintiff brought an action to quiet title, it was in equity and plaintiff could not request a jury trial.57
Suits for specific performance are equitable in nature and no right to a jury trial attaches.58 "[S]pecific performance of a contract to convey land is not an action for the recovery of land," and therefore there is no right to a jury trial.59 In Motz v. Jammaron,60 the lessees, who were still in possession of the property, sought a declaration that the lease was valid and enforceable.61 The court ruled that an action for specific performance of a lease agreement was in equity and the lessees were not entitled to a jury trial.62
"Actions seeking judicial foreclosure of liens have traditionally been considered equitable proceedings."63 In Aspen Drilling Co. v. Hayes,64 the court found that a lien action on a water well was equitable and was to be tried by the court.65 Where a sheriff fails to properly create a valid lien on real property, the suit to remove the cloud on the title is equitable in nature and there is no right to a jury trial.66
Other actions where a jury trial is not permitted and which are more properly tried by a court are an injunction against trespass on real property67 and partition actions.68 In unlawful detainer actions, where there is no dispute as to facts and defendant's answer is equitable, there is no right to trial by jury.69 In Weir v. Welch,70 the plaintiff, after a foreclosure, redeemed the property as a judgment creditor.71 The plaintiff argued that the money used to redeem the property was actually a loan to the defendants and therefore the plaintiff held the property in trust for the defendants and the sheriff's deed became a mortgage to secure the property.72 The court found this defense equitable in nature and as a result, no trial by jury was permitted.73
Jury trials are granted on contractual issues74 or when there are disputed factual issues. In Klipp v. Grusing,75 the plaintiff brought suit to determine who had the right to possess certain real property.76 The trial court, after both the plaintiff and defendant moved for a directed verdict, removed the case from the jury and entered a judgment for the plaintiff.77 However, the supreme court found issues in dispute.78 The plaintiff and defendant disagreed about the type of tenancy the defendant had, what was due under both an employment contract and pasturing contracts, and the status of defendant's chattel property on plaintiff's land.79 The court ruled that a jury should have decided the disputed issues.80
The court may use an advisory jury to determine issues in actions not triable by a jury, under C.R.C.P. 39(c).81 An advisory jury's "verdict is merely advisory to the court, and may be disregarded, but the adoption of such verdict by the court is equivalent to its findings on the questions thereby determined."82 In adverse possession cases, the advisory jury may enter a verdict as to each of the prongs of adverse possession.83 The advisory jury's findings are not "final or binding resolutions of disputed issues."84 The court is "the ultimate fact-finder and is required to make findings and conclusions in support of its judgment."85
C.R.C.P. 39(c), states, "[E]xcept in actions against the State of Colorado when a statute provides for trial without a jury, the court, with the consent of both parties, may order a trial with a jury."86 With the consent of both parties, an equitable action may be heard by a jury.87 An action in equity "does not bar the parties from a jury trial by consent wherein the jury's verdict has the same effect as it would at common law."88 If one party demands a jury trial and none of the other parties or the court...
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