Rule 38 RIGHT TO TRIAL BY JURY.

• Jurisdiction: Colorado

Rule 38. Right to Trial by Jury.

(a) Exercise of Right. Upon the filing of a demand and the simultaneous payment of the requisite jury fee by any party in actions wherein 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 be tried by a jury. The jury fee is not refundable; however, a demanding party may waive that party's demand for trial by jury pursuant to section (e) of this rule.

(b) Demand. Any party may demand a trial by jury of any issue triable by a jury by filing and serving upon all other parties, pursuant to Rule 5 (d), a demand therefor at any time after the commencement of the action but not later than 14 days after the service of the last pleading directed to such issue, except that in actions subject to mandatory arbitration under Rule 109.1 the demand for trial by jury shall be filed and served not later than 14 days following a demand for trial de novo. A demand for trial by jury may be endorsed upon a pleading. The demanding party shall pay the requisite jury fee upon the filing of the demand.

(c) Jury Fees. When a party to an action has exercised the right to demand a trial by jury, every other party to such action shall also pay the requisite jury fee unless such other party, pursuant to Rule 5 (d), files and serves a notice of waiver of the right to trial by jury within 14 days after service of the demand.

(d) Specification of Issues. A demand may specify the issues to be tried to the jury; in the absence of such specification, the party filing the demand shall be deemed to have demanded trial by jury of all issues so triable. If a party demands trial by jury on fewer than all of the issues so triable, any other party, within 14 days after service of the demand, may file and serve a demand for trial by jury of any other issues so triable.

(e) Waiver; Withdrawal. The failure of a party to file and serve a demand for trial by jury and simultaneously pay the requisite jury fee as required by this Rule constitutes a waiver of that party's right to trial by jury. A demand for trial by jury made pursuant to this rule may not subsequently be withdrawn in the absence of the written consent of every party who has demanded a trial by jury and paid the requisite jury fee and of every party who has failed to waive the right to trial by jury and paid the requisite jury fee.

Source: Entire rule repealed and reenacted July 12, 1990, effective September 1, 1990; (b), (c), and (d) amended and adopted December 14, 2011, effective January 1, 2012, for all cases pending on or filed on or after January 1, 2012, pursuant to C.R.C.P. 1(b).

Cross references: 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).

ANNOTATION

I. General Consideration.

II. Where Jury Right Exists.

A. In General.
B. Application of Right.

III. Demand.

IV. Waiver.

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...