Colo. R. Civ. P. 39
C.R.C.P. 39
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 38 Dicta 133 (1961). For article, "One Year Review of Civil Procedure and Appeals", see 39 Dicta 133 (1962). Applied in Kaitz v. District Court, 650 P.2d 553 (Colo. 1982). II. By Jury. Agreement of parties regarding jury trial not binding on court. The trial court is not bound by the agreement of the parties regarding a jury trial if no right to a jury trial exists. Federal Lumber Co. v. Wheeler, 643 P.2d 31 (Colo. 1981). Although a trial court may empanel an advisory jury over the objections of a party in an equitable action, the jury's findings in such advisory capacity do not constitute final or binding resolutions of disputed issues. Rather, the court remains the ultimate fact finder and is required to make findings and conclusions in support of its judgment. First Nat. Bank of Meeker v. Theos, 794 P.2d 1055 (Colo. App. 1990). Failure to comply with demand is no grounds for reversal where no objection. Where formal demand for jury trial is made by a party, the cause thereafter proceeds to trial by the court without a jury, and there is no objection to such trial by either party, the unsuccessful party cannot thereafter secure reversal of the judgment entered against him upon the ground that there was no formal disposition of the demand for jury trial in strict compliance with section (a) of this rule. Johnson v. Neel, 123 Colo. 377, 229 P.2d 939 (1951). Before the issue of proximate cause can be taken from the jury, the evidence must be undisputed and such that reasonable minds could reach but one conclusion. Roth v. Stark Lumber Co., 31 Colo. App. 121, 500 P.2d 145 (1972). For cases construing § 196 of the former code of civil procedure which was supplanted by this rule, see Leahy v. Dunlap, 6 Colo. 552, (1883); Cerussite Mining Co. v. Anderson, 19 Colo. App. 307, 75 P. 158 (1903); Frank v. Bauer, 19 Colo. App. 445, 75 P. 930 (1904); Parker v. Plympton, 85 Colo. 87, 273 P. 1030 (1928); Hiner v. Cassiday, 92 Colo. 78, 18 P.2d 309 (1932); In re Estate of Eder, 94 Colo. 173, 29 P.2d 631 (1934). This rule grants broad powers to a district judge to order a jury trial. Once a master is appointed, however, the district judge cannot summarily reject the master's report and order a jury trial in derogation of the requirement of C.R.C.P. 53(e)(2). Dobler v. District Court, 806 P.2d 944 (Colo. 1991). Right to jury trial, once proper demand is made and fee is paid, may be lost only for reasons stated in section (a) of this rule. 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 this rule nor C.R.C.P. 121 includes a waiver provision on such basis. Whaley v. Keystone, 811 P.2d 404 (Colo. App. 1989). III. By Court. Where a litigant acquiesces in a trial before the court, thereby consenting thereto, he cannot thereafter contend for the first time on appeal that a jury should have been called. Johnson v. Neel, 123 Colo. 377, 229 P.2d 939 (1951). This rule permits the trial court, in its discretion, to order a jury trial of any and all issues. Jaynes v. Marrow, 144 Colo. 138, 355 P.2d 529 (1960). If the trial court orders a jury trial, it may exercise its discretion without interference from the supreme court. Jaynes v. Marrow, 144 Colo. 138, 355 P.2d 529 (1960). Trial courts may order a jury trial with a belated motion or none at all. Trial courts, either with a belated motion before them, with or without reasons stated therein, or without any motion at all, may order a jury trial, because it is within their discretion so to do. Jaynes v. Marrow, 144 Colo. 138, 355 P.2d 529 (1960). A trial court is within its right and power in ordering a jury trial without a timely formal request therefor. Butters v. Wann, 147 Colo. 352, 363 P.2d 494 (1961). Section (b) of this rule affords the court no discretion to grant an untimely request for a jury trial. Machol v. Sancetta, 924 P.2d 1197 (Colo. App. 1996). Unlike federal practice, reasons for belated demand are unnecessary. In applying this rule, Colorado does not follow the interpretation of the federal trial courts that where a belated jury demand is made, counsel must give valid reasons for the request or else the trial court will not choose to exercise its discretion to consider it. Jaynes v. Marrow, 144 Colo. 138, 355 P.2d 529 (1960). Judge need not give any reasons why he desires jury. The rule that "judicial discretion must have some rational basis; it is not synonymous with judicial whim or caprice" does not mean that a trial judge under section (b) of this rule has to give any reasons why he desires a jury in a case. Jaynes v. Marrow, 144 Colo. 138, 355 P.2d 529 (1960). Since no reason need be given, the fact that the wrong reason is given for granting the motion is immaterial, because the trial court on its own motion can order a jury trial without giving any reason whatsoever. Jaynes v. Marrow, 144 Colo. 138, 355 P.2d 529 (1960). Where the petitioner fails to tender the jury fee required by local district court rules, he is deemed to have waived his demand for a jury trial and this rule should not be used to overcome the waiver. McConnell v. District Court, 680 P.2d 528 (Colo. 1984). Although this rule grants discretion to trial court to order a trial by jury without demand, such discretion is bounded by the proviso that the order be made only in an action in which the demand might have been made in the first place. Nowhere is discretion or authority given to trial court to grant a jury trial over a litigant's meritorious motion to strike demand. Motz v. Jammaron, 676 P.2d 1211 (Colo. App. 1983), cert. dismissed, 680 P.2d 238 (Colo. 1984). Applied in Butters v. Wann, 147 Colo. 352, 363 P.2d 494 (1961). IV. Advisory Jury and Trial by Consent. Law reviews. For article, "One Year Review of Domestic Relations", see 39 Dicta 102 (1962). This rule refers to two kinds of trials: (1)Cases not triable by a jury may, on motion or on the court's own initiative, be tried with an "advisory jury"; (2)nonjury cases including nonjury statutory actions (with an exception) may, by consent of court and the parties, be tried with a "jury". Young v. Colo. Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961). In the first, an "advisory jury" acts; in the second, a "jury" acts. Young v. Colo. Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961). This rule takes care of two differing situations: In the first, a party may request that a nonjury case be tried to a jury and the adversary party may resist, and in such case, the court may grant the request but, since it has been resisted, may use the services of the jury in an advisory capacity only; in the second, parties and court consenting, the jury's verdict has the effect of a common-law verdict. Young v. Colo. Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961). Handling of issues of fact in equitable cause discretionary with court. It is discretionary with the court in equitable causes of action whether issues of fact shall be tried by the court or sent to a jury. Zimmerman v. Mozer, 10 Bankr. 1002 (Bankr. D. Colo. 1981 ). In an equity cause, where issues are submitted to a jury, its verdict is merely advisory to the court and may be disregarded. McKelvy v. Cooper, 165 Colo. 102, 437 P.2d 346 (1968); Zimmerman v. Mozer, 10 Bankr. 1002 (Bankr. D. Colo. 1981 ). Court never has been bound by conclusions of an advisory jury. In the trial of equity cases, the court may, on its own motion, invoke the aid of a jury to determine specific questions of fact. Such findings are, however, no more binding now than they were when the old chancery practice prevailed. Conclusions of the jury are in such cases simply advisory; they may be accepted and form the basis of decree or judgment, or they may be entirely disregarded. When the Code of Civil Procedure was first adopted, the contrary suggestion on this subject in the note on page 376 of "Adams' Equity" may have been applicable, but the enactment in 1879 clearly established the practice of trying chancery cases to the court without a jury; and it cannot now be correctly claimed that special findings of a jury in such cases are as binding as verdicts in actions in law. Hall v. Linn, 8 Colo. 264, 5 P. 641 (1885); Selfridge v. Leonard-Heffner Co., 51 Colo. 314, 117 P. 158, 1913B Ann. Cas. 282 (1911) (decided under § 191 of the former Code of Civil Procedure, which was replaced by the Rules of Civil Procedure in 1941). The mere fact that an action is 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. Shuman v. Tuxhorn, 29 Colo. App. 152, 481 P.2d 741 (1971). Where one party demands a jury trial of a nonjury case, neither the other party nor court objects, and trial so proceeds, consent to such trial is deemed to have been given. Young v. Colo. Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961); Shuman v. Tuxhorn, 29 Colo. App. 152, 481 P.2d 741 (1971). Trial of nonjury action to a jury is jury trial in regular sense. Under this rule, the trial of a nonjury action to a jury, with the consent of both parties and the trial judge, is a jury trial in its regular sense as if trial to a jury had been a matter of right. Young v. Colo. Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961). In a trial by consent, the jury's verdict should have the same effect as if it were a common-law verdict. Young v. Colo. Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961); Shuman v. Tuxhorn, 29 Colo. App. 152, 481 P.2d 741 (1971). Consent to binding jury. Where complex procedural history of cases did not make clear that failure to object at each pretrial proceeding would be treated as consent to binding jury and where defendants made pretrial objections to binding jury in motion to bifurcate two cases, defendants did not consent to binding jury. Mountain States Tel. & Tel. v. DiFede, 780 P.2d 533 (Colo. 1989). Status of jury may not be changed except by agreement. Once court and counsel embark upon a nonjury statutory proceeding in such manner as to treat it as a jury case, the status of the jury may not be changed except by agreement. Young v. Colo. Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961); Shuman v. Tuxhorn, 29 Colo. App. 152, 481 P.2d 741 (1971). The unilateral act of a trial court in changing the case from one of trial by consent to one in which an advisory verdict would be received is error, as such change could only have been accomplished by agreement of the parties and the court. Young v. Colo. Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961); Shuman v. Tuxhorn, 29 Colo. App. 152, 481 P.2d 741 (1971). A trial court does not err in refusing to try the issues with an advisory jury pursuant to the discretionary powers conferred upon the trial court by section (c) of this rule. Gibson v. Angros, 30 Colo. App. 95, 491 P.2d 87 (1971). 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).
For motion for directed verdict, see C.R.C.P. 50; for jury trial of right, see C.R.C.P. 38.