Crawford v. Melby, 02CA1724.

• Decision Date: 11 September 2003
• Docket Number: No. 02CA1724.,02CA1724.
• Citation: 89 P.3d 451
• Parties: Arionna CRAWFORD, Plaintiff-Appellant, v. Evan L. MELBY, individually, and Evan L. Melby, Inc., d/b/a Melby Ranch Properties, Melby Ranch, Wild Horse Mesa, Elk Park Ranch, San Luis Estates South, Rio Grande Ranchos, San Luis Valley Ranch, and Elm Estates, Defendants-Appellees.
• Court: Colorado Court of Appeals

89 P.3d 451

Arionna CRAWFORD, Plaintiff-Appellant, v. Evan L. MELBY, individually, and Evan L. Melby, Inc., d/b/a Melby Ranch Properties, Melby Ranch, Wild Horse Mesa, Elk Park Ranch, San Luis Estates South, Rio Grande Ranchos, San Luis Valley Ranch, and Elm Estates, Defendants-Appellees.

No. 02CA1724.

Colorado Court of Appeals, Div. I.

September 11, 2003.

Rehearing Denied November 26, 2003.

Certiorari Denied May 3, 2004.

Graham Law Firm, David A. Graham, Taos, New Mexico, for Plaintiff-Appellant.

Lester, Sigmond, Rooney & Schwiesow, Eric Schwiesow, Alamosa, Colorado, for Defendants-Appellees.

Opinion by Judge TAUBMAN.

Plaintiff, Arionna Crawford, appeals the judgment entered by the trial court after a bench trial in favor of defendants, Evan L. Melby and Evan L. Melby, Inc. (collectively the Melbys). The sole issue on appeal is whether the trial court erred in granting, without Crawford's consent, the Melbys' request to withdraw their demand for a jury trial when Crawford had paid the requisite jury fee and had not affirmatively waived her right to a jury trial after the Melbys made their request. We perceive no error and thus affirm.

Crawford was employed by the Melbys in their real estate business. She brought this action against them seeking damages based on the termination of that employment relationship. In her complaint, filed in 1998, Crawford demanded a trial by jury, but she did not pay the requisite jury fee at that time. In their answer, filed in 2000, the Melbys also demanded a jury trial, but, in contrast to Crawford, they simultaneously paid the jury fee.

In 2002, Crawford paid the jury fee. Shortly thereafter, however, the Melbys moved to withdraw their demand for a jury trial. Crawford objected, arguing that because she had paid the jury fee, the Melbys could not withdraw their demand for a jury trial without her consent. The Melbys argued that Crawford waived the right to a jury trial when she failed to pay the jury fee when she filed her complaint or within ten days of service of the last pleading directed to an issue triable by a jury.

The trial court agreed with the Melbys and ordered that the case be tried to the court. Following a bench trial, the trial court made extensive findings of fact and entered judgment in favor of the Melbys. Crawford then brought this appeal challenging the trial court's decision allowing the Melbys to withdraw their demand for a jury trial.

C.R.C.P. 38 sets forth the procedures for exercising the right to trial by jury. C.R.C.P. 38(a) provides that any party to an action in which a jury trial is permitted may exercise that right by filing a demand and simultaneously paying the requisite jury fee. See also § 13-71-144, C.R.S.2002 (setting forth amount of the jury fee and tracking the language in C.R.C.P. 38(a) regarding who may demand a trial by jury).

C.R.C.P. 38(b) provides that a demand for a trial by jury is made "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 ten days after the service of the last pleading directed to such issue." A party may endorse a demand for a jury trial upon a pleading and shall pay the requisite jury fee upon the filing of the demand. See C.R.C.P. 38(b).

Once 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 ten days after service of the demand." C.R.C.P. 38(c).

C.R.C.P. 38(e) describes waiver or withdrawal of a jury demand:

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.

Similarly, C.R.C.P. 121 § 1-3 provides that:

Any party who has demanded a trial by jury and has paid the requisite jury fee and any party who has not waived the right to trial by jury and has paid the requisite jury fee is entitled to trial by jury of all issues properly designated for trial by jury unless that party waives such right pursuant to Rule 38(e).

Further, C.R.C.P. 39(a) provides, in pertinent part, that when a party demands a jury trial and pays the requisite fee, a trial shall be by jury, unless, as relevant here, "all parties who have failed to waive the right to trial by jury and paid the requisite jury fee have, in writing, waived their rights to trial by jury."

The Melbys contend that the plain language of C.R.C.P. 38(e) provides that Crawford's failure to file and serve a demand for trial by jury and simultaneously pay the requisite jury fee constituted a waiver of her right to trial by jury. Conversely, Crawford argues that when, as here, one party has timely filed and served a demand for trial by jury and paid the requisite fee, the request for a jury trial may not be withdrawn without the consent of the other party who has paid the jury fee and who has not affirmatively waived the right to a trial by jury. We agree with the Melbys' construction of the rule.

In determining the meaning of procedural rules, we give the words their plain meaning, and if the language of the rules is clear and unambiguous, we need not look further to determine their meaning. Anheuser Busch, Inc. v. Indus. Claim Appeals Office, 28 P.3d 969 (Colo.App.2001). However, if the language of a rule is susceptible of different meanings, a court must attempt to ascertain the supreme court's intention in promulgating the rule so as to carry out its intended purpose. In doing so, the court may consider not only the language of the rule, but also the reason and necessity of the rule and the objective that the rule seeks to accomplish. In re Marriage of Eisenhuth, 976 P.2d 896 (Colo.App.1999).

We conclude that C.R.C.P. 38(e) is susceptible of different meanings.

Initially, we note that the second sentence of C.R.C.P. 38(e) creates two categories of litigants who may have a right to a jury trial: (1) those who have timely demanded a trial by jury and paid the requisite jury fee; and (2) those who have not waived the right to a jury trial and have paid the requisite jury fee. The first category applies to litigants who have a right to a jury trial as a...