Setchell v. Dellacroce
| Decision Date | 26 May 1969 |
| Docket Number | No. 22253,22253 |
| Citation | 169 Colo. 212,454 P.2d 804 |
| Parties | F. M. SETCHELL, Plaintiff in Error, v. Raymond R. DELLACROCE, Christine J. Dellacroce, William E. Elting, Elsie Elting, and Lillian Rosen, Defendants in Error. |
| Court | Colorado Supreme Court |
Law, Nagel & Clark, John M. Law, James W. Heyer, Denver, for plaintiff in error.
Gibson, Gibson, Cole & Gerdes, George M. Gibson, Colorado Springs, for defendants in error.
This is an action to compel specific performance of an alleged oral agreement to refinance certain real property or to permit the redemption of the property after the expiration of the period permitted by statute for redemption after foreclosure of a trust deed. In the event that specific performance should be unavailable, judgment for damages was demanded.
The record reflects that F. M. Setchell purchased certain real property from Raymond and Christine Dellacroce, who will hereinafter be referred to by last name only. Setchell made a down payment, assumed obligations under a first mortgage and a second deed of trust, and executed a note and third deed of trust to the Dellacroces. After Setchell defaulted on payments, the Dellacroces initiated foreclosure proceedings, and bid on the property themselves at the public trustee's sale on March 29, 1960. Upon expiration of the statutory period of redemption, they took a deed to the property from the public trustee.
Thereafter Setchell brought the present action to compel specific performance. In the alternative, in the event his claim for specific performance should be denied, or in the event the Dellacroces should be unable to specifically perform, he sought damages. His demand for a jury trial was stricken. After a trial to the court, judgment was entered dismissing the action against William E. Elting and Elsie Elting, who were the beneficiaries under the second deed of trust, because they had not been personally served within Colorado. Early in the proceedings the court ordered that no affirmative relief would be granted against Lillian Rosen, who also held an interest in the property. No dispute exists as to the propriety of that order. The court further entered judgment against Setchell on his claims for specific performance or damages, and he seeks review of the judgment.
In his brief, Setchell contends (a) that the findings of the trial court regarding the alleged oral agreement are contrary to the evidence; and (b) that the court erred in striking his demand for a jury trial. We find no error and therefore affirm the judgment of the trial court.
The testimony in this case conflicts sharply. The Dellacroces testified generally to the effect that the parties had discussed several times the possibility of refinancing. The trial court found that several proposals were made by Setchell, although the parties agreed only on the point that Setchell could exercise his right of redemption during the redemption period by payment in full, or by paying off certain encumbrances and executing a new note and deed of trust. The trial court pointed out that Setchell had this right without the consent of the Dellacroces, and in fact this course was recommended by the Dellacroces, their attorneys, and Setchell's own attorney. The trial court specifically found that there was no fraud or misrepresentation on the part of the defendants. The court further found that Setchell himself had considerable experience in real estate matters, and that he had acted contrary to the advice of attorneys regarding the redemption. Unless the evidence is wholly insufficient to sustain them, the findings of a trial court sitting without a jury are conclusive on review by writ of error. E.g., Andersen-Randolph Co., Inc. v. Taylor, 146 Colo. 170, 361 P.2d 142. We have examined the transcript, and conclude that there was substantial evidence to support the findings made by the trial court. The credibility of the witnesses was a matter to be determined by the court.
Setchell contends principally that the trial court erred in striking his demand for a jury. We disagree. Under our state constitution, trial by a jury in a civil action or proceeding is not a matter of right. Parker v. Plympton, 85 Colo. 87, 273 P. 1030. In Colorado, the right to jury trials in civil cases is regulated by Rule 38 of the Colorado Rules of Civil Procedure promulgated by the Supreme Court under its constitutional rule making power.
It is apparent from the language of R.C.P.Colo. 38(a) that the right to trial by jury is guaranteed only in actions at law therein specifically named. Therefore, whether an issue of fact must be tried to a jury in Colorado depends upon the character of the action in which the issue is joined. Neikirk v. Boulder National Bank, 53 Colo. 350, 127 P. 137, quoted with approval in Miller v. District Court, 154 Colo. 125, 388 P.2d 763. The complaint fixes the nature of the suit. Miller v. District Court, Supra.
We must decide, consequently, whether a plaintiff is entitled as a matter of right to a jury trial under R.C.P.Colo. 38(a) when he prays for specific performance, or in the alternative for damages.
In the present action, Setchell set out three claims for relief. In his first claim, he alleged substantially that the Dellacroces had agreed, promised and assured him that they would renegotiate and refinance the obligation, even after the expiration of the statutory period for redemption, rather than exchange their certificate of purchase for a deed from the public trustee. In his second claim, Setchell incorporated the allegations included in his first claim, and alleged further that if his first claim were not granted, he would be damaged in the sum of $387,500, as a direct and proximate result of the 'false, fraudulent and deceitful conduct of the (Dellacroces).' In his third claim, Setchell asked for exemplary damages.
Setchell made it clear in his complaint that he was seeking equitable relief. A suit for specific performance is an equitable action. Plains Iron Works Co. v. Haggott, 72 Colo. 228, 210 P. 696. After setting out his...
To continue reading
Request your trial
-
Gleason v. Guzman
...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, 215, 454 P.2d 804, 806 (1969); see Miller v. District Court, 154 Colo. 125, 388 P.2d 763 (1964); Esselstyn v. United States Gold Corp., 59 Colo.......
-
Garhart ex rel. Tinsman v. Columbia/Healthone, LLC
...P.2d 378, 382 (Colo.1981) ("There is no constitutional right to a jury trial in civil cases in Colorado."); Setchell v. Dellacroce, 169 Colo. 212, 215, 454 P.2d 804, 806 (1969) ("Under our state constitution, trial by a jury in a civil action or proceeding is not a matter of right."); Jones......
-
Firelock Inc. v. District Court In and For the 20th Judicial Dist. of State of Colo.
...have held that trial by a jury in a civil action is not a matter of right under the Colorado Constitution, see Setchell v. Dellacroce, 169 Colo. 212, 215, 454 P.2d 804, 806 (1969), this action falls within a category of cases for which C.R.C.P. 38 allows a jury trial as of right because the......
-
Hoeper v. Air Wis. Airlines Corp.
...776 P.2d 1154, 1155 (Colo.App.1989). The right to a civil jury trial in Colorado is procedural. C.R.C.P. 38; Setchell v. Dellacroce, 169 Colo. 212, 215, 454 P.2d 804, 806 (1969). Hence, the allocation of decision-making between judge and jury is a procedural question to be governed by Color......
-
The Party Respectfully Requests a Jury Trial on All Issues So Triable: What Issues Are Triable to a Jury and What Issues Should Be Triable to a Jury? a Comment on the Right to a Jury Trial, With a Focus on Civil Trials, and When the Right Exists
...P.2d 661, 664 (Colo. App. 1973) (internal emphasis omitted).61. Nat'l Acceptance Co. of Am. v. Mars, 780 P.2d 59, 60 (Colo. App. 1989).62. 454 P.2d 804 (Colo. 1969).63. Id. at 807.64. Id.65. 516 P.2d 661 (Colo. App. 1973).66. Id. at 664.67. 872 P.2d 1290 (Colo. App. 1993).68. Id. at 1293. 6......
-
Rule 38 RIGHT TO TRIAL BY JURY.
...(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 ......
-
Chapter 17 - § 17.7 • TERMINATION AND BREACH OF CONTRACT
...1915).[308] Thurmon v. Skipton, 403 P.2d 211 (Colo. 1965); Clark v. Scena, 83 P.3d 1191 (Colo. App. 2003).[309] Setchell v. Dellacroce, 454 P.2d 804 (Colo. 1969); Schreck v. T&C Sanderson Farms, Inc., 37 P.3d 510 (Colo. App. 2001).[310] Emery v. Medal Bldg. Corp., 436 P.2d 661 (Colo. 1968) ......
-
Right to a Civil Jury Trial: State Versus Federal Court
...jury right). Nor have Colorado state courts, like their federal counterparts, enunciated a strong policy favoring civil jury trial. 9. 169 Colo. 212, 454 P.2d 804 (1969). 10. Id. at 215. 11. Although Setchell employs another standard, it is not clear that the result would be different had t......