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Date: 06-05-2018

Case Style:

James C. Mason, a/k/a Jim Mason v. Farm Credit of Southern Colorado, ACA, and Farm Credit of Southern Colorado, FLCA.

Case Number: 17SC346

Judge: Nancy E. Rice

Court: Supreme Court of the State of Colorado

Plaintiff's Attorney: Shannon Reed, ESQ
James M. Croshal

Defendant's Attorney: Scott C. Sandberg
John O'Brien

Description: Between 2008 and 2011, Zachary Mason (“Zach”) farmed several properties in
Otero County, Colorado. During this time, Zach executed several loan agreements with
Farm Credit of Southern Colorado, ACA, and Farm Credit of Southern Colorado, FLCA
(collectively, “Farm Credit”). As part of the loan agreements, Farm Credit owned a
perfected security interest in some of Zach’s crops, farm equipment, and other items of
personal property. In May 2012, Zach defaulted on his loans. As a result, Farm Credit
sued Zach for judgment on his notes, foreclosure of real property collateral, replevin of
personal property collateral, conversion of insurance proceeds, civil theft, breach of
contract, and fraud.
¶3 In March 2013, Farm Credit amended its complaint to add Zach’s father, James
Mason (“Mason”), as a defendant. Mason also farmed in Otero County, but his farming
operations were separate from Zach’s, and he did not cosign any of Zach’s loans. In its
amended complaint, Farm Credit brought claims against Mason for replevin and
conversion, and it also requested an accounting. To support its replevin claim, Farm
Credit alleged that Mason harvested and then sold, transferred, used, or stored crops
that it held as collateral. Farm Credit sought the return of its crop collateral, plus any
proceeds from the sale or use of it. To support its conversion claim, Farm Credit alleged
that Mason used or disposed of crops, farm products, and machinery that Farm Credit


4
held as collateral without remitting the proceeds to Farm Credit. The amended
complaint did not significantly change the claims against Zach.2
¶4 In his answer, Mason demanded a jury trial. Farm Credit moved to strike
Mason’s jury demand. In its motion, Farm Credit argued that the claims in a plaintiff’s
initial complaint are the sole determinant of a defendant’s right to a jury trial under
Rule 38(a) and that because the claims in Farm Credit’s original complaint were
primarily equitable, Mason was not entitled to a jury trial. Alternatively, Farm Credit
argued that even if the court considered the claims in its amended complaint to
determine whether Mason was entitled to a jury trial, the basic thrust of those claims
remained equitable. Mason opposed the motion, arguing that the claims against him in
Farm Credit’s amended complaint were primarily legal and that those were the only
claims that the court should consider to decide the jury trial question. In a brief order,
the trial court granted Farm Credit’s motion, adopting “the authorities, reasoning, and
analysis” as stated in the motion and finding that the basic thrust of the action was
equitable. Following a bench trial, the trial court found that Mason was liable for
conversion of the collateral.
¶5 Mason appealed the trial court’s decision to strike his request for a jury trial. The
court of appeals affirmed. Mason, ¶ 1. As relevant here, the court of appeals concluded
that Farm Credit’s original complaint “mainly [sought] judgment on promissory notes
and the foreclosure and disposition of collateral,” id. at ¶ 18, meaning it was an 2 A few months after Farm Credit filed its original complaint against Zach, Zach filed for bankruptcy. As a result, the U.S. Bankruptcy Court resolved most of Farm Credit’s monetary claims against Zach.


5
equitable action to be tried to the court. Furthermore, the court of appeals rejected
Mason’s argument that the trial court should have considered the claims in Farm
Credit’s amended complaint (when he was first added as a defendant). Id. at ¶ 19. In
so doing, the court of appeals did not explicitly discuss whether claims in an original, as
opposed to an amended, complaint control the right to a jury trial; instead, it simply
held that Mason had no right to a jury trial because “the basic thrust of the underlying
action was equitable.” Id. at ¶ 20.
¶6 We granted certiorari to decide whether a trial court must consider the claims in
a plaintiff’s amended complaint to determine whether a party is entitled to a jury trial
under Rule 38.
II. Standard of Review
¶7 We interpret the Colorado Rules of Civil Procedure de novo. DCP Midstream,
LP v. Anadarko Petroleum Corp., 2013 CO 36, ¶ 24, 303 P.3d 1187, 1193. “Rules of
procedure are interpreted according to their ‘commonly understood and accepted
meaning.’” Garcia v. Schneider Energy Servs., Inc., 2012 CO 62, ¶ 7, 287 P.3d 112, 114
(quoting Leaffer v. Zarlengo, 44 P.3d 1072, 1078 (Colo. 2002)). We construe them
liberally to effectuate their objective “to secure the just, speedy, and inexpensive
determination of every action.” C.R.C.P. 1.
III. Analysis
¶8 This case requires us to decide whether trial courts must consider the claims in a
plaintiff’s amended complaint to determine whether a party is entitled to a jury trial
under Rule 38. We conclude that they must. Our opinion proceeds in four parts.


6
In Part A, we provide some background on Colorado’s civil jury trial right and the
issues presented by this case. In Part B, we explain how Rule 15 and Rule 38 of the
Colorado Rules of Civil Procedure require the result we reach here. In Part C, we
review our prior holdings in this area to clarify how the rule we adopt complements
and is supported by those cases. Finally, in Part D, we apply our holding to the facts in
this case and conclude that based on the claims in Farm Credit’s amended complaint
Mason was entitled to a jury trial under Rule 38. Accordingly, we reverse the court of
appeals and remand the case to that court for further proceedings consistent with this
opinion.
A. Colorado’s Civil Jury Trial Right
¶9 “In Colorado there is no constitutional right to a trial by jury in a civil action.”
Kaitz v. Dist. Court, 650 P.2d 553, 554 (Colo. 1982). Instead, the right to a jury trial in
civil cases is derived from Rule 38(a), which provides in relevant part:
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.
Rule 38(b) then clarifies that to request a jury trial a party must serve a demand “after
the commencement of the action but not later than 14 days after the service of the last
pleading directed to such issue.” Essentially, three elements must be met before a civil
case may be tried to a jury: (1) a party must timely file a demand; (2) that party must
pay the requisite jury fee; and (3) either the constitution or a statute must authorize a


7
jury trial for the type of action filed. This case concerns the third element: whether the
constitution or a statute authorizes a jury trial for Farm Credit’s action against Mason.
¶10 We have established two rules to help courts determine whether the Colorado
constitution or statutes provide for a jury trial in a given case. First, we have
interpreted Rule 38 and the former versions of that rule to provide for a jury trial only
in proceedings that are legal in nature, not equitable. Kaitz, 650 P.2d at 554–55
(interpreting Rule 38); Neikirk v. Boulder Nat’l Bank, 127 P. 137, 139 (Colo. 1912)
(interpreting the code of civil procedure, which predates the rules of civil procedure);
Selfridge v. Leonard-Heffner Mach. Co., 117 P. 158, 159 (Colo. 1911) (same); see also
Miller v. Dist. Court, 388 P.2d 763, 765 (Colo. 1964) (holding that Rule 38 “adopts
without change the provisions of Rule 191 of the Code of Civil Procedure”). In general,
actions for money damages are legal, whereas actions invoking the coercive powers of
the court are equitable. Peterson v. McMahon, 99 P.3d 594, 598 (Colo. 2004).
¶11 Second, we have held that whether an action is legal or equitable is dictated only
by the claims in a plaintiff’s complaint. See Selfridge, 117 P. at 159. By contrast, the
claims in a defendant’s answer are irrelevant to determining the nature of a cause of
action. Id. Thus, if a plaintiff pleads only legal claims, the case will be tried to a jury
upon proper demand and payment of the jury fee. Id.; C.R.C.P. 38. If a plaintiff pleads
only equitable claims, the case will be tried to the court. When a plaintiff’s complaint
presents both legal and equitable claims, the trial court must look to the overall
character of the action to determine whether it is fundamentally legal or equitable. See
Esselstyn v. U.S. Gold Corp., 149 P. 93, 94 (Colo. 1915) (holding that an action seeking


8
both damages for past trespasses and an injunction of future trespasses was, on the
whole, equitable); see also Kaitz, 650 P.2d at 555 (holding that an action for breach of
fiduciary duty was equitable in nature despite seeking compensatory and punitive
damages). This analysis is known as the “basic thrust” doctrine. See First Nat’l Bank v.
Theos, 794 P.2d 1055, 1059 (Colo. App. 1990).
¶12 Those two rules explain the process that trial courts should follow to determine
whether a lawsuit is legal or equitable when the plaintiff’s claims appear in a single
complaint. See, e.g., Neikirk, 127 P. at 138. Today, however, we must decide for the
first time how trial courts should treat the claims in a plaintiff’s amended complaint, as
compared with those in an initial complaint, when analyzing a party’s entitlement to a
jury trial under Rule 38. The court of appeals ignored the claims in Farm Credit’s
amended complaint. We conclude that that was in error. We hold that when a plaintiff
amends its complaint and a party properly requests a jury trial under Rule 38, the trial
court should determine whether the case may be tried to a jury based on the claims in
the amended complaint. As in other contexts, for purposes of the civil jury trial right,
“Once a plaintiff files an amended complaint, the original complaint is superseded.”
Currier v. Sutherland, 218 P.3d 709, 715 (Colo. 2009). If the claims in a plaintiff’s
amended complaint entitle the parties to a jury trial and at least one party makes a
proper demand, then “all issues of fact shall be tried by a jury.” C.R.C.P. 38(a).
B. Colorado Rules of Civil Procedure
¶13 Our holding that trial courts must consider the claims in a plaintiff’s amended
complaint when determining the availability of a jury trial in a civil case effectuates the


9
goal of Rule 15 and Rule 38 to permit all parties either alleging or defending against
legal claims to litigate them before a jury. Our holding also makes practical sense and
avoids reading absurdity into the rules.
¶14 Read together, Rule 15 and Rule 38 support our holding in three ways. First,
despite Rule 15’s clear allowance for parties to amend their pleadings, Rule 38 does not
distinguish between original pleadings and amended pleadings for purposes of the civil
jury trial right. Specifically, Rule 15 permits plaintiffs to amend their original complaint
under certain circumstances, and we have held that “[o]nce a plaintiff files an amended
complaint, the original complaint is superseded.” Currier, 218 P.3d at 715. Despite this,
Rule 38(a) provides, simply, that “all issues of fact shall be tried by a jury” when any
party to a lawsuit timely files a jury demand and the action is one “wherein a trial by
jury is provided,” i.e., where a plaintiff’s claims against a defendant are primarily legal.
Thus, Rule 38 focuses on whether an action is legal or equitable based on the claims that
will ultimately go to trial; it is not concerned with claims that appear in a plaintiff’s
initial complaint but are later overridden by claims in an amended complaint. This
reading is consistent with our holding in Currier.
¶15 Second, Rule 38 permits parties to endorse a request for a jury trial upon an
amended pleading, which negates Farm Credit’s argument that only the claims in a
plaintiff’s original complaint determine the nature of a case. Rule 38 permits parties to
endorse their demand for a jury trial “upon a pleading,” such as a complaint or answer
or an amended complaint or answer. Rule 38 does not require the pleading to be
“original.” Thus, if a plaintiff amends its complaint as permitted by Rule 15 to allege


10
only legal claims, the defendant can file an answer pursuant to Rule 15 and endorse a
jury trial request upon that pleading pursuant to Rule 38. In such a case, the plaintiff
has the same right to request a jury trial either in its amended complaint or in a
separate, timely filed demand. C.R.C.P. 38. Interpreting Rule 38 to designate the
plaintiff’s original complaint as the sole determinant of the nature of a case would
render ineffective the clauses in Rule 15 and Rule 38 that permit parties to request a jury
trial in an amended pleading. We refuse to adopt such a construction.
¶16 Third, Rule 38’s timeliness requirements support our reading that the claims in a
plaintiff’s amended complaint determine the nature of a lawsuit. Rule 38 does not insist
that parties file their requests for a jury at the beginning of a lawsuit. Instead, under
Rule 38 a jury demand is timely if it is filed “not later than 14 days after the service of
the last pleading directed to such issue” (emphasis added); this could refer to a
plaintiff’s amended complaint or a defendant’s answer to an amended complaint.
¶17 Finally, the rule that a plaintiff’s amended complaint controls the nature of an
action for purposes of the jury trial right makes practical sense and avoids absurdity.
Rule 38 provides all parties the opportunity to request a jury trial in cases that are legal
in nature. Determining the nature of a case based on the most-recently-filed complaint
prevents both the plaintiff and the defendant from engaging in gamesmanship and
effectuates Rule 38’s purpose. For example, a rule designating a plaintiff’s original
complaint as solely determinative of the nature of a case would allow a plaintiff to
avoid a jury trial by alleging only equitable claims in an initial complaint and then later
amending that complaint to contain primarily legal claims. Similarly, that rule would


11
allow a defendant to block the jury trial request of a well-intentioned plaintiff that
amends its purely equitable complaint to add newly discovered legal claims. Finally,
under that rule, a plaintiff could allege only legal claims in its original complaint,
request a jury trial, and then amend its complaint to contain only equitable claims but
nonetheless have its case tried to a jury.
¶18 The purpose of Rule 38 is to provide for a jury trial in cases where the claims
going to trial are primarily legal. Only a rule designating a plaintiff’s most-recently
amended complaint as determinative of the nature of a lawsuit effectuates that purpose.
Therefore, upon receipt of a proper jury demand, the trial court must consider the
claims in the plaintiff’s most-recently-filed complaint to determine whether the case
must be tried to a jury.3
C. Colorado Supreme Court Precedents
¶19 Farm Credit concedes that the plain language of Rule 38 does not support its
argument, but it argues that our prior cases require trial courts to consider only those
claims in a plaintiff’s original complaint when determining a party’s entitlement to a
jury trial. In addition to the division here, at least two other divisions of the court of
appeals have interpreted our case law to preclude trial courts from considering the
claims in a plaintiff’s amended complaint when determining the basic thrust of an
action. Carder v. Cash, 97 P.3d 174, 187 (Colo. App. 2003); see Am. Family Mut. Ins. Co. 3 Our holding does not overrule Murray v. Dist. Court, 539 P.2d 1254 (Colo. 1975). That case addresses the extreme circumstance in which a party abuses its right to request a jury trial to disrupt a trial calendar and to obtain delay. Id. at 1255. In such a circumstance, trial courts maintain the discretion to handle their trial calendars “as they deem expedient.” C.R.C.P. 40.


12
v. DeWitt, 216 P.3d 60, 63 (Colo. App. 2008), aff’d, 218 P.3d 318 (Colo. 2009). We
disapprove of these characterizations of our case law. Not only have we never held that
a trial court is limited to considering only those claims in a plaintiff’s initial complaint,
but we have also considered the claims in a plaintiff’s amended complaint when
conducting our own analysis of a defendant’s right to a jury trial. See Plains Iron Works
Co. v. Haggott, 210 P. 696, 697 (Colo. 1922). We review our cases in this area to clarify
our prior holdings.
¶20 We first articulated the rule that the plaintiff’s complaint dictates the nature of a
lawsuit for purposes of the jury trial right in Selfridge. We held that the defendant was
not entitled to a jury trial because the plaintiff’s action to foreclose a mechanic’s lien on
a mill site was equitable, and the fact that the defendant sought legal damages in a
counterclaim4 did not change “the cause of action as set forth in, and determined by, the
complaint.” Selfridge, 117 P. at 159. Since then, we have applied the Selfridge rule
consistently to exclude claims brought by defendants from our jury trial right analysis.
See Miller, 388 P.2d at 765–66 (ignoring the claims in the defendant’s counterclaim);
Tiger Placers Co. v. Fisher, 54 P.2d 891, 892 (Colo. 1936) (same, but the counterclaim
was titled “cross-complaint”); Neikirk, 127 P. at 139 (same). In each of these cases, we
emphasized that only claims brought by plaintiffs affect the status of a case as legal or
equitable for purposes of the civil jury trial right.
4 In Selfridge, the defendant’s claim against the sole plaintiff was titled a “crosscomplaint.” 117 P. at 159.


13
¶21 Notably, we have analyzed the availability of a jury trial in only two cases
involving amended complaints. In Plains Iron Works, we concluded that the
defendants were not entitled to a jury trial because the underlying case was a lawsuit
for specific performance, which is an equitable action. 210 P. at 697. In so holding, we
considered in part “the allegations of the amended complaint.” Id. In DeWitt, we were
tasked with determining whether the plaintiff’s amended complaint, which alleged two
negligence claims, sought legal or equitable remedies. Am. Family Mut. Ins. Co. v.
DeWitt, 218 P.3d 318, 324 (Colo. 2009). However, the plaintiff “did not specify the type
of damages sought in [its] Amended Complaint”; it alleged negligence without
requesting any specific relief. Id. Rather than hold that we could not or need not
consider the claims in the amended complaint, we inferred the remedies available to the
plaintiff based on its status as a subrogee, a party limited to those claims and remedies
available to the subrogor. Id. We concluded that had the subrogor brought the lawsuit
independently he “would have sought monetary damages intended to compensate him
for his injuries.” Id. Accordingly, we held that the plaintiff was limited to seeking
compensatory damages and, therefore, asserted legal claims in its amended complaint.
Id. Thus, in the only jury trial right cases involving amended complaints that we have
reviewed, we considered the claims pleaded in the amended complaints rather than
ignoring those claims.
¶22 Farm Credit’s argument that trial courts must ignore the claims in a plaintiff’s
amended complaint when conducting a jury trial right analysis stems from its
misunderstanding of our holdings in Tiger Placers, 54 P.2d at 892, Johnson v. Neel, 229


14
P.2d 939, 945 (Colo. 1951), and Miller, 388 P.2d at 766. The divisions of the court of
appeals that have adopted the rule Farm Credit proposes misconstrued these cases as
well. See Carder, 97 P.3d at 187; DeWitt, 216 P.3d at 63. Neither Tiger Placers nor
Johnson nor Miller suggests that trial courts must ignore the claims in a plaintiff’s
amended complaint when conducting a jury trial right analysis, and we disapprove of
any cases holding that they do.
¶23 In Tiger Placers, which involved an equitable lawsuit met by a counterclaim for
damages, we applied the Selfridge rule and held that while the counterclaim “presented
issues determinable at law, the complaint fixed the nature of the suit and by what arm
of the court it should be tried.” 54 P.2d at 892. Johnson added the word “original” to
the Tiger Placers rule. 229 P.2d at 945 (“[I]n Tiger Placers, [we] recognized the rule that
the original complaint filed in an action fixes ‘the nature of the suit.’”). After Johnson,
this “original complaint” language became a fixture in the articulation of the Selfridge
rule both by this court and, more often, by the court of appeals. See, e.g., Miller, 388
P.2d at 765–66; DeWitt, 216 P.3d at 63; Carder, 97 P.3d at 187; Citicorp Acceptance Co. v.
Sittner, 772 P.2d 655, 656 (Colo. App. 1989); In re Tr. of Malone, 658 P.2d 284, 286 (Colo.
App. 1982). However, Johnson does not stand for the principle that trial courts must
consider only those claims in a plaintiff’s original complaint—as distinct from its
amended complaint—when conducting a jury trial right analysis. Instead, Johnson
merely reinforces the basic Selfridge rule that a court should not consider the
defendant’s counterclaims when determining the availability of a jury trial. See
Johnson, 229 P.2d at 943–45. First, Johnson was about a party’s waiver of its right to a


15
jury trial, not its entitlement to a jury trial. Id. Second, we decided Johnson on
equitable estoppel grounds, and we expressly declined to apply the rule from Tiger
Placers. Id. at 945. Third, and most importantly, Johnson did not use the phrase
“original complaint” to distinguish between a plaintiff’s initial complaint and a later
amended complaint because it did not involve an amended complaint at all. See id. at
940–41.
¶24 Finally, Miller quoted the “original complaint” language from Johnson, but
Miller reinforces only that the plaintiff’s claims, not the defendant’s, determine the
nature of an action for purposes of the jury trial right. 388 P.2d at 765–66. In that case,
we applied the Selfridge rule to hold that the defendants were not entitled to a jury trial
under Rule 38 because the plaintiff’s complaint for foreclosure sounded in equity, and
the defendants’ counterclaim for breach of contract did not change that. Id. at 764–65.
And, like Johnson, Miller did not involve an amended complaint. See id. at 764.
¶25 Thus, none of our cases should be read to support a rule that limits trial courts to
considering only the claims in a plaintiff’s initial complaint to determine the basic thrust
of a plaintiff’s cause of action, and we disapprove of the court of appeals cases that
construe them that way. Instead, our cases support our holding that upon receipt of a
proper jury demand under Rule 38 a trial court must consider the claims in the
plaintiff’s most-recently-filed complaint to determine whether the case must be tried to
a jury. See Plains Iron Works, 210 P. at 697.


16
D. Application to Farm Credit’s Amended Complaint
¶26 After examining Farm Credit’s amended complaint, we conclude that the basic
thrust of Farm Credit’s action against Mason was legal, meaning Mason was entitled to
a jury trial.
¶27 There are two methods to determine whether an action is legal or equitable.
Peterson, 99 P.3d at 597. Under the first method, courts examine the nature of the
remedy sought: “Actions seeking monetary damages are considered legal while actions
seeking to invoke the coercive power of the court, such as those seeking injunctions or
specific performance, are deemed equitable.” Id. Under the second method, courts
look to the historical nature of the right that a plaintiff is seeking to enforce. Id. at 597–
98. If the plaintiff is seeking to enforce a right historically decided by equity courts, the
claim is equitable. Id. If the right was historically enforced by a court of law, the claim
is legal. See id. at 598. “[W]e have generally preferred using the remedial method in
deciding whether a claim is legal or equitable.” Id. However, both methods support
our conclusion that Farm Credit’s amended complaint was primarily legal.
¶28 Farm Credit’s amended complaint brought claims against Mason for conversion,
replevin, and an accounting. We examine each claim in turn.
¶29 First, “[c]onversion is any distinct, unauthorized act of dominion or ownership
exercised by one person over personal property belonging to another.” Byron v. York
Inv. Co., 296 P.2d 742, 745 (Colo. 1956). Actions for conversion often, if not always, seek
money damages equivalent to the value of the personal property that was converted.
See Md. Cas. Co. v. Messina, 874 P.2d 1058, 1065 (Colo. 1994) (acknowledging that in a


17
successful claim for conversion, the defendant “may justly be required to pay the other
the full value of the chattel”). As a result, claims for conversion have been considered
actions at law requiring a trial by jury upon demand. See, e.g., Montgomery v. Tufford,
437 P.2d 36, 37 (Colo. 1968) (reviewing a conversion claim that was tried before a jury).
Farm Credit’s conversion claim against Mason is likewise legal, and Farm Credit does
not dispute that. Farm Credit alleged that Mason used or disposed of harvested crops,
growing crops, livestock, unmanufactured farm products, and farm machinery
belonging to Farm Credit. This claim necessarily seeks money damages to replace the
converted collateral. Therefore, it is a legal claim.
¶30 Second, Farm Credit’s claim for replevin is also a cause of action at law.
Replevin is, and historically has been, “a possessory action in which a claimant seeks to
recover both possession of personal property that has been wrongfully taken or
detained and damages for its unlawful detention.” In re Marriage of Allen, 724 P.2d
651, 656 (Colo. 1986); compare Code of Civil Procedure, ch. 5, § 86 (1908), with C.R.C.P.
104 (each defining replevin in substantially the same way). The civil jury trial right in
Colorado has applied to such actions almost since its inception. Compare Code of Civil
Procedure, ch. 12, § 190 (1908), with C.R.C.P. 38 (both providing for trial by jury in
“actions for the recovery of specific real or personal property, with or without
damages”). As a result, Colorado courts have permitted actions in replevin to be tried
before a jury. See, e.g., Israel v. Day, 68 P. 122, 124 (Colo. App. 1902) (reviewing on
appeal a replevin action tried to a jury). Thus, tracing its historical roots, replevin is an
action at law.


18
¶31 Additionally, Farm Credit’s claim for replevin against Mason sought a legal
remedy. Farm Credit’s replevin claim alleged that Mason harvested certain crops
belonging to Farm Credit and then sold, transferred, used, or stored the crops. Farm
Credit sought any proceeds from the sale of the crops, including any livestock that
consumed them. Farm Credit argues that, as a secured creditor, its replevin claim
against Mason was in the nature of a foreclosure and must be considered equitable
under Western National Bank of Casper v. ABC Drilling Co., 599 P.2d 942 (Colo. App.
1979). In Western National, a creditor sought to replevy an oil rig from a debtor in
default pursuant to section 4-9-503(1), C.R.S. (1973) (currently located at § 4-9-609,
C.R.S. (2017)). 599 P.2d at 946–47. The court of appeals held that the debtor was not
entitled to a jury trial because, although Rule 38 applies in actions for the recovery of
personal property, “the rule is not intended to extend to actions involving the
repossession of collateral by a secured party.” Id. at 947. Crucially, the court of appeals
noted that section 4-9-503(1) permitted the secured party to take possession of collateral
upon the debtor’s default “without judicial process.” Id. Because of that language and
the defendant’s status as a debtor to the plaintiff, the court of appeals held that “the
secured party’s remedy [was] in the nature of a foreclosure, an equitable action which is
to be tried to the court.” Id. That is not the case here. Mason is not a debtor of Farm
Credit, so Farm Credit’s replevin claim against him was not in the nature of a
foreclosure; it was instead an ordinary replevin claim triable to a jury. See Citicorp, 772
P.2d at 656 (holding that a replevin claim by a secured creditor to collect proceeds of
collateral from a third party non-debtor was legal, not equitable). Finally, the parties agree that Farm Credit’s claim against Mason for an
accounting was an equitable claim. See Peterson, 99 P.3d at 599 (acknowledging that a
claim requesting an accounting is equitable). Nonetheless, the basic thrust of Farm
Credit’s action against Mason is legal because its legal claims for replevin and
conversion are more substantive and more numerous than its equitable claim for an
accounting. Accordingly, Mason was entitled to a jury trial.

Outcome: For the foregoing reasons, we reverse the judgment of the court of appeals and
remand the case to that court for further proceedings consistent with this opinion.

Plaintiff's Experts:

Defendant's Experts:

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