If you want a jury to decide your case, you gotta pay the fee, on time!
The Colorado Court of Appeals, in a case of first impression, today decided there are no extensions of time to pay the jury fee under CRCP 6. The case is Premier Members Federal Credit Union v. Block.
One of the appellants appealed the trial court's denial of a jury trial because the party, his lawyers!, failed to timely pay the jury fee. His lawyers argued on appeal that "the trial court should have applied C.R.C.P. 6(b), which governs enlargements of time, and gives courts the discretion to permit an act to be performed after the expiration of a deadline upon a showing of excusable neglect." The court of appeals said sorry, the deadline for paying a jury fee is controlled by statute, CRS 13-71-144(1)(c) and so Rule 6 does not apply, end of story. That is the case even though fees are required by C.R.C.P. 38(c) and (b).
The appellate court first made an important distinction. Ordinarily, the court will review "a trial court’s denial of an enlargement of time within which to perform an act for an abuse of discretion." But application of the rules of civil procedure is different. Review of the application of the rules is de novo, meaning no deference to the trial court.
Indeed, the appellant, although at first represented by counsel, later proceeded pro se (meaning all by his lonesome). The poor lawyer-less party made an oral request followed by a written motion asking the trial court "to allow him to pay the jury fee out of time, asserting that his attorney had negligently failed to pay the fee."
The lonesome party even filed two motions for reconsideration. He argued that "the court staff and the e-filing system should have charged the fee upon his attorney’s filing of the jury demand." Creative.
The appellate court noted: "Determinative here, the right to a jury trial upon the filing of a jury fee is not only governed by court rule, but also by statute." Colorado statute, Section 13-71-144(1)(c), provides: "Failure to pay the jury fee at the time of filing the demand, and no later than ten days after the service of the last pleading directed to any issue triable by a jury, shall constitute a waiver of a jury trial by the demanding, nonpaying party." Italics by the court! We can see where this is going.
The court held: "There is no express statutory exception to the deadline, such as a claim of excusable neglect." Here's the legal sauce:
When a statute sets forth a particular deadline or procedure, “court-promulgated rules simply do not apply.” People ex rel. S.M.A.M.A., 172 P.3d 958, 961 (Colo. App. 2007); see also Hernandez v. Downing, 154 P.3d 1068, 1071 (Colo. 2007) (insofar as the Colorado Rules of Civil Procedure are inconsistent or conflict with a Colorado statute, they do not govern). Indeed, “[b]y its own terms, C.R.C.P. 6(b) applies only to requests to enlarge deadlines set forth in the rules of civil procedure, a notice under those rules, or a court order. The rule does not apply to statutorily established time periods.” Antolovich v. Brown Grp. Retail, Inc., 183 P.3d 582, 592 (Colo. App. 2007).
Lawyers, pay the fee on time, or else call your malpractice carrier!