This was a contract dispute. Darryl asserted that the lender did not comply with the statutory noticing requirements of C.R.S. § 5-5-111 prior to repossessing his Jeep. The lender claimed that they mailed the Notice of Default to Darryl at least once prior to repossessing the vehicle.
At trial Darryl intended to prove that the lender mailed the Notice to an obsolete address and that they intended to repossess his car (and resell it) without permitting Darryl a defense. Darryl intended to prove that the lender knew of his new address because they'd sent a coupon book for monthly payments to that new address — yet they sent the Notice to repossess to Darryl's old address.
Darryl timely filed and paid for a jury trial. Darryl submitted his jury instructions six days before trial, and such was noted in the docketing entries. On the morning of trial, Judge Brooke Jackson said he didn't see any jury instructions — so forget about a jury.
When Judge Jackson had to acknowledge that the instructions were filed, as proven by the docketing entries, he then said that only one instruction was properly formatted and since they were submitted "late" he was denying a jury trial. However, Darryl's Instructions were submitted within the time required by Local Rule 121 ¶'s 1-19 and 16 (d) in that there was no Pre Trial Conference at which to submit the instructions. Because the issue — as to whether or not proper notice had been issued prior to repossession of the Plaintiff's property — was an issue of credibility, a jury trial was essential to Darryl. It has been the experience of the Equal Justice Foundation that a trial to a judge by a man is simply a long, slow way of pleading guilty, or losing as in this case.
The lender did not claim to have mailed the Notice by Certified U.S. Mail. Therefore, the lender had no credible physical evidence, i.e., a receipt from the Post Office, with which to determine the facts in their defense. It was Darryl's evidence, an envelope with the wrong address on it produced during discovery, versus the lender's ability to lie.
The Colorado Court of Appeals has ruled that a trial by jury is an absolute right if a jury demand has been made and the fee has been paid, Whaley v Keystone Life Insurance, 811 P2d 404. There, the Court held, "...that the right to a jury trial may be lost only for the reasons enumerated in CRCP 39(a)."
Rule 39(a) states that a jury trial can be lost, or waived, only if stipulated to by the parties, or if the issues are not properly before a jury, or if a party fails to appear for trial. None of the three conditions for vacating a jury trial existed in the instant matter. Therefore, Judge Brooke Jackson arbitrarily, and without support in law, denied Darryl his right to have a jury of his peers determine the facts in this case.
Additionally, to assert that the Plaintiff should have been "punished" for not submitting perfectly formatted jury instructions is also in error. The Court of Appeals addressed this premise in the Whaley case by saying, "...we note that if the right to a jury trial is lost by a court sanction, then the resulting trial to the court could be viewed as 'punishment' to the party that initially sought a jury trial. It is unacceptable for a court trial to be imbued with such a negative connotation."
This is especially significant here in that the Plaintiff, appearing pro se, frustrated Judge Jackson with his lack of knowledge of court procedure. In response, Judge Brooke Jackson expressed his anger at the Plaintiff, several times on several occasions in no uncertain terms, particularly on November 5, 1998 when the Plaintiff objected to the summary dismissal of his trial, and motioned to reset the trial date.
Judge Brooke Jackson clearly used his position to exact revenge on Darryl's frequent vocal objections to the loss of his property without due process.
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