dissenting.
Whether or not Peterson breached his duty to prudently invest the funds entrusted to him, I do not believe this award of punitive damages is permitted by the statutes of this jurisdiction. In what I consider to be a mistaken reading of a comment to a restatement of the law of trusts,1 the majority finds an exception to the proposition that trust litigation was historically equitable in nature, thereby permitting a jury trial and punitive damages under the circumstances of this case. Because I believe that the majority's articulation of the distinction between an action formerly at law and an action formerly in equity is not historically accurate and will unjustifiably expand the right to jury trials and punitive damages, I respectfully dissent.
Punitive, or exemplary, damages have long been governed by statute in this jurisdiction. See § 18-21-102(1)(a), 5 C.R.S. (2008). Although the pertinent statute, on its face, permits only a jury to award exemplary damages, this court has long held, without legislative reaction, that the legislative intent in using this term was merely to limit such awards to cases that are triable to a jury, whether or not a jury actually serves as the trier of fact in a particular case. See Calvat v. Franklin, 90 Colo. 444, 449-50, 9 P.2d 1061, 1063-64 (1932); see also Sky Fun 1 v. Schuttloffel, 27 P.3d 361, 370 (2001). Because there is no constitutional right to a civil jury trial in this jurisdiction, see Garhart v. Columbia/HealthONE, L.L.C., 02SA182, slip op. at 20-22 (August 16, 2004), and because no statute or rule of civil procedure enlarges the right to a jury trial that existed at law, see Miller v. District Court, 154 Colo. 125, 128, 388 P.2d 763, 765 (1964), C.R.C.P. 38, the former distinction between actions at law and actions in equity survives for determining the right to a jury trial and, therefore, to an award of exemplary damages. See Kaitz v. District Court, 650 P.2d 553, 555 n. 3 (Colo.1982).
While the nature of the available remedies may be a strong indicator of the legal or equitable nature of an action, see Continental Title Co. v. District Court, 645 P.2d 1310, 1317 (Colo.1982), the fact that a plaintiff seeks a money judgment has by no means been considered decisive that the action is one at law. See id. ("We conclude, however, that such back pay is an integral part of the equitable remedy provided by the statute and was not intended to create a legal remedy invoking the right to a jury trial."); Cree v. Lewis, 49 Colo. 186, 112 P. 326 (1910). Rather than constituting a special case or an exception to a rule based on recovery of money judgments, however, trust litigation merely demonstrates that money judgments sometimes result from actions that developed in equity, like actions at law.
*601-613While we clearly acknowledged -in Kaitz that actions at law could arise from the circumstances of a trust or from certain actions of a trustee, we also made clear that actions against a trustee for breach of trust are equitable in nature. Because there was no "allegation of any breach of any express duty to pay a sum certain" in that case, we held that the plaintiffs were not entitled to an action at law. Kaitz, 650 P.2d at 555. Relying heavily on what I consider to be its misreading of Comment d to section 198(1) of the Restatement, the majority distinguishes Kaitz as involving a suit by the beneficiaries rather than a successor trustee and holds that "the relationship between the parties . makes the action one that can be maintained at law." Maj. op. at 598-99. In Kaitz, however, we held that the plaintiffs could not bring an action at law, not because they were beneficiaries, but because, as is the case here, they were seeking relief for the breach of a fiduciary duty. Kaitz 650 P.2d at 555.
The example in Comment d does not turn on a plaintiff's status as a successor trustee but rather on the nature of his action to recover misappropriated trust monies. The Comment merely recognizes that if a trustee is under a duty to pay money "immediately and unconditionally," an action at law may be maintained against him "to recover the amount misappropriated," whether the party to whom the duty is owed is a new trustee or a beneficiary, or someone else altogether. See Nobile v. Pension Comm., 611 F.Supp. 725, 729 (S.D.N.Y.1985). By postulating "a new trustee," the example merely presents a realistic situation in which such an immediate and unconditional duty could exist.
While the Comment's reference to "misappropriated" money also appears to be illustrative rather than definitive, it is indicative of the money that could be the subject of a duty of immediate and unconditional payment. As the illustrations which follow the text demonstrate, it contemplates merely an action based on the failure of the trustee to perform a ministerial act expressly mandated by the trust instrument, not a breach of his trust by failing to increase the trust funds through prudent investment. Id. Whether or not it would constitute misappropriation, even the Seventh Cireuit, upon which the majority relies for support of its interpretation of Comment d, affirmed the right to a jury trial only where the former trustee actually lost money entrusted to him through poor investments and, therefore, was unable to turn over the previously existing trust funds to the new trustee. See Jefferson Nat'l Bank of Miami Beach v. Central Nat'l Bank in Chicago, 700 F.2d 1143 (7th Cir.1983).
Punitive damages were awarded against Peterson, not for lost trust funds, which did not exceed $15,000 in this case,2 but for monies he failed to generate by prudent investing. Neither the Restatement, nor any other authority of which I am aware, suggests that a trustee has a duty to "immediately and unconditionally" pay money that is not and never has been part of the trust to a new trustee, merely because he should have invested more prudently. Whether brought by a new trustee or someone else, a claim for breach of trust by failing to invest prudently is equitable in nature and may not be tried to a jury.
Because I believe the majority's mechanical distinction between suits brought by beneficiaries and those brought by new trustees is unsupportable and will simply amount to a prescription for punitive damage awards against trustees who fail to meet the standards required of prudent investors, I respectfully dissent.
. See Restatement (Second) of Trusts § 198 cmt. d (1959).
. See § 13-21-102(1)(@) (limiting exemplary damages to "an amount which is equal to the amount of the actual damages awarded to the injured party").