Background
The plaintiffs own and operate the Source Hotel, market hall, and parking garage in Denver’s River North Art District. They sued Mountain Cement Company, alleging that dust from its Portland cement terminal damaged their properties and operations. The original complaint asserted trespass, nuisance, and negligence claims, sought injunctive relief and damages, and did not include a jury demand.
Neither side timely demanded a jury trial or paid the required fee, and the case was set for a bench trial. Ten months later, two months before trial, plaintiffs sought leave to amend. Their proposed pleading added factual detail, alleged continuing trespass and continuing nuisance based on Mountain Cement’s asserted failure to remove dust, requested exemplary damages, and for the first time demanded a jury trial. The district court allowed both the amendment and the jury demand, reading Mason v. Farm Credit of Southern Colorado as giving a party a new opportunity to demand a jury after amendment.
The Court’s Holding
In an original proceeding under C.A.R. 21, the Colorado Supreme Court made its order to show cause absolute and held that an amended pleading revives a previously waived civil jury-trial right only if it raises new triable issues that were not presented in the original pleadings. New legal theories or clarifying factual details based on the same underlying facts do not suffice.
The plaintiffs’ continuing-trespass and continuing-nuisance allegations concerned the same dust-emissions dispute underlying their original trespass and nuisance claims. The exemplary-damages request also could not create a new triable issue because exemplary damages are a remedy, not an independent claim for relief. The amended complaint therefore did not revive plaintiffs’ waived jury right, and their jury demand was untimely. Mason did not establish a categorical second chance to demand a jury whenever a pleading is amended.
Key Takeaways
- Under C.R.C.P. 38, a waived jury-trial right may be revived by amendment only as to genuinely new triable issues.
- Adding theories of recovery or factual clarification arising from the same conduct and dispute does not restart the jury-demand deadline.
- A request for exemplary damages is a remedy tied to actual damages, not a standalone claim that independently supports a jury demand.
Why It Matters
The decision establishes a clear Colorado rule for late jury demands following amended pleadings. Parties cannot avoid C.R.C.P. 38’s waiver provision through insubstantial amendments to already pleaded claims.
Litigants should assess and timely preserve jury rights at the outset of a case. A later amendment will permit a renewed demand only when it materially introduces new issues requiring adjudication.