26 CO 62, 26SA84, SCP 3330 Brighton v. Mountain Cement

OCR transcription for search; preserved printed pages are authoritative

The opinion summaries are not part of the Colorado Supreme
Court's opinion. They have been prepared solely for the reader's
convenience. As such, they may not be cited or relied upon. If
there is any discrepancy between the language in the summary
and the opinion, the language in the opinion controls.

ADVANCE SHEET HEADNOTE
September 14, 2026

2026 CO 62

No. 26SA84, SCP 3330 Brighton OPCO, LLC v. Mountain Cement Co. LLC-
Waiver of Right to Jury Trial -Whether Amended Complaint Revives Right to
Jury Trial.

In this C.A.R. 21 proceeding, the supreme court considers when, under
C.R.C.P. 38, a party who has otherwise waived its right to a jury trial in a civil
action may revive that right based on an amended pleading.

The court now concludes that to establish a right to a jury trial based on an
amended complaint when a party has previously waived its jury trial right, the
party must do more than assert new legal theories or clarifying details based on
the same basic facts as alleged in the original complaint. Rather, the party must
assert new triable issues not previously raised in the original pleadings.

Applying these principles here, the court concludes that the amended
complaint filed by plaintiffs, which sought to add continuing trespass, continuing
nuisance, and exemplary damages claims to plaintiffs' previously asserted
trespass, nuisance, and negligence claims, did not raise any new triable issues that

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had not previously been raised in their original complaint. Instead, the amended
complaint merely asserted new legal theories based on the same facts as alleged in
the original complaint. Accordingly, the amended complaint did not revive
plaintiffs' previously waived jury trial right, and thus, the jury demand filed with
plaintiffs' amended complaint was untimely.

The court therefore makes its order to show cause absolute and remands
this case to the district court for further proceedings consistent with this opinion.

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# The Supreme Court of the State of Colorado 2 East 14th Avenue . Denver, Colorado 80203

2026 CO 62

Supreme Court Case No. 26SA84
Original Proceeding Pursuant to C.A.R. 21
District Court, City and County of Denver, Case No. 25CV30565
Honorable Sarah B. Wallace, Judge

In Re
Plaintiffs:

SCP 3330 Brighton OPCO, LLC; SCP 3330 Brighton, LLC; SCP 3350 Brighton,
LLC; and SCP 3330 Brighton Garage, LLC,

V.

Defendant:

Mountain Cement Company LLC.

Order Made Absolute
en banc
September 14, 2026

Attorneys for Plaintiffs:
Greenberg Traurig, LLP
Christopher J. Neumann
Stacy A. Carpenter
H. Camille Papini-Chapla
Nicholas D. Banelli
Austin Evans
Denver, Colorado

Womble Bond Dickinson (US) LLP

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Kendra N. Beckwith
Denver, Colorado

Attorneys for Defendant:
Davis Graham & Stubbs LLP
Theresa Wardon Benz
Mark E. Champoux
James R. Henderson
Ixchel Parr-Culver
Natalie C. Boldt
Denver, Colorado

Attorneys for Amici Curiae Colorado Defense Lawyers Association and
Colorado Civil Justice League:
Wheeler Trigg O'Donnell LLP
Kevin J. Kuhn
Meghan Frei Berglind
Kelsey A. Finkel
Denver, Colorado

JUSTICE GABRIEL delivered the Opinion of the Court, in which CHIEF
JUSTICE MÁRQUEZ, JUSTICE BOATRIGHT, JUSTICE HOOD, JUSTICE
SAMOUR, JUSTICE BERKENKOTTER, and JUSTICE BLANCO joined.

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JUSTICE GABRIEL delivered the Opinion of the Court.

11 In this C.A.R. 21 proceeding brought by Mountain Cement Company LLC,
we issued an order to show cause to consider principally when, under C.R.C.P. 38,
a party who has otherwise waived its right to a jury trial in a civil action may revive
that right based on an amended pleading.1 We now conclude that to establish a
right to a jury trial based on an amended complaint when a party has previously
waived its jury trial right, the party must do more than assert new legal theories
or clarifying details based on the same basic facts as alleged in the original
complaint. Rather, the party must assert new triable issues not previously raised
in the original pleadings. Consequently, we reject plaintiffs' contention that our
opinion in Mason v. Farm Credit of Southern Colorado, ACA, 2018 CO 46, 419 P.3d

1 Mountain Cement's petition framed the issues presented as follows:

1\. Whether a plaintiff that waived its right to demand a civil jury trial
under C.R.C.P. 38 and C.R.S. § 13-71-144 by failing to timely
demand it may then revive its waived right by amending its
pleading to add a request for exemplary damages without adding
any new triable issue of fact.

2\. Whether Mason v. Farm Credit of Southern Colorado, 2018 CO 46,
419 P.3d 975, requires trial courts to afford a categorical "second
chance" to demand a jury whenever a pleading is amended,
regardless of prior waiver and regardless of whether the
amendment introduces any new triable issues of fact.

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975, created a categorical second chance for a party to demand a jury trial
whenever a party amends its pleading.

12 Applying these principles here, we conclude that the amended complaint
filed by plaintiffs SCP 3330 Brighton OPCO, LLC, SCP 3330 Brighton, LLC, SCP
3350 Brighton, LLC, and SCP 3330 Brighton Garage, LLC, which sought to add
continuing trespass, continuing nuisance, and exemplary damages claims to
plaintiffs' previously asserted trespass, nuisance, and negligence claims, did not
raise any new triable issues that had not previously been raised in their original
complaint. Instead, the amended complaint merely asserted new legal theories
based on the same facts as alleged in the original complaint. Accordingly, the
amended complaint did not revive plaintiffs' previously waived jury trial right,
and thus, the jury demand filed with plaintiffs' amended complaint was untimely.
T3
We therefore make our order to show cause absolute, and we remand this
case to the district court for further proceedings consistent with this opinion.

## I. Facts and Procedural History

14
In February 2025, plaintiffs, which own and operate the Source Hotel, the
Market Hall, and a parking garage in the River North Art District in Denver, filed
a complaint against Mountain Cement, alleging that cement dust emitted from
Mountain Cement's Portland cement terminal was adversely affecting plaintiffs'
properties and operations. Based on these allegations, plaintiffs brought claims

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for trespass, nuisance, and negligence and sought injunctive relief (1) prohibiting
Mountain Cement from conducting operations at its cement terminal that emit
dust at levels adversely impacting plaintiffs' properties and (2) requiring
Mountain Cement to perform appropriate air quality sampling and monitoring to
confirm compliance with the injunction. Plaintiffs further sought monetary
damages for the harm to their properties.

15
Mountain Cement subsequently filed an answer generally denying liability.
Neither party demanded a jury trial or paid the requisite jury fee, and the case was
set for a bench trial.

16
Ten months later, and just two months before the scheduled bench trial,
plaintiffs filed a motion for leave to amend their complaint. As pertinent here,
plaintiffs' proposed amended complaint sought to supplement plaintiffs' factual
allegations with clarifying details and further sought to add two causes of action,
one for trespass based on the failure to remove the cement dust ("continuing
trespass") and one for nuisance based on the failure to remove the cement dust
("continuing nuisance"). The amended complaint thus purported to assert two
trespass claims (one for the initial intrusion of the cement dust and one for
continuing trespass) and two nuisance claims (one for the initial intrusion of the
cement dust and one for continuing nuisance). Plaintiffs also sought to add a

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request for exemplary damages. And at the end of the proposed amended
complaint, plaintiffs, for the first time, demanded a jury trial.

17
Mountain Cement opposed plaintiffs' motion for leave to amend, arguing,
among other things, that the amendment was untimely and that even if the court
were to allow the amendment, plaintiffs were not entitled to demand a jury
because the proposed amended complaint did not present any new triable issues
of fact.

18
8 The district court, however, granted plaintiffs' motion for leave to amend
and, in doing so, also granted plaintiffs' demand for a jury trial. Regarding the
new jury demand, the court expressed its view that in light of our opinion in
Mason, T1 15-18, 419 P.3d at 980-81, "the caselaw is clear that once a party has
been granted leave to amend their complaint or answer, the party gets a second
chance to file a jury demand."

19
9 Mountain Cement then petitioned this court pursuant to C.A.R. 21 for
immediate relief, and we issued an order to show cause.

## II. Analysis

110 We begin by addressing our jurisdiction under C.A.R. 21 and setting forth
the applicable standard of review. We then turn to C.R.C.P. 38 and consider
whether and when an amended pleading may revive a party's previously waived
jury trial right. We end by applying these principles to the facts before us.

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## A. Original Jurisdiction

111 Our decision to exercise our original jurisdiction under C.A.R. 21 is a matter
within our sole discretion. People v. Lawrence, 2026 CO 39, 1 12, 590 P.3d 278, 281.
An original proceeding under C.A.R. 21 is an extraordinary remedy that is limited
in its purpose and availability. Lawrence, 1 12, 590 P.3d at 281. As pertinent here,
we have exercised our original jurisdiction under C.A.R. 21 when a district court's
procedural ruling will have a significant effect on a party's ability to litigate the
merits of the controversy. McConnell v. Dist. Ct., 680 P.2d 528, 530 (Colo. 1984).
This includes a court's determination as to whether a party will receive a jury trial.
Id. at 531. We have also exercised our discretion under C.A.R. 21 to hear matters
that present questions of significant public importance that we have not
previously considered. Lawrence, 1 12, 590 P.3d at 281-82. We will grant relief
under C.A.R. 21 "only when no other adequate remedy is available," including by
way of a direct appeal. C.A.R. 21(a)(2).

112 Here, the district court's order granting plaintiffs' jury trial demand is a
procedural ruling that may have a significant effect on this litigation and, in our
view, could not adequately be remedied by way of a direct appeal. Moreover, the
question of whether and when a party can revive a previously waived jury trial
right by filing an amended pleading presents a substantial issue of public
importance that we have not previously considered. Accordingly, we believe that

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the exercise of our original jurisdiction under C.A.R. 21 is warranted and
appropriate here.

## B. Standard of Review

113 We interpret the Colorado Rules of Civil Procedure de novo. State ex rel.
Weiser v. Ctr. for Excellence in Higher Educ., Inc., 2023 CO 23, 1 34, 529 P.3d 599, 607.
In construing our procedural rules, we employ the same interpretive principles
applicable to statutory construction. Buell v. People, 2019 CO 27, 1 19, 439 P.3d 857,
861.

114 Accordingly, we seek to determine and effectuate the rule framers' intent.
See N. Integrated Supply Project Water Activity Enter. v. VIMA Partners, LLC, 2026
CO 29, 1 10, 588 P.3d 727, 731. To do this, we apply words and phrases in
accordance with their plain and ordinary meanings, and we consider the entire
scheme of the rules to give consistent, harmonious, and sensible effect to all of its
parts. See id. We also must avoid interpretations that would render any words or
phrases of a rule superfluous or that would lead to illogical or absurd results. See
id. And because we respect the framers' choice of language, we may not add
words to a rule or subtract words from it. See id. Finally, if a rule is unambiguous,
then we will apply it as written. Buell, [ 19, 439 P.3d at 861.

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## C. C.R.C.P. 38

115 Mountain Cement contends that a plaintiff cannot revive a previously
waived jury trial right by filing an amended complaint that raises no new triable
issues but rather asserts new legal theories based on the same facts as alleged in
the original complaint. Mountain Cement further asserts that this is what
plaintiffs are attempting to do here. We agree with both points.

116 There is no constitutional right to a jury trial in a civil action in Colorado.
Ctr. for Excellence in Higher Educ., 1 37, 529 P.3d at 608. Rather, the right derives
from C.R.C.P. 38, which, as pertinent here, provides that "[u]pon 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, ... all
issues of fact shall be tried by a jury." C.R.C.P. 38(a); Ctr. for Excellence in Higher
Educ., 1 37, 529 P.3d at 608. Even when our constitution or a statute does not
expressly provide a civil jury trial right, however, we have interpreted C.R.C.P. 38
to provide such a right in proceedings that are legal, as opposed to equitable, in
nature. Ctr. for Excellence in Higher Educ., 1 38, 529 P.3d at 608.

117 C.R.C.P. 38 also sets forth the procedural requirements for demanding a jury
trial in a civil case. Under that rule, a party may demand a jury trial "of any issue
triable by a jury by filing and serving upon all other parties . . . a demand therefor
at any time after the commencement of the action but not later than 14 days after

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the service of the last pleading directed to such issue." C.R.C.P. 38(b). The
demanding party must also pay the requisite jury fee upon the filing of its demand.
Id. A party's failure to file and serve a jury demand in accordance with
C.R.C.P. 38's requirements "constitutes a waiver of that party's right to trial by
jury." C.R.C.P. 38(e).

118 Although plaintiffs concede that they did not demand a jury trial in
connection with their original complaint, they contend that they revived their jury
trial right when they amended their complaint. In plaintiffs' view, their amended
complaint, which added claims for continuing nuisance and continuing trespass
as well as a demand for exemplary damages, constituted "the last pleading
directed to such issue[s]" under the language of C.R.C.P. 38(b). Accordingly,
plaintiffs argue that under C.R.C.P. 38(b)'s plain language, they had fourteen days
following the filing of their amended complaint to demand a jury.

119 Mountain Cement disagrees. It argues that the operative language in the
rule is "issue," and, thus, an amended complaint restarts the clock for a jury
demand only when the amended complaint presents new triable issues not raised
in the original pleadings. In Mountain Cement's view, the rule's reference to the
"last pleading" serves only as a temporal marker and functions to differentiate
between types of pleadings that address a given issue (e.g., a complaint versus an
answer).

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120 The meaning of C.R.C.P. 38(b)'s language and how it applies when a party
has previously waived its jury trial right but subsequently files an amended
pleading is an issue of first impression for this court. Federal courts, however,
have interpreted nearly identical language in the parallel federal rule in similar
circumstances. See Fed. R. Civ. P. 38(b)(1) (requiring that a jury demand be made
"no later than 14 days after the last pleading directed to the issue is served").
Absent a compelling justification unique to Colorado practice, we have generally
deemed it preferable to interpret the Colorado Rules of Civil Procedure
harmoniously with our understanding of similarly worded federal rules of
practice. Warne v. Hall, 2016 CO 50, 1 12, 373 P.3d 588, 592. Accordingly, we look
for guidance to federal courts' interpretation of how amended pleadings impact a
party's jury demand.

121 In reading Fed. R. Civ. P. 38(b)(1)'s requirement that a jury demand be
made "no later than 14 days after the last pleading directed to the issue is served,"
federal courts have, as Mountain Cement argues, deemed the word "issue" to be
the operative language triggering the right to demand a jury. Specifically, federal
courts have consistently read Fed. R. Civ. P. 38(b)(1) to require parties who have
otherwise waived their jury trial right to raise new issues in their amended or
supplemental pleading in order to revive their right to demand a jury. See, e.g.,
Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 356 (2d Cir. 2007) ("A

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litigant who has waived a jury may nonetheless demand one with respect to new
issues raised by later pleadings .... "); Fredieu v. Rowan Cos., 738 F.2d 651, 653 (5th
Cir. 1984) ("An amended or supplemental pleading that raises new issues enables
a party to request a jury trial for those issues in the manner established by Rule
38(b)."); Trixler Brokerage Co. v. Ralston Purina Co., 505 F.2d 1045, 1049 (9th Cir.
1974) ("The answer [to whether a party made a timely jury demand for issues set
forth in an amended complaint] lies in whether the [added] claims created new
issues within the meaning of Rule 38(b), F.R.Civ.P."); Williams v. Farmers & Merchs.
Ins. Co., 457 F.2d 37, 38 (8th Cir. 1972) ("Once waived, the [jury] right is revived by
amendments to the pleadings only if new issues are raised in such amendments.
[A]nd in such event the right is revived only as to the new issues.") (citations
omitted).

122 In stating this rule, federal courts have distinguished between new issues
raised by later pleadings and mere "artful rephrasings" of existing issues.
Westchester Day Sch., 504 F.3d at 356 (quoting Rosen v. Dick, 639 F.2d 82, 94 (2d Cir.
1980)); see also Fredieu, 738 F.2d at 653 ("[A]n amended or supplemental pleading
that merely restates issues previously raised does not revive the right to demand
a jury trial when one had not earlier been demanded.").

123 In addition, federal courts have made clear that an amended complaint
that merely asserts new theories of recovery based on the same facts asserted in

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the original complaint does not raise new issues for purposes of reviving a
previously waived jury trial right. See Westchester Day Sch., 504 F.3d at 356 ("An
amended complaint asserting new theories of recovery, based on the same facts as
the original complaint, will not renew a defendant's right to a jury trial when that
right was waived with respect to the original complaint."); Nissan Motor Corp. in
U.S.A. v. Burciaga, 982 F.2d 408, 409 (10th Cir. 1992) (per curiam) ("To establish a
right to a trial by jury, the amended complaint must do more than merely raise
new theories of recovery based on the same facts as those issues raised in the
original complaint."); Trixler, 505 F.2d at 1050 ("[W]e hold that the presentation of
a new theory does not constitute the presentation of a new issue on which a jury
trial should be granted under F.R.Civ.P., Rule 38(b).").

124 And new facts that solely provide clarity to existing issues in the original
complaint are likewise insufficient to constitute new issues for purposes of
reviving a waived jury trial right. See LaMarca v. Turner, 995 F.2d 1526, 1545 (11th
Cir. 1993) ("New facts that 'merely clarif[y] "the same general issues" raised in the
original complaint' do not create new issues of fact upon which to assert a jury
demand.") (alteration in original) (quoting Lanza v. Drexel & Co., 479 F.2d 1277,
1310 (2d Cir. 1973) (en banc)); In re N-500L Cases, 691 F.2d 15, 23 (1st Cir. 1982)
("One issue is the same as another when it is based on the same conduct or
concerns the same general area of dispute."); Walton v. Eaton Corp., 563 F.2d 66, 72

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(3d Cir. 1977) (noting that amended pleadings that concern the same general issues
as previous pleadings do not raise new issues under Fed. R. Civ. P. 38(b), even if
they differ from the earlier pleadings in some particulars).

125 Instead, "something more" is required for an amendment to constitute a
new issue in a supplemental pleading that would support a jury demand. Rosen,
639 F.2d at 94. To determine whether an amendment provides that "something
more," courts compare the original and amended pleadings to assess the degree
of similarity of both the facts and the legal framework in which the facts are
analyzed. See In re N-500L Cases, 691 F.2d at 23. When an issue "is based on the
same conduct or concerns the same general area of dispute" as another, the issues
are the same, and no new issue is raised for purposes of a jury demand. Id .; see
also Las Vegas Sun, Inc. v. Summa Corp., 610 F.2d 614, 620 (9th Cir. 1979) (concluding
that the issues in a party's amended complaint were the same as those raised in
the original complaint, despite the addition of new legal theories of recovery,
because the complaints "turn[ed] on the same matrix of facts").

126 Applying these principles in In re Financial Federated Title & Trust, Inc.,
309 F.3d 1325, 1330 (11th Cir. 2002), the court concluded that "[t]he case ha[d]
changed" and the defendant's jury right was revived when a bankruptcy trustee's
original complaint had sought to void a $10,000 transfer made to the defendant
but the trustee's amended complaint increased that claim one hundredfold, to over

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$1 million, asserting that the allegedly voidable sum had passed through a conduit
corporation, which the amended complaint added as a defendant. As the court
put it in describing this amended complaint, "This is an entirely different case with
new issues that force new methods of defense." Id.

127 In contrast, in Lanza, 479 F.2d at 1310, which was a securities and common
law fraud action, the court determined that a defendant's right to a jury trial was
waived, despite the plaintiffs having filed an amended complaint, because (1) the
amended complaint added no new issues but instead involved "the same conduct
and the same allegedly false documents" that constituted the basis for the original
claim and (2) "the character of the suit was in no way changed by the
amendments."

128 We are persuaded by the analyses set forth in these federal cases and deem
them consistent with the plain language of C.R.C.P. 38(b).

129 Just as the federal courts have read Fed. R. Civ. P. 38(b) to hinge on the
meaning of the term "issue," we read C.R.C.P. 38's jury trial right also to turn on
the issues raised by a party. See C.R.C.P. 38(a) (providing that upon exercising
one's right to a jury trial "all issues of fact shall be tried by a jury") (emphasis
added); C.R.C.P. 38(b) (providing that a party "may demand a trial by jury of any
issue triable by a jury by filing and serving upon all other parties ... a demand
therefor at any time after the commencement of the action but not later than 14

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days after the service of the last pleading directed to such issue") (emphases
added); C.R.C.P. 38(d) (providing that "[a] demand may specify the issues to be
tried to the jury; in the absence of such specification, the party filing the demand
shall be deemed to have demanded trial by jury of all issues so triable") (emphases
added); see also C.R.C.P. 39(a) (providing that "[w]hen trial by jury has been
demanded and the requisite jury fee has been paid . . . [t]he trial shall be by jury of
all issues so demanded," subject to certain exceptions) (emphasis added);
C.R.C.P. 39(b) (providing that "[i]ssues not demanded for trial by jury . . . shall be
tried by the court") (emphasis added).

130 Thus, in accordance with the reasoning of the federal authorities discussed
above, we conclude that to establish a right to a jury trial based on an amended
complaint when a party previously waived its jury trial right, the party must do
more than assert new legal theories or clarifying details based on the same basic
facts as alleged in the original complaint. Rather, the party must assert new triable
issues not previously raised in the original pleadings.

131 In so concluding, we reject plaintiffs' contention that under C.R.C.P. 38(b),
a party has fourteen days after service of an amended complaint directed to an
issue to demand a jury trial of that issue, regardless of whether the party has
previously raised the same issue and has waived a jury trial as to it. If plaintiffs
were correct in this interpretation, then the rule would allow a party to circumvent

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C.R.C.P. 38(e)'s waiver provision simply by filing an amended pleading with
immaterial changes to a previously filed pleading. This, however, would
effectively render C.R.C.P. 38(e)'s waiver provision meaningless, which we may
not do. See VIMA Partners, 1 10, 588 P.3d at 731.

132 Plaintiffs' construction would also ignore an important distinction between
the federal rules and our own procedural rules. Specifically, even when a party
fails to make a proper jury demand under Fed. R. Civ. P. 38, "the court may, on
motion, order a jury trial on any issue for which a jury might have been
demanded." Fed. R. Civ. P. 39(b). Federal courts thus have discretion to grant a
jury trial despite a party's failure to make a timely demand.

133 Our rules are different. As noted above, C.R.C.P. 38(e) provides, "The
failure of a party to file and serve a demand for trial by jury and simultaneously
pay the requisite jury fee as required by this Rule constitutes a waiver of that
party's right to trial by jury." C.R.C.P. 39(b) then affirms that "[i]ssues not
demanded for trial by jury as provided in Rule 38 shall be tried by the court."
(Emphasis added.)

134 Although C.R.C.P. 39 previously provided Colorado courts with the same
discretion afforded federal courts under Fed. R. Civ. P. 39(b) to order a jury trial
despite the absence of a proper demand, the language of our rule was amended in
1990 to eliminate that discretion. See Machol v. Sancetta, 924 P.2d 1197, 1199 (Colo.

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App. 1996). For this reason as well, our procedural rules make clear that a jury
trial waiver will be enforced, absent the assertion of new triable issues.

135 We thus conclude that under C.R.C.P. 38(b), to revive a right to a jury trial
based on an amended pleading when a party has previously waived its jury trial
right, the party must assert new triable issues not previously raised in the original
pleadings. This provides parties with an opportunity to make renewed jury
demands based on significant factual or legal developments arising during civil
litigation while preventing parties from seeking to revive a previously waived jury
right by making "insubstantial alterations" to their pleadings. Rosen, 639 F.2d at
94.

## D. Application

136 Applying these principles here, we conclude that plaintiffs' amended
complaint did not raise any issues not previously raised in their original
complaint. Plaintiffs' amended complaint merely added clarifying details to
existing facts and new theories of recovery based on the same matrix of facts as
the original complaint, which is insufficient to revive a previously waived jury
demand. See, e.g., Westchester Day Sch., 504 F.3d at 356; Nissan Motor Corp., 982 F.2d
at 409; Fredieu, 738 F.2d at 653. Specifically, the added claims of continuing
trespass and continuing nuisance, which concern the alleged failure to remove
dust emissions, are founded on the same basic factual allegations underlying the

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original claims of trespass and nuisance. The added claims simply assert that the
trespass and nuisance alleged in the original complaint are ongoing. We, however,
do not view such additional allegations as setting forth new triable issues so as to
revive plaintiffs' waived jury trial right.

137 Nor does plaintiffs' added "claim" for exemplary damages raise a new issue
that would revive a previously waived jury demand. It is well settled that a
"claim" for exemplary damages is not, in fact, a standalone claim for relief. See
Ferrer v. Okbamicael, 2017 CO 14M, 1 44, 390 P.3d 836, 848, superseded by statute on
other grounds, Ch. 147, sec. 1, § 13-21-111.5(1.5)(c), 2021 Colo. Sess. Laws 863, 863,
as recognized in, Brown v. Long Romero, 2021 CO 67, 1 4 n.2, 495 P.3d 955, 957 n.2.
Rather, it is a remedy that is tied to an underlying claim for actual damages. See
id. Accordingly, a party may not premise a jury demand on a "claim" for
exemplary damages.

138 Thus, because plaintiffs' amended complaint did not raise new issues
pursuant to the requirements of C.R.C.P. 38, it did not revive plaintiffs' previously
waived right to a jury trial, and therefore, the jury demand filed with plaintiffs'
amended complaint was untimely.

139 Finally, we are unpersuaded by plaintiffs' argument that Mason, 11,
419 P.3d at 977-78, created a categorical right to a new jury demand upon the filing

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of an amended pleading, whether or not a prior pleading was directed to the same
issues. Mason did no such thing.

140 In Mason, 1 2, 419 P.3d at 978, a plaintiff sued a defendant, and neither party
demanded a jury trial. The plaintiff then amended its complaint and added a new
defendant against whom the plaintiff asserted additional claims. Id. at 13,
419 P.3d at 978. That new defendant, not the plaintiff, then requested a jury trial. Id.
at 1 4, 419 P.3d at 978. Accordingly, Mason did not involve any issue of waiver of
the right to a jury trial because the newly added defendant, who had requested
the jury trial, had not previously waived that right. Thus, in Mason, we had no
occasion to address the issue now before us.

141 In any event, Mason is distinguishable. Mason concerned whether claims in
an amended complaint could give rise to a jury trial right at all, given that the
plaintiff had deemed the claims in its original complaint to be equitable in nature
and asserted that those claims were the sole determinants of whether the newly
added defendant could demand a jury trial. Id. at 11 4-6, 419 P.3d at 978-79. The
question before us therefore concerned only whether a district court could look to
an amended complaint to determine whether the nature of a case's claims entitled
a party to a jury trial. Id. at [ 12, 419 P.3d at 980. We did not address whether an
amended complaint automatically renews a party's time to demand a jury trial,

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nor did we conclude that it does. To the extent that the district court construed
Mason otherwise, this was error.

## III. Conclusion

142 For these reasons, we conclude that to establish a right to a jury trial based
on an amended complaint when a party has previously waived its jury trial right,
the party must do more than assert new legal theories or clarifying details based
on the same basic facts as alleged in the original complaint. Rather, the party must
assert new triable issues not previously raised in the original pleadings.
Consequently, we reject plaintiffs' contention that our opinion in Mason created a
categorical second chance for a party to demand a jury trial whenever a party
amends its pleading.

143 Applying these principles here, we conclude that the amended complaint
filed by plaintiffs did not raise any new triable issues that had not previously been
raised in their original complaint. Accordingly, the amended complaint did not
revive plaintiffs' previously waived jury trial right, and thus, the jury demand
filed with plaintiffs' amended complaint was untimely.

144 We therefore make our order to show cause absolute, and we remand this
case to the district court for further proceedings consistent with this opinion.