SCP 3330 Brighton OPCO, LLC v. Mountain Cement Co.

2026 CO 62. No. 26SA84.

September 14, 2026

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

The court concluded 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 concluded that plaintiffs’ amended complaint—which sought to add continuing trespass, continuing nuisance, and exemplary damages claims to their 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.

The court therefore made its order to show cause absolute and remanded the case to the district court for further proceedings.