Rule 15 AMENDED AND SUPPLEMENTAL PLEADINGS.

• Jurisdiction: Colorado

Rule 15. Amended and Supplemental Pleadings.

(a) Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is filed or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it any time within 21 days after it is filed. Otherwise, a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 14 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

(c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by Rule 4 (m) for serving the summons and complaint, the party to be brought in by amendment: (1) Has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

(d) Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.

Source: (a) amended and adopted December 14, 2011, effective January 1, 2012, for all cases pending on or filed on or after January 1, 2012, pursuant to C.R.C.P. 1(b); (c) amended and effective September 5, 2013.

ANNOTATION

I. General Consideration.

II. Amendments.

A. In General.
B. Purpose and Object of Amendment.
C. When Permitted as a Matter of Right.
D. Amendment at Discretion of Court.
E. Subject of Amendment.
F. Appellate Review.

III. To Conform to the Evidence.

A. In General.
B. Purpose and Object of Amendment.
C. Amendment at Discretion of Court.
D. Determination of Issues Not Pleaded.
E. Applicability.
F. Objections.
G. When Pleading Can be Amended.

IV. Relation Back.

V. Supplemental Pleadings.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Pleadings, Rules 7 to 25", see 28 Dicta 368 (1951). For article, "Pleadings and Motions: Rules 7-16", see 23 Rocky Mt. L. Rev. 542 (1951). For article, "Pre-Trial Procedure — Should It Be Abolished in Colorado?", see 30 Dicta 371 (1953). For article, "One Year Review of Civil Procedure and Appeals", see 38 Dicta 133 (1961). For note on current developments, "Civil Procedure Application of 'Indispensable Party' Provision of Colo. R. Civ. P. 19 — the 'Procedural Phantom' Still Stalks in Colorado", see 46 U. Colo. L. Rev. 609 (1974-75). For article, "Federal Practice and Procedure", which discusses a Tenth Circuit decision dealing with John Doe pleadings, see 62 Den. U. L. Rev. 220 (1985).

When an issue is tried before a court without timely objection or motion, the issue shall be deemed properly before the court despite any defect in the pleading. Butler v. Behaeghe, 37 Colo. App. 282, 548 P.2d 934 (1976).

Amended and supplemental pleadings differ in that the former relate to matters occurring before the filing of the original pleading and entirely replace the original pleading, while the latter concern events subsequent to the original pleading and constitute only additions to the earlier pleading. Eagle River Mobile Home Park v. District Court, 647 P.2d 660 (Colo. 1982).

Applied in Tumbarello v. Byers, 37 Colo. App. 61, 543 P.2d 1278 (1975); Central City Opera House Ass'n v. Brown, 191 Colo. 372, 553 P.2d 64 (1976); People in Interest of A.A.T., 191 Colo. 494, 554 P.2d 302 (1976); Woodruff World Travel, Inc. v. Indus. Comm'n, 38 Colo. App. 92, 554 P.2d 705 (1976); Buena Vista Bank & Trust Co. v. Lee, 191 Colo. 551, 554 P.2d 1109 (1976); Mansfield Dev. Co. v. Centennial Enters., Inc., 38 Colo. App. 36, 554 P.2d 1362 (1976); People in Interest of C.R., 38 Colo. App. 252, 557 P.2d 1225 (1976); Fischer v. District Court, 193 Colo. 24, 561 P.2d 1266 (1977); Robertson v. Bd. of Educ., 39 Colo. App. 462, 570 P.2d 19 (1977); In re Hemzman, 40 Colo. App. 262, 579 P.2d 638 (1977); Shepard v. Wilhelm, 41 Colo. App. 403, 591 P.2d 1039 (1978); In re Hemzman, 198 Colo. 36, 596 P.2d 61 (1979); SaBell's, Inc. v. Flens, 42 Colo. App. 421, 599 P.2d 950 (1979); Fitzgerald v. Edelen, 623 P.2d 418 (Colo. App. 1980); Espinoza v. O'Dell, 633 P.2d 455 (Colo. 1981); In re Rominiecki v. McIntyre Livestock Corp., 633 P.2d 1064 (Colo. 1981); Graefe & Graefe, Inc. v. Beaver Mesa Exploration Co., 635 P.2d 900 (Colo. App. 1981); Concerned Citizens v. Bd. of County Comm'rs, 636 P.2d 1338 (Colo. App. 1981); Turley v. Ball Assocs., 641 P.2d 286 (Colo. App. 1981); Nelson v. Lake Canal Co., 644 P.2d 55 (Colo. App. 1981); King v. W.R. Hall Transp. & Storage Co., 641 P.2d 916 (Colo. 1982); Law Offices of Bernard D. Morley, P.C. v. MacFarlane, 647 P.2d 1215 (Colo. 1982); In re Boyd, 643 P.2d 804 (Colo. App. 1982); Parry v. Walker, 657 P.2d 1000 (Colo. App. 1982); Creditor's Serv., Inc. v. Shaffer, 659 P.2d 694 (Colo. App. 1982); Memorial Gardens, Inc. v. Olympian Sales & Mgt. Consultants, Inc., 661 P.2d 296 (Colo. App. 1982); Isbill Assocs. v. City & County of Denver, 666 P.2d 1117 (Colo. App. 1983); Emrich v. Joyce's Submarine Sandwiches, 751 P.2d 651 (Colo. App. 1987); Harris v. Reg'l Transp. Dist., 155 P.3d 583 (Colo. App. 2006); Loveland Essential Group v. Grommon Farms, 2012 COA 22, 318 P.3d 6.

II. AMENDMENTS.

A. In General.

Law reviews. For note, "One Year Review of Colorado Law — 1964", see 42 Den. L. Ctr. J. 140 (1965).

Annotator's note. Since section (a) of this rule is similar to §§59 and 81 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing those sections have been included in the annotations to this rule.

This rule is clear and unequivocal. Renner v. Chilton, 142 Colo. 454, 351 P.2d 277 (1960).

An amendment is a defensive weapon offered one whose defective pleading is assailed. Lamar Bldg. & Loan Ass'n v. Truax, 95 Colo. 77, 33 P.2d 978 (1934).

No exceptions to these rights to amend are provided. Renner v. Chilton, 142 Colo. 454, 351 P.2d 277 (1960).

Amendment provision of section (a) has no counterpart in county court rules. Abts v. Bd. of Educ., 622 P.2d 518 (Colo. 1980).

Amended pleadings supersede the originals. Handy Ditch Co. v. Greeley & Loveland Irrigation Co., 86 Colo. 197, 280 P. 481 (1929); Kalish v. Bn'ce, 130 Colo. 220, 274 P.2d 600 (1954).

Amended pleadings become the pleadings which defendant is called upon to answer. Kalish v. Brice, 130 Colo. 220, 274 P.2d 600 (1954).

Notice is essence of rule. Spiker v. Hoogeboom, 628 P.2d 177 (Colo. App. 1981).

This rule assumes a service of an amendment on the other party to the action, since, otherwise, that portion of the rule providing that a responsive pleading shall be within 10 days after service of the amended pleading would be meaningless. Myers v. Myers, 110 Colo. 412, 135 P.2d 235 (1943); Holman v. Holman, 114 Colo. 437, 165 P.2d 1015 (1946).

Where plaintiff has been permitted to amend the complaint without notice to the defendant, it is error for the court to deny the latter's motion — interposed before the decree becomes final — to set aside the decree and permit him to answer. Myers v. Myers, 110 Colo. 412, 135 P.2d 235 (1943); Holman v. Holman, 114 Colo. 437, 165 P.2d 1015 (1946).

A defendant brought into the cause by an amended complaint appears generally. Wyoming Nat'l Bank v. Shippey, 23 Colo. App. 225, 130 P. 1021 (1896).

Whether an amended complaint should be stricken rested in the sound discretion of the court. Youngberg v. Orlando Canal & Reservoir Co., 98 Colo. 111, 53 P.2d 651 (1935).

The striking of an amended complaint and dismissal of the action was held not to be an abuse of discretion where no permission to file the amendment was obtained, the stricken amendment was plaintiff's third attempt to make his pleading unobjectionable, and the dismissal was without prejudice. Burson v. Adamson, 87 Colo. 451, 288 P. 623 (1930).

Matter of amendment cannot be raised for first time on appeal. Where no oral or written motion requesting amendment of the...