On Dec. 16, 2024, the Colorado Supreme Court published a Rehearing Order, In re Mercy Housing Management Group Inc. v. Bermudez, 2024 CO 68W (the “Rehearing”), withdrawing its Oct. 21, 2024 opinion, In re Mercy Housing Management Group Inc. v. Bermudez, 2024 CO 68 (Bermudez). In Bermudez, the Colorado Supreme Court was asked to decide whether under Colo. R. Civ. P. 338(a) and Colorado’s forcible entry and detainer (FED) statutes, §§ 13‑40‑101 et seq., C.R.S., residential tenants in Colorado have a statutory right to trial by jury in an action for possession, even when the plaintiff does not seek monetary damages.

Pursuant to a written residential lease, Bermudez was a tenant in Clare Gardens, a federally subsidized low‑income housing complex managed by Mercy Housing Management Group Inc. (Mercy). In March 2023, eight months prior to the expiration of the term, Mercy sought early termination, alleging repeated violations of the lease involving an unauthorized guest. Bermudez refused to vacate, and Mercy filed a FED action against Bermudez in the county court. Mercy made clear that the action was only for possession and not monetary damages. Bermudez filed an answer to the complaint and, in pertinent part, demanded a jury trial and paid the requisite jury fee. The county court set the matter for a bench trial and declined Bermudez’s jury demand, reasoning that FED actions are equitable actions that must be tried to a court and not a jury. Bermudez petitioned the Colorado Supreme Court to exercise original jurisdiction under Colo. R. App. P. 21. Relief under the rule is “extraordinary” and is only exercised when no other adequate remedy is available, a party would suffer irreparable harm, or a petition raises an issue of first impression that has significant public importance. Colo. R. App. P. 21(2), Bermudez, 2024 CO 68 ¶ 17, citing People v. Kembel, 2023 CO 5, ¶ 18. The Colorado Supreme Court granted the petition.

At the Colorado Supreme Court, Bermudez argued that the common law action of ejectment was subject to trial by jury — or its equivalent — that modern FED possession actions are an extension of the common law action of ejectment, and therefore, FED possession actions are subject to trial by jury. Mercy, in turn, argued that (1) FED actions for possession are different from the actions referenced in Colo. R. Civ. P. 338(a) “for the recovery of specific real . . . property”; (2) the common law action of ejectment is fundamentally different from modern statutory FED possession actions; and (3) FED possession actions are equitable — and not legal — and thus properly tried to a court and not a jury.

The court was unpersuaded and ultimately concluded that residential tenants have a statutory right to trial by jury under Colo. R. Civ. P. 338(a) based on the statutory right to trial by jury provided in § 13‑40‑115, C.R.S.

Colo. R. Civ. P. 338(a) states: “Upon filing of a demand . . . wherein a trial by jury is provided by constitution or by statute, including actions for the recovery of specific real . . . property . . . all issues of fact shall be tried by a jury.” The court acknowledged that, in Colorado, there is no constitutional right to trial by jury in civil cases. Bermudez, 2024 CO 68 ¶ 4, citing Husar v. Larimer Cty Ct., 629 P.2d 1104, 1104 (Colo. App. 1981). Accordingly, the right to trial by jury, if present, must be afforded by statute. The court proceeded to find that right afforded by § 13‑40‑115(2), C.R.S., which provides, in pertinent part “Upon a trial or further hearing pursuant to this article 40 . . . if the court or jury has not already tried the issue of unlawful detainer, it may do so,” and continues “In addition to the judgment for restitution, the court or jury shall further find the amount of rent, if any, due to the plaintiff from the defendant at the time of trial.” So long as the defendant makes a timely request for trial by jury and pays the requisite fee, the court concluded that defendants in FED possession actions who are personally served have a (waivable) right to trial by jury.

Critically, however, the court’s analysis turned on application of § 13‑40‑115(2), C.R.S., which applies only “when the defendant was personally served pursuant to” § 13‑40‑112(1), C.R.S. After the court published the Bermudez opinion, Bermudez petitioned for rehearing. Although the court originally believed that Bermudez was personally served, Bermudez admitted in the petition for rehearing and, in so doing, informed the court for the first time that she was not personally served. Accordingly, consistent with the court’s prior analysis, Mercy served Bermudez under § 13‑40‑112(1), C.R.S., and as a result, § 13‑40‑115(1), C.R.S. controlled. Unlike subsection 115(2), which mentions a jury twice, subsection 115(1) makes no mention of a trial at all. The court, recognizing the inaccuracy of a critical factual premise in its prior opinion and “unwilling to proceed by judicial fiat,” formally discharged its opinion in Bermudez and stated plainly that “section 13‑40‑115 does not make clear whether a party has a right to a jury trial in FED possession actions.” In re Mercy Housing Management Group Inc. v. Bermudez, 2024SA163 at 2. Unless a different court addresses the issue sooner, the Colorado legislature must now clarify its intent in § 13‑40‑115, C.R.S., and determine whether defendants in a FED possession action have a right to trial by jury and under what circumstances that right applies.