Jarrett v. Besecker

25CA0744 Jarrett v Besecker 04-09-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0744
Yuma County District Court No. 24CV30001
Honorable Robert C. James, Judge

M. Sue Jarrett,

Plaintiff-Appellant,

and

Seth Sholes and Masyl Sholes,

Third-Party Defendants-Appellants,

v.

Gloria R. Besecker, in her capacity as trustee of the Thomas L. Schelly and
Gilda Gene Schelly Family Trust, and Michael T. Peabody, in his capacity as
trustee of the Barbara J. Peabody Trust dated July 14, 1998,

Defendants-Appellees.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE YUN
Grove and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 9, 2026

Robinson & Henry, P.C., Stephen M. Whitmore, Alexander C. Lowe, Nicholas J.
Catalano, Denver, Colorado, for Plaintiff-Appellant and Third-Party Defendants-
Appellants
Witwer, Oldenburg, Barry & Groom, LLP, John J. Barry, Francis L. Kailey,
Greeley, Colorado, for Defendants-Appellees
¶1 In this landlord-tenant dispute over a residential property,

M. Sue Jarrett, the plaintiff, and Seth and Masyl Sholes, the

third-party defendants (collectively, the tenants), appeal the district

court’s judgment entered after it denied their request for a jury trial

on the forcible entry and detainer (FED) claims asserted by the

defendants, Gloria R. Besecker and Michael T. Peabody (the

landlords).1 Additionally, both the tenants and the landlords

request their appellate attorney fees and costs. We affirm the

judgment, award appellate attorney fees and costs to the landlords,

and remand the case to the district court to determine the amount

of fees and costs to be awarded.

I. Background

¶2 The underlying dispute involves two properties: a residential

property (the house) and an agricultural property that surrounds it.

The district court entered judgments regarding both properties, but

only its ruling on the house was certified as final under

C.R.C.P. 54(b). Accordingly, we recount only the facts relevant to

the house.

1 Besecker and Peabody were substituted for two deceased parties

to the action, Gilda Gene Schelly and Barbara J. Peabody.

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¶3 Beginning in 2021, the landlords leased the house to the

tenants. The parties subsequently entered into successive one-year

written leases for the house. The most recent lease specified a term

ending on January 31, 2024. Prior to that date, on October 10,

2023, the landlords notified the tenants of their intent not to renew.

¶4 In January 2024, Jarrett, one of the tenants, filed a complaint

against the landlords, accompanied by a jury demand and payment

of the requisite jury fee. See C.R.C.P. 38(a)-(b). She asserted that

the landlords were “require[d] . . . to come to the table each year” to

renegotiate the lease and, further, were bound by their oral

“assurances of longevity.”2 Jarrett brought seven claims for relief:

(1) breach of lease; (2) breach of the covenant of good faith and fair

dealing; (3) unjust enrichment; (4) promissory estoppel; (5) implied

contract; (6) discrimination; and (7) preliminary

“injunction/estoppel.” For each claim except promissory estoppel,

she requested damages “in an amount to be proven at trial.” She

also requested that the court require “specific performance on the

2 Jarrett asserted that the landlords failed to renegotiate the terms

in violation of the lease. Specifically, the agricultural lease stated,
“Rent and terms to be negotiated yearly,” and Jarrett argued that
this provision applied equally to the lease for the house.

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terms of the contract,” issue an injunction, and “estop[] [the

landlords] from reletting the premises . . . without first offering the

same terms and conditions to [her].”

¶5 In response, the landlords filed an answer and asserted a

counterclaim for FED against Jarrett for remaining in the house

past the lease’s expiration. They also brought a third-party

complaint for FED against the remaining tenants, the Sholeses, for

the same reason. The landlords did not request a jury trial in their

combined answer, counterclaim, and third-party complaint or pay

the requisite jury fee. After being served with the third-party

complaint, the tenants filed a single pleading that combined

Jarrett’s reply to the counterclaim and the Sholeses’ answer to the

third-party complaint. This reply and answer likewise did not

include a jury demand, and the Sholeses paid no jury fee.

¶6 Initially, the district court resolved to try all issues together

during a three-day jury trial. The court found that the landlords’

FED claim was “primarily a legal argument” and, further, that

Jarrett’s claims were “intertwined” with the landlords’ FED claims.

In a subsequent order, the court reiterated its view of the FED

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claims as legal in nature and confirmed its intent to address all

issues in a single jury trial.

¶7 One month before the scheduled jury trial, however, the

district court ordered bifurcation. Specifically, the court stayed the

issues arising from Jarrett’s complaint and ordered a bench trial to

proceed on the landlords’ FED claims alone. Two days later, the

tenants moved for reconsideration, which the court summarily

denied.

¶8 The landlords’ FED claims proceeded to a one-day bench trial.

On that same day, the supreme court announced its Mercy Housing

opinion holding that, “so long as landlords or tenants timely

demand a jury trial and pay the requisite jury fee in an action for

the recovery of real property, they are entitled to a jury trial on all

issues of fact” in FED actions. See Mercy Hous. Mgmt. Grp. Inc. v.

Bermudez, 2024 CO 68W, ¶¶ 34-35 (unpublished opinion),

withdrawn mem., 559 P.3d 1163 (Colo. Dec. 16, 2024). Based on

this opinion, the tenants moved for a jury trial two days after the

bench trial concluded.

¶9 The supreme court later withdrew its Mercy Housing opinion

“[b]ecause [it] rested on a[n] [inaccurate] factual premise” about

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personal service. Mercy Hous. Mgmt. Grp. Inc. v. Bermudez,

559 P.3d 1163, 1163 (Colo. Dec. 16, 2024) (mem.) (withdrawal

order); see § 13-40-115(2), C.R.S. 2025. After its withdrawal, the

district court summarily denied the tenants’ motion for a jury trial.

¶ 10 The district court then issued a written order on both FED

claims tried to the court — one concerning the agricultural property

and one concerning the house. The court found that the tenants

were unlawfully detaining both properties and granted possession

of each to the landlords. Although the tenants requested

certification of the entire order under C.R.C.P. 54(b), the district

court certified only its ruling on the house as a final judgment.3

¶ 11 The tenants now appeal.

II. Civil Jury Trial Right

¶ 12 The tenants argue that the court erred by denying them a jury

trial because FED claims are legal actions that carry a right to jury

determination of factual issues. The landlords counter that the

right to a jury trial is governed by the “basic thrust” doctrine, under

which a party is entitled to a jury trial only if the basic thrust of the

3 None of the parties challenge the validity of the C.R.C.P. 54(b)

certification.

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plaintiff’s complaint is legal in nature, and that the basic thrust of

the complaint here was equitable. In reply, the tenants maintain

that “only the FED claims should be considered in determining the

nature of the action under the basic thrust doctrine” because the

bench trial “only concerned the bifurcated FED claims.” We agree

with the landlords.

A. Standard of Review and Applicable Law

¶ 13 We review de novo a party’s right to a jury trial in a civil

action. M.G. Dyess, Inc. v. MarkWest Liberty Midstream & Res.,

L.L.C., 2022 COA 108, ¶ 13.

¶ 14 “[T]hree elements must be met before a civil case may be tried

to a jury: (1) a party must timely file a demand; (2) that party must

pay the requisite jury fee; and (3) either the constitution or a statute

must authorize a jury trial for the type of action filed.” Mason v.

Farm Credit of S. Colo., ACA, 2018 CO 46, ¶ 9.

¶ 15 Regarding the third element, there is no constitutional right to

a civil jury trial in Colorado. RTV, L.L.C. v. Grandote Int’l Ltd. Liab.

Co., 937 P.2d 768, 770 (Colo. App. 1996). Rather, any such right

must derive from either a statute or the court rules. Husar v.

Larimer Cnty. Ct., 629 P.2d 1104, 1104 (Colo. App. 1981). As

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pertinent here, C.R.C.P. 38(a) states, “all issues of fact shall be tried

by a jury” in actions where trial is provided by constitution or

statute, “including actions for the recovery of specific real or

personal property, with or without damages.” Colorado courts have

interpreted this language as encompassing FED actions. See RTV,

L.L.C., 937 P.2d at 770.

¶ 16 However, our supreme court has articulated “two rules” to

determine whether the third element is met. Mason, ¶ 10. First,

C.R.C.P. 38 “provide[s] for a jury trial only in proceedings that are

legal in nature, not equitable.” Mason, ¶ 10. Second, only the

claims in a plaintiff’s complaint dictate whether an action is legal or

equitable. Id. at ¶ 11. When a plaintiff’s complaint includes both

legal and equitable claims, the district court must apply the “basic

thrust” doctrine, looking “to the overall character of the action to

determine whether it is fundamentally legal or equitable.” Id.

¶ 17 The preferred method for determining whether an action is

legal or equitable is to “examine the nature of the remedy sought:

‘Actions seeking monetary damages are [generally] legal, while

actions seeking to invoke the coercive power of the court are . . .

[generally] equitable.’” Id. at ¶ 27 (citation omitted). If a plaintiff

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seeks both damages — typically a legal remedy — and specific

performance — an equitable remedy — the court may evaluate the

essence of the action by considering whether the legal remedy is

sought only in the alternative. Setchell v. Dellacroce, 454 P.2d 804,

807 (Colo. 1969).

¶ 18 In sum, a party is entitled to a jury trial if a timely jury

demand is made, the requisite jury fee is paid, and the character of

the action, as set out in the plaintiff’s complaint, is predominantly

legal in nature.

B. Analysis

¶ 19 Initially, we reject the landlords’ contention that the tenants

waived their right to contest the basic thrust doctrine argument by

failing to address it in their opening brief. None of the district

court’s orders expressly relied on the doctrine, even though the

landlords raised it below. The tenants were not required to

anticipate alternative arguments that the landlords might introduce

in their answer brief. We accordingly consider the tenants’

arguments on the doctrine as raised in their reply brief. See

Snider v. Town of Platteville, 227 P. 548, 548 (Colo. 1924)

(considering a new argument in appellant’s reply brief because it

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responded to appellee’s answer brief); People v. Rogers, 2014 COA

110, ¶¶ 3, 23, rev’d on other grounds sub nom., Teague v. People,

2017 CO 66 (allowing the appellant to respond to a legal theory

raised below but not relied on by the district court).

¶ 20 Nevertheless, the tenants cannot prevail on the merits of their

appeal. Despite Jarrett’s requests for monetary damages, “the

overall character of the action” is fundamentally equitable. Mason,

¶ 11. To begin with, three of the seven claims in the complaint —

promissory estoppel, unjust enrichment, and

“injunction/estoppel” — are equitable in nature. See Snow Basin,

Ltd. v. Boettcher & Co., 805 P.2d 1151, 1154 (Colo. App. 1990)

(“[P]romissory estoppel is an equitable doctrine,” not subject to a

jury trial.); Lewis v. Lewis, 189 P.3d 1134, 1141 (Colo. 2008)

(explaining that an unjust enrichment claim provides “an equitable

remedy and does not depend on any contract, oral or written”);

Rinker v. Colina-Lee, 2019 COA 45, ¶ 80 (“An injunction is an

extraordinary and discretionary equitable remedy . . . intended to

prevent future harm.” (citation omitted)); Wheat Ridge Urb. Renewal

Auth. v. Cornerstone Grp. XXII, L.L.C., 176 P.3d 737, 741 (Colo.

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2007) (noting that “equitable estoppel . . . is more precisely

characterized as an equitable doctrine”).

¶ 21 More importantly, Jarrett’s complaint seeks primarily

equitable relief, with monetary damages largely sought in the

alternative. See Setchell, 454 P.2d at 807 (concluding there was no

jury right when the plaintiff wanted the defendants to “specifically

perform their agreement to renegotiate and refinance the premises”

and, alternatively, damages); Motz v. Jammaron, 676 P.2d 1211,

1214 (Colo. App. 1983) (concluding there was no jury right when

the plaintiff sought damages and specific performance because the

“essential relief” was “judicial enforcement of what lessees claim to

be a binding lease agreement”). For example, Jarrett requests the

court to (1) “estop[] [the landlords] from reletting the premises . . .

without first offering the same terms and conditions to [her]”; and

(2) require “specific performance of the terms of the contract,” which

she appears to interpret as a requirement to renegotiate and relet

the premises. If the court granted these equitable remedies, her

request for damages would become unnecessary. She would no

longer need the damages that she requested “to put [her] in the

position she would have been in had the contract been performed.”

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Nor would she persist in requesting damages for improvements to

the land that she claims to have made “in reliance on the longevity

of the lease.” Thus, the tenants were not entitled to a jury trial

because the requested equitable remedies were not only primary

but also “more substantive and more numerous” than the legal

remedies. Mason, ¶ 32; Setchell, 454 P.2d at 807.

¶ 22 In their reply brief, the tenants do not deny that Jarrett’s

complaint is equitable in character; instead, they contend that the

complaint is irrelevant because only the FED claims were tried in

the bifurcated bench trial. Even so, although the landlords’ FED

counterclaim/third-party claim is legal in nature, RTV, L.L.C.,

937 P.2d at 770, Colorado courts “have . . . consistently exclude[d]

claims brought by defendants from our jury trial right analysis”

under the basic thrust doctrine. Mason, ¶ 20; see also Miller v.

Dist. Ct., 388 P.2d 763, 765-66 (Colo. 1964) (ignoring claims in

defendant’s counterclaim); Tiger Placers Co. v. Fisher, 54 P.2d 891,

892 (Colo. 1936) (same, but counterclaim was titled

“cross-complaint”); Neikirk v. Boulder Nat’l Bank, 127 P. 137, 139

(Colo. 1912) (same). “In each of these cases,” our supreme court

“emphasized that only claims brought by plaintiffs affect the status

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of a case as legal or equitable for purposes of the civil jury trial

right.” Mason, ¶ 20.

¶ 23 Moreover, the tenants do not cite — nor can we find — any

Colorado case that countenances a different outcome when claims

are bifurcated. But even if we were to treat the counterclaim and

third-party complaint as a separate action for purposes of the jury

trial right, neither the landlords nor the tenants requested a jury

trial or paid a jury fee when they filed their combined (1) answer,

counterclaim, and third-party complaint; and (2) reply and answer.

See C.R.C.P. 38(e) (“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.”). Accordingly, they would not be entitled to a jury

trial even if the complaint could be separated from the counterclaim

and third-party complaint.

¶ 24 Finally, on these facts, we are unpersuaded by the tenants’

argument that the basic thrust doctrine “needlessly elevates form

over substance” to impair an important right. Undoubtedly, the

right to a jury trial in FED actions is important. See Pernell v.

Southall Realty, 416 U.S. 363, 385 (1974) (emphasizing the

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importance of juries in landlord-tenant disputes to ensure justice

before eviction). But the “‘plaintiff is the master of [the] complaint’

and, thus, has the right to choose which claims he or she seeks to

pursue in which court.” Ditirro v. Sando, 2022 COA 94, ¶ 43

(citations omitted). Here, Jarrett controlled the character of her

complaint and, necessarily, the jury right.

¶ 25 For all these reasons, we conclude that the district court did

not err in denying a jury trial on the FED claims.

III. Appellate Attorney Fees and Costs

¶ 26 Both the tenants and the landlords request appellate attorney

fees and costs. Section 13-40-123, C.R.S. 2025, provides that “[t]he

prevailing party in any [FED] action . . . is entitled to recover

damages, reasonable attorney fees, and costs of suit.” However, a

“residential landlord or tenant who is a prevailing party shall not be

entitled to recover reasonable attorney fees unless the residential

rental agreement between the parties contains a provision for either

party to obtain attorney fees.” Id.

¶ 27 Here, the residential lease contains such a fee-shifting

provision. Specifically, it states:

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Should any litigation be commenced between
the parties to this lease concerning said
premises, this lease, or the rights and duties of
either relation thereto, the party, Lessor or
Lessee, prevailing in such litigation shall be
entitled to . . . a reasonable sum as and for
attorney’s fees to be determined by the court in
such litigation . . . .

Given our conclusion, the landlords have prevailed in this appeal

and are entitled to recover their reasonable attorney fees incurred

on appeal. See, e.g., In re Estate of Gattis, 2013 COA 145, ¶ 45

(awarding appellate attorney fees pursuant to fee-shifting provision

in underlying agreement). Because the district court is better

situated to determine the amount of reasonable fees, we exercise

our discretion under C.A.R. 39.1 and remand the case to the

district court for that determination.

¶ 28 Further, the landlords are entitled to recover appellate costs

under C.A.R. 39(a)(2), which provides, “if a [district court’s]

judgment is affirmed, costs are taxed against the appellant” — the

tenants. The landlords may pursue those costs in the district court

by following the procedure set forth in C.A.R. 39(c).

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IV. Disposition

¶ 29 The judgment is affirmed, and the case is remanded to the

district court under C.A.R. 39.1 and C.A.R. 39(c) for a

determination of reasonable attorney fees and costs incurred during

this appeal.

JUDGE GROVE and JUDGE SCHOCK concur.

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