C.r.c.p. 15
C.r.c.p. 15
Annotation 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 C.R.C.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 recent 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 Heinzman, 40 Colo. App. 262, 579 P.2d 638 (1977); Shepard v. Wilhelm, 41 Colo. App. 403, 591 P.2d 1039 (1978); In re Heinzman, 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). 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. Brice, 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 written complaint is made by plaintiff at the trial level and the matter of the amendment is not raised in plaintiff's motion for new trial, the plaintiff is therefore precluded from raising this question in the supreme court for the first time. Fladung v. City of Boulder, 165 Colo. 244, 438 P.2d 688 (1968). Generalized statement that "even if the court were to decide that the complaint lacks some level of specificity, the court should allow the plaintiffs to amend their complaint" was not sufficiently specific to constitute a valid motion for leave to amend the complaint. Kreft v. Adolph Coors Co., 170 P.3d 854 (Colo. App. 2007). Mere amendment of pleadings cannot accomplish ends which are inconsistent with statutory procedures. Trustees of Mtg. Trust of Am. v. District Court, 621 P.2d 310 (Colo. 1980). Limitations period in § 38-22-110 applies to joinder of additional parties by amendment. In the ordinary mechanic's lien case, the six-month limitations period set down in § 38-22-110 applies to joinder of additional parties by amendment. Trustees of Mtg. Trust of Am. v. District Court, 621 P.2d 310 (Colo. 1980). Absence of authorization for amendment in § 22-42-111 reflects section's legislative intent. The absence of authorization for amendment in § 22-42-111 reasonably can be construed to reflect legislative intent that prompt resolution of election disputes must be achieved in order that the machinery of government not be slowed any more than strictly necessary to permit such disputes to be fairly resolved. Abts v. Bd. of Educ., 622 P.2d 518 (Colo. 1980). Applied in Fischer v. District Court, 193 Colo. 24, 561 P.2d 1266 (1977). B. Purpose and Object of Amendment. Amendments to pleadings should be granted in accordance with overriding purposes of rules of civil procedure-to secure the just, speedy, and inexpensive determination of every action. Varner v. District Court, 618 P.2d 1388 (Colo. 1980); Eagle River Mobile Home Park v. District Court, 647 P.2d 660 (Colo. 1982). Originals not to be treated as sacrosanct. As with most pleadings and writings in the nature of pleadings, the purpose of justice is best served not by treating originals as sacrosanct, but rather by permitting the parties to ensure that the issues, as ultimately framed, represent the parties' true positions. Brown v. Schumann, 40 Colo. App. 336, 575 P.2d 443 (1978); K-R Funds, Inc. v. Fox, 640 P.2d 257 (Colo. App. 1981); Zavorka v. Union Pacific R. Co., 690 P.2d 1285 (Colo. App. 1984). Leave to amend shall be freely given when justice so requires. Zertuche v. Montgomery Ward & Co., Inc., 706 P.2d 424 (Colo. App. 1985); Lutz v. District Court, 716 P.2d 129 (Colo. 1986). Motions to amend should be freely permitted when the interests of justice would be served thereby. In re Estate of Blacher, 857 P.2d 566 (Colo. App. 1993). Under this rule leave to amend should be freely granted. Platte Valley Motor Co. v. Wagner, 130 Colo. 365, 278 P.2d 870 (1954); Van Schaack v. Phipps, 38 Colo. App. 140, 558 P.2d 581 (1976); H.W. Houston Constr. Co. v. District Court, 632 P.2d 563 (Colo. 1981). Provision is made in this rule that leave to amend shall be freely given when justice so requires. Lerner v. Stone, 126 Colo. 589, 252 P.2d 533 (1952); Coffman v. Tate, 151 Colo. 533, 379 P.2d 399 (1963). Section (a) reflects a liberal policy of amendment and encourages trial courts to look favorably on a request to amend. Nelson v. Elway, 971 P.2d 245 (Colo. App. 1998). Substantial rights should never be sacrificed to mere forms. Sellar v. Clelland, 2 Colo. 532 (1875); Green v. Davis, 67 Colo. 52, 185 P. 369 (1919). The rationale behind this rule is that a substantial right should never be sacrificed to mere form. Van Schaack v. Phipps, 38 Colo. App. 140, 558 P.2d 581 (1976). Since the object of this rule is to permit amendments freely with the thought of making disposition of causes expeditious. Patrick v. Crowe, 15 Colo. 543, 25 P. 985 (1890); Seymour v. Fisher, 16 Colo. 188, 27 P. 240 (1891); Saint v. Guerrerio, 17 Colo. 448, 30 P. 335, 31 Am. St. R. 320 (1892); McCracken v. Montezuma Water & Land Co., 25 Colo. App. 280, 137 P. 903 (1914). Where the effect of an amendment is to interpose a purely legal obstruction to the enforcement of a just demand, the party making the application should be allowed only what the letter of the law gives. People ex rel. Republican Publishing Co. v. Barton, 4 Colo. App. 455, 36 P. 299 (1894). To allow an amendment without cause shown therefor as required is a violation of this provision. Collins v. Bailey, 22 Colo. App. 149, 125 P. 543 (1912). After a judgment has been reversed by the supreme court upon appeal and the cause remanded for a new trial, the trial court might permit the pleadings to be amended whenever the ends of justice would be subserved thereby. Horn v. Reitler, 15 Colo. 316, 25 P. 501 (1890). Rule prescribes liberal policy of amendment and encourages the courts to look favorably on requests to amend. Varner v. District Court, 618 P.2d 1388 (Colo. 1980); Eagle River Mobile Home Park v. District Court, 647 P.2d 660 (Colo. 1982). The rule emphasizes liberality in its application. Platte Valley Motor Co. v. Wagner, 130 Colo. 365, 278 P.2d 870 (1954). Amendments at all times should be liberally allowed when they do not lead to surprise or injury. Sellar v. Clelland, 2 Colo. 532 (1875); Green v. Davis, 67 Colo. 52, 185 P. 369 (1919). Since this rule states no exceptions, contention that claims dismissed for lack of subject matter jurisdiction cannot be amended is rejected. Stuart v. Frederick R. Ross Inv. Co., 773 P.2d 1107 (Colo. App. 1988). C. When Permitted as a Matter of Right. This rule permits a party to amend his pleading once as a matter of course at any time before a responsive pleading is filed. Kalish v. Brice, 136 Colo. 179, 315 P.2d 829 (1957); Renner v. Chilton, 142 Colo. 454, 351 P.2d 277 (1960); Fladung v. City of Boulder, 165 Colo. 244, 438 P.2d 688 (1968). Otherwise, amendments may be made only by leave of court or with consent of the adverse party. Fladung v. City of Boulder, 165 Colo. 244, 438 P.2d 688 (1968). Party may amend pleading within 20 days if there is no responsive pleading. Renner v. Chilton, 142 Colo. 454, 351 P.2d 277 (1960); Fladung v. City of Boulder, 165 Colo. 244, 438 P.2d 688 (1968). Where no responsive pleading has been filed in these instances, no final judgment should be entered in the absence of a showing of record that plaintiff waived the right to file an amended complaint and elected to stand upon the allegations of the complaint to which the motion to dismiss was addressed. Passe v. Mitchell, 161 Colo. 501, 423 P.2d 17 (1967). Where the defendant merely files a motion to dismiss for failure to state a claim without an answer, plaintiff then would be entitled to amend his complaint as a matter of right. Fladung v. City of Boulder, 165 Colo. 244, 438 P.2d 688 (1968). The court erred in overruling a plaintiff's motion to amend his complaint following an order sustaining a motion to dismiss, since plaintiff is entitled to one such amendment as a matter of right under section (a) of this rule. Renner v. Chilton, 142 Colo. 454, 351 P.2d 277 (1960); Davis v. Paolino, 21 P.3d 870 (Colo. App. 2001); Grear v. Mulvihill, 207 P.3d 918 (Colo. App. 2009). The trial court cannot enter its judgment of dismissal until plaintiff has had at least an opportunity to amend his complaint. Sprott v. Roberts, 154 Colo. 252, 390 P.2d 465 (1964); Passe v. Mitchell, 161 Colo. 501, 423 P.2d 17 (1967). With the filing of defendant's answer, the right to amend as a matter of course is lost. Bd. of County Comm'rs v. Bullock, 122 Colo. 218, 220 P.2d 877 (1950). Plaintiff reserves the right to amend the complaint with respect to any defendants who have not filed a responsive pleading in a case where there are multiple defendants and some, but not all, have filed a responsive pleading. Grear v. Mulvihill, 207 P.3d 918 (Colo. App. 2009). Where a party sought to prevent an amendment of his adversary's pleading by filing a motion for judgment on the pleadings, the court held that the right of amendment could not thus be cut off. Cornett v. Smith, 15 Colo. App. 53, 60 P. 953 (1900); Jones v. Ceres Inv. Co., 60 Colo. 562, 154 P. 745 (1916); Jackisch v. Quine, 62 Colo. 72, 160 P. 186 (1916); Colo. Inv. & Realty Co. v. Riverview Drainage Dist., 83 Colo. 468, 266 P. 501 (1928). If final judgment is entered before a responsive pleading is filed, the absolute right to amend the complaint is lost and leave to amend becomes a matter of discretion for the court. Wilcox v. Reconditioned Office Sys., 881 P.2d 398 (Colo. App. 1994). Once a final judgment is entered, a court should not allow the plaintiff to amend the complaint unless the judgment is set aside or vacated under C.R.C.P. 60. Since the plaintiff could have asserted the additional claims and added additional defendants during the three months before the court entered default judgment, there were no grounds for vacating the judgment, and the trial court did not abuse its discretion in denying leave to amend the original complaint. Wilcox v. Reconditioned Office Sys., 881 P.2d 398 (Colo. App. 1994). D. Amendment at Discretion of Court. Amendment after a responsive pleading is within the discretion of the trial court. Bd. of County Comm'rs v. Bullock, 122 Colo. 218, 220 P.2d 877 (1950); Coon v. Guido, 170 Colo. 125, 459 P.2d 282 (1969). Amendment of a pleading after a responsive pleading has been filed is within the discretion of the trial court. Conyers v. Lee, 32 Colo. App. 337, 511 P.2d 506 (1973). After responsive pleadings have been filed, amendments may be made only by the leave of court. Van Schaack v. Phipps, 38 Colo. App. 140, 558 P.2d 581 (1976). The granting of a motion to amend a complaint is within the discretion of the trial court. H.W. Houston Constr. Co. v. District Court, 632 P.2d 563 (Colo. 1981). The trial court does not abuse its discretion when it denies a motion to amend which is futile. Conrad v. Imatni, 724 P.2d 89 (Colo. App. 1986); Bristol Co., LP v. Osman, 190 P.3d 752 (Colo. App. 2007). The decision to grant or deny a motion to amend a complaint is committed to the sound discretion of the court and will not be reversed on review without a showing of abuse of discretion. In re Estate of Blacher, 857 P.2d 566 (Colo. App. 1993). After issues are joined and a cause has been set for trial, a court may in the exercise of reasonable discretion and in the interest of justice permit the filing of an amended answer pleading additional defenses. Flanders v. Kochenberger, 118 Colo. 104, 193 P.2d 281 (1948). Although a motion to amend is entitled to a lenient examination, such leniency is not without limits. Polk v. Denver Dist. Court, 849 P.2d 23 (Colo. 1993); Ajay Sports, Inc. v. Casazza, 1 P.3d 267 (Colo. App. 2000). Court was within its discretion to deny a motion to amend the answer 62 days before trial, more than 100 days after the cut-off date for amendment of pleadings, and after defendant had sought and obtained one continuance of the trial. Ajay Sports, Inc. v. Casazza, 1 P.3d 267 (Colo. App. 2000). Although leave to amend should generally be freely granted pursuant to section (a) of the rule, the trial court does not abuse its discretion in refusing to permit a futile amendment. Henderson v. Romer, 910 P.2d 48 (Colo. App. 1995). In ruling on a motion to amend, the court must consider the totality of the circumstances by balancing the policy favoring the amendment of pleadings against the burden which granting the amendment may impose on the other parties. Polk v. Denver Dist. Court, 849 P.2d 23 (Colo. 1993). In denying a motion to amend, the trial court did not abuse its discretion where: (1) The plaintiff knew of the basis for his counterclaims when filing the original pleading almost three years before and has offered no reasonable excuse for the delay in bringing the counterclaims; (2) the defendant would be prejudiced in addressing the counterclaims by requiring it to conduct additional and unanticipated discovery long after the case was filed; and (3) the motion to amend was made almost three years after filing the original answer and only five months before trial, resulting in yet another postponement of a trial date. Polk v. Denver Dist. Court, 849 P.2d 23 (Colo. 1993). Whether amendment adding parties to action is proper is within district court's discretion. It is within the discretion of the district court to make a determination whether amendment of a complaint adding parties to a pending action is proper. Trustees of Mtg. Trust of Am. v. District Court, 621 P.2d 310 (Colo. 1980); Meyer v. Landmark Universal, Inc., 692 P.2d 1129 (Colo. App. 1984). Courts have authority to grant leave to amend any time before final judgment, so long as they retain jurisdiction of the cause. Johnson v. Johnson, 30 Colo. 402, 70 P. 692 (1902). Amendment to a pleading is not allowed under section (a) once final judgment is entered unless the judgment is set aside or vacated. Estate of Hays v. Mid-Century Ins. Co., 902 P.2d 956 (Colo. App. 1995). When all claims for relief have been decided on appeal and the case is remanded for the sole purpose of awarding costs to the prevailing party, that party cannot amend its complaint to add a new claim for relief as the case is effectively over. Civil Serv. Comm'n v. Carney, 97 P.3d 961 (Colo. 2004) (Carney II). Where the appellate court remands a case to the trial court to calculate costs to be paid to the prevailing party, this is a post-judgment issue, and motions to amend a complaint to add a new claim for relief, essentially starting the litigation anew, are barred. Civil Serv. Comm'n v. Carney, 97 P.3d 961 (Colo. 2004) (Carney II). That an amendment is made after verdict is not conclusive against the validity of the order, for so long as the court retains jurisdiction of a cause, and certainly before final judgment, it has authority to grant leave to amend any pleading or proceeding therein. Johnson v. Johnson, 30 Colo. 402, 70 P. 692 (1902). If a plaintiff files a motion to amend accompanied by an amended complaint pursuant to section (a), and if the motion, amended complaint, and summons are served on a defendant before expiration of the statute of limitations, then the statute of limitations is tolled until the trial court rules on plaintiff's motions. Moore v. Grossman, 824 P.2d 7 (Colo. App. 1991). Permission to file an amended complaint at the close of the plaintiff's evidence is not prejudicial to the defendants where the matter set forth therein is already before the court, for, in such a situation, nothing new is injected into the case. Davis v. Bonebrake, 135 Colo. 506, 313 P.2d 982 (1957). Since plaintiffs did not object at trial and further addressed issues not previously raised, plaintiffs consented to the trial on the unpled issues. Kennedy v. Aerr Co. 833 P.2d 807 (Colo. App. 1991). Delay alone insufficient to grant defendant's motion for summary judgment. Where the plaintiff has delayed in substituting the parties until after the statute of limitations has run, delay alone, without any specifically resulting prejudice or any obvious design to harass, is not sufficient to grant defendants' motion for summary judgment. Spiker v. Hoogeboom, 628 P.2d 177 (Colo. App. 1981); Eagle River Mobile Home Park v. District Court, 647 P.2d 660 (Colo. 1982). Where the party attempting to amend his pleadings is guilty of delay in seeking an amendment, it is preferable to allow the amendment subject to any conditions necessary to avoid prejudice to the opposing parties. Eagle River Mobile Home Park v. District Court, 647 P.2d 660 (Colo. 1982). In ruling on motion to amend made long after original pleading and shortly before trial, court should weigh prejudice to opponent in granting motion against prejudice to movant in denying motion, and movant has burden to prove lack of knowledge, mistake, inadvertence, or other reason for not having made the amended claim earlier. Gaybatz v. Marquette Minerals, Inc., 688 P.2d 1128 (Colo. App. 1984). Denial of amendment appropriate where court or other party prejudiced. Only if the opposing party can demonstrate prejudice to it (other than having the case resolved on its merits) or if the court itself is prejudiced is the denial of a motion to amend an appropriate exercise of discretion. K-R Funds, Inc. v. Fox, 640 P.2d 257 (Colo. App. 1981). If the opposing party can demonstrate prejudice to it, the denial of a motion to amend is an appropriate exercise of discretion where the motion to amend is filed shortly before the trial date and on the eve of the discovery cut-off date and the amended claim tendered is to be supported by expert testimony which would require additional discovery by the defendant and possibly the presentation by it of independent expert testimony, the defendant demonstrates prejudice and the trial court acts within its discretion in offering the plaintiff the option of proceeding with trial as scheduled or filing the additional claim and continuing the trial date. Werkmeister v. Robinson Dairy, Inc., 669 P.2d 1042 (Colo. App. 1983). No abuse of discretion in denial by district court of motion to amend to substitute new party as petitioner. Amendment would have been unduly prejudicial to respondents, would not have cured deficiencies in petition regarding statutory pre-filing requirements, and would have unnecessarily increased respondents' costs. Akin v. Four Corners Encampment, 179 P.3d 139 (Colo. App. 2007). Court may properly deny leave to amend because of resulting delay, undue expense, or other demonstrable prejudice to the opposing party. Varner v. District Court, 618 P.2d 1388 (Colo. 1980); In re Estate of Blacher, 857 P.2d 566 (Colo. App. 1993). Court improperly denied motion to amend on the basis of undue delay where: (1)The previous delay in the case was not attributable to the movant; (2)no case management order had entered, the parties had not commenced discovery, mandatory disclosures were not yet due, and no trial date had been set; and (3)the amendments included interpleader claims that were calculated to resolve the merits of the dispute in one lawsuit. Benton v. Adams, 56 P.3d 81 (Colo. 2002). Concerns about collecting a judgment are not sufficient to support a finding of prejudice to justify denying a motion to amend. Benton v. Adams, 56 P.3d 81 (Colo. 2002). Although the rules and caselaw prohibit a draconian approach to the amendment of pleadings, unexplained careless or thoughtless mistakes in pleadings on the part of counsel or the parties cannot be excused through amendments and continuances at the expense of fairness to opposing parties and to the judicial process. Polk v. Denver Dist. Court, 849 P.2d 23 (Colo. 1993). Preservation of trial date insufficient justification to deny amendment. The trial court's desire to preserve the scheduled trial date is not a sufficient justification to deny a motion to amend. Eagle River Mobile Home Park v. District Court, 647 P.2d 660 (Colo. 1982). Trial court's desire to preserve original trial date, absent a showing of prejudice to opposing party, is not sufficient to warrant court's denial of motion to amend or supplement complaint. Lutz v. District Court, 716 P.2d 129 (Colo. 1986). Although the desire to preserve a trial date alone is not a sufficient reason to deny a motion to amend, it is still a valid factor to be considered by a trial court in ruling on such motion. Polk v. Denver Dist. Court, 849 P.2d 23 (Colo. 1993). Trial court abused its discretion when it denied plaintiffs' motion to amend their complaint to add a claim for exemplary damages where amended complaint satisfied the burden of proof set forth in subsection (3)(c)(I). Stamp v. Vail Corp., 172 P.3d 437 (Colo. 2007). Court did not abuse discretion in granting motion to amend where defendants were on notice of issue raised in amended pleading by virtue of the evidence presented, the proposed jury instructions, and a conference during trial. Anderson v. Dunton Management Co., 865 P.2d 887 (Colo. App. 1993). A trial court may grant parties leave to amend their pleadings upon remand so long as matters already settled by the appellate court are not relitigated. Union Ins. Co. v. Kjeldgaard, 820 P.2d 1183 (Colo. App. 1991). District court erred in allowing buyer under section (a) of this rule to amend his answer to raise defense under § 38-35-126(3) following trial after ruling immediately before trial that he would not be permitted to raise such defense. Where a defense or claim is not pleaded or intentionally and actually tried, a court cannot render a judgment thereon. This rule cannot be circumvented by allowing a party to amend his or her answer after trial where the defense or claim was not tried by express or implied consent. Further, the district court abused its discretion in effectively permitting buyer to amend his answer after trial because seller was clearly prejudiced. Dinosaur Park Invs., L.L.C. v. Tello, 192 P.3d 513 (Colo. App. 2008). E. Subject of Amendment. Amendment to substitute new theory is not prejudicial where notice of claim has been given. Where complaint furnishes defendant with complete notice of the circumstances and occurrence of plaintiff's claim, amendment of the complaint during trial to substitute a new theory of recovery is not prejudicial to defendant. Continental Sales Corp. v. Stookesberry, 170 Colo. 16, 459 P.2d 566 (1969). Where it is contended that an amended complaint merely adds a second cause of action to that already stated in the original complaint, it is within the discretion of the court whether the amendment should be allowed after the defendant's answer, and it is doubtful that this discretion is abused where counsel for both sides subsequently entered into an agreed statement of facts. Bd. of County Comm'rs v. Bullock, 122 Colo. 218, 220 P.2d 877 (1950). Fact that proposed amendment set forth alternate theories of recovery furnished no reason to withhold permission to amend, especially where those theories were rooted in the very same transaction underlying the original complaint. Varner v. District Court, 618 P.2d 1388 (Colo. 1980). Where a complaint is amended to provide for a different remedy, the principal consideration is whether the amended pleading will permit an expeditious disposition to be made of the case. Espinoza v. Gurule, 144 Colo. 381, 356 P.2d 891 (1960). Where the complaint filed constitutes an election of a choice of remedies provided for by contract, an amendment to the complaint which provides for the alternative remedy in the event recovery cannot be had under the original complaint is erroneous to permit, for the plaintiff cannot pursue two inconsistent remedies. Green v. Hertz Drivurself Sys., 130 Colo. 238, 274 P.2d 597 (1954). Amendment authorized where matter of damages not entirely known at time complaint filed. The trial court correctly authorized amendment of the complaint upon a showing that the nature and extent of plaintiff's damages were not entirely known at the time the original complaint was filed. Hildyard v. Western Fasteners, Inc., 33 Colo. App. 396, 522 P.2d 596 (1974). An amendment to a complaint dropping equitable issue with consent of defendants and court does not create a right to a jury trial that cannot be denied. Murray v. District Court, 189 Colo. 217, 539 P.2d 1254 (1975). The court might permit amending the complaint to show residency. Where the complaint in an action for divorce alleged that plaintiff was and had been for more than one year immediately preceding the commencement of the action a bona fide resident and citizen of the state but failed to allege that either party resided in the county in which the action was brought, the court might permit an amendment after verdict inserting in the complaint an allegation of plaintiff's residence in the county where the proof showed such residence. Johnson v. Johnson, 30 Colo. 402, 70 P. 692 (1902). Matters purely jurisdictional may be made the subject of amendment the same as other matters of substance. Johnson v. Johnson, 30 Colo. 402, 70 P. 692 (1902). The argument that the complaint could not be amended because the allegation of notice of a claim was "jurisdictional" is without merit, for the office of the complaint is to establish by proper factual averment that the case is within the jurisdiction of the court, and thus a defect in allegations of fact upon which the court's jurisdiction depends can be cured or supplied by amendment. Francisco v. Cascade Inv. Co., 29 Colo. App. 516, 486 P.2d 447 (1971). It is within the province of the court to permit the striking of allegations, and leave shall be freely given when justice so requires. Barth v. Powell, 127 Colo. 78, 254 P.2d 428 (1953). Averments stricken from a complaint might be allowed in an amended complaint in the discretion of the court. Rice v. Van Why, 49 Colo. 7, 111 P. 599 (1910). Filing an amended complaint waives error, if any, in striking an amendment to the complaint and a bill of particulars. Burson v. Adamson, 87 Colo. 451, 288 P. 623 (1930). Rule does not govern election contest. This rule normally applicable to a civil action does not govern an election contest. Abts v. Bd. of Educ., 622 P.2d 518 (Colo. 1980). New parties may be added or substituted in action when the new and old parties have such an identity of interests that it can be assumed, or proved, that relation back is not prejudicial. Spiker v. Hoogeboom, 628 P.2d 177 (Colo. App. 1981). Identity of interest means that the parties are so closely related in their business operations or other activities that the institution of an action against one serves to provide notice of litigation to the other. Such an identity of interest exists between past and present forms of the same enterprise. Spiker v. Hoogeboom, 628 P.2d 177 (Colo. App. 1981). Amended pleading asserting an interpleader claim is not futile if it alleges facts sufficient to support a reasonable belief that exposure to double or multiple liability may exist. Certainty of exposure to double or multiple liability is not the test; rather, the allegations must meet a minimum threshold of substantiality. Benton v. Adams, 56 P.3d 81 (Colo. 2002). F. Appellate Review. An appellate court will not review refusal to grant leave to amend for insufficiency except when an abuse of discretion is shown. Buno v. Gomer, 3 Colo. App. 456, 34 P. 256 (1893); Klippel v. Oppenstein, 8 Colo. App. 187, 45 P. 224 (1896); Cascade Ice Co. v. Austin Bluff Land & Water Co., 23 Colo. 292, 47 P. 268 (1896); Hyman v. Jockey Club Wine, Liquor, & Cigar Co., 9 Colo. App. 299, 48 P. 671 (1897); Gambrill v. Brown Hotel Co., 11 Colo. App. 529, 54 P. 1025 (1898); Wiggington v. Denver & R. G. R. R., 51 Colo. 377, 118 P. 88 (1911); Perry v. Perry, 74 Colo. 106, 219 P. 221 (1923). Leave to amend is within the discretion of the trial court. Absent an abuse of discretion, the supreme court will not interfere with the trial court's ruling. Polk v. Denver Dist. Court, 849 P.2d 23 (Colo. 1993); Henderson v. Romer, 910 P.2d 48 (Colo. App. 1995). The decision whether to grant leave to amend lies within the trial court's sound discretion, and its ruling will not be disturbed on review absent a clear abuse of discretion. Lyons v. Teamsters Local Union No. 961, 903 P.2d 1214 (Colo. App. 1995). Abuse of discretion in denying leave to amend pleadings. Where it was shown to the trial court that the filing of a counterclaim would not delay the trial or cause a postponement, that the other side did not object, and that it was a compulsory counterclaim which if denied foreclosed possible future relief, the trial court abused its discretion in denying petitioners leave to amend their pleadings. Bobrick v. Sanderson, 164 Colo. 46, 432 P.2d 242 (1967). No error where no abuse of discretion is shown. Where a party fails to point out an abuse of discretion on the part of the trial court in permitting the opposing party to amend his pleading, there is no error. Palmer Park Gardens, Inc. v. Potter, 162 Colo. 178, 425 P.2d 268 (1967); Jenkins v. Glen & Helen Aircraft, Inc., 42 Colo. App. 118, 590 P.2d 983 (1979). Absent an abuse of discretion, the supreme court will not overrule the trial court. H.W. Houston Constr. Co. v. District Court, 632 P.2d 563 (Colo. 1981). Generally speaking, allowing pleadings to be amended is a matter within the discretion of a trial court, not to be disturbed unless an abuse thereof is demonstrated. K-R Funds, Inc. v. Fox, 640 P.2d 257 (Colo. App. 1981). III. To Conform to the Evidence. A. In General. Law reviews. For note, "Comments on Last Clear Chance-Procedure and Substance", see 32 Dicta 275 (1955). For comment on Carpenter v. Hill appearing below, see 32 Dicta 393 (1955). Annotator's note. Since section (b) of this rule is similar to § 84 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. Section (b) softens apparent rigidity of C.R.C.P. 8(c). The apparent rigidity of C.R.C.P. 8(c), which states that a party shall affirmatively plead all matters constituting an avoidance or affirmative defense, is softened by section (b) of this rule, which provides that when issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Great Am. Ins. Co. v. Ferndale Dev. Co., 185 Colo. 252, 523 P.2d 979 (1974). Pleadings are subsidiary and serve the ends of justice by giving notice of the issues to be litigated. Ashford v. Burnham Aviation Serv., Inc., 162 Colo. 582, 427 P.2d 875 (1967). The contradiction which results in an amendment where the plaintiff testifies differently from an allegation in his complaint merely goes to the credibility of the plaintiff, and where the instruction upon credibility sets forth the test to be applied, the weight then to be given plaintiff's testimony is for the jury. Foster v. Feder, 135 Colo. 585, 316 P.2d 576 (1957). Where the plaintiff files a pleading which is subsequently superseded by amendment, the original pleading is admissible against the pleader in the proceeding in which it is filed as evidence of admission against interest. Foster v. Feder, 135 Colo. 585, 316 P.2d 576 (1957). Such an admission cannot be withdrawn by amendment. Where the original complaint was an admission which brought the transaction squarely within the terms of the uniform commercial code and an amendment was a withdrawal of this admission and the introduction of an entirely different theory as an effort to escape the effect of the uniform commercial code with the defendant strongly objecting when the amendment was proposed and when it was granted, it was held that its claim of surprise was well founded and that the amendment should not have been allowed. Am. Nat'l Bank v. Etter, 28 Colo. App. 511, 476 P.2d 287 (1970). Where the parties litigated the issues between them just as if there had been actual notice through an amendment to the complaint stating in terms the plaintiff's claim against the third-party defendant, an amendment including the third-party defendant in the original complaint was unnecessary. Ashford v. Burnham Aviation Serv., Inc., 162 Colo. 582, 427 P.2d 875 (1967). Surprise or prejudice not found. The defendant cannot claim that either surprise or prejudice resulted from the introduction of evidence regarding a certain issue allegedly not properly pled where the plaintiff's pretrial statement clearly identifies this issue. Andrikopoulos v. Broadmoor Mgt. Co., 670 P.2d 435 (Colo. App. 1983). Where the third-party defendant not only answered the third-party complaint, but in a separate pleading undertook to answer the original complaint categorically and asserted all of the defenses he could have asserted had the plaintiff amended his complaint and alleged a claim against the third party, such an answer amounts to a waiver of amendment. Ashford v. Burnham Aviation Serv., Inc., 162 Colo. 582, 427 P.2d 875 (1967). Complainant can recover upon the theory of extrinsic or constructive fraud under this rule where the issue of extrinsic or constructive fraud is in fact tried by express or implied consent of the parties. United States Nat'l Bank v. Barges, 120 Colo. 317, 210 P.2d 600 (1949), cert. denied, 338 U.S. 955, 70 S. Ct. 493, 94 L. Ed. 589 (1950). Where a foreign court had jurisdiction over the parties and the subject matter, its decree may not be collaterally attacked on the grounds of intrinsic fraud, and the trial court properly denied the motion to amend the return and the answer to include such an allegation of fraud based on the evidence tendered for consideration. Fahrenbruch v. People ex rel. Taber, 169 Colo. 70, 453 P.2d 601 (1969). Applied in Padilla v. Ghuman, 183 P.3d 653 (Colo. App. 2007). B. Purpose and Object of Amendment. The purpose of this rule is to allow litigation to be determined on the merits and not to be limited to the strict parameters of the pleadings. Am. Nat'l Bank v. Etter, 28 Colo. App. 511, 476 P.2d 287 (1970). This rule permits amendments to conform to the evidence when issues not raised by the pleadings are tried by express or implied consent of the parties. Haffke v. Linker, 30 Colo. App. 76, 489 P.2d 1047 (1971); Cox v. Bertsch, 730 P.2d 889 (Colo. App. 1986). This rule directs that amendment of pleadings to conform to the evidence be freely granted. Schwab v. Martin, 165 Colo. 547, 441 P.2d 17 (1968). Care must be taken not to prejudice the case of either party. Am. Nat'l Bank v. Etter, 28 Colo. App. 511, 476 P.2d 287 (1970). Amendment should be permitted where the presentation of the merits of the action would be subserved thereby, it cannot be claimed that it would be prejudicial upon the merits, and the granting of the motion would facilitate a fair trial of the actual issues between the litigants. Francisco v. Cascade Inv. Co., 29 Colo. App. 516, 486 P.2d 447 (1971). Amendments under this rule should be granted after the close of the evidence only in cases where no reasonable doubt remains that the issue raised by the amendment has been intentionally and actually tried, since it is not enough that some evidence has been received germane to the issue sought to be raised. Clemann v. Bandimere, 128 Colo. 24, 259 P.2d 614 (1953); Bill Dreiling Motor Co. v. Shultz, 168 Colo. 59, 450 P.2d 70 (1969). The same principles are applicable when the motion to amend the pleadings is made during the progress of the trial. Real Equity Diversification v. Covilli, 744 P.2d 756 (Colo. App. 1987). Amendment to add a new claim should be allowed only when the issue raised by amendment has been intentionally and actually tried. It is not enough that some pertinent evidence has been heard. Pickell v. Arizona Components Co., 902 P.2d 392 (Colo. App. 1994), rev'd on other grounds, 931 P.2d 1184 (Colo. 1997). Under this rule a liberal provision is made for amendments to conform the pleadings to the evidence. Cady v. Fraser, 122 Colo. 252, 222 P.2d 422 (1950); Underwriters Salvage Co. v. Davis & Shaw Furn. Co., 198 F.2d 450 (10th Cir. 1952). This rule must be judiciously applied. Am. Nat'l Bank v. Etter, 28 Colo. App. 511, 476 P.2d 287 (1970). Considerable liberality should be exercised in allowing a complaint to be amended during a trial so as to correspond with the proof. Atchison, T. & S. F. Ry. v. Baldwin, 53 Colo. 426, 128 P. 453 (1912). C. Amendment at Discretion of Court. The matter of such an amendment rests in the sound discretion of the court. Fedderson v. Goode, 112 Colo. 38, 145 P.2d 981 (1944); Pickell v. Arizona Components Co., 902 P.2d 392 (Colo. App. 1994), rev'd on other grounds, 931 P.2d 1184 (Colo. 1997). Wide discretion is given to the trial court under this rule to permit amendment of the pleadings to conform with the evidence. Foster v. Feder, 135 Colo. 585, 316 P.2d 576 (1957). Amendments "to conform to the proof" should not be allowed when not germane to the case as made. Buchhalter v. Myers, 85 Colo. 419, 276 P. 972 (1929). It is error where matter constitutes a new cause of action. Where plaintiff asked leave to amend to correspond with the proof, it was held that it was error to permit him to allege matters not legitimately connected with the complaint which constituted a new cause of action and a departure from the issues as made. Buchhalter v. Myers, 85 Colo. 419, 276 P. 972 (1929). Upon a proper application interposed in apt time it would become the duty of the trial court to permit a complaint to be amended to correspond with the proof, and it is the duty of a court of review to treat the complaint as so amended. English Lumber Co. v. Hireen, 25 Colo. App. 199, 136 P. 475 (1913). Where at the start of the trial defendant applies for an order amending his answer to a defense which he has failed to plead affirmatively and plaintiff does not object to this request, it is within the discretion of the court to consider this defense under section (a) or (b) of this rule in view of the sweep of the evidence. White v. Widger, 144 Colo. 566, 358 P.2d 592 (1960). Where the amended complaint did not plead a certain matter, but the record disclosed that the defendant was put on notice of the claim for that matter as early as the pre-trial conference, then the trial court's admission of the evidence and, upon motion of the plaintiffs, grant of leave to amend the complaint to conform to the proof was in conformity with the discretion of section (b) of this rule. Welborn v. Sullivant, 167 Colo. 35, 445 P.2d 215 (1968); Karakehian v. Boyer, 900 P.2d 1273 (Colo. App. 1994). Where plaintiff establishes a prima facie case, then, under the spirit and intent of section (b) of this rule, the failure to permit the plaintiff to amend his complaint and plead matter not initially pleaded is an abuse of discretion. Martin v. Kennell, 169 Colo. 122, 453 P.2d 797 (1969); Francisco v. Cascade Inv. Co., 29 Colo. App. 516, 486 P.2d 447 (1971); Real Equity Diversification v. Coville, 744 P.2d 756 (Colo. App. 1987). Motion to amend pleadings to conform to the proof allowed only in cases where no reasonable doubt remains that the issue raised by the amendment has been intentionally and actually tried. Absent abuse of discretion, trial court's denial of a motion pursuant to this rule will not be disturbed on appeal. Gabel v. Jefferson County Sch. Dist. R-1, 824 P.2d 26 (Colo. App. 1991). Where parties agree to litigate on a certain theory, the trial court does not abuse its discretion by denying a motion of one of the parties made at the close of its evidence to amend its pleadings to add another claim when the other party objects to such an amendment. Quandary Land Dev. Co. v. Porter, 159 Colo. 8, 408 P.2d 978 (1965). It is no abuse of discretion in denying motion to amend where evidence conflicting and conditional. Trial court did not abuse its discretion in denying plaintiffs' motion to amend their pleading to conform to the evidence where the evidence was conflicting and conditional. Gorin v. Arizona Columbine Ranch, Inc., 34 Colo. App. 405, 527 P.2d 899 (1974). D. Determination of Issues Not Pleaded. Where an issue is completely foreign to the issues in the case and is not tried with the consent of the parties, it cannot be injected into the case by amendment. Haffke v. Linker, 30 Colo. App. 76, 489 P.2d 1047 (1971). Issues not pleaded may be determined by the trial court by consent, express or implied, where evidence presenting such issues is tendered and received without objection. First Nat'l Bank v. Jones, 124 Colo. 451, 237 P.2d 1082 (1951). Extraneous issues may not be tried in the absence of amendment of the pleadings where timely objection is made. First Nat'l Bank v. Jones, 124 Colo. 451, 237 P.2d 1082 (1951). It is the duty of the court to consider issues raised by evidence received without objection even though no formal application is made to amend. Cady v. Fraser, 122 Colo. 252, 222 P.2d 422 (1950); Underwriters Salvage Co. v. Davis & Shaw Furn. Co., 198 F.2d 450 (10th Cir. 1952); Prato v. Minnesota Mut. Life Ins. Co., 40 Colo. App. 1, 572 P.2d 487 (1977). Parties who acquiesced in trial conducted at variance with the pleadings cannot complain of failure to amend the pleadings. Shively v. Bd. of County Comm'rs, 159 Colo. 353, 411 P.2d 782 (1966). Where it is apparent from the testimony, the exhibits, and the finding of the court that an issue was tried by implied consent because the record is otherwise silent, one will not be held to have waived his rights because he did not specially plead this matter either by complaint, by answer to intervener's petition, or by motion. Rose v. Rose, 119 Colo. 473, 204 P.2d 1075 (1949). Where a certain matter is alleged in the complaint, but the evidence shows another matter and throughout the trial it is apparent that the cause is being presented upon the theory of the latter without objection, then, under section (b) of this rule, the judgment entered upon the issue actually tried would be good. United States Nat'l Bank v. Bartges, 122 Colo. 546, 224 P.2d 658 (1950), cert. dismissed, 340 U.S. 957, 71 S. Ct. 575, 95 L. Ed. 689 (1951). When an application for the enlargement of a specifically-identified dam incorrectly stated the location of the dam but the issue of the discrepancy in location was not raised until nine months after trial, the parties impliedly consented to the trial of the enlargement at the correct location without the need to amend the application. City of Black Hawk v. City of Central, 97 P.3d 951 (Colo. 2004). Judgment can be entered on different theory than that of pleadings. Issues not raised by the pleadings were nonetheless tried by the express consent of the parties; it is of no legal significance that the trial court entered judgment on a "theory" different from the "theory" pled in the complaint. Ward v. Nat'l Medical Ass'n, 154 Colo. 595, 392 P.2d 162 (1964); Radinsky v. Weaver, 170 Colo. 169, 460 P.2d 218 (1969). If, under the facts, the substantive law provides relief upon any theory, the cause should proceed to judgment, and, if such be the case, the theory of the pleader is not important. Ward v. Nat'l Medical Ass'n, 154 Colo. 595, 392 P.2d 162 (1964); Radinsky v. Weaver, 170 Colo. 169, 460 P.2d 218 (1969). While issues may properly be tried even when not pleaded, they must be deliberately presented and knowingly considered by the court. Am. Nat'l Bank v. Etter, 28 Colo. App. 511, 476 P.2d 287 (1970); Maehal Enters., Inc. v. Thunder Mtn. Custom Cycles, Inc., __ P.3d __ (Colo. App. 2011). E. Applicability. Before the provisions of this rule apply, a trial court must first determine what are the material issues made by a complaint and if the evidence objected to at a trial is within the issues made by the pleadings. Myrick v. Garcia, 138 Colo. 298, 332 P.2d 900 (1958). The amendment allowable or "such amendment" refers to situations where issues are not raised by the pleadings and are tried by the express or implied consent of the parties. Barnes v. Wright, 123 Colo. 462, 231 P.2d 794 (1951). This fact is made clear by the further provision that the amendment may be made "even after judgment". Barnes v. Wright, 123 Colo. 462, 231 P.2d 794 (1951). In an action to quiet title where defendants did not allege adverse possession, but there was evidence before the court that defendants and their predecessors in interest had occupied the land for more than 60 years prior to the commencement of the action, under section (b) of this rule it became the court's duty to determine the issue so presented as if it had been raised by the pleadings. Hodge v. Terrill, 123 Colo. 196, 228 P.2d 984 (1951). Equitable relief not precluded. Although the plaintiffs originally sought damages in an action at law, equitable relief was not precluded where a change in circumstances altered the posture of the case and rendered the original relief sought inappropriate. Rice v. Hilty, 38 Colo. App. 338, 559 P.2d 725 (1976). Where an unpleaded affirmative defense appears as an afterthought following the entry of judgment, although evidence with relation thereto is clearly admissible as bearing upon issues which were framed by the pleadings, the affirmative defense is not tried by express or implied consent. Bill Dreiling Motor Co. v. Shultz, 168 Colo. 59, 450 P.2d 70 (1969). It is error for court to go beyond pleadings where affirmative defense is not pleaded. Carpenter v. Hill, 131 Colo. 553, 283 P.2d 963 (1955). Where an election of remedies is made plaintiff may not amend his cause of action to conform to the evidence by alleging the remedy which he did not elect at the outset, inasmuch as no proposition of law is better settled in Colorado than that a plaintiff may not play "fast and loose" with his right of election and, since the remedies are inconsistent, to permit one character of action involving one measure of damages to be pleaded and tried and another character of action involving a different measure of damages substituted at the close of the trial would of necessity be to work injustice instead of justice. Gibraltar Colo. Life Co. v. Brink, 113 Colo. 304, 157 P.2d 134 (1945). Where a motion to dismiss is filed but neither argued nor ruled upon, an answer thereafter is filed in which the motion to dismiss is not repeated, and the trial proceeds on the issues framed by the complaint and answer without the sufficiency of the complaint being again challenged, an amendment to conform to the proof would have been in order under section (b) of this rule. O. K. Uranium Dev. Co. v. Miller, 140 Colo. 490, 345 P.2d 382 (1959). It is not necessary for plaintiff to amend his complaint to include third-party defendant. It was not essential to the validity of the judgment entered against the third-party defendant that the original plaintiff should have formally entered an amendment to its complaint to include a claim against him. Ashford v. Burnham Aviation Serv., Inc., 162 Colo. 582, 427 P.2d 875 (1967). Amendment shall conform to evidence allowed. Niles v. Builders Serv. & Supply, Inc., 667 P.2d 770 (Colo. App. 1983). F. Objections. This rule is not controlling where there are objections. This rule is not controlling where the issue presented to the jury is not raised by the pleadings and is not tried by express or implied consent of the parties because of objections to a trial of any issue not presented by the pleadings. W.T. Grant Co. v. Casady, 117 Colo. 405, 188 P.2d 881 (1948); Lininger v. Knight, 123 Colo. 213, 226 P.2d 809 (1951). It is error to grant plaintiff leave to so amend the complaint over defendant's objection. Barnes v. Wright, 123 Colo. 462, 231 P.2d 794 (1951). Where attention is called by plaintiff to a defective pleading by timely objections to evidence in support of a matter not pleaded by defendant, the duty of amending the unsatisfactory pleading falls upon the defendant, and unless defendant does so, such matter cannot be litigated and it is error for the court to permit it to be so. Lamar Bldg. & Loan Ass'n v. Truax, 95 Colo. 77, 33 P.2d 978 (1934). A trial court's qualified ruling initially sustaining objection to the amendment of the complaint does not preclude the court from considering all of the evidence offered and received, without objection, relating to an issue and thereafter concluding that indeed the issue had been submitted to the court for its determination, and the failure to actually amend does not affect the result of the trial of the issue where the court's determination of this issue is without prejudice. Radinsky v. Weaver, 170 Colo. 169, 460 P.2d 218 (1969). Under this rule when an issue is tried before the court without timely objection or motion, then the issue is before the court regardless of any defect in the pleading. Barbary v. Benz, 169 Colo. 408, 457 P.2d 389 (1969). Section (b) has been interpreted to provide that when an issue is tried before the court without timely objection or motion, then the issue is deemed properly before the court despite any defect in the pleading. Great Am. Ins. Co. v. Ferndale Dev. Co., 185 Colo. 252, 523 P.2d 979 (1974); Kennedy v. Aerr Co., 833 P.2d 807 (Colo. App. 1991). By failing to object to evidence introduced on a matter which is not pleaded, a party impliedly consents that the action should be tried in all respects as if the issue had been raised. Toy v. Rogers, 114 Colo. 432, 165 P.2d 1017 (1946). When issues not raised in the pleadings are tried by express or implied consent of the parties, they shall be treated as if the issues were raised in the pleadings. Kennedy v. Aerr Co., 833 P.2d 807 (Colo. App. 1991). Counsel is not required to be on the alert to challenge every objectionable question or answer lest it be later made the basis of another claim than that which was intentionally and fairly tendered. Am. Nat'l Bank v. Etter, 28 Colo. App. 511, 476 P.2d 287 (1970). Where evidence tending to prove a matter is introduced at trial without an objection that it goes to issues beyond the scope of the pleadings, then such matters are properly before the court even though they are not pleaded. Motlong v. World Sav. & Loan Ass'n, 168 Colo. 540, 452 P.2d 384 (1969). Where pleadings fail to raise an affirmative defense which must be specifically set forth in the pleadings under C.R.C.P. 8(c), but no objection is made to evidence introduced in regard to that issue, such issue may be treated as raised in the pleadings under section (b) of this rule. Metropolitan State Bank, Inc. v. Cox, 134 Colo. 260, 302 P.2d 188 (1956). In the absence of motion or objection when an issue not pleaded is thus presented, the pleadings become functus officio, and the parties are before the court to present such matter as they desire. Carlson v. Bain, 116 Colo. 526, 182 P.2d 909 (1947). Where evidence raising an issue is received without objection, the issue is considered as if it had been raised in the pleadings. Craft v. Stumpf, 115 Colo. 181, 170 P.2d 779 (1946). The issue will be so treated by the supreme court. Since an issue not raised by the pleadings is not fatal when considered in the trial without objection on anyone's part, it will be treated in the supreme court in all respects the same as if it had been raised in the pleadings. Hopkins v. Underwood, 126 Colo. 224, 247 P.2d 1000 (1952). In the absence of motions or objections, any issue that the parties see fit to present may be considered and determined by the trial court. Carlson v. Bain, 116 Colo. 526, 182 P.2d 909 (1947). Even where plaintiffs who were advised before trial of a tendered amendment to defendant's answer and counterclaim so as to set forth another defense made no objection thereto and one of the plaintiffs testified with reference to this defense without objection, the trial court erred in refusing to grant leave to defendant to so amend after all of the evidence had been introduced. Rogers v. Funkhouser, 121 Colo. 13, 212 P.2d 497 (1949). Where the amended complaint did not plead a certain matter, but the record disclosed that the defendant was put on notice of the claim for that matter as early as the pre-trial conference, then the trial court's admission of the evidence and, upon motion of the plaintiffs, grant of leave to amend the complaint to conform to the proof was in conformity with the discretion of section (b) of this rule. Welborn v. Sullivant, 167 Colo. 35, 445 P.2d 215 (1968). Where the parties appear, cross-examine witnesses, introduce evidence, and fully participate in the hearing, they therefore have notice of the hearing and the issues involved, and by their full participation in the proceedings without objection or request for a continuance waive whatever deficiencies might exist in regards to notice of the hearing. Hassler & Bates Co. v. Pub. Utils. Comm'n, 168 Colo. 183, 451 P.2d 280 (1969). A judgment based on issues not formed by the pleadings is not error where the issue is embraced in the stipulation of facts upon which the case is tried, and the complaint is not challenged in the trial court, since under section (b) of this rule such an issue must be treated in all respects as if it had been raised in the pleadings. Sinclair Ref. Co. v. Shakespeare, 115 Colo. 520, 175 P.2d 389 (1946). Trial of an issue without objection constitutes trial by implied consent. To the extent that the issue of the defective condition of the brake system was not raised in the pleadings filed by the employee in a suit for injuries he sustained as he attempted to uncouple a locomotive, admission of evidence bearing on the issue without objection from the railroads constituted trial of the issue by implied consent. Tovrea v. Denver & Rio Grande Western Railroad Co., 693 P.2d 1016 (Colo. App. 1984). Where special damages are not pleaded as required by C.R.C.P. 9(g), and defendant makes no objection to the evidence on which the court bases its findings as to damages no amendment is necessary, and a judgment giving both actual and special damages would stand. Carlson v. Bain, 116 Colo. 526, 182 P.2d 909 (1947). G. When Pleading Can be Amended. Pleadings can be so amended either at trial or subsequent to judgment. Where evidence admitted without objection clearly establishes the right of plaintiffs to their claim, then under this rule plaintiffs can amend their complaint to conform to the proof either at the trial or subsequent to the judgment. Toy v. Rogers, 114 Colo. 432, 165 P.2d 1017 (1946). The caption of the complaint is properly amended after the trial to read that the defendants were partners where one of the defendants admitted the partnership at that time. Bamford v. Cope, 31 Colo. App. 161, 499 P.2d 639 (1972). IV. Relation Back. This rule is identical to F.R.C.P. 15(c). Denver & R. G. W. R. R. v. Clint, 235 F.2d 445 (10th Cir. 1956). Amended petition under this rule relates back to the date of the original petition. Stalford v. Bd. of County Comm'rs, 128 Colo. 441, 263 P.2d 436 (1953). Amendment relates back to filing of original complaint. Where the claim asserted in the amended complaint arose out of the same conduct and occurrence set forth, or attempted to be set forth, in the original complaint, where the parties were the same, where the occurrence was the same, and where in both pleadings the same negligence was pleaded as the proximate cause of the accident, and where from the beginning plaintiff sought to recover damages, then, under section (c) of this rule, the amendment related back to the time of the filing of the original complaint. Denver & R. G. W. R. R. v. Clint, 235 F.2d 445 (10th Cir. 1956). Amended complaint which puts forth a contract claim based on the same facts as the original tort claim related back to original complaint and was not barred by the statute of limitation. Roper v. Spring Lake Dev. Co., 789 P.2d 483 (Colo. App. 1990). Section (c) is not applicable to proceedings to review banking board chartering decisions. Columbine State Bank v. Banking Bd., 34 Colo. App. 11, 523 P.2d 474 (1974). The doctrine of relation back is not applicable to a petition for further relief because such a petition is not an amended pleading. Subryan v. Regents of Univ. of Colo., 789 P.2d 472 (Colo. App. 1989). Section (c) applies only to the amendment of a pleading in an ongoing action and not to the filing of a new complaint in a new case. In case where second complaint filed by plaintiff was in fact an original complaint, rather than an amended pleading that related back to the first complaint, plaintiff could not avail himself of the relation-back doctrine, and trial court properly dismissed plaintiff's second complaint as untimely filed. Kelso v. Rickenbaugh Cadillac Co., 262 P.3d 1001 (Colo. App. 2011). The doctrine of relation back cannot be used to validate an otherwise invalid notice of lis pendens. The validity of a notice of lis pendens is determined when it is recorded. Brossia v. Rick Constr., L.T.D., 81 P.3d 1126 (Colo. App. 2003). Substituted plaintiff's claim relates back where no prejudice to defendant. If the adverse party has had sufficient notice of the disputed occurrence and related institution of legal action so as to obviate any prejudice which might arise from the assertion of a substituted plaintiff's claim, then the substitution is allowed to relate back. Travelers Ins. Co. v. Gasper, 630 P.2d 97 (Colo. App. 1981). Whenever an amended pleading or complaint arises out of the conduct, transaction, or occurrence set forth in the original pleading, the amendment relates back to the date of the original pleading. Halliburton v. Pub. Serv. Co., 804 P.2d 213 (Colo. App. 1990). Relation back did not apply where plaintiff sued an uninsured motorist for negligence and later added the plaintiff's insurer based on a separate transaction or conduct arising from the plaintiff's contract of uninsured motorist coverage. In this situation there was no mistake of identity, only a failure to abide by the applicable statute of limitations. Trigg v. State Farm Mut. Auto. Ins. Co., 129 P.3d 1099 (Colo. App. 2005). The doctrine of relation back applies to amendments to water applications so long as the requirements of this rule do not conflict with the provisions of the Water Right Determination and Administration Act. City of Thornton v. City of Fort Collins, 830 P.2d 915 (Colo. 1992). For an amendment to a water application to relate back to the date of the original water application, the claims in the amendment must arise from the conduct, transaction, or occurrence set forth in the original water application in order to insure that interested parties had notice of the claims in the amendment from the date of the original application. City of Thornton v. City of Fort Collins, 830 P.2d 915 (Colo. 1992). Where the source, amount, and uses of water claimed in the amendments to the original water application were the same as those claimed in the amendment to such water application, the amendment related back to the date of the original water application, even though the amended application requested two water diversions and the original application requested a minimum stream flow. City of Thornton v. City of Fort Collins, 830 P.2d 915 (Colo. 1992). Amendments made to conditional water rights application found to relate back to original application because the amendments related to the conduct, transaction, or occurrence set forth in original application and all interested parties had notice of the amending party's intent to appropriate a certain amount of water from a river. City of Thornton v. City of Fort Collins, 830 P.2d 915 (Colo. 1992). Rule inapplicable to certiorari complaint filed under C.R.C.P. 106. Because invoking the relation-back doctrine of section (c) to rescue a certiorari complaint, filed pursuant to C.R.C.P. 106, would undermine the important public policies of expediting resolution of challenges to zoning and annexation proceedings and of removing municipal planning and individual properties from a cloud of uncertainty, when the original complaint fails to state a claim for relief, section (c) of this rule has no application to the proceedings or to any further pleadings which may be filed. Richter v. City of Greenwood Village, 40 Colo. App. 310, 577 P.2d 776 (1978). Amended pleading states timely claim for judicial review because of relation back. Although a motion to amend is filed approximately one month after the 30-day period prescribed by § 24-4-106(4) has expired, leave to amend should be granted under section (a) of this rule and because the amended pleading relates back to the date on which the original petition was filed, the pleading, as amended, states a timely claim for judicial review. Cloverleaf Kennel Club, Inc. v. Colo. Racing Comm'n, 620 P.2d 1051 (Colo. 1980). Where the sole amendment required to bring petitioner's original petition within the State Administrative Procedure Act was the substitution of a reference to § 24-4-106 for the mistaken reference to C.R.C.P. 106(a)(4), and the pleading, if so amended, would state a claim for judicial review identical in all substantive respects to that stated in plaintiff's original petition, the amendment "relates back" to the original petition's filing date. People v. District Court, 200 Colo. 65, 612 P.2d 87 (1980). An amendment which adds a party plaintiff must meet the requirements of section (c) in order for it to relate back to an earlier pleading. It is only if the addition or change in the identity of the plaintiff constitutes a mere change in the plaintiff's capacity or status, or if it consists of the substitution of a real party in interest to a previously asserted claim, that such an amendment may be deemed to relate back for limitation purposes. Ebrahimi v. E.F. Hutton & Co., Inc. 794 P.2d 1015 (Colo. App. 1989). Replacing a "John Doe" caption with a party's real name amounts to "changing a party" within the meaning of section (c), and thus will only relate back if all conditions specified in the rule have been satisfied. Marriott v. Goldstein, 662 P.2d 496 (Colo. App. 1983), overruled on other grounds, Dillingham v. Greeley Publishing Co., 701 P.2d 27 (Colo. 1985); Medina v. Schmutz Mfg. Co., 677 P.2d 953 (Colo. App. 1983), overruled on other grounds, Dillingham v. Greeley Publishing Co., 701 P.2d 27 (Colo. 1985). By holding that replacing a "John Doe" caption with a party's real name amounts to changing a party, it is implicitly held that a "John Doe" pleading allowed by C.R.C.P. 10(a) does not operate to toll the statute of limitations against unidentified defendants. Watson v. Unipress, Inc., 733 F.2d 1386 (10th Cir. 1984). Replacing "John Doe" caption with parties' real names does not relate back where the defendants were not named as parties within the period provided by law for commencing the action against them. Brown v. Teitelbaum, 830 P.2d 1081 (Colo. App. 1991). Section (c) is meant to allow changes only where they result from an error such as misnomer or misidentification. Relation back is generally permitted in order to correct a misnomer where the proper party is already before the court and the effect is to merely correct the name under which the party is sued. Accordingly, a plaintiff's ignorance or misunderstanding about who is liable for her injury is not a "mistake" as to the defendant's identity. Lavarato v. Branney, 210 P.3d 485 (Colo. App. 2009). A complaint in the district court seeking to challenge an administrative ruling concerning attorney fees entered subsequent to a decision on the merits must be filed within 30 days after the ruling and does not relate back if filed more than 30 days after such ruling. Allen Homesite Group v. Colo. Water Quality Control Comm'n, 19 P.3d 32 (Colo. App. 2000). Notice within the period provided by law for commencing the action in section (c) includes the reasonable time allowed for service of process. Dillingham v. Greeley Publishing Co., 701 P.2d 27 (Colo. 1985); Defelice v. Johnson, 931 P.2d 548 (Colo. App. 1996). Relation back not to circumvent statute of limitations. The doctrine of relation back in section (c) does not permit a party to maintain a claim for libel filed after the statute of limitations in § 13-80-102 has run. Even v. Longmont United Hosp. Ass'n, 629 P.2d 1100 (Colo. App. 1981). When a motion to amend is filed after the applicable statute of limitations had run, the petitioner may not claim the benefits of the relation-back provisions of section (c). Church of Jesus Christ of Latter Day Saints v. Tally, 654 P.2d 866 (Colo. App. 1982). Amended complaint did not relate back to initial, timely complaint where new defendant did not have notice until four months after expiration of statute of limitations. O'Quinn v. Wedco Technology, 752 F. Supp. 984 (D. Colo. 1990). Amended complaint did not relate back to initial complaint where the new defendants did not receive notice until after the expiration of the statute of limitations. Brown v. Teitelbaum, 830 P.2d 1081 (Colo. App. 1991); Currier v. Sutherland, 215 P.3d 1155 (Colo. App. 2008), aff'd, 218 P.3d 709 (Colo. 2009). Where plaintiff's first amended complaint was untimely, and the untimeliness was jurisdictional in nature, section (c) of this rule does not supply the necessary "relation back" of the amended complaint to the date on which the initial complaint was filed so as to make the amended complaint timely. Lorenz v. City of Littleton, 38 Colo. App. 16, 550 P.2d 884 (1976). Filing of an amended complaint that merely reiterates a claim already stated in the original complaint cannot be used to alter or avoid the requirement of strict compliance with the seven-year adverse possession statute. The alleged separate and distinct claim raised in the amended complaint was supported by the factual claims raised in the original complaint, therefore the amended complaint related back to the original. Peters v. Smuggler-Durant Mining Corp., 930 P.2d 575 (Colo. 1997). Applied in Shepherd v. Wilhelm, 41 Colo. App. 403, 591 P.2d 1039 (1978); Best v. La Plata Planning Comm'n, 701 P.2d 91 (Colo. App. 1984); Wilson v. Goldman, 699 P.2d 420 (Colo. App. 1985); Maurer v. Young Life, 751 P.2d 653 (Colo. App. 1987). V. Supplemental Pleadings. Annotator's note. Since section (c) of this rule is similar to § 80 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. Facts occurring subsequent to the commencement of an action should be presented by supplemental pleadings and not by amendment to the original proceedings. Sylvester v. Jerome, 19 Colo. 128, 34 P. 760 (1893). Matters occurring after the issues are made by the original pleadings cannot be considered or embraced in a decree unless brought into the case by supplemental pleadings. Fastenau v. Engel, 129 Colo. 440, 270 P.2d 1019 (1954). Where leave was granted to file a supplemental petition and a petition was filed in which additional defendants were named, this so-called supplemental petition was partly an amendment to the original because it was not confined to facts which occurred after the action was commenced. Thomas v. Mahin, 76 Colo. 200, 230 P. 793 (1924). There is no prejudice to the rights of defendant in allowing the allegation to be made by pleading styled an "amendment to the complaint", instead of denominating it a supplemental complaint, where the allegations are sufficient in substance. Macaluso v. Easley, 81 Colo. 50, 253 P. 397 (1927). An objection that a claim for rent accruing after the commencement of the action could not have been brought into the case by amendment, but only by supplemental complaint, was held insufficient. Macaluso v. Easley, 81 Colo. 50, 253 P. 397 (1927). Where defendant filed an amendment to an answer, but termed it a "supplemental answer", the court denied leave to file this so-called supplemental answer because a judgment on the pleadings, which had been entered, does not permit amendment of the pleadings. Kingsbury v. Vreeland, 58 Colo. 212, 144 P. 887 (1914); Lamon v. Zamp, 81 Colo. 90, 253 P. 1056 (1927); McLaughlin v. Niles Co., 88 Colo. 202, 294 P. 954 (1930). One of the reasons for requiring a party to file a supplemental pleading to enable him to rely upon matters that have accrued since the filing of his previous pleading, is that he should enable his adversary to take issue as to such new matters. Macaluso v. Easley, 81 Colo. 50, 253 P. 397 (1927). This rule provides reasonable notice to the opposite party. Harms v. Harms, 120 Colo. 212, 209 P.2d 552 (1949). It follows that the opposite party must be afforded an opportunity to tender a pleading and thereby be prepared for the opportunity to meet the issue on the trial and not be surprised to his injury. Harms v. Harms, 120 Colo. 212, 209 P.2d 552 (1949).