Plaintiff's reliance upon Vinton v. Virzi (In re Interest of Vinton), 269 P.3d 1242, 1247-48 (Colo. 2012) is misplaced. In Vinton, the Colorado Supreme Court held that Colorado Revised Statute § 38-30-108.5(1) (2001) provides that a trust is a legal entity with the ability to "acquire, convey, encumber, lease, or otherwise deal with any interest in real or personal property in the name of the trust."

We have typically stated that a plaintiff seeking to prevail on a fraud claim must establish five elements: (1) that the defendant made a false representation of a material fact; (2) that the one making the representation knew it was false; (3) that the person to whom the representation was made was ignorant of the falsity; (4) that the representation was made with the intention that it be acted upon; and (5) that the reliance resulted in damage to the plaintiff. Vinton v. Virzi, 2012 CO 10, ¶ 15, 269 P.3d 1242. For ease of understanding, Colorado's Model Jury Instructions unpack the fifth element into its three discrete sub-parts, requiring the plaintiff to prove separately actual reliance, the reasonableness of that reliance, and that the plaintiff's reliance caused its damages. CJI–Civ. 19:1 (2013) (listing the seven elements of a fraud claim).

This court's choice to exercise its original jurisdiction is “entirely within its discretion.” Vinton v. Virzi, 2012 CO 10, ¶ 9, 269 P.3d 1242. “This court may exercise original jurisdiction under C.A.R. 21 where a trial court proceeds without or in excess of its jurisdiction or to review a seriousabuse of trial court discretion, and where an appeal would not be an adequate remedy.”

. special pleading requirements apply to claims of fraud.” Vinton v. Virzi, 269 P.3d 1242, 1247 (Colo. 2012) (citation omitted). Specifically, a party alleging fraud or mistake “must state with particularity the circumstances constituting fraud or mistake” in their pleading.

¶8 "The choice whether to exercise this court’s original jurisdiction is entirely within its discretion." Vinton v. Virzi , 2012 CO 10, ¶ 9, 269 P.3d 1242, 1245. We have previously recognized that "we may exercise original jurisdiction [under C.A.R. 21 ] to review whether a trial court acts in excess of its jurisdiction or without jurisdiction," City of Colorado Springs v. Bd. of Cty. Comm’rs , 147 P.3d 1, 2 (Colo. 2006), and "where appellate review would be inadequate," Vinton , ¶ 9, 269 P.3d at 1245.

¶ 48 Once a responsive pleading has been filed, a party must seek leave of the court or written consent of the adverse party to amend. C.R.C.P. 15(a); Vinton v. Virzi, 2012 CO 10, ¶ 10, 269 P.3d 1242. The party seeking to amend bears the burden of demonstrating that leave should be granted.

Bristol Bay Prods., LLC v. Lampack , 312 P.3d 1155, 1160 (Colo. 2013) (citing Vinton v. Virzi , 269 P.3d 1242 (Colo. 2012) ). ADA argues that Big Rivers is liable for fraud because it delivered a signed writing to the Bank which: (1) falsely stated that (a) ADA breached the contract and failed to cure and (b) that the draw was to purchase substitute performance; (2) which Big Rivers knew or should have known was false; (3) which was presented to the Bank in order to receive the Letter of Credit funds; (4) which was relied on by the Bank in paying on Big Rivers' demand; and (5) which resulted in a loss of approximately $807,651.00 to ADA.

Under Colorado law, a plaintiff must make five showings to establish a claim of intentional fraudulent misrepresentation: (1) the defendant made a false representation of material fact; (2) the one making the representation knew that it was false; (3) the person to whom the representation was made was ignorant of the falsity; (4) the representation was made with the intention that it be acted upon; and (5) the reliance resulted in damage to the plaintiff. Vinton v. Virzi, 269 P.3d 1242, 1246-47 (Colo. 2012). The elements for negligent misrepresentation are very similar: (1) one in the course of his or her business, profession or employment; (2) makes a misrepresentation of a material fact, without reasonable care; (3) for the guidance of others; (4) with knowledge that his or her representations will be relied upon by the injured party; and (5) the injured party justifiably relied on the misrepresentation to his or her detriment.

Given that reliance requirement, the Colorado Supreme Court has explained that "if a party claiming fraud has access to information that was equally available to both parties and would have led to the true facts, that party has no right to rely on a false representation." See, e.g., Vinton v. Virzi, 269 P.3d 1242, 1247 (Colo. 2012) (holding that a party had no right to rely on an allegedly fraudulent representation by another where it concerned readily-accessible public information, such as information in title documents recorded with a county clerk); Cherrington v. Woods, 290 P.2d 226, 228 (Colo. 1955) ("Where the means of knowledge are at hand and equally available to both parties, and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these means and opportunities, he will not be heard to say that he has been deceived by the vendor's representations.") (internal quotation marks and citations omitted).

A claim for fraud requires a plaintiff to prove that (1) the defendant knowingly made a false representation of material fact; (2) plaintiff was unaware of its falsity; (3) the representation was intended to induce plaintiff to act; and (4) plaintiff was damaged by acting in reliance on the representation. Vinton v. Virzi, 269 P.3d 1242, 1247 (Colo.2012). Under Federal Rule of Civil Procedure 9(b), “fraud or mistake” must be pled with particularity, meaning that a plaintiff must, at the minimum, “set forth the time, place and contents of the false representation, the identity of the party making the false statements and the consequences thereof.”