Issues Presented for Review

The Panel held that Plaintiff forfeited all objections to Best Buy's reply‑only evidence by failing to file a motion to strike or request for surreply before the District Court entered summary judgment. Opinion at ¶ 34. This uncodified forfeiture rule does not merely lack foundation in Colorado law; it places this division in direct, diametric conflict with the division in Amada Family Ltd. Partnership v. Pomeroy, 2021 COA 73.

The baseline rule is that a movant cannot ambush a non‑movant with new arguments or evidence in a reply brief. As established in Wallman v. Kelley, 976 P.2d 330, 332 (Colo. App. 1999):

Critically, Wallman did not condition this protection on the non‑movant's preemptive filing of motions to strike or requests for surreply. This is because the protection is structural and cannot be cured retroactively through discretionary motions the non‑movant may or may not know to file; the C.R.C.P. 56 framework assumes movants will comply with Wallman from the outset. In other words, a non‑movant cannot "waive" a movant into satisfying its initial evidentiary threshold, because an unsupported opening motion demands denial even if the non‑movant stands completely silent. See People v. Hernandez & Assocs., Inc., 736 P.2d 1238 (Colo. App. 1986); see also Wolther v. Schaarschmidt, 738 P.2d 25 (Colo. App. 1986) (same).

Amada expressly forecloses this exact forfeiture trap. The Amada panel faced the identical procedural question presented here: whether a litigant forfeits an objection to a summary judgment reply brief ambush by failing to preserve it before the trial court. The Amada panel explicitly rejected forfeiture, holding:

By holding that Plaintiff in this case did forfeit his objection by failing to file a motion to strike or request for surreply, the Panel issued a ruling in pure diametric conflict with Amada. A litigant cannot simultaneously be excused from objecting because they "had no opportunity" (Amada), yet strictly penalized for failing to create that very opportunity (the Panel). These two procedural rules are mutually exclusive. Trial courts cannot apply both regimes at once. To restore the uniform application of C.R.C.P. 56, this Court must resolve the split.

Compounding its Amada‑splitting error, the Panel further departed from Colorado law mandating that cross‑motions for summary judgment "be considered and ruled upon separately." Morlan v. Durland Trust Co., 127 Colo. 5, 252 P.2d 98 (1952). Central Bank & Trust Co. v. Robinson, 137 Colo. 409, 326 P.2d 82 (1958), made this concrete:

Under this rule, "concessions" made for a cross‑motion "terminate" once that motion is overruled and cannot "carry over" into the opposing motion, which must be "completely unsupported by anything except such as it had itself placed in the record." Morlan, 252 P.2d at 101.

The Panel flatly disregarded these established principles, holding that the District Court properly "considered all briefs and exhibits in connection with both parties' motions together," because Plaintiff "had the opportunity to respond to the affidavit and receipts when he submitted his reply in support of his cross‑motion for summary judgment." Opinion at ¶ 36.

This creates an impossible structural conflict. A Cross‑MSJ reply asserts that no genuine dispute of fact exists—the very "admission of facts" Morlan describes that "terminate." Yet the Panel requires this pleading to now serve a contradictory dual function: arguing that no dispute exists (for Plaintiff's Cross‑MSJ) while simultaneously creating disputes (as a surreply to Defendant's MSJ). Structurally, a single document cannot do both.

Fundamentally, had Plaintiff not filed a Cross‑MSJ, Defendant's MSJ would have to "stand on its own" evidence—exactly as Morlan requires. By penalizing Plaintiff for invoking procedural rights, the Panel's rule allows movants to file evidence‑free opening briefs, then introduce evidence only in reply, all while the court treats the non‑movant's cross‑motion reply as a surrogate surreply. This renders the movant's initial C.R.C.P. 56 burden illusory while forcing the non‑movant to defend against unanticipated arguments in an incompatible procedural vehicle.

Further nullifying the movant's burden, the Panel held that Defendant's MSJ reply‑only evidence was proper "rebuttal" because it merely "responded to Montgomery's various denials—about exiting the store, having merchandise, and having a receipt." Opinion at ¶ 35. Plaintiff made no such factual denials.

In his Response to Defendant's MSJ, Plaintiff argued that it provided no "tangible, admissible evidence" of a receipt or stolen merchandise, offering only "conclusory statements" unsupported by "actual independent evidence." CF at 645, 667. These are burden‑of‑proof arguments, not factual denials. Plaintiff was pointing out that Defendant had not carried its initial burden under C.R.C.P. 56. A non‑movant has no obligation to present contrary evidence until the movant satisfies that threshold burden.

The Panel itself conceded that Plaintiff made no factual denials, stating:

The Panel cannot have it both ways: either Plaintiff provided "no contrary evidence" and made "no denials"—in which case Defendant's reply‑only evidence was not rebuttal, but a belated attempt to satisfy its initial burden—or Plaintiff made factual denials. But if the latter were true, those denials would themselves have created a genuine dispute of material fact, satisfying Plaintiff's burden as the non‑movant and independently requiring denial of Defendant's MSJ. The Panel's own words thus lead inescapably to the same conclusion either way: Defendant's MSJ should have been denied.

By permitting Defendant to introduce foundational evidence for the first time in reply, then classifying it "rebuttal," the Panel nullified the movant's initial burden. Under this rule, movants may bootstrap their way past Wallman by making unsupported factual assertions in their opening briefs, characterizing the non‑movant's procedural objections as factual "denials," and then submitting the missing evidence in reply under the guise of "rebuttal." This inverts C.R.C.P. 56's burden structure and rewards strategic sandbagging.

Finally, the Panel held that Defendant's MSJ "put Montgomery on notice" because it "raised the shopkeeper's privilege and specifically claimed that he exited the store with merchandise, refused to show a receipt, and was suspected of theft." Opinion at ¶ 35. This holding directly contravenes the established principle of Suncor v. Aspen:

Defendant's MSJ contained no affidavits or business records—only bare assertions. Defendant explicitly admitted uncertainty, stating:

The words "presumed" and "if" confirm that Defendant was offering speculation rather than presenting evidence.

Suncor holds that no matter how "specifically claimed" a statement is, it is legally insufficient to "raise" an issue without supporting evidence. Id. at 1269.

The Panel's rule eviscerates this protection: if conclusory statements in opening briefs can serve as placeholder allegations, movants may file skeletal opening briefs that act as mere drafts, finalizing them with evidence in reply by using the non‑movant's response as a roadmap to cure their own deficiencies. This renders the initial burden under C.R.C.P. 56 meaningless, collapsing summary judgment from a front‑loaded procedure with clear burden allocation into a back‑and‑forth discovery process where the movant gets to belatedly satisfy its burden of production.

This Issue addresses five factual rulings that compound the legal errors in Issues I–IV.

A. The Panel did not address the contradiction between the affidavit and the receipt.

The manager's affidavit claims he "observed [Plaintiff] remove two boxes of JLab headphones/earbuds from the shelf, place them in his pocket and immediately leave the Best Buy Store." CF at 780 ¶ 4. Yet, Defendant's proffered receipt purportedly shows Plaintiff making a purchase at 2:20 p.m.—one minute after his 2:19 p.m. detention shown on body camera. CF at 758; PBC at 0:00. As Plaintiff argued, this internal contradiction is cleanly resolved by the factual reality: "Plaintiff didn't steal, and his brother made the associated purchase that day." Opening Brief at 16, footnote 4.

If Plaintiff stole and "immediately" left, there was no time for a purchase. If he made a purchase and "immediately" left, the theft observation is impossible. Both cannot be true simultaneously. The Panel did not address this contradiction.

Here, Defendant's own two pieces of evidence irreconcilably contradict each other—and Plaintiff's body camera footage—yet the Panel concurrently adopted both as true, instead of properly denying Defendant's MSJ.

B. The Panel concluded that the receipt was admissible for its "effect on the listener."

The Panel held that the receipt was admissible for its mere "effect on the listener" rather than for the truth of its contents. Opinion at ¶ 26. This rationale fails because the District Court explicitly used the receipt to prove the substantive truth of three specific assertions: (1) that Plaintiff made a particular purchase, (2) that particular purchase was a Chromecast with Google TV, and (3) Plaintiff therefore could have shown the associated receipt to end his detention. CF at 878, 881, 882. Using a receipt to prove that a specific transaction occurred implicates hearsay rules:

C. The Panel misapplied evidentiary rules by shifting the foundation burden.

The Panel held that Plaintiff "failed to show that the receipt was not generated automatically by a computer without human input," thus failing to establish it was hearsay. Opinion at ¶ 29. This impermissibly shifts the evidentiary burden.

Under People v. Hamilton, 2019 COA 101, 452 P.3d 184 (Colo. App. 2019):

Furthermore, the proponent "must lay a sufficient foundation to establish that the machine's results are valid and reliable."

Therefore, Defendant bore the burden to establish both that the receipt lacked human input, and that the system was reliable. It established neither. Here, an employee scanned items, entered account information, and processed payment—classic human input rendering the receipt hearsay. See United States v. Cestnik, 36 F.3d 904, 907 (10th Cir. 1994).

By assuming computer‑printed receipts are inherently reliable and non‑hearsay, while forcing Plaintiff to prove the negative, the Panel created an unworkable rule allowing parties to bypass foundational evidentiary requirements statewide.

D. The Panel accepted the inference that Plaintiff made the purchase.

The Panel held that the receipt constituted "proof" that Plaintiff made the purchase. Opinion at ¶ 14. However, a receipt reflects only that a linked account is charged; Best Buy records purchases under the account holder's name regardless of who presents the card. CF at 831 ¶ 3. Here, Plaintiff's brother—an authorized user—made the purchase. As Plaintiff argued, a receipt tied to an account "only establishes that some person made that purchase, not actually who made it." CF at 801.

Without direct evidence identifying the physical purchaser, the Panel's cardholder‑equals‑purchaser assumption is "[m]erely colorable" and thus insufficient to support, let alone preclude, summary judgment:

E. The Panel dismissed sworn testimony and video as self-serving speculation.

The Panel dismissed Plaintiff's sworn affidavit—that he never concealed anything, used pockets, or met employees inside—as "self‑serving" "speculation." Opinion at ¶¶ 41, 45. But a party's sworn testimony about personal actions is competent evidence. Their inherent "self‑serving" nature neither renders affidavits inadmissible nor diminishes their weight at summary judgment.

Furthermore, Plaintiff's body camera footage—capturing the manager's contradictions, focus on hands over pockets (31 mentions vs. 3 — Appeal Opening Brief, 2025CA327, at 17), and failure to claim personal observation of theft—is also objective evidence:

By failing to do so, the Panel impermissibly weighed evidence, assessed credibility, and resolved facts in Defendant's favor—all impermissible at summary judgment.