The full argument.

The Panel held that Plaintiff forfeited his right to challenge Best Buy's reply‑only evidence on appeal because he "did not object to or move to strike the manager's affidavit or the receipts on the basis that they were late." Opinion at ¶ 34. The Panel reasoned: "we do not review arguments raised for the first time in a motion for reconsideration." Id. This uncodified forfeiture rule does not merely lack foundation in Colorado law; it places the Panel in direct, irreconcilable conflict with Amada, 2021 COA 73.

The baseline rule is that a movant is strictly prohibited from introducing new arguments or evidence for the first time in a reply brief. As established in Wallman v. Kelley, 976 P.2d 330, 332 (Colo. App. 1999):

Under C.R.C.P. 56, a non‑movant's silence is structural; they cannot "waive" a movant into satisfying an unmet initial burden. See People v. Hernandez & Assocs., Inc., 736 P.2d 1238 (Colo. App. 1986).

This structural protection extends to the reply phase. Because reply‑only evidence is a legal nullity under Wallman, there is nothing to "strike." Thus, the Panel's forfeiture rule demands the impossible: it requires non‑movants to file discretionary motions to combat phantom evidence the trial court is already strictly mandated to ignore. Furthermore, because motions to strike are not codified within C.R.C.P. 56, litigants lack any structural "opportunity" to deploy them. In practice, surviving summary judgment becomes a frantic race against time—the litigant's pen against the judge's gavel—where a dispositive ruling on the late evidence could drop at any moment.

Recognizing this precise absurdity, the Amada panel explicitly rejected the uncodified forfeiture trap:

Amada therefore cemented the principle that because the rules provide no formal opportunity to strike late evidence, the failure to utilize an uncodified, extra‑procedural tool cannot be weaponized as a waiver. The right to appellate review remains absolute.

Here, by holding that Plaintiff forfeited his right to challenge the reply‑only evidence on appeal, the Panel issued a ruling in pure diametric conflict with Amada. Now, under Colorado law, a non‑movant is either expressly permitted to contest reply‑only evidence on appeal without a prior motion to strike (Amada), or strictly prohibited from doing so (the Panel).

Inevitably, the coexistence of these mutually exclusive procedural regimes forces litigants and practitioners to defensively assume the more punitive standard will govern their case. That is, requiring motions to strike merely to preserve appellate review eviscerates the core of Wallman's automatic trial‑level shield: uncodified defensive motions must now be frantically filed to strike phantom evidence and shift burdens back that never lawfully shifted in the first place. Consequently, the Panel has extinguished all three protections—Wallman, Hernandez, and Amada—statewide. To restore the structural integrity of C.R.C.P. 56, this Court must grant certiorari and reverse.

Federal authority across multiple circuits accords with Amada and uniformly recognizes the unfairness of permitting movants to introduce new reply‑only evidence without affording an opportunity to respond. The Eleventh Circuit, in Atlantic Specialty Ins. Co. v. Digit Dirt Worx, Inc., 793 F. App'x 896 (11th Cir. 2019), vacated a summary judgment because the district court relied on a new declaration submitted in a reply brief while denying the non‑movant's request for a surreply:

The Tenth Circuit enforces the identical rule under Fed. R. Civ. P. 56 in Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1164 (10th Cir. 1998). And in Knowlton v. Shaw, 791 F. Supp. 2d 220, 228 (D. Me. 2011), the Court explained that summary judgment rules do not "allow the movant to add new facts at this late stage":

Finally, the Panel's rule creates serious practical difficulties for trial courts and litigants. Uncodified motions to strike evidentiary submissions at the summary‑judgment stage are committed to judicial discretion. Conditioning preservation of a Wallman/Amada objection on a non‑movant's success in obtaining such discretionary relief shifts the burden of enforcing Rule 56's structure from the offending party to the party that has already been disadvantaged by the reply‑only submission. This Court should clarify that the prohibition on reply‑brief ambush is a limitation on what may support summary judgment in the first place—not a privilege forfeited by failing to pursue a discretionary motion.

In appellate practice, rules that operate this way tend to function as traps for unrepresented or resource‑constrained litigants rather than as neutral case‑management tools.

Beyond its forfeiture trap, the Panel departed from more than seventy years of 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), reinforced this:

Morlan went further still: concessions made in support of a cross‑motion "terminate" once that motion is overruled and cannot "carry over" into the opposing party's motion, which must be "completely unsupported by anything except such as it had itself placed in the record." 252 P.2d at 101. Clear adherence to this separation prevents cross‑motions from silently shifting burdens or expanding the evidentiary record without transparent notice to either side.

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. That rationale fundamentally misunderstands the procedural posture of a Cross‑MSJ reply.

A reply in support of a cross‑motion for summary judgment argues that no genuine dispute of material fact exists as to the cross‑movant's claims. Under Morlan, the concessions implicit in that posture "terminate" once the cross‑motion is denied and cannot be carried over to shore up an opposing motion that must stand on its own proof. Structurally, a single document cannot do both: assert no dispute (for the cross‑motion) while simultaneously creating dispute (as a surreply to the opponent's motion).

The consequences of the Panel's rule are perverse. A plaintiff who files no cross‑motion would be entitled to require the defendant's motion to stand on the evidence the defendant submitted at the outset—exactly as Morlan demands. But a plaintiff who exercises the procedural right to file a cross‑motion is penalized: his cross‑motion reply is conscripted to serve the defendant's motion as a surrogate surreply. This renders the movant's initial burden illusory while forcing the non‑movant to defend against unanticipated arguments in an incompatible procedural vehicle. Courts must not penalize litigants for invoking procedural rights, and this Court should so hold.

This principle is not parochial to Colorado. Federal courts apply the same rule. The Ninth Circuit held, in Fair Housing Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001), that when parties file cross‑motions for summary judgment:

If cross‑motion replies may routinely be treated as surrogate surreplies, litigants who file cross‑motions will be worse off than those who do not: their filings will be used to fill gaps in an opponent's record in a way Morlan, Central Bank, and Riverside Two do not permit—an asymmetry that undermines the predictability of summary judgment practice and discourages cross‑motions as a tool for efficiently framing issues. Settled Colorado law cannot be quietly displaced by a single unpublished panel decision; this Court should restore the separate‑consideration rule that Morlan and Central Bank have anchored for more than seventy years.

Having conscripted the cross‑motion reply to fill Defendant's evidentiary gaps, the Panel needed a doctrinal label for the reply‑only evidence. It chose "rebuttal," holding 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). A non‑movant has no obligation to present contrary evidence until the movant satisfies that burden.

Colorado law confirms the two‑component burden the movant bears under C.R.C.P. 56: first, an initial burden of production to demonstrate the absence of a genuine issue of material fact; and second, a final burden of persuasion if the non‑movant's showing is made. Cont'l Air Lines, Inc. v. Keenan, 731 P.2d 708, 710 (Colo. 1987). Only after the movant satisfies that initial production burden does the burden shift to the non‑movant to establish that a triable issue of fact exists. Woodward v. Bd. of Directors of TACO, 155 P.3d 621, 626 (Colo. App. 2007). Best Buy's opening MSJ contained no affidavit, no receipt, and no business record—only conclusory argument. It therefore failed to satisfy the initial production burden as a matter of law.

The Panel itself conceded that Plaintiff made no factual denials:

This characterization is self‑defeating. 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 cannot logically constitute "rebuttal" (by definition, rebuttal responds to something; evidence introduced to prove a fact never disputed is not rebuttal, it is belated foundational evidence that should have accompanied the opening brief)—or Plaintiff made 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 precluding summary judgment. The Panel's own words lead inescapably to the same conclusion either way: Defendant's MSJ should have been denied.

The Panel's reasoning thus allows a movant to postpone its evidentiary showing until reply while still claiming the benefit of the "rebuttal" label and a strict forfeiture rule. In practical terms, a party could file an opening brief resting solely on attorney argument, wait to see how the non‑movant responds, and then submit foundational proof in reply while asserting that any objection has been waived. That sequencing is impossible to reconcile with the front‑loaded design of C.R.C.P. 56 and with the Colorado and federal authority requiring the movant to make a sufficient evidentiary showing before any burden shifts to the non‑movant. 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. "Rebuttal" evidence presupposes an evidentiary showing to rebut; it cannot be used to supply the movant's initial burden in the first instance.

Compounding the foregoing, the Panel adopted a fourth and independently fatal rule, holding that Defendant's evidence‑free opening brief "put Montgomery on notice" of the need to present evidence. The Panel reasoned that the MSJ provided 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. Indeed, Defendant offered only speculation, stating:

The words "specifically claimed" are critical to the Panel's rationale—and Suncor expressly rejects them. Suncor holds that no matter how specifically a movant states a proposition, the statement is legally insufficient to discharge its burden under C.R.C.P. 56 without supporting evidence. Id. at 1269. The specificity of the language does not transform bare argument into evidentiary substance. An attorney's assertion in a brief is not evidence; it is argument. And argument, however pointedly phrased, cannot substitute for the evidentiary showing C.R.C.P. 56 requires.

The Panel's rule substantially weakens Suncor's protection. If general topics in opening briefs can serve as placeholder allegations, movants may file skeletal opening briefs and reserve the presentation of actual proof for reply, while non‑movants are expected to anticipate and counter factual showings that have not yet been made. That approach collapses the distinction between argument and evidence that Suncor draws, making it difficult for courts to determine, at the opening‑brief stage, whether the movant has carried its initial burden. No Colorado precedent endorses this type of placeholder practice, and Suncor strongly indicates that it is impermissible.