Petition for Writ of Certiorari·One‑Page Memo
Montgomery v. Best Buy Stores, L.P.
Colo. Sup. Ct. No. 2026SC236·On certiorari to Colo. Ct. App. No. 2025CA327·From Jefferson Cty. Dist. Ct. No. 2023CV226
Filed: May 28, 2026·Petitioner pro se·Amicus deadline: 11:59 PM MDT, June 4, 2026 (C.A.R. 53(g))
Questions Presented
- Whether a court may impose a strict, uncodified forfeiture rule that prohibits a non‑movant from challenging reply‑only evidence on appeal without a prior motion to strike, in pure diametric conflict with Amada Family Ltd. Partnership v. Pomeroy, 2021 COA 73.
- Whether a court may conflate independent motions for summary judgment by treating one party's reply as a surrogate surreply to the opposing party's reply, in conflict with Morlan v. Durland Trust Co., 252 P.2d 98 (Colo. 1952), and Central Bank & Trust v. Robinson, 326 P.2d 82 (Colo. 1958).
- Whether a court may characterize procedural challenges to the movant's burden of proof as factual “denials” sufficient to allow the movant to introduce reply‑only evidence as “rebuttal,” thereby relieving the movant of its initial Rule 56 burden.
- Whether a court may deem an issue properly “raised” when the movant vaguely discusses a general topic without supporting evidence, in conflict with Suncor v. Aspen, 178 P.3d 1263 (Colo. App. 2008).
Operative Facts
- Best Buy filed an opening MSJ with no affidavit, no receipt, and no business record — only conclusory argument.
- Best Buy introduced its sole evidence — a manager's affidavit and a receipt — for the first time in MSJ reply. The District Court relied on both to grant summary judgment.
- The receipt and the affidavit are internally irreconcilable: the receipt timestamp is one minute after the body camera shows the detention had already begun, and the manager's “stole and immediately left” claim leaves no time for any purchase at all.
What the Court of Appeals Did Wrong
- Imposed an uncodified Amada-conflicting forfeiture rule, holding that Plaintiff forfeited his right to appellate review of reply‑only evidence because no motion to strike was filed in the court below. (Op. ¶ 34.)
- Conflated independent motions, treating Plaintiff's Cross‑MSJ reply as a surrogate surreply to Defendant's MSJ reply. (Op. ¶ 36.)
- Recharacterized burden‑of‑proof arguments as factual “denials,” allowing reply‑only evidence to be introduced under the guise of “rebuttal.” (Op. ¶ 35) — even while conceding that Plaintiff “provided no contrary evidence” to actually “rebut.” (Op. ¶¶ 14, 15.)
- Treated vague, evidence‑free topic discussion as “raising an issue” for Rule 56 burden‑shifting purposes. (Op. ¶ 35.)
Prejudice — The Errors Weren’t Harmless (Petition § II)
- Excluding the improper reply‑only exhibits leaves Best Buy’s opening motion entirely devoid of admissible evidence.
- Alternatively, even if considered, the late evidence is so internally irreconcilable — and so blatantly contradicted by the body camera footage — that it cannot support summary judgment as a matter of law. (Scott v. Harris, 550 U.S. 372.)
Why It Matters Statewide
- The rules below now permit well‑resourced defendants to file evidence‑free opening briefs, observe the non‑movant's response, and then introduce all of their actual evidence only in reply — labeling it “rebuttal” and arguing forfeiture against any later objection.
- Pro se litigants comprise the majority of Colorado civil plaintiffs. The Panel's uncodified forfeiture trap closes the courthouse door for the unrepresented — precisely the population least equipped to navigate it.
The Ask. Three pathways for amicus support — sign as drafted (the unsigned 20‑page, 3,149‑word draft is already C.A.R. 29- and 53-compliant), modify and sign, or replace with your own brief. Filing deadline: 11:59 PM MDT, Thursday, June 4, 2026. Drafts, full record, and three‑pathway logistics available at: bestbuyamicus.com/amicus.
bestbuyamicus.com·petitioner@bestbuyamicus.com·(970) 412-5463
2026SC236-CPM-v2