The full argument.

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, 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:

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.

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. C.R.C.P. 121 generally disfavors surreplies and permits them only with leave of court, and motions to strike evidentiary submissions at the summary‑judgment stage are likewise 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 disfavored motions.

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.

Compounding its Amada‑splitting error, the Panel further 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 C.R.C.P. 56 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 threshold 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. Continental 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 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 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. Defendant explicitly admitted uncertainty, stating "It is presumed Plaintiff had such proof [of purchase], because if he did not have proof of purchase…" CF at 233. The words "presumed" and "if" confirm that Defendant was offering speculation rather than presenting evidence.

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 conclusory statements in opening briefs can serve as placeholder allegations, movants may file skeletal opening submissions 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.