The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY December 19, 2019

No. 18CA2143, Andrews v. Miller — Colorado Rules for Magistrates — Functions of District Court Magistrates — Functions in Civil Cases – Consent Necessary — Notice

In this appeal involving the Colorado Rules for Magistrates, a

division of the court of appeals addresses whether a magistrate had

jurisdiction under C.R.M. 6(c)(2) to rule on a motion to dismiss,

which could be done only with the consent of the parties. The

division holds that because the parties did not have proper notice

under C.R.M. 5(g), they did not consent to the magistrate ruling on

the motion based on their lack of objection. And without the

parties’ consent, the magistrate lacked jurisdiction to rule on the

motion under C.R.M. 6(c)(2). COLORADO COURT OF APPEALS

Court of Appeals No. 18CA2143 Chaffee County District Court No. 18CV30032 Honorable Amanda Hunter, Magistrate

Paul Andrews and Terry Andrews,

Plaintiffs-Appellees,

v.

Mark Miller and Interior Living Designs LLC, a Colorado limited liability company,

Defendants-Appellants.

ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS

Division III Opinion by JUDGE WEBB Dunn and Lipinsky, JJ., concur

Announced December 19, 2019

Marquez & Herrick-Stare, LLC, Randall Herrick-Stare, Salida, Colorado, for Plaintiffs-Appellees

Cordova Law Firm, LLP, Zachary D. Cordova, Salida, Colorado, for Defendants- Appellants ¶1 This interlocutory appeal arises from a district court

magistrate’s denial of a motion to dismiss and compel arbitration

(the Motion) filed by defendants, Mark Miller and Interior Living

Designs LLC (ILD). It requires us to determine whether the

magistrate had jurisdiction under C.R.M. 6(c)(2) to rule on the

Motion, which could be done only with the consent of the parties.

The magistrate purported to act with consent based on the lack of

any objection to the following statement in a stock order addressing

delay reduction (the Delay Reduction Order):

All parties are hereby notified that a magistrate may perform any function in this case, with the exception of presiding over a jury trial. C.R.M. 3(f)(1)(A)(ii).

¶2 We conclude that because this notice did not inform the

parties that they were required to consent to any particular function

being performed by the magistrate, discussed only what the

magistrate “may” do, and did not mention “consent,” it was

insufficient under C.R.M. 5(g). We also conclude that because the

magistrate did not have the parties’ consent, and motions to

dismiss are not listed in C.R.M. 6(c)(1), she lacked jurisdiction to

rule on the Motion under C.R.M. 6(c)(2). For these reasons, we

1 reverse the magistrate’s denial of the Motion and remand for further

proceedings.

I. Background

¶3 Plaintiffs, Paul and Terry Andrews, entered into a written

contract with ILD for floor covering materials, which, according to

their complaint, were never fully delivered. The Andrews pleaded

claims for civil theft, for breach of contract, and to pierce the

corporate veil, making Miller, ILD’s president, liable for any

judgment obtained against ILD.

¶4 After the magistrate entered the Delay Reduction Order, 1

defendants filed the Motion based on an arbitration provision in the

contract. 2 After full briefing on the Motion but without holding a

hearing, the magistrate denied it, finding that the arbitration

provision was “void as against public policy” and “unenforceable.”

The magistrate’s order said that it was “issued with the consent of

——————————————————————— 1 We express no opinion on the authority of a magistrate to issue such an order, as the result would be the same whether the magistrate lacked this authority or the order did not establish jurisdiction based on consent by silence. 2 The Motion also argued insufficiency of service of process, which

defendants do not raise on appeal.

2 the parties.” Following entry of the Delay Reduction Order, this

ruling was the magistrate’s only action in the case.

¶5 Defendants moved for district court review under C.R.M. 7(a).

Citing to the Delay Reduction Order, the magistrate denied the

motion. She explained, “The court presides over this case with the

consent of the parties” and “any appeal must be taken pursuant to

C.R.M. 7(b)” in the court of appeals. 3 Defendants then filed their

notice of appeal.

II. Law and Standard of Review

¶6 A district court magistrate has only those powers provided by

statute or court rule. See § 13-5-201(3), C.R.S. 2019 (“District

court magistrates may hear such matters as are determined by rule

of the supreme court . . . .”); see also In re R.G.B.,

(Colo. App. 2004) (a magistrate is a hearing officer who acts with

limited authority). The Colorado Rules for Magistrates set forth the

authority of magistrates to perform particular functions in different

types of cases. Heotis v. Colo. Dep’t of Educ.,

, ¶ 10.

——————————————————————— 3 As with the magistrate’s entry of the Delay Reduction Order, and for the same reason discussed in note 1 above, we express no opinion on the propriety of the magistrate ruling on the motion for district court review.

3 C.R.M. 6 distinguishes between functions in cases that a magistrate

can perform only with the consent of the parties and functions that

a magistrate can perform without the parties’ consent.

¶7 This appeal turns on interpretation of the magistrate rules,

which we review de novo. In re Parental Responsibilities of M.B.-M.,

(Colo. App. 2011). We interpret all court rules,

consistent with principles of statutory construction, looking first to

the plain and ordinary meaning of the words used. Hiner v.

Johnson,

. If the language is unambiguous —

and we discern no ambiguity in the relevant rules — it must be

applied as written. See FirstBank-Longmont v. Bd. of Equalization,

(Colo. App. 1999).

¶8 Where, as here, the facts that inform jurisdiction are

undisputed, we also address jurisdiction de novo. See Jones v.

Williams,

. And when called on to interpret or

construe a trial court’s order, we do so de novo. Delsas v. Centex

Home Equity Co.,

(Colo. App. 2008).

4 III. The Magistrate Lacked Jurisdiction to Decide the Motion Under C.R.M. 6(c)(2) (“Consent Necessary”)

A. C.R.M. 7(a) is Not Applicable

¶9 Initially, defendants argue that the magistrate erred in denying

their request for district court review under C.R.M. 7(a) because

they did not consent to the case being referred to a magistrate.

Although we address consent in detail below, C.R.M. 7(a) does not

play any role in this case.

¶ 10 C.R.M. 7(a) “sets out the procedure for review of magistrate’s

orders and judgments that have been ‘entered without consent’ of

the parties” because consent was not necessary. People ex rel.

Garner v. Garner,

(Colo. App. 2001).

Importantly, whether consent is necessary “depends not upon

whether the parties actually consented, but upon whether consent

is required by rules or statutes to invest a magistrate with authority

to act.” Bryan v. Neet,

(Colo. App. 2003). So, we

turn to C.R.M. 6(c)(1)(A)-(G) (“No Consent Necessary”).

¶ 11 This rule lists specific functions in civil cases that do not

require consent before a magistrate may perform them, such as

ruling on discovery matters. Ruling on a motion to dismiss is not

5 among the functions listed. See People in Interest of R.J.,

(“[W]e should presume that the inclusion of certain terms

in a rule or statute implies the exclusion of others.”); see also

Heotis, ¶ 18 (“After examining the various categories of cases in

C.R.M. 6(c)(1)(A)-(G), we see that a proceeding in which a magistrate

could rule on a petition to seal criminal records is not expressly

mentioned in any of them.”).

¶ 12 Simply put, because ruling on the Motion was a function that

could be performed only with consent, C.R.M. 7(a) is inapplicable.

Still, defendants’ argument that they did not consent to the

magistrate performing any functions in this case raises a

jurisdictional issue concerning the magistrate’s authority to rule on

the Motion under C.R.M. 6(c)(2). So, we asked the parties for

supplemental briefing on this issue. See People v. S.X.G.,

(“Because we must always satisfy ourselves that we have

jurisdiction to hear an appeal, we may raise jurisdictional defects

sua sponte, regardless of whether the parties have raised the

issue.”).

¶ 13 Unsurprisingly, the Andrews responded that defendants are

deemed to have consented to the magistrate deciding the Motion

6 because they did not object to the Delay Reduction Order.

Defendants concede their lack of objection, but argue that the Delay

Reduction Order did not provide sufficient notice under the

magistrate rules. We agree with defendants.

B. The Notice to the Parties Regarding Functions the Magistrate “May” Perform Was Insufficient Under C.R.M. 5(g)

¶ 14 Under C.R.M. 6(f), a “magistrate shall not perform any

function for which consent is required . . . unless the oral or written

notice complied with [C.R.M.] 5(g).” Under C.R.M. 5(g),

[f]or any proceeding in which a district court magistrate may perform a function only with consent under C.R.M. 6, the notice — which must be written . . . — shall state that all parties must consent to the function being performed by the magistrate.

(Emphasis added.)

¶ 15 Of course, absent a clear indication of contrary legislative

intent, the word “shall” in a statute indicates that the General

Assembly intended the listed action to be mandatory. Colo. Real

Estate Comm’n v. Vizzi,

. And the requirement in

C.R.M. 5(g) that the notice must inform the parties about the need

to consent to a magistrate performing a particular function or

functions also makes sense. Without the parties’ consent, in a civil

7 case a magistrate lacks jurisdiction to perform functions other than

those listed in C.R.M. 6(c)(1)(A)-(G). See Heotis, ¶ 18 (“[T]he

magistrate could only preside over the proceedings in this case if

the parties had consented . . . .”); see also Feldewerth v. Joint Sch.

Dist. 28-J,

(Colo. App. 1999) (“[I]f the statute makes

the type of notice described a jurisdictional prerequisite, a court

must enforce the legislative intent.”).

¶ 16 The Delay Reduction Order — which told the parties that “a

magistrate may perform any function in this case” — fell short of

the notice requirement mandated by C.R.M. 5(g) in two ways.

¶ 17 First, the Delay Reduction Order said nothing about the need

to consent. In fact, the only mention of consent in it is found in

language at the end that says “[c]onsent is not necessary for this

order pursuant to C.R.M. 6(c)(1)(E).” This statement is correct only

in part. For example, under C.R.M. 6(c)(1)(E), no consent is needed

for “disclosure, discovery, and all C.R.C.P. 16 and 16.1 matters.”

But because the statement said nothing about consent being

necessary for the magistrate to perform other functions, much less

what those functions were, it was potentially misleading.

8 ¶ 18 Second, because the Delay Reduction Order did not identify

any particular functions or function, it did not meet the

requirement in C.R.M. 5(g) that “all parties must consent to the

function” that the magistrate may be performing. (Emphasis

added.) See Brooks v. Zabka,

,

(1969) (“It is a rule of law well established that the definite

article ‘the’ particularizes the subject which it precedes. It is a word

of limitation as opposed to the indefinite or generalizing force of ‘a’

or ‘an.’”).

¶ 19 True, telling the parties that a magistrate “may perform any

function” could be read as saying a magistrate has the district

court’s permission to perform all functions in their case, except for

presiding over a jury trial. Gandy v. Colo. Dep’t of Corr.,

(“[T]he word ‘may’ sometimes expresses permission or

lack of permission . . . .”); see Stamp v. Vail Corp.,

(Colo. 2007) (“When used as an adjective in a statute, the word

‘any’ means ‘all.’”). And this reading would be consistent with

C.R.M. 1, which explains that “magistrates may perform functions

which judges also perform . . . .”

9 ¶ 20 But this phrase could also be read as merely forewarning the

parties about the possibility of a magistrate performing a function

to be described in a future notice. See People v. Dist. Court,

(Colo. 1998) (“The use of the word ‘may’ was intended

only to hold open the possibility of a bench trial if the defendant

was able to prove that his or her due process rights would be

violated by a jury trial.”); Gandy, ¶ 32 (“[T]he word ‘may’ sometimes

. . . indicates possibility or probability. When indicating possibility,

it is sometimes used where “might” could also be used.”); see also

Black’s Law Dictionary 1172 (11th ed. 2019) (defining “may” first

and second as “[t]o be permitted to” and “[t]o be a possibility,”

respectively). Under this reading, a party would not have known —

until the order was issued — that a magistrate was presiding over

the Motion.

¶ 21 According to the Andrews, interpreting “may perform” as

denoting a mere future possibility would render the language in the

Delay Reduction Order purposeless because the court would have

to issue a second order requesting consent. Be that as it may, in

our view, a reasonable litigant could read it as forewarning of a

potential development in the case. And because a reasonable

10 litigant might read the Delay Reduction Order either way, it is

ambiguous. Cf. Carrera v. People,

(“A statute is

ambiguous if it is susceptible to multiple reasonable

interpretations.”). Given that failure to object can constitute

consent, we resolve this ambiguity against the Andrews’

interpretation. Cf. In re S.O.,

(Colo. 1990) (“[W]e

note that the consent/waiver form was . . . clear and unambiguous

on its face.”).

¶ 22 Still, the Andrews assert that defendants should be deemed to

have consented under C.R.M. 3(f)(1)(A)(ii) — which was cited in the

Delay Reduction Order — because they were notified of the case

being referred to a magistrate and they did not object within

fourteen days. To be sure, this rule says that a party is deemed to

have consented “to a proceeding before a magistrate” if, as relevant

here, the party was provided with “notice of the referral, setting, or

hearing of a proceeding before a magistrate” and then the party

“failed to file a written objection within 14 days of such notice.”

¶ 23 But contrary to the Andrews’ argument, nothing in the Delay

Reduction Order told the parties that their case was being referred

to, set with, or heard by a magistrate. See Heotis, ¶ 19 (“The

11 magistrate sent them notice that she would preside over the case

unless the parties filed a written objection within fourteen days.”).

The order said only that a magistrate “may perform any function.”

(Emphasis added.)

¶ 24 More importantly, C.R.M. 3(f)(1)(A)(ii) — part of the definitions

rule — defines consent; it does not define notice. Nor, for that

matter, does any other section of C.R.M. 3. So, we must look to

other magistrate rules to determine what notice is required. See

Marks v. Koch,

(Colo. App. 2011) (We “read

applicable provisions as a whole, harmonizing them if possible.”

(quoting Danielson v. Dennis,

(Colo. 2006))). And

for the reasons explained above, the parties never received proper

notice under C.R.M. 5(g).

¶ 25 Given all of this, how can a district court give a magistrate

jurisdiction to perform functions that require consent, in a way that

allows consent to be based on the parties’ failure to object? We

conclude that the better practice is to provide them with specific

notice that either

• their entire case, unless a jury trial is requested, is being

referred to, is being set with, or will be heard by a magistrate

12 — not “may” — and any party who fails to file a written

objection within fourteen days shall be deemed to have

consented; or

• a magistrate will — again, not “may” — be performing a

specifically described function or functions in their case that

require consent, and any party who fails to file a written

objection within seven days 4 of the date of the written notice

shall be deemed to have consented.

¶ 26 Providing either form of notice would not put an onerous

burden on the district courts, given the significance of consent.

After all, a litigant who consents to proceeding before a magistrate

forgoes review by a district court judge. But magistrates are not

appointed or retained under any constitutional framework, as are

district court judges. See Colo. Const. art. VI, §§ 24, 25; see also

Haverly Invincible Mining Co. v. Howcutt,

(1883)

(“Our constitution vests the judicial power of the state, except as

therein otherwise provided, in certain courts; the constitution and

——————————————————————— 4 The magistrate rules do not explain why a shorter deadline of

seven days appears in C.R.M. 5(g)(2), versus fourteen days in C.R.M. 3(f)(1)(A)(ii).

13 statute designate the qualification of the judges who shall hold such

courts; also the method of electing or appointing them; how they

may be impeached or removed, and how and by whom vacancies in

judicial positions shall be filled.”). Instead, magistrates are “subject

to the direction and supervision of the chief judge or presiding

judge.” C.R.M. 1.

¶ 27 In sum, because the Delay Reduction Order failed to provide

proper notice under C.R.M. 5(g), defendants cannot be deemed to

have consented to the magistrate ruling on the Motion based on

their lack of objection. 5 Therefore, the magistrate’s denial of the

Motion is reversed and the case is remanded for further proceedings

on the Motion, either before a district court judge or before a

magistrate with the consent of the parties after adequate notice.

JUDGE DUNN and JUDGE LIPINSKY concur.

——————————————————————— 5Given the deficiencies in the Delay Reduction Order and the absence of any other indication in the record that the Motion would be decided by the magistrate, we are not concerned about sandbagging — where a party knows that a magistrate will be performing a function, but disputes the magistrate’s authority to do so only after an unsatisfactory ruling has been made.

14