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
2019COA185
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 2019COA185
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
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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., 98 P.3d 958, 960
(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.,
2016 COA 6, ¶ 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.,
252 P.3d 506, 509 (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,
2012 COA 164, ¶ 13. 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,
990 P.2d 1109, 1112 (Colo. App. 1999).
¶8 Where, as here, the facts that inform jurisdiction are
undisputed, we also address jurisdiction de novo. See Jones v.
Williams,
2019 CO 61, ¶ 7. And when called on to interpret or
construe a trial court’s order, we do so de novo. Delsas v. Centex
Home Equity Co.,
186 P.3d 141, 145 (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, 33 P.3d 1239, 1242 (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,
85 P.3d 556, 557 (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., 2019 COA
109, ¶ 8 (“[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.,
2012 CO
5, ¶ 9 (“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, 2019 COA 33, ¶ 27. 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, 3 P.3d 467, 472 (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, 168 Colo. 265, 269,
450 P.2d 653,
655 (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.,
2012 COA
100, ¶ 32 (“[T]he word ‘may’ sometimes expresses permission or
lack of permission . . . .”); see Stamp v. Vail Corp.,
172 P.3d 437,
447 (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, 953
P.2d 184, 190 (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, 2019 CO 83, ¶ 18 (“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.,
795 P.2d 254, 258 (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, 284 P.3d 118, 122 (Colo. App. 2011) (We “read
applicable provisions as a whole, harmonizing them if possible.”
(quoting Danielson v. Dennis,
139 P.3d 688, 691 (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, 6 Colo. 574, 575 (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
