Paul Andrews and Terry Andrews, Plaintiffs-Appellees, v. Mark Miller and Interior Living Designs LLC, a Colorado limited liability company, Defendants-Appellants.
No. 18CA2143
Colorado Court of Appeals
December 19, 2019
2019COA185
Opinion by JUDGE WEBB; Dunn and Lipinsky, JJ., concur
Chaffee County District Court No. 18CV30032; Honorable Amanda Hunter, Magistrate
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
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS
Division III
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
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
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 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
II. Law and Standard of Review
¶ 6 A district court magistrate has only those powers provided by statute or court rule. See
¶ 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).
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
¶ 10
¶ 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 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
¶ 12 Simply put, because ruling on the Motion was a function that could be performed only with consent,
¶ 13 Unsurprisingly, the Andrews responded that defendants are deemed to have consented to the magistrate deciding the Motion 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
B. The Notice to the Parties Regarding Functions the Magistrate “May” Perform Was Insufficient Under C.R.M. 5(g)
¶ 14 Under
[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
¶ 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 ¶ 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 ¶ 18 Second, because the Delay Reduction Order did not identify any particular functions or function, it did not meet the requirement in ¶ 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 ¶ 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 ¶ 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 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 ¶ 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 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, ¶ 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 ¶ 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 ¶ 27 In sum, because the Delay Reduction Order failed to provide proper notice under JUDGE DUNN and JUDGE LIPINSKY concur.