     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




                      ———————————————————————
 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
