Montgomery v. Best Buy

25CA0327 Montgomery v Best Buy 02-19-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0327
Jefferson County District Court No. 23CV226
Honorable Christopher C. Zenisek, Judge

William Montgomery,

Plaintiff-Appellant,

v.

Best Buy, L.P.,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE YUN
Grove and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 19, 2026

William Montgomery, Pro Se

Montgomery Amutzio, Lori K. Bell, Sarah K. Vogel, Denver, Colorado, for
Defendant-Appellee
¶1 Plaintiff, William Montgomery, appeals the district court’s

order granting the motion for summary judgment (MSJ) filed by

defendant, Best Buy, L.P., and denying the cross-MSJ filed by

Montgomery. He contends that the court (1) relied on inadmissible

evidence; (2) improperly considered evidence appended to Best

Buy’s reply brief; and (3) failed to properly apply the summary

judgment standard. We reject these contentions and affirm the

judgment.

I. Background

¶2 Montgomery has a long history of filing lawsuits against large

retail chains, their employees, and police officers contacted by the

employees.1 Each lawsuit is based on similar facts. Montgomery

1 See Montgomery v. Holweger, 529 F. Supp. 3d 1212 (D. Colo.

2021) (federal district court opinion granting MSJ in favor of
defendant on Montgomery’s claims); Montgomery v. Calvano,
No. 21-1134, 2022 WL 1132212 (10th Cir. Apr. 18, 2022) (federal
appellate unpublished opinion affirming grant of MSJ in favor of
defendant); Montgomery v. Walmart Stores, Inc., (Colo. App.
No. 21CA0359, May 12, 2022) (not published pursuant to
C.A.R. 35(e)) (state appellate opinion affirming grant of MSJ in favor
of defendants in plaintiff’s district court case); Montgomery v.
Anderson, No. 21-cv-03191, 2022 WL 3584895 (D. Colo. Aug. 22,
2022) (federal district court unpublished order granting MSJ in
favor of defendant); Montgomery v. Walmart, Inc., (Colo. App.
No. 22CA0625, June 1, 2023) (not published pursuant to

1
walks into a store and behaves in a way that makes employees

suspect theft — such as leaving the store with items in hand but no

bag or receipt, choosing exits that are out of sight from the register

he used, or entering one store with an item purchased from another

location. When employees approach him to investigate, he records

the interaction with a device that he brings with him. And while the

employees investigate, he remains uncooperative — refusing to

show a receipt until police arrive, keeping his hands in his pockets

throughout the interaction, or ignoring the employees’ inquiries or

requests.

C.A.R. 35(e)) (state appellate opinion affirming grant of MSJ in favor
of defendant in plaintiff’s six district court cases); Montgomery v.
Cohn, No. 22-cv-00011, 2023 WL 2366732 (D. Colo. Mar. 3, 2023)
(federal district court unpublished order granting MSJ in favor of
defendant); Montgomery v. Cruz, No. 20-cv-03189, 2023 WL
1437878 (D. Colo. Feb. 1, 2023) (federal district court unpublished
report and recommendation granting MSJ in favor of defendant),
adopted in part and rejected in part, 2023 WL 5938913 (D. Colo.
Sep. 11, 2023), aff’d, 162 F.4th 1285 (10th Cir. 2026);
Montgomery v. Lore, No. 21-cv-02553, 2023 WL 2423325 (D. Colo.
Mar. 9, 2023) (federal district court unpublished order granting
MSJ in favor of defendant); Montgomery v. Walmart Inc., (Colo. App.
No. 23CA0159, Oct. 26, 2023) (not published pursuant to
C.A.R. 35(e)) (state appellate opinion affirming grant of MSJ in favor
of defendant on plaintiff’s claims in two district court cases).

2
¶3 The facts of these encounters vary slightly, but the pattern

remains the same. After these incidents, Montgomery files lawsuits

that raise a combination of claims, including assault, false

imprisonment, defamation, battery, negligence, malicious

prosecution, and, if police were involved, claims under 42 U.S.C.

§ 1983 for Fourth Amendment violations.

A. Montgomery’s Complaint

¶4 The present case follows this pattern. In his complaint,

Montgomery brought claims of assault, false imprisonment, and

defamation per se against Best Buy for the actions of its employees.

He alleged that he was standing outside a Best Buy store at

2:19 p.m. when three employees approached him, accused him of

theft, and threatened and detained him for twelve minutes. Best

Buy denied these claims and invoked the shopkeeper’s privilege.

See § 18-4-407, C.R.S. 2025.2

2 The shopkeeper’s privilege offers “protection from . . . claims
based on [slander and false imprisonment] to one who[,] acting in
good faith and upon probable cause based upon reasonable
grounds[,] questions [a suspected shoplifter].” J.S. Dillon & Sons
Stores Co. v. Carrington, 455 P.2d 201, 203 (Colo. 1969).

3
B. MSJ Filings

¶5 Both parties filed motions for summary judgment. For clarity,

the chart below shows the timelines for the parties’ motions and

related filings.

1. Best Buy’s MSJ and Related Responsive Filings

¶6 Best Buy argued in its MSJ that (1) Montgomery failed to

establish a prima facie case for his claims of false imprisonment,

4
defamation per se, and assault;3 and (2) even if he could establish a

prima facie case for the former two, the employees’ actions were

protected by the shopkeeper’s privilege.

¶7 Best Buy’s “statement of facts” asserted that Montgomery left

the store with merchandise and refused to produce his receipt when

asked by employees who suspected theft. Best Buy attached

exhibits, including Montgomery’s pen camera footage of the incident

outside the store and a YouTube video posted by Montgomery. In

his YouTube video, Montgomery explains how he gets “free

lawsuits” by running a “sting operation” against merchants and

then withholding information, like whether he “[had] a receipt” or

“was a customer,” in the lawsuits he files.

¶8 In his response, Montgomery disagreed with Best Buy’s

“statement of facts,” specifically “DEN[YING] that he ‘exited’ the

store, or that he did so with any of the store’s ‘merchandise’ in his

possession.” Instead, he filed an affidavit, stating as follows:

3 Because Montgomery did not develop any argument addressing

the court’s grant of summary judgment on his assault claim in his
opening brief, we do not discuss the claim further. See In re Estate
of Chavez, 2022 COA 89M, ¶ 26 (“We don’t consider undeveloped
and unsupported arguments.” (quoting Woodbridge Condo. Ass’n v.
Lo Viento Blanco, LLC, 2020 COA 34, ¶ 41 n.12)).

5
• “On or about November 25[,] 2022, at approximately

2:19 p.m. I was standing outside a Best Buy store . . .

waiting for my brother.”

• “I had been standing . . . for about five minutes before I

was approached by several Best Buy employees.”

• “Prior to being approached by [the Best Buy employees],

at no time whatsoever had I ever once met, seen, identify

[sic], pass by [sic], or been located anywhere physically

near [the employees] on that day . . . this was the very

first time that I had ever become aware as to the very

existence of said Best Buy employees, whatsoever, in the

first place.”

• “At no point in time, on [that day] had I ever once

‘concealed’ anything in front of (let alone not in front of)

anybody, ever, period.”

• “At no point in time, on that day . . . had I ever once

placed into, or removed, anything from any pant pocket

in front of anybody, ever, period. Whatever was located

in my pant pockets remained there before, throughout,

and after my interaction with the Best Buy employees.”

6
He also included the results of his police records request for calls

originating from the Best Buy store on the day of the incident,

which showed that there were “2 calls for service” in the morning.

¶9 Best Buy filed its reply, reiterating that Montgomery failed to

establish a prima facie case for each claim and, alternatively, that

the shopkeeper’s privilege barred his claims of defamation and false

imprisonment. Best Buy added two new exhibits to those it had

already submitted. The first consisted of Montgomery’s Best Buy

receipts from the day of the incident, including one from the store

where he was questioned with his name on it and a timestamp of

2:20 p.m. The second was an affidavit from the general manager of

the store in question, stating as follows:

• He observed Montgomery “remove two boxes of JLab

headphones/earbuds from the shelf, place them in his

pocket and immediately leave the Best Buy Store.”

• He observed “the same activity on security video.”

• Montgomery declined to show his receipt when “asked by

a loss prevention employee.”

• He “exited the store to request Mr. Montgomery return

the product from his pocket.”

7
• He “walked back inside the store” once he “received

confirmation that the police had been contacted.”

2. Montgomery’s Cross-MSJ and Related Responsive Filings

¶ 10 Montgomery filed his cross-MSJ, arguing that (1) he

established his claims, and (2) the shopkeeper’s privilege did not

apply since the employees lacked probable cause. He again

attached the pen camera footage and the results of his police

records request, and he referenced his previously filed affidavit. He

reiterated that he was waiting outside the store at 2:19 p.m. when

the employees “took [him] by surprise.”

¶ 11 Best Buy filed its response, which reiterated the arguments

from its own MSJ — specifically, that Montgomery could not

establish a prima facie case for any claim and that the shopkeeper’s

privilege applied. In support, Best Buy attached to its response the

same exhibits that were attached to its reply, including the receipts

and the manager’s affidavit.

¶ 12 Montgomery filed a reply and an amended reply. His

arguments closely followed his previous filings and referred to the

same exhibits, with two exceptions. First, he submitted a second

affidavit stating that he had authorized others to use his credit card

8
and opted to receive receipts by email from Best Buy. Second, he

challenged the admissibility of the receipt from the store where he

was questioned and the manager’s affidavit, arguing that both were

hearsay and that the manager’s affidavit was contradicted by the

record.

3. Summary Judgment Order

¶ 13 The district court granted Best Buy’s MSJ on Montgomery’s

claims of false imprisonment, defamation per se, and assault, and

denied Montgomery’s cross-MSJ on the same claims. The court

ruled that each of Montgomery’s claims failed as a matter of law

and, alternatively, that the shopkeeper’s privilege protected Best

Buy from his claims of defamation and false imprisonment.

¶ 14 As to his false imprisonment claim, the court noted that

Montgomery’s claim fails if he refused to use “a means of escape of

which he is himself aware merely because it entails a slight

inconvenience.” Restatement (Second) of Torts § 36 cmt a (A.L.I.

1965). The court explained that Best Buy offered evidence that

Montgomery “had a receipt from Best Buy from the date and time of

the incident with his name on it, providing proof of purchase,” and

that Montgomery “does not deny having a receipt at the time of the

9
incident.” Accordingly, the court concluded that “showing proof of

purchase,” although a slight inconvenience, “would have freed

Montgomery from the false imprisonment.”

¶ 15 As for his defamation per se claim, the court noted that

Montgomery must prove that the Best Buy employees were at least

negligent in accusing him of stealing merchandise from the store.

Restatement (Second) of Torts § 580B (A.L.I. 1977). The court noted

that the manager “saw [Montgomery] remove merchandise from the

shelf and place it in his pocket,” Montgomery provided no contrary

evidence about his actions inside the store, and his YouTube video

corroborated “how [he] goes to stores and acts in a manner that

could reasonably be construed as suspicious.” Based on this

evidence, the court ruled that this claim failed because the

employees were not negligent in accusing Montgomery of stealing

store merchandise.

¶ 16 As to the shopkeeper’s privilege, the court noted that it shields

Best Buy and its employees from liability if they, acting in good

faith and with probable cause, detained Montgomery to question

him about theft in a reasonable manner. See § 18-4-407. The

court concluded that the timestamped receipt proved Montgomery

10
was inside the store with merchandise before the incident. The

court then stated that the manager’s affidavit supported probable

cause — Montgomery removed “two boxes of JLab

headphones/earbuds from the shelf, place[d] them in his pocket

and immediately [left] the Best Buy Store, which was then

confirmed on the store security video,” and Montgomery “refused to

show his receipt upon being asked.” The court noted that neither of

Montgomery’s affidavits contradicted the manager’s affidavit since

Montgomery “claim[ed] only that he had been waiting outside of the

Best Buy for five minutes when he was approached.” Thus, the

court ruled that the shopkeeper’s privilege would protect the

employees’ actions, “even if Plaintiff were able to make a prima facie

case of false imprisonment and defamation.”

4. Motion for Reconsideration

¶ 17 Montgomery then filed a motion for reconsideration, arguing

that he was denied fair notice and an opportunity to respond to the

two exhibits — the manager’s affidavit and the receipts — that Best

Buy submitted with (1) its reply in support of its MSJ and (2) its

response to Montgomery’s cross-MSJ. The court denied the motion,

noting that it had considered all the briefs and exhibits related to

11
both Best Buy’s MSJ and Montgomery’s cross-MSJ together. It

explained that Montgomery was given an opportunity to respond to

the two exhibits because he filed his reply in support of his

cross-MSJ after the two exhibits were filed and did, in fact, file his

second affidavit along with his reply in support of his cross-MSJ.

¶ 18 Montgomery now appeals.

II. Inadmissible Evidence

¶ 19 Montgomery contends that the district court relied on

inadmissible hearsay evidence in granting Best Buy’s MSJ and

denying his cross-MSJ — namely, his receipt from the store where

he was questioned and the manager’s affidavit.4 We disagree.

A. Applicable Law and Standard of Review

¶ 20 In deciding whether to grant or deny a party’s MSJ, the district

court must consider the pleadings, depositions, answers to

interrogatories, and admissions on file, together with any affidavits.

C.R.C.P. 56(c). However, a court should not consider evidence that

would be inadmissible at trial. St. Croix v. Univ. of Colo. Health Scis.

4 Montgomery also argues the court impermissibly relied on

conclusory statements from Best Buy’s MSJ to support its order.
We disagree because the court cites specific exhibits supporting its
conclusions.

12
Ctr., 166 P.3d 230, 244 (Colo. App. 2007). While the form of the

evidence, such as an affidavit, does not need to be admissible at

trial, the “content or substance of the evidence must be admissible.”

People in Interest of S.N. v. S.N., 2014 CO 64, ¶ 16 (quoting Johnson

v. Weld County, 594 F.3d 1202, 1210 (10th Cir. 2010)).

¶ 21 The hearsay rule generally prohibits the admission of any

“statement other than one made by the declarant while testifying at

the trial or hearing” that is offered “to prove the truth of the matter

asserted.” CRE 801(c), 802. If an out-of-court statement is not

offered for its truth, then it is admissible as nonhearsay evidence as

long as it is relevant. People v. Phillips, 2012 COA 176, ¶ 62. For

example, a statement is not hearsay when the statement is offered

to show its effect on the listener or to explain the listener’s later

actions. Id. at ¶ 107.

¶ 22 If a statement is hearsay, it is inadmissible unless it falls

within a statutory exception or an enumerated exception in CRE

803 or 804. See CRE 802. Under CRE 803(6), a court can admit

into evidence records of regularly conducted activity when

supported by an adequate foundational showing that (1) the

document was made at or near the time of the matters recorded in

13
it; (2) the document was prepared by, or from information

transmitted by, a person with knowledge of the matters recorded;

(3) the person who recorded the document did so as part of a

regularly conducted business activity; (4) it was the regular practice

of that business activity to make such documents; and (5) the

document was retained and kept in the course of a regularly

conducted business activity. People v. Flores-Lozano, 2016 COA

149, ¶ 13.

¶ 23 Furthermore, “[e]ven if a party introduces a computer-

generated record to prove the truth of its contents, that record may

not constitute hearsay if the computer created the record

automatically without human input or interpretation.” People v.

N.T.B., 2019 COA 150, ¶ 22. The computer generated record is not

hearsay because no “person” or “declarant” made a communicative

“statement” within the meaning of CRE 801. People v. Hamilton,

2019 COA 101, ¶ 24.

¶ 24 We review evidentiary rulings for an abuse of discretion.

Leaf v. Beihoffer, 2014 COA 117, ¶ 9. A court abuses its discretion

when its ruling is manifestly arbitrary, unreasonable, or unfair or

when it misapplies the law. Id. However, “[e]ven when a [district]

14
court may have abused its discretion in admitting certain evidence,

reversal is not required if the error was harmless under the

circumstances.” People v. Summitt, 132 P.3d 320, 327 (Colo. 2006);

see also C.A.R. 35(c) (“The appellate court may disregard any error

or defect not affecting the substantial rights of the parties.”).

B. Best Buy’s Receipt

¶ 25 Montgomery argues that the court could not consider the

receipt when evaluating false imprisonment or the shopkeeper’s

privilege because it was hearsay. He further contends that the

business records exception to hearsay, CRE 803(6), cannot apply

without an affidavit from a records custodian.

¶ 26 In evaluating false imprisonment, the court relied on the

receipt to conclude “that showing proof of purchase would have

freed Plaintiff.” The existence of the receipt was therefore not

offered for the truth of the matter asserted — that is, the price and

details of the purchase. Instead, it was offered to show the effect it

would have had on the listener — specifically, that the employees

would have permitted Montgomery to leave the premises if

presented with his receipt. See, e.g., People v. Tenorio, 590 P.2d

952, 958 (Colo. 1979) (A radio report was “elicited only to establish

15
the officers’ reasons for initially going to the park and for drawing

their guns after arrival there,” not “to show the truth of the contents

of the radio report.”); People v. Robinson, 226 P.3d 1145, 1152

(Colo. App. 2009) (“[T]he informant’s statements — referencing the

drug transaction arrangements, purportedly describing the two

suppliers and giving their street names, and identifying them upon

arriving at the scene — were all introduced for the nonhearsay

purpose of showing” why the officers “chose to go to that particular

location and stop, arrest, and search defendant and the car in

which he was traveling.”); Phillips, ¶ 108 (The witness’s statement to

the defendant’s girlfriend “was admissible for the nonhearsay

purpose of showing its effect on [the girlfriend] as a listener, in that

she called defendant to notify him of the message . . . and sought

his advice.”). Thus, for the false imprisonment claim, we hold the

receipt was admissible for the nonhearsay purpose of showing the

effect on the listener.

¶ 27 However, in evaluating the shopkeeper’s privilege, the court

relied on the receipt’s contents as true to conclude that

“[Montgomery] was in Best Buy directly preceding the incident [at

2:20 p.m.] and . . . had the store’s merchandise on him.” As used

16
for this purpose, the receipt was offered for its truth, which

generally is “not admissible except as provided by [the Colorado

Rules of Evidence].” CRE 802. And the record does not contain an

affidavit from a records custodian establishing the five-part

foundational showing required for the business records exception.

See CRE 803(6); Flores-Lozano, ¶ 13.

¶ 28 But even if the court abused its discretion by considering the

receipt as evidence that Montgomery had been in the store and had

merchandise on him, any such error was harmless for two reasons.

Summitt, 132 P.3d at 327. First, the receipt was cumulative of

other evidence establishing that Montgomery had been in the store

and left with merchandise. Curry v. Brewer, 2025 COA 28, ¶ 57.

The manager’s affidavit established the same facts. Second, Best

Buy offered the receipt to support its shopkeeper’s privilege defense.

Because the court ruled that the defamation per se and false

imprisonment claims independently failed on their merits, this

affirmative defense was unnecessary to resolve those claims.

¶ 29 Finally, we may affirm the district court’s summary judgment

on any grounds supported by the record. Roque v. Allstate Ins. Co.,

2012 COA 10, ¶ 7. Montgomery has failed to show that the receipt

17
was not generated automatically by a computer without human

input or interpretation. If the receipt was computer generated, it

would not constitute hearsay and it would be admissible for its

truth to establish the shopkeeper’s privilege defense and to disprove

the false imprisonment claim. See N.T.B., ¶ 22.

¶ 30 For all these reasons, the district court did not err by relying

on the receipt to resolve the false imprisonment claim and the

shopkeeper’s privilege defense.

C. Best Buy’s Affidavit

¶ 31 Montgomery argues that the district court could not consider

the manager’s affidavit when evaluating defamation per se or the

shopkeeper’s privilege because it was hearsay. Specifically, he

objects to one paragraph in the affidavit stating that Montgomery

declined to show his receipt when “asked by a loss prevention

employee.” Insofar as Montgomery contends “the entirety of [the

manager’s affidavit] is already categorically inadmissible hearsay”

because of this one paragraph, we disagree. Montgomery provides

no authority suggesting that one paragraph renders the entire

affidavit inadmissible.

18
¶ 32 Moreover, even if the court abused its discretion by

mentioning this paragraph in its finding of probable cause for the

shopkeeper’s privilege, the error was harmless because it did not

“substantially influence[]” the outcome. Stockdale v. Ellsworth,

2017 CO 109, ¶ 32 (An error is harmless unless “it can be said with

fair assurance that the error substantially influenced the outcome

of the case or impaired the basic fairness of the trial itself.” (citation

omitted)). If we were to exclude this paragraph, the court’s finding

of probable cause is supported by other paragraphs in the affidavit,

including the manager’s observations of apparent theft in person

and on security footage, and by the pen camera footage — in which

Best Buy employees can be heard repeatedly asking for the

merchandise back.

III. Late Evidence

¶ 33 Montgomery contends that the district court should not have

considered the manager’s affidavit or “the entire receipts exhibit”

because they were “belatedly” submitted with Best Buy’s reply in

support of its MSJ. He argues that both exhibits were late because

including them with Best Buy’s reply deprived him of fair notice and

a meaningful opportunity to respond to the issues of “receipt

19
possession” and “shopkeeper’s privilege.” We disagree for three

reasons.

¶ 34 First, Montgomery did not object to or move to strike the

manager’s affidavit or the receipts on the basis that they were late

until his motion for reconsideration — after the district court had

entered summary judgment. And we do not review arguments

raised for the first time in a motion for reconsideration. United

States v. City of Golden, 2024 CO 43M, ¶¶ 77-78 (declining to

review arguments raised for the first time in a motion for

reconsideration, unless they are based on “newly discovered

evidence”).

¶ 35 Second, even if his objections were timely, we are not

convinced that the exhibits were late. A court may properly

consider an affidavit attached to a reply in support of an MSJ if

“[n]either the affidavit nor the reply brief raised a new issue as to

which [the nonmoving party] was not put on notice of the need to

present evidence.” Barfield v. Hall Realty, Inc., 232 P.3d 286, 290

(Colo. App. 2010) (citing Wallman v. Kelley, 976 P.2d 330, 332

(Colo. App. 1998)). Here, Best Buy’s MSJ put Montgomery on

notice that he needed to present evidence of his actions inside the

20
store 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. Best Buy’s reply, by

including the affidavit and the receipts, did not advance a “new

argument” to which Montgomery was unable to respond. Rather,

these reply exhibits rebutted Montgomery’s various denials — about

exiting the store, having merchandise, and having a receipt. Thus,

the court did not err by considering the affidavit and receipts.

¶ 36 Third, any error in considering the manager’s affidavit and

receipts was harmless. Both exhibits were submitted not only with

Best Buy’s reply in support of its MSJ but also with its response to

Montgomery’s cross-MSJ. As a result, Montgomery had the

opportunity to respond to the affidavit and receipts when he

submitted his reply in support of his cross-MSJ.5 Because the

5 Montgomery argues that the district court “erroneously and

unlawfully conflated” the separate motions for summary judgment
“in blatant violation of clearly established rules or law on the
subject.” But he cites no authority supporting this argument.
Based on our review of the record, both Best Buy’s MSJ and
Montgomery’s cross-MSJ addressed the same claims and
affirmative defense and submitted substantially the same evidence
for both motions. Under these circumstances, the court did not err
in considering briefs and exhibits in connection with both motions
together.

21
district court considered all briefs and exhibits in connection with

both parties’ motions together, Montgomery was not prejudiced by

the “belated” affidavit and receipts. See C.A.R. 35(c); Stockdale,

¶ 32.

IV. Summary Judgment Evidence

¶ 37 Montgomery contends that the district court disregarded

conflicting evidence and failed to give him the benefit of all

reasonable inferences when it granted Best Buy’s MSJ and denied

his cross-MSJ. We are not persuaded.

A. Standard of Review and Applicable Law

¶ 38 We review a grant of summary judgment de novo. Griswold v.

Nat’l Fed’n of Indep. Bus., 2019 CO 79, ¶ 22. Summary judgment is

appropriate only when the pleadings, affidavits, depositions, and

admissions establish that there is no genuine issue of material fact

and that the moving party is entitled to judgment as a matter of

law. Griswold,¶ 23; C.R.C.P. 56(c). In evaluating a motion for

summary judgment, all doubts must be resolved against the moving

party, and the nonmoving party is entitled to the benefit of all

favorable inferences that may be reasonably drawn from the

undisputed facts. Griswold, ¶ 24.

22
¶ 39 The mere existence of a factual dispute is insufficient to defeat

a summary judgment motion; instead, the disputed factual issue

must be “genuine” and “material.” Andersen v. Lindenbaum,

160 P.3d 237, 239 (Colo. 2007). A factual issue is material if it will

affect the outcome of the case. Gognat v. Ellsworth, 224 P.3d 1039,

1045 (Colo. App. 2009), aff’d, 259 P.3d 497 (Colo. 2011). A factual

issue is genuine if the nonmoving party can provide sufficient

evidence to demonstrate that a reasonable fact finder could return a

verdict in his favor. Andersen, 160 P.3d at 239. “If the evidence

opposing summary judgment is merely colorable or is not

significantly probative, summary judgment may be granted.” Id.

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).

B. Manager’s Affidavit

¶ 40 Relying on Scott v. Harris, 550 U.S. 372, 380 (2007),

Montgomery contends the manager’s affidavit is inadmissible for

establishing material facts because it “blatantly contradicted . . .

[his] pen camera footage of the event” and the results of his police

records request. See also Andersen, 160 P.3d at 240 (“[I]f the

evidence presented in opposition to summary judgment is so

23
incredible that it could not be accepted as true by a reasonable

jury, it cannot serve to create a ‘genuine’ issue, or dispute, of fact.”).

¶ 41 As an initial matter, we are unsure how the manager’s

statements about what he observed inside the store could

contradict the pen camera footage of the subsequent incident

outside the store. Indeed, many of Montgomery’s claimed

“contradictions” are based on speculation. For example, he claims

the following:

• In the footage, the manager “mentions wanting to recover

what Plaintiff held in his hands a whopping 31 times,”

which, to Montgomery, means “[the headphones/earbuds

the manager observed him take] weren’t even the primary

reason for the confrontation.”

• In the footage, the manager commented that it was odd for

him to “stand here and wait for us to come get [him],”

which, to Montgomery, “indicates that he did not actually

FOLLOW Plaintiff out of the store after purportedly

personally observing him steal something from it

‘immediately’ prior to.”

24
• In the footage, the employees say they saw his apparent

theft “on video,” but Montgomery hypothesizes the manager

“LITERALLY would have never had the time to go review any

security video footage [before the interaction].”

But Montgomery cannot manufacture a contradiction, or a “genuine

issue” of material fact, simply by means of argument. People in

Interest of A.C., 170 P.3d 844, 846 (Colo. App. 2007) (“A genuine

issue of material fact cannot be established simply by allegations in

pleadings or argument; rather, the opposing party must set forth

specific facts by affidavit or otherwise showing that there is a

genuine issue for trial.”). Based upon our review of the record, the

manager’s affidavit is not “blatantly contradicted” by the pen

camera footage.

¶ 42 Montgomery does raise one possible contradiction: The

manager’s affidavit stated that he returned inside “[o]nce [he]

received confirmation that the police had been contacted,” but the

police records responsive to Montgomery’s records request indicated

that the police were called only in the morning, hours before the

incident. Assuming this record is admissible, it did not create a

genuine or material factual issue for purposes of the district court’s

25
decision. The court did not mention, much less rely on, his police

records request because whether the police were called was not

“significantly probative” of the false imprisonment claim, the

defamation claim, or the shopkeeper’s privilege. Andersen,

160 P.3d at 239 (“If the evidence opposing summary judgment is

merely colorable or is not significantly probative, summary

judgment may be granted.” (quoting Anderson, 477 U.S. at 249)).

Accordingly, there was no genuine issue of material fact for trial.

C. Montgomery’s Actions Inside the Store

¶ 43 Montgomery argues that the district court failed to give him

the benefit of reasonable inferences when it found that he presented

no evidence of his actions inside the store to counter the manager’s

affidavit. Specifically, he argues the court should have inferred that

his affidavit described his actions inside the store — namely, that

he was never “physically near” any Best Buy employees before they

approached him about theft, did not “conceal” anything, and did

not put anything in his pockets “in front of anybody.”

¶ 44 The court did give Montgomery the benefit of all reasonable

inferences. Throughout the district court proceedings, Montgomery

insisted that Best Buy could not prove he entered the store. In his

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briefing, he began each “statement of facts” with him standing

outside the Best Buy at 2:19 p.m. He explicitly “DENIE[D] that he

‘exited’ the store, or that he did so with any of the store’s

‘merchandise’ in his possession.” Given Montgomery’s refusal to

admit he entered the store or to discuss his conduct inside the store

in his briefing, the court properly found that he presented no

evidence of his actions inside the store.

¶ 45 Further, Montgomery’s affidavit does not give rise to

reasonable inferences that would contradict the court’s finding.

Montgomery’s affidavit states that he was waiting outside Best Buy

at 2:19 p.m. for five minutes before the Best Buy employees

“surprise[d]” him. He explained that this was the first time he was

“anywhere physically near” them and “the very first time that [he]

had ever become aware as to the very existence of said Best Buy

employees.” Although he states that he did not “conceal” anything

or put anything in his pockets “in front of anybody,” neither

statement creates disputed issues of material fact. His statement

that he never “concealed” anything is a “merely self-serving

conclusion[] of the ultimate facts,” and thus insufficient to create a

genuine issue for trial. Ginter v. Palmer & Co., 585 P.2d 583, 585

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(Colo. 1978). And given that Montgomery said the first time he was

ever “physically near” or aware of any Best Buy employee was

outside the store, his statement that he never put anything in his

pocket “in front of anybody” must refer to his conduct outside the

store.

¶ 46 For all these reasons, we agree with the district court that it

“assum[ed] the truth of [Montgomery’s] evidence and [drew] every

favorable inference of fact therefrom” when it found that

Montgomery presented no evidence of his actions inside the store.

D. Montgomery’s Police Records Request

¶ 47 Montgomery argues the district court should have inferred

from the results of his police records request — which indicated

that the police did not receive a call from Best Buy that afternoon —

that he “did not commit theft inside the store.” It is unclear

whether this exhibit is even admissible, given that there is no

affidavit or certification laying the foundation for its admission. See

St. Croix, 166 P.3d at 244 (“Failure to authenticate a document or

otherwise submit evidence establishing its admissibility precludes

consideration of the document for purposes of summary

judgment.”). Moreover, it is unclear how this document contradicts

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the manager’s observation or how it would alter the court’s

resolution of the claims. Because this argument is undeveloped, we

do not consider it further. See People v. Cuellar, 2023 COA 20, ¶ 44

(declining to address a pro se party’s arguments that were

“undeveloped” (citation omitted)).

V. Other Arguments

¶ 48 Montgomery raises additional arguments in his reply brief on

appeal. However, we do not consider issues raised for the first time

in a reply brief. Colo. Korean Ass’n v. Korean Senior Ass’n of Colo.,

151 P.3d 626, 629 (Colo. App. 2006).

VI. Disposition

¶ 49 The judgment is affirmed.

JUDGE GROVE and JUDGE SCHOCK concur.

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