Denial of Summary Judgment or Directed Verdict in a Prior Case Is Only a Factor—Not a Rebuttable Presumption—of Probable Cause in Subsequent Malicious Prosecution Actions

Introduction

In Cantafio v. Schnelle, 2025 CO 39 (Colo. June 16, 2025), the Colorado Supreme Court resolved a recurring question at the intersection of civil procedure and tort law: When a trial court denies a motion for summary judgment or a directed verdict in an underlying civil action, does that denial create a rebuttable presumption that the plaintiff in the underlying case had probable cause—thereby barring a later malicious prosecution claim?

The dispute arose from a real estate transaction. Patricia Ann Scott (the seller) sued real estate agent Kaylee Schnelle for professional negligence. The trial court denied Schnelle’s motions for summary judgment and directed verdict, and the jury ultimately returned a verdict for Schnelle. Thereafter, Schnelle filed a new action for malicious prosecution against Scott, Scott’s attorneys, their law firm, and related individuals and entities (collectively, “the defendants”), alleging they lacked probable cause and pursued baseless litigation.

The defendants moved to dismiss under C.R.C.P. 12(b)(5), arguing that the prior denials of summary judgment and directed verdict established, as a matter of law, probable cause (either as an absolute bar or at least via a rebuttable presumption), thereby defeating the malicious prosecution claim. Both the district court and the court of appeals rejected a bright-line rule and treated the earlier denials as simply part of the totality of circumstances bearing on probable cause.

The Supreme Court granted certiorari to decide whether those denials raise a rebuttable presumption of probable cause. It held they do not.

Summary of the Opinion

The Colorado Supreme Court affirmed the court of appeals, holding that the denial of a summary judgment or directed verdict motion in the underlying case is a factor a court may consider in assessing probable cause in a subsequent malicious prosecution action, but it does not create a rebuttable presumption of probable cause. The Court emphasized:

There are many reasons why such motions are denied, and those reasons vary in clarity and depth across cases and judges.
A presumption would unfairly shift the burden of persuasion and could, in effect, become insurmountable—especially when the denial order is terse or not susceptible to appellate review.
This factor-based, case-by-case approach aligns Colorado with jurisdictions like Arizona and Vermont and avoids a bright-line rule that would eclipse contextual analysis.

The Court identified a non-exhaustive list of circumstances that may guide how much weight to give prior denials (discussed below), thereby providing practical direction to courts and litigants.

Analysis

Precedents Cited and Their Significance

Colorado authorities

Melat, Pressman & Higbie, L.L.P. v. Hannon Law Firm, L.L.C., 2012 CO 61: Clarifies the de novo standard of review for Rule 12(b)(5) dismissals. The Court applied this standard in evaluating the denial of the defendants’ motion to dismiss.
Hewitt v. Rice, 154 P.3d 408 (Colo. 2007): Sets out the elements of civil malicious prosecution: (1) the defendant’s role in instituting the prior action, (2) favorable termination, (3) lack of probable cause, (4) malice, and (5) damages. This case frames the core inquiry in the present dispute.
Walford v. Blinder, Robinson & Co., 793 P.2d 620 (Colo. App. 1990): Defines probable cause in the civil malicious prosecution context as a good-faith, objectively reasonable belief in liability on the claim asserted. This standard anchors the Court’s analysis of whether prior procedural denials should control the probable cause element.
Montgomery Ward & Co. v. Pherson, 272 P.2d 643 (Colo. 1954): Reiterates that the existence of probable cause defeats a malicious prosecution claim. The case underscores why defendants sought to convert prior denials into presumptive proof.
Health Grades, Inc. v. Boyer, 2012 COA 196M, 369 P.3d 613, rev’d on other grounds, 2015 CO 40, 359 P.3d 25: The court of appeals declined to adopt a categorical rule that denials of summary judgment or directed verdict foreclose abuse of process claims premised on “sham litigation.” The Supreme Court found this approach persuasive and extended a similar reasoning framework to malicious prosecution, emphasizing a nuanced, contextual analysis rather than a bright-line rule.
C.R.C.P. 56(c) and Bayou Land Co. v. Talley, 924 P.2d 136 (Colo. 1996): Establish the stringent summary judgment standard and the principle that nonmovants receive all reasonable inferences. These baseline principles support the Court’s conclusion that a denial of summary judgment may say little about ultimate merits or probable cause.
C.R.C.P. 50, Mid-Century Ins. Co. v. HIVE Constr., Inc., 2025 CO 17, and Burgess v. Mid-Century Ins. Co., 841 P.2d 325 (Colo. App. 1992): Directed verdicts are granted only when reasonable minds cannot disagree; denials often reflect deference to the jury’s role. This diminishes the force of a denial as conclusive evidence of probable cause.
People in Interest of L.S., 2023 CO 3M and Garcia v. Colorado Cab Co., 2023 CO 56: Directed verdicts are disfavored and should be granted only in the clearest cases. This reinforces the Court’s reluctance to transform a denial into a presumption about probable cause.
Dep’t of Nat. Res. v. 5 Star Feedlot, Inc., 2021 CO 27: Summary judgment is a “drastic remedy,” highlighting why denials may have limited probative value regarding underlying merit or probable cause.
State Farm Mut. Auto. Ins. Co. v. Goddard, 2021 COA 15 and Potter v. Thieman, 770 P.2d 1348 (Colo. App. 1989): Denials of summary judgment are typically unreviewable interlocutory orders; parties not aggrieved lack standing to appeal. The non-reviewability of such denials counsels against ascribing presumptive legal significance to them in later litigation.

Out-of-state authorities

Havilah Real Property Services, LLC v. Early, 88 A.3d 875 (Md. Ct. Spec. App. 2014) and Porubsky v. Long, 487 P.3d 768 (Kan. Ct. App. 2021) (unpublished table decision): These decisions adopted or endorsed a rebuttable presumption that denials of dispositive motions establish probable cause in later malicious prosecution claims. The Colorado Supreme Court declined to follow this approach, citing fairness, burden shifting, and practical concerns.
Wolfinger v. Cheche, 80 P.3d 783 (Ariz. Ct. App. 2003): Holds that a denial of summary judgment is merely a factor in the objective reasonableness analysis. The Court found this reasoning persuasive, particularly given the risk that false or misleading evidence might inform a denial.
Bacon v. Reimer & Braunstein, LLP, 929 A.2d 723 (Vt. 2007): A denial may be persuasive, but not dispositive; qualitative assessment is required. The Vermont approach, like Arizona’s, supports Colorado’s decision to avoid a presumption.
Roberts v. Sentry Life Ins., 90 Cal. Rptr. 2d 408 (Cal. Ct. App. 1999): Cited for the relevance of later-discovered materially false testimony to the probable cause inquiry. The Court incorporated this into its non-exhaustive factors.

Legal Reasoning

The Court’s reasoning is grounded in procedural realism and fairness:

Variability and opacity of orders: Summary judgment and directed verdict denials can be terse or detailed, may reflect very different degrees of judicial engagement, and can rest on procedural or evidentiary nuances. Treating every denial as presumptively imbued with probable cause overreads orders that often say little about merits.
Nature of the standards: Summary judgment is a “drastic remedy”; denial may simply reflect the existence of disputed facts or the court’s reluctance to resolve issues without a full record. Directed verdicts are “disfavored” and denied unless the case is so one-sided that reasonable minds cannot disagree. Denial, therefore, is poor proxy for the existence of probable cause.
Non-reviewability: Denials of summary judgment are typically unreviewable, and a party who ultimately prevails at trial often lacks standing to appeal. Building a presumption on unreviewable, interlocutory decisions risks ossifying error or ambiguity into a later litigation advantage.
Burden shifting and proof of a negative: A presumption would shift the burden of persuasion to the malicious prosecution plaintiff to “prove a negative” about the basis of a different court’s prior interlocutory ruling—an often impracticable task that could become an insurmountable barrier to legitimate claims.
Risk of misleading evidence: The Court acknowledged the real possibility that false or misleading evidence may precipitate denial of a dispositive motion. A presumption could immunize wrongful conduct contrary to the purposes of malicious prosecution as a remedy for baseless litigation.
Comparative authority: The Court aligned Colorado with Arizona and Vermont’s more nuanced, factor-based approach and declined to adopt the Maryland/Kansas presumption model.

The Court’s Non-Exhaustive Factors for Weighing Prior Denials

The Court provided guidance to help trial courts assess how much weight to give prior denials of summary judgment or directed verdict when evaluating probable cause in a malicious prosecution case. Relevant considerations include:

The type of order (denial of summary judgment versus denial of directed verdict).
Whether the order is detailed or cursory.
Whether the order addresses all elements of all claims.
Timing within the litigation (e.g., early versus late stage).
Whether the court commented on the strength of the evidence.
Whether there are claims that false or misleading evidence was used to defeat the motion.
Whether any relevant testimony was later determined to be materially false.
Whether perjury or fraud was alleged or found.
For summary judgment denials specifically, whether discovery was complete when the motion was decided.

This list is illustrative, not exhaustive. The framework invites holistic, record-specific analysis rather than mechanically attributing determinative significance to any single procedural event.

Procedural Context and Doctrinal Fit

Rule 12(b)(5) posture: The Court reviewed the motion-to-dismiss denial de novo, consistent with Melat, Pressman & Higbie. At the pleading stage, well-pleaded facts are accepted as true, which reinforces the inappropriateness of a presumption that would shift the burden of persuasion to the plaintiff based on a prior interlocutory ruling.
Summary judgment and directed verdict standards: The decision emphasizes the caution embedded in C.R.C.P. 56 and 50 and the importance of the jury’s role—both of which reduce the inferential value of a denial for purposes of probable cause.
Post-verdict safety valves: The Court observed that trial courts can reserve the right to grant judgment notwithstanding the verdict, further underscoring why a directed verdict denial need not be treated as a marker of probable cause.
Interlocutory review: The case itself reached the court of appeals via C.A.R. 4.2, underscoring that the question presented is a controlling legal issue suitable for immediate resolution and uniform statewide guidance.

Impact and Practical Implications

The decision has immediate and far-reaching effects on malicious prosecution claims and defensive strategies in Colorado civil litigation.

For plaintiffs bringing malicious prosecution (like Schnelle)

Prior denials of summary judgment or directed verdict in the underlying case do not automatically defeat the claim; plaintiffs can proceed if they plausibly plead lack of probable cause and other elements.
Plaintiffs should marshal context around the prior denials: timing, the completeness of discovery, whether the order was perfunctory or detailed, and any later revelations of false or misleading evidence.
The opinion encourages careful pleading and evidentiary development to show why the earlier denials do not equate to probable cause.

For defendants in malicious prosecution (like Scott and her attorneys)

Denials of summary judgment and directed verdict remain relevant and can be persuasive facts in a Rule 12(b)(5) motion, but they no longer provide a presumptive shield.
The best practice is to supply the full context of the prior orders (e.g., detailed analysis by the court, explicit comments on the strength of the evidence, late-stage timing, and complete discovery) to maximize their persuasive value.
Defendants should be prepared to renew these arguments at the summary judgment stage of the malicious prosecution suit, when courts can evaluate a more developed record.

For trial courts

This opinion provides an analytical roadmap. Trial judges should evaluate orders denying dispositive motions holistically using the Court’s non-exhaustive factors and should avoid attributing dispositive weight to the mere fact of denial.
Courts retain flexibility to calibrate the weight of a prior denial based on the record’s depth, the order’s detail, and later-discovered information about the accuracy of evidence presented.

For the development of Colorado law

The decision harmonizes Colorado with jurisdictions (Arizona and Vermont) that reject presumptions and endorse contextual analysis, while consciously diverging from Maryland/Kansas decisions that adopt rebuttable presumptions.
By refusing to shift the burden of persuasion based on interlocutory rulings, the Court preserves meaningful access to malicious prosecution remedies for truly baseless litigation while protecting legitimate litigants who survive early motions for reasons unrelated to ultimate merit.

Complex Concepts Simplified

Malicious prosecution (civil): A tort that permits recovery when someone initiates a civil case without probable cause and with malice, causing damages. Elements: initiation, favorable termination, lack of probable cause, malice, and damages.
Probable cause (civil malicious prosecution): The plaintiff in the prior suit, acting in good faith, had an objectively reasonable belief that the defendant was liable for the claim. If probable cause existed, malicious prosecution fails.
Summary judgment (C.R.C.P. 56): A pretrial mechanism to resolve cases lacking any genuine dispute of material fact. Because it’s a “drastic remedy,” denial often means only that factual disputes remain—not that the claim was strong or weak.
Directed verdict (C.R.C.P. 50): A motion at trial asserting that no reasonable jury could find for the nonmovant based on the evidence. Denials are “disfavored” because courts generally prefer to let juries decide close questions and can later grant judgment notwithstanding the verdict if warranted.
Rebuttable presumption: A legal inference that stands unless the opposing party introduces evidence to the contrary. Imposing such a presumption here would shift the burden of persuasion onto the malicious prosecution plaintiff, potentially making valid claims untenable.
Favorable termination: In this case, Schnelle obtained a jury verdict in her favor in the underlying professional negligence action, satisfying that element.

Conclusion

Cantafio v. Schnelle establishes an important and clarifying rule for Colorado malicious prosecution law: the denial of summary judgment or directed verdict in an underlying civil case is not a rebuttable presumption of probable cause. It is one factor—potentially persuasive, but never dispositive—within a broader, context-sensitive analysis. By rejecting a bright-line presumption and articulating practical, non-exhaustive factors, the Colorado Supreme Court balances competing interests: ensuring that litigants are not unfairly punished for surviving early motions and preserving the availability of malicious prosecution claims for truly baseless suits.

In doing so, the Court aligns Colorado with jurisdictions that favor nuanced assessments over categorical rules, respects the limited inferential value and non-reviewability of interlocutory denials, and avoids burden-shifting that could foreclose legitimate remedies. The result is a principled framework that will guide trial courts and practitioners and will likely shape pleading, motion practice, and evidentiary development in malicious prosecution litigation statewide.

Case Timeline (for quick reference)

Underlying case: Scott sues Schnelle for professional negligence; summary judgment denied; directed verdict denied; jury returns verdict for Schnelle.
Present action: Schnelle sues Scott, her attorneys, their firm, and related individuals for malicious prosecution and other claims.
District court: Denies Rule 12(b)(5) motion to dismiss; treats prior denials as factors, not presumptions.
Court of appeals: Affirms under C.A.R. 4.2 interlocutory review; rejects bright-line presumption.
Colorado Supreme Court: Affirms; denies presumption; adopts factor-based approach and provides guidance on weighing prior denials.

Certified Question Answered

The Court granted certiorari to decide whether denials of summary judgment or directed verdict in a prior civil case raise a rebuttable presumption of probable cause in a subsequent malicious prosecution action. It answered “no,” holding that such denials are merely factors in the probable cause analysis.

Colorado Supreme Court Clarifies Probable Cause in Malicious Prosecution: Denials of Summary Judgment or Directed Verdict Are Factors, Not Presumptions (Cantafio v. Schnelle, 2025 CO 39)