Colorado Supreme Court: Denial of Summary Judgment or Directed Verdict in Prior Litigation Is Only a Factor—Not a Rebuttable Presumption—of Probable Cause in Malicious Prosecution Actions

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

Introduction

In Cantafio v. Schnelle, 2025 CO 39, 569 P.3d 1226 (Colo. 2025), the Colorado Supreme Court resolved an important, recurring question at the intersection of civil procedure and the tort of malicious prosecution: What effect should a trial court’s denial of summary judgment or directed verdict in an earlier case have on the “probable cause” element of a subsequent malicious prosecution claim?

The dispute originated in a real estate transaction. In the first suit, seller Patricia Ann Scott alleged professional negligence against real estate agent Kaylee Schnelle. The district court denied Schnelle’s pretrial motion for summary judgment and later denied her motion for a directed verdict at the close of Scott’s case. A jury ultimately returned a verdict for Schnelle on the negligence claim.

Schnelle then filed a second action sounding in malicious prosecution (among other claims) against Scott, Scott’s attorneys, their firm, and firm members (collectively, the defendants), alleging they lacked probable cause to bring the negligence case and acted with malice, harming her reputation. The defendants moved to dismiss under C.R.C.P. 12(b)(5), arguing that the prior denials of summary judgment and directed verdict conclusively—or at least presumptively—established probable cause for the original suit, thereby barring Schnelle’s malicious prosecution claim.

The district court denied the motion, treating the earlier denials as relevant but not dispositive. The Colorado Court of Appeals affirmed in a published decision. The Supreme Court granted certiorari to decide whether those prior denials create a rebuttable presumption of probable cause in the malicious prosecution action.

Summary of the Opinion

The Colorado Supreme Court, in a unanimous en banc opinion authored by Justice Berkenkotter, affirmed the court of appeals. The Court held that the denial of a summary judgment or directed verdict motion in prior civil litigation is merely a factor that a district court may weigh in assessing “probable cause” in a later malicious prosecution case; it does not create a rebuttable presumption of probable cause. The Court declined to adopt a categorical rule or burden-shifting presumption, emphasizing that reasons for denying such motions are varied, such orders are often not appealable, and a presumption risks becoming practically insurmountable at the pleading stage.

Analysis

The Question Presented and Holding

Certiorari was granted to answer: Whether the denial of summary judgment or directed verdict in a prior civil case raises a rebuttable presumption of probable cause in a subsequent malicious prosecution action. The Court answered no. Such denials are relevant and may be persuasive, but they do not create a rebuttable presumption or otherwise categorically bar a malicious prosecution claim. Accordingly, the Supreme Court affirmed the denial of the Rule 12(b)(5) motion to dismiss and the judgment of the court of appeals.

Precedents and Authorities Cited

  • Hewitt v. Rice, 154 P.3d 408 (Colo. 2007) – Lists the elements of civil malicious prosecution: (1) defendant’s participation in bringing a prior action, (2) favorable termination of the prior action for the current plaintiff, (3) lack of probable cause, (4) malice, and (5) damages.
  • 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, reasonable belief that the prior defendant was liable for the claim brought. This dual objective–subjective framing (reasonable belief held in good faith) sets the core standard.
  • Montgomery Ward & Co. v. Pherson, 272 P.2d 643 (Colo. 1954) – Explains that the existence of probable cause defeats a malicious prosecution claim.
  • Mintz v. Accident & Injury Medical Specialists, PC, 284 P.3d 62 (Colo. App. 2010) – Describes the tort as a remedy when a person knowingly initiates baseless litigation, reinforcing the tort’s focus on groundlessness and malice.
  • C.R.C.P. 56(c); Bayou Land Co. v. Talley, 924 P.2d 136 (Colo. 1996); Dep’t of Nat. Res. v. 5 Star Feedlot, Inc., 2021 CO 27, 486 P.3d 250 – Together, these set the summary judgment standard: a drastic remedy appropriate only where there’s no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law, with all reasonable inferences drawn in favor of the non-movant.
  • C.R.C.P. 50; Mid-Century Ins. Co. v. HIVE Constr., Inc., 2025 CO 17, 567 P.3d 153; People in Interest of L.S., 2023 CO 3M, 524 P.3d 847; Garcia v. Colorado Cab Co., 2023 CO 56, 538 P.3d 328 – Set the directed verdict (judgment as a matter of law) standard: such motions are disfavored and granted only in the clearest of cases where reasonable minds could not differ when evidence is viewed favorably to the non-movant.
  • Health Grades, Inc. v. Boyer, 2012 COA 196M, 369 P.3d 613, rev’d on other grounds, 2015 CO 40, 359 P.3d 25 – Although an abuse-of-process case, the division declined to adopt a bright-line rule that denials of summary judgment or directed verdict necessarily bar sham-litigation theories; instead, it endorsed a careful, case-by-case analysis. The Supreme Court here found Health Grades persuasive.
  • State Farm Mut. Auto. Ins. Co. v. Goddard, 2021 COA 15, 484 P.3d 765; Potter v. Thieman, 770 P.2d 1348 (Colo. App. 1989) – Note that denials of summary judgment generally are not appealable final orders; non-aggrieved parties lack standing to appeal. This undermines the reliability of such denials as a basis for presumptions.
  • Out-of-state authorities:
    • Wolfinger v. Cheche, 206 Ariz. 504, 80 P.3d 783 (Ariz. Ct. App. 2003) – Denial of summary judgment is a factor, not dispositive; recognizes the risk that false or misleading evidence may drive denial and counsels against categorical rules.
    • Bacon v. Reimer & Braunstein, LLP, 182 Vt. 553, 929 A.2d 723 (2007) – Denial may be persuasive, but absent a qualitative merits determination it cannot, as a matter of law, establish probable cause and bar malicious prosecution.
    • Havilah Real Prop. Servs., LLC v. Early, 216 Md. App. 613, 88 A.3d 875 (2014) – Takes the opposite view, treating denial of a dispositive motion as creating a presumption of probable cause; relied on in Porubsky v. Long, 487 P.3d 768 (Kan. Ct. App. 2021) (unpublished). The Colorado Supreme Court declined to adopt this approach.
    • Roberts v. Sentry Life Ins., 76 Cal. App. 4th 375, 90 Cal. Rptr. 2d 408 (1999) – Considered later-discovered falsity of testimony as relevant to the probable cause analysis.

The Court’s Legal Reasoning

The Court’s reasoning is anchored in procedural realism and fairness at the pleading stage. First, summary judgment denials are poor proxies for a merits-based “probable cause” determination. Denials may reflect myriad considerations—limited discovery, unresolved credibility questions, or judicial caution—not a conclusion that the claim likely had merit. The Court cautioned against elevating such denials into presumptions, especially given the common practice of issuing brief or minimally reasoned orders that may mask extensive judicial analysis or, conversely, reflect preliminary views of the record.

Second, directed verdict denials carry even less inferential weight. Directed verdicts are disfavored and granted only in the clearest cases; trial courts often deny them to allow juries to fulfill their fact-finding role, secure in the availability of judgment notwithstanding the verdict if necessary. Hence, a denial at that stage often tells us little about whether the plaintiff had a good-faith, reasonable basis to sue when the action was filed.

Third, the Court rejected burden shifting. A rebuttable presumption of probable cause would effectively force a malicious prosecution plaintiff, at the Rule 12(b)(5) stage, to prove a negative—why a summary judgment or directed verdict denial does not equate to probable cause. That risked transforming a permissive inference into a near-insurmountable barrier at the pleadings stage, contrary to both the standards governing motions to dismiss and the nuanced nature of the probable cause inquiry.

Fourth, the Court underscored that denials of summary judgment are generally not appealable. Building a presumption atop a nonreviewable interlocutory ruling risks attaching undue legal significance to a preliminary determination that may have been influenced by incomplete information or procedural constraints.

For all of these reasons, the Court adopted a flexible, factor-based approach. Prior denials of summary judgment or directed verdict can be considered by a trial court in evaluating probable cause in a subsequent malicious prosecution suit. They may be highly persuasive in some instances, but they are neither dispositive nor presumptive proof.

How Much Weight Should a Prior Denial Receive? The Court’s Non-Exhaustive Guide

The Court provided practical guidance on how to evaluate the probative value of prior denials, identifying a non-exhaustive set of circumstances that may affect weight:

  • The type of order (summary judgment versus directed verdict).
  • The level of detail and analysis in the order.
  • Whether the order addressed all elements of all claims.
  • When in the litigation timeline the order issued (e.g., early or after robust discovery).
  • Any judicial comments about the strength or weakness of the evidence.
  • Allegations that false or misleading evidence was used to defeat the motion.
  • Whether relevant testimony was later found to be materially false.
  • Whether perjury or fraud was alleged or shown.
  • For summary judgment denials specifically, whether discovery was complete.

This calibrated, context-sensitive framework avoids bright-line rules and better captures the messy reality of litigation, where procedural rulings often rest on narrow or evolving records.

Comparative Perspectives

The Court aligned Colorado with jurisdictions such as Arizona and Vermont that view prior denials of dispositive motions as factors in the probable cause analysis, not as presumptive or conclusive proof. It declined to follow approaches taken by Maryland and, in an unpublished decision, Kansas, which have adopted a presumption of probable cause. The Court emphasized the risks of burden shifting, the non-appealability of many denials, and the danger that a presumption could become practically insurmountable at the pleadings stage.

Impact

This decision clarifies Colorado law and will materially influence how malicious prosecution claims proceed beyond the pleading stage.

  • No safe harbor from early-motion denials: Litigants and their counsel cannot rely on the denial of summary judgment or directed verdict in the underlying case as a presumptive shield against malicious prosecution liability. Such denials may help, often substantially, but they are not dispositive.
  • Greater emphasis on the content and context of prior rulings: Parties can expect courts to scrutinize the timing, completeness of discovery, the specificity of the order, and any signs of misleading submissions or later-discovered falsity. Building a record that shows the qualitative merits analysis behind a denial may meaningfully affect the weight it receives.
  • Pleading and motion practice:
    • Malicious prosecution plaintiffs should plead specific facts addressing lack of probable cause notwithstanding any prior denials (e.g., early-stage denial with limited discovery, credibility-driven disputes, later-discovered falsity, or judicial comments indicating thin evidence).
    • Defendants should present the full context of prior denials, including detailed orders, completeness of discovery, and any judicial statements suggesting the claim’s substantive strength, to argue that probable cause existed.
  • Trial court management: While judges need not “show their work,” detailed orders may aid later courts in weighting the significance of prior denials. The decision’s factor list offers a structured roadmap for trial courts evaluating probable cause at Rule 12(b)(5), Rule 56, or trial.
  • Balanced access to courts and deterrence of baseless claims: By avoiding a bright-line presumption, the Court preserves space for legitimate malicious prosecution claims where earlier denials rested on limited records or were affected by misleading evidence, while still allowing defendants to use such denials as meaningful, context-dependent evidence of probable cause.

Complex Concepts Simplified

  • Malicious prosecution (civil): A tort remedy against someone who initiated or continued a prior civil case without probable cause and with malice, which ended in the current plaintiff’s favor, causing damages.
  • Probable cause (civil malicious prosecution): The prior plaintiff, in good faith, had a reasonable belief that the prior defendant was liable for the claim asserted. If probable cause existed, the malicious prosecution claim fails regardless of other elements.
  • Summary judgment: A pretrial ruling under C.R.C.P. 56 that resolves a claim when there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Courts draw all reasonable inferences for the non-movant. It is considered a “drastic” remedy.
  • Directed verdict (judgment as a matter of law): A trial-stage ruling under C.R.C.P. 50 granted only in the clearest cases where reasonable jurors could not disagree. Courts view the evidence in the light most favorable to the non-movant and often allow juries to decide, with the safety valve of post-verdict relief.
  • Rebuttable presumption: A legal assumption that is taken as true unless and until the opposing party presents evidence to rebut it. The Court declined to impose such a presumption here because it would unfairly shift the burden at the pleadings stage and risk becoming effectively conclusive in practice.
  • C.R.C.P. 12(b)(5) motion to dismiss: Tests the legal sufficiency of the complaint. Courts assume the well-pleaded facts are true and ask whether the plaintiff has stated a plausible claim for relief. The Supreme Court reviewed the denial of such a motion de novo.
  • C.A.R. 4.2 interlocutory appeal: A mechanism for appellate review of certain controlling questions of law before final judgment. Here, it enabled early clarification of the legal effect of prior denials on malicious prosecution claims.

Conclusion

Cantafio v. Schnelle establishes an important procedural and substantive rule for Colorado malicious prosecution jurisprudence: A prior denial of summary judgment or directed verdict in the underlying civil case does not create a rebuttable presumption of probable cause. It is merely one factor—sometimes powerful, sometimes weak—in a holistic, context-sensitive analysis. By rejecting a bright-line presumption, the Court preserves the nuanced character of the probable cause inquiry, avoids unfair burden-shifting at the pleading stage, and accounts for the limited and often non-appealable nature of such interlocutory rulings.

The decision provides concrete guidance to trial courts through a non-exhaustive set of considerations that can calibrate the probative value of earlier denials. For litigants and counsel, the message is equally practical: neither side can rest easy on the existence (or absence) of prior denials. What will matter is the procedural posture, the completeness of the record, the detail of the court’s prior analysis, and the integrity of the evidence that carried the day.

In short, the Court charts a balanced path that respects both access to courts and accountability for baseless litigation, ensuring that malicious prosecution claims in Colorado turn on substantive context rather than categorical shortcuts.

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