Sancetta v. APOLLO STEREO MUSIC COMPANY, INC.

Colorado Court of Appeals

Sancetta v. APOLLO STEREO MUSIC COMPANY, INC.

616 P.2d 182, 44 Colo. App. 292, 1980 Colo. App. LEXIS 702

CourtColorado Court of Appeals

DecidedMay 22, 1980

Docket78-1121

StatusPublished

Cited by7 cases

This text of 616 P.2d 182 (Sancetta v. APOLLO STEREO MUSIC COMPANY, INC.) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Sancetta v. APOLLO STEREO MUSIC COMPANY, INC., 616 P.2d 182, 44 Colo. App. 292, 1980 Colo. App. LEXIS 702 (Colo. Ct. App. 1980).

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Opinion

PIERCE, Judge.

Plaintiff appeals a directed verdict for defendant granted at the close of plaintiff’s case in a malicious prosecution action. We reverse.

In a malicious prosecution action, the burden is on plaintiff to prove (1) that defendants were parties to or assisted in a prior action against plaintiff; (2) that the prior action ended in favor of plaintiff; (3) that there was no probable cause for the prior action; (4) that defendants’ participation in the prior action was motivated by malice; and (5) that as a result of the prior action, plaintiff incurred damages. Montgomery Ward & Co. v. Pherson, 129 Colo. 502, 272 P.2d 643 (1954); See Colo. J.I. 17:1 (2d Ed. 1980). Here, the trial court ruled that plaintiff had presented sufficient evidence on all elements of malicious prosecution except the element of malice. It found that plaintiff had presented no evidence which tended to show that defendants’ prior action against plaintiff was motivated by malice, and, therefore, the trial court entered a directed verdict for defendants. See Suchey v. Stiles, 155 Colo. 363, 394 P.2d 739 (1964).

Only when the facts which relate to the issue of malice are undisputed is a question of whether those facts warrant an inference of malice one for the court. Koch v. Wright, 67 Colo. 292, 184 P. 363 (1919). There were disputed factual issues relating to the purported acts of plaintiff which were the basis of defendant’s prior legal action against plaintiff, as well as the disputed evidence relating to whether there was probable cause for the commencement and continuation of the prior action.

Malice may be inferred from a lack of probable cause. Florence Oil & Refining Co. v. Huff, 14 Colo.App. 281, 59 P. 624 (1900). In an action for malicious prosecution where there are disputed factual issues and where it has been determined that there was no probable cause for the prior legal action, the existence of malice is an issue to be determined by the jury. Wyatt v. Burdette, 43 Colo. 208, 95 P. 336 (1908). Here, because there were disputed factual issues relating to probable cause, and, therefore, the permissible inference of malice, a directed verdict at the close of plaintiff’s case was improper.

Judgment reversed and cause remanded for a new trial.

BERMAN and VAN CISE, JJ., concur.

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PIERCE, Judge.

Plaintiff appeals a directed verdict for defendant granted at the close of plaintiff’s case in a malicious prosecution action. We reverse.

In a malicious prosecution action, the burden is on plaintiff to prove (1) that defendants were parties to or assisted in a prior action against plaintiff; (2) that the prior action ended in favor of plaintiff; (3) that there was no probable cause for the prior action; (4) that defendants’ participation in the prior action was motivated by malice; and (5) that as a result of the prior action, plaintiff incurred damages. Montgomery Ward & Co. v. Pherson, 129 Colo. 502, 272 P.2d 643 (1954); See Colo. J.I. 17:1 (2d Ed. 1980). Here, the trial court ruled that plaintiff had presented sufficient evidence on all elements of malicious prosecution except the element of malice. It found that plaintiff had presented no evidence which tended to show that defendants’ prior action against plaintiff was motivated by malice, and, therefore, the trial court entered a directed verdict for defendants. See Suchey v. Stiles, 155 Colo. 363, 394 P.2d 739 (1964).

Only when the facts which relate to the issue of malice are undisputed is a question of whether those facts warrant an inference of malice one for the court. Koch v. Wright, 67 Colo. 292, 184 P. 363 (1919). There were disputed factual issues relating to the purported acts of plaintiff which were the basis of defendant’s prior legal action against plaintiff, as well as the disputed evidence relating to whether there was probable cause for the commencement and continuation of the prior action.

Malice may be inferred from a lack of probable cause. Florence Oil & Refining Co. v. Huff, 14 Colo.App. 281, 59 P. 624 (1900). In an action for malicious prosecution where there are disputed factual issues and where it has been determined that there was no probable cause for the prior legal action, the existence of malice is an issue to be determined by the jury. Wyatt v. Burdette, 43 Colo. 208, 95 P. 336 (1908). Here, because there were disputed factual issues relating to probable cause, and, therefore, the permissible inference of malice, a directed verdict at the close of plaintiff’s case was improper.

Judgment reversed and cause remanded for a new trial.

BERMAN and VAN CISE, JJ., concur.

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616 P.2d 182, 44 Colo. App. 292, 1980 Colo. App. LEXIS 702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sancetta-v-apollo-stereo-music-company-inc-coloctapp-1980.

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