Introduction
On October 1, 2026, a unanimous division of the Colorado Court of Appeals issued its opinion in Summers v. Summers, 2026 COA 73, holding that the well-established C.R.C.P. 12(b)(5) legal standard applies even when the court record includes affidavits filed with a separate anti-SLAPP motion to dismiss pursuant to section 13‑20‑1101, C.R.S. (2026). As a result, the division concluded that it could not examine the anti-SLAPP affidavits when reviewing the defendant’s C.R.C.P. 12(b)(5) motion for failure to state a claim because the affidavits constituted matters outside the pleadings.
Applying this rule, the division affirmed in part and reversed in part the district court’s dismissal of the plaintiff’s defamation and intentional infliction of emotional distress claims.
Background
This case stems from a dispute between a father, Craig Summers, and his adult son, Colin Summers. In 2024, Colin sent two text messages to his father and adult sister. One text threatened Craig with physical abuse; the other accused him of raping Colin’s mother several years earlier.
The parties submitted substantively identical screenshots of the relevant text messages as part of the anti-SLAPP filings.
Craig sued for defamation based on the second text and for intentional infliction of emotional distress based on both texts. Colin filed two motions to dismiss: one under section 13‑20‑1101 (Colorado’s anti-SLAPP statute) and another under C.R.C.P. 12(b)(5) for failure to state a claim. The district court denied the anti-SLAPP motion to dismiss but granted the C.R.C.P. 12(b)(5) motion.
The district court explained that it dismissed the defamation claim because the complaint failed to allege facts that negated the conditional privilege that attaches to communications between non-spousal family members. See CJI‑Civ. 22:18, Notes on Use 3 (2026).
The district court also dismissed the intentional infliction of emotional distress claim based solely on its dismissal of the defamation claim. It reasoned that a statement that cannot support a defamation claim cannot support an intentional infliction of emotional distress claim either.
Craig appealed the district court’s ruling as to the C.R.C.P. 12(b)(5) motion.
The Division’s Analysis
The division first addressed which legal standard applied: the C.R.C.P. 12(b)(5) standard, under which a court generally may not consider matters outside the pleadings, or the anti‑SLAPP standard under section 13‑20‑1101, where a court may consider such matters. The division concluded that the well-established C.R.C.P. 12(b)(5) standard governs because the anti-SLAPP motion was not at issue on appeal. As a result, the division could not consider the anti-SLAPP affidavits, even though they were part of the court record.
After addressing the correct legal standard, the division evaluated the lower court’s dismissal of the defamation and intentional infliction of emotional distress claims.
The defamation claim. The division concluded that the district court erred because it dismissed the claim on the ground that the complaint did not allege facts that negated the affirmative defense (i.e., the conditional privilege that attaches to communications between non-spousal family members). The division clarified that a court may dismiss a claim based on an affirmative defense when the complaint affirmatively establishes that the defense bars the claim. See Bristol Bay Prods., LLC v. Lampack, 2013 CO 60, ¶ 44 (discussing the limited circumstances under which a court may dismiss a claim based on an affirmative defense raised in a motion to dismiss). As the division noted, “a [complainant] need not plead the inapplicability of an affirmative defense to survive a C.R.C.P. 12(b)(5) motion to dismiss.”
The intentional infliction of emotional distress claim. The division affirmed the dismissal of the intentional infliction of emotional distress claim, but on different grounds from the district court. As a threshold issue, the division explained that, because the complaint referenced the text messages, which were central to the claims, the messages were not matters outside the pleadings. See Yadon v. Lowry, 126 P.3d 332, 336 (Colo. App. 2005).
Next, the division evaluated whether the text message alleging physical abuse constituted outrageous conduct. See Coors Brewing Co. v. Floyd, 978 P.2d 663, 666 (Colo. 1999) (quoting Restatement (Second) of Torts § 46 cmt. d (A.L.I. 1965)). After considering the context in which the text was sent, including Colin’s possible retraction of the “threat” forty-eight hours later, the division concluded that the message did not rise to the level of outrageous conduct.
The division then examined whether the text message alleging rape was outrageous. As with the threatening text, the division concluded that it was not, reasoning that, although possibly painful and offensive, the text did not go “beyond all possible bounds of decency so as to be utterly intolerable in a civilized community.”
The division thus reversed the dismissal of the defamation claim and affirmed the dismissal of the intentional infliction of emotional distress claim.
Implications
Summers v. Summers offers two important takeaways.
First, the decision demonstrates the far-reaching application of the C.R.C.P. 12(b)(5) legal standard. In ruling on a C.R.C.P. 12(b)(5) motion, a court must not consider matters outside the pleadings, even when the record contains affidavits filed in support of an anti-SLAPP special motion to dismiss under section 13‑20‑1101.
Second, the decision underscores the importance of identifying the correct legal standard for reviewing a claim’s dismissal, particularly when two competing standards could apply. A party that relies on the wrong standard could misjudge the viability of its claim under a C.R.C.P. 12(b)(5) motion.
Judge Taubman authored the opinion, with Judges Sullivan and Meirink concurring.
For questions about this legal alert, please contact a member of the Davis Graham Appellate Group.