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Sacco v. High Country Independent Press2/14/1995
n the amended complaint then fell outside the statute of limitations and was dismissed reflects on the merits of the original complaint.
Accordingly, we conclude that the termination was in Sacco's favor and we hold that the District Court erred when it determined that Sacco could not prove the fifth element, which conclusion formed the basis for the court's granting summary judgment on the issue of malicious prosecution.
We note that defendants HCIP and Sorlies concede that there is a genuine issue of material fact concerning the second element to be proven in a case of malicious prosecution — the defendant's responsibility for litigating, prosecuting, or continuing the proceeding. Therefore, this element must be addressed on remand as must all other elements.
Moreover, because of our decision on Issue I, the third element, lack of probable cause for the defendant's acts, must also be addressed on remand. Again, we hold that the District Court erred when it granted summary judgment to all defendants on the issue of malicious prosecution.
REVERSED AND REMANDED for further proceedings consistent with this opinion.
CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, HUNT, GRAY, WEBER and LEAPHART concur.
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