Yucca Ford, Inc. v. Scarsella

(specially concurring).

It would be helpful if the Supreme Court would decide this issue: In a claim for malicious prosecution, when is want of probable cause a question of law for the trial court, or a question of fact for the jury?

The main reason for a definite decision is that trial attorneys have agreed that probable cause is only a question of law for the trial court. Somerstein v. Gutierrez (Ct.App.), 85 N.M. 130, 509 P.2d 897, (1973).

The trial court and opposing counsel may not understand the language of the majority opinion and be able to apply it to the facts of a claim based on…