CIVIL PROCEDURE: Pro se plaintiff sufficiently rebutted properly supported summary judgment motion in malicious prosecution claim by submitting a notarized response which constituted an affidavit: HUNT V. LAWSON (SC 10/23/2008)

JOHN HUNT
V. JAMES D. LAWSON
CIVIL PROCEDURE:  Pro se plaintiff sufficiently rebutted properly supported
summary judgment motion in malicious prosecution claim by submitting a notarized
response which constituted an affidavit

2007-SC-000438-DG.pdf
PUBLISHED: AFFIRMING
OPINION BY MINTON; SCOTT NOT SITTING
PIKE COUNTY
DATE RENDERED: 10/23/2008

The sole issue on discretionary review is whether, in a malicious prosecution action, the Court of Appeals erred in concluding that genuine issues of material fact presented in James D. Lawson's pro se claim remained in dispute in spite of defense affidavits in support of
summary judgment. Upon review, SCOKY conclujded that Lawson offered sufficient affirmative evidence, through sworn statements of material fact in his notarized response, to defeat the defendants' otherwise properly supported
summary judgment motion, even though he styled his response as a cross motion for summary judgment.

The particular issue in this case is whether the determination of want or lack of probable cause for the proceeding is a question of law for the court or a question of fact for the jury. The answer is "it
depends".   Unsworn allegations in pleadings will not serve as "affirmative evidence" sufficient to defeat an otherwise properly supported summary judgment motion

Especially given his pro se status, under the unique facts and circumstances of this case, Lawson's
summary judgment motion, with its recitation of factual allegations and the notary's indication that it was "subscribed and sworn" before the notary, ought to be regarded as a counter-affidavit in Lawson's favor.

SC affirmed the decision of the Court of Appeals circuit court granting summary judgment to appellants and remands the malicious prosecution claim for further proceedings.that reverses, in part, the order of the circuit court granting summary judgment to appellants and remands the malicious prosecution claim for further proceedings.

Digested by Michael Stevens

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