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SOMERSTEIN v. GUTIERREZ

No. 1041.

509 P.2d 897 (1973)

85 N.M. 130

Abby SOMERSTEIN, Plaintiff-Appellant, v. Phyllis GUTIERREZ et al., Defendants-Appellees.

Court of Appeals of New Mexico.

April 20, 1973.

Attorney(s) appearing for the Case

Joseph D. Beaty, Donald Klein, Jr., Albuquerque, for plaintiff-appellant.

Jerrald J. Roehl, James T. Paulantis, Iden & Johnson, Albuquerque, for defendants-appellees Toni Preston and Rhodes Dept. Store.

OPINION

WOOD, Chief Judge.

This is a malicious prosecution case. One of the elements to be proved, by a preponderance of the evidence, is that no probable cause existed for the prosecution. Meraz v. Valencia et al., 28 N.M. 174, 210 P. 225 (1922). The trial court dismissed plaintiff's complaint, with prejudice, at the close of all the evidence. It did so on the basis that "... Plaintiff did not prove that the Defendants [Preston and Rhodes Department Store...

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