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2004-MO-012 - Alakhwan v. Simmons

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Michael Alakhwan,        Respondent,

v.

Beth Simmons,        Appellant.


Appeal From Greenville County
John C. Few, Circuit Court Judge


Memorandum Opinion No. 2004-MO-012
Heard March 17, 2004 - Filed April 5, 2004


AFFIRMED


Richard R. Gleissner and Robert Phillips, both of Finkel & Altman, LLC, of Columbia; and Robert C. Wilson, Jr., of Greenville, for appellant.

Andrew C. Barr, of Fulton & Barr, P.A., of Greenville; and Desa Ballard and Jason B. Buffkin, both of Law Offices of Desa Ballard, of West Columbia, for respondent.


PER CURIAM:  Affirmed pursuant to Rule 220(b)(1), SCACR, and the following authorities:  Issues 1 and 2McKenney v. Jack Eckerd Co., 304 S.C. 21, 402 S.E.2d 887 (1991) (where accused establishes charge was nolle prossed for reasons that imply or are consistent with innocence, an action for malicious prosecution may be maintained); Eaves v. Broad River Elec. Co-op., Inc., 277 S.C. 475, 289 S.E.2d 414 (1982) (elements of malicious prosecution); Whitner v. Duke Power Co., 277 S.C. 397, 288 S.E.2d 389 (1982) (probable cause in malicious prosecution context does not turn upon plaintiff’s guilt or innocence, but rather upon whether facts within prosecutor’s knowledge would lead reasonable person to believe plaintiff was guilty of crime charged); Parrott v. Plowden Motor Co., 246 S.C. 318, 143 S.E.2d 607 (1965) (malice may be inferred from want of probable cause); Issue 3Gibson v. Brown, 245 S.C. 547, 141 S.E.2d 653 (1965) (one who does not swear out warrant cannot be held liable in malicious prosecution action unless he had instituted criminal action against plaintiff, or had caused one to be maintained, or had voluntarily aided or assisted in its prosecution); Issue 4McCourt ex rel McCourt v. Abernathy, 318 S.C. 301, 457 S.E.2d 603 (1995) (to warrant reversal for refusal to give requested instruction, refusal must have not only been erroneous, but prejudicial as well); Issue 5Pelican Bldg. Centers of Horry-Georgetown, Inc. v. Dutton, 311 S.C. 56, 427 S.E.2d 673 (1993) (motion for new trial on ground of excessiveness of verdict is in trial court’s discretion and will not be overturned absent error of law); Gamble v. Stevenson, 305 S.C. 104, 406 S.E.2d 350 (1991) (factors to be used when conducting review of punitive damages award).

TOAL, C.J., MOORE, WALLER, BURNETT and PLEICONES, JJ., concur.