dissenting.
Although I question the conclusion that the complaint did state a claim upon which relief could be granted through an allegation that defendants “initiated a prosecution” without indicating the formal matter in which such was done, e.g., signed complaint under oath, made citizen’s arrest, etc. (see Territory v. Nelson, 2 Wyo. 346, 352 (1880); §§ 7-6-102, 7-8-101, and 7-8-105, W.S.1977), I believe that in connection with the motion to dismiss, matters outside of the pleading were presented and not excluded. Rule 12(b), W.R.C.P., provides in pertinent part:
“* * * If * * * matters outside the pleading are presented to and not excluded by the court, the motion [to dismiss for failure to state a claim upon which relief can be granted] shall be treated as one for summary judgment and disposed of as provided in Rule 56 * * *.”
The record reflects that a hearing was had on the motion to dismiss, but a transcript thereof is not in the record. However, the record contains answers of plaintiff to a request for admission of facts, wherein plaintiff responded:
*1168“Plaintiff admits that the criminal charges complained of by Plaintiff in his Complaint were investigated and prosecuted against the Plaintiff in the name of the City of Casper, Wyoming, or the State of Wyoming. Plaintiff asserts that the moving force behind the institution of the charge is the work of Defendant.”
This matter outside of the pleadings was presented and not excluded, and it plainly set forth the lack of an essential element of an action for malicious prosecution. As stated in the trial court’s opinion letter:
“The facts appear as follows:
“The Defendants were customers of Penny’s on December 15, 1983. The Plaintiff in his capacity as clerk, was fitting James Twiford with a pair of trousers. Young James on the following day told his mother that the Defendant had fondled him. Mrs. Twiford complained to the management concerning the alleged incident and later reported it to the police. The Defendants were interviewed by the police in both Casper and Douglas and eventually a complaint was signed by Wayne Verba of the Casper Police Department. I must assume that the complaint was filed by the police as a result of their investigation and the Na-trona County Attorney proceeded on the basis of the police investigation. The Defendant’s [sic] did not sign the complaint. Verba signed the complaint in apparent consultation with the County and Prosecuting Attorney.
“Justice Cardine addressed this very problem in Seamster v. Rumph, Slip Opinion No. 84-140, Wyoming Supreme Court, (April 9, 1985), [1] [where] he said,
“ ‘An action for malicious prosecution is barred if the proceedings are initiated as a result of an attorney's advice if all information concerning the incident is fully and fairly disclosed and the advice is sought in good faith ... This rule particularly applies to advice from prosecuting attorneys. If the facts are fairly stated, the advice given protects and shields the defendant from a suit for malicious prosecution. Steadman v. Topham, 80 Wyo. 63, 338 P.2d 820 (1959); Boyer v. Bugher, 19 Wyo. 463, 120 P. 171 (1912).’
“The prosecuting attorney had within his discretion the sole authority to proceed with prosecution; dismiss the charges; or decline to file charges. The charges were filed by Office[r] Veba [sic] after his own investigation and with apparent approval of the County Attorney.” (Emphasis in original.)
The proposition is stated in 52 Am.Jur.2d Malicious Prosecution § 24 (1970):
“If the prosecution to which the plaintiff was subjected was instituted at the defendant’s instance and request by a public officer having authority for such purpose, the defendant is sufficiently a prosecutor for an action for malicious prosecution to be sustainable against him; for the purpose of this form of action, the law looks beyond theory and regards as the real prosecutor the person who was in fact instrumental in prosecuting the accused. Thus, a person may be considered sufficiently active in the institution of proceedings against the plaintiff, and thereby incur liability to an action for malicious prosecution, if he maliciously files an affidavit, or signs and swears to a criminal complaint, on which the public authorities base their prosecution of the plaintiff, and he cannot escape liability on the ground that he took no further part in the proceedings. Merely giving honest assistance and information to prosecuting authorities, however, does not render one liable as a co-prosecutor. For instance, where a person merely states facts concerning the conduct of a third person to a magistrate, and the latter erroneously deems a crime to have been committed and directs the third person’s arrest or the issuance of a warrant, the informer is not liable for malicious prosecution; it is the officer’s error rather than the defendant’s act which is the cause of the plaintiff’s injury. The same principle applies *1169where one communicates to a public prosecutor honestly and in good faith the facts he knows bearing on a supposed crime, and such officer mistakenly prosecutes the person implicated by the statement. A person has not caused a prosecution when he acts only in subordination to the prosecuting attorney and under the latter’s direction; his malice in such a case is immaterial. In like manner, if a complainant does not go beyond giving what he believes to be correct information to the police, and the police without further interference on his part (except giving such honest assistance as they may require or testifying as a witness when summoned) think fit to prosecute, it would be improper to make him responsible in damages for failure of the prosecution.” (Emphasis added.)
It would be a great inducement to additional criminal activity if law-abiding citizens can communicate facts concerning crimes or potential crimes to proper authorities only at risk of having to defend subsequent legal action for malicious prosecution.
The motion to dismiss resulted in proceedings in which matters outside the pleadings were presented, and such matters reflected the failure by plaintiff to have a claim upon which relief could be granted. The order, which was in effect a summary judgment, was proper.
With reference to notice to plaintiff of the potential for a summary judgment, both parties were aware of the issue concerning formal initiation of prosecution and of the potential for a summary judgment. From consideration of the issue by the Court, the emphasis in the majority opinion on the necessity of notice to convert a motion to dismiss to summary judgment proceedings does not consider the occasion whereby the decision to do so is made during the hearing itself. The suggestion that plaintiff in the case needed time to submit opposition affidavits, etc. is meaningless. The “matters outside the pleading” considered by the trial court were those submitted by plaintiff himself. It was obvious that the issue as to whether or not a formal initiation of prosecution was made by defendants would be determinative of the trial court’s action. Notice of such was given in defendants’ motion to dismiss in answer to the complaint. It recited:
“That neither of the Defendants initiated a prosecution of Plaintiff, but that the same was done by either the City of Casper or County of Natrona, State of Wyoming.”
As noted, the response to the request for admission of facts acknowledged the truth of this averment of the complaint.
The entire situation, sufficient upon which to have a summary judgment, was before the trial court. Rule 56(c), W.R. C.P., provides that
“ * * * [t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * * ” (Emphasis added.)
Plaintiff had notice of the issue and responded to it. Additional time for further response would be useless.
Justice to the moving party and judicial economy should not be hamstrung by restricting the availability of a summary judgment in a proper case, such as this.
I would affirm.
1. The case is now cited: Seamster v. Rumph, Wyo., 698 P.2d 103 (1985).