dissenting. I respectfully dissent from the majority’s opinion that appellee presented proof at trial to establish that Wal-Mart engaged in the tort of malicious prosecution. I believe that appellee failed to prove three of the elements of a claim of malicious prosecution. Appellee did not establish (1) that a proceeding was instituted or continued by Wal-Mart or Mitchell against appellee, (2) the absence of probable cause, or (3) malice on the part of Wal-Mart.
Testimony at trial does not indicate that Wal-Mart or Mitchell “instituted or continued a proceeding” against appellee. Officer Williams testified that no one associated with Wal-Mart asked her to arrest appellee. In fact, both officers testified that appellee would not have been arrested but for appellee’s conduct. Moreover, appel-lee presented no proof that appellant filed charges or “instituted or continued a proceeding” against her.
Appellee also failed to prove the absence of probable cause. In malicious-prosecution cases, the test for determining probable cause is an objective one based not upon the accused’s actual guilt, but upon the existence of facts or credible information that would induce a person of ordinary caution to believe the accused to be guilty. Wal-Mart Stores, Inc. v. Williams, 71 Ark. App. 211, 29 S.W.3d 754 (2000). Here, the Texarkana police accused appellee of criminal trespass, loitering, and resisting arrest. I do not believe that appellee proved that probable cause did not exist in support of the charges of criminal trespass and resisting arrest.
Officer Sanders repeatedly asked appellee to leave the Wal-Mart store, but appellee refused. According to Ark. Code Ann. § 4-70-101 (Repl. 1996), a business has the right to select customers and the power to refuse service to any person. Subsection (c) of that statute imposes a penalty upon persons who are requested to leave a place of business and who after having been so requested, refuse to leave. Here, Officers Sanders and Williams had probable cause to believe that appellee was violating this statute and criminally trespassing when she refused to leave the Wal-Mart store. Thus, appel-lee did not prove the absence of probable cause for the proceeding.
Next, there was ample evidence that appellee resisted arrest. Officer Williams was only able to place handcuffs on one hand of appellee because she was “hanging on to the lay-away counter.” Furthermore, appellee hit Officer Williams on the chest and arms during the arrest. Officer Sanders also stated that appellee refused to let him handcuff her, and that he had to put her in a “grip” using his police baton and removed her from the store using that instrumentality.
The fourth element of a malicious-prosecution claim, malice, is also not present in this case. The trial court believed that Mitchell told the officers to have appellee removed from the store. As store manager, Mitchell was entitled to determine who was present in the Wal-Mart store. Appellee had no legal right to stay in the store after the police asked her to leave pursuant to Mitchell’s instructions. I do not believe that Mitchell’s conduct was sufficient to establish malice. Arkansas Code Annotated § 4-70-101 (c) empowered Mitchell to request that appellee be removed from the store. Thus, Mitchell’s actions cannot be categorized as malicious. Moreover, appellee had every opportunity to speak to the police, explain the situation, cooperate with them, and leave the store. Wal-Mart cannot be held responsible for appellee’s noncompliance with the officers. Ultimately, the evidence presented by appellee in this case does not establish a claim for malicious prosecution because the evidence fails to support three of the requisite elements.
Robbins, J., joins.