dissenting. The majority opinion stice, evidence to support a jury verdict in favor of the appellee, Carolyn Binns. It is no wonder. The majority opinion examines only the evidence favorable to WalMart in its analysis. This is exactly the opposite of what the law requires.
To decide whether a jury’s verdict is supported by substantial evidence, we have adopted the following ground rules. It is not within this court’s province to try issues of fact; rather it is our task to review the record for substantial evidence to support the jury’s verdict. City of Caddo Valley v. George, 340 Ark. 203, 9 S.W.3d 481 (2000). In determining whether there is substantial evidence, we view the evidence and all reasonable inferences arising therefrom in the fight most favorable to the party receiving the judgment. D.B. Griffin Warehouse, Inc. v. Sanders, 336 Ark. 469, 986 S.W.2d 836 (1999). If there is any substantial evidence to support the verdict, we affirm the trial court. Grendell v. Kiehl, 291 Ark. 228, 723 S.W.2d 830 (1987). We have further held that the weight and value of testimony is a matter within the exclusive province of the jury. Routh Wrecker Serv. Inc. v. Washington, 335 Ark. 232, 980 S.W.2d 240 (1998); Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997). Thus, what the majority should have done but fails to do in the instant case is view the evidence in the fight most favorable to Binns and to give that evidence its strongest probative force.
Strangely, the majority does not even mention the evidence favorable to Binns, much less give it its strongest probative force. In disregarding our oft-stated standard of review, the majority discards decades of jurisprudence followed by appellate courts in Arkansas and virtually every other state in this country. The net result is that our jury system is undermined by what amounts to a weighing of evidence and a retrial of the case at the appellate level.
a. Abuse of Process
The critical test for determining if the tort of abuse of process has been committed is whether there has been an improper use of process after its issuance to accomplish a purpose for which the process was not designed. Routh Wrecker Serv., Inc. v. Washington, supra.
The crux of Binns’s case was the expert testimony of a former Wal-Mart manager, Kevin Parker. Parker’s status as an expert is not contested by Wal-Mart in this appeal. He testified that Wal-Mart employees, Tim Langley and David Craig, only furnished the prosecutor with one piece of the evidentiary puzzle and that was the detail tapes from the cash registers. According to Parker, what they should have examined and turned over to the prosecutor were the daily cash reports to show whether the cash in the register drawer at the end of each day was long (too much) or short (too little). He further testified that store management is required to review the cash reports every day to ascertain whether the cash is short or long. If Binns had actually taken money, it would have shown up on the cash report, according to Parker. Finally, he made the point that once the lay-away account is closed after final payment, canceling the final payment of an inactive account has no effect on the money received. The only way to determine if money is missing is to examine the cash reports.
In sum, Parker concluded that had Craig and Langley looked at the cash reports, they would have known no money was missing from the cash registers. The warrant for Binns’s arrest issued at WalMart’s request on April 12, 1994. She was charged with a felony and a misdemeanor on May 25, 1994. It was not until June 5, 1995, more than year later, that the prosecutor dropped the charges. The prosecutor stated that he was doing so because there was insufficient proof based on Wal-Mart’s own records. Surely more than a year was sufficient time for Wal-Mart to examine the cash reports to determine whether cash was actually missing. This, according to Parker, Wal-Mart failed to do. More importantly, this failure by Wal-Mart allowed the prosecution against Binns to continue for over a year without providing the prosecutor with proof that cash was actually missing. According to Parker, the detail tapes proved nothing.
This court has held that allowing a prosecution to continue without providing all of the facts can constitute abuse of process. Routh Wrecker Serv., Inc. v. Washington, 335 Ark. 232, 980 S.W.2d 240 (1998); Harmon v. Carco Carriage Corp., 320 Ark. 322, 895 S.W.2d 938 (1995). That is exactly what occurred in this case.
I am, of course, aware of the fact that Langley and Craig testified that they had the cash reports and concluded that money had been stolen. But Parker, Binns’s expert, contradicted this testimony and testified that Langley could not have seen the cash reports. This was a credibility issue for the jury to resolve, and not this court. Union Pac. R.R. Co. v. Sharp, supra. Our function is to decide whether Parker’s testimony constitutes substantial evidence of abuse of process. And this court has made it perfeedy clear in the past that the testimony of an expert witness in support of a claim equates to substantial evidence unless it is shown that the opinion is without reasonable basis. Dixon Ticonderoga Co. v. Winburn Tile Mfg. Co., 324 Ark. 266, 920 S.W.2d 829 (1996); Ford Motor Co. v. Massey, 313 Ark. 345, 855 S.W.2d 897 (1993); Wallace v. Williams, 263 Ark. 702, 567 S.W.2d 111 (1978).
There is no doubt that substantial evidence supporting the jury verdict existed on this count.
h. Malicious Prosecution
Wal-Mart mounts an offensive on the malicious-prosecution verdict on two bases: (1) Craig and Langley truly believed that Binns had stolen money, and (2) neither Binns nor Kevin Parker testified that the two Wal-Mart employees were malicious people. The first basis, of course, is self-serving, and the second is irrelevant since the determination of malice falls within the province of the jury. Furthermore, we have made it clear that malice can be inferred from a conscious indifference to the resulting consequences. See Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998). Again, the majority falls into the trap of recounting evidence supporting Wal-Mart’s theory of the case rather than examining and analyzing the evidentiary basis for Binns’s claim.
On the element of probable cause, Kevin Parker testified that had Langley and Craig looked at the cash reports, they would have known that probable cause was nonexistent. In addition, he recounted for the jury’s benefit that Wal-Mart had violated its own internal policies by not confirming employee theft by eyewitness testimony, a confession, or tapes from a video camera. It merely relied on the detail tapes which Parker made clear do not confirm an actual shortage of cash.
Malice may be inferred from a lack of probable cause. Corders v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). There was, too, Langley’s statement to Binns on March 28, 1994: “No matter what you say we’re going to prosecute; you’re going to pay this money back.” Again, in complete disregard of our standard of review, the majority interprets this statement in a light favorable to Wal-Mart. The jury, however, could have readily interpreted Langley’s comment as a threat to prosecute to get Binns to pay the money he suspected she had stolen. That, of course, would be evidence of malice. And if Wal-Mart failed to supply the critical cash reports to the prosecution in timely fashion, which Kevin Parker maintains were completely exculpatory, the jury could have accepted this as further evidence of malice. Finally, there was a telephone call by Langley to the prosecutor after the charges were dropped. Langley testified that he was not sure he tried to “meet” with the prosecutor to have the charges reestablished, but he did make a telephone call after the charges were dropped. Again, the jury could have taken that as an indication of malice.
In short, Wal-Mart pursued criminal charges against Binns for more than a year when, according to Kevin Parker, the cash reports exonerated her and when Wal-Mart had failed to follow its own procedures to establish employee theft. The prosecutor ultimately dropped charges due to insufficient evidence based on Wal-Mart’s records. A combination of the above easily qualifies as substantial evidence of malicious prosecution.
c. Punitive Damages
As a final point, the majority criticizes the trial judge for instructing on punitive damages for intentionally pursuing a course of conduct for the purpose of causing damage when that is precisely what our Model Jury Instruction provides and what we have confirmed in at least one decision. See AMI 2218, formerly AMI 2217; see also Croom v. Younts, 323 Ark. 95, 913 S.W.2d 283 (1996).1 For the majority to blithely disregard AMI instructions and the Crooms case with no explanation is unfair to Binns in the extreme.
Of course, the majority need not reach the punitive damages point at all, because the majority would affirm no compensatory damages for Binns. Our cases are legion to the effect that there must be an award of compensatory damages to support an award of punitive damages. See, e.g., Limited Stores, Inc. v. Wilson-Robinson, 317 Ark. 80, 876 S.W.2d 248 (1994); Bell v. McManus, 294 Ark. 275, 742 S.W.2d 559 (1988).
I conclude that the majority does a disservice to the parties in the case and to our common law when it fails to follow our standard of review, to discuss apposite case authority, or to examine evidence supporting the jury’s verdict and the resulting judgment. I would affirm the jury verdict.
Glaze, J., joins.The 1999 codification of AMI, Civil, lists former AMI 2217 on punitive damages as AMI 2218.