(dissenting in part and concurring in part).
{58} I respectfully dissent with regard to the majority’s holding that the issues of whether Weststar initiated or procured Jackson’s criminal prosecution and whether Weststar’s primary motive was to obtain the return of money through the criminal process were propei’ly submitted to the jury. Because I would reverse on these issues, I do not address the punitive damages issue.
{59} Court scrutiny of malicious abuse of process actions is more demanding than that required in garden variety tort actions. We should carefully adhere to the watchwords of our precedent. The tort of malicious abuse of process is disfavored in the law and is to ,be “favored only in plain, compelling cases.” Zamora v. Creamland Dairies, Inc., 106 N.M. 628, 634, 747 P.2d 923, 929 (Ct.App. 1987). These actions “ ‘ought not to be favored, but managed with great caution.’” Hughes v. Van Bruggen, 44 N.M. 534, 540, 105 P.2d 494, 498 (1940) (quoting Lord Holt). The claimant has a heavy burden in establishing his claim. Zamora, 106 N.M. at 634, 747 P.2d at 929.
{60} Citizens are to have “wide latitude in reporting facts to authorities so as not to discourage the exposure of crime.” Id. The tort is to be narrowly construed in order to protect the right of “access to the courts.” DeVaney v. Thriftway Mktg. Corp., 1998-NMSC-001, ¶ 19, 124 N.M. 512, 953 P.2d 277. This right must include the right to report facts to law enforcement officials and to engage in a discussion with those officials of how the officials intend to proceed based on the facts reported. That discussion might center on the need for further investigation. It might include the officials extending to the victim an option to say whether the victim wanted the officer to continue.
{61} This case is a hybrid. It lies somewhere between crime and debt. It is closer to crime than to debt. While cases dealing with debt collection might be instructive, along with cases dealing with outright crime, they are not controlling. This is the odd, in-between case. Jackson’s conduct is neither breach of obligation nor, at least arguably, criminal. The conduct borders more on the side of crime than debt because Jackson made a decision not to return the full amount of the money while neither stating nor having any lawful basis whatsoever, not even an arguable one, on which to hold on to the money.
I. Initiation or Procurement
{62} Appropriate scrutiny in this appeal requires a conclusion that insufficient evidence exists from which a jury could determine, even based on reasonable inferences, that Weststar initiated or procured the criminal prosecution thereby giving rise to tort liability under malicious abuse of process. I therefore respectfully disagree with the majority’s conclusion that the evidence was sufficient to support a finding that the decision to prosecute Jackson was made at the request and insistence of Weststar. Majority Opinion ¶ 19. This conclusion is drawn from erroneous premises and insufficient factual bases.
{63} The erroneous premises are (1) a factual dispute existed as to whether Wests-tar provided information to Officer Boutelle that it reasonably believed to be true; (2) Officer Boutelle’s investigation was not an independent one; (3) Weststar participated in the proceedings; and, perhaps (4) Wests-tar did not have probable cause to believe Jackson was guilty of a criminal offense. The factual bases are insufficient, in that Jackson failed to meet his heavy burden of proof to show something more for initiation or procurement of Jackson’s prosecution than Weststar’s selection of Boutelle’s offered option to say it wanted Boutelle to proceed in the case. I discuss these faults in more detail.
A. Weststar’s Reasonable Belief
{64} I respectfully disagree with the majority’s conclusion that a factual dispute existed as to whether Weststar provided information to Boutelle that it believed to be true. Majority Opinion ¶ 23. This was not a legal issue in this case. Even were it an issue, it cannot be disputed that Weststar reasonably believed the information it gave to the police was true.
{65} Jackson first told Weststar he would return the money. After he received bad advice from a lawyer, he did an about-face and told Weststar to “talk to my lawyer.” In the context of Weststar wanting the money returned, the lawyer, who was Jackson’s agent, answered by telling Weststar this was Jackson’s “golden opportunity.” Weststar, reading this loud and clear, decided to report the circumstances to law enforcement officials. Weststar provided information to the officials that it reasonably believed to be true. No evidence exists that Weststar did not reasonably believe the information it provided was accurate. Significantly, the jury was not asked to consider evidence to the contrary. This was never a jury issue. Jackson did not argue below or on appeal to the contrary.
{66} Furthermore, it is not disputed that Weststar reasonably believed Jackson was acting wrongfully. Boutelle gave Weststar the option to call off any further activity if Weststar was able to obtain the money through discussion with Jackson. Offering that option was the officer’s call, not Wests-taPs. Two significant events occurred. Weststar was present when Jackson’s lawyer laughed at Boutelle in response to Boutelle’s suggestion that the matter might be settled by paying the money back. Then Weststar received a letter that can reasonably be read, if not only.be read, to say that Jackson had no intent to pay all the money back — at least not without further pressure to do so — extortive conduct under the circumstances where the lawyer, acting as Jackson’s agent, knew or must be held to have known this position lacked any legal basis. A reasonable person would believe Jackson acted wrongfully and unlawfully. Weststar told Boutelle it wanted to proceed. Significantly, Weststar’s belief that Jackson acted wrongfully was not a legal or a factual issue in this case.
{67} Even looking at the facts in a light most favorable to Jackson, there can be no question that (1) Weststar provided information to Boutelle that Weststar reasonably believed to be true, and (2) at the time Weststar told Boutelle that it wanted to proceed, Weststar reasonably believed it was not going to receive all the money, and neither Jackson nor Jackson’s lawyer had given any reason whatsoever to Weststar or Boutelle to justify not returning the money, other than this was Jackson’s “golden opportunity.”
B. Officer Boutelle’s Independent Investigation
{68} I respectfully disagree with the majority’s conclusion that there was a “lack of independent investigation.” Majority Opinion ¶¶23, 24. First of all, and once again, whether Boutelle’s investigation was independent was never a legal or factual issue. It was not argued below or on appeal. It was not before the jury. Secondly, it cannot be disputed that Boutelle conducted an independent investigation. No evidence supports a conclusion it was insufficient or that it lacked independence. The investigation was sufficient and it was sufficiently independent as a matter of law.
{69} All of the evidence could come only from Weststar, Jackson (including his wife and his lawyer), and Norwest. Boutelle received information and statements from people at Weststar, and was also given documents and facts, that showed, unquestionably, that Jackson received, and then, without stating any justification to either Boutelle or Weststar for doing so, held, continued to hold, and did not return upon request, money that was not his. Boutelle, who was Jackson’s witness, testified he “collected all the information [he] could gather.” Boutelle had also spoken in separate conversations directly with Jackson and with Jackson’s lawyer. Boutelle believed he had sufficient evidence to take the matter to. the district attorney and to file a complaint. He never testified to any ■skepticism on his part about the accuracy of the evidence or about Jackson’s culpability. That Boutelle did not have Norwest documents at the time the district attorney approved the complaint and proceeded is immaterial.
{70} Zamora, discussed by the majority, Majority Opinion ¶24, is a different case. The amount of investigation in Zamora is not a basis on which to say the investigation in the present case was insufficient or not independent. What is required under Zamora is a fair disclosure to law enforcement authorities. Id. at 634-35, 747 P.2d at 929-30 (precluding liability where citizen gives honest, even if mistaken, information about crime). That occurred here. “ ‘There can be no liability where the prosecuting officer relies upon his own investigation and upon information furnished by others than defendant or where defendant has himself fairly disclosed, and it is left to the officer’s own discretion, judgment and responsibility as to whether there shall be a prosecution.’ ” Id. at 632, 747 P.2d at 927 (quoting Hughes, 44 N.M. at 540, 105 P.2d at 498).
C. Weststar Did Not Participate in the Proceedings
{71} I respectfully disagree with the majority’s view that Weststar participated in the criminal proceeding thereby supporting a finding that Weststar procured the prosecution of Jackson. Majority Opinion ¶ 26. Boutelle thought a crime had been committed. He is a law enforcement officer. He knew and told Weststar at least twice that the office of the police was not a collection agency. At the point Weststar said it wanted to proceed with the criminal case, no complaint had been filed. Weststar then did nothing more except what may have been required by law enforcement authorities. Any “participation” (¶26) could only have been cooperation by providing documents to Boutelle and testifying at the preliminary hearing.
{72} No evidence exists that Weststar filed a civil action knowing Jackson had been arrested or tracking what the officials were doing, or that Weststar was cheeking in with the authorities or encouraging or pressuring them in any way. The evidence in the case is to the contrary. Furthermore, the district attorney acted independently in approving Boutelle’s complaint, and in moving the matter through two magistrate judge proceedings, one to obtain an arrest warrant, the other to bind Jackson over after a preliminary hearing. Weststar did nothing to pursue, to procure, or to cause an arrest or prosecution beyond acting upon Boutelle’s option and telling him it wanted the authorities to proceed with the criminal case.
{73} That an officer gives a citizen the option to ask that the criminal proceeding go forward or not does not create a jury issue as to initiation or procurement simply because the citizen says “go forward.” It is the responsibility of the law enforcement officer and district attorney to investigate or not and to prosecute or not. It is the responsibility of the officer or district attorney to explain, as Boutelle did, that the police and district attorney are not collection agencies, and that the authorities do not want to prosecute certain eases unless the citizen wants it done and will cooperate. But that is just the first step. Even if the citizen wants to proceed, it nevertheless remains the responsibility of the officer and district attorney to explain that even if the citizen wants to prosecute, the officer or district attorney can and will make independent decisions whether to go forward and how far to proceed. Boutelle and the district attorney each made separate independent decisions to proceed. Something more is required in this case for procurement than Weststar’s selection of the option to proceed given by the officer. With this evidence alone, Jackson failed to meet his “heavy burden” of proof. See Zamora, 106 N.M. at 634, 747 P.2d at 929.
{74} Under circumstances such as this case presents, where it is a close question whether a person has committed a crime, surely we must rely on the authorities, not the citizen-victim, to carefully and properly interpret criminal laws and apply those laws to the facts. Where the authorities err, the courts must step in to correct the error. Where the citizen-victim errs by acting with malice and derailing the independence of the decision-making by authorities, the law of torts may properly be applied as a corrective measure.
D. The Majority’s Cases
{75} The majority cites two out-of-state cases to support its conclusion that sufficient evidence existed to find initiation or procurement of Jackson’s prosecution, namely, Kurschus v. PaineWebber, Inc., 16 F.Supp.2d 386 (S.D.N.Y.1998), and Conway v. Smerling, 37 Mass.App.Ct. 1, 635 N.E.2d 268 (1994). Majority Opinion ¶ 25.
{76} Kwrschus is a trial court decision denying summary judgment to a defendant on a malicious prosecution claim. 16 F.Supp.2d at 394. The trial court determined issues of fact existed as to whether the defendant played a role in the initiation of criminal proceedings. Id. at 392-93. That initiation consisted at a minimum of the defendant’s wife having filed a complaint with the police and having specifically requested that the police arrest the plaintiff. Id. at 392.
{77} Conway is another malicious prosecution case. An employer mentioned to a police officer a concern that a departed employee had wrongfully “diverted inventory and sold it for her own account.” 635 N.E.2d at 270. An investigation ensued, and a detective who did not comprehend the underlying transactional circumstances decided, “because of continuing inquiry by the [employer] about the progress of the investigation,” to “apply to a clerk-magistrate for a criminal complaint ... and ‘let the clerk decide it.’ ” Id. at 271. The court stated: “Although the evidence suggests that the [employer] did no more than inquire about the progress of an investigation, taking that evidence most favorably to the plaintiff, it could be said that they were the instrument of the complaint.” Id.
{78} Conway required, for malicious prosecution, that “the citizen presses the police to apply for a complaint.” Id. Yet Conway stated, “[i]f a citizen registers with the police an apprehension that a crime has been committed and leaves the matter to the judgment and responsibility of the public officers, that citizen, though having started the chain of events that led to legal process, cannot be charged with malicious prosecution.” Id. The jury’s verdict in Conway was for the plaintiff. Id. at 270. The trial court granted the defendant’s judgment notwithstanding the verdict, and the court of appeals affirmed on the ground of lack of evidence of malice: No evidence was adduced that the defendants, in mentioning the matter to the police and continuing to inquire about the progress of the investigation, “had a purpose other than bringing suspected thieves to justice.” Id. at 270, 272.
{79} Conway’s ultimate result was correct. Insufficient evidence existed for a jury determination on the issue of the improper motive or malice. I do not agree, however, with the Conway determination that whether the employer was “the instrument of the complaint” was for the jury in that case. Further, I do not agree that Conway paves the way for our Court, in the present case, to hold Weststar liable for providing information to the police and accepting Boutelle’s offer of the option to withhold a stated desire that the ease proceed pending attempts to obtain the return of money wrongfully held.
{80} The case before us is different from these out-of-state cases. A citizen does not initiate or procure a criminal prosecution where, as here, the citizen goes to the police with a complaint and sets out the circumstances of a person receiving mis-directed money and refusing to return it. The officer personally corroborates the circumstances. The officer explains the procedures and requirements and asks the citizen if the citizen is “willing to cooperate with everything we ask you to do and continue fully with the prosecution.” In the conversation, the citizen says “[w]e are hoping to resolve this before anything has to go further.” “We are hoping to get cooperation, and can get this resolved where we can just close the whole matter out and go on from there.” It appears to the officer a crime may have been committed, but the officer tells the citizen he must first check it out with the district attorney. The officer says to the citizen: You (citizen) need to know law enforcement authorities are not debt collectors. You (citizen) say you are interested in getting your money back, and if you get it back, you are not interested in whether or not I continue. You (citizen) tell me that you will let me know. I (officer) won’t proceed until you tell me that you (citizen) want to proceed. After reasonably believing that it was not going to get the money back, based on circumstances indicating no intent on the part of the person holding the money to return it, the citizen tells the officer it wants the officer to proceed. Thereafter, except perhaps to deliver further documentation or statements regarding the circumstances, the citizen does nothing, and has no involvement with the officer or the district attorney until required to testify at a preliminary hearing. The ultimate, final decisions whether to file a complaint, arrest, and prosecute are made by the police officer and the district attorney.
{81} Kwrschus and Conway fall short when placed in the same ballpark with our own cases, Hughes, 44 N.M. at 541, 105 P.2d at 498-99, and Johnson v. Weast, 1997-NMCA-066, ¶ 20, 123 N.M. 470, 943 P.2d 117. Hughes and Johnson support reversal and should be followed.
{82} In Johnson, the Court analyzed whether the actions of the defendant, a drug inspector for the New Mexico Board of Pharmacy, constituted the initiation of criminal proceedings against the plaintiff. At the request of an assistant district attorney, the defendant submitted an investigative report regarding the plaintiff. The report was used as the basis for grand jury proceedings. Id. ¶ 17. The fact the report stated “Complaint against Bill Johnson” as part of the printed Pharmacy Board form was determined by this Court not to rise to the level of a criminal complaint under the rules of criminal procedure. Id. One significant aspect of Johnson is this Court’s determination that the defendant’s report was “simply gathering information which may lead to probable cause, a determination to be made by someone else, such as the police, the prosecutor, or the grand jury.” Id. ¶ 13. Yet, in Johnson, the defendant gathered information regarding the plaintiffs issuing forged prescriptions, “took this information to [the] Assistant District Attorney,” pro-' ceeded then at the assistant district attorney’s request to conduct further investigation and to provide a written report, and wrote in the report that the plaintiff was “a target of an investigation” and concluded in the report that “the case remain ‘open pending further investigation.’ ” Id. ¶¶ 2, 3. The assistant district attorney used the report to obtain an indictment against the plaintiff and to arrest him, and the defendant then testified against the plaintiff at the criminal trial. Id. The charges against the plaintiff were later dismissed when evidence was suppressed. Id. ¶ 4.
{83} The defendant in Johnson appears to have gone beyond anything Weststar did in the case before us. Yet no evidence existed that “the [assistant district attorney] was influenced or pressured by [the][d]efendant ... into bringing an indictment.” Id. ¶ 20. The defendant’s initiation of the process, by taking information to the assistant district attorney, and continuation of the investigation at the assistant district attorney’s request, “[did] not initiate proceedings so as to give rise to a malicious prosecution claim, [where] the decision to proceed [was] left to the discretion of ... the prosecutor and the absence of falsity allows the prosecutor to exercise independent judgment.” Id. I respectfully submit we should take our cue from Johnson, not from Kurschus and Conway.
{84} In Hughes, a malicious prosecution action, the defendant, a victim of theft, gave information to the officers regarding the plaintiff and signed a criminal complaint against the plaintiff at the request of law enforcement officers. The New Mexico Supreme Court held the defendant did not initiate the criminal proceeding, because “ ‘[t]he exercise of the officer’s discretion makes the initiation of the prosecution his own and protects from liability the person whose information or accusation has led the officer to initiate the proceedings.’ ” Id. at 538, 105 P.2d at 497 (quoting Restatement of the Law of Torts, § 653(g)). It was of no concern to the Court that a defendant “sign[ed] the complaint which puts in motion the prosecution.” Id. at 539, 541,105 P.2d at 497,499.
{85} The court in Hughes looked at all inferences to be reasonably drawn from the facts in support of the plaintiffs claim, and then proceeded to reverse the verdict for the plaintiff, holding the trial court erred in overruling the defendant’s motion for a directed verdict. Id. at 537, 542,105 P.2d at 496, 499. Hughes is important not only for its holding but for its statements of policy and law.
If we are to have prosecutions of law violations only at the very great hazard of unreasonably subjecting the complaining witness to the expensive ordeal and uncertain results of suits for damages if convictions not be obtained, we then approve a rule which thwarts justice upon the very threshold of its entrance. Few men would take the chance and invite such a suit, even though they would otherwise be boldened to advocate and uphold law and order. Their attitude could very properly be, ‘let the other fellow do it.’ The policy of the law is not, as it should not be, unreasonably to deter those who know of breaches of the law from complaining against the offenders.
“This kind of suit, by which the complainant in a criminal prosecution is made liable to an action for damages, at the suit of the person complained of, is not to be favored; it has a tendency to deter men who know of breaches of the law, from prosecuting offenders, thereby endangering the order and peace of the community.”
The policy of the law in this respect has not changed through the centuries. We have like expressions and find like support for such a policy in the cases down through the years and to the very present tithe.
Id. at 540-41,105 P.2d at 498 (quoting Cloon v. Gerry, 79 Mass. 201 (1859)). I respectfully submit we should follow Hughes, not Kurschus and Conway.
E. Non-Issues
{86} Weststar raises, and the majority therefore discusses, what in my mind»are non-issues. The arguments stem from De-Vaney. One is probable cause. The second is the manner in which the criminal proceedings were terminated. The third relates to an aspect of misuse of process. These issues have no applicability or bearing on this case. or its outcome.
1. Probable Cause (Majority Opinion ¶¶ 27-35)
{87} Weststar argues probable cause because DeVaney discusses it. The trial court instructed on it, although it should be noted that the trial court did not state what proba-' ble cause was required. Weststar argues, and the majority reiterates, a requirement of probable cause to believe Jackson was guilty of a criminal offense. Majority Opinion ¶¶27, 30, 32. Probable cause to believe Jackson was guilty of a criminal offense is a false issue in this case, and needs little, if any discussion.
{88} DeVaney is an important guideline for our new tort of malicious abuse of process, but certain statements in DeVaney should be limited to DeVaney circumstances, and the “probable cause” issue and discussion in DeVaney is one of those. DeVaney involved an underlying civil action, not 'a citizen-victim seeking access to law enforcement authorities. Citizens who go to the police to report facts are not required to develop a belief that amounts to probable cause that a crime has been committed. They need only fairly report (disclose) the facts. Hughes, 44 N.M. at 541, 105 P.2d at 499; Zamora, 106 N.M. at 632, 747 P.2d at 927. It is up to law enforcement officers and district attorneys to proceed if they determine a crime has been committed.
{89} Furthermore, even under DeVaney’s analysis, a procedural impropriety, as opposed to lack of probable cause, may be shown as a means of demonstrating DeVaney’s second, or misuse of process, element. 1998-NMSC-001, ¶¶ 21, 22, 28, 124 N.M. 512, 953 P.2d 277. In the present case, if one of the two means were required to be selected to prove the misuse of process element, only the procedural impropriety means is applicable.
{90} Weststar’s decision to tell Boutelle that it wished to proceed was not based solely on the letter from Jackson’s lawyer, but on the entire set of circumstances. See Majority Opinion ¶ 32. Weststar’s belief that Jackson was holding on to money that he had no right to hold on to and that it appeared he did not intend to return the full amount was objectively reasonable as a matter of law. That is the issue. It is not whether Weststar had probable cause to believe a crime had been committed. The jury had no business considering (if it did) whether a reasonable person would or would not have believed that Jackson was guilty of a criminal offense.
{91} Under this probable cause non-issue, the majority raises and discusses another non-issue, misleading information. Misleading and incomplete information have never been an issue below. They were not argued. The jury was not given the issue, and it had no basis on which to get into that question. Boutelle did not testify that any information or statement he received was misleading. No evidence exists of any concern on his part or on the part of the district attorney about the accuracy or reliability of any information or statement. No evidence exists that any purported incorrect information was in any respect material to the decisions of Boutelle, the district attorney, or the magistrates. Even were this an issue, I respectfully disagree with the majority that Weststar gave Boutelle misleading information, much less material, misleading information on which Boutelle or the district attorney relied. Majority Opinion ¶¶ 33-35. I further respectfully disagree with the majority’s conclusion that a jury could find the beliefs of the district attorney and the magistrates were based on incomplete knowledge of material facts known to Weststar. Majority Opinion ¶ 33.
{92} The majority discusses controverted evidence concerning the location of the money in Jackson’s hands and whether he intentionally placed it out of Weststar’s reach. Majority Opinion ¶¶ 23, 34, 37-38. The issue in this case is not whether Jackson had the money in one account or another. The issue is not whether Jackson acted with intent to commit a crime or committed a crime. The only valid issue relating to probable cause is whether Weststar reasonably believed the facts it presented to Boutelle were true. Whether Weststar had such reasonable belief was not questioned or at issue. In addition, whether the beliefs of the district attorney or the magistrates were based on incomplete knowledge or on false statements was not an issue. It was not argued. It was not before the jury for consideration.
{93} Citing DeVaney, 1998-NMSC-001, ¶ 41, 124 N.M. 512, 953 P.2d 277, the majority holds the question of probable cause is properly for the jury where the facts are in dispute. Majority Opinion ¶29. DeVaney states “[t]he existence of probable cause is a matter of law and shall be decided by the trial judge.” 1998-NMSC-001, ¶ 41, 124 N.M. 512, 953 P.2d 277. DeVaney also says where unresolved disputed facts material to the issue of probable cause exist, the court is precluded from resolving the issue as a matter of law. Id. DeVaney relies on Leyser v. Field, 5 N.M. 356, 362-63, 23 P. 173, 174 (1890), and the Restatement (Second) of Torts § 681B(l)(c). Leyser quoted ‘the celebrated case of Sutton v. Johnson’ in which the rule was thus laid down:
“The question of probable cause is a question of law and fact. Whether the circumstances alleged to show probable cause are true, and exist, is a matter of fact; but supposing them to be, whether they amount to probable cause, is a question of law.”
Id. at 362, 23 P. at 174. “This doctrine is generally adopted.” Id. “We know that what facts or circumstances amount to probable cause is a question of law for the court.” Hughes, 44 N.M. at 542, 105 P.2d at 499.
{94} I will leave unaddressed for now the apparent lack of clarity on the question of whether the court or the jury decides whether probable cause exists. The decisive point is' that, even were Weststar’s reasonable belief at issue in this case, no evidence exists to place Weststar’s objectively reasonable belief as to the circumstances in dispute. On that question, Weststar passes muster as a matter of law.
2. Jackson’s Guilt and Termination of Criminal Proceedings (Majority Opinion ¶¶ 36-38)
{95} Weststar raises issues of Jackson’s guilt and termination of the proceedings. These issues require very little discussion. The manner in which the criminal proceedings were terminated is useful, if at all, only to complete a picture. The criminal prosecution was dismissed. While the dismissal was not based on acquittal, it was nevertheless a good outcome for Jackson. That favorable outcome, however, “is not an element of an action for malicious abuse of process.” DeVaney, 1998-NMSC-001, ¶ 23, 124 N.M. 512, 953 P.2d 277. The evidence has no bearing one way or the other on the outcome of this case. Further, whether Jackson was guilty or not is irrelevant. That a jury could conclude Jackson was innocent of the crime of larceny is irrelevant. Whether the deprivation of the money was intended to be permanent or not is irrelevant. Even were it relevant, the belief that Jackson intended a partial or indefinite deprivation came from the entirety of the circumstances, not just from the movement of the funds from a certificate of deposit.
{96} Furthermore, the parties’ disagreement over whether the conduct was at most a civil conversion or constituted criminal theft of mis-delivered property is of no consequence. The important point is that Jackson took advantage of mistakenly credited funds by forming an intent to keep a portion of the money with no justification or even arguable justification for doing so. Public policy does not fault Jackson for his initial query about what he should do with the funds. Public liey commands that, upon reflection, he ..store the funds to the owner, without first ■ausing the owner to have to resort to civil áction or to report the circumstances to law enforcement authorities. The dishonesty arose when Jackson decided he could get away with keeping a part of the money even though it belonged to someone else.
3. Misuse of Process (Majority Opinion ¶¶ 39-41)
{97} It appears that this “misuse of process” point is meant to support the DeVaney element of “an act by the defendant in the use of process other than such as would be proper in the regular prosecution of the claim.” Majority Opinion ¶ 17.; The trial court specifically instructed on this element. While the element might fit the circumstances in DeVaney, it does not fit, nor is it essential to, this case. This misuse of process point in the majority opinion is little different than the next point in the opinion regarding primary motive. Majority Opinion ¶¶ 42-43. For affirmance, both points rely on proof of the threat of use, and use, of the criminal prosecution to compel Jackson to return the money he held. The majority’s opinion does not distinguish between the second and third DeVaney elements. See Conway, 635 N.E.2d at 271 (stating that malicious prosecution and abuse' of process, although distinct torts, have “the common ingredient of an improper purpose”).
F. The Conduct of Jackson, His Lawyer, and the Authorities
{98} I understand that our main focus is to be on the side of this story pertaining to Weststar’s actions. We cannot, however, fail to take the conduct of others into consideration. We should not exclude Jackson’s and his lawyer’s conduct and the officer’s and district attorney’s actions in our analysis. Jackson’s and his lawyer’s conduct and the authorities’ actions strengthen my view that Weststar cannot be saddled with initiation or procurement of the prosecution.
{99} By use of the very broad rule that one cannot use the criminal process to collect a debt, Jackson was able to obtain a verdict of $50,000 compensatory and $150,000 punitive damages. Looking at the actions of those involved, one wonders how could this occur. Jackson was clearly a wrongdoer with an improper motive. He never expressed, and has never shown, the slightest colorable or arguable basis on which to keep Weststar’s money. Jackson’s wife, a bank employee, testified the money was to be returned when the certificate of deposit matured, and that she “never felt like the money was ours. I felt like it should be returned.” There was no question in Mrs. Jackson’s mind that all of the money needed to be returned. Jackson’s lawyer was Jackson’s agent, if not his accomplice, perhaps pushing Jackson into, and unquestionably supporting Jackson’s wrongful conduct. The two of them set this mess in motion.
{100} The law enforcement official, if anyone at all, mishandled the procedure during the investigation stage. Right or wrong, it is the law enforcement officer or district attorney that chooses to await a citizen’s attempt to obtain return of wrongfully held money or property before launching a police investigation. It is the law enforcement officer or district attorney who then decides to investigate or not. Following an investigation, it is the responsibility of the law enforcement officer and district attorney and whatever magistrates are required to be involved to determine whether probable cause exists to arrest and prosecute. If this is not so, our society is in trouble.
{101} Weststar, caught up in this tangled web of bad judgment, was turned into a wrongdoer rather than a victim. Those who initiated and created the circumstances for harm managed to turn this case on its head.
{102} The following circumstances simply cannot be disputed: Jackson made a decision not to return all the money, but rather to negotiate return of only a portion of it. We do not know whether he may have returned it all if “push came to shove” at some point. However, his unmistakable intent at the time of Boutelle’s and the district attorney’s institution of the criminal proceeding, as well as at the time of Weststar’s institution of a civil proceeding, was to continue to hold the money. Jackson was holding the money, not returning it, and giving all indications that this was, indeed, his “lucky day.” He thought he could get away with negotiating and give up only a portion of the money. Jackson claimed no right, neither colorable nor arguable, to justify keeping any of the money. These were the circumstances confronting Weststar and law enforcement authorities. It is noteworthy, too, that Jackson eventually paid the money back after the criminal action was dismissed. That action was dismissed because the prosecution did not obtain Norwest documents before the deadline to take the case to trial.
II. Misuse of Process/Primary Motive
{103} The majority “conclude^] the evidence was sufficient to support a finding that Weststar used the criminal prosecution ... to compel Jackson to return the money.” Majority Opinion ¶41. This conclusion is based on Boutelle’s conversation with Jackson’s lawyer while a Weststar employee was present. Id. I respectfully disagree with the majority that “[g]iven the facts of this case, a reasonable jury could conclude that Boutelle was acting on behalf of Weststar and therefore Weststar should be charged with Boutelle’s action,” and that “Weststar [is] to be charged with all conduct it initiated or procured.” Id. Based on Boutelle’s telephone conversation with Jackson’s lawyer while a Weststar employee was present, the majority makes Weststar the responsible and controlling party not only for choosing the option given it by Boutelle to give the “go ahead,” but for Boutelle’s statements to Jackson’s lawyer, for the criminal complaint, and for the district attorney’s decision to prosecute. No evidence exists in the record that Weststar asked Boutelle to call Jackson’s lawyer on Weststar’s behalf or that Boutelle and Weststar’s employee had any conversation regarding what he was to say to Jackson’s lawyer. A citizen-victim who is merely sitting in a police officer’s office cannot be held derivatively responsible for the officer’s actions and statements.
{104} The majority also “concluded] that substantial evidence supports the jury’s finding that Weststar acted with an improper motive.” Majority Opinion ¶ 43. Scrutinized by the watchwords discussed at the banning of this dissent (¶¶ 59-60), I do not think Jackson met his burden. The majority’s conclusion is based on Weststar’s saying it wanted its money back and would prefer to avoid a criminal trial, and because Weststar “would and could have dropped the criminal charges had Jackson repaid the money.” Majority Opinion ¶43. But Weststar brought no “criminal charges.” Boutelle and the district attorney brought the charges. No evidence exists Weststar would have been able to “drop” any charges. Before it was clear to Weststar it would not be receiving its money, Weststar would have preferred to avoid a criminal trial. That Weststar later indicated it no longer wanted to avoid a criminal trial does not,.as a matter of law, tip the scale to provide substantial evidence of a primary improper motive.
{105} Unable to obtain the return of the money through lawful requests, Weststar indicated its willingness to have the criminal matter go forward. Soon afterward, Wests-tar filed its own civil lawsuit, reflecting a motivation to collect through a civil lawsuit, leaving the pursuit of criminal charges and prosecution to the independent discretion, responsibility, and control of the law enforcement authorities, and leaving the vicissitudes and unpredictable ■ outcome of the criminal process to those responsible for the prosecution. At no time did Weststar use the facts that Boutelle filed a complaint or that the district attorney succeeded through a preliminary hearing to bind Jackson over for felony prosecution to threaten Jackson or extract the return of the monies.
III. What Precedent to Set
{106} In criminal prosecution cases, more than occurred here can be shown to send the issue of malicious abuse of process to the jury. I might look at this case differently if Boutelle or the district attorney had testified about some undue influence or pressure or that they were materially misled in some manner, or if there had been independent evidence of such conduct. I might read the circumstances differently if there had been a statement made by Weststar to Jackson that could be construed as a threat it would use the criminal process to get its money back. Here, no such statement was ever made. Boutelle could not say Weststar wanted the criminal case to proceed for the purpose of leverage to help get the money back.
,{107} The majority opinion paves the way toward making it a jury issue whenever a victim of wrongful, unlawful action goes to the police, files a civil action, and cooperates with the authorities in an ensuing criminal prosecution. It appears no mention can be made between citizen and authorities regarding what may occur if the alleged perpetrator were to return the money or property being wrongfully held, except at the risk of going to trial for malicious abuse of process.
{108} The important precedent to set is that citizens can feel free to go to the police with facts that show wrongful, possibly criminal conduct. See Zamora, 106 N.M. at 634, 747 P.2d at 929 (“A citizen, without fear of liability, may report information to the authorities upon mere suspicion.”). The police and district attorney should decide whether and to what extent to investigate. That investigation might include talking with the alleged wrongdoer. In that conversation the authorities should make no threat. However, in the real world, that conversation with the wrongdoer could well turn to the question of giving back what the alleged wrongdoer has received or taken, and might also cause the officer to discuss with the reporting citizen-victim whether the citizen wants to continue to pursue the matter if the property or money is returned. The officer might discuss with both sides the extent of the investigation and how the results may relate to a criminal statute. In the real world, law enforcement, wrongdoer, and victim understand this give-and-take may occur. Reporting citizens might, broach the question of getting the money or property returned as part of the citizen’s initial conversation with the officer. • The police may raise it first. The police should discuss the fact they are not collection agents. The authorities can, and do, distinguish between contractual obli-, gations and criminal dishonesty, refusing to act in the former when contract debt is apparent, and investigating when criminal dishonesty is apparent. In those cases presenting reasonably arguable criminal conduct, the police may want to screen the matter by asking whether, if the citizen receives back what was taken, the citizen has an interest in a continued investigation, arrest, and prosecution. Unless abused by irresponsible or corrupt authority, this process can be good business for all parties, including the State, with no harm to the health, safety, or welfare of society, and justice still done.
{109} Boutelle, Jackson’s own witness, testified about his separate conversations with Jackson and with Jackson’s lawyer. In this trial examination, Jackson’s trial counsel sought to show a process that implicated Weststar as the initiator and procurer of the criminal prosecution. Boutelle’s testimony is significant on several fronts. I therefore set it out, lengthy as it is, in an appendix to this dissent. In summary, Boutelle describes his “common practice” and his “job” to try without threat and coercion to resolve this type of criminal circumstance before arrest and prosecution. He also describes his practice in such cases of talking to the victim about whether the victim wants to continue with the matter if the money in question were returned. Boutelle makes it clear that he and the district attorney can override, and have several times overridden, a victim’s decision not to cooperate and continue with a prosecution if they feel it is in the best interest of the State. Yet, the authorities are busy and their docket is full. When the victim changes his or her mind about proceeding, Boutelle explains this to the district attorney. The district attorney often decides not “to mess with it if they don’t want it.” Boutelle testified he gave Weststar “the right to protest and say, ‘well, let’s not go any further,’” while at the same time making sure to clear up any misconception that the prosecution was for the purpose of getting the money back. Boutelle testified he could not take into consideration any payment back; it was irrelevant. “If Mr. Jackson had paid the money back, that would not change my pursuit of the criminal case.” Boutelle further testified, “All indications were that [Weststar] intended to go through with this.”
{110} Boutelle’s testimony in the appendix is important because it shows his manner of approaching a citizen-victim’s concern about the conduct of a wrongdoer. It shows his rationale behind the approach. It indicates the thinking of a citizen-victim.
{111} The police and district attorneys are often overloaded with reports and investigations. From their point of view, there exist certain cases in which the best result is one in which an investigation might be shortened and a prosecution deemed unnecessary without harm to the system of justice, where a victim is happy with the return of the property or money.
{112} As for the citizen-victim, it is in our human nature to want to see criminal wrongdoers prosecuted. At the same time, it is in our human nature to forgive when the offender sincerely atones. And when an offender sincerely atones, it is often in our human nature not to want to see the offender prosecuted. It is not outside the nature of ordinary citizens to think in the following-terms: If the offender apologizes and returns the goods, I’d just as soon not have him prosecuted; and if the offender fights, then I’d just as soon see him prosecuted. These entirely natural human reactions and emotions should not subject the citizen to substantial tort liability. Something more is required before allowing a jury to infer a malicious and improper use of process and a malicious and improper motive.
{113} The system turns bad when threats of criminal prosecution are made by citizens or authorities as leverage for action, or when evidence is presented showing the authorities are acting based on improper influence or motive. The system is misused when the citizen really does act with malice and ulteri- or motive and without reasonable basis, intentionally misleads the authorities, or exerts undue pressure or improper influence on a police officer or district attorney to the extent the law enforcement authority no longer exercises independent discretion and judgment as to whether to prosecute someone.
{114} In the ease here, the evidence fails as a matter of law to reach the level of initiation or procurement by Weststar of the criminal prosecution of Jackson. The evidence also fails as a matter of law to constitute sufficient evidence for jury consideration of primary improper motive. I would reverse the jury verdict and judgment.
Concurrence in Part
{115} I concur in the majority’s holding that NMSA 1978, § 56-8-4(A) (1993) requires a trial court to apply post-judgment interest to an award of punitive damages.
APPENDIX
Boutelle’s Call With Jackson
A. ... I left a message ... for [Jackson] ... and he had returned the call. This was long before I came to completion of this case. And he acknowledged to me that, yes, he had received the money and he was told by [Jackson’s lawyer] it was his. And man to man I spoke to Mr. Jackson and said, ‘He is leading you wrong. He is telling you wrong, and I hate to see you get in trouble for something because this attorney is leading you down the road.’
I said, ‘There is a good possibility that, you know, you could be charged criminally with this because they have filed a complaint against you.’
I said, T will have to do my job. You know, is there anything we can do to resolve it?’ I try to make that common practice. When I have a suspect accused of a similar nature-type crime, I call them and interview them, and say is there something we can do to resolve this before you have to get arrested and go to jail.
Q. Is there something Mr. Jackson could have done to not get arrested and not go to jail?
A. I don’t threaten. I don’t coerce. I don’t try to intimidate. All I do is give an offer of a way out of this mess and say, ‘Listen, I don’t like putting people in jail. I don’t like arresting people. I have to do my job,’ and I offered the same to him. I said, ‘Is there any way that we can resolve this so that I can get back with the complainant and find out if we can close this matter out?’
Q. What could Mr. Jackson have done to close this matter out?
A. My suggestion to him was if he felt it reasonable to take and return the monies back to Weststar, and then file a complaint through the civil courts if he really felt the money was justified. There are legal ways of doing that. I offered the same to [Jackson’s lawyer], but I got laughed at by [the lawyer].
Q. And the deal was pay the money back and there would be no criminal prosecution?
A. It was an option. It was an offered option.
Q. And that was based upon your understanding of what the alleged victim wanted to do?
A. I believe I could talk [to] the victim — not in that term, not talk the victim out of it, but I would consult with the victim, and say, ‘Listen, you know, I understand Mr. Jackson paid the money back. From our initial contact, are you sure your attorneys and your supervisors want to continue with this? Let me know and we can go from there. I can close this out. It doesn’t hurt my feelings any, you know.’
Boutelle’s Call With Jackson’s Lawyer
Q. The third sentence [of the report] you [Boutelle] write that you advised [Jackson’s lawyer] you would be working a criminal intent investigation against [Jackson] if they refused to work with the victim. Did you write that?
A. Yes, I did.
Q. And that’s what you told [Jackson’s lawyer], right?
A. Yes.
Q. And Ms. Lynch was present when you told him that?
A. Right.
Q. And that’s the way the whole thing played out, right?
A. Well, yes. It is my job. She came with a complaint to investigate it. She asked for my assistance to investigate. I advised [Jacksons’ lawyer] that, you know — he was getting ugly with me on the phone. So I said, ‘... come on let’s be reasonable. Don’t be stupid here. I think you are advising your client wrong.’
I said, You know, from what I see here initially there is already enough for me to pursue this further.’
I said, You know, I’m going to have to do this unless I’m called off of it because it has been resolved before I get to that point.’
Q. Why would you be called off?
A. Well, when I get completed with an investigation, there’s an unwritten rule that we take everything to the district attorney[’s] office for their review and approval, make sure that I’ve done all of my work properly and they are agreeable to go ahead and continue prosecution, because the district attorney is ultimately responsible for the criminal trial.
Once I review it with them, I get either the okay or the no, we won’t take it, answer from them. Should I even get to that point, and the victims come through and say, Well, we’ve changed our mind. We don’t want to continue with this any further.’ I go back to the district attorney and say, ‘Listen, this is what we have. The victim really does not want to pursue it any further.’ The majority of the time the district attorney says, ‘Fine, we’re busy. Our docket is too [full]. We don’t want to mess with it if they don’t want it.’ Because we’re there for the victims, and to make the crime right, okay.
We can override that and use the victim as a hostile witness if we need to, if we feel it is in the best interest of the state. We have done that several times, but the majority of the time we say, ‘Okay, listen it is not my time ticking. If you don’t want it done, I’m not going to waste my time, and the state’s time and all of the money and expense of going to trial. You know, fine. We’ve got the problem corrected, and we’ll dismiss it.’
Q. And what was — in your initial meeting with Ms. Lynch, what was your understanding of the intent of Weststar as it relates to criminal prosecution, whether to proceed or not?
A. All indications were that they intended to go through with this.
Q. Was there any event that could have happened that would have, in your mind, in your impression of Ms. Lynch, that would have led them not to go through with this?
A. I explained to her the same thing I explained to you, that at any time should there be any question about this, you know, that they would have the right to protest and say, ‘Well, let’s not go any further.’ At the same time I explained that we are not a collection agency. Most people have that misconception. They come in and say, T want you to prosecute this guy because I want my money back. I want my property back.’
I say, ‘I’m sorry. We can’t do that.’ Hopefully, the Court, if a criminal prosecution is successful the courts can order that the defendant pay restitution, but that is not part of my job to see that happen.
Q. Did you have any sense from Ms. Lynch as to whether the payment or nonpayment of Mr. Jackson of the debt that was claimed would have any effect on Weststar’s decision to prosecute?
A. Well, there is always that possibility. This is what I explained to her, that I could not take into consideration any of the payment back to the company, as far as my actions. That was irrelevant. If Mr. Jackson had paid the money back, that would not change my pursuit of the criminal case. Only the representative’s decision not to continue with criminal prosecution for whatever their reasons were, and just say, ‘Okay we’ve had enough. We don’t want to go no further. Please drop it.’ I would say, ‘Fine.’