## Facts

- Dana Schiesser managed a convenience store owned by South Arkansas Petroleum Co., Inc. (SAPCO).
- SAPCO’s officers (Clint and Jim Johnson) reviewed store “overring” records and concluded about $7,809 was missing, blaming Schiesser.
- SAPCO reported its suspicions to police and the county prosecutor and supplied daily report documents.
- SAPCO failed to disclose material exculpatory facts, including that some reports attributed to Schiesser were dated when she was out of state or out of the country, and that some repeated loss figures appeared implausible given store sales.
- Based largely on SAPCO’s submissions, police obtained a warrant and the prosecutor filed theft charges against Schiesser in July 1997.
- Schiesser was acquitted at trial for lack of evidence.
- Schiesser sued SAPCO for malicious prosecution and abuse of process, alleging SAPCO initiated the prosecution through misleading omissions and used the criminal case to coerce repayment.
- A jury awarded Schiesser $110,000 compensatory damages and $250,000 punitive damages; SAPCO appealed.

## Issues

1. Whether substantial evidence supported the jury’s finding of malicious prosecution, including that SAPCO instituted the criminal proceeding, lacked probable cause, and acted with malice.
2. Whether substantial evidence supported the jury’s finding of abuse of process based on use of criminal process for an ulterior purpose (coercing repayment) after process issued.
3. Whether SAPCO could invoke an advice-of-counsel/advice-of-prosecutor defense despite not fully disclosing all material facts.
4. Whether collateral estoppel or any prior probable-cause determination barred relitigation of probable cause in the civil action.

## Decision

- The Supreme Court of Arkansas affirmed the judgment for Schiesser.
- Substantial evidence supported that SAPCO procured and instituted the criminal charges because authorities acted largely on SAPCO’s incomplete and misleading presentation.
- Substantial evidence supported the jury’s finding of no probable cause; disputed and selectively presented facts made probable cause a jury question.
- Malice was inferable from lack of probable cause and from evidence that SAPCO pursued prosecution to pressure repayment.
- Substantial evidence supported abuse of process because SAPCO used the criminal case as leverage to collect money, an ulterior objective outside proper criminal process.
- SAPCO’s advice-of-counsel/advice-of-prosecutor defense failed because it did not make a full, fair, and truthful disclosure of all known material facts.
- Collateral estoppel did not apply; issuance of a warrant or charging decision did not conclusively establish probable cause for a later malicious-prosecution claim, especially where those decisions may have been influenced by SAPCO’s omissions.

## Legal Principles

- Malicious prosecution requires: (1) a proceeding instituted or continued by defendant; (2) termination in plaintiff’s favor; (3) absence of probable cause; (4) malice; and (5) damages.
- A private complainant may “institute” a prosecution when it procures charges by supplying information that materially misleads authorities, including through significant omissions.
- Probable cause depends on the facts and circumstances surrounding commencement and continuation of the proceeding and asks whether a person of ordinary caution would believe the accused guilty; when facts are disputed, probable cause is ordinarily for the jury.
- Malice may be inferred from lack of probable cause and from circumstances indicating an improper motive.
- Advice-of-counsel (including prosecutorial advice) is a defense only if the defendant makes a full, fair, and truthful disclosure of all known material facts and acts in good faith on the advice.
- Abuse of process occurs when valid process is used for an ulterior purpose; using criminal proceedings to coerce payment of money is an improper use of process.

## Conclusion

The court upheld the jury’s findings that SAPCO initiated a theft prosecution through misleading omissions, lacked probable cause, and acted with an improper motive, and that it used the criminal process as leverage to obtain repayment; SAPCO could not avoid liability by pointing to the prosecutor’s charging decision because it had not fully disclosed material facts.


South Arkansas Petroleum Co. v. Schiesser, 36 S.W.3d 317 (Ark. 2001)