## Facts

- Union National Bank of Little Rock loaned money to Edward Kutait to finance a furniture business; Dr. Kemal Kutait guaranteed part of the loan and served as a director.
- After disputes, the business entered bankruptcy, and Edward Kutait and others filed a federal lawsuit against the Bank seeking substantial damages and alleging fraud.
- During discovery in the federal case, the Bank deposed Dr. Kutait and learned he was financially supporting his brother.
- Shortly thereafter, the Bank sued Dr. Kutait in Arkansas state court seeking $5 million, alleging breach of guaranty, fraud, tortious interference, and breach of fiduciary duty as a director.
- Dr. Kutait asserted the claims were time-barred or factually baseless and caused him distress due to allegations of dishonesty and the large demand.
- In negotiations, the Bank’s counsel allegedly offered to dismiss the state suit if Dr. Kutait would influence his brother to drop the federal case; Dr. Kutait refused.
- The Bank voluntarily dismissed its lawsuit against Dr. Kutait.
- Dr. Kutait then sued the Bank for malicious prosecution and abuse of process based on the Bank’s lawsuit and alleged bargaining tactic.

## Issues

1. Whether the Bank committed abuse of process where it filed and later dismissed a civil action, and allegedly used dismissal as leverage to influence dismissal of a separate federal lawsuit, but no post-filing process was shown to have been issued and misused.
2. Whether evidence of an ulterior motive, without a willful improper act using issued process during the proceeding, is sufficient to support an abuse of process verdict.

## Decision

- The trial court directed a verdict for the Bank on malicious prosecution, finding the Bank had probable cause to initiate its earlier suit.
- The jury returned a verdict for Dr. Kutait on abuse of process, and judgment was entered for him.
- The Arkansas Supreme Court reversed the abuse of process judgment and dismissed the case.
- The court held the evidence was insufficient as a matter of law because abuse of process requires misuse of process after its issuance, and no such post-issuance misuse was proved.

## Legal Principles

- Abuse of process requires: (1) a legal procedure set in motion in proper form; (2) a perversion of the procedure to accomplish an ulterior purpose not designed for the process; and (3) a willful act in the use of the process not proper in the regular conduct of the proceeding.
- The tort focuses on improper use of process after issuance; it does not depend on absence of probable cause (unlike malicious prosecution).
- An ulterior motive or improper reason for filing suit, standing alone, does not establish abuse of process.
- A plaintiff must show a definite improper act or threat using issued process to seek an objective not legitimate in using that process; mere filing and dismissal of a complaint, without more, is insufficient.

## Conclusion

The Arkansas Supreme Court held that abuse of process is not proven by showing that a lawsuit was filed to pressure an opponent; the plaintiff must show misuse of process after it is issued, and because no such post-filing use of process was shown, the verdict for abuse of process was reversed and the action dismissed.


Union Nat’l Bank of Little Rock v. Kutait, 312 Ark. 14, 846 S.W.2d 652 (Ark. 1993)