First Commercial Bank, N.A. v. Kremer

• Decision Date: 27 April 1987
• Docket Number: No. 86-263,86-263
• Citation: 728 S.W.2d 172,292 Ark. 82
• Parties: FIRST COMMERCIAL BANK, N.A., Appellant, v. Bettye A. KREMER, Appellee.
• Court: Arkansas Supreme Court

Page 172

728 S.W.2d 172

292 Ark. 82

FIRST COMMERCIAL BANK, N.A., Appellant, v. Bettye A. KREMER, Appellee.

No. 86-263.

Supreme Court of Arkansas.

April 27, 1987.

Friday, Eldredge & Clark by C. Tab Turner, Little Rock, for appellant.

Robert C. Newcomb, Little Rock, for appellee.

NEWBERN, Justice.

This appeal is from a judgment, based on a jury verdict, holding the appellant liable in a malicious prosecution case. The appellant contends first that the evidence is insufficient to support the verdict. Second, the appellant claims the court erroneously refused to instruct the jury that if in this action the jury found the appellee to have been guilty of the criminal offense with which she was previously charged because of the appellant's allegations, it should find for the appellant. The third point is that the punitive damages awarded are so large as to shock the conscience of the court and should be reduced or a new trial granted. We affirm, as we find the jury's verdict was supported by substantial evidence, the instruction proffered was not a sufficient statement of the law, and the jury's verdict was not so large as to shock the conscience of the court.

In a case in which a defendant's directed verdict and judgment notwithstanding the verdict motions were denied and it is contended that the evidence was insufficient to support the plaintiff's claim, we view the evidence in the light most favorable to the plaintiff. If we find any evidence sufficient to warrant the verdict, we affirm the trial court's refusal to direct a verdict. Higgins v. Hines, 289 Ark. 281, 711 S.W.2d 783 (1986); Downey v. Jones Mechanical Contractors, 273 Ark. 207, 619 S.W.2d 614 (1981).

The appellee is a recovering alcoholic who, after six months of sobriety, engaged in a serious drinking bout. In a very intoxicated condition she called a friend, Ms. Bruno, for help. Ms. Bruno called Arkansas Rehabilitation Institute (ARI) and learned that the appellee could be admitted there but would have to bring $400 as a deposit, pending confirmation of insurance coverage, to pay for her stay at ARI. Ms. Bruno made out a check for $400 on the appellee's account and had the appellee sign it. In the process of having the appellee admitted to ARI, the check apparently was displayed, but Ms. Bruno left the facility with the check after the appellee had been admitted. The check Ms. Bruno testified she filled out is not the one which became the subject of this litigation. The appellee checked out of ARI the following day. Sometime later, she discovered that a $400 debit, not shown in her personal check records, had been made on her checking account at the appellant bank. At her request, the appellant mailed her the check representing that debit. It was a check to ARI, but the appellee did not recall having made any such check to ARI, and she concluded some other person had signed her name. Her conclusion was based on the signature, which she did not recognize as her own, and particularly on the fact that the middle initial "K" was used rather than her middle initial which is "A." The check introduced into evidence showed the appellee's name printed on the check form as "Bettye K. Kremer" and signed "Bettye K. Kren er." The printing apparently had been done erroneously, as it was undisputed that the signature card on file with the appellant showed the signature as "Bettye A. Kremer."

After concluding there had been a forgery of her signature, the appellee called the appellant and spoke with an employee who explained that the appellee would have to make out an affidavit that the check had been forged in order to receive credit for the $400. The appellee signed the affidavit which stated that the signature on the check was not hers, that the check was made without her knowledge and consent, that she never received any benefit or value for the check, and that she had not presented it for negotiation or payment. The appellant's employee helping the appellee asked if she knew who would forge a check on her account to ARI, and the appellee replied that she had been at ARI over the weekend.

The appellant then placed the matter in the hands of its employee David Butler. Mr. Butler called ARI and spoke with Ms. Hoppis who told him she had seen the appellee sign the check. He then compared the signature on the check with that on the signature card and noted that the middle initials were different. Mr. Butler then took the matter up with Detective Matlock of the Little Rock Police Department. At Detective Matlock's request, the appellee provided handwriting samples for comparison purposes, and an analysis was done by the State Crime Laboratory which concluded that it could not identify the writing contained in the signature on the check. Detective Matlock attempted to speak to Ms. Hoppis but was told she could not speak with him because of the institute's policy of confidentiality. He then spoke with Deputy Prosecutor Cairns who advised him that no criminal charges should be filed, but the matter should be handled as a civil suit. Detective Matlock reported the results of the handwriting analysis to Mr. Butler. He told Mr. Butler that he and Mr. Cairns felt there was no criminal prosecution evidence, and further that he thought that Ms. Hoppis had written the signature on the check with no criminal intent but had done so just to help the appellee. Mr. Butler disputed Detective Matlock's testimony, saying Matlock did not inform him of Mr. Cairns's recommendation.

Mr. Butler then spoke to another deputy prosecutor, Mr. Douglass. In discussing the case with Mr. Douglass, Mr. Butler did not mention that the check had been to the laboratory. He did not tell Mr. Douglass that another deputy prosecutor had reviewed the case, made a negative recommendation, and expressed suspicion of Ms. Hoppis. Neither could Mr. Douglass recall that Mr. Butler told him about the disparity in the middle initials. Mr. Douglass thereafter obtained a sworn statement from Ms. Hoppis that she had seen the appellee sign the check. Mr. Douglass's testimony was that he would not have issued the warrant for the appellee's arrest when he did so had he known the facts known to Mr. Butler. However, the warrant was issued, and the appellee was arrested at her apartment, on charges of false swearing and theft by deception, by two uniformed policemen, one of whom testified that she was crying and shaking uncontrollably. She was taken to the police station where she was fingerprinted and "booked." Although it was not his custom to do so, one of the officers called a municipal judge and obtained his permission to release the appellee on her own recognizance because the officer had decided that in view of her "upset" condition it would be best that she not be placed in the detention center. The policemen detected no evidence that the appellee had been drinking that evening.

Both of the charges against the appellee were dismissed by the municipal court for insufficient evidence of intent and lack of probable cause. Thereafter, employees of the appellant asked the prosecutor's office to file the theft by deception charge with the circuit court despite the municipal court's ruling. The request was refused.

1. Failure to direct a verdict

The first point for reversal is stated in the appellant's brief as follows:

The trial court erred when it failed to grant defendant's [appellant's] motions for directed verdict and judgment notwithstanding the verdict on the issue of probable cause where eyewitness testimony formed the basis of defendant's [appellant's] initiating criminal proceedings and the jury's verdict is not supported by substantial evidence.

The argument under this point is primarily that the appellant was entitled to a directed verdict as a matter of law because in Malvern Brick and Tile Co. v. Hill, 232 Ark. 1000, 342 S.W.2d 305 (1961), we held that one who bases a criminal prosecution upon an eyewitness identification of the accused cannot lack probable cause. We had taken that argument and citation to contend that because the appellant had the statement of Ms. Hoppis that she saw the appellee sign her name to the check and the appellant also knew that the appellee had sworn she had not signed the check, it was the obligation of the trial court to direct a verdict because, as a matter of law, the appellant had probable cause to prosecute. However, in oral argument the appellant asserted that this point for reversal had another aspect. It contended that the evidence was insufficient to show a lack of probable cause because it was undisputed that the appellee had received a benefit from the funds represented by the check, whereas her sworn affidavit stated that she had not received any such benefit.

a. Receipt of benefit

The appellee testified that when she went to the appellant to execute the forgery affidavit she did not have her glasses and could not read the document she was asked to sign. She said the appellant's employee who helped with the document explained only that it was a statement that someone other than the appellee had signed the check. The employee testified that she explained the document fully, including the part about not receiving a benefit. The one clear thing about what was said in that encounter is that the appellee did not try to hide the fact that she had had a recent relationship with ARI. The appellant's employee testified that the appellee told her she had been at ARI the previous weekend.

An employee of ARI testified that the appellee's bill at ARI of over $1,000 had not been paid, but the appellee testified that when she checked out of ARI she was told her bill would be covered by insurance. The appellee also testified that she did not know how much of her bill at ARI remained unpaid.

Even if it were undisputed that the bill had not been paid, that would not resolve the factual question whether there was probable cause for the appellant's...