Hollingsworth v. First Nat. Bank & Trust Co. of Rogers

• Decision Date: 01 February 1993
• Docket Number: No. 92-435,92-435
• Citation: 846 S.W.2d 176,311 Ark. 637
• Parties: Lorene HOLLINGSWORTH and Don Gore, Appellants, v. FIRST NATIONAL BANK & TRUST COMPANY OF ROGERS, Arkansas and James Robert Kelly, Appellees.
• Court: Arkansas Supreme Court

Page 176

846 S.W.2d 176

311 Ark. 637

Lorene HOLLINGSWORTH and Don Gore, Appellants, v. FIRST NATIONAL BANK & TRUST COMPANY OF ROGERS, Arkansas and James Robert Kelly, Appellees.

No. 92-435.

Supreme Court of Arkansas.

Feb. 1, 1993.

James E. Evans, Jr., Springdale, for appellants.

David R. Matthews, Rogers, for appellees.

GLAZE, Justice.

Appellants, Lorene Hollingsworth and Don Gore, brought this malicious prosecution and tort of outrage case after having prevailed in an earlier federal lawsuit where the appellees claimed appellants had violated the federal "RICO" statutes. In that federal action, appellees alleged the appellants were involved in racketeering activities by laundering illegal funds, committing mail fraud and criminal enterprise, misusing credit card numbers, forging documents and other similar fraudulent conduct. The federal court had allowed the appellees to obtain a prejudgment attachment, but subsequently set it aside. At trial, Gore was granted a directed verdict, but the federal judge allowed Hollingsworth's case to go to the jury, which returned a verdict in her favor. In filing their complaint in this state action, appellants, among other things, set out the "RICO" allegations the appellees had previously alleged against appellants, stated the appellants had been absolved of those allegations and further asserted the appellees had commenced the federal action maliciously and without probable cause. They also complained appellees were liable for the tort of outrage because appellees' actions were extreme and outrageous beyond the bounds of decency. Appellees moved under ARCP Rule 12(b)(6) to dismiss appellants' state action, alleging appellants' complaint failed to state facts upon which relief can be granted. The trial court agreed, and appellants appeal the trial court's ruling.

Arkansas has adopted a clear standard to require fact pleading: "a pleading which sets forth a claim for relief ... shall contain (1) a statement in ordinary and concise language of facts showing that the pleader is entitled to relief ..." ARCP Rule 8(a)(1). Rule 12(b)(6) provides for the dismissal of a complaint for "failure to state facts upon which relief can be granted." This court has stated that these two rules must be read together in testing the sufficiency of the complaint; facts, not mere conclusions, must be alleged. Rabalaias v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985). In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and pleadings are to be liberally construed. Id.; ARCP Rule 8(f).

As mentioned above, appellants seek damages against appellees for malicious prosecution and the tort of outrage. The elements necessary to show the tort of malicious prosecution are the following: 1) a proceeding instituted or continued by the defendant against the plaintiff; 2) termination of the proceeding in favor of the plaintiff; 3) absence of probable cause for the proceedings; 4) malice on part of the defendant; and 5) damages. Miles v. Southern, 297 Ark. 274, 760 S.W.2d 868 (1988). To establish liability for the tort of outrage, the following four elements are needed: 1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; 2) the conduct was "extreme and outrageous," was "beyond all possible bounds of decency" and was "utterly intolerable in a civilized community"; 3) the actions of the defendant were the cause of the plaintiff's distress; and 4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992).

Here, appellants' complaint falls short of pleading a cause of action for malicious prosecution because they failed to plead sufficient facts to show either malice or lack of probable cause. Malice has been defined as "any improper or sinister motive for instituting the suit." Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). Probable cause for prosecution must be based upon the existence of facts or credible information that would induce the person of ordinary caution to believe the accused person to be guilty of the...