Routh Wrecker Service, Inc. v. Washington

• Decision Date: 19 November 1998
• Docket Number: No. 98-403,98-403
• Citation: 335 Ark. 232,980 S.W.2d 240
• Parties: ROUTH WRECKER SERVICE, INC. and Ronald Routh, Appellants/Cross-appellees, v. Codney A. WASHINGTON, Appellee/Cross-appellant.
• Court: Arkansas Supreme Court

Page 240

980 S.W.2d 240

335 Ark. 232

ROUTH WRECKER SERVICE, INC. and Ronald Routh, Appellants/Cross-appellees, v. Codney A. WASHINGTON, Appellee/Cross-appellant.

No. 98-403.

Supreme Court of Arkansas.

Nov. 19, 1998.

Robert A. Newcomb, Little Rock, for appellants.

Evelyn L. Moorehead, Little Rock, for appellee/cross-appellant.

ROBERT L. BROWN, Justice.

This appeal raises the issues of whether the trial court should have granted the motion of appellants Routh's Wrecker Service, Inc., and Ronald Routh (hereafter jointly referred to as Routh) to direct a verdict on the abuse-of-process claim and, secondly, whether the trial court should have remitted the punitive-damages award. The Court of Appeals affirmed the judgment in favor of appellant/cross-appellee Codney A. Washington in an unpublished opinion. We granted review of the case to consider the trial court's ruling on punitive damages in light of BMW of North America v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). We review the judgment, orders, and proceedings before the trial court as if the appeal had originally been filed in this court. See Malone v. Texarkana Pub. Sch., 333 Ark. 343, 969 S.W.2d 644 (1998). We hold that the trial court did not err in its rulings, and we affirm. With respect to Washington's cross-appeal, we likewise affirm.

The facts are these. On Saturday, June 11, 1994, Washington and a friend attended a car auction sponsored by Routh. At the auction, Washington purchased a 1988 Ford Escort for $400 and paid Routh by check. Because the car was blocked by other cars Washington did not take the car with him that day. Routh representatives told him he could leave the car on the lot for five business days. When he returned for the car on the following Monday, the Escort's battery, spare tire, and some tools were missing. Washington left the car on the lot and stopped payment on the $400 check. He later testified that he expected Routh to contact him to resolve the matter because he still intended to purchase the car.

On June 29, 1994, Ronald Routh, general manager of Routh Wrecker, contacted the prosecuting attorney's office and swore out an affidavit for a warrant of arrest for Washington. He averred in the affidavit that Washington had stopped payment on the check but had not returned the Escort to the premises nor the documentation for sale. On July 11, 1994, Little Rock police officers arrested Washington at his place of employment, First Commercial Bank in Little Rock. They handcuffed him at the bank, led him to a police car, booked him at the police station, and put him in a holding cell. After the arrest, Frank Washington, Washington's father, called Routh. Routh told him that all he wanted was his money and that he would drop the charges if he was paid. Washington advised his father not to pay the $400. Immediately after the arrest, Washington's attorney contacted Routh and told him that the car was still on the lot, which Routh verified. Routh explained to the attorney that storage charges on the vehicle had accrued and should be paid.

Routh did not drop the charges. On September 19, 1994, at the probable cause hearing in municipal court, the municipal judge found probable cause for a theft arrest based on Routh's testimony that Washington was given the car keys and legal documents and then stopped payment on the check. The case was certified to circuit court, where charges were not filed by the prosecuting attorney.

On June 28, 1996, Washington filed a complaint against Routh. His later amended complaint alleged abuse of process, malicious prosecution, libel, and conversion. He sought $75,000 or more in compensatory damages and $150,000 in punitive damages. The trial court dismissed the libel claim before trial began and directed a verdict in favor of Routh on the conversion charge following Washington's case-in-chief. The two claims of malicious prosecution and abuse of process went to the jury. The jury returned a verdict in Washington's favor of $1,000 in compensatory damages and $75,000 in punitive damages on the abuse-of-process claim and $0.00 compensatory damages and $75,000 in punitive damages on the malicious-prosecution claim. After the trial, the trial court entered a directed-verdict order in favor of Routh on the malicious-prosecution claim followed by a judgment for Washington on the claim for abuse of process. Routh filed a motion for judgment NOV, a new trial, and a remittitur, all of which were denied. He appealed from the judgment and the order denying the posttrial motions, and Washington cross-appealed.

I. Motion to Dismiss the Appeal

We begin by deciding Washington's motion to dismiss this appeal. Washington's grounds for dismissal are that on May 13, 1997, he filed a motion under Ark. R. Civ. P. 52(b) for findings of fact concerning the trial court's dismissal of his libel claim and the directed verdict of his conversion claim. Routh then filed his notice of appeal on May 22, 1997. According to Washington, Routh's notice of appeal was premature because the trial court did not rule on his Rule 52(b) motion, and he had 30 days under Ark. R.App. P.--Civil 4(c) before the motion was deemed denied.

We disagree with Washington for the reason that we do not consider his motion for findings of fact to be a true Rule 52(b) motion. Rule 52(b), by its terms, applies to trials where the trial court has made findings of fact, and the movant requests the trial court to amend them. The trials contemplated are bench trials which is made clear in both sections (a) and (b) of Rule 52. Hence, Washington's motion for findings of fact following a jury trial does not qualify as a Rule 52(b) motion. Nor do we agree with Washington that the trial court's dismissal of the libel claims and its directed verdict on conversion equate to a bench trial on the merits. And, finally, Arkansas does not recognize the principle of additur. Thus, Washington's motion for additur does not qualify as a motion for judgment NOV under Ark. R. Civ. P. 50(b) or motion for new trial under Ark. R. Civ. P. 59(5). Washington's motion is misguided, and it is denied.

II. Directed Verdict on Abuse of Process

Routh strongly contends that the process in this case was not perverted to an improper motive after it was initially set in motion. He urges, in this regard, that the trial court erred in not directing a verdict in his favor on abuse of process.

Our standard of review for the denial of a motion for a directed verdict is whether the jury's verdict is supported by substantial evidence. See Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997); Ouachita Wilderness Inst. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997). Substantial evidence is defined as "evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond suspicion or conjecture." Esry v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997). When determining the sufficiency of the evidence, we review the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. See Union Pacific R.R. Co. v. Sharp, supra. In such situations, the weight and value of testimony is a matter within the exclusive province of the jury. See id.

This court has stated that the test of abuse of process is whether a judicial process is used to extort or coerce. See Cordes v. Outdoor Living Ctr., Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). The elements of the tort are: (1) a legal procedure set in motion in proper form, even with probable cause and ultimate success; (2) the procedure is perverted to accomplish an ulterior purpose for which it was not designed; and (3) a willful act is perpetrated in the use of process which is not proper in the regular conduct of the proceeding. See Wynn v. Remet, 321 Ark. 227, 902 S.W.2d 213 (1995); Harmon v. Carco Carriage Corp., 320 Ark. 322, 895 S.W.2d 938 (1995). In short, the key to the tort is the improper use of process after its issuance in order to accomplish a purpose for which the process was not designed. See Harmon v. Carco Carriage Corp., supra; Union Nat'l Bank v. Kutait, 312 Ark. 14, 846 S.W.2d 652 (1993). Thus, it is the purpose for which the process is used, once issued, that is important in reaching a conclusion. See Harmon, supra.

In Harmon, supra, the defendant, a Hertz licensee, was instructed by the Hertz Claims Management Corporation, which was involved in a dispute with the plaintiff, not to extend its lease agreement with the plaintiff. The company instructed the defendant to collect the rental fee from the plaintiff or get the car back. The defendant completed an affidavit for a warrant for plaintiff's arrest, stating that the plaintiff had leased the car and refused to return it. After the warrant was issued, the defendant did nothing to stop the proceedings even though it was told the car was available to be picked up. In holding that summary judgment in favor of the defendant on the abuse-of-process claim was error, we noted a potential abuse of process in the defendant's failure to do anything to prevent the issuance of the arrest warrant or the trial itself. We further observed that the use of criminal prosecution to extort payment of money or recovery of property is a classic example of the tort of abuse of process.

The Harmon facts bear some similarity to the case at bar. Here, Routh initiated a proceeding against Washington that caused his arrest. Washington's father testified that he spoke to Ron Routh after the arrest and Routh's response was that all he wanted was his money and he would drop the charges. Routh admitted that although he knew the car was on the lot, he did not ask to drop the charges. Instead, he allowed the case to proceed to a probable-cause hearing in municipal court, after which it was bound over to circuit court. Routh knew that...