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                  ARKANSAS COURT OF APPEALS
                                       DIVISION I
                                       No. CV-15-726



                                                  Opinion Delivered   May 25, 2016
GREGORY TAYLOR
                              APPELLANT           APPEAL FROM THE WASHINGTON
                                                  COUNTY CIRCUIT COURT
V.                                                [NO. CV-2014-1820-6]

WOODY DOSS, GREGORY CLARK,                        HONORABLE CRISTI BEAUMONT,
CHRIS MITCHELL, AND TYSON FOODS,                  JUDGE
INC.
                      APPELLEES                   AFFIRMED


                              LARRY D. VAUGHT, Judge

       On February 6, 2012, an ammonia leak at a Tyson Foods plant in Springdale, Arkansas,

where appellant Gregory Taylor was employed, caused a plant evacuation. Following an

internal investigation of the leak, Tyson management concluded that Taylor and coemployee

Daniel Patrick were involved in causing the leak. Tyson terminated Taylor and Patrick, and

they were subsequently charged by the Washington County Deputy Prosecutor with second-

degree criminal mischief and ten counts of third-degree battery committed against ten Tyson

employees who were exposed to the ammonia. Four months later, the criminal charges against

Taylor and Patrick were dismissed by an order of nolle prosequi.

       In October 2014, Taylor filed a civil complaint alleging malicious prosecution against

appellees, Tyson Foods, Inc., and its employees Woody Doss, Gregory Clark, and Chris

Mitchell. Appellees moved for summary judgment, and the Circuit Court of Washington
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County entered an order granting the motion. Taylor appeals, contending that summary

judgment was entered in error because there are material facts in dispute. We affirm.

       The facts and procedural history of this case are summarized in detail in its companion

case, Patrick v. Tyson Foods, Inc., 2016 Ark. App. 221, ___ S.W.3d ___, handed down April 20,

2016. 1 As in Patrick, the trial court granted appellees’ motion for summary judgment dismissing

the malicious-prosecution complaint finding that (1) there was probable cause to issue the

warrant; (2) there was no evidence of malice; and (3) appellees were entitled to the advice-of-

counsel defense because they made a full, fair, and truthful disclosure of all facts known to

them, including the security video, to competent counsel/prosecuting attorney.

       Summary judgment is to be granted by a trial court only when it is clear that there are

no genuine issues of material fact to be litigated and the moving party is entitled to judgment

as a matter of law. Sawada v. Wal-Mart Stores, Inc., 2015 Ark. App. 549, at 3, 473 S.W.3d 60, 63.

Once a moving party has established a prima facie entitlement to summary judgment, the

opposing party must meet proof with proof and demonstrate the existence of a material issue

of fact. Id., 473 S.W.3d at 63. On appeal, we determine if summary judgment was appropriate

based on whether the evidentiary items presented by the moving party in support of its motion

leave a material fact unanswered. Id., 473 S.W.3d at 63. This court views the evidence in the

light most favorable to the party against whom the motion was filed, resolving all doubts and

inferences against the moving party. Id., 473 S.W.3d at 63. Our review is not limited to the

pleadings, as we also focus on the affidavits and other documents filed by the parties. Id., 473


       1  In Patrick, we affirmed the trial court’s order of summary judgment dismissing
Patrick’s complaint that alleged causes of action for malicious prosecution, defamation, and
the tort of outrage. 2016 Ark. App. 221, ___ S.W.3d ___.
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S.W.3d at 63. After reviewing undisputed facts, summary judgment should be denied if, under

the evidence, reasonable men might reach different conclusions from those undisputed facts.

Id. at 4, 473 S.W.3d at 63.

       To establish a claim for malicious prosecution, a plaintiff must prove (1) a judicial

proceeding instituted or continued by the defendant against the plaintiff; (2) termination of

the proceeding in favor of the plaintiff; (3) lack of probable cause for the proceeding; (4)

malice on the part of the defendant; and (5) damages. Sawada, 2015 Ark. App. 549, at 4, 473

S.W.3d at 63–64.

       On appeal, Taylor argues that the trial court erred in entering summary judgment on

his malicious-prosecution complaint because genuine issues of material fact exist. Specifically,

he argues that there are “hotly contested fact questions” on the issues of probable cause and

malice and on the advice-of-counsel defense because Tyson’s internal report falsely stated that

the security video showed he committed crimes. For example, he contends that the report

falsely stated that the video showed (1) Patrick moving behind a support column to hide from

view of the camera; (2) Patrick motioning to two men walking by together, one of whom was

Taylor; (3) Taylor turning and walking to Patrick; (4) Patrick handing a container to Taylor; (5)

Taylor walking to the ammonia valve; and (6) Taylor bending over, holding the container

under the ammonia valve, appearing startled, standing up quickly, and walking rapidly away

while screwing the lid back on the container. Taylor argues that the video shows him

performing his regular job duties. For support, he cites the affidavit of Deputy Prosecuting

Attorney Brian Lamb, who stated that he filed the charges against Taylor based, in part, on

the statements made in the Tyson report regarding what could be observed in the video. When


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Lamb later viewed the video in preparation for trial, the actions taken by Taylor as described

in the internal report were not clear to Lamb.

       In making a probable-cause determination in the context of a malicious-prosecution

suit, the court generally “concentrates on the facts before the [legal] action commenced.”

Sundeen v. Kroger, 355 Ark. 138, 145, 133 S.W.3d 393, 397 (2003). The test for determining

probable cause is an objective one based not on the accused’s actual guilt, but on the existence

of facts or credible information that would induce a person of ordinary caution to believe the

accused to be guilty. Wal-Mart Stores, Inc. v. Yarbrough, 284 Ark. 345, 348, 681 S.W.2d 359, 361

(1984). Generally, ordinary caution is a standard of reasonableness and an issue for the jury.

Wal-Mart Stores, Inc. v. Binns, 341 Ark. 157, 163, 15 S.W.3d 320, 324 (2000). However, when

the facts relied on to establish probable cause are undisputed, the question of whether

probable cause exists is one for the courts. Id., 15 S.W.3d at 324. In Binns, our supreme court

stated that if the defendant in a malicious-prosecution case “believed and had grounds for

entertaining ‘honest and strong suspicion’ that [the plaintiff] was guilty” of a crime, it was

entitled to a directed verdict. Id. at 163, 15 S.W.3d at 324.

       Before criminal charges were filed against Taylor, seven members of Tyson

management 2 viewed the video. Each concluded that Taylor’s activity in and around the

ammonia valve was suspicious and that he was involved in the ammonia-leak incident. After



       2Tyson management personnel included: Matt Evans, assistant plant manager; David
Smith, plant safety manager; Larry Richardson, refrigeration superintendent; Patrick Abshier,
complex environmental health and safety manager; Donnie Treat, superintendent; Rick
McClung, maintenance superintendent; and Hector Gonzales, human resources vice president
of operations.

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meeting with Tyson management and viewing the video, separate appellees Woody Doss and

Gregory Clark, both Tyson security managers, agreed with management’s conclusion that

Taylor had been involved in the leak incident. Based on Tyson management’s interpretation

of the video, Doss and Clark interviewed Taylor. In that interview, it was revealed that Taylor

had been convicted of committing arson against a former employer after a dispute. Taylor

showed very little emotion during his interview, denied seeing or speaking with Patrick on the

day in question, and denied any involvement with the leak. Doss and Clark found Taylor lacked

credibility. Based on the investigation, Tyson terminated Taylor’s employment.

       Others reached the same conclusion about Taylor’s involvement in the leak incident as

did appellees. Before charges were filed (and before the Tyson internal report was prepared),

Springdale Police Officer Richard Huddler reviewed the video at the Tyson plant and opined

that Taylor (and Patrick) engaged in criminal activity (the theft of anhydrous ammonia for

drug purposes). Springdale Police Detective Eric Evans also viewed the video and later swore

out an arrest warrant for Taylor, stating that there was probable cause to arrest Taylor for

second-degree criminal mischief and third-degree battery. Finally, Prosecutor Lamb, who had

possession of the report and video, filed the felony information against Taylor.

       These facts are uncontroverted and establish that, based on the information appellees

possessed from its internal investigation, they believed and had grounds for entertaining

honest and strong suspicion that Taylor was guilty of tampering with the ammonia valve that

leaked. Appellees’ beliefs were corroborated by the statements and actions of law enforcement

and the deputy prosecutor. These unrefuted facts would induce a person of ordinary caution

to believe the accused to be guilty. Accordingly, we hold that the trial court did not err in


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finding that Taylor’s malicious-prosecution claim could not succeed because there was

probable cause for the criminal charges. See Sawada, 2015 Ark. App. 549, at 8, 473 S.W.3d at

65–66 (affirming summary judgment of plaintiff’s malicious-prosecution claim where evidence

was undisputed that the information Wal-Mart possessed from its internal investigation and

subsequent interview of the plaintiff was enough to cause a person of ordinary caution to

believe that the plaintiff committed a theft; therefore, it was sufficient to establish probable

cause).

          Taylor’s contention that the video and the investigative report can be interpreted

differently (he claims that it does not show him engaged in any criminal activity) does not

create a factual dispute on the issue of probable cause sufficient to defeat summary judgment.

Appellees internally, along with law enforcement and the prosecutor, were of the opinion,

mistakenly or not, that Taylor was involved in a nonaccidental ammonia leak. Probable cause

exists when a person honestly but mistakenly believes someone is guilty of a crime, and that

mistaken belief is reasonable. Sawada, 2015 Ark. App. 549, at 9, 473 S.W.3d at 66 (citing Wal-

Mart Stores, Inc. v. Williams, 71 Ark. App. 211, 214, 29 S.W.3d 754, 756 (2000) (stating that

“[t]he test for determining probable cause is an objective one.”)). Here, appellees, based on

their thorough investigation, could reasonably have believed that Taylor was involved in

purposely tampering with the valve that caused the ammonia leak and injuries to fellow

employees. The police and prosecutor concurred. As a matter of law, this evidence satisfied

the required element of probable cause. The failure of one element renders a malicious-

prosecution case defunct. Jones v. McLemore, 2014 Ark. App. 147, at 5, 432 S.W.3d 668, 671.

Accordingly, the trial court did not err in granting appellees’ motion for summary judgment.


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       Assuming arguendo that Taylor had presented a factual question on the element of

probable cause, we would also affirm because he failed to present any facts supporting the

element of malice. Malice has been defined as any improper or sinister motive for instituting

the suit. Sundeen, 355 Ark. at 147, 133 S.W.3d at 398.

       As evidence of appellees’ malice, Taylor again focuses on the misrepresentations he

contends are contained in the Tyson report, arguing that the report did not say that “it could

have been Taylor” or “we think it might have been Taylor” or “here is a list of potential

suspects, but we don’t know who did it.” Instead, Taylor argues that appellees’ report stated

that he was shown on the video causing the ammonia leak. He contends these statements are

not true, which raises a question of fact on the issue of malice. We disagree and hold that

Taylor failed to present any facts of an improper or sinister motive of appellees to initiate

proceedings against him.

       First, as set forth above, based on their investigation, appellees could have reasonably

believed that Taylor was involved in the tampering of the ammonia valve. Second, the evidence

was undisputed that Doss and Clark, who authored the report, did not know Taylor before

the leak investigation. Third, Taylor testified in his deposition that he knew of no reason why

Tyson management personnel (Richardson, Treat, McClung, Smith, Evans, and Abshier)

would be motivated to provide false information in order to implicate him in the ammonia

leak. Taylor also testified that he knew of no reason why Doss and Clark would dislike him or

want to have him arrested. And fourth, there is no evidence that appellees sought to have

criminal charges filed against Taylor. The undisputed evidence in this case reflects that

appellees prepared an internal report in their ordinary course of business and provided it to


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the police only upon request. Therefore, Taylor has failed to meet proof with proof on the

element of malice. Accordingly, we hold that the trial court did not err in summarily dismissing

Taylor’s malicious-prosecution complaint.

          Had Taylor met proof with proof on all the elements of malicious prosecution, we

would still affirm. It is a complete defense to an action for malicious prosecution if the

defendant in the action instituted the prosecution upon the advice of a prosecutor or counsel

learned in the law after truly laying all the facts in his possession before him or them. Jennings

Motors v. Burchfield, 182 Ark. 1047, 1049, 34 S.W.2d 455 (1931). The reason for this rule is that

where one truly lays all the facts in his possession before a prosecutor or an attorney and

follows his or their advice, the law conclusively presumes the existence of probable cause, the

lack of which is a necessary element in a suit for malicious prosecution. Id. at 1049, 34 S.W.2d

at 455. In order to avail oneself of this defense, one must have made a full, fair, and truthful

disclosure of all facts known to him and acted in good faith on counsel’s advice. Family Dollar

Trucking, Inc. v. Huff, 2015 Ark. App. 574, at 5, 474 S.W.3d 100, 105. The proponent of the

defense bears the burden to establish it by a preponderance of the evidence. Id., 474 S.W.3d

at 105.

          The trial court found that “[t]he defendants in this case provided all information

collected during their investigation, including the security camera video, to the prosecuting

attorney for review. This fact is not in dispute.” On appeal, Taylor has presented no evidence

that appellees withheld any information from the police or the prosecutor in connection with

its internal investigation. To the contrary, the undisputed facts are that appellees, upon the

request of Detective Evans, tendered all of its investigation material. This material included


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not only their internal report, 3 it also included the video, which, according to Taylor, clearly

and accurately showed his activities on the morning in question. There is also no dispute that

Detective Evans forwarded all of appellee’s investigation information to the prosecutor, who

ultimately filed the felony information against Taylor.

        It is unrefuted that the police and the prosecutor were provided the security video to

compare against appellees’ internal investigative report. Any perceived contradictions between

the conclusions appellees reached in their report and Taylor’s actions on the video were for

the police and the prosecutor to assess. The fact remains uncontroverted that appellees

provided all investigation information in their possession to the police and prosecutor,

entitling them to the advice-of-counsel defense. Jennings Motors, 182 Ark. at 1049–50, 34 S.W.2d

at 455–56 (reversing a malicious-prosecution judgment and holding that Jennings Motors was

entitled to the advice-of-counsel defense where, despite Burchfield’s allegation that Jennings

Motors’ officials made untruthful accusations to its own attorney and to the prosecutor,

Jennings Motors presented testimony that it provided all of the evidence it had to both

attorneys). 4



        3 The internal report contained a timeline of events, a summary of Tyson management
personnel’s interpretation of the video, an explanation about how the leak was caused, Taylor’s
statement denying involvement, statements of other employees, a summary of Taylor’s and
Patrick’s interviews, photographs of the area where the valve was located and of the valve
itself, and appellees’ conclusion that Taylor and Patrick were involved in the tampering with
the ammonia valve.

        4Compare Family Dollar Trucking, Inc., 2015 Ark. App. 574, at 6–7, 474 S.W.3d at 105–
06 (affirming a malicious-prosecution judgment and holding that the jury could have found
that Family Dollar did not make a full, fair, and truthful disclosure of its investigation based
on evidence from Family Dollar’s investigator that he did not disclose exculpatory evidence
about the plaintiffs to the company attorney, the police, or the prosecutor).
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       Under these circumstances, we cannot say that the trial court erred in finding, as a

matter of law, that there was a full, fair, and truthful disclosure of all facts known to appellees

to the police and prosecutor. Accordingly, we hold that the trial court did not err in finding

that appellees were entitled to the advice-of-counsel defense. We affirm the order of summary

judgment.

       Affirmed.

       HOOFMAN, J., agrees.

       VIRDEN, J., concurs.

       BART F. VIRDEN, Judge, concurring. I agree this case should be affirmed. I write

separately to further explain and amplify the differences between this case and our recent

decision in Family Dollar Trucking, Inc. v. Huff, 2015 Ark. App. 574, 474 S.W.3d 100, reh’g denied

(Dec. 2, 2015). As set out in our opinion today, all five elements of malicious prosecution

must be established for such a claim to succeed. See Sawada v. Walmart Stores, Inc., 2015 Ark.

App. 549, 473 S.W.3d 60. In Family Dollar, supra, we held there were questions of fact as to

lack of probable cause, malice, and the advice-of-counsel defense; thus, we affirmed the trial

court’s denial of the defendant’s motion for directed verdict and its submission of the matter

to the jury. In that case, the jury resolved a factual question in favor of the plaintiffs and found

that the defendant had initiated the case. During the trial, the jury had been presented with the

following evidence: an agent for the defendant had prepared the report, the agent had

interviewed witnesses, he had contacted the police, and he had even signed the affidavit for

arrest. There was also testimony that the defendant corporation had given the direction to

pursue prosecution of the plaintiffs.


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              In the case before us, there is no indication that the appellees did anything other

than respond to requests from law enforcement, and the appellees had, upon that request,

provided complete information. Although there may have been a question as to whether the

prosecutor had actually viewed the video before filing charges, it was established that he had

been in possession of the video.

              Because there was no evidence that the appellees in any way initiated or pursued

the action, the first element of a malicious-prosecution case was lacking, and the trial court

was correct in dismissing the action as a matter of law. Because the appellees provided

complete information to the police and prosecutor, they were entitled to the advice-of-counsel

defense as a matter of law, and the trial court was correct on that count as well. As such, I see

no need to review and weigh the competing claims of whether probable cause and malice

presented questions of fact.

       Osborne Law Firm, by: Ken Osborne, for appellant.

        Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Kathlyn Graves and Jeffrey L.
Spillyards, for appellees.




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