Cite as 2016 Ark. App. 288

ARKANSAS COURT OF APPEALS

DIVISION I 

No. CV-15-726

 

GREGORY TAYLOR

 APPELLANT

V.

WOODY DOSS, GREGORY CLARK, 

CHRIS MITCHELL, AND TYSON FOODS, 

INC.

 APPELLEES 

Opinion Delivered May 25, 2016

APPEAL FROM THE WASHINGTON

COUNTY CIRCUIT COURT

[NO. CV-2014-1820-6] 

HONORABLE CRISTI BEAUMONT, 

JUDGE

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 seconddegree 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-ofcounsel 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 

management2 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 

 

2 Tyson 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 WalMart 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 maliciousprosecution 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.

4 Compare 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.