Bank of Eureka Springs v. Evans , 353 Ark. 438 ( 2003 )

WH. “Dub” Arnold, Chief Justice.

In this appeal, appellants The Bank of Eureka Springs and John Cross (referred to hereafter as the Bank) seek to reverse the decision of a Carroll County jury holding the Bank liable for the malicious prosecution of appellee Floyd Carroll Evans. Appellants argue that they are entided to a dismissal, either because the circuit court erred in holding that their actions were not protected by the “safe harbor” provision of the Annunzio-Wylie Money Laundering Act, 31 U.S.C. § 5318(g)(3) (Supp. 1999) (Act), or, in the alternative, because the jury’s verdict is not supported by substantial evidence. Finally, they urge that they are at least entitled to a new trial because the jury’s damage award was excessive and unconstitutional. We hold that the Bank’s behavior toward the appellee — -which was continuous, malicious, and based on information that the appellant knew was false — is not protected by the Act’s safe harbor provision. We also uphold the jury’s verdict and damage award.

I. Background

The facts, viewing the evidence and all reasonable inferences therefrom in the light most favorable to the appellee, as this court’s standard of review dictates, see, e.g., State Auto Prop. & Cas. Ins. Co. v. Swaim, 338 Ark. 49, 991 S.W.2d 555 (1999), are as follows.

Mr. Evans is a Carroll County resident engaged in the cattle and construction businesses. He was a long-time customer at the Bank of Eureka Springs who, at the time relevant to this case, carried several notes at the Bank. In 1994, Mr. Evans approached his loan officer at the Bank, Gary Kleck, and asked the Bank to loan him $460,000 so that he could purchase 1,120 acres of undeveloped land adjacent to his home. According to-Mr. Evans’s trial testimony, he informed Mr. Kleck that he intended to clear the land and run cattle on it. He told Mr. Kleck that the timber could be used as a repayment source, but that the land would have to be surveyed, fenced, and money invested in bulldozing the land before it would begin producing repayment funds.

Based on this information, Mr. Evans and Mr. Kleck prepared a loan worksheet. The worksheet stated that the source of repayment for the loan would be “[c]ut timber from property— $200,000-$250,000 estimated value” and “[p]ersonal income — construction & farm income $200M+ (sic) annually.” The loan worksheet listed the 1,120 acres as collateral, as well as $90,000 equity in Mr. Evans’s home.

On February 15, 1994, the Board of Directors of the Bank approved a $460,000 loan for Mr. Evans. The minutes of the meeting reflected the information specified in the loan worksheet, including that one source of repayment for the loan would be money made by harvesting timber on the land. Mr. Kleck testified at trial that he informed the board during his presentation of Mr. Carroll’s loan that repayment would come from timber sales and construction income. On April 1, 1994, Mr. Evans executed a mortgage and promissory note in favor of the Bank. The mortgage contained a clause stating that “it is agreed that mortgagor may not cut the timber from any land encumbered hereby . . . .”

In 1994 and 1995, Mr. Evans put his plan for the land into action. He surveyed and fenced the land, and then began harvesting timber. Mr. Evans testified at trial that he tried to remove the timber himself but did not have the expertise to do so. He therefore contracted with Holt Sawmill to remove the timber for him. Mr. Evans seeded and bladed off the land that he cleared, and ran cattle on it. In all, Mr. Evans succeeded in turning 140 out of the 1,120 acres into cattle pasture.

Mr. Evans testified that he divided the proceeds from the timber between making payments on the loan and keeping the logging operation going. Mr. Evans’s sister, Judy Worley, who was also Mr. Evans’s bookkeeper, testified at trial that she deposited checks at the Bank into Mr. Evans’s loan account. Timber receipts and bank records from this time period entered into evidence at trial indicate that Mr. Evans applied $21,693.43 out of $160,721.71 in timber proceeds towards repaying his loan.

Mr. Evans’s business ventures took a downward turn in 1995 and 1996. In early 1995 Mr. Evans became involved in the Cedar Bluff project, a real estate development in Huntsville, Arkansas. The bonding fell through on Cedar Bluff, the project failed, and Mr. Evans, who was the chairman of the Cedar Bluff subdivision, suffered financially. In addition, the cattle market began to fall in June of 1995. Mr. Evans attempted to restructure his various projects, but in December 1996, he defaulted on the promissory' note and mortgage. Mr. Evans began to think about filing for bankruptcy protection.

The Bank was not at all happy about the prospect of Mr. Evans filing for bankruptcy. When Mr. Evans informed appellant Mr. Cross, the president and CEO of the Bank, about his plans, Mr. Cross warned him that he would “make his life hell” if he filed for bankruptcy. In December, 1996, Mr. Cross questioned Mr. Evans’s brother Troy (who was in the Bank on unrelated business) about a missing boat, motor and bulldozer, which were held as collateral on another of Mr. Evans’s notes. Mr. Cross then told Troy that “[y]ou need to tell Carroll to get in there and play ball with me or I’m going to have you guys arrested.” Mr. Evans filed for bankruptcy on June 11, 1997, and Mr. Cross eventually made good on his threat.

During the first meeting of creditors on August 21, 1997, Charles Cross — -Executive Vice President of the Bank, and appellant’s son — questioned Mr. Evans about the bulldozer, boat, and motor, which were not in Mr. Evans’s possession. Mr. Evans stated that Mr. Kleck had released these items, and that they had been sold. Internal loan documents held by the Bank at that time indicated that the bulldozer had indeed been released by the Bank because it had been destroyed in a fire and the Bank had been paid the insurance proceeds. Testimony at trial indicated that Mr. Evans had never sold the boat but instead, had loaned it to a man named Jeff Birchfield. Nevertheless, Wade Williams, the Bank’s attorney, filed a Suspicious Activity Report (“SAR”) with federal authorities. The SAR alleged that Mr. Evans had wrongfully disposed of collateral on notes held by the Bank. Mr. Williams also contacted Deputy Prosecutor Kenny Elser and filed a criminal complaint against Mr. Evans.

The Bank followed up the first SAR with a second on May 4, 1998, alleging that Mr. Evans had cut timber on the 1,120 acres without permission from the Bank. The Bank stated on the SAR form that “Mr. Evans cut and sold the timber off of this mortgaged property without obtaining a Timber Deed or stating his intentions to the bank prior to the cutting of said timber.” The Bank also averred that “our bank never received any payments on the indebtedness here at the bank.”

Mr. Cross and his son then met with Deputy Prosecutor Kenny Elser and Carroll County Sheriffs Office Investigator Leighton Ballard and filed a second criminal complaint against Mr. Evans. They again alleged that Mr. Evans had wrongfully disposed of a bulldozer, boat, and motor, that they had never given permission to Mr. Evans to harvest timber off of the land, and that Mr. Evans had never made any payments on his loan. Mr. Ballard wrote an affidavit of reasonable cause, which rested on the Bank’s allegations. A bench warrant was issued for Mr. Evans’s arrest. Mr. Evans subsequently surrendered himself to custody and was arrested. He was charged with three counts of defrauding a secured creditor, a class D felony punishable by up to six years’ imprisonment. See Ark. Code Ann. §§ 5-37-203(b); 5-4-401(a)(5) (Supp. 2001). News of his arrest made the local papers.

During the course of the investigation, the prosecutor learned that some of the proceeds from the timber harvesting had, in fact, been applied to the loan. The prosecutor filed an amended affidavit, but did not dismiss the charges. During the run up to trial, Mr. Evans unsuccessfully sought protection from the U.S. Bankruptcy court by alleging that his arrest and criminal prosecution violated U.S. bankruptcy law. The criminal prosecution proceeded.

Before trial, Mr. Cross called a friend who worked in the governor’s office and asked him to check and see if the prosecutor, Brad Butler, had received his phone messages regarding the case. Mr. Cross received a call from Mr. Butler shortly thereafter. Also before trial, on June 1, 1999, Mr. Cross sent a letter to the prosecuting attorney stating that the Bank would be willing to settle the case in exchange for a sum of money and a land exchange. In the letter, Mr. Cross urged the prosecutor to impress on Mr. Evans’s lawyer how beneficial the settlement offer was, “not having to wonder what a jury might do to his client.”

Mr. Evans was never convicted. The circuit court granted Mr. Evans’s motion to dismiss based on the statute of limitations. The circuit court’s order dismissing the charges stated that “it is clear from the testimony adduced at the hearing of this matter that the Bank of Eureka Springs was aware at all the times complained of herein that the Defendant was going to and, in fact did, remove timber from his property and that said removal of timber was contemplated and known to the Bank of Eureka Springs . . . prior to the Defendant obtaining a loan from that particular institution” and that “there is no evidence that the Defendant engaged in the removal of timber from secured property without the knowledge or consent of the Bank of Eureka Springs.” Mr. Evans subsequently filed suit against the Bank and Mr. Cross for, among other things, malicious prosecution.

At trial, several witnesses testified regarding the Banks’s animosity toward Mr. Evans. Perry Johnson, a cattle rancher who lived on the land south of the 1,120 acres, testified that in the course of a meeting with Mr. Cross about renting pasture land for his cattle, Mr. Cross began complaining about Mr. Evans. Mr. Johnson replied that he was friends with Mr. Evans, and that he had come to the Bank to rent pasture, not talk about Mr. Evans. Mr. Cross replied: “Well, he’s a crook and I’m going to put him in the big house.”

Charles G. Fargo testified that a few months prior to trial, he had been at the West Oaks Restaurant when he was approached by Dave Bird, a member of the Bank’s board of directors. Mr. Bird informed Mr. Fargo that the “motto down at the bank is to f* ** Carroll Evans” and that he “could not believe that the Bank of Eureka Springs had loaned so much money to Lee Evans’s son, Carroll Evans.” At the time, Mr. Fargo was sitting with Mr. Evans, Troy Evans, and Mr. Evans’s nephew.

Mr. Evans testified that he had incurred great expense as a result of the prosecution and his efforts to clear his name. He specifically testified that he had lost $14,000 and owed an additional $20,000 because of the prosecution. He also testified that his equipment had been sold at auction, and that he no longer had a contractor’s license. He testified that because of the prosecution, “I’m not the same person I used to be.” He testified that he had been in places where people would walk away from him instead of shaking his hand, that he had overheard people in restaurants talking about him, and that he had heard people speak against him in public three or four times during the course of the prosecution. He testified that he had been reduced to tears over the situation and that he felt unable to leave his house for long periods of time. Several other witnesses testified about the effect that the prosecution had on Mr. Evans. Troy Evans testified that the charges had had a great impact on his brother, and that he had seen him cry over the charges. His daughter described the ordeal as “humiliating” for Mr. Evans, and his son described his father crying over the prosecution.

The jury found for Mr. Evans and awarded him $100,000 in compensatory and $300,000 in punitive damages. At all appropriate times, the Bank made motions for directed verdict, which were denied. With these facts in mind, we turn to the appellant’s arguments.

II. Discussion

a. Safe Harbor

The appellants rely on the “safe harbor” provision of the Annunzio-Wylie Money Laundering Act, 31 U.S.C. § 5318(g)(3) (Supp. 1999), for the proposition that they are absolutely immune from charges of malicious prosecution based on their conduct. Their argument is that the safe harbor not only protects them from liability for filing the SAR reports with the federal government, but also extends to their efforts to ensure criminal conviction of Mr. Evans in state court. They argue that their motives for doing so are irrelevant because the safe harbor shields financial institutions and their employees and agents for reporting suspicious activity or possible violations of law. Mr. Evans answers the argument by arguing that it was not the intent of Congress to shield behavior that is malicious, continuous, and based upon information known to be false at the time of the filing of the reports and the pursuit of state remedies.

Our standard of review on this question is de novo, as it is for this court to decide what a statute means. E.g., Brewer v. Fergus, 348 Ark. 577, 79 S.W.3d 831 (2002). The cardinal rule of statutory construction is to effectuate the legislative will. E.g., Ozark Gas Pipeline v. Arkansas Pub. Serv. Comm’n, 342 Ark. 591, 29 S.W.3d 730 (2000). “We read the laws as they are written, and interpret them in accordance with established principles of statutory and constitutional construction, including application of the Supremacy Clause of the United States.” Hodges v. Huckabee, 338 Ark. 454, 458-458, 995 S.W.2d 341, 345 (1999). We are not bound by the decision of the trial court, but unless it is shown that the circuit court’s interpretation was wrong, we will accept its interpretation on appeal. Id. (citing Bryant v. Weiss, 335 Ark. 534, 983 S.W.2d 902 (1998)). We further explained our approach to statutory interpretation in Barclay v. First Paris Holding Co., 344 Ark. 711, 42 S.W.3d 496 (2001), where we said:

Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. We construe the statute so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute if possible. . . . When a statute is ambiguous, we must interpret it according to the legislative intent. Our review becomes an examination of the whole act. We reconcile provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. We also look to the legislative history, the language, and the subject matter involved.

Barclay, 344 Ark. at 718, 42 S.W.3d at 500 (citations omitted). We have also said that literal meaning yields to legislative intent if the literal meaning leads to absurd consequences contrary to legislative intent. E.g., Burford Distributing, Inc. v. Starr, 341 Ark. 914, 20 S.W.3d 363 (2000). Therefore, the first step is to examine the language of the Act. It reads, in pertinent part:

(g) Reporting of suspicious transactions.—

(1) In General. — The Secretary may require any financial institution, and any director, officer, employee, or agent of any financial institution, to report any suspicious transaction relevant to a possible violation of law or regulation.

(3) Liability for disclosures.—

(A) In general. — Any financial institution that makes a voluntary disclosure of any possible violation of law or regulation to a government agency or makes a disclosure pursuant to this subsection or any other authority, and any director, officer, employee, or agent of such institution who makes, or requires another to make any such disclosure, shall not be liable under law or regulation of the United States, any constitution, law, or regulation of any State or political subdivision of any State, or under any contract or other legally enforceable agreement (including any arbitration agreement), for such disclosure or for any failure to provide notice of such disclosure to the person who is subject of such disclosure or any other person identified in the disclosure.

31 U.S.C. § 5318(g)(1). We recognize that the Act specifies that financial institutions are to report “any possible violation of law or regulation.”¹ Id. We also agree with the federal jurisdictions which have determined that the Act is to be broadly interpreted. We do not agree, however, that Congress intended the Act’s safe harbor to give banks such blanket immunity that even malicious, willful criminal and civil violations of law are protected. Importantly, the Act requires there to be a “possible” violation of law-— “possible” being the operative word — before a financial institution can claim protection of the statute. Here, viewing the evidence in the light most favorable to Mr. Evans, there was no possible violation. Despite its statement on the SAR form that it had conducted “a detailed investigation into the matter,” the Bank did not mention the loan worksheet or the minutes from the board meeting when the Bank approved the loan. These documents indicate that the Bank knew from the very start that Mr. Evans planned to cut timber on the property. Nor did the Bank indicate that some of the timber proceeds had been used to pay down the loan. The Bank did not inform the state prosecutor of these facts either; on the contrary, it claimed the exact opposite. The Bank also never informed the prosecutor that it had received insurance proceeds from the burned-up bulldozer it claimed had been wrongfully sold by Mr. Evans, nor did it inform the prosecutor that the boat and motor had been loaned, not sold, to Mr. Birchfield. Under these facts, we hold that the Bank did not file a report of a “possible violation” of the law but rather acted maliciously and willfully in an attempt to have Mr. Evans arrested and brought to trial on charges it knew to be false. The Act’s safe harbor does not apply to this situation.

The First Circuit’s decision in Stoutt v. Banco Popular De Puerto Rico, 158 F.3d 26 (2003), relied upon by the Bank, is not to the contrary. In that case, a financial institution filed a “report of apparent crime” report with the FBI and the U.S. Attorney in an abundance of caution. See id. at 30. Upon the discovery of new information that made it clear that no crime had occurred, the U.S. attorney dismissed the charges. Id. Here, unlike the Bank in Stoutt, which “whatever its internal beliefs . . . did by any objective test identify a ‘possible violation,’”, id., the Bank of Eureka Springs engaged in a continuous course of conduct seeking the prosecution of Mr. Evans by misrepresenting material facts to the prosecutor. Nor did the Stoutt bank attempt to derive financial benefit from the criminal prosecution, as did the Bank of Eureka Springs when it attempted to settle the case. Quite simply, there was no objective identification of a possible violation in this case.

Amici suggest that the twin purposes of the Act are to encourage financial institutions to report any known or suspected criminal activity, and to safeguard the public’s trust in financial institutions. As we have explained, however, appellee was engaged in behavior that the appellees knew was neither criminal nor suspicious at the time of the SAR reporting. We fail to see how approving of the behavior of the bank in this case advances either purpose of the Act.

In sum, stretching the definition of “any possible violation” to fit the facts at bar would lead to an absurd result contrary to legislative intent. We do not believe that Congress intended the safe harbor to protect Bank employees or officers who pursue personal vendettas against delinquent borrowers. We hold that the safe harbor does not apply.

b. Jury Verdict: Malicious Prosecution

The Bank’s second argument is that the trial court erred in denying its directed-verdict motions. The Bank, arguing from Wal-Mart Stores, Inc. v. Binns, 341 Ark. 157, 15 S.W.3d 320 (2000), urges that there was insufficient evidence of malice presented at trial, and also that there was insufficient evidence that the Bank proximately caused Mr. Evans’s damages.

We have recently explained the standard of review for a denial of a motion for directed verdict:

A directed-verdict motion is a challenge to the sufficiency of the evidence, and when reviewing a denial of a motion for a directed verdict, this court determines whether the jury’s verdict is supported by substantial evidence. See, e.g., Pettus v. McDonald II, 343 Ark. 507, 36 S.W.3d 745 (2001); Farm Bureau Mut. Ins. Co. p. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000); State Auto Property Cas. Ins. Co. p. Swaim, 338 Ark. 49, 991 S.W.2d 555 (1999). 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 mere suspicion or conjecture. See State Auto Property Cas. Ins. Co. p. Swaim, supra; City of Little Rock v. Cameron, 320 Ark. 444, 897 S.W.2d 562 (1995); St. Paul Fire & Marine Ins. Co. v. Brady, 319 Ark. 301, 891 S.W.2d 351 (1995).

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, and we give that evidence the highest probative value. See State Auto Property Cas. Ins. Co. v. Swaim, supra; Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999); Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997). A motion for a directed verdict should be granted only when the evidence viewed is so insubstantial as to require the jury’s verdict for the party to be set aside. Conagra, Inc. v. Strother, 340 Ark. 672, 13 S.W.3d 150 (2000); Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991). A motion for a directed verdict should be denied when there is a conflict in the evidence or when the evidence is such that fair-minded people might reach different conclusions. Wal-Mart Stores, Inc., v. Kelton, supra; Stalterv. Coca-Cola Bottling Co., 282 Ark. 443, 669 S.W.2d 460 (1984). Under those circumstances, a jury question is presented, and a directed verdict is inappropriate. Wal-Mart Stores, Inc., v. Kelton, supra; Stalter v. Coca-Cola Bottling Co., supra. It is not this Court’s province to try issues of fact; we simply examine the record to determine if there is substantial evidence to support the jury verdict. Wal-Mart Stores, Inc. v. Kelton, supra; City of Caddo Valley v. George, 340 Ark. 203, 9 S.W.3d 481 (2000).

D.B. Griffin Warehouse, Inc. v. Sanders, 349 Ark. 94, 104-105, 76 S.W.3d 254, 261 (2002). The elements of the tort of malicious prosecution are (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 proceeding; (4) malice on the part of the defendant; and (5) damages. South Arkansas Petroleum Co. v. Scheisser, 343 Ark. 492, 36 S.W.3d 317 (2001).

Here, the evidence viewed in the light most favorable to the appellee reveals substantial evidence to support the jury’s verdict. As outlined above, the evidence reveals an intentional, malicious pattern of behavior on the part of the Bank. The Bank failed to reveal that its information, in the form of the loan worksheet and board meeting minutes, indicated that the Bank knew of Mr. Evans’s plant to harvest timber in order to pay his loan back. The Bank went to the prosecutor and informed him that no timber proceeds had been used to pay down the loan, but this information turned out to be false. The Bank accused Mr. Evans of wrongfully selling a bulldozer, boat and motor when in fact none of those things had happened. The Bank misrepresented material facts to the prosecutor and never corrected them, in spite of having ample time and opportunity to do so. The Bank argues that it was the prosecutor’s decision to pursue the case against Mr. Evans and that it was merely a passive party. We have answered a similar argument by holding that when the information given to the prosecutor “is known by the giver to be false, an intelligent exercise of the officer’s discretion becomes impossible, and a prosecution based upon it is procured by the person giving the false information.” Scheisser, 343 Ark. at 496, 36 S.W.3d at 319 (quoting Restatement (Second) of Torts § 653 cmt. g) (emphasis added by the Scheisser court). Here, the prosecutor was not supplied with accurate information and so the Bank’s effort to shift responsibility to the prosecutor fails. We affirm the jury’s verdict.

c. fury Award

The Bank’s third argument on appeal is that the damages imposed by the jury were excessive under this court’s case law, and that the punitive damage award was both excessive in light of our prior cases and unconstitutional under the United States Supreme Court case of BMW of North America v. Gore, 517 U.S. 559 (1996). We review these arguments in turn.

i. Compensatory Damages

Regarding the review of a jury award of compensatory damages, we have said:

When an award of damages is alleged on appeal to be excessive, we review the proof and all reasonable inferences most favorable to the appellee and determine whether the verdict is so great as to shock our conscience or demonstrate passion or prejudice on the part of the jury.

Ellis v. Price, 337 Ark. 542, 551, 990 S.W.2d 543, 548 (1999) (quoting Builder’s Transp. v. Wilson, 323 Ark. 327, 914 S.W.2d 742 (1996)). “The standard of review in such a case is that appropriate for a new trial motion, i.e., whether there is substantial evidence to support the verdict.” Advocat, Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003) (citing Johnson v. Gilliland, 320 Ark. 1, 896 S.W.2d 856 (1995) (citing Ark. R. Civ. P. 59(a)(5) (holding that an error in the assessment of the amount of recovery is grounds for a new trial))). Under Arkansas law, a person is entitled to emotional distress, mental anguish, and consequential damages resulting from malicious prosecution. E.g., Hollingsworth v. First Nat’l Bank & Trust Co., 311 Ark. 637, 846 S.W.2d 176 (1989).

We are persuaded from our review of the facts that the amount of damages is not so great as to shock the conscience of the court. Mr. Evans testified at trial that he had lost $14,000 and owed an additional $20,000 because of the prosecution. He also testified that his construction equipment had been sold at auction, and that he no longer had a contractor’s license. Mr. Evans testified that his life had been profoundly changed for the worse by the ordeal of prosecution. He testified that he had endured public slight and insult as a result of the prosecution, and that he had been reduced to tears by the stress of the litigation. His family members also testified extensively about the effect that the prosecution had upon him. We hold that the jury’s award of $100,000 compensatory damages, in light of almost $40,000 of actual damages as well as mental anguish stemming from fear of imprisonment, embarrassment before the community, and destruction of his business reputation, is supported by substantial evidence and does not shock the conscience of the court.

ii. Punitive Damages

Finally, the Bank argues that the jury’s assessment of punitive damages is unsupportable under Arkansas common law, and also that the damage award violates due process under BMW of North America v. Gore, supra. When reviewing a punitive damage award under Arkansas common law, “we consider the extent and enormity of the wrong, the intent of the party committing the wrong, all the circumstances, and the financial and social condition and standing of the erring party.” Ellis, 337 Ark. at 551, 990 S.W.2d at 548. Punitive damages are to be a penalty for conduct that is malicious or done with the deliberate intent to injure another. Id. We have also held that “where, in light of the evidence, the jury could have concluded that appellants displayed a conscious indifference for appellee and that their acts were done with the deliberate intent to injure her, the amount of punitive damages did not shock our conscience.” Id. When conducting our review of an award of punitive damages, we view the evidence in the light most favorable to the appellee. E.g., Houston v. Knoedl, 329 Ark. 91, 947 S.W.2d 745 (1997).

As we have pointed out above, the evidence, when viewed in the light most favorable to Mr. Evans, indicates that the Bank acted with malicious intent to have Mr. Evans arrested and convicted on criminal charges that it knew were false. The enormity of the wrong is great enough to support punitive damages, considering that Mr. Evans faced the possibility of three felony convictions, each having a possible sentence of up to six years, if he was convicted. That the charges were leveled by a prominent member of the community — the Bank of Eureka Springs — also supports the assessment of punitive damages. In sum, the evidence was such that the jury could have concluded that the acts done to Mr. Evans were pursued with conscious indifference to his fate and with the deliberate intent to injure him. Considering all of the circumstances, we cannot say that the punitive damage award shocks the conscience of this court.

With respect to the United States Supreme Court’s decision in BMW v. Gore, supra, we hold that the jury’s verdict in this case does not offend federal due process. This court has recently noted that under Gore, “[o]nly when an award can fairly be categorized as ‘grossly excessive’ in relation to [the State’s legitimate interests in punishment and deterrence] does it enter the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment.” Advocat, Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003) (quoting Gore, 517 U.S. at 568). Gore lays out three criteria for determining if an award is so “grossly excessive” as to violate federal due process: (1) the degree of reprehensibility of the defendant’s conduct; (2) the disparity between the harm or potential harm suffered by the plaintiff and his punitive damages award; and (3) the difference between this remedy and the civil penalties authorized by statute or imposed in comparable cases. Id. (citing Gore, 517 U.S. at 572).

In Advocat, we noted that in assessing the first factor, the record will not support a conclusion that the defendant acted in a reprehensible fashion if (1) the harm inflicted by the tortfeasor was purely economic, (2) there was no evidence of bad faith, (3) the defendant did not continue its wrongful behavior after it had been adjudged at least once to be unlawful, and (4) the record is bare of “deliberate false statements, acts of affirmative misconduct, or concealment of evidence of improper motive,” Id. (quoting Gore, 517 U.S. at 576-580). The harm in this case was not purely economic in nature; the jury assessed damages for mental anguish based on the testimony adduced at trial regarding the negative effect that the prosecution had on Mr. Evans’s personality and relationships with others. As we have explained above, there is ample evidence in the record to indicate bad faith, deliberate false statements, and acts of affirmative misconduct on the part of the Bank. We conclude that the punitive damage award does not fail for lack of evidence of reprehensibility in the record.

The second factor requires us to consider the ratio between the compensatory damage award and the punitive damage award. This analysis is not accomplished according to “a simple mathematical formula,” but instead looks to see if the ratio of compensatory to punitive damages is “breathtaking.” Gore, 517 U.S. at 582-583. That the three-to-one ratio in this case is not “breathtaking” in the constitutional sense is easily seen by considering the United States Supreme Court’s guidance in Gore, that although a “punitive damages award of ‘more than 4 times the amount of compensatory damages’ might be ‘close to the line,’ it did not ‘cross the line into the area of constitutional impropriety.’” Gore, 517 U.S. at 581. We hold that the ratio of compensatory to punitive damages in this case is constitutionally sound.

The final criterion calls upon this Court to look to the penalties authorized by statute or assessed in similar cases. We dispose of this criteria by noting that we have upheld a damage award in a malicious prosecution case comparable to the award in this case. See Scheisser, supra (upholding a punitive damage award of $250,000 for malicious prosecution and abuse of process). The award of punitive damages in this case is not so unexpected or bizarre as to be unconstitutional. In sum, the jury’s damage award in this case is not at odds with this Court’s precedents or with federal due process.

Affirmed.

Thornton, J., dissents.

1 We also note that banks are apparently forbidden to even release the fact that a SAR has been filed, see Lee v. Bankers Trust Co., 166 F.3d 540, 544 (1999) (“Financial institutions are required by law to file SARs, but are prohibited from disclosing that either a SAR has been filed or the information contained therein.”) (citing 12 C.F.R. § 208.20(k) (1998)). We express no opinion about the legality of the Bank’s disclosure of the fact of its SAR filings against Mr. Evans, as this point was not raised by the parties. We do note, however, that such disclosure in violation of federal regulations can be viewed as further evidence of the Bank’s malicious intent.