concluding that plaintiff’s claim “that [the] suit was not properly initiated[,] *** [e]ven *** if *** true, *** do[es] not provide a sufficient legal foundation for a claim of abuse of process; rather, [it] would provide support for, if anything, a malicious prosecution claim”
How later courts described this case
- concluding that plaintiff’s claim “that [the] suit was not properly initiated[,] *** [e]ven *** if *** true, *** do[es] not provide a sufficient legal foundation for a claim of abuse of process; rather, [it] would provide support for, if anything, a malicious prosecution claim”
- noting that “[t]he essence of Kremer’s claim is that the suit against him was brought without probable cause, for an “ulterior” malicious purpose; he does not contend, and presented no evidence to show, that the suit was initially brought with probable cause and later ‘perverted’ by Cox to aggravate Kremer”
- concluding that an abuse of process claim is not established when the conduct of which the plaintiff complains is the act of filing the complaint itself.
- noting that coroner could claim both qualified privilege for statements regarding death certificate under defamation law and qualified immunity under § 2744.03(A)(6)
Written by the judges who cited it.
The opinion
*67
Edward J. Mahoney, Judge,
concurring in judgment only and dissenting in part.
I concur in the judgment that the trial court erred in not granting the motion for a new trial. However, I disagree that the new trial should be granted as contrary to law under Civ.R. 59(A)(7). This case was tried under the theory that Cox had probable cause to bring his action. Cox’s attorney strongly argued and virtually conceded that issue. How can we then grant a new trial for failure to prove an issue that was really a nonissue and conceded? I believe that the error was on the weight of the evidence as to malice, damages, and proximate cause. See Civ.R. 59(A)(6).
My dissent is to the overruling of Kremer’s assignment of error dealing with the quashing of subpoenas for Zuch, Martin, and Zavarello.
Cox claims privileges in several matters and raised the defense of advice of counsel. The error in denying the attempt to depose these attorneys was not harmless. It cut off a potential source of evidence, if any, as to malice and intent. The attorney-client privilege was definitely waived by raising the advice-of-counsel defense. Depositions of various counsel may also have produced sufficient evidence of malice to at least raise the issue of whether the coroner’s privileges were also waived. Fairness requires that the court not permit the attorney-client privilege and/or coroner’s privilege be used as weapons instead of shields.
Edward J. Mahoney, J., retired, of the Ninth Appellate District, sitting by assignment.