# Kremer v. Cox

> Ohio Court of Appeals · September 11, 1996 · 114 Ohio App. 3d 41

URL: https://www.frixlaw.com/law-library/cases/3696533

## Case

- **Full name:** KREMER, Appellant and Cross-Appellee, v. COX, Appellee and Cross-Appellant; State Medical Board of Ohio, Intervenor
- **Court:** Ohio Court of Appeals
- **Decided:** September 11, 1996
- **Citations:** 114 Ohio App. 3d 41; 682 N.E.2d 1006
- **Precedential status:** Published
- **Opinion:** Dissent by Mahoney
- **Judges:** Baird, Quillin, Mahoney, Ninth
- **Cited by:** 217 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3696533

## How later opinions describe it (automated extraction)

- 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 ‘pervert…
- 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)
- noting that failure to comply with the rules governing practice in the appellate courts is a tactic which is ordinarily fatal

## Opinion text

*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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3696533. Public record. Not legal advice.