“Simply, abuse of process occurs where someone attempts to achieve through use of the court that which the court is itself powerless to order.”
How later courts described this case
- “Simply, abuse of process occurs where someone attempts to achieve through use of the court that which the court is itself powerless to order.”
- “[a] cause of action for malicious civil prosecution will lie only in cases where there is a prejudgment seizure of property ….”
- “[I]n order to properly assert a claim of malicious civil prosecution, appellants were required to satisfy the seizure element. Since appellants presented no evidence of seizure, we affirm the judgment of the appellate court on this issue.”
- “[T]he improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club.”
Written by the judges who cited it.
The opinion
Douglas, J.,
dissenting. I must respectfully dissent. Once again, a majority of this court misses the opportunity to bring the law of Ohio into at least the' twentieth century. By continuing the archaic requirement, in cases of malicious civil prosecution in Ohio, that a plaintiff must show that his or her person or property was seized during the underlying proceedings, the majority grants absolute immunity from suit to a litigant who has initiated a prior lawsuit with actual malice and without any probable cause. Seldom, if ever, will a party’s person or property be seized in a civil suit.
Unfortunately, spurious suits against “deep-pocket” or “target” defendants have become a significant problem. By today’s majority decision, target defendants such as judges, doctors, newspapers and public officials are left without a remedy even though the suits brought against them have no basis in law or fact. Simply put, this is unfair and wrong.
It is further interesting to note that the majority does not even cite, never mind discuss, Border City S. & L. Assn. v. Moan (1984), 15 Ohio St.3d 65 , 15 OBR 159, 472 N.E.2d 350 . Therein, seizure of a person or property was not a requirement that had to be met before a suit such as the one now before us would lie. With regard to this entire question, I respectfully refer any interested reader to the dissenting opinions of then Chief Justice Celebrezze and myself in Crawford v. Euclid Natl. Bank (1985), 19 Ohio St.3d 135 , 19 OBR 341, 483 N.E.2d 1168 .
I dissent.
F.E. Sweeney, J., concurs in the foregoing dissenting opinion.