Border City Sav. & Loan Ass'n v. Moan, 84-296

Decision Date28 December 1984
Docket NumberNo. 84-296,84-296
Citation15 OBR 159,15 Ohio St.3d 65,472 N.E.2d 350
CourtOhio Supreme Court
Parties, 15 O.B.R. 159 BORDER CITY SAVINGS & LOAN ASSOCIATION, Appellant, v. MOAN et al., Appellees.

Alfred J. Weisbrod Co., L.P.A., Alfred J. Weisbrod, Troy, and William K. James, Dayton, for appellant.

Freund, Freeze & Arnold, Neil F. Freund and Patrick J. Janis, Dayton, for appellee Moan.

Frank A. Justen, pro se, and Scott D. Harris, Sylvania, for appellee Justen.

Pickrel, Schaeffer & Ebeling Co., L.P.A., James F. Barnhart and Andrew C. Storar, Dayton, for appellee Smith.

PER CURIAM.

Appellant essentially argues that, under the liberal pleading standards of the Rules of Civil Procedure, appellant's complaint should be read as stating a cause of action against appellees for malicious prosecution. Appellees argue that appellant's failure to allege that the actions filed against appellant were instituted maliciously, without probable cause, and were terminated in appellant's favor is fatal to appellant's complaint and warrants dismissal thereof.

In Scholler v. Scholler (1984), 10 Ohio St.3d 98, 462 N.E.2d 158 this court stated in paragraph one of the syllabus:

"An attorney is immune from liability to third persons arising from his performance as an attorney in good faith on behalf of, and with the knowledge of his client, unless such third person is in privity with the client or the attorney acts maliciously."

Neither court below had the benefit of our decision in Scholler, supra, which announced the general rule of an attorney's liability to third persons. The question thus becomes whether appellant's complaint states a cause of action cognizable under the rule established in Scholler, supra.

Appellant's complaint alleges that appellees, by filing lawsuits against appellant, "intentionally inflicted harm upon * * * [appellant] without any excuse or justification, to * * * [appellant's] damage." An action for malicious prosecution or abuse of process "may be maintained where a proceeding is carried on maliciously and without probable cause." Diehl v. Friester (1882), 37 Ohio St. 473, 475; Brinkman v. Drolesbaugh (1918), 97 Ohio St. 171, 181, 119 N.E. 451. As it was stated in Pope v. Pollock (1889), 46 Ohio St. 367, 370, 21 N.E. 356:

"It is a wrong to disturb one's property or peace; and to prosecute one maliciously, and without probable cause, is to do that person a wrong. * * * The burden of establishing both malice and want of probable cause will prove a sufficient check to reckless suits of this character. When the plaintiff sets the law in motion, he is the cause, if it be done groundlessly and maliciously, of defendant's damage * * *."

It is well-established that a court may not dismiss a complaint for failure to state a claim upon which relief can be granted unless it appears "beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery." O'Brien v. University Community Tenants Union (1975), 42 Ohio St.2d 242, 327 N.E.2d 753 , syllabus; Royce v. Smith (1981), 68 Ohio St.2d 106, 108, 429 N.E.2d 134 ; Blankenship v. Cincinnati Milacron Chemicals (1982), 69 Ohio St.2d 608, 610-611, 433 N.E.2d 572 ; Dickerhoof v. Canton (1983), 6 Ohio St.3d 128, 129, 451 N.E.2d 1193.

Bearing in mind that Civ.R. 8(A)(1) only requires "a short and plain statement of the claim showing that the pleader is entitled to relief," we hold that appellant's complaint is sufficient to avoid a motion to dismiss under Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted. Scholler establishes that an attorney may be liable to third persons if the attorney acts maliciously. Further, appellant's complaint does allege intentionally inflicted harm as a result of the numerous lawsuits commenced by appellees. It will be incumbent upon appellant to establish that these lawsuits were instituted maliciously, without probable cause, and, as a general rule, were terminated in appellant's favor. Nonetheless, it does not render appellant's complaint fatally defective and subject to dismissal that each element of its cause of action was not set forth in the complaint with crystalline specificity.

Accordingly, the judgment of the court of appeals is reversed and the cause is remanded to the trial court for further proceedings. 1

Judgment reversed and cause remanded.

FRANK D. CELEBREZZE, C.J., and WILLIAM B. BROWN, SWEENEY, HOLMES and JAMES P. CELEBREZZE, JJ., concur.

LOCHER and CLIFFORD F. BROWN, JJ., dissent.

CLIFFORD F. BROWN, Justice, dissenting.

The complaint in this case does not state a claim for relief against defendants for malicious prosecution for the following reasons.

In order for the complaint to state a good cause of action warranting relief for malicious prosecution, the plaintiff must allege four essential elements: (1) malicious institution by defendant of prior proceedings against plaintiff, Woodruff v. Paschen (1922), 105 Ohio St. 396, 137 N.E. 867; (2) lack of probable cause, Melanowski v. Judy (1921), 102 Ohio St. 153, 131 N.E. 360, paragraph one of the syllabus, and 52 American Jurisprudence 2d (1970) 226, Malicious Prosecution, Section 64; (3) termination of the prior proceedings in plaintiff's favor, Levering v. National Bank (1912), 87 Ohio St. 117, 100 N.E. 322; and (4) seizure of plaintiff's person or property during the course of the prior proceedings, Woyczynski v. Wolf (1983), 11 Ohio App.3d 226, 464 N.E.2d 612, paragraph one of the syllabus, and Battig v. Forshey (1982), 7 Ohio App.3d 72, 454 N.E.2d 168, paragraph two of the syllabus.

The only wrongful acts alleged in the complaint in this case are that defendants "by filing lawsuits on behalf of Kennecorp Enterprises, Inc." and others "intentionally inflicted harm upon the plaintiff without any excuse or justification, to plaintiff's damage." These excerpted allegations fulfill only the first element of four enumerated above, namely, malicious institution by defendant of prior proceedings against plaintiff, and do not allege or even give rise to an inference that the remaining three essential, designated elements exist, namely, lack of probable cause, termination of the prior proceedings in plaintiff's favor, and seizure of the person or property of plaintiff.

The recent case of Scholler v. Scholler (1984), 10 Ohio St.3d 98, 462 N.E.2d 158, and paragraph one of the syllabus thereof, are entirely irrelevant to the issue in the present Border City case. Scholler did not involve a malicious prosecution action, and did not consider the essential elements of such an action. Instead, Scholler was an action by a former wife as plaintiff, on behalf of herself and her minor son, against her former husband, Michael Scholler, and her own attorney, Thomas Willoughby, seeking damages for fraud incident to misrepresentations concerning financial affairs in a prior dissolution of marriage proceedings between the Schollers. The action against defendant attorney Willoughby was on the theory of legal malpractice, as is evident from the Scholler opinion, at 102, 462 N.E.2d 158, as follows:

"The second issue is whether Alyce Scholler on behalf of Philip Scholler may maintain an action against Willoughby in malpractice even though Philip is a third party to the attorney-client relationship that existed between Willoughby and Alyce Scholler."

Scholler in no way affects the above-cited legal precedents in Ohio which require the four essential elements discussed above to be pleaded and proved in a malicious prosecution action. Finally, Scholler did not consider the sufficiency of a complaint to state a cause of action in malicious prosecution, or otherwise, when challenged by a motion to dismiss, as was done here by defendants...

To continue reading

Request your trial
76 cases
  • Davis v. Widman
    • United States
    • Ohio Court of Appeals
    • October 13, 2009
    ...with crystalline specificity" does not render it fatally defective and subject to dismissal. Border City S. & L. Assn. v. Moan (1984), 15 Ohio St.3d 65, 66, 15 OBR 159, 472 N.E.2d 350. See also Parks v. Parks (Mar. 5, 1998), 3d Dist No. 1-97-60, 1998 WL 125558, at *2. However, "`the complai......
  • Brady v. Safety-Kleen Corp.
    • United States
    • Ohio Supreme Court
    • August 27, 1991
    ...named as the defendant in a frivolous lawsuit is not unique to the employment relationship. See, e.g., Border City S & L Assn. v. Moan (1984), 15 Ohio St.3d 65, 15 OBR 159, 472 N.E.2d 350 (bank sued by corporations); Newman v. Al Castrucci Ford Sales, Inc. (1988), 54 Ohio App.3d 166, 561 N.......
  • Bumpus v. Lloyd Ward, P.C., Case No. 2012-CA-5
    • United States
    • Ohio Court of Appeals
    • October 9, 2012
    ...the complaint with crystalline specificity" does not render it fatally defective and subject to dismissal. Border City S. & L. Assn. v. Moan, 15 Ohio St.3d 65, 66, 472N.E.2d 350(1984). However, "'the complaint must contain either direct allegations on every material point necessary to susta......
  • Mussivand v. David
    • United States
    • Ohio Supreme Court
    • September 20, 1989
    ...from the complaint that the plaintiff can prove no set of facts entitling him to recovery.' " Border City S. & L. Assn. v. Moan (1984), 15 Ohio St.3d 65, 66, 15 OBR 159, 160, 472 N.E.2d 350, 351. For the foregoing reasons we cannot say that appellee could not prove any set of facts entitlin......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT