ROMINGER LEGAL
Ohio Court Cases and Opinions - Ohio Legal Research
Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL HEADLINES - CASE LAW - LEGAL FORMS
NOT FINDING WHAT YOU NEED? -RESEARCH
This court case was taken from the web sites of the Ohio Courts. Search our site for more cases - CLICK HERE

LEGAL RESEARCH
COURT REPORTERS
PRIVATE INVESTIGATORS
PROCESS SERVERS
DOCUMENT RETRIEVERS
EXPERT WITNESSES

 

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

 
Web Rominger Legal

Legal News - Legal Headlines

 

OPINIONS OF THE SUPREME COURT OF OHIO
The full texts of the opinions of the Supreme Court of Ohio
are being transmitted electronically beginning May 27, 1992,
pursuant to a pilot project implemented by Chief Justice Thomas
J. Moyer.
Please call any errors to the attention of the Reporter's
Office of the Supreme Court of Ohio. Attention: Walter S.
Kobalka, Reporter, or Deborah J. Barrett, Administrative
Assistant. Tel.: (614) 466-4961; in Ohio 1-800-826-9010. Your
comments on this pilot project are also welcome.
NOTE: Corrections may be made by the Supreme Court to the
full texts of the opinions after they have been released
electronically to the public. The reader is therefore advised to
check the bound volumes of Ohio St.3d published by West
Publishing Company for the final versions of these opinions. The
advance sheets to Ohio St.3d will also contain the volume and
page numbers where the opinions will be found in the bound
volumes of the Ohio Official Reports.

Yaklevich, Appellee, v. Kemp, Schaeffer & Rowe Company, L.P.A.,
et al., Appellants.
[Cite as Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A.
(1994), Ohio St.3d .]
Torts -- Abuse of process -- Necessary elements -- Action
governed by four-year limitation period of R.C. 2305.09 --
Civil procedure -- Claim for abuse of process is not a
compulsory counterclaim that must be brought in the
underlying litigation.
- - -
1. The three elements of the tort of abuse of process are:
(1) that a legal proceeding has been set in motion in proper
form and with probable cause; (2) that the proceeding has
been perverted to attempt to accomplish an ulterior purpose
for which it was not designed; and (3) that direct damage
has resulted from the wrongful use of process.
2. A claim for abuse of process is not a compulsory counterclaim
which must be brought in the underlying litigation.
3. An action for abuse of process is governed by the four-year
limitations period of R.C. 2305.09.
- - -
(No. 92-1671 -- Submitted September 28, 1993 -- Decided
February 9, 1994.)
Appeal from the Court of Appeals for Franklin County, No.
91AP-1296.
Plaintiff-appellee John A. Yaklevich filed a complaint in
the Franklin County Court of Common Pleas on December 27, 1990,
naming as defendants the law firm of Kemp, Schaeffer & Rowe Co.,
L.P.A., as well as individual attorney members of the firm
(collectively "Kemp, Schaeffer & Rowe"), appellants. Yaklevich's
complaint was based on a previous lawsuit filed by Kemp,
Schaeffer & Rowe against various defendants, including Yaklevich,
in an attempt to collect money allegedly owed to it for the legal
representation of the law firm's ex-client, Geneva J. Frecker
("the Frecker litigation"). The claims in the Frecker litigation
asserted by Kemp, Schaeffer & Rowe against defendants other than
Yaklevich are not relevant to this appeal.
In the Frecker litigation, Kemp, Schaeffer & Rowe brought

claims against Yaklevich for interference with business
relations, conspiracy and fraud. Kemp, Schaeffer & Rowe
essentially charged that Yaklevich, along with others, had
improperly induced Geneva Frecker to terminate her contractual
and business relationship with Kemp, Schaeffer & Rowe, thereby
causing the firm to lose the legal fees owed by Geneva Frecker.
The fraud claim against Yaklevich eventually was voluntarily
dismissed by Kemp, Schaeffer & Rowe, and the claims for
interference with business relations and conspiracy were resolved
in Yaklevich's favor when the trial court granted his motion for
summary judgment on those allegations.
On December 27, 1990, Yaklevich commenced the present suit.
In his complaint, Yaklevich alleged that Kemp, Schaeffer & Rowe
"maliciously and without probable cause commenced civil action"
against him in the Frecker litigation. Yaklevich further alleged
that Kemp, Schaeffer & Rowe "prosecuted the aforesaid civil
action *** for an ulterior purpose or purposes" against him,
those purposes being to induce Yaklevich's clients to discharge
him as their attorney, to damage Yaklevich's reputation, and to
increase the settlement value of Kemp, Schaeffer & Rowe's claims.
The trial court in this case converted Kemp, Schaeffer &
Rowe's motion to dismiss into a motion for summary judgment, but
then entered an order dismissing the complaint as insufficient on
its face. In the decision, the trial court held: (1) To the
extent that Yaklevich's complaint alleged a cause of action for
malicious civil prosecution, that claim, because it did not
allege that Yaklevich's person or property had been seized during
the prior proceeding (which the trial court found to be a
required element in a malicious civil prosecution suit), must be
dismissed; (2) Yaklevich's complaint did state a colorable claim
for abuse of process; but (3) that claim was barred by the
applicable statute of limitations. The trial court found that
the one-year period of limitations of R.C. 2305.11(A) for
malicious prosecution also applies to an action for abuse of
process, and that the one-year period had run.
Yaklevich appealed the trial court's judgment to the Court
of Appeals for Franklin County, and Kemp, Schaeffer & Rowe
cross-appealed. The court of appeals agreed with the trial court
that R.C. 2305.11's one-year limitations period applies to a
claim for abuse of process; however, the court of appeals
determined that the one-year period had not run when Yaklevich
filed his complaint, because the trial court erred in its
decision regarding when the statutory period commenced for
Yaklevich's abuse of process claim. The court of appeals
resolved Kemp, Schaeffer & Rowe's cross-appeal by holding (1)
that the trial court correctly determined that Yaklevich's
complaint stated a colorable claim for abuse of process; and (2)
that Yaklevich's abuse of process claim was not a compulsory
counterclaim which Yaklevich would have been required to assert
in the course of the Frecker litigation. After holding that
Yaklevich's abuse of process claim was timely brought, the court
of appeals ordered the cause remanded to the trial court for
further proceedings.
The cause is now before this court pursuant to the allowance
of Kemp, Schaeffer & Rowe's motion to certify the record.

Charles A. Koenig, for appellee; John A. Yaklevich, pro se.

Lane, Alton & Horst, Charles K. Milless and Rick E. Marsh,
for appellants.

Alice Robie Resnick, J. This case presents several
questions concerning the tort of abuse of process. Specifically,
we will consider (1) whether Ohio recognizes the tort, and if
so, the elements of the tort; (2) whether a cause of action for
abuse of process is a compulsory counterclaim which must be
brought as part of the underlying litigation which gives rise to
the claim; and (3) which statute of limitations is applicable to
the tort. Because the trial court dismissed Yaklevich's abuse of
process claim on statute of limitations grounds, this case has
not progressed beyond an examination of the complaint on its
face. While our consideration is accordingly limited as well, we
are able to reach general conclusions in resolving the issues
presented.
Although a claim for malicious civil prosecution is not
directly at issue, the nature of this case requires us to conduct
an examination of certain aspects of a malicious civil
prosecution claim in order to compare and contrast that tort with
the related, but separate, tort of abuse of process.
I
Elements of Abuse of Process
"Ohio law, like the English common law before it, has long
recognized a right to recover in tort for the misuse of civil and
criminal actions as a means of causing harm." Trussell v. Gen.
Motors Corp. (1990), 53 Ohio St.3d 142, 144, 559 N.E.2d 732, 734,
citing Pope v. Pollock (1889), 46 Ohio St. 367, 368-371, 21 N.E.
356, 356-357. In Trussell, this court examined the development
of case law in Ohio setting forth the elements of the tort of
malicious criminal prosecution, contrasting the elements of that
tort with the elements of the tort of malicious civil
prosecution. The Trussell court, applying paragraph one of the
syllabus of Rogers v. Barbera (1960), 170 Ohio St. 241, 10 O.O.2d
248, 164 N.E.2d 162, observed: "The elements of the tort of
malicious criminal prosecution are (1) malice in instituting or
continuing the prosecution, (2) lack of probable cause, and (3)
termination of the prosecution in favor of the accused."
Trussell, supra, at syllabus.
As was noted by the Trussell court, the elements of the tort
of malicious civil prosecution were set forth in Crawford v.
Euclid Natl. Bank (1985), 19 Ohio St.3d 135, 139, 19 OBR 341,
344, 483 N.E.2d 1168, 1171: "'(1) malicious institution of prior
proceedings against the plaintiff by defendant, *** (2) lack of
probable cause for the filing of the prior lawsuit, *** (3)
termination of the prior proceedings in plaintiff's favor, ***
and (4) seizure of plaintiff's person or property during the
course of the prior proceedings ***.'"1 (Citations omitted.)
The tort of malicious prosecution, whether criminal or
civil, provides a remedy when a proceeding is instituted without
probable cause. However, it does not provide a remedy for a
related, yet different situation. The tort action termed "abuse
of process" has developed for "cases in which legal procedure has
been set in motion in proper form, with probable cause, and even
with ultimate success, but nevertheless has been perverted to
accomplish an ulterior purpose for which it was not designed."
Prosser & Keeton, The Law of Torts (5 Ed. 1984) 897, Section

121. We accept the proposition that the tort of malicious civil
prosecution does not provide a remedy for a situation in which
process is used to accomplish an improper ulterior purpose. Such
a situation occurs when there is an "act or threat not authorized
by the process, or aimed at an objective not legitimate in the
use of the process ***." Id. at 898. Accordingly, we recognize
the tort of abuse of process as a distinct tort in its own right,
distinguishable from the tort of malicious civil prosecution.
See Clermont Environmental Reclamation Co. v. Hancock (1984), 16
Ohio App.3d 9, 16 OBR 9, 474 N.E.2d 357; Avco Delta Corp. v.
Walker (1969), 22 Ohio App.2d 61, 51 O.O.2d 122, 258 N.E.2d 254.
Having determined that Ohio recognizes the tort of abuse of
process, we now address the elements of the tort. We hold that
the three elements of the tort of abuse of process are: (1) that
a legal proceeding has been set in motion in proper form and with
probable cause; (2) that the proceeding has been perverted to
attempt to accomplish an ulterior purpose for which it was not
designed2; and (3) that direct damage has resulted from the
wrongful use of process.3
Even though the tort of malicious prosecution and the tort
of abuse of process have different elements, in some situations
the same facts which may constitute an abuse of process may also
support an action for malicious prosecution. In that case, a
complaint could allege both causes of action, in separate
counts. In such a situation, a consideration of whether probable
cause was present to bring the underlying litigation would be the
key to determining under which tort theory the action should
proceed.
II
Abuse of Process as a Counterclaim
Civ.R. 13(A) provides that, as a general rule, a party must
state as a counterclaim any claim he or she has against an
opposing party "if it arises out of the transaction or occurrence
that is the subject matter of the opposing party's claim ***."
We acknowledge that some courts have found that an abuse of
process claim is a compulsory counterclaim in the underlying
litigation, and that the failure to raise such a claim at that
time precludes it from being raised in a subsequent suit. See,
e.g., Yost v. Torok (1986), 256 Ga. 92, 344 S.E.2d 414. However,
we, along with many other courts which have considered the issue,
do not take that view. See, generally, Annotation, Necessity and
Permissibility of Raising Claim for Abuse of Process by Reply or
Counterclaim in Same Proceeding in Which Abuse Occurred -- State
Cases (1990), 82 A.L.R.4th 1115.
We agree with the proposition that an abuse of process claim
may be raised as a permissive counterclaim in the underlying
litigation in the appropriate case. See, e.g., Clermont
Environmental Reclamation Co., supra, and Avco Delta Corp.,
supra, both of which implicitly recognized that a claim for abuse
of process can legitimately be brought as a counterclaim in the
proper case.4 At the same time, we determine that the abuse of
process claim need not be raised as a compulsory counterclaim
pursuant to Civ.R. 13(A). In a typical case, the abuse of
process does not "arise out of the transaction or occurrence that
is the subject matter of the underlying claim" (emphasis added)
but instead arises from events that occur during the course of
the underlying litigation. Therefore we hold that a claim for

abuse of process is not a compulsory counterclaim which must be
brought in the underlying litigation.
III
Statute of Limitations for Abuse of Process
R.C. 2305.11(A) provides that "[a]n action for *** malicious
prosecution *** shall be commenced within one year after the
cause of action accrued ***." Both the trial court and court of
appeals in this case found that the one-year limitations period
of R.C. 2305.11(A) for an action for malicious prosecution is
also applicable to an action for abuse of process. The courts
below apparently held that because the two actions are related,
the same statute of limitations should apply to both. We do not
agree.
R.C. 2305.09 provides, in pertinent part:
"An action for any of the following causes shall be brought
within four years after the cause thereof accrued:
"***
"(D) For an injury to the rights of the plaintiff not
arising on contract nor enumerated in sections 2305.10 to
2305.12, inclusive, 2305.14 and 1304.29 of the Revised Code."
In determining which statute of limitations should apply, we
must consider the language of these statutes; we also must
consider whether malicious prosecution and abuse of process are
sufficiently similar that both should be controlled by R.C.
2305.11. R.C. 2305.11(A) specifically provides for the
application of the one-year statute of limitations for malicious
prosecution. It does not necessarily follow that the same
one-year statute applies to actions for abuse of process simply
because such an action is similar to malicious prosecution.
While both malicious prosecution and abuse of process
involve the improper use of a separate civil action, the two
torts have different elements, and differ in their focus. The
key consideration in a malicious civil prosecution action is
whether probable cause was present initially to bring the
previous suit, whereas the key consideration in an abuse of
process action is whether an improper purpose was sought to be
achieved by the use of a lawfully brought previous action. Our
discussion of the elements of abuse of process in Part I above
convinces us that the differences between malicious prosecution
and abuse of process are significant. Indeed, we recognized that
malicious prosecution and abuse of process are separate and
distinct causes of action.
Because of the significant differences between the two
torts, R.C. 2305.11's specific provision of a one-year period of
limitations for an action for malicious prosecution does not also
apply to a cause of action for abuse of process. We hold that an
action for abuse of process is governed by the four year
limitations period of R.C. 2305.09. See Yeager v. Local Union 20
(1983), 6 Ohio St.3d 369, 375, 6 OBR 421, 427, 453 N.E.2d 666,
672 (four-year statute of limitations applicable to an injury not
listed in any of the sections referred to in R.C. 2305.09).5
IV
Conclusion
In applying the conclusions reached in the preceding
discussion to the facts of this case, we agree with the trial
court and the court of appeals that Yaklevich's complaint on its
face sets forth a claim for abuse of process which is capable of

overcoming a motion to dismiss for failure to state a claim under
Civ. R. 12(B)(6). Further, we agree with the court of appeals'
determination that Yaklevich was not required to raise his claim
for abuse of process as a counterclaim during the underlying
proceeding. Finally, although we disagree with the court of
appeals on the issue of which statute of limitations applies to a
claim for abuse of process, we uphold the ultimate result reached
by the court of appeals, which is that Yaklevich's claim was
timely brought. For all the foregoing reasons, the judgment of
the court of appeals is affirmed as modified and this cause is
remanded to the trial court for further proceedings consistent
with this opinion.6
Judgment affirmed as modified.
Moyer, C.J., A.W. Sweeney, Douglas, F.E. Sweeney and
Pfeifer, JJ., concur.
Wright, J., concurs in part and dissents in part.

FOOTNOTES:
1 Although Yaklevich's complaint appears to allege some of the
elements of malicious civil prosecution, Yaklevich did not allege
the existence of the fourth element, seizure of person or
property. For that reason, the trial court found that no claim
was stated for malicious civil prosecution. Yaklevich did not
appeal that ruling; therefore, no issue regarding the propriety
of the "arrest or seizure" requirement is before us. While the
Trussell court observed that the majority of states does not
require that the "arrest or seizure" element be proven, and that
the Second Restatement of Torts has eliminated the requirement,
like that court we express no opinion on the viability of that
element. See Trussell, supra, 53 Ohio St.3d at 145, 559 N.E.2d
at 735-736, and at fn. 3.
2 Therefore, "there is no liability [for abuse of process] where
the defendant has done nothing more than carry out the process to
its authorized conclusion, even though with bad intentions."
Prosser & Keeton, supra, at 898.
3 We specifically find that seizure of person or property is not
an element of the tort of abuse of process.
4 By contrast, a plaintiff who brings a malicious civil
prosecution suit must show that the previous litigation
terminated in his or her favor. See Kelly v. Whiting (1985), 17
Ohio St.3d 91, 94, 17 OBR 213, 216, 477 N.E.2d 1123, 1127;
Levering v. Morrow Cty. Natl. Bank (1912), 87 Ohio St. 117, 122,
100 N.E. 322, 323. For that reason, a claim for malicious civil
prosecution cannot be brought as a counterclaim, but must be
brought in a separate suit after the underlying litigation is
terminated.
5 Because a cause of action for abuse of process is governed
by a four-year statute of limitations, there is no question in
this case that Yaklevich's abuse of process claim was timely.
Therefore, we do not reach the issue of when a cause of action
for abuse of process accrues.
6 As was mentioned earlier, in some situations the same
actions which support an abuse of process claim may also support
a claim for malicious prosecution. However, the two torts are
not interchangeable; each operates in its own sphere. The
presence or absence of probable cause is the determining factor
which divides the areas of operation of the two torts. Because

of the distinctions we have drawn between the torts of abuse of
process and malicious prosecution, and because of the differing
elements of each, it will often be necessary to distinguish
between the two, particularly in light of our determination that
a different statute of limitations applies to each. Where it is
not clear whether there was probable cause to bring the claims in
the underlying suit, one who allegedly is injured by the improper
use of a civil action would be wise to allege both malicious
prosecution and abuse of process in separate counts of his or her
complaint.
This case has never progressed beyond a consideration of the
facial allegations of the complaint. Hence, the limited state of
the record before us prevents us from conducting any type of
inquiry into whether there was probable cause for the claims
brought against Yaklevich by Kemp, Schaeffer & Rowe in the
underlying Frecker litigation.
Wright, J., concurring in part and dissenting in part. I must
respectfully dissent from the notion that the applicable statute of
limitations for abuse of process is R.C. 2305.09. It would appear
that all of the commentators and the vast majority of the cases
dealing with this matter advocate a one-year limitation as provided by
R.C. 2305.11, which currently states:
"(A) An action for libel, slander, malicious prosecution, or
false imprisonment, an action for malpractice other than an action
upon a medical, dental, optometric, or chiropractic claim, or an
action upon a statute for a penalty or forfeiture shall be commenced
within one year after the cause of action accrued ***."
"The statute of limitations [for abuse of process] is an
affirmative defense and applies if more than one year is elapsed from
the time the cause of action arose to the commencement of the abuse of
process action. Although R.C. {2305.11(A) does not specifically refer
to abuse of process but, instead, refers to malicious prosecution,
since abuse of process is generally regarded as a form of malicious
prosecution, the one year statute of limitations should be utilized."
2 Anderson's Ohio Civil Practice (1989) 3, Section 11.02.
Yaklevich's abuse of process claim is clearly time-barred. It is
an elemental proposition of law that a cause of action for abuse of
process is complete as soon as the acts complained of are committed.
See, generally, 72 Corpus Juris Secundum (1987) 702, Process, Section
114a. Indeed, Yaklevich's complaint itself alleges that appellants'
abuse of process dates from the filing of their complaint in December
1987. At the very latest the statute began to run when Yaklevich
filed his answer to appellants' complaint, which date was June 30,
1988. The complaint before us was filed on December 27, 1990 -- a
year and a half beyond the end of the limitations period.
Although the majority distinguishes the two causes of action, I
do not find the distinction sufficient to justify application of a
different statute of limitations. Thus, I would affirm the position
of the court of appeals and the trial court on this issue and
reinstate the judgment of the trial court.
I concur in syllabus paragraphs one and two of the majority
opinion but not the result achieved here.


 

Ask a Lawyer

 

 

FREE CASE REVIEW BY A LOCAL LAWYER!
|
|
\/

Personal Injury Law
Accidents
Dog Bite
Legal Malpractice
Medical Malpractice
Other Professional Malpractice
Libel & Slander
Product Liability
Slip & Fall
Torts
Workplace Injury
Wrongful Death
Auto Accidents
Motorcycle Accidents
Bankruptcy
Chapter 7
Chapter 11
Business/Corporate Law
Business Formation
Business Planning
Franchising
Tax Planning
Traffic/Transportation Law
Moving Violations
Routine Infractions
Lemon Law
Manufacturer Defects
Securities Law
Securities Litigation
Shareholder Disputes
Insider Trading
Foreign Investment
Wills & Estates

Wills

Trusts
Estate Planning
Family Law
Adoption
Child Abuse
Child Custody
Child Support
Divorce - Contested
Divorce - Uncontested
Juvenile Criminal Law
Premarital Agreements
Spousal Support
Labor/Employment Law
Wrongful Termination
Sexual Harassment
Age Discrimination
Workers Compensation
Real Estate/Property Law
Condemnation / Eminent Domain
Broker Litigation
Title Litigation
Landlord/Tenant
Buying/Selling/Leasing
Foreclosures
Residential Real Estate Litigation
Commercial Real Estate Litigation
Construction Litigation
Banking/Finance Law
Debtor/Creditor
Consumer Protection
Venture Capital
Constitutional Law
Discrimination
Police Misconduct
Sexual Harassment
Privacy Rights
Criminal Law
DUI / DWI / DOI
Assault & Battery
White Collar Crimes
Sex Crimes
Homocide Defense
Civil Law
Insurance Bad Faith
Civil Rights
Contracts
Estate Planning, Wills & Trusts
Litigation/Trials
Social Security
Worker's Compensation
Probate, Will & Trusts
Intellectual Property
Patents
Trademarks
Copyrights
Tax Law
IRS Disputes
Filing/Compliance
Tax Planning
Tax Power of Attorney
Health Care Law
Disability
Elder Law
Government/Specialty Law
Immigration
Education
Trade Law
Agricultural/Environmental
IRS Issues

 


Google
Search Rominger Legal


 


LEGAL HELP FORUM - Potential Client ? Post your question.
LEGAL HELP FORUM - Attorney? Answer Questions, Maybe get hired!

NOW - CASE LAW - All 50 States - Federal Courts - Try it for FREE


 


Get Legal News
Enter your Email


Preview

We now have full text legal news
drawn from all the major sources!!

ADD A SEARCH ENGINE TO YOUR PAGE!!!

TELL A FRIEND ABOUT ROMINGER LEGAL

Ask Your Legal Question Now.

Pennsylvania Lawyer Help Board

Find An Attorney

TERMS OF USE - DISCLAIMER - LINKING POLICIES

Created and Developed by
Rominger Legal
Copyright 1997 - 2010.

A Division of
ROMINGER, INC.