Ash v. Ash - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

	ROMINGER LEGAL
		Ohio Court Cases and Opinions - Ohio Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
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.

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.

Ash et al., Appellants, v. Ash, Appellee.
[Cite as Ash v. Ash (1995), Ohio St.3d .]
Torts -- Malicious prosecution -- Compromise between defendant
in a criminal proceeding and the prosecutor forecloses a
later malicious prosecution claim against the complaining
witness when the complaining witness was not a party to
that compromise.
A prosecution that is terminated by reason of a voluntary
settlement or agreement of compromise with the accused is
not indicative of guilt or innocence and, therefore, is
not a termination in favor of the accused. (3 Restatement
of the Law 2d, Torts [1977], Section 660[a], approved and
adopted.)
(No. 94-1160 -- Submitted May 9, 1995 -- Decided April 26,
1995.)
Certified by the Court of Appeals for Wayne County, No.
2817.
In the summer of 1991, plaintiff-appellant, Deborah E.
Ash, instituted divorce proceedings against her husband,
defendant-appellee, Ned D. Ash, Sr. ("Ash, Sr."), and left the
house ("marital home"), where she had lived with Ash, Sr.
during their marriage. Ash, Sr. is the sole owner of the
marital home, which is located in Apple Creek, Ohio. Shortly
after Deborah Ash instituted the divorce proceedings, Ash, Sr.
moved from the marital home and leased the property to his son,
defendant, Ned D. Ash, Jr. ("Ash, Jr.").
On the advice of an assistant prosecuting attorney of
Wayne County, Deborah Ash forcedly entered the marital home on
at least two occasions, allegedly with her son-in-law,
plaintiff-appellant, Craig Devore, for the purpose of
collecting her personal belongings. They allegedly damaged a
pickup truck, a window, and a door lock at the marital home.
After the unauthorized entries, Ash, Jr., accompanied by
Ash, Sr., went to the office of the Prosecuting Attorney of
Wayne County and signed criminal complaints, charging Deborah
Ash and Devore with committing criminal trespass and criminal
damaging. Deborah Ash and Devore were each charged with two
counts of criminal trespass, and Deborah Ash was also charged

with one count of criminal damaging.
Deborah Ash and Devore filed motions to dismiss the
charges against them. The Wayne County Municipal Court denied
their motions, holding that a spouse can be found guilty of
trespassing in an estranged spouse's house without permission.
During Deborah Ash's jury trial after the state had begun
presenting its evidence and the trial judge called the parties'
attorneys into his chambers and indicated that he was
considering dismissing the criminal trespass charges against
Deborah Ash, but continuing the trial with respect to the
charge of criminal damaging. The judge suggested that Deborah
Ash pay all court costs and agree to a restraining order
prohibiting her from entering the marital home and that the
state, in return, dismiss all criminal charges against her.
After negotiating with Deborah Ash and after consulting
with Ash, Jr., the state agreed and moved to dismiss all
charges against her and Devore in exchange for their paying all
court costs and Deborah Ash's consenting to a restraining order
prohibiting her from entering the marital home owned by Ash,
Sr. and from destroying marital assets. The prosecutor then
moved to dismiss all charges against Deborah Ash and Devore on
the express condition that they pay all court costs and that
Deborah Ash agree to the restaining order. Deborah Ash paid
court costs of $444.81 and signed a restraining order
prohibiting her from entering the marital home. Devore paid
court costs of $71. All charges against them were dismissed.
Subsequently, Deborah Ash and Devore filed separate
malicious prosecution actions against Ash, Sr. and Ash, Jr. in
the Court of Common Pleas of Wayne County. The cases were
consolidated before trial. In their complaints, Deborah Ash
and Devore asserted that Ash, Sr. and Ash, Jr. had procured
criminal proceedings against them without probable cause. The
defendants filed motions for summary judgment.
The trial court ruled that Ash, Sr. and Ash, Jr. were
entitled to summary judgment and dismissed all complaints
against them. Upon appeal, the court of appeals concluded that
the prosecutor had dismissed the criminal charges against
Deborah Ash and Devore in the earlier criminal cases pursuant
to a compromise and affirmed the judgment of the trial court.
Finding its judgment in conflict with the decision of the Fifth
District Court of Appeals in Street v. Nichols Philadelphia
Corp. (Dec. 1, 1983), Tuscarawas App. No. 1781, unreported, the
court of appeals certified the record of the cause to this
court for review and final determination.

Kennedy, Cicconetti & Rickett Co., L.P.A., David C.
Knowlton and William G. Rickett, for appellants.
Buckingham, Doolittle & Burroughs L.P.A., Reginald S.
Kramer and Hamilton DeSaussure, Jr., for appellee.

Wright, J. The issue certified to this court is whether
"a compromise between a defendant in a criminal proceeding and
the prosecutor foreclose[s] a later malicious prosecution claim
against the complaining witness when the complaining witness
was not a party to that compromise." The answer to this query
is "yes."
This court previously has held that "[t]he 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 v. Gen. Motors Corp. (1990), 53 Ohio St.3d
142, 559 N.E.2d 732, syllabus. A private person who initiates
or procures the institution of criminal proceedings against
another is not subject to liability unless the person against
whom the criminal proceedings were initiated proves all three
of the above-listed elements. See 3 Restatement of the Law 2d,
Torts (1977) 406, Section 653. This case concerns only the
third element -- whether the criminal proceedings that gave
rise to these malicious prosecution actions were terminated in
favor of the plaintiffs.
A proceeding is "terminated in favor of the accused" only
when its final disposition indicates that the accused is
innocent. See 3 Restatement of the Law 2d, Torts (1977) 420,
Section 660, Comment a. Thus, an unconditional, unilateral
dismissal of criminal charges or an abandonment of a
prosecution by the prosecutor or the complaining witness that
results in the discharge of the accused generally constitutes a
termination in favor of the accused. See Douglas v. Allen
(1897), 56 Ohio St. 156, 46 N.E. 707; see, also, Prosser &
Keeton, Law of Torts (5 Ed.1984) 874, Section 119 ("Prosser");
3 Restatement of the Law 2d, Torts (1977) 419, Section 659(c),
Comment e.
However, a prosecution that is terminated by reason of a
voluntary settlement or agreement of compromise with the
accused is not indicative of guilt or innocence and, therefore,
is not a termination in favor of the accused. See Prosser,
supra, at 875; 54 Corpus Juris Secundum (1987) 581, Malicious
Prosecution, Section 55; 52 American Jurisprudence 2d (1970)
211, Malicious Prosecution, Section 43. 3 Restatement of the
Law 2d, Torts (1977), Section 660, provides:
"A termination of criminal proceedings in favor of the
accused other than by acquittal is not a sufficient termination
to meet the requirements of a cause of action for malicious
prosecution if
"(a) the charge is withdrawn or the prosecution abandoned
pursuant to an agreement of compromise with the accused[.]"
Comment c to that section gives the reason for this rule:
"Although the accused by his acceptance of a compromise does
not admit his guilt, the fact of compromise indicates that the
question of his guilt or innocence is left open. Having bought
peace the accused may not thereafter assert that the
proceedings have terminated in his favor."
The primary purpose of a settlement or an agreement of
compromise is to avoid a determination on the merits of the
criminal proceeding. It would be unfair to a complaining
witness to allow an accused to secure the dismissal of the
criminal charges against him or her by consenting to a
compromise and then take advantage of the termination by suing
the complaining witness.
The appellants argue that the trial court should not have
granted the defendants' motions for summary judgment because
the existence of an agreement of compromise between the
plaintiffs and the defendants is a jury question. We disagree
for two reasons. First, it is the function of the court and

not the jury to determine whether the criminal proceedings were
terminated in favor of the plaintiffs. See 3 Restatement of
the Law 2d, Torts (1977) 448, Section 673(b). With regard to
the termination of criminal proceedings, a jury's only function
is to determine the circumstances surrounding the termination
if facts are disputed. Id. at 449, Comment e.
In the case before us, both lower courts properly
concluded, as a matter of law, that the criminal charges were
dismissed pursuant to a voluntary agreement of compromise. The
prosecutor expressly conditioned the motions to dismiss the
criminal charges upon both plaintiffs' agreement to pay court
costs and Deborah Ash's consent to a restraining order. It is
undisputed that the plaintiffs voluntarily fulfilled those
express conditions. Under these circumstances, the dismissal
of the criminal charges was not unilateral; the plaintiffs, as
well as the prosecutor, gave up something to effectuate the
settlement and secure their dismissal. The actual amounts paid
by the plaintiffs to secure their dismissal is immaterial. The
amount of a settlement is often based on a variety of factors
completely unrelated to the merits of the case, such as a
desire to avoid a timely and inconvenient trial, a party's
continued ability to finance further litigation, and the extent
to which a person is risk-adverse and unwilling to gamble on
the outcome of the trial.
Appellants' argument fails for another reason. An
agreement of compromise does not have to be between the accused
and the complaining witness. We recognize that most of the
published cases concerning a termination of criminal
proceedings by reason of a compromise involve a compromise
between the accused and the complaining witness.1 See,
generally, Annotation (1983), 26 A.L.R.4th 565. However, the
rule enunciated in Section 660 of the Restatement also
encompasses compromises between the accused and the prosecuting
attorney. Neither type of compromise terminates the
prosecution in favor of the accused because they both avoid a
determination on the merits and leave open the question of the
accused's guilt or innocence.
When faced with the issue, courts in other jurisdictions
have held that a voluntary compromise between an accused and
the prosecutor bars a malicious criminal prosecution action
against the complaining witness. In Bowman v. Breeden (Dec.
20, 1988), Tenn. App. No. 1206, unreported, 1988 WL 136640, a
case strikingly similar to the one before us, the attorney
general moved to dismiss a criminal larceny charge conditioned
upon the accused's agreement to pay court costs. The charges
against the accused were subsequently dismissed pursuant to his
agreement to pay court costs. The accused then filed a
malicious prosecution action against the private person who had
procured his arrest. The Tennessee court of appeals held that
the dismissal of the criminal charges pursuant to the
settlement between the accused and the state was not
sufficiently favorable to the accused to sustain his malicious
prosecution action. Id. at 2. See, also, Schumer v. Craig
Distrib. Co. (Mo.App.1987), 745 S.W.2d 163; Shinn v. Bank of
Crocker (Mo.App.1990), 803 S.W.2d 621, 627-628.
For the foregoing reasons, we agree with both lower courts
that the defendants were entitled to summary judgment.

Although the plaintiffs may not have been aware of the legal
effect of their agreements of compromise, the legal effect
exists nonetheless and bars their malicious prosecution
actions.
Judgment affirmed.
Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer and
Hadley, JJ., concur.
Ronald E. Hadley, J., of the Third Appellate District,
sitting for Cook, J.

FOOTNOTE:
1 Although not necessary for our holding, we note that
Deborah Ash quite clearly entered into an agreement of
compromise with Ash, Sr. Both agreed to and applied for a
temporary restraining order prohibiting both of them from
entering the marital home or destroying marital assets.