[Cite as Kerr v. Mid-Am. Mgt. Corp., 2012-Ohio-2632.]


                Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 97571


                                STEVE KERR, ET AL.

                                                         PLAINTIFFS-APPELLANTS

                                                   vs.

                      MID-AMERICA MANAGEMENT
                            CORP., ET AL.

                                                         DEFENDANTS-APPELLEES



                                          JUDGMENT:
                                           AFFIRMED

                                     Civil Appeal from the
                               Cuyahoga County Common Pleas Court
                                    Case No. CP CV-734014

           BEFORE:          E. Gallagher, J., Cooney, P.J., and Keough, J.

           RELEASED AND JOURNALIZED:                         June 14, 2012
ATTORNEY FOR APPELLANTS

Brett M. Mancino
75 Public Square
Suite 1016
Cleveland, Ohio 44147-3521


ATTORNEYS FOR APPELLEES

Robert I. Chernett
Evan T. Byron
Chernett Wasserman, LLC
The Tower at Erieview
1301 East Ninth St., Suite 3300
Cleveland, Ohio 44114
EILEEN A. GALLAGHER, J.:

       {¶1} Plaintiffs-appellants, Steve Kerr and F.M. DeBartolo, appeal the trial

court’s grant of summary judgment in favor of defendants-appellees, Mid-America

Management Corp. (Mid-America) and Kathleen Hendricks.        For the following reasons,

we affirm the decision of the trial court.

       {¶2}    Appellants filed suit for malicious prosecution and later amended that

complaint to asssert an additional claim of abuse of process against Mid-America and

Hendricks.    Mid-America and Hendricks filed a motion to dismiss appellants’ amended

complaint that the trial court converted to a motion for summary judgment pursuant to

Civ.R. 12(B). The trial court granted summary judgment in favor of Mid-America and

Hendricks.     Appellants appeal asserting the following assignment of error:       “The

trial court erred in granting summary judgment as to the appellants’ claims for malicious

prosecution and abuse of process.”

       {¶3} Our review of a trial court’s grant of summary judgment is de novo.

Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Pursuant to

Civ.R. 56(C), summary judgment is appropriate when (1) there is no genuine issue of

material fact, (2) the moving party is entitled to judgment as a matter of law, and (3)

reasonable minds can come to but one conclusion and that conclusion is adverse to the

nonmoving party, said party being entitled to have the evidence construed most strongly

in his favor. Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 653 N.E.2d 1196
(1995), paragraph three of the syllabus; Zivich v. Mentor Soccer Club, 82 Ohio St.3d

367, 696 N.E.2d 201 (1998). The party moving for summary judgment bears the burden

of showing that there is no genuine issue of material fact and that it is entitled to

judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).

      {¶4} Appellants’ amended complaint alleges that a dispute over an outstanding

loan arose between appellants and Hendricks, the property manager of The Imperial

House, a Mid-America apartment building where appellants resided as tenants.

Appellants and Mid-America were previously involved in a forcible entry and detainer

action, and appellants were ordered to vacate Imperial House and remove all of their

personal belongings by May 14, 2009. The removal of appellants’ property was not

accomplished by that date due to a dispute between the parties regarding appellants’

movers.   Appellants allege that their attorneys reached an agreement with Mid-America

allowing them to remove their property on May 15, 2009. However, on that date,

appellants were denied access to the apartment and, as they were attempting to gain

access to the apartment they were arrested by Lakewood police for trespassing.

      {¶5} Hendricks placed the initial call to the Lakewood Police Department on

May 15, 2009 based upon her understanding of the trial court’s eviction order. Police

arrived and appellants were arrested and charged with criminal trespass.           The

prosecutor for the city of Lakewood agreed to dismiss the charges against appellants in

return for their agreement to pay court costs.    Hendricks and Mid-America had no
further involvement in appellants’ criminal case beyond Hendricks’s call to Lakewood

police.

          {¶6} “The elements of a claim for malicious prosecution in Ohio include: (1)

malice in instituting or continuing the prosecution, (2) lack of probable cause, and (3)

termination of the prosecution in favor of the accused.” Doyle v. Gauntner, 8th Dist.

No. 95443, 2010-Ohio-6366, ¶ 24, citing Criss v. Springfield Twp., 56 Ohio St.3d 82, 84,

564 N.E.2d 440 (1990).

          {¶7} “It is the function of the court and not the jury to determine whether the

criminal proceedings were terminated in favor of the plaintiffs.” Ash v. Ash, 72 Ohio

St.3d 520, 523, 651 N.E.2d 945 (1995). The Supreme Court of Ohio explained in Ash

what is required to satisfy the third element of a malicious prosecution claim, stating,

“[a] proceeding is ‘terminated in favor of the accused’ only when its final disposition

indicates that the accused is innocent.” Id. at 522.    The Supreme Court further stated

“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.” Id. at syllabus.

          {¶8}   In regards to the present facts, this court has previously held that a

prosecution dismissed upon agreement that the defendant pay court costs is not a

termination in the defendant’s favor; therefore, in such an instance the defendant,

“cannot establish a prima facie case for malicious prosecution.”          Clark v. Marc

Glassman, Inc., 8th Dist. No. 86190, 2006-Ohio-1335, ¶ 19.
      {¶9} Based on the facts in the record below, we agree with the trial court’s

determination that, “[l]ike Ash, the dismissal was conditioned upon the payment of court

costs. This court finds that, following the precedent set by the [Ohio] Supreme Court,

[appellants’] criminal action was not terminated in favor of the accused.”   As a matter

of law, appellants cannot satisfy the third element of the standard for malicious

prosecution and the trial court’s grant of summary judgment in favor of Mid-America

and Hendricks was proper.

      {¶10} Appellants also argue that genuine questions of material fact precluded

summary judgment on their abuse of process claim. The requisite elements for an

abuse of process claim 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 accomplish

an ulterior purpose for which it was not designed and (3) direct damage has resulted

from the wrongful use of process. Doyle, at ¶ 23, citing Yaklevich v. Kemp, Schaeffer &

Rowe Co., 68 Ohio St.3d 294, 298, 1994-Ohio-503, 626 N.E.2d 115. The parties dispute

whether appellants can satisfy the second element of this standard.

      Initially the tort of abuse of process must be distinguished from malicious
      prosecution. Abuse of process requires a showing that process, once it has
      been issued, has been perverted to accomplish an improper purpose. This
      tort is not for the wrongful or malicious institution of process. It is not
      enough that appellees herein may have had ulterior motives, rather it is
      incumbent upon appellant to prove that a legitimate process employed for a
      legitimate purpose was employed in an improper manner.” (Internal
      citations omitted.) Garnett v. Meckler, 8th Dist. No. 56711, 1990 WL
      37424 (Mar. 29, 1990).
         {¶11}   As recognized by the Ohio Supreme Court,

         “[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.” Prosser & Keeton on Torts (5 Ed.1984)
         898, Section 121. Simply, abuse of process occurs where someone
         attempts to achieve through use of the court that which the court is itself
         powerless to order. Robb v. Chagrin Lagoons Yacht Club, Inc., 75 Ohio
         St.3d 264, 271, 1996-Ohio-189, 662 N.E.2d 9.

         {¶12}   Appellants have failed to raise a genuine issue of material fact to preclude

summary judgment on their abuse of process claim. As an initial matter we note that

appellants’ affidavits fail to establish first-hand knowledge of the purported “agreement”

between appellants’ attorneys and Mid-America’s attorney(s) for appellants to remove

their property on May 15, 2009. Furthermore, even assuming such agreement did in

fact exist, as the trial court pointed out, such an agreement would expressly violate the

trial court’s prior order barring appellants from entering the property and requiring them

to remove their personal property by May 14, 2009.       Appellants have failed to offer any

authority for the proposition that they had the authority to ignore the trial court’s order.

We also note, even if we ignored the fact that appellants’ affidavits fail to present

first-hand knowledge of the alleged agreement, there is absolutely no evidence on the

record to indicate that Hendricks, who made the call to the police, had any personal

knowledge of such agreement.        In fact, Hendricks specifically averred in her affidavit

that she placed the call to the police based on her understanding of the trial court’s prior

order.    In light of the above factual deficiencies, we agree with the trial court’s
conclusion that Hendricks was, “completely justified in calling the Lakewood Police

because [appellants] were not, by Court order, allowed to be on the property on May 15.”

      {¶13}    Appellants have failed to present any other facts to demonstrate that a

legitimate process employed for a legitimate purpose was employed in an improper

manner by Hendricks and Mid-America.          Appellants have offered no evidence or

argument to refute the affidavit of Hendricks wherein she asserts that she and

Mid-America had no further involvement in appellants’ criminal trespass cases

subsequent to her initial phone call to the Lakewood Police Department.     The trial court

did not err in granting summary judgment on appellants’ abuse of process claim.

      {¶14} Appellants’ sole assignment of error is without merit and overruled.

      {¶15}    The judgment of the trial court is affirmed.

      It is ordered that appellees recover from appellants costs herein taxed.

      It is ordered that a special mandate be sent to said lower court to carry this

judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

COLLEEN CONWAY COONEY, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
