[Cite as Corsaro & Assocs. Co., L.P.A. v. Weston Hurd, L.L.P., 2015-Ohio-423.]


                 Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA



                                  JOURNAL ENTRY AND OPINION
                                          No. 101534



                             CORSARO & ASSOCIATES CO., L.P.A.

                                                           PLAINTIFF-APPELLANT

                                                     vs.

                                  WESTON HURD, L.L.P., ET AL.

                                                           DEFENDANTS-APPELLEES




                                         JUDGMENT:
                                   REVERSED AND REMANDED



                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                     Case No. CV-14-823689


        BEFORE: E.T. Gallagher, J., Jones, P.J., and Keough, J.

        RELEASED AND JOURNALIZED: February 5, 2015
ATTORNEY FOR APPELLANT

Christian M. Bates
Corsaro & Associates Co., L.P.A.
28039 Clemens Road
Westlake, Ohio 44145


ATTORNEYS FOR APPELLEES

Ronald A. Rispo
Angela G. Carlin
Shawn W. Maestle
Martha Allee
Weston Hurd, L.L.P.
The Tower at Erieview
1301 East Ninth St., Suite 1900
Cleveland, Ohio 44114-1862
EILEEN T. GALLAGHER, J.:

       {¶1} Plaintiff-appellant, Corsaro & Associates Co., L.P.A. (“Corsaro”), appeals the trial

court’s judgment dismissing its complaint with prejudice. We find merit to the appeal and

reverse.

       {¶2} In December 2005, someone from the Cleveland Clinic Hospice Program contacted

Claire Long (“Long”), an attorney at Corsaro, to prepare a will for a terminally ill patient named

Albert Franz (“Franz”).     Per Franz’s instructions, Long prepared the will to bequeath the

majority of Franz’s assets to his neighbors Branko and Robin Prodanovic. In January 2006,

Franz passed away, and Branko Prodanovic (“Prodanovic”) was appointed the executor of

Franz’s estate. After Franz’s death, Prodanovic discovered that Franz had undisclosed wealth in

excess of $1,000,000. Prodanovic hired Long and Corsaro to administer Franz’s will.

       {¶3} Prodanovic was a foreign citizen, held no assets, and had recently filed for personal

bankruptcy. Under these circumstances, Prodanovic was unable to post the bond necessary to

serve as executor of Franz’s estate. Therefore, Long obtained leave from the probate court to

make a deposit in lieu of posting a bond. Prodanovic deposited funds in a custodial savings

account at FirstMerit Bank. Franz’s relatives filed a will contest and named the Prodanovics as

defendants. Appellees Weston Hurd L.L.P., Angela Carlin, and Shawn Maestle (collectively

“appellees”) defended the Prodanovics in the will contest, and in January 2008, appellees took

over the administration of Franz’s estate. In February 2009, appellees filed a legal malpractice

action against Corsaro and Long alleging that they negligently administered Franz’s estate by

failing to deposit the bond money into an account bearing a higher interest rate.
       {¶4} In March 2011, Corsaro and Long filed a third-party complaint against appellees in

the legal malpractice suit. Corsaro asserted claims for contribution, alleging that appellees were

negligent in their subsequent handling of Franz’s estate, and that their negligence contributed to

any damages the Prodanovics may have suffered.

       {¶5} Appellees filed a motion to dismiss the third-party complaint, but the court never

ruled on it. From June 2011 until June 2013, the case remained dormant on the trial court’s

docket, and appellees did nothing to prosecute the malpractice action. Following two years of

inactivity, Corsaro requested that the court set a pretrial. Corsaro also contacted appellees to

schedule Prodanovic’s deposition. In November 2013, two days before the scheduled pretrial,

appellees dismissed the legal malpractice action because they decided it was not cost effective.

       {¶6} On March 14, 2014, Corsaro filed this action and alleged a single count of abuse of

process. In its complaint, Corsaro alleged that although appellees determined sometime after

June 2011 that they would no longer pursue the underlying legal malpractice action, they did not

dismiss the action and allowed the case to remain on the court’s active docket for over two years.

 Corsaro further alleged that while the legal malpractice action may have been filed in proper

form and with probable cause, appellees abused the process by not dismissing the action once it

determined it would no longer pursue it. Finally, Corsaro alleged that appellees purposely

decided not to dismiss the malpractice action in order to harm Corsaro’s goodwill and reputation

and to solicit Corsaro’s employees and clients.

       {¶7} Appellees filed a motion to dismiss Corsaro’s complaint on grounds that it was

barred by the applicable statute of limitations. The trial court granted the motion. Corsaro now

appeals and raises one assignment of error.
       {¶8} In the sole assignment of error, Corsaro contends the trial court erred in granting

appellees’ motion to dismiss. Corsaro argues the trial court erred in determining, from the face

of the complaint, that its abuse of process claim was barred by the statute of limitations.

                                       Standard of Review

       {¶9} We review an order dismissing a complaint for failure to state a claim for relief de

novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44.

Under this standard of review, we must independently review the record and afford no deference

to the trial court’s decision. Herakovic v. Catholic Diocese of Cleveland, 8th Dist. Cuyahoga

No. 85467, 2005-Ohio-5985, ¶ 13.

       {¶10} When reviewing a Civ.R. 12(B)(6) motion to dismiss, we must accept the material

allegations of the complaint as true and make all reasonable inferences in favor of the plaintiff.

Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 2005-Ohio-4985, 834 N.E.2d 791, ¶ 6.

However, “[u]nsupported conclusions of a complaint are not considered admitted * * * and are

not sufficient to withstand a motion to dismiss.” State ex rel. Hickman v. Capots, 45 Ohio St.3d

324, 324, 544 N.E.2d 639 (1989). To prevail on the motion, it must appear from the face of the

complaint that the plaintiff can prove no set of facts that would justify a court granting relief.

O’Brien v. Univ. Comm. Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975).

                                      Statute of Limitations

       {¶11} The statute of limitations is an affirmative defense and is generally not properly

raised in a Civ.R. 12(B)(6) motion to dismiss. Lisboa v. Tramer, 8th Dist. Cuyahoga No. 97526,

2012-Ohio-1549, ¶ 13, quoting Ryan v. Ambrosio, 8th Dist. Cuyahoga No. 91036,

2008-Ohio-6646, ¶ 20.      The Ohio Civil Rules require “notice pleading” rather than “fact

pleading,” and the rules generally do not require a plaintiff to plead operative facts with
particularity.   Bush v. Cleveland Mun. School Dist., 8th Dist. Cuyahoga No. 99612,

2013-Ohio-5420, ¶ 5. Moreover, the civil rules do not require plaintiffs to plead the facts

necessary to avoid the applicability of an affirmative defense. Luburgh v. Bishop, 2d Dist.

Montgomery No. 25818, 2014-Ohio-236, ¶ 12, citing Paul v. World Metals, Inc., 9th Dist.

Summit No. 20130, 2001 Ohio App. LEXIS 718 (Feb. 28, 2001)(holding that Civ.R. 8(C) does

not require the plaintiff to plead the absence of the affirmative defense of the statute of

limitations in the complaint as an element of the tort action); Scott v. Columbus Dept. of Pub.

Utils., 192 Ohio App.3d 465, 2011-Ohio-677, 949 N.E.2d 552, ¶ 8 (10th Dist.) (holding that

plaintiffs need not plead exceptions to the immunity affirmative defense in the complaint).

        {¶12} Civ.R. 8(A)(1) requires that a complaint include only (1) a short and plain

statement showing that the party is entitled to relief, and (2) a demand for judgment for the relief

to which the party claims to be entitled. Id. Notwithstanding the liberal pleading requirements

of Civ.R. 8, the Ohio Supreme Court has held that a court may dismiss a complaint pursuant to

Civ.R. 12(B)(6) for failing to comply with the applicable statute of limitations where the

complaint, on its face, conclusively indicates that the action is time barred. Doe v. Archdiocese

of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 11; Mills v. Whitehouse

Trucking Co., 40 Ohio St.2d 55, 58, 320 N.E.2d 668 (1974).

                                        Abuse of Process

        {¶13} Abuse of process is governed by a four-year statute of limitations. R.C. 2305.09.

Appellees argued in their motion to dismiss that Corsaro’s cause of action accrued, and the

statute of limitation started to run on February 12, 2009, when appellees filed the legal

malpractice action against Corsaro on Prodanovic’s behalf. According to appellees’ argument,
the statute of limitations for abuse of process would have expired on February 12, 2013, and

Corsaro did not file the complaint initiating this action until March 14, 2014.

       {¶14} However, abuse of process claims are “‘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.’” Yaklevich

v. Kemp, Schaeffer, & Rowe Co. L.P.A., 68 Ohio St.3d 294, 300, 626 N.E.2d 115 (1994), quoting

Prosser & Keeton on the Law of Torts, Section 121, 897 (5th Ed.1984).

       {¶15} To prevail on an abuse of process claim, the plaintiff must prove that (1) a legal

proceeding has been set in motion in proper form and with probable cause, (2) the proceeding

was perverted to attempt to accomplish an ulterior purpose for which it was not designed, and (3)

direct damage has resulted from the wrongful use of process. Id. at syllabus. Because an abuse

of process claim arises from perverted actions taken during the litigation sometime after the

complaint was filed, the cause of action generally does not accrue on the day the complaint was

filed. Rather, an abuse of process claim accrues on the date of the allegedly tortious conduct.

Read v. Fairview Park, 146 Ohio App.3d 15, 19, 764 N.E.2d 1079 (8th Dist.2001).

       {¶16} Corsaro’s complaint states, in part:

       Around the time Defendants filed the underlying Complaint on behalf of Branko
       Prodanovic, Defendant Weston Hurd was actively soliciting a number of
       Corsaro’s attorneys to work for Weston Hurd, and were successful in hiring two
       (2) Corsaro attorneys. * * * In connection with those efforts, Weston Hurd was
       using the solicited employees to further solicit Corsaro clients to become Weston
       Hurd clients.

Appellees contend that, according to this paragraph, the alleged misconduct occurred when the

complaint was filed. However, the phrase “around the time” is vague and does not mean that

the actions alleged in the paragraph had occurred when the complaint was filed. Further, not all
the actions described in the paragraph occurred at once. The complaint does not provide any

specific dates as to when the solicitation started, when the attorneys left Corsaro to work at

Weston Hurd, or when the solicitation of Corsaro’s clients occurred.

       {¶17} In a later paragraph, Corsaro’s complaint alleges that appellees’ failure to timely

dismiss the underlying action constituted the misconduct element of the abuse of process claim.

Corsaro claims appellees’ decision not to dismiss the malpractice action was intended to

“undermine and besmirch the reputation and goodwill of Corsaro and its attorneys in connection

with Weston Hurd’s attempt to solicit Corsaro’s attorneys and clients.” The failure to timely

dismiss the underlying action occurred sometime after June 2011. As previously stated, Corsaro

filed the complaint initiating this action on March 14, 2014, less than three years from the date of

the specifically alleged misconduct. Therefore, the complaint does not conclusively indicate, on

its face, that Corsaro failed to file this abuse of process action within the applicable four-year

statute of limitations. Accordingly, the trial court erred in granting appellees’ motion to dismiss.

       {¶18} The sole assignment of error is sustained.

       {¶19} Judgment reversed and remanded to the lower court for further proceedings

consistent with this opinion.

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

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the common pleas 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 T. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
