[Cite as Cox v. Oliver, 2016-Ohio-4575.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 GEORGIA B. COX                                  :
                                                 :
         Plaintiff-Appellant                     :  C.A. CASE NO. 26891
                                                 :
 v.                                              :  T.C. NO. 14CV3749
                                                 :
 KIMBERLY OLIVER, et al.                         :  (Civil appeal from
                                                 :   Common Pleas Court)
         Defendants-Appellees                    :
                                                 :
                                                 :
                                            ...........

                                           OPINION

                             Rendered on the 24th day of June, 2016.

                                            ...........


GEORGIA B. COX, 4191 Mapleleaf Drive, Dayton, Ohio 45416
    Plaintiff-Appellant

LINDSAY M. JOHNSON, Atty. Reg. No. 0077753, Fifth Third Center, 1 S. Main Street,
Suite 1800, Dayton, Ohio 45402
       Attorney for Defendant-Appellee/Cross-Appellant, Beverly Meyer

LAURA G. MARIANI, Atty. Reg. No. 0063284, Assistant Prosecuting Attorney, 301 W.
Third Street, Dayton, Ohio 45422
       Attorney for Defendant-Appellee, Kimberly Oliver

                                           .............

HALL, J.

        {¶ 1} Georgia B. Cox appeals pro se from the trial court’s Civ.R. 12(B)(6) dismissal
                                                                                       -2-


of her abuse-of-process claim against appellee Beverly Meyer and its subsequent entry

of summary judgment in favor of Meyer on a legal-malpractice claim. Meyer has filed a

cross appeal in which she defends the trial court’s summary-judgment ruling on

alternative grounds not relied on by the trial court.

       {¶ 2} Cox advances three assignments of error in her appeal. First, she contends

the trial court’s dismissal of her abuse-of-process claim is unsupported by law and is an

abuse of discretion. Second, she claims the trial court’s summary judgment ruling is

against the manifest weight of the evidence. Third, she argues that the trial court’s

summary judgment ruling constitutes plain error.

       {¶ 3} The present dispute stems from Cox’s alleged assault on a student with

disabilities at Meadowdale High School in October 2012. At the time of the incident, Cox,

a teacher, was working as an “intervention specialist.” She allegedly punched the student

and was indicted for fourth-degree felony assault. A jury found her guilty, and this court

affirmed her conviction in May 2014. See State v. Cox, 2014-Ohio-2201, 12 N.E.3d 466

(2d Dist.) (“Cox I”).

       {¶ 4} In June 2014, Cox filed a pro se lawsuit against Meyer, an attorney who had

represented the Dayton City School District in connection with the incident, and Kimberly

Oliver, the prosecutor in the criminal case. The complaint contained a number of counts.

As relevant here, they included a malicious-prosecution claim against Meyer and Oliver

and a legal-malpractice claim against Meyer. Cox amended her complaint in mid-August

2014. The primary alteration involved changing the malicious-prosecution claim to one

alleging abuse of process. Meyer and Oliver separately filed Civ.R. 12(B)(6) motions to

dismiss.
                                                                                             -3-




       {¶ 5} On November 13, 2014, the trial court sustained Oliver’s motion to dismiss

in its entirely. In the same ruling, the trial court sustained Meyer’s motion to dismiss on all

counts except the legal-malpractice claim against her. The trial court found the legal-

malpractice allegations marginally sufficient to implicate a “malice” exception to the

general rule that attorneys are not liable to third parties. The trial court’s ruling included

Civ.R. 54(B) certification with regard to its dismissal of all claims against Oliver. This court

affirmed the dismissal of those claims in Cox v. Oliver, 2d Dist. Montgomery No. 26515,

2015-Ohio-3384 (“Cox II”).

       {¶ 6} With regard to Cox’s remaining legal-malpractice claim, Meyer moved for

summary judgment. The trial court sustained that motion. Cox then filed a timely notice

of appeal. As set forth above, she challenges the trial court’s dismissal of her abuse-of-

process claim against Meyer and its entry of summary judgment in favor of Meyer on her

legal-malpractice claim.

       {¶ 7} With regard to Cox’s first assignment of error, which challenges the dismissal

of her abuse-of-process claim, we see no error in the trial court’s ruling. “A motion to

dismiss a complaint for failure to state a claim upon which relief can be granted, pursuant

to Civ.R.12(B)(6), tests the sufficiency of a complaint.” Grover v. Bartsch, 170 Ohio

App.3d 188, 2006-Ohio-6115, 866 N.E.2d 547, ¶ 16 (2d Dist.). The trial court must

construe the complaint in the light most favorable to the plaintiff, presume all of the factual

allegations are true, and make all reasonable inferences in favor of the plaintiff. Id., citing

Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). A Civ.R.

12(B)(6) motion should be granted only where the complaint, so construed, demonstrates
                                                                                         -4-

that plaintiff can prove no set of facts warranting relief. Id. We apply de novo review to a

trial court’s decision sustaining a Civ.R. 12(B)(6) motion. Cox II at ¶ 10.

       {¶ 8} “ ‘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.’ ” (Emphasis added) Cox II at ¶ 13, quoting Yaklevich v. Kemp, Schaeffer &

Rowe Co., L.P.A., 68 Ohio St.3d 294, 626 N.E.2d 115 (1994), at paragraph one of the

syllabus.

       {¶ 9} Count I of Cox’s amended complaint, which attempted to state an abuse-of-

process claim against Meyer and Oliver, contained the following pertinent allegations:

              4. On January 29, 2013[,] knowing Cox was a licensed teacher, and

       alleged to have engaged in conduct for which there was not sufficient and

       verifiable evidence, an indictment was filed with the Clerk of Courts [sic]

       Office, charging Cox with violation of Section 2903.13(A) & (C)(1) of the

       Ohio Revised Code.

              5. During Cox’s trial no further evidence pertaining to the occurrence

       of the alleged crime was presented, and Oliver proceeded without legal

       authority, and compliance with R.C. 2151.421(A)(1)(a), 2151.421(F)(1), or

       2151.421(H) as required by law[.] Yates v. Mansfield Board of Education.

              6. From June 26–June 28, 2013, Kimberly Oliver subjected Cox to

       prosecution alleging Cox had committed a crime that was not supported or

       substantiated by law, thus acting outside the source of the law, and the
                                                                                           -5-


         scope of her official capacity as an assistant prosecutor. Oliver engaged in

         a trial process to use a criminal legal procedure for which there was no legal

         authority to attack Cox’s professional license.

                7. Beverly Meyer in breach of her official capacity as School Board

         Attorney (then Defendant’s employer’s attorney) witnessed, aided and

         supported the malicious abuse of process; allowing what should have been

         her professional judgment to be regulated; and acted to help guarantee

         action against Cox, rather than indemnify Cox’s truthful and rightful statutory

         duty as outlined through sections of a multi-hundred page contract.

                8. The actions of Oliver and Meyer were unjustifiable based on

         evidence they knew to be misleading and deceptive. Their actions were

         intentional and consciously performed intending to cause the Plaintiff harm.

(Amended Complaint, Count I, ¶ 4-8).

         {¶ 10} In its November 13, 2014 ruling dismissing the abuse-of-process claim

against Meyer and Oliver, the trial court held that it failed to state a claim against either

defendant. The trial court opined that under “any reasonable reading of Count I,” the

amended complaint alleged that prosecutor Oliver lacked probable cause to prosecute

Cox. (Nov. 13, 2014 Decision, Order, and Entry at 6). Because the first element of an

abuse-of-process claim is that a legal proceeding has been commenced with probable

cause, the trial court concluded that Count I failed to state a claim against Oliver. (Id. at

6-7). The trial court reached the same conclusion, for the same reason, with respect to

Cox’s abuse-of-process claim against Meyer.1 (Id. at 16).


1   The trial court also correctly noted that Cox’s original malicious-prosecution claim would
                                                                                            -6-


       {¶ 11} As set forth above, the trial court’s ruling contained Civ.R. 54(B) certification

with regard to Cox’s claims against Oliver. On appeal of that ruling, this court affirmed the

dismissal of the abuse-of-process claim against Oliver, reasoning:

              In the present case, Cox could not have prevailed on a malicious

       prosecution claim, because the criminal proceedings did not terminate in

       her favor. After being advised of this possibility in the motions to dismiss

       filed by Oliver and Meyer, Cox then amended her complaint to change her

       claim to abuse of process rather than malicious prosecution. However, the

       trial court rejected the abuse of process claim.

              In this regard, the trial court held that under any reasonable reading

       of the complaint, Cox had alleged that Oliver lacked probable cause to

       prosecute her. Because that allegation logically precluded the possibility

       that Oliver had probable cause to prosecute Cox, as is required for an abuse

       of process claim, the trial court granted the motion to dismiss. Upon

       consideration, we agree with the trial court.

Cox II at ¶ 16-17.

       {¶ 12} Reviewing the same paragraphs of Cox’s amended complaint quoted

above, this court held: “These allegations clearly raise the issue that the prosecution was

instituted and maintained by the prosecutor without probable cause. As such, even

accepting the allegations as true, an action for abuse of process would not lie.” Id. at ¶19.


not have survived Civ.R. 12(B)(6) dismissal against Meyer or Oliver either. Although a
malicious-prosecution claim does require a lack of probable cause, which Cox’s amended
complaint alleged, it also requires “termination of the prosecution in favor of the accused.”
Rieger v. Podeweltz, 2d Dist. Montgomery No. 23520, 2010-Ohio-2509, ¶ 13. Here the
criminal case against Cox resulted in a conviction. It was not terminated in her favor.
                                                                                             -7-




       {¶ 13} We now reach the same conclusion for the same reason with regard to

Cox’s abuse-of-process claim against Meyer, which involves the same allegations in the

same amended complaint. The paragraphs from the amended complaint quoted above

allege that Oliver unlawfully pursued the criminal prosecution against Cox and that Meyer

aided and supported that effort. Regardless of any difference in the roles the two

defendants may have played, the fact remains, as this court found in Cox II, that the

amended complaint clearly suggests the prosecution was commenced without probable

cause, thereby negating the availability of an abuse-of-process claim against either

defendant and supporting the trial court’s Civ.R. 12(B)(6) dismissal of that claim against

Meyer.

       {¶ 14} In her appellate brief, Meyer also argues that the abuse-of-process claim

was subject to dismissal because Cox’s complaint failed to contain sufficient allegations

with regard to the second element of an abuse-of-process claim, namely that the criminal

proceeding was perverted to attempt to accomplish an ulterior purpose for which it was

not designed.2 The only possible ulterior purpose referenced in Count I was Cox’s claim

that the legal proceeding had been commenced “to attack [her] professional license,” i.e.,

to get her fired. We see no allegations, however, that the legal proceeding was “perverted”

in any way to accomplish this allegedly ulterior purpose. Rather, Cox’s termination



2 Meyer raised this argument below in her motion to dismiss, but the trial court does not
appear to have relied on it in its Civ.R. 12(B)(6) ruling. Rather, as set forth above, the trial
court appears to have dismissed the abuse-of-process claim against Meyer and Oliver on
the basis that the amended complaint alleged commencement of the criminal prosecution
without probable cause. Because Meyer’s appellate brief primarily addresses the second
element of an abuse-of-process claim, however, we briefly will address it too.
                                                                                        -8-


appears to have been a predicable consequence of her criminal conviction.

       {¶ 15} “[I]n order to show the process was perverted to accomplish an ulterior

purpose the plaintiff must identify both an act committed during the process that was not

proper in the normal conduct of the proceeding and the defendant’s ulterior motive.”

(Emphasis added) Palivoda v. Felix, 11th Dist. Ashtabula No. 2010-A-0017, 2011-Ohio-

5231, ¶ 44 (Wright, J., concurring in judgment). The defendant must use the process in a

way that perverts the legal proceeding. Id. at ¶ 45. “[T]here 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.” Yaklevich at 298, fn. 2, citing

Prosser & Keeton, Law of Torts (5 Ed.1984) 898. Abuse of process typically involves

using a legal proceeding to coerce a defendant with respect to something outside of the

legal proceeding itself. Broadnax v. Greene Credit Service, 118 Ohio App.3d 881, 890-

891, 694 N.E.2d 167 (2d Dist.1997).

       {¶ 16} Here we see no allegations in the amended complaint that Meyer misused

the criminal-trial process by committing an improper act during that process to coerce

Cox into doing anything. Meyer allegedly assisted Oliver in carrying out the criminal case

to its authorized conclusion, which was a guilty verdict against Cox for felony assault.

Even if we accept, arguendo, that Meyer somehow acted with “bad intentions” or an

“ulterior motive” in hoping for Cox to be fired, Cox’s termination was simply a

consequence of her conviction. In short, we see no allegations in the complaint that Meyer

in any way “perverted” the criminal proceeding to achieve Cox’s discharge. Thus, the

abuse-of-process claim was subject to dismissal for this additional reason as well. The

first assignment of error is overruled.
                                                                                            -9-




       {¶ 17} In her second and third assignments of error, Cox challenges the trial court’s

entry of summary judgment against her on her legal-malpractice claim against Meyer.

These assignments of error relate to Count IV of Cox’s amended complaint, which alleged

“negligence” by Meyer and Oliver.

       {¶ 18} Because Count IV involved allegations pertaining to Meyer’s conduct while

exercising her “official duty of care as that of an attorney,” the trial court properly treated

it as a legal-malpractice claim. See, e.g., Huber v. Mues, 2d Dist. Clark No. 2011-CA-75,

2012-Ohio-2540, ¶ 10 (recognizing that “[c]laims arising out of an attorney’s

representation are legal malpractice claims regardless of how they are pled”). In its Civ.R.

12(B)(6) decision, the trial court held that the legal-malpractice claim against Meyer

survived dismissal for failure to state a claim. Although no attorney-client relationship

existed between Cox, a teacher, and Meyer, an attorney who had represented the school

board in connection with Cox’s assault on a student, the trial court recognized that, in

limited circumstances, an attorney may be liable to a third party. In particular, the trial

court cited Scholler v. Scholler, 10 Ohio St.3d 98, 462 N.E.2d 158 (1984), which provides:

“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.” Id. at paragraph one of

the syllabus. The trial court concluded that Cox could not establish being in privity with

the school district. It found, however, that Count IV was “marginally” sufficient to avoid

dismissal by implicating “the malice exception to the general rule that attorneys will not

be held liable to third parties.”
                                                                                         -10-




       {¶ 19} In its subsequent summary judgment ruling, the trial court found no genuine

issue of material fact as to whether Meyer had acted with malice. Cox challenges that

determination on appeal. Although portions of her second assignment of error are not

entirely clear, Cox insists that Meyer owed her a “duty” under agency law and that her

negligence/legal malpractice cause of action against Meyer did not require a finding of

malice. Cox asserts that “[a]lthough malice is implied by Meyer’s actions, the word never

appears in the complaint and ought not to be some standard for determining cause of

negligence [sic].” (Appellant’s brief at 13). In her third assignment of error, Cox appears

to argue that Meyer acted negligently or maliciously by allowing her to be characterized

in the criminal assault case as a “caretaker” rather than a “teacher.” (Id. at 15-18).

       {¶ 20} We review a trial court’s decision on a motion for summary judgment based

on a de novo standard of review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,

671 N.E.2d 241 (1996). “De novo review means that this court uses the same standard

that the trial court should have used, and we examine the evidence to determine whether

as a matter of law no genuine issues exist for trial.” Brewer v. Cleveland City Schools Bd.

of Edn., 122 Ohio App.3d 378, 383, 701 N.E.2d 1023 (8th Dist.1997), citing Dupler v.

Mansfield Journal Co., 64 Ohio St.2d 116, 119-120, 413 N.E.2d 1187 (1980).

“Accordingly, we afford no deference to the trial court’s decision and independently review

the record and the inferences that can be drawn from it to determine whether summary

judgment is appropriate.” Bank of New York Mellon v. Bobo, 4th Dist. Athens No. 14CA22,

2015-Ohio-4601, ¶ 9.

       {¶ 21} Summary judgment is appropriate when the moving party demonstrates
                                                                                           -11-


that: (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

when viewing the evidence most strongly in favor of the nonmoving party, and that

conclusion is adverse to the nonmoving party. Hudson v. Petrosurance, Inc., 127 Ohio

St.3d 54, 2010-Ohio-4505, 936 N.E.2d 481, ¶ 29; Sinnott v. Aqua–Chem, Inc., 116 Ohio

St.3d 158, 2007-Ohio-5584, 876 N.E.2d 1217, ¶ 29. The Ohio Supreme Court set out the

burdens of proof when considering motions for summary judgment in Dresher v. Burt, 75

Ohio St.3d 280, 662 N.E.2d 264 (1996). The court stated:

             [W]e hold that a party seeking summary judgment, on the ground that

      the nonmoving party cannot prove its case, bears the initial burden of

      informing the trial court of the basis for the motion, and identifying those

      portions of the record that demonstrate the absence of a genuine issue of

      material fact on the essential element(s) of the nonmoving party’s claims.

      The moving party cannot discharge its initial burden under Civ.R. 56 simply

      by making a conclusory assertion that the nonmoving party has no evidence

      to prove its case. Rather, the moving party must be able to specifically point

      to some evidence of the type listed in Civ.R. 56(C) which affirmatively

      demonstrates that the nonmoving party has no evidence to support the

      nonmoving party’s claims. If the moving party fails to satisfy its initial burden,

      the motion for summary judgment must be denied. However, if the moving

      party has satisfied its initial burden, the nonmoving party then has a

      reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing

      that there is a genuine issue for trial and, if the nonmovant does not so
                                                                                          -12-


       respond, summary judgment, if appropriate, shall be entered against the

       nonmoving party.

Id. at 293.

       {¶ 22} Upon review, we see no error in the trial court’s entry of summary judgment

against Cox. As set forth above, the trial court correctly construed the cause of action in

her amended complaint, which included allegations about Meyer’s conduct while acting

as an attorney for the school board, as a legal-malpractice claim. Specifically, Count IV

alleged in part that “Meyer’s dealings were not lawful and manifested a blatant breach of

her official duty of care as that of an attorney functioning as an agent for an employer,

whose employee was being processed.” We also agree with the trial court that no

attorney-client relationship existed between Meyer and Cox. Therefore, Cox’s claim

depended on proof that she was in privity with the school board or that Meyer had acted

maliciously toward her. Scholler at paragraph one of the syllabus.

       {¶ 23} In support of her summary judgment motion, Meyer provided her own

affidavit. Therein, she averred that she attended Cox’s criminal trial as a representative

of the school board, not as counsel for Cox. (Doc. #10 at Exh. A). Meyer observed the

trial in preparation for an upcoming arbitration regarding the termination of Cox’s

employment. (Id.). Meyer further averred that her activity during the criminal trial consisted

of making two public records available to prosecutor Oliver to clarify confusion regarding

the documents governing Cox’s employment. Those records consisted of a collective-

bargaining agreement and a state teacher licensure code. Meyer averred that the

documents were not admitted into evidence in the criminal case and that she was

representing the school board, and looking out for its interests, when she made the
                                                                                         -13-

documents available. (Id.). Meyer additionally averred that she had no ulterior motive

separate and apart from her good-faith representation of the school board and that she

did not offer the documents with the intent to injure Cox. Meyer also averred that she later

represented the school district and the school board in termination proceedings that

resulted in Cox’s discharge. (Id.).

       {¶ 24} In her memorandum opposing summary judgment, Cox asserted that she

sufficiently had alleged malice. (Doc. #12 at 8-9). She also provided her own affidavit in

which she addressed the malice issue. Specifically, she averred that Meyer and

prosecutor Oliver had “communicated” during her criminal trial. (Id. at Exh. A). She also

averred that Meyer was seen “coaching” a witness. (Id.). Finally, she averred that Meyer

had acted with malice by providing Oliver with the two documents mentioned above after

the State rested its case. (Id.).

       {¶ 25} In its ruling, the trial court found no genuine issue of material fact as to

whether Meyer had acted with malice toward Cox. It reasoned:

              It is concluded that Georgia Cox’s affidavit assertions regarding

       Beverly Meyer’s actions do not create a genuine issue of material fact that

       Ms. Meyer’s actions were malicious. Going first to Ms. Cox’s assertions that

       Ms. Meyer communicated with Kimberly [Oliver] during Ms. Cox’s trial and

       that Ms. Meyer’s [sic] “coached” Ms. Birch, neither assertion is sufficient to

       create a factual issue that Ms. Meyer acted maliciously toward Ms. Cox.

       There is no allegation that either event was undertaken to benefit Ms. Meyer

       financially. Further, there is no allegation, nor may it be inferred, that Ms.

       Meyer, by talking to Ms. [Oliver] and Ms. Birch, engaged in conduct,
                                                                                 -14-


ostensibly as part of her good faith representation of DPS, but with her

actual motive being to harm Ms. Cox, and, thus, benefit DPS, by dishonest

or fraudulent means. Communicating with Ms. [Oliver] falls far short of this

standard. Ms. Cox uses the word “coach” to describe Ms. Meyer’s

interaction with Ms. Birch, but she provides no specifics regarding the

asserted coaching. Simply talking to Ms. Birch regarding her testimony,

which is an inference to be drawn from Ms. Meyer’s affidavit, is not

dishonest or fraudulent conduct undertaken to harm Ms. Cox while

benefitting DPS. It is, accordingly, concluded that Ms. Meyer is entitled to

judgment as a matter of law regarding Ms. Meyer’s interaction with Ms.

[Oliver] and Ms. Birch during the course of Ms. Cox’s criminal trial.

       The final issue relates to Ms. Meyer, during Ms. Cox’s criminal trial,

providing Ms. [Oliver] with the labor contract between DPS and the DEA

and the licensure code relating to Ohio educators. There is no allegation

that when the documents were provided to Ms. [Oliver] they were false,

altered, or otherwise fraudulent. Ms. Meyer’s conduct of providing true,

accurate documents to Ms. [Oliver] can not, as a matter of law, be

considered malicious conduct. The Rule 56 record cannot support an

inference that this conduct financially benefitted Ms. Meyer, and, further the

Rule 56 record cannot support an inference, and, thus, the creation of an

issue of fact, that M[s]. Meyer, by providing the documents, engaged in

dishonest or fraudulent conduct to harm Ms. Cox for the benefit of DPS. Ms.

Meyer, accordingly, is entitled to judgment as a matter of law regarding Ms.
                                                                                           -15-


       Meyer’s production of the documents to Ms. [Oliver].


(Doc. #17 at 6-7).

       {¶ 26} Upon review, we agree with the trial court’s analysis of the malice issue. In

her pro se appellate argument, Cox fails even to address that analysis by the trial court.

Instead, she insists that a showing of malice was not required for her to prevail on a legal-

malpractice claim. (Appellant’s brief at 12-13). She also raises an issue not addressed by

the trial court in its analysis of the malice issue. In particular, she suggests that Meyer

acted negligently and/or engaged in legal malpractice by allowing her to be

mischaracterized as a “caretaker” rather than a “teacher” during her criminal trial. Cox

argues that collateral estoppel does not preclude her from raising this argument. (Id. at

15-17).

       {¶ 27} We are unpersuaded by Cox’s arguments. Because Meyer, a school-board

attorney, did not have an attorney-client relationship with Cox and was not in privity with

her, the trial court correctly found that Cox was required to show malice on Meyer’s part.

For the reasons articulated by the trial court, Meyer was entitled to summary judgment on

that issue. With respect to Cox’s argument about being a “teacher” rather than a

“caretaker,” that issue was not the basis of the trial court’s malice ruling. In any event, we

are unpersuaded that a genuine issue of material fact would exist with regard to malice

even if, as Cox alleges, Meyer failed to intervene in the criminal case to stop Oliver from

characterizing her as a “caretaker.”3 We fail to see how non-intervention by Meyer, an


3  In light of this determination, we need not address the State’s argument that collateral
estoppel precludes Cox from arguing, in this proceeding, that she was not a “caretaker.”
We do note, however, that Cox’s status as a “caretaker” was actually and necessarily
litigated and resolved against her in the criminal case. See Cox I at ¶ 29-40.
                                                                                         -16-


observer, in Oliver’s presentation of the criminal case could constitute malicious conduct

toward Cox. Accordingly, the second and third assignments of error are overruled.

       {¶ 28} We turn now to Meyer’s cross-appeal in which she defends the trial court’s

summary-judgment ruling on alternative grounds she raised below but not relied on by

the trial court. In particular, Meyer argues that she also was entitled to summary judgment

on Cox’s legal-malpractice claim on the basis of “privilege” and “lack of proximate cause.”

Having found that the trial court properly entered summary judgment for Meyer for the

other reasons discussed above, we need not address these alternative grounds for

affirming the trial court’s judgment. Accordingly, Meyer’s cross assignment of error raising

the issues of privilege and lack of proximate cause is overruled as moot.

       {¶ 29} The judgment of the Montgomery County Common Pleas Court is affirmed.

                                       ..........

DONOVAN, P.J. and WELBAUM, J., concur.



Copies mailed to:

Georgia B. Cox
Lindsay M. Johnson
Laura G. Mariani
Hon. Michael L. Tucker
