[Cite as Tonjes v. Chiaverini, 2009-Ohio-3314.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               HENRY COUNTY



JAMES TONJES,

   PLAINTIFF-APPELLEE,                                    CASE NO. 7-09-02

  v.

JASCHA CHIAVERINI, et al.,

   DEFENDANTS and THIRD
   PARTY PLAINTIFFS-APPELLANTS,

  v.

JERRY L. TONJES,                                            OPINION

   THIRD PARTY DEFENDANT-APPELLEE.



                        Appeal from Napoleon Municipal Court
                         Trial Court No. 07 CVG 00467 A&B

                                      Judgment Affirmed

                               Date of Decision: July 6, 2009




APPEARANCES:

        George C. Rogers for Appellant

        William F. Hayes for Appellee
Case No. 7-09-02




WILLAMOWSKI, J.

      {¶1} Defendant-appellant Jascha Chiaverini (“Chiaverini”) brings this

appeal from the judgment of the Municipal Court of Napoleon granting judgment

in favor of plaintiff-appellee James L. Tonjes (“Tonjes”) and third party-

defendant-appellee Jerry L. Tonjes (“Jerry”). For the reasons set forth below, the

judgment is affirmed.

      {¶2} Tonjes is the owner of property located at 733 N. Perry St. in

Napoleon. Jerry is the property manager of the real estate. Around December

2005, Chiaverini became a tenant of the property and operated a jewelry store out

of the building. At no time was a written lease entered into by the parties. The

parties agreed to a month to month rental rate of $625.00 per month along with

one month’s rent deposit.

      {¶3} In June of 2006, Jerry and his girl friend, Jennifer Lee (“Lee”)

obtained a diamond ring from Chiaverini. Chiaverini testified that the price of the

ring was to be determined by an appraisal. The appraisal later set the value at

$3,286.00. In March of 2007, Jerry returned the ring to Chiaverini. Chiaverini

alleged that $2,500.00 of the purchase price was to be credited to the rent

payments.

      {¶4} On March 30, 2007, Tonjes’ attorney sent Chiaverini a letter

indicating that he was $2,500.00 behind in his rent.      Before May 30, 2007,


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Chiaverini received a letter from Tonjes terminating the lease and requesting that

Chiaverini vacate the premises by June 30, 2007. The letter was silent as to the

reason for the termination. Chiaverini did not vacate the premises. On July 10,

2007, Tonjes filed a complaint seeking the return of the premises. Chiaverini filed

his answer, counterclaim, and third party complaint against Jerry on July 20, 2007.

A hearing was held on the complaint on July 25 and 31, 2007.            Chiaverini

admitted at the hearing that he had not paid any rent for the premises for the

months of April, May, June, July, and August of 2007. The trial court granted the

relief and gave Chiaverini until August 14, 2007, to vacate the premises. On

August 7, 2007, the trial court extended this deadline until August 31, 2007, if

Chiaverini deposited $625 with the court. Chiaverini deposited the money and

vacated the premises prior to the deadline.

       {¶5} On August 21, 2007, Tonjes and Jerry requested a continuance in the

counterclaim and third party claim.       A second continuance was sought on

September 21, 2007. Both of these continuances were granted by the trial court.

Tonjes and Jerry filed their answer on October 24, 2007. On September 5, 2008,

Chiaverini filed an amended counterclaim and third party complaint. Tonjes and

Jerry filed their answer to the amended counterclaim and third party complaint on

September 22, 2008. The trial on the amended counterclaim and third party

complaint was held on January 13, 2009. On January 22, 2009, the trial court




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entered its judgment in favor of Tonjes and Jerry. Chiaverini appeals from this

judgment and raises the following assignments of error.

                            First Assignment of Error

       The trial court erred in its judgment entry of January 22, 2009
       in finding [Chiaverini] liable in damages to [Tonjes].

                           Second Assignment of Error

       The trial court erred in its judgment entry of January 22, 2009,
       in dismissing the claims of [Chiaverini] against [Tonjes] and
       [Jerry] for abuse of process.

       {¶6} In the first assignment of error, Chiaverini claims that the trial court

erred in finding him liable for failing to pay rent. When a valid written lease does

not exist, a tenancy at will is created. Craft v. Edwards, 11th Dist. No. 2007-A-

0095, 2008-Ohio-4971, ¶35.       “Upon payment and acceptance of rent, [the]

tenancy at will then converts to a periodic tenancy.” Manifold v. Schuster (1990),

67 Ohio App.3d 251, 255, 586 N.E.2d 1142. “Possession taken and rents paid

under a defectively executed lease creates a tenancy from year to year, or month

to month, dependent upon the terms as to payment of rentals * * *.” Lithograph

Bldg. Co. v. Watt (1917), 96 Ohio St. 74, 117 N.E. 25.

       {¶7} Here, Chiaverini put forth a document purported to be the lease.

However, the agreement was not signed by Tonjes or Jerry. Chiaverini admits

that the “landlord” never executed the document. Thus, there is not a valid lease

in this case. Chiaverini took possession of the property in December 2005. All



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parties agree that the terms of the rental were $625 per month in rent paid

monthly. Thus, once the first month’s rent was paid and accepted, a month to

month periodic tenancy was created. No evidence was presented that Chiaverini

actually paid rent for April, May, June, July, or August in 2007. Given this

evidence, the trial court reasonably could conclude that Chiaverini owed Tonjes

the rent for these months. The first assignment of error is overruled.

       {¶8} Next Chiaverini argues that the trial court erred in dismissing his

counterclaim and third party complaint for abuse of process.

       The tort of abuse of process arises when one maliciously misuses
       legal process to accomplish some purpose not warranted by law.
       The key to the tort is the purpose for which process is used once
       it is issued. Abuse of process does not lie for the wrongful
       bringing of an action, but for the improper use or “abuse” of
       process. * * * Thus if one uses process properly, but with a
       malicious motive, there is no abuse of process, though a claim
       for malicious prosecution may lie[.] * * * The tortious character
       of the defendant’s conduct consists of his attempts to employ a
       legitimate process for a legitimate purpose in an improper
       manner.

Levey & Co. v. Oravecz, 9th Dist. No. 21768, 2004-Ohio-3418, ¶8. However,

there is no liability for an abuse of process if the defendant merely carries out the

process to its permitted conclusion. Yaklevick v. Kemp, Schaeffer & Rowe, Co.

(1994), 68 Ohio St.3d 294, 626 N.E.2d 115. “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. (1996),

75 Ohio St.3d 264, 271, 662 N.E.2d 9.


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      {¶9} Here, Chiaverini argues that the real purpose for the lawsuit was to

force him to take back the ring sold to Jerry. However, the trial court found as

follows.

       [Chiaverini] admitted on cross-examination by Attorney Hayes
       that he had not paid any rent for the months of April, May, and
       June of 2007 before any action was filed in July of 2007.
       Likewise he acknowledged a timely receipt of a letter advising
       termination of his month to month tenancy effective June 30,
       2007. When the current lawsuit was filed in July of 2007 for the
       return of possession of [the property] there is nothing to suggest
       it was anything more than a normal forcible entry and detention
       action. [Tonjes] was not attempting to gain anything by filing
       the litigation than the return of possession of the premises * * *.
       There is no showing that [Tonjes] was acting on some ulterior
       motive as required in the Yaklevich case. * * *

       It is suggested that the wrongful purpose was the attempt to
       nullify the obligation of [Jerry] to pay for the ring and that this
       conduct was ratified by [Tonjes] authorizing the retention of
       legal counsel to effect an eviction proceeding. There is
       absolutely nothing in the record to suggest that [Tonjes] ever
       authorized his brother to accept a ring in lieu of rent or even
       knew of the transaction. Accepting the ring in lieu of rent
       without his brother’s express authority would be well outside
       the scope of any agency or employment. [Jerry] would have
       been carrying out his own purpose and not that of his employer-
       brother if the assertion is true that he traded the rent for the
       ring. The Court would not find that the retention of legal
       counsel which was initiated by [Jerry] on behalf of [Tonjes]
       ratified any improper purpose that may have been sought by
       [Jerry]. The counterclaimant is asking this Court to impute
       intentional conduct, abuse of process, to a third party without
       any knowledge on the part of respondent. * * * The Court
       would find that any attempt by [Jerry] to negotiate his way out
       of owing [Chiaverini] for the ring that was acquired for Jerry’s
       girlfriend was outside the scope of his authority or employment.
       Defendant’s counterclaim is found to be not well taken.



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      The next matter is to consider the third party complaint that
      [Chiaverini] has asserted against [Jerry]. It is clear that [Jerry]
      was his brother’s authorized agent for purpose of collecting
      rents. It is further without question that in June of 2006 that
      [Jerry] acquired a ring for [his] girlfriend * * * from
      [Chiaverini]. Simply put there was no payment for the ring
      when acquired by [Jerry] and that the ring was eventually
      returned to [Chiaverini’s] store on or about March 2007. Was
      the ring returned by [Jerry] because it was defective or whether
      he knew he could not use it as payment for rent on his brother’s
      commercial property leased to [Chiaverini]?

      It is the contention of [Chiaverini] that when he made the
      payment of rent with a check dated February 20, 2007 that he
      was current with his rent through March 2007. [Chiaverini’s]
      position as to the status of his rent as of March 2007 is
      consistent with the evidence put forth at the damages hearing
      that a delinquency did not occur until April of 2007, after
      [Chiaverini] had reacquired physical possession of the ring.
      The Court is at a loss to understand for what months the ring
      was to be used as payment. The record is void of any testimony
      on behalf of the third-party plaintiff as to when the ring was to
      be credited towards rent.

      The transaction where the ring was originally acquired by
      [Jerry] and his girlfriend * * * took place in June of 2006, some
      9 months previous. [Chiaverini] and [Jerry] also had dealings
      with each other on matters involving the rental of jet skis, tents
      and tables without any written documentation. This further
      clouds the record and makes it even more difficult to determine
      when and for what credit was to be given on behalf of
      [Chiaverini]. It would certainly make more sense that credit for
      the purchase of the ring would be on personal property
      belonging to [Jerry] which was rented to [Chiaverini] and not
      on a store rent owed to [Tonjes].

      [Jerry] was involved in the filing of the current lawsuit to evict
      [Chiaverini] as he was his brother’s property agent and testified
      at the hearing on the first cause of action. There is also little
      doubt that [Jerry] exhibited ill will and bad intentions towards
      [Chiaverini] through out this process. What is not clear is what


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       advantage [Jerry] was attempting to achieve that a court would
       be powerless to order. If it was the nullification of the sale of
       the ring, that is within this court’s jurisdiction. The Ohio
       Supreme Courts[’] decision in Robb clarified that the use of
       legal process with some ulterior motive is not sufficient proof.
       There needs to be a showing that it was done to gain some
       advantage that could not be obtained through the Courts. This
       was not established by the third-party plaintiff’s case.

January 22, 2009, Journal Entry, 5-9. A review of the record indicates that the

trial court’s findings are supported by competent, credible evidence. No evidence

was presented that Tonjes or Jerry filed the initial claim for any reason other than

to recover possession of the real estate and to recover the missing rental

payments. Thus, the trial court did not abuse its discretion in dismissing the

counterclaim and third party claim of Chiaverini for abuse of process. The second

assignment of error is overruled.

       {¶10} The judgment of the Napoleon Municipal Court is affirmed.

                                                               Judgment Affirmed

PRESTON, P.J., and ROGERS, J., concur.

/jnc




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