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Law & Litigation Blog

Abuse of Process: An Illustration (Part 2 of 3)

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This is the second of three posts about the tort of abuse of process in Ohio. The first post can be accessed here.

The case of Pingue v. Preferred Real Estate Invests II, L.L.C., 5th Dist. Delaware No. 15 CAE 01 0008, 2015-Ohio-475 was recently decided by Ohio's Fifth District Court of Appeals. In this case, the Plaintiff (a real estate developer) sold several connected tracts of undeveloped land in Delaware County, Ohio to the Defendants (another developer and two companies he was connected with). The Plaintiff did not sell all the land at the site, however, so after the sale was complete he still owned some land that was directly connected to the land the Defendants purchased.

To put it mildly, the two sides did not make good neighbors. The Plaintiff became upset when the Defendants allegedly encroached on his land in a number of ways, including: building a garage structure that crossed the property line, allowing vehicles to park in a public/common area, allowing construction workers to cross over onto his property, parking construction equipment on his property, constructing a fence partially on his property, allowing dirt to be piled up on his property, and installing a sprinkler system than ran through part of his property. In his opening statement at trial, the Plaintiff's attorney called it "death by a thousand cuts." The Defendants' attorney fought back, agreeing that it was a case of death by a thousand cuts but arguing that it was the Plaintiff who had inflicted a thousand cuts on his clients.

As is common, there was a history between the parties. The Plaintiff was not just upset about the trespasses - he felt the Defendants had cheated him out of almost $78,000.00 at closing. The two sides had agreed to a per-acre price, to be calculated as follows: total number of acres x the per-acre price = total price. The Plaintiff thought that a public/common area was included in the total number of acres, but in the contract that was drawn up, the Defendants actually deducted the public/common area from the total acreage, reducing the total price, which the Plaintiff begrudgingly accepted. There was testimony that he was very unhappy about it, however.

At one point, the Plaintiff started having parked cars towed from a shared public/common area where he disputed that parking was allowed. He also wanted the Defendants to buy the rest of the land. The Defendants claimed they “were tired of being harassed by [the Plaintiff]. We were tired of his demands on a nearly monthly basis for his $78,000... in an effort to keep him from harassing our tenants, employees and subcontractors, ... we felt it might be worthwhile just to acquire the property...” Pingue, at ¶ 43. So they came to the table. However, negotiations were unsuccessful. The Plaintiff wanted the Defendants to pay $60,000.00 more per acre than they had offered. After they refused, that is when he filed his lawsuit. Bad move, it turned out.

The Plaintiff's lawsuit contained several legal claims, including trespass (arising out of the various alleged encroachments). Only the Plaintiff's trespass claims made it to trial, because his other claims were thrown out by the Judge beforehand. The Defendants countersued him for abuse of process. They alleged that the real reason he sued them was (1) to try to force them to buy the rest of the land at the price he was demanding (a price alleged to be "far more than [its] fair market value"), and (2) because he was angry about the $78,000.00. The "process" of filing a lawsuit for trespass, obviously, is not intended or authorized to accomplish either of these objectives.

The Defendants introduced evidence that the Plaintiff was very litigious. A famous Judge by the name of Learned Hand famously stated that “as a litigant, I should dread a lawsuit beyond almost anything else short of sickness and death.” Apparently the Plaintiff did not share that belief, as the Defendants suggested that he had been a party to over 100 lawsuits in Franklin and Delaware counties (it is not clear from the record whether this is true or not). There were suggestions that he had even sued his own son, possibly more than once. Also, the Plaintiff admitted that part of the reason he filed the lawsuit was because he was upset about the $78,000.00. 

The case did not turn out well for the Plaintiff. The jury found that the only trespass committed by the Defendants was with respect to the sprinkler system and awarded the Plaintiff only $1.00. That's right, one dollar. One United States Dollar. This is referred to in the law as "nominal damages" - damages awarded when a legal wrong has occurred but where there was no actual, quantifiable loss proven as a result of that legal wrong. Even though the jury technically found in favor of the Plaintiff on one trespass claim, it also found in favor of one of the Defendants on the abuse of process claim, concluding that the Plaintiff had filed his lawsuit (again, although somewhat "valid" since he technically won part of it) for ulterior and improper purposes. The jury awarded that Defendant $229,527.25 in actual damages (mostly attorney fees, it appears, though it is not entirely clear), plus $400,000.00 in punitive damages (reduced to $350,000.00 by the Judge, because of limits on punitive damages under Ohio law). When a jury awards punitive damages, it has the option of also requiring the party who is responsible for punitive damages to pay the other side's attorney fees (the proper amount of which is determined later by the Judge). The jury made this determination and the Judge awarded an additional $134,772.53. This amounts to approximately $700,000.00 in total damages.

The Plaintiff appealed, arguing to the 5th District Court of Appeals that there was not enough evidence put on at trial to prove that he committed an abuse of process. The next blog post on abuse of process discusses the decision reached by the Court of Appeals.

 

Alex Durst is a Cincinnati civil litigation attorney and appellate attorney with The Durst Law Firm. Licensed in Ohio, Alex has also practiced in Missouri, Florida, Indiana, California, Nevada, Massachusetts, and Kentucky. Alex can be reached at (513) 621-2500 or alex@durstlawfirm.com.