The Durst Law Firm
Learn how we can help

Observations and commentary on interesting areas of the law

Law & Litigation Blog

Abuse of Process: A Lawsuit for Filing a Frivolous Lawsuit? (Part 1 of 3)

cincinnati-business-litigation-attorney

Ohio's Fifth District Court of Appeals recently decided the case of Pingue v. Preferred Real Estate Invests II, L.L.C., 5th Dist. Delaware No. 15 CAE 01 0008, 2015-Ohio-475. This case illustrates the legal claim known as "abuse of process." I have heard abuse of process described as "a lawsuit for filing a frivolous lawsuit." This is overly simplistic and technically not 100% correct, but in some ways it is an apt description.

To successfully sue someone for abuse of process under Ohio law, you must prove that they improperly used the legal system against you. Specifically, you have to prove these three "elements": (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." Yaklevich v. Kemp, Schaeffer & Rowe Co., 68 Ohio St.3d 294, 1994–Ohio–503, 626 N.E.2d 115, paragraph one of the syllabus.

In plain English, you must prove (1) that the opposing party filed a lawsuit (or initiated some other "legal proceeding") against you, (2) that they did so for an improper purpose, i.e., to attempt to accomplish something other than simply winning the lawsuit, and (3) that you were harmed as a result.

Note that the first element requires the opposing party's claim to be valid in a sense, or at least not completely unfounded. If a completely invalid lawsuit is filed that has no chance for success (a good example may be a lawsuit naming the wrong person), it is not "set in motion in proper form and with probable cause" (though in this situation, you might instead have a good case for the closely-related legal claim of "malicious prosecution"). The interesting takeaway regarding the first element is that someone can be sued for abuse of process even if their claims technically have some validity. In fact, even if they win the lawsuit. The third element will generally be easy to prove; if you have paid attorney fees to defend a lawsuit, you have "suffered damages."

The second element is where it gets tricky. This element is met in “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, at 297-98, citing Prosser & Keeton, The Law of Torts (5 Ed.1984) 897-98. On the one hand, an “act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process" is abuse of process. However, there is no abuse of process "where the [person or company suing] has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions." Id.

This suggests that if all a party does is litigate a lawsuit until it is dismissed by the Judge or decided after a trial (hence, carrying out the process to its authorized conclusion), without doing "more" (such as, perhaps, doing something in bad faith in the case in order to make the other side incur unnecessary attorney fees), there is no abuse of process. Nonetheless, the "even though with bad intentions" language is very hard to reconcile with the principle that a lawsuit with probable cause (even a successful one) can constitute an abuse of process.

A real world example will be helpful. The next blog post in this series will discuss the Pingue v. Preferred case.

 

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.