Border City Savings & Loan Ass'n v. Moan

472 N.E.2d 350, 15 Ohio St. 3d 65, 15 Ohio B. 159, 1984 Ohio LEXIS 1264

• Court: Ohio Supreme Court
• Decided: December 28, 1984
• Docket: No. 84-296
• Status: Published

Opinions

Per Curiam.

Appellant essentially argues that, under the liberal pleading standards of the Rules of Civil Procedure, appellant’s complaint should be read as stating a cause of action against appellees for malicious prosecution. Appellees argue that appellant’s failure to allege that the actions filed against appellant were instituted maliciously, without probable cause, and were terminated in appellant’s favor is fatal to appellant’s complaint and warrants dismissal thereof.

In Scholler v. Scholler (1984), 10 Ohio St. 3d 98, this court stated in paragraph one of the syllabus:

“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.”

Neither court below had the benefit of our decision in Scholler, supra, which announced the general rule of an attorney’s liability to third persons. The question thus becomes whether appellant’s complaint states a cause of action cognizable under the rule established in Scholler, supra.

Appellant’s complaint alleges that appellees, by filing lawsuits against appellant, “intentionally inflicted harm upon * * * [appellant] without any excuse or justification, to * * * [appellant’s] damage.” An action for malicious prosecution or abuse of process “may be maintained where a proceeding is carried on maliciously and without probable cause.” Diehl v. Friester (1882), 37 Ohio St. 473, 475; Brinkman v. Drolesbaugh (1918), 97 Ohio St. 171, 181. As it was stated in Pope v. Pollock (1889), 46 Ohio St. 367, 370:

“It is a wrong to disturb one’s property or peace; and to prosecute one maliciously, and without probable cause, is to do that person a wrong. * * * The burden of establishing both malice and want of probable cause will prove a sufficient check to reckless suits of this character. When the plaintiff sets the law in motion, he is the cause, if it be done groundlessly and maliciously, of defendant’s damage * *

It is well-established that a court may not dismiss a complaint for failure to state a claim upon which relief can be granted unless it appears “beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery.” O'Brien v. University Community Tenants Union (1975), 42 Ohio St. 2d 242 [71 O.O.2d 223], syllabus; Royce v. Smith (1981), 68 Ohio St. 2d 106, 108 [22 O.O.3d 332]; Blankenship v. Cincinnati Milacron Chemicals (1982), 69 Ohio St. 2d 608, 610-611 [23 O.O.3d 504]; Dickerhoof v. Canton (1983), 6 Ohio St. 3d 128, 129.

Bearing in mind that Civ. R. 8(A)(1) only requires “a short and plain statement of the claim showing that the pleader is entitled to relief,” we hold that appellant’s complaint is sufficient to avoid a motion to dismiss under Civ. R. 12(B)(6) for failure to state a claim upon which relief can be granted. Scholler establishes that an attorney may be liable to third persons if the attorney acts maliciously. Further, appellant’s complaint does allege intentionally inflicted harm as a result of the numerous lawsuits commenced by appellees. It will be incumbent upon appellant to establish that these lawsuits were instituted maliciously, without probable cause, and, as a general rule, were terminated in appellant’s favor. Nonetheless, it does not render appellant’s complaint fatally defective and subject to dismissal that each element of its cause of action was not set forth in the complaint with crystalline specificity.

Accordingly, the judgment of the court of appeals is reversed and the cause is remanded to the trial court for farther proceedings.¹

Judgment reversed and cause remanded.

Celebrezze, C.J., W. Brown, Sweeney, Holmes and J. P. Celebrezze, JJ., concur. Locher and C. Brown, JJ., dissent.

1 Appellant also urges this court to recognize a cause of action predicated upon appellees’ alleged failure to comply with Civ. R. 11, which states that an attorney may be subjected to appropriate action for, as an example, violating the rule by signing a groundless complaint. We agree with the court of appeals that the “appropriate action” referred to in the rule is simply a reference to a disciplinary proceeding brought under the Rules for the Government of the Bar of this court and does not provide the basis for a civil action against the attorney who violates this rule. As the Staff Notes to Civ. R. 11 state:

“A wilful violation of Rule 11 by an attorney may subject him to appropriate court disciplinary action.”