Summary
noting that Ohio does not recognize a cause of action for prima facie tort
Summary of this case from Han v. Fin. Supervisory Serv.Opinion
Nos. 87-532 and 87-442
Submitted May 31, 1988 —
Decided August 24, 1988.
Civil procedure — Voluntary dismissal — Civ. R. 41(A)(1) — "Failure otherwise than upon the merits" — R.C. 2305.19 — Torts — Prima facie tort doctrine discussed.
CERTIFIED by the Court of Appeals for Lucas County, No. L-86-196.
Donald R. Costell, appellants' decedent, died on October 16, 1982. He is alleged to have died as a result of the negligent treatment rendered to him by appellees, Toledo Hospital et al. Appellants Frances Costell, individually and as administratrix of her husband's estate, filed suit against appellees on October 11, 1983, alleging various claims including medical negligence and wrongful death. After twenty-two months of discovery process, appellants, on August 15, 1985, filed a notice of voluntary dismissal pursuant to Civ. R. 41(A)(1). This notice stated as follows:
"Rule 41. Dismissal of actions
"(A) Voluntary dismissal: effect thereof.
"(1) By plaintiff; by stipulation. Subject to the provisions of Rule 23(E) and Rule 66, an action may be dismissed by the plaintiff without order of court (a) by filing a notice of dismissal at any time before the commencement of trial unless a counterclaim which cannot remain pending for independent adjudication by the court has been served by the defendant or (b) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court, an action based on or including the same claim."
"PLEASE TAKE NOTICE that the above-entitled action is hereby dismissed in accordance with Civil Rule 41(A), without prejudice, leaving Plaintiff the right to refile within one (1) year under the rights reserved to Plaintiffs by the statutory savings clause."
The statutory savings clause, R.C. 2305.19, states, in pertinent part:
"In an action commenced, or attempted to be commenced, if in due time a judgment for the plaintiff is reversed, or if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of reversal or failure has expired, the plaintiff, or, if he dies and the cause of action survives, his representatives may commence a new action within one year after such date."
On December 31, 1985, appellants refiled the previously filed causes of action. Additionally, appellants asserted a new cause of action consisting of two claims: intentional infliction of mental suffering and emotional distress, and "prima facie tort." Appellees thereafter filed motions to dismiss all of appellants' claims. These motions were granted in part by the trial court which concluded that: the savings statute does not apply to the medical claims, thus rendering them time barred; the assertion of a claim in prima facie tort is not one for which relief may be granted; and the claim for intentional infliction of emotional distress presents timely triable issues.
Upon appeal, the court of appeals affirmed the judgment of the trial court. The court of appeals, finding its judgment to be in conflict with the judgments of other appellate districts, certified the record of the case to this court for review and final determination.
Wright v. Folk (June 27, 1984), Carroll App. No. 487, unreported; Carter v. Herring (Nov. 12, 1982), Clark App. No. 1698, unreported; Harris v. Sheedy Paving, Inc. (Oct. 6, 1983), Franklin App. No. 82AP-965, unreported.
Case No. 87-442, which is the same case as No. 87-532, was filed by appellants in this court on March 12, 1987. The court of appeals certified the conflict on March 26, 1987, which was duly filed by appellants on April 1, 1987. Thereafter, on August 5, 1987, the two cases were consolidated.
Leizerman, McGill Williams, E. J. Leizerman and Stuart A. Ascher, for appellants.
Eastman Smith and Rudolph A. Peckinpaugh, Jr., for appellee Toledo Hospital.
Spengler, Nathanson, Heyman, McCarthy Durfee and James R. Jeffery, for appellees Harold R. Stevens, M.D., and Katchka, Friedman Crider, Inc.
Jacobson, Maynard, Tuschman Kalur Co., L.P.A., James M. Tuschman and Janis L. Small, for appellees Robert P. Van Bergen, M.D., and McAlpine, Foster, Montesinos Van Bergen, Inc.
The findings of the courts below were that Civ. R. 41(A)(1) was a voluntary dismissal upon the merits and also that the prima facie tort is not a recognized cause of action within Ohio's courts. We now reverse in part and affirm in part.
I
It has been consistently admitted by the parties that the central issue under Civ. R. 41(A)(1) is whether a voluntary and unilateral dismissal by the plaintiffs is a failure by plaintiffs "otherwise than upon the merits" for purposes of the application of R.C. 2305.19. We need only refer to our recent holding in Frysinger v. Leech (1987), 32 Ohio St.3d 38, 512 N.E.2d 337, to resolve this question. Therein, at paragraph two of the syllabus, we held:
"A voluntary dismissal pursuant to Civ. R. 41(A)(1) constitutes a failure otherwise than upon the merits within the meaning of the savings statute, R.C. 2305.19."
Therefore, we hold that appellants may refile their cause of action as provided by the savings statute, and accordingly reverse the judgment of the court of appeals upon this issue.
II
In appellants' refiled complaint, it was alleged that appellees had committed acts amounting to a "prima facie" tort. The complaint states:
"* * * [T]hese defendants have in the past and continue at present to orchestrate testimony and coerce witnesses favorable to the Plaintiff, including present and former employees of the Toledo Hospital, resulting in testimony and facts being suppressed, altered, distorted and/or misrepresented."
A "prima facie tort" is defined as "the infliction of intentional harm, resulting in damage, without excuse or justification, by an act or series of acts which would otherwise be lawful. * * *
"Prima facie tort may be invoked when the intention to harm is present, rather than the intention to merely commit the act. * * * Inquiry into the issue of whether a duty exists and to whom it is owed is inappropriate in a prima facie tort action.
"* * *
"The need for the doctrine of prima facie tort arises only because the specified acts relied upon — and which it is asserted caused the injury — are not, in the absence of the intention to harm, tortious, unlawful, and therefore, actionable." Acme, Plaintiff's Proof of a Prima Facie Case (1986) 658, Sections 19:01-19:02. See, also, id., cases collected in footnotes following Section 19:02; Bajpayee v. Rothermich (1977), 53 Ohio App.2d 117, 122, 7 O.O. 3d 86, 89, 372 N.E.2d 817, 820; Notes, The Prima Facie Tort Doctrine (1952), 52 Colum. L. Rev. 503; Brown, The Rise and Threatened Demise of the Prima Facie Tort Principle (1960), 54 N.W. U.L. Rev. 563.
We note that Ohio's courts have not adopted the above-described intentional tort theory. Moreover, such theory has been expressly rejected on the basis that the motive behind an action is not material when one has a legal right to perform such act. Lancaster v. Hamburger (1904), 70 Ohio St. 156, 71 N.E. 289; Frazier v. Brown (1861), 12 Ohio St. 294; Letts v. Kessler (1896), 54 Ohio St. 73, 42 N.E. 765. As to the case before us, appellants have essentially set forth allegations constituting perjury, subornation of perjury, and conspiracy to commit perjury, all of which are punishable under the criminal statutes but which, for public policy reasons, may not be the basis of a civil lawsuit. Thus, under the facts presented, we are not at this time persuaded that the adoption of the prima facie tort theory would contribute to that body of the law. We therefore affirm the court of appeals' determination upon this issue.
The judgment of the court of appeals is affirmed in part, reversed in part and the cause is remanded.
Judgment affirmed in part, reversed in part and cause remanded.
MOYER, C.J., SWEENEY, LOCHER, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.