Opinion
No. 76AP-366.
Decided November 4, 1976.
When a court determines to treat a motion to dismiss as a motion for summary judgment, it must follow the procedures set out in Civil Rule 56. An attorney who acts with the authority of his client is not liable to a third party in an action for malicious prosecution. Use of means intended to injure the debtor, rather than to collect the debt, may give rise to an action for abuse of process.
Judgment reversed, modified, and remanded.
John H. Lewis, and Gilbert L. Krove, both of Columbus, for plaintiffs-appellants.
Stephen D. Rowe and Michael N. Schaeffer, of Wilcox, Schlosser Mirras, of Columbus, for defendant-appellee Mutual Manufacturing Supply Co.
Jack R. Alton, of Lane, Alton Horst, of Columbus, for defendants-appellees Wilcox, Schlosser Schneider; Jacob A. Schlosser; and R. Larry Schneider.
Plaintiffs appeal from a judgment of the Franklin County Court of Common Pleas sustaining defendants' motion to dismiss and dismissing plaintiffs' complaint. In support of this appeal, plaintiffs raise 18 assignments of error, as follows:
"I. The Court erred by considering certain matters outside the Complaint when it sustained defendants' motion to dismiss.
"II. The Court erred in dismissing the Complaint as to the FIRST COUNT (Abuse of Process), as it relates to defendant, Mutual Manufacturing and Supply Company.
"III. The Court erred in dismissing the Complaint as to the FIRST COUNT (Abuse of Process), as it relates to the defendant-attorneys.
"IV. The Court erred in dismissing the Complaint as to the SECOND COUNT (Libel), as it relates to defendant, Mutual Manufacturing and Supply Company.
"V. The Court erred in dismissing the Complaint as to the SECOND COUNT (Libel), as it relates to the attorney-defendants.
"VI. The Court erred in dismissing the Complaint as to the THIRD COUNT (Malicious Prosecution), as it relates to defendant, Mutual Manufacturing and Supply Company.
"VII. The Conrt erred in dismissing the Complaint as to the THIRD COUNT (Malicious Prosecution), as it relates to the defendant-attorneys.
"VIII. The Court erred in dismissing the Complaint as to the FOURTH COUNT (Conversion and Trespass), as it relates to the defendant, Mutual Manufacturing and Supply Company.
"IX. The Court erred in dismissing the Complaint as to the FOURTH COUNT (Conversion and Trespass), as it relates to the defendant-attorneys.
"X. The Court erred in dismissing the Complaint as to the FIFTH COUNT (Conspiracy), as it relates to all the defendants herein.
"XI. The Court erred in dismissing the Complaint as to the SIXTH COUNT (Abuse of Process), as it relates to the defendant, Mutual Manufacturing and Supply Company.
"XII. The Court erred in dismissing the Complaint as to the SIXTH COUNT (Ahuse of Process), as it relates to the defendant-attorneys.
"XIII. The Court erred in dismissing the Complaint as to the SEVENTH COUNT (Libel), as it relates to the defendant, Mutual Manufacturing and Supply Company.
"XIV. The Court erred in dismissing the Complaint as to the SEVENTH COUNT (Libel), as it relates to the defendant-attorneys.
"XV. The Court erred in dismissing the Complaint as to the EIGHTH COUNT (Invasion of Privacy), as it relates to the defendant, Mutual Manufacturing and Supply Company.
"XVI. The Court erred in dismissing the Complaint as to the EIGHTH COUNT (Invasion of Privacy), as it relates to the defendant-attorneys.
"XVII. The Court erred in dismissing the Complaint as to the NINTH COUNT (Malicious Proseention), as it relates to the defendant, Mntual Manufacturing and Supply Company.
"XVIII. The Conrt erred in dismissing the Complaint as to the NINTH COUNT (Malicious Prosecution), as it relates to the defendant-attorneys."
The first assignment of error relates to procedural matters, rather than the merits of the claim. Defendants filed a motion to dismiss the complaint, relying upon Civ. R. 8(A)(1), contending the complaint to be too long and complicated, and upon Civ. R. 12(B)(6), contending that the complaint fails to state a claim against defendants upon which relief could be granted. Defendants attached an affidavit to their memorandum in support of their motion to dismiss.
At no time did the trial court make any express determination to treat the motion to dismiss as a motion for summary judgment or to follow the procedures provided in Civ. R. 56; specifically, no date for hearing or for plaintiffs to file contra affidavits being set by the court.
Nevertheless, it is apparent that the trial court considered the affidavit attached to the motion to dismiss and predicated its decision in substantial part thereon. In its decision, the trial court stated:
"° ° ° In the affidavit, among other things, the affiant states that the actions referred to by plaintiff were pursuant to the attempts to collect an unsatisfied judgment granted by the Franklin County Municipal Court. According to the affidavit, this judgment has never been vacated and is still unpaid. Plaintiff has failed to file any affidavits or anything of an evidentiary nature contra the motion. Both sides have filed rather exhaustive briefs as to their respective positions.
"From the supporting affidavit, it would appear, as earlier said, all of the steps taken were pursuant to attempts to collect the uncontrovertcd, unsatisfied judgment. Accordingly, the Court finds that the motion of the defendants is well taken ° ° ° ."
The error of the trial court is quite apparent and clear, in that the trial court specifically referred to the absence of any affidavits by plaintiffs, but, on the other hand, the trial court by its premature action effectively denied plaintiffs any opportunity to file such affidavits. If the trial court determines to treat a motion to dismiss as one for summary judgment, it is the express duty of the trial court to proceed in accordance with Civ. R. 56 and to set a date for hearing in accordance with Civ. R. 56(C) and to notify the parties thereof. As unmistakenly provided by Civ. R. 56(C), the party against whom a motion for summary judgment is directed (whether filed as such or originally as a motion to dismiss), has no duty to file opposing affidavits or other evidentiary matter until the day prior to the date of hearing fixed by the trial court. If the trial court neglects and fails to set a date for hearing, the date for the filing of affidavits by the adverse party never arises. If the trial court acts without setting such a date, and the adverse party files no affidavits, the trial court obviously has denied the adverse party the right to file opposing affidavits.
In most instances, such action by the trial court would be clear prejudicial error. In this case, however, whether or not the clear procedural error of the trial court was prejudicial depends upon whether or not the complaint states a claim for relief. As is set forth infra, we do find that the complaint states a claim for relief, and, accordingly, the first assignment of error is well taken.
The third, fifth, seventh, ninth, twelfth, fourteenth, sixteenth and eighteenth assignments of error relate to plaintiff's claim against the attorneys for defendant Mutual Manufacturing and Supply Company.
As a general rule, actions against an attorney for malpractice are maintainable only by those who have been his clients and those in privity with such clients. See Annotation 45 A.L.R.3d 1181. Although there is some conflict of authority as to whether privity is required, Ohio, in other areas, has adopted the requirement of privity. See Thomas v. Guarantee Title Trust Co., 81 OhioSt. 432 (1910). Similarly, there is a conflict of authority as to whether an attorney acting for a client can be liable for malicious prosecution of another. There appears to have been no Ohio authority upon this issue, although there is a decision by the Court of Common Pleas of Fayette County in Board of Education of Miami Trace Local School District v. Marting, 185 N.E.2d 597 (1962), which holds that an action may be maintained against the attorney because he is in a position to minimize error.
The better rule, we believe, is that an attorney who acts with the authority of his client is not liable to a third party in an action for malicious prosecution. Some immunity from being sued by third persons must be afforded an attorney so that he may properly represent his client. To allow indiscriminate third-party actions against attorneys of necessity would create a conflict of interest at all times, so that the attorney might well be reluetant to afford proper representation to his client in fear of some third-party action against the attorney himself.
An attorney does have an obligation to the public and to his profession to act honestly, competently, in good faith, and without malice in all of the activities he undertakes. This duty has been set forth in the Code of Professional Responsibility adopted by the Supreme Court of Ohio and is enforceable by disciplinary proceedings against the attorney, including suspension from the practice of law or permanent disbarment.
As a general rule, an attorney is immune from liability to third persons arising from the performance of the attorney's professional activities as an attorney on behalf of, and with the knowledge of his client, unless such third person is in privity with the client. There are no special circumstances alleged in the complaint which give rise to the application of other than the general rule that an attorney is not liable, except to his client or those in privity with his client, for an injury allegedly arising out of performance of professional activities by the attorney. Accordingly, the third, fifth, seventh, ninth, twelfth, fourteenth, sixteenth, and eighteenth assignments of error are not well taken.
The second and eleventh assignments of error relate to a claim of abuse of process by defendant Mutual Manufacturing and Supply Company; whereas, the sixth and seventeenth assignments of error relate to claims of malicious prosecution on the part of defendant Mutual Manufacturing and Supply Company. These assignments of error are somewhat interrelated and will be considered together.
Although the complaint contains nine counts, plaintiffs, rather than having set forth separate and distinct claims, have essentially set forth different theories of recovery as to the same claim.
Defendants contend that an action for abuse of process is not maintainable in Ohio, being part of the action for malicious prosecution. This court has previously held that the cause of action for abuse of process is a different action from that for malicious prosecution, although the common law action for "malicious use of process" is merely a type of malicious prosecution action. Avco Delta Corp. v. Walker, 22 Ohio App.Sd 61, 51 O.O.2d 122 (1969). The issue is very well stated in 1 American Jurisprudence 2d 250 (Abuse of Process, Section 2), as follows:
"While some cases have confounded the action for abuse of process with the action for malicious prosecution, the two are essentially different and independent. An action for abuse of process differs from an action for malicious prosecution in that the latter is concerned with maliciously causing process to issue, while the former is concerned with the improper use of process after it has been issued. Thus it is said in substance that the distinction between the two is that malicious use of process is the employment of process for its ostensible purpose, but without reasonable or probable cause, whereas the malicious abuse of process is the employment of a process in a manner not contemplated by law, or to obtain an object which such a process is not intended by law to effect.
"Where the matter complained of concerns the issuance of process, the action is either strictly or by analogy oue for malicious prosecution. In this category are included actions for the malicious institution of criminal proceedings, the wrongful and malicious procurement of attachment or other process of seizure, and the institution of bankruptcy proceedings. ° ° ° But where the thing complained of is not that issuance of the process was wrongfully procured, but that, having been issued, it was wilfully perverted, so as to accomplish a result not commanded by it or lawfully obtainable under it, the action is one for abuse of process.
"° ° °"
The assignments of error under present consideration concern the first, third, sixth, and ninth counts of the complaint. By these counts of the complaint, plaintiffs essentially allege that defendant Mutual Manufacturing and Supply Company committed either an abuse of process or a malicious prosecution in commencing and maintaining certain court proceedings, including two actions for the appointment of a receiver, the issuance of a writ of execution, and the filing of a petition in involuntary bankruptcy. The complaint alleges that these actions were "part of a deliberate plan to force payment of a judgment held by defendant, Mutual Manufacturing and Supply Co., against plaintiffs by irregular and unlawful means." The complaint alleges that defendant Mutual Manufacturing and Supply Company acted maliciously and without reasonable or probable cause.
Defendants contend that neither an action for abuse of process, nor one for malicious prosecution, can be maintained since there was no actual seizure of property alleged. The first paragraph of the syllabus of Cincinnati Daily Tribune Co. v. Bruek, 61 OhioSt. 489 (1900), provides, as follows:
"As a general rule no suit will lie for the malicious prosecution of a civil action, where there has been no arrest of the person or seizure of property."
Bruck sets forth the rule relied upou by defendants but, by the use of the prefix, "As a general rule," the Supreme Court clearly indicated there are exceptions. Two such exceptions are set forth in Newark Coal Co. v. Upson, 40 Ohio St. 17 (1883), and Pope v. Pollock, 46 OhioSt. 367 (1889). The opinion in Bruck comments upon these cases at pages 490-491, as follows:
"° ° ° That of Cool Co. v. Upson, 40 OhioSt. 17, arose from a suit where a temporary injunction had been obtained on false and malicious averments. A temporary injunction imposes a restraint upon the owner over his property, as hurtful to him as if it were in fact seized; and, it was held, that for the malicious prosecution of such suit, an action would lie. The case of Pope v. Pollock, 46 Ohio St. 367, arose from the malicious prosecution of suits in forcible entry and detainer. Judgments in such suits are not conclusive. The proceeding may be commenced and recommenced without limit, unless enjoined; and hence affords an opportunity for the gratification of malice and oppression; and when this is the case an action may be maintained by the injured party for the recovery of damages. ° ° ° The case stands upon a clear exception to the general rule. ° ° °"
Although a judgment creditor has a right to take reasonable action to enforce his judgment and compel the debtor to make payment, the use of unreasonable means utilized maliciously with the intent to harass and injure the debtor, rather than to collect the debt, may give rise to a cause of action. See e.g. Housh v. Peth, 165 OhioSt., 59 O.O. 60 (1956). This essentially is what the complaint alleges.
Basically, the complaint sets forth a single claim for relief divided into various theories of recovery. There is an allegation of at least constructive seizure of the property set forth in paragraphs 6(G), 6(H), and 9 of the complaint.
At this stage of the proceeding, the allegations of the complaint must be construed most strongly in favor of plaintiffs, and a motion to dismiss must be overruled if evidence could be adduced under the allegations of the complaint to prove any reasonable theory of recovery. Accordingly, we find the second, sixth, eleventh, and seventeenth assignments of error to be well taken.
By the fourth, fifth, thirteenth and fourteenth assignments of error, plaintiffs purport to set forth a claim for relief for libel in connection with the judicial proceedings. Since allegations contained in pleadings and other filings in a court proceeding pertinent to that proceeding are absolutely privileged, no action for libel can be maintained. Accordingly, the fourth, fifth, thirteenth, and fourteenth assignments of error are overruled.
The eighth assignment of error relates to a theory of recovery in conversion and trespass with respect to an alleged wrongful and unlawful padlocking of the offices and storage and parking area at the place of business of the plaintiffs. The allegations are sufficient to support a claim for relief construing them most strongly in favor of plaintiffs. Accordingly, the eighth assignment of error is well taken.
The fifteenth and sixteenth assignments of error relate to the eighth count of the indictment whereby plaintiffs attempt to set forth invasion of privacy as a theory of recovery. We find the allegations to be insufficient to support a claim for relief for invasion of privacy, even when construed most strongly in favor of plaintiffs. See Housh v. Peth, supra. Accordingly, the fifteenth and sixteenth assignments of error are not well taken.
By the tenth assignment of error, plaintiffs contend that the fifth count of the complaint sets forth a claim for relief for conspiracy. We find the allegations of the complaint to be insufficient to set forth a claim for conspiracy even when construed most strongly in favor of plaintiffs. The tenth assignment of error is not well taken.
For the foregoing reasons, the first, second, sixth, eighth, eleventh, and seventeenth assignments of error are sustained, and the remaining assignments of error are overruled; and the judgment of the Franklin County Court of Common Pleas is reversed, and modified, so as to dismiss the complaint as against the attorney-defendants, there being no just reason for delay in entering judgment dismissing them as parties, and to overrule the motion to dismiss with respect to defendant Mutual Manufacturing and Supply Company; and this cause is remanded to the trial court for implementation of the modification of the judgment and for further proceedings in accordance with law consistent with this decision.
Judgment reversed, modified, and remanded.
STRAUSBAUCH, P.J., and REILLY, J., concur.