[Cite as Cox v. Oliver,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

GEORGIA B. COX : : Plaintiff-Appellant : Appellate Case No. 26515 : v. : Trial Court Case No. 2014-CV-3749 : KIMBERLY OLIVER, et al. : (Civil Appeal from : Common Pleas Court) Defendants-Appellees : :

...........

OPINION

Rendered on the 21st day of August, 2015.

...........

BYRON L. POTTS, Atty. Reg. No. 0040246, KIA M. WRICE, Atty. Reg. No. 0090973, 538 East Rich Street, Columbus, Ohio 43215 Attorneys for Plaintiff-Appellant

LINDSAY M. JOHNSON, Atty. Reg. No. 0077753, 1 South Main Street, Suite 1800, Dayton, Ohio 45402 Attorney for Defendant-Appellee-Beverly Meyer

LAURA G. MARIANI, Atty. Reg. No. 0063204, Assistant Montgomery County Prosecuting Attorney, 301 West Third Street, Dayton, Ohio 45422 Attorney for Defendant-Appellee-Kimberly Oliver

............. -2- WELBAUM, J.

{¶ 1} Plaintiff-Appellant, Georgia Cox, appeals from a judgment granting a motion

to dismiss filed by Defendant-Appellee, Kimberly Oliver. In support of her appeal, Cox

contends that the trial court erred in concluding that Cox’s complaint failed to state a claim

against Oliver.

{¶ 2} We conclude that the trial court did not err in granting Oliver’s motion to

dismiss the complaint pursuant to Civ.R. 12(B)(6). Construing the allegations in the

complaint as true, Cox failed to state a claim for abuse of process against Oliver.

Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} On October 10, 2012, Georgia Cox allegedly assaulted a student while

working as an Intervention Specialist at Meadowdale High School in Dayton, Ohio. After

a police investigation, Cox was indicted for Assault, a fourth degree felony, and was

convicted following a jury trial. We affirmed Cox’s conviction in May 2014. See State v.

Cox,

,

(2d Dist.), appeal not accepted for review,

,

,

(filed October 8, 2014).

{¶ 4} In June 2014, Cox filed a pro se civil action against Kimberly Oliver, the

prosecutor in the criminal action, and Beverly Meyer, an attorney who had represented

the Dayton City School District (“DCSC”) with respect to the termination of Cox’s

employment with DCSC. The complaint contained five counts, including malicious

prosecution, fraud, slander of title, negligence, and interference with a contractual

relationship. In July 2014, Oliver filed a motion to dismiss the complaint pursuant to -3- Civ.R. 12(B)(6). Meyer also filed a motion to dismiss the complaint in July 2014.

{¶ 5} Cox then filed an amended complaint in mid-August 2014. The major

alteration in the amended complaint was that the claim for malicious prosecution was

changed to a claim for abuse of process. Some additional facts were also included in the

amended complaint. After further memoranda on the dismissal issue were submitted,

the trial court filed a decision on November 13, 2014, granting Oliver’s motion to dismiss.

The court also granted Meyer’s motion to dismiss, except for the claim of legal

malpractice against Meyer. In this regard, the court found the allegations of legal

malpractice marginally sufficient to implicate a malice exception to the general rule that

attorneys will not be held liable to third parties. The trial court included a Civ.R. 54(B)

certification only with respect to the dismissal of the claims against Oliver. Cox timely

appealed from the decision of the trial court.

II. Propriety of the Dismissal of the Complaint

{¶ 6} Cox’s sole assignment of error is as follows:

The Trial Court Erred by Dismissing Plaintiff-Appellant’s Complaint

for Failure to State a Claim upon Which Relief Can Be Granted.

{¶ 7} Although Cox’s assignment of error is broadly stated, Cox’s discussion of the

issues only mentions dismissal of the abuse of process claim. As a result, we will

confine our discussion to this point.

{¶ 8} Under her sole assignment of error, Cox argues that as a pro se litigant, she

failed to appreciate the “fine distinction” between abuse of process and malicious

prosecution. She contends that she alleged in multiple places that Oliver abused the trial -4- for an ulterior motive. Cox, therefore, argues that the trial court should not have

dismissed the claim for abuse of process.

{¶ 9} Before addressing this issue, we note that Cox has referred in her brief to the

dismissal of the abuse of process claims against both Meyer and Oliver. As a result,

both Meyer and Oliver have filed briefs defending the trial court’s decision. However, the

trial court did not enter a Civ.R. 54(B) certification concerning the dismissal of claims

against Meyer, and the validity of the complaint with respect to those claims is not before

us. Instead, the only issue before us is the dismissal of the complaint against Oliver.1

{¶ 10} “In order to dismiss a complaint under Civ.R. 12(B)(6) for failure to state a

claim upon which relief can be granted, after all factual allegations are presumed true and

all reasonable inferences are made in favor of the nonmoving party, it must appear

beyond doubt from the complaint that the relator/plaintiff can prove no set of facts

warranting relief.” (Citation omitted.) State ex rel. Neff v. Corrigan,

,

(1996). Decisions granting Civ.R. 12(B)(6) motions to dismiss are

reviewed using a de novo standard. (Citation omitted.) Perrysburg Twp. v. Rossford,

,

,

, ¶ 5. “De novo review requires that

we review the trial court's decision independently and without deference to it.”

(Emphasis sic.) (Citation omitted.) Brewer v. Cleveland Bd. of Edn.,

,

(8th Dist. 1997).

{¶ 11} As was noted, prior to amendment, the complaint raised a theory of

malicious prosecution against Oliver; after amendment, the claim was changed to abuse

1 Cox’s brief also states as the sole issue for review that “[t]he trial court erroneously dismissed the abuse of process claims against Defendant Meyer.” Appellant’s Brief, p. 6. This is obviously a typographical error, as Oliver’s dismissal is the only matter properly before us. -5- of process.

{¶ 12} “The tort of malicious prosecution, whether criminal or civil, provides a

remedy when a proceeding is instituted without probable cause. However, it does not

provide a remedy for a related, yet different situation. The tort action termed ‘abuse of

process’ has developed for ‘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 v. Kemp, Schaeffer & Rowe Co., L.P.A.,

,

(1994), quoting Keeton, Dobbs, Keeton & Owen, Prosser & Keeton on the Law of

Torts, Section 121, 897 (5th Ed. 1984).

{¶ 13} “The three elements of the tort of abuse of process are: (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.” (Emphasis added.) Yaklevich at paragraph one of the syllabus.

{¶ 14} “In an abuse of process case, ‘[t]he improper purpose usually takes the

form of coercion to obtain a collateral advantage, not properly involved in the proceeding

itself, such as the surrender of property or the payment of money, by the use of the

process as a threat or a club.’ ” Robb v. Chagrin Lagoons Yacht Club, Inc.,

,

(1996), quoting Keeton, Dobbs, Keeton & Owen, Prosser &

Keeton on the Law of Torts, Section 121, 898 (5th Ed. 1984). “Simply, abuse of process

occurs where someone attempts to achieve through use of the court that which the court

is itself powerless to order.”

-6- {¶ 15} In contrast, the elements of a malicious criminal prosecution claim “are (1)

malice in instituting or continuing the prosecution, (2) lack of probable cause, and (3)

termination of the prosecution in favor of the accused.” Trussell v. Gen. Motors Corp.,

,

(1990), syllabus.

{¶ 16} In the present case, Cox could not have prevailed on a malicious

prosecution claim, because the criminal proceedings did not terminate in her favor. After

being advised of this possibility in the motions to dismiss filed by Oliver and Meyer, Cox

then amended her complaint to change her claim to abuse of process rather than

malicious prosecution. However, the trial court rejected the abuse of process claim.

{¶ 17} In this regard, the trial court held that under any reasonable reading of the

complaint, Cox had alleged that Oliver lacked probable cause to prosecute her.

Because that allegation logically precluded the possibility that Oliver had probable cause

to prosecute Cox, as is required for an abuse of process claim, the trial court granted the

motion to dismiss. Upon consideration, we agree with the trial court.

{¶ 18} The amended complaint contains the following allegations in Count I, which

is labeled as the “abuse of process” claim:

On January 29, 2013[,] knowing Cox was a licensed teacher, and

alleged to have engaged in conduct for which there was not sufficient and

verifiable evidence, an indictment was filed with the Clerk of Courts [sic]

Office, charging Cox with violation of Section 2903.13(A) & (C)(1) of the

Ohio Revised Code.

During Cox’s trial no further evidence pertaining to the occurrence of

the alleged crime was presented, and Oliver proceeded without legal -7- authority, and compliance with R.C. 2151.421(A)(1)(a), 2151.421(F)(1), or

2151.421(H) as required by law[.] Yates v. Mansfield Board of Education.

From June 26 – June 28, 2013, Kimberly Oliver subjected Cox to

prosecution alleging Cox had committed a crime that was not supported or

substantiated by law, thus acting outside the source of the law, and the

scope of her official capacity as an assistant prosecutor. Oliver engaged in

a trial process to use a criminal legal procedure for which there was no legal

authority to attack Cox’s professional license.

Beverly Meyer in breach of her official capacity as School Board

Attorney (then Defendant’s employer’s attorney) witnessed, aided and

supported the malicious abuse of process; allowing what should have been

her professional judgment to be regulated; and acted to help guarantee

action against Cox, rather than indemnify Cox’s truthful and rightful

statutory duty as outlined through sections of a multi-hundred page

contract.

The actions of Oliver and Meyer were unjustifiable based on

evidence they knew to be misleading and deceptive. Their actions were

intentional and consciously performed intending to cause the Plaintiff harm.

Doc. #22, Amended Complaint, Count I, paragraphs 4-8.

{¶ 19} These allegations clearly raise the issue that the prosecution was instituted

and maintained by the prosecutor without probable cause. As such, even accepting the

allegations as true, an action for abuse of process would not lie.

{¶ 20} Cox’s attorney argues on appeal that we should apply a lenient reading of -8- the complaint because Cox was a pro se litigant in the trial court. However, we have

consistently held that pro se litigants are held to the same standards as other litigants.

For example, in Galluzzo v. Braden, 2d Dist. Champaign No. 2011 CA 30,

, we observed that:

As a preliminary matter, Galluzzo contends that the trial court should

have given him wide latitude in the filing of his “pleading and papers,”

because he was not represented by an attorney. We have repeatedly

held, however, that “[l]itigants who choose to proceed pro se are presumed

to know the law and correct procedure, and are held to the same standard

as other litigants.” Burgin v. Eaton, 2d Dist. Montgomery No. 24757,

2011–Ohio–5951, ¶ 19, citing Yocum v. Means, 2d Dist. Darke No. 1576,

2002–Ohio–3803. A litigant proceeding pro se “cannot expect or demand

special treatment from the judge, who is to sit as an impartial arbiter.”

* * * Galluzzo has cited numerous federal cases which he contends

support his claim that he was entitled to lenient treatment; but while courts

may choose to extend some degree of leniency to pro se litigants, “leniency”

is not mandated or even defined.

Moreover, the trial court's decision in this case was not based on any

procedural or substantive defect in Galluzzo's filings which might have been

linked to his decision to represent himself. For example, he did not miss a

filing or fail to provide documentation of his claims.

(Footnote omitted.) Id. at ¶ 8-9.

{¶ 21} There is some authority for extending “ ‘reasonable leeway’ ” to pro se -9- litigants “ ‘such that their motions and pleadings should be liberally construed so as to

decide the issues on the merits, as opposed to technicalities.’ ” Millennia Hous. Mgt. v.

Johnson, 8th Dist. Cuyahoga No. 96854,

, quoting Citibank (South

Dakota), N.A. v. Paluch, 9th Dist. No. 25955,

. (Other citation omitted.)

This is not substantially different from our comments in Galluzzo, which focus on the fact

that the alleged defect was not linked to the pro se litigant’s decision to represent himself.

{¶ 22} Other courts have distinguished this doctrine, since it arose in the context of

a federal criminal case. For example, in Goodrich v. Ohio Unemp. Comp. Rev. Comm.,

10th Dist. Franklin No. 11AP-473,

, the Tenth District Court of Appeals

observed that:

We agree with the trial court that it is well-established that pro se

litigants are held to the same rules, procedures, and standards as litigants

represented by counsel. The Supreme Court of Ohio has specifically held

so in many cases. See, e.g., Zukowski v. Brunner,

,

,

; State ex rel. Fuller v. Mengel,

,

,

; Sabouri v. Ohio Dept. of Job &

Family Servs.,

,

(10th Dist. 2001).

This court has held likewise in countless cases. See, e.g., Fields v.

Stange, 10th Dist. No. 03AP-48,

; Dailey v. R & J

Commercial Contracting, 10th Dist. No. 01 AP-1464,

, ¶ 17.

It is true that a court may, in practice, grant a certain amount of latitude

toward pro se litigants. Robb v. Smallwood,

,

, 2005–Ohio–5863, ¶ 5 (4th Dist.). However, the court cannot -10- simply disregard the rules in order to accommodate a party who fails to

obtain counsel.

“The rationale for this policy is that if the court treats

pro se litigants differently, ‘the court begins to depart from its duty of

impartiality and prejudices the handling of the case as it relates to other

litigants represented by counsel.’ ” Pinnacle Credit Servs., LLC v. Kuzniak,

7th Dist. No. 08 MA 111,

, quoting Karnofel v. Kmart

Corp., 11th Dist. No.2007-T-0036,

.

Appellant here cites to Haines v. Kerner,

,

,

(1972) in support of her position that, as a pro se litigant,

she is not held to the same procedural standards as an attorney. However,

Haines is inapposite. In Haines, the Supreme Court concluded that

allegations in a pro se complaint, made by a prison inmate, would be held to

less stringent standards than formal pleadings drafted by lawyers, and that

in construing the complaint in such a strict manner, the trial court's dismissal

was inappropriate.

. To the contrary, in the present case,

appellant seems to be arguing that she should be held to less stringent

standards throughout the entire proceedings. However, as explained

above, appellant is held to the same standards when it comes to

procedures and rules. See Monus v. Day, 7th Dist. No. 10 MA 35,

(acknowledging that, although some latitude

might be granted in the construction and formal requirements of pleadings,

Haines does not stand for the proposition that pro se litigants should be held

to a lesser standard throughout the entire proceedings). See also Maguire -11- v. Natl. City Bank, 2d Dist. No. 24146,

(Haines does not

alter the well-established tenet that pro se litigants are held to the same

standard as licensed attorneys); State v. Briscoe, 8th Dist. No. 83471,

(affirming that pro se litigants are held to the same

standard as licensed attorneys and rejecting Haines as being a federal case

that is not controlling over the court). Furthermore, as this court noted in

Fields, Haines is a criminal case, and the United States Supreme Court, in

Mohasco Corp. v. Silver,

,

,

(1980) clarified that it never suggested in Haines that procedural rules

in ordinary civil litigation should be interpreted so as to excuse mistakes by

those who proceed without counsel.

Id. at ¶ 25-26.

{¶ 23} Even if we applied a more lenient standard in construing Cox’s pleadings,

the fact is that the issue in question is not linked to a technicality or a lack of clarity in the

pleadings. Pro se litigant or not, Cox asserted a malicious prosecution claim, and once

she learned of the possibility that it would be precluded because the criminal proceedings

did not terminate in her favor, she changed the name of the claim to abuse of process.

However, her allegations remained essentially the same, which is that the criminal

proceeding was initiated and tried without probable cause on the prosecutor’s part. As

was noted, that claim is inconsistent with abuse of process. It is consistent with a claim

of malicious prosecution, which the trial court also considered and rejected, based on the

fact that the criminal proceedings did not terminate in Cox’s favor. See Doc. #35,

Decision, Order and Entry Sustaining the Motion to Dismiss of Defendant, Kimberly Oliver -12- * * *, p. 7.

{¶ 24} Because the trial court did not err in concluding that Cox failed to state a

claim for abuse of process, Cox’s sole assignment of error is overruled.

III. Conclusion

{¶ 25} Cox’s sole assignment of error having been overruled, the judgment of the

trial court is affirmed.

.............

FAIN, J. and DONOVAN, J., concur.

Copies mailed to:

Byron L. Potts Kia M. Wrice Lindsay M. Johnson Laura G. Mariani Hon. Michael Tucker