{¶ 3} After accepting the purchase contract, Graff discovered that the contract excepted approximately three acres of the property rather than the five acres Graff had understood would be excepted. Graff called Classic and informed them that there had been a mistake, and told them not to рursue the matter any further. He indicated that he would have the farm surveyed and then renegotiate the offer.
{¶ 4} In early January 1993, Graff received a separate offer from a third party, by the name of Ernst, to purchase 33.6 acres of the Graff Farm. The land the Ernsts sought to purchase was a portion of the land subject to the purchase contract between Graff and OVTC. Graff accepted the Ernsts' offer and signed the purchase contract. After learning of Graff's attempt to repudiate the purchase contract he executed with OVTC, and of the purchase contract Graff had entered into with the Ernsts, Bohrer filed a complaint against Graff and Classic in the Highland County Court of Common Pleas, Case No. 93CIV45. In his complaint, Bohrer allеged a cause of action for breach of contract and sought: (1) a temporary restraining order and injunction preventing the sale of the real estate subject to the Grаff-OVTC contract; (2) specific performance of the contract; (3) compensatory damages; and (4) punitive damages. Sometime during the course of the litigation, the court grаnted Bohrer's motion to amend his complaint to name OVTC as an additional plaintiff in the action.
{¶ 5} The Highland County Court of Common Pleas issued a temporary restraining order on February 1, 1993, and set an injunction hearing for February 10, 1993. Then on February 9, 1993, the court issued an "ENTRY GRANTING TEMPORARY RESTRAINING ORDER/INJUNCTION[,]" wherein it stated that "* * * the parties herein have, by mutual agreement, agreed to extend or continue the temporаry restraining order for a period of 90 days from February 10, 1993, to-wit: May 12, 1993 * * *." By agreement of the parties, the temporary restraining order continued in effect until August 15, 1993.
{¶ 6} In April 1993, the four Graff siblings and Bohrer/OVTC reaсhed an agreement to sell the 93 acres of the Graff Farm that were not subject to the Ernst contract to OVTC. On May 31, 1995, Bohrer and OVTC dismissed the complaint and amended complaint, without prеjudice, pursuant to Civ.R. 41(A)(1). On May 24, 1996, Graff and his siblings filed a complaint against OVTC and Bohrer stating causes of action for abuse of process and malicious prosecution. On June 2, 2004, the trial court granted summary judgment in favor of OVTC and Bohrer as to James Michael Graff, William P. Graff, and Mary Graff Holcomb. The matter proceeded to a bench trial with Graff as the sole remaining plaintiff.
{¶ 7} The trial court ruled in favor of Bohrer and OVTC on both the malicious prosecution and abuse of process causes of action. In doing so, the court specifically found that Bohrer аnd OVTC had probable cause to file the initial lawsuit for breach of contract, thus negating an essential element of the malicious prosecution cause of action. Additionаlly, the court concluded that Bohrer and OVTC's purpose in filing the initial lawsuit was to enforce what they believed was a valid, enforceable contract. Therefore, the trial court concluded that Bohrer and OVTC had no ulterior purpose in filing the initial lawsuit, thus negating an essential element of the abuse of process cause of action.
{¶ 8} Graff appeals, raising the following assignments of error: [I.] The Court below erred to the prejudice of the Appellant as he was entitled to judgment in his favor as a matter of law. [II.] The judgment of the Court below was against the manifest weight of the evidence.
{¶ 10} We givе deference to the trial court as the trier of fact because it is best able to observe the witnesses and weigh the credibility of their testimony. Seasons Coal Co. v.Cleveland (1984),
{¶ 11} In order to prеvail upon a cause of action for malicious prosecution, a plaintiff must prove the following elements by a preponderance of the evidence: "(1) maliciоus institution of prior proceedings * * *; (2) lack of probable cause for the filing of the prior lawsuit * * *; (3) termination of the prior proceedings in plaintiff's favor * * *; and (4) seizure of plaintiff's person or property during the course of the prior proceedings * * * [.]" Crawford v. Euclid Natl. Bank
(1985),
{¶ 12} Here, Graff has neither alleged nor proven facts sufficient to demonstrate that the underlying action terminated in his favor. In his complaint, Graff alleges that Bohrer and OVTC terminated the underlying action by dismissing the complaint. At trial, Graff introduced the notice of voluntary dismissal of the underlying complaint and amended cоmplaint without prejudice, pursuant to Civ.R. 41(A)(1). The Ohio Supreme Court has recognized that a voluntary dismissal pursuant to Civ.R. 41(A)(1) constitutes a failure otherwise than upon the merits. Frysinger v. Leech (1987),
{¶ 13} Bohrer and OVTC dismissed the underlying cause of action pursuant to Civ.R. 41(A)(1), but only did so after Graff and his siblings actually sold the bulk of the disputed land to OVTC. Therefore, we cannot conclude that the dismissal constitutes a termination of the underlying action in Graff's favor. Because the underlying action was not terminated in Graff's favor, we conclude that Bohrer and OVTC are entitled tо judgment as a matter of law upon Graff's cause of action for malicious prosecution. Accordingly, we overrule each of Graff's assignments of error and affirm the trial court's judgment.
JUDGMENT AFFIRMED.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Highland County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as the date of this Entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Abele, P.J. and Harsha, J.: Concur in Judgment and Opinion.