Jones v. NicholsJones v. Nichols
Batsche & Batsche Attorneys at Law, D. Andrew Batsche, 300 West Main Street, P.O. Box 75, Mason, Ohio 45040, for defendant-appellee
O P I N I O N
YOUNG, J.
{¶ 1} Appellant, Kevin Jones, appeals a decision of the Warren County Court of Common Pleas dismissing his malicious prosecution claim and granting sanctions against him. For the reasons stated below, we affirm the decision of the trial court.
{¶ 2} In 2009, appellant and appellee, Tracy Nichols, divorced and were granted shared parenting for their two children. Approximately one year later, appellee filed a civil protection order (“CPO“) on behalf of the children against appellant in the Domestic Relations
{¶ 3} On April 12, 2011, appellant filed a pro se complaint in the General Division of the Warren County Court of Common Pleas. Appellant did not list the cause of action he was pursuing in the complaint but alleged that appellee frivolously filed for the CPO against him and that this has caused appellant financial and emotional damages. The complaint went on to state that the CPO case and charges were denied by the city of Mason and Warren County Children‘s Services and that appellee dismissed the CPO action. Appellant requested that the court award damages in excess of $100,000 and “make-up” parenting time. Appellee filed a motion to dismiss the complaint and a motion for sanctions. On September 1, 2011, the trial court granted appellee‘s motion to dismiss the complaint for failure to state a claim upon which relief could be granted. The trial court then scheduled a hearing regarding the imposition of
{¶ 4} At the sanctions hearing, appellant testified that he filed the complaint to recover the monetary damages he suffered and to recover “make-up” parenting as a result of the “frivolous” filing of the CPO. Appellant testified that he did not seek counsel in filing the action and does not remember what particular law he researched prior to filing his complaint. Appellant explained that he instituted this action due to appellee‘s filing for a CPO, even though she dismissed the case before the children received a permanent CPO. He also stated that since the dismissal of the CPO case, appellee has been deemed the residential
{¶ 5} Appellant now appeals, raising two assignments of error.
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE COURT ERRED BY GRANTING * * * [APPELLEE‘S] MOTION TO DISMISS.1
{¶ 8} In appellant‘s first assignment of error, he argues that the trial court erred in dismissing his malicious civil prosecution claim.
{¶ 9} “A motion to dismiss for failure to state a claim upon which relief can be granted * * * tests the sufficiency of the complaint.” State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992). A motion made pursuant to
{¶ 10} “In order for a complaint to be dismissed under
{¶ 11} A trial court‘s order granting a motion to dismiss pursuant to
{¶ 12} To prevail on a claim for malicious prosecution of a civil action, a plaintiff must prove the following: (1) the defendant maliciously instituted the prior proceedings against the plaintiff, (2) the lack of probable cause for filing the prior lawsuit, (3) the prior proceedings terminated in the plaintiff‘s favor, and (4) the plaintiff‘s person or property was seized during the course of the prior proceedings. Robb v. Chagrin Lagoons Yacht Club, Inc., 75 Ohio St.3d 264 (1996), syllabus. Voluntary dismissal of a complaint is not a termination of the proceedings in plaintiff‘s favor for purposes of a malicious prosecution claim. Miller v. Unger, 192 Ohio App.3d 707, 2011-Ohio-990 (12th Dist.), ¶ 16.
{¶ 13} We find that the trial court did not err in dismissing appellant‘s cause of action. In granting appellee‘s motion to dismiss, the court reasoned that the complaint failed to raise a claim upon which relief could be granted because it did not mention whether appellant‘s person or property was seized. As noted above, one of the elements of malicious prosecution of a civil action is a seizure. The complaint failed to mention any allegations
{¶ 14} Moreover, the trial court did not err in dismissing the action as the complaint also did not satisfy the “prior proceedings” element. One of the elements of a malicious prosecution claim is that the prior proceedings were terminated in the plaintiff‘s favor. As stated above, a voluntary dismissal of an action does not constitute proceedings that are terminated in the plaintiff‘s favor for malicious prosecution. In this case, after receiving an ex parte protection order, appellee voluntary dismissed the CPO case against appellant. Appellee never received a permanent CPO because she dismissed the case before it went forward. Appellant‘s complaint recited this fact. Therefore, the trial court did not err in granting appellee‘s motion to dismiss because the prior proceeding was not terminated in appellant‘s favor. Appellant‘s first assignment of error is overruled.
{¶ 15} Assignment of Error No. 2:
{¶ 16} THE COURT ERRED BY GRANTING * * * [APPELLEE‘S] MOTION FOR SANCTIONS.
{¶ 17} In appellant‘s second assignment of error, he argues that the court erred when it granted appellee‘s motion for sanctions pursuant to
{¶ 18}
{¶ 19}
(i) It obviously serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose, including, but not limited to, causing unnecessary delay or a needless increase in the costs of litigation.
(ii) It is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law.
(iii) The conduct consists of allegations or other factual contentions that have no evidentiary support or, if specifically so identified, are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(iv) The conduct consists of denials or factual contentions that are not warranted by the evidence or, if specifically so identified, are not reasonably based on a lack of information or belief.
{¶ 20} Willfulness is not required under
{¶ 21} On review, the trial court‘s determination of the existence of frivolous conduct in violation of
{¶ 22} In either case, appellate review of a trial court‘s decision to impose sanctions pursuant to
{¶ 23} We note that pro se litigants are held to the same standard as litigants who are represented by counsel. State ex rel. Leon v. Cuyahoga Cty. Court of Common Pleas, 123 Ohio St.3d 124, 2009-Ohio-4688, ¶ 1. Moreover, it is well established that courts of common pleas “may exercise only such jurisdiction as is expressly granted to them by the legislature.” Seventh Urban, Inc. v. Univ. Circle Property Dev., 67 Ohio St.2d 19, 22 (1981). The court of common pleas has jurisdiction “in all civil cases in which the sum or matter in disputes exceeds the exclusive original jurisdiction of county courts and appellate jurisdiction from the decisions of boards of commissioners.”
{¶ 24} We find that the trial court did not err in granting sanctions against appellant. In imposing sanctions upon appellant, the trial court reasoned that sanctions were warranted because appellant requested relief that the general division could not grant and that appellant filed the action primarily to punish appellee. The evidence established that appellant requested relief, “make-up” parenting time with his children, over which the court of common
{¶ 25} Judgment affirmed.
POWELL, P.J., and PIPER, J., concur.
Young, J., retired, of the Twelfth Appellate District, sitting by assignment of the Chief Justice, pursuant to