Lead Opinion
We reverse the appellate court on its ruling regarding whether appellees were properly expelled from the club and on its ruling regarding appellants’ abuse of process claim. We affirm the appellate court’s decisions on appellants’ malicious prоsecution and contract actions.
Expulsion
This is a case about a yacht club expelling some of its members. This is not the case of someone being denied his rights under the Constitution of the United States. We thus adopt a more relaxed standard as to whether appellees’ due process rights were violated. We find that the appellants substantially complied with the club’s constitution and that appellants should have been awarded summary judgment.
Section 4, Article 2 of the club’s constitution states that when the club’s grievance committee is unable to amicably resolve a grievance, and it determines that discipline will be needed to resolve the problem, notice of the charges must be given to the affected member by certified mail. No sooner than ten days after that notice “a formal closed hearing on the matter shall be conducted by the Board of Trusteеs.” After the hearing, the board makes a recommendation which is voted upon by the voting members at a meeting. The club constitution does not stipulate how much time must pass between the trustees’ recommendation and the meeting of the voting members, nor does it state whether persons to be disсiplined may be heard at the meeting of the voting members.
Pursuant to Section 5, Article 2 of the club constitution, the voting membership makes the final determination of whether to mete out discipline. The fact that the trustees’ hearing was closed to appellees does not mean that they were denied an important right. The behavior for which the board recommended discipline was not subject to dispute: appellees could not deny that they had filed . complaints against the club in the trial court.
More importantly, the most significant opportunity to be heard was at the meеting of the voting membership. It was the voting membership who had the ultimate decision on appellees’ fate. The trustees gave appellees at least seven days’ notice of the meeting. Appellees took advantage of that time and communicated with the voting members through а letter. Appellees were not denied an opportunity to be heard at the members’ meeting — appellees simply chose not to attend. A discussion preceded the expulsion vote regarding each appellee. The members’ meeting was not a mere rubber stamp of the trustees’ recommendation. In fact, the board’s recommendation regarding Flood was rejected by the members.
Thus, the appellees had reasonable notice of the meeting at which the expulsion vote would be taken. They were able to communicáte with the persons whо would decide their fate. Appellees were not denied an opportunity to attend the meeting or to be heard at the meeting. In short, they knew the charges leveled against them and had a meaningful opportunity to do something about them.
II
Malicious Prosecution
In Crawford v. Euclid Natl. Bank (1985),
“[I]n order to state a cause of action for malicious prosecution in Ohio, four essential elements must be alleged by the plaintiff: (1) malicious institution of priоr proceedings against the plaintiff by defendant, * * * (2) lack of probable cause for the filing of the prior lawsuit, * * * (3) termination of the prior proceedings in plaintiffs favor, * * * and (4) seizure of plaintiffs person or property during the course of the prior proceedings * * Crawford,
In a later case, Trussell v. Gen. Motors Corp. (1990),
“The tort of malicious criminal prosecution compensates the plaintiff for the damage done to dignity and reputation caused by false accusation of a crime. * * * The damage occurs whether the plaintiff is arrested or * * * haled into court on a summons. Unlike the victim of malicious civil prosecution, the victim of false criminal charges does not have the remedies provided by Civ.R. 11.” Id. at 145-146,
The Trussell court noted that the seizure requirement was first instituted by this court in a maliсious civil prosecution case in Cincinnati Daily Tribune v. Bruck (1900),
We echo this court’s concern in Crawford that removing the seizure requirement from malicious civil prosecution claims would result in an explosion of claims for malicious prosecution. There are opportunities already built into the civil system to deal with ao meritless lawsuit within that same lawsuit, rather thаn instituting another suit. Every successful summary judgment defendant should not be tempted to file a malicious prosecution claim.
We therefore retain in malicious civil prosecution cases the long-held and well-reasoned requirement of seizure of property, and leave to our Rules of Civil Prоcedure, or the General Assembly, the method with which to deal with meritless civil claims. A cause of action for malicious civil prosecution will lie only in cases where there is a prejudgment seizure of property, i.e., where there essentially has been a judgment against, and a concomitаnt injury suffered by, a defendant before he has had a chance to defend himself. We therefore decline to overrule this court’s decision in Crawford.
Thus, in order to properly assert a claim of malicious civil prosecution, appellants were required to satisfy the seizure element. Sincе appellants presented no evidence of seizure, we affirm the judgment of the appellate court on this issue.
Ill
Abuse of Process
In order to establish a claim of abuse of process, a plaintiff must satisfy three elements: “(1) that a legal proceeding has been set in motion in proper form аnd 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.” Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A (1994),
Appellants argue that appellees’ barrage of lawsuits constituted an abuse of process, and specifically that the third and fourth actions were initiated to stop the voting members from acting on the board’s disciplinary recommendations. The appellate court found that appellants could not prove their casе as to the
“ ‘[Ajbuse of process’ differs from ‘malicious prosecution’ in that the former connotеs the use of process properly initiated for improper purposes, while the latter relates to the malicious initiation of a lawsuit which one has no reasonable chance of winning.” Clermont Environmental Reclamation Co. v. Hancock (1984),
We believe that reasonable minds could conclude that appellees instituted at least one of their suits with the intention to use it as а club to coerce the membership to vote in their favor. Clearly, the trial court had no authority to order club members how to vote. In opposition to appellees’ motion for summary judgment on the issue, appellants presented evidence which could be construed as proof of an ulterior motive. In their September 3, 1991 letter to the members, appellees stated, in part:
“Without the Grievances, there would not have been a law suit * * *. Remember, no grievances, the case is dead and you members stop paying * * *. VOTE TO DROP THE GRIEVANCES.” (Emphasis sic.)
Appellee Graham also stated in а deposition that “the reasoning behind our litigation was, to keep the membership from, in fact, rejecting our membership.”
There are sufficient facts in their favor for appellants to successfully prosecute a claim for abuse of process. Accordingly, we overrule the court of appeals on this issue.
IV
Contract Action
Finally, appellants appeal the holding of the appellate court that a nonprofit corporation cannot maintain an action for damages incurred as a result of a member’s failure to abide by the rules and regulations of the corporation. The appellants’ remedy lies within the contract between the club and its members. The club exercised its right of expulsion thereunder. We decline to recognize
Judgment affirmed in part, reversed in part and cause remanded.
Concurrence in Part
concurring in part and dissenting in part. I agree in substance with the majority’s statement that “[t]o substantially comply with the club’s constitution, appellants had to provide appellees notice and an opportunity to be heard.” However, as the court of appeals correctly points out, “Article 2, Section 4 of the club’s constitution states that if the grievance committee cannot resolve the dispute raised in a grievance, notice of the charges must be forwarded to the member by certified mail. Section 4 then expressly states that a formal closed ‘hearing’ must be conducted by the board of trustees, which must afterwards make a recommendation as to whether disciplinary action is warranted.
“As appellants [Frank Robb et al.] aptly note, the trial court’s entire analysis as to whether they had received due process was predicated upon the determination that the special meeting of the voting members constituted a ‘hearing.’ However, the plain wording of the club’s constitution indicates that the ‘hearing’ on a grievance is to bе held before the board, not the voting members.”
Clearly, pursuant to this constitution, the grievant must be afforded the opportunity to be heard and to present a defense at the board meeting. Appellees were not afforded this opportunity. While I strongly believe that disagreements within a private club should be resolved internally, the club does not have carte blanche to proceed however it pleases. Due process must still be provided to a member. The process that is due a grievant member in such circumstances is that which is set forth in the club’s regulations, constitution, аnd by-laws.
The majority mistakenly determines that the club “substantially” complied with the club’s constitution when in actuality there was not even a semblance of compliance. I agree with the court of appeals that the “board of trustees acted beyond [its] power” by not holding a propеr hearing. Due to their failure to comply with Section 4, Article 2 of the club constitution regarding notice and hearing, appellants should not be entitled to judgment as a matter of law. I would affirm the judgment of the court of appeals in its entirety.
Dissenting Opinion
dissenting. I must respectfully dissent. Once again, a majority of this court misses the opportunity to bring the law of Ohio into at least the' twentieth century. By continuing the archaic requirement, in cases of malicious civil prosecution in Ohio, that a plaintiff must show that his or her person or property was seized during the underlying proceedings, the majority grants absolute immunity frоm suit to a litigant who has initiated a prior lawsuit with actual malice and without any probable cause. Seldom, if ever, will a party’s person or property be seized in a civil suit.
Unfortunately, spurious suits against “deep-pocket” or “target” defendants have become a significant problem. By today’s majority decision, target defendants such as judges, doctors, newspapers and public officials are left without a remedy even though the suits brought against them have no basis in law or fact. Simply put, this is unfair and wrong.
It is further interesting to note that the majority does not even cite, never mind discuss, Border City S. & L. Assn. v. Moan (1984),
I dissent.