Dever v. Lucas

Delaney, J.,

dissenting.

{¶ 45} I respectfully dissent from the majority opinion.

{¶ 46} The complete dismissal of plaintiffs-appellants’ complaint is warranted under Civ.R. 12(B)(1) for lack of subject-matter jurisdiction.

{¶ 47} It is well settled that the issue of subject-matter jurisdiction may be raised sua sponte by the court at any stage of the proceedings, including for the first time on appeal. Ivkovich v. Steubenville (2001), 144 Ohio App.3d 25, 29, 759 N.E.2d 434.

{¶ 48} I agree with other jurisdictions that have determined that the Bankruptcy Code and Federal Rules of Civil Procedure, specifically' Section 105, Title 11, U.S.Code and Fed.R.Civ.P. 11, preempt state-law claims of malicious prosecution and abuse of process for conduct that occurred in bankruptcy proceedings.

{¶ 49} As recently recognized by the Supreme Court of Pennsylvania in Stone Crushed Partnership v. Kassab Archbold Jackson & O’Brien (2006), 589 Pa. 296, 908 A.2d 875, parties could be deterred from exercising their rights in bankruptcy if, by filing a bankruptcy action, they risk being faced with a state-court lawsuit and liability for substantial damages, citing Gonzales v. Parks (C.A.9, 1987), 830 *735F.2d 1033, 1036. It is for Congress and the federal courts, not the state courts, to decide what incentives and penalties are appropriate for use in connection with the bankruptcy process and when those incentives or penalties shall be utilized. Id. at 308, 908 A.2d 875.

{¶ 50} See also Mullin v. Orthwein (Fla.App.2000), 772 So.2d 30, concurring opinion; MSR Exploration, Ltd. v. Meridian Oil, Inc. (C.A.9, 1996), 74 F.3d 910; Koffman v. Osteoimplant Tech., Inc. (D.Md.1995), 182 B.R. 115; Mason v. Smith (1996), 140 N.H. 696, 672 A.2d 705; Samo v. Thermen (1992), 239 Ill.App.3d 1034, 180 Ill.Dec. 889, 608 N.E.2d 11; Idell v. Goodman (1990), 224 Cal.App.3d 262, 273 Cal.Rptr. 605; Smith v. Terry’s Tractor (1989), 209 Cal.App.3d 951, 257 Cal.Rptr. 598.

{¶ 51} Accordingly, I would affirm the trial court’s dismissal of the complaint, albeit on different grounds.