dissenting. The complaint in this case does not state a claim for relief against defendants for malicious prosecution for the following reasons.
In order for the complaint to state a good cause of action warranting relief for malicious prosecution, the plaintiff must allege four essential elements: (1) malicious institution by defendant of prior proceedings against plaintiff, Woodruff v. Paschen (1922), 105 Ohio St. 396; (2) lack of probable cause, Melanowski v. Judy (1921), 102 Ohio St. 153, paragraph one of the syllabus, and 52 American Jurisprudence 2d (1970) 226, Malicious Prosecution, Section 64; (3) termination of the prior proceedings in plaintiffs favor, Levering v. National Bank (1912), 87 Ohio St. 117; and (4) seizure of plaintiffs person or property during the course of the prior proceedings, Woyczynski v. Wolf (1983), 11 Ohio App. 3d 226, paragraph one of the syllabus, and Battig v. Forshey (1982), 7 Ohio App. 3d 72, paragraph two of the syllabus.
The only wrongful acts alleged in the complaint in this case are that defendants “by filing lawsuits on behalf of Kennecorp Enterprises, Inc.” and others “intentionally inflicted harm upon the plaintiff without any excuse or justification, to plaintiff’s damage.” These excerpted allegations fulfill only the first element of four enumerated above, namely, malicious institution by defendant of prior proceedings against plaintiff, and do not allege or even give rise to an inference that the remaining three essential, designated elements exist, namely, lack of probable cause, termination of the prior proceedings in plaintiff’s favor, and seizure of the person or property of plaintiff.
*68The recent case of Scholler v. Scholler (1984), 10 Ohio St. 3d 98, and paragraph one of the syllabus thereof, are entirely irrelevant to the issue in the present Border City case. Scholler did not involve a malicious prosecution action, and did not consider the essential elements of such an action. Instead, Scholler was an action by a former wife as plaintiff, on behalf of herself and her minor son, against her former husband, Michael Scholler, and her own attorney, Thomas Willoughby, seeking damages for fraud incident to misrepresentations concerning financial affairs in a prior dissolution of marriage proceedings between the Schollers. The action against defendant attorney Willoughby was on the theory of legal malpractice, as is evident from the Scholler opinion, at 102, as follows:
“The second issue is whether Alyce Scholler on behalf of Philip Scholler may maintain an action against Willoughby in malpractice even though Philip is a third party to the attorney-client relationship that existed between Willoughby and Alyce Scholler.”
Scholler in no way affects the above-cited legal precedents in Ohio which require the four essential elements discussed above to be pleaded and proved in a malicious prosecution action. Finally, Scholler did not consider the sufficiency of a complaint to state a cause of action in malicious prosecution, or otherwise, when challenged by a motion to dismiss, as was done here by defendants Moan and others. Our holding today is, therefore, without precedent. It is, moreover, a judicial aberration.
The majority opinion states:
“* * * An action for malicious prosecution or abuse of process ‘may be maintained where a proceeding is carried on maliciously and without probable cause,’ * * *” citing three cases, Diehl v. Friester (1882), 37 Ohio St. 473, 473-475; Brinkman v. Drolesbaugh (1918), 97 Ohio St. 171, 181; and Pope v. Pollock (1889), 46 Ohio St. 367, 370. Careful examination of these three cited cases reveals no support for that broad proposition of law.
Diehl, supra, was an action for false imprisonment, not malicious prosecution, by a party imprisoned for nonpayment of a fine imposed upon him for an alleged contempt of court in disregarding an injunction not authorized by law. The plaintiff in Diehl sued the party causing the imprisonment.
Brinkman, supra, also involved a false imprisonment action, not malicious prosecution.
Pope, supra, held that an action may be maintained for maliciously and without probable cause instituting and prosecuting an action in forcible entry and detainer. The plaintiff in Pope charged in his complaint that he had successfully defended two forcible entry and detainer actions brought by the defendant, i.e., both actions terminated in verdicts in favor of Pope. The issue in Pope is framed at 368 as follows:
“Will the prosecution of a suit in forcible entry and detainer, which results in a verdict for the defendant, where the same is prosecuted *69maliciously, and without probable cause, afford ground for an action in the nature of a suit for malicious prosecution? — is the question in this case.”
Unlike Pope, supra, the complaint of Border City makes no statement alleging or raising an inference that the prior civil actions filed by defendants terminated in favor of Border City.
Unlike Border City where there was no alleged interference -with plaintiff’s person or property, in each of the Diehl and Brinkman cases, supra, the action was for false imprisonment, and there was a definite seizure of plaintiff’s person. The significant difference between a false imprisonment action and a malicious prosecution action is explained in Brinkman, supra, at paragraph two of the syllabus as follows:
“False imprisonment per se is not concerned with good or bad faith, malicious motive or want of probable cause on the part of the prosecuting witness, or the officer causing the imprisonment. If the imprisonment was lawful, it is not the less lawful that any or all of the foregoing elements existed. These elements relate to an action of malicious prosecution, but are not essential to an action in false imprisonment.” (Emphasis deleted.)
Also, unlike the present case, the Diehl, Brinkman and Pope cases were not concerned with actions against any attorneys as defendants. These three cited cases set no standard of liability for attorneys prosecuting civil actions on behalf of their clients.
For these reasons I dissent. The appellate court should be affirmed.
Locher, J., concurs in the foregoing dissenting opinion.