[Cite as Armatas v. Aultman Hosp., 2022-Ohio-4376.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STEVEN A. ARMATAS, ET AL : Hon. Earle E. Wise, P.J.
: Hon. W. Scott Gwin, J.
Plaintiffs-Appellees : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 2021 CA 00122
AULTMAN HOSPITAL, ET AL :
:
Defendants-Appellants :
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Case No. 2020 CV 00741
JUDGMENT: Affirmed in part; Reversed in part
DATE OF JUDGMENT ENTRY: December 7, 2022
APPEARANCES:
For-Appellees For-Appellants
STEVEN A. ARMATAS, ET AL PAUL J. PUSATERI
7690 Bucknell Circle N.W. 4684 Douglas Circle N.W.
North Canton, OH 44720 Canton, OH 44735
Stark County, Case No. 2021 CA 00122 2
Gwin, J.
{¶1} Appellants appeal the April 22, 2021 judgment entry of the Stark County
Court of Common Pleas granting appellees’ motion to dismiss.
Facts & Procedural History
{¶2} Appellee Steven Armatas is the adult son and executor of the estate of his
father, Alexander Armatas. In 2014, Alexander was taken by ambulance to Aultman
Hospital after suffering a cardiac event. Alexander was 97 years old when he was
admitted to Aultman; Steven avers that Alexander was in good health prior to this episode.
He was intubated and placed on a respirator. Alexander passed away on December 31,
2014.
{¶3} Steven, individually, as executor of the estate of Alexander, and as the
personal Medicare representative for Alexander, filed a complaint on December 28, 2016
in state court against numerous defendants. Appellees voluntarily dismissed, without
prejudice, all causes of action pursuant to Civil Rule 41(A)(1). Appellees filed their claims
in federal court in February of 2018. In March of 2020, the district court ruled on the
federal claims and most of the state claims, but dismissed the remaining wrongful death
claims without prejudice.
{¶4} On April 30, 2020, Armatas, individually, as personal Medicare
representative for Alexander, and as executor of the estate of Alexander (“Appellees”),
filed a complaint in the Stark County Court of Common Pleas against Aultman Hospital,
Aultman Insurance Company, Aultcare, Ohio Physicians Professional Corporation, Dr.
Stjernholm, Pulmonary Physicians, Dr. Nashawati, Dr. Boutros, Dr. Miller, Dr. Bou Serhal,
Dr. Knoch, and Mark Rose alleging the following causes of action: medical malpractice,
Stark County, Case No. 2021 CA 00122 3
wrongful death, survivorship action, breach of contract, fraud, intentional infliction of
emotional distress, denial of court and abuse of process, violation of 42 U.S.C. § 1983,
civil conspiracy, and violations of the R.I.C.O. Act. Appellees filed an amended complaint
on November 30, 2020, alleging the same claims. Appellants Aultman Hospital and
Aultcare Insurance Company filed counterclaims against Armatas, consisting of two
claims: abuse of process and malicious prosecution.
{¶5} In the abuse of process claim, appellants aver that because Armatas “filed
the present action after the claims alleged in the federal court action had been litigated
and dismissed,” the state law complaint filed on April 30, 2020 was “done for an ulterior
purpose of harassment and constitutes an abuse of legal process.” In their malicious
prosecution claim, appellants aver, “the voluntary dismissal and refiling of the state court
action were done out of actual malice for the ulterior purpose of harassment and to
increase the litigation expenses of the defendants, and constituted malicious
prosecution.”
{¶6} Appellees filed a motion to dismiss the counterclaims pursuant to Civil Rule
12(B)(6). Appellants filed a joint brief in opposition to appellees’ motion to dismiss.
Appellees filed a reply brief.
{¶7} The trial court issued a judgment entry on April 21, 2021, granting appellees’
motion to dismiss. As to the malicious prosecution claim, the trial court found appellants
failed to allege the fourth element required for malicious prosecution, i.e., “seizure of
plaintiff’s person or property during the course of the prior proceedings.” With regard to
the abuse of process claim, the trial court cited to the portion of appellants’ counterclaim
stating, “[Armatas] filed the present action with probable cause after the claims alleged in
Stark County, Case No. 2021 CA 00122 4
the federal court action had been litigated and dismissed,” and the portion of the complaint
stating, “[Armatas’] complaint against [Aultman Hospital] alleges claims that have already
been adjudicated to final judgment against [Armatas].” The trial court found these two
allegations contradict each other for purposes of determining whether an abuse of
process claim is properly pled. According to the trial court, “Armatas cannot have filed
the present action with probable cause that it has alleged [a] valid claim, if it is also true
that such claims have been adjudicated to final judgment against Armatas.”
{¶8} Appellants appeal the April 21, 2021 judgment entry of the Stark County
Court of Common Pleas and assign the following as error:
{¶9} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS
IN DISMISSING THEIR COUNTERCLAIMS FOR ABUSE OF PROCESS PURSUANT
TO CIV.R. 12(B)(6).
{¶10} “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS
IN DISMISSING THEIR COUNTERCLAIMS FOR MALICIOUS PROSECUTION
PURSUANT TO CIVIL RULE 12(B)(6).”
Civil Rule 12(B)(6)
{¶11} Our standard of review on a Civil Rule 12(B)(6) motion to dismiss is de novo.
Greeley v. Miami Valley Maintenance Contractors, Inc., 49 Ohio St.3d 228, 551 N.E.2d
981 (1990). A motion to dismiss for failure to state a claim is procedural and tests the
sufficiency of the complaint. State ex rel. Hanson v. Guernsey Co. Bd. of Commissioners,
65 Ohio St.3d 545, 605 N.E.2d 378 (1989). Under a de novo analysis, we must accept
all factual allegations of the complaint as true and all reasonable inferences must be
drawn in favor of the nonmoving party. Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584
Stark County, Case No. 2021 CA 00122 5
(1991). In order for a court to grant a motion to dismiss for failure to state a claim, it must
appear “beyond a doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” O’Brien v. Univ. Community Tenants Union, Inc., 42
Ohio St.2d 242, 327 N.E.2d 753 (1975).
I.
{¶12} In their first assignment of error, appellants contend the trial court committed
error in dismissing their abuse of process claim. We agree.
{¶13} In order to assert a claim for abuse of process, a plaintiff must allege the
following: (1) a legal proceeding has been set in motion in proper form and with probable
cause; (2) the proceeding has been perverted to attempt to accomplish an ulterior
purpose for which it was not designed; and (3) direct damage has resulted from the
wrongful use of process. Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A., 68 Ohio
St.3d 294, 1994-Ohio-503, 626 N.E.2d 115.
{¶14} “Probable cause” means “a reasonable belief, supported by trustworthy
information and circumstances, that the defendant’s [proceeding] was legally just and
proper.” Huber v. O’Neill, 66 Ohio St.2d 28, 419 N.E.2d 10 (1981).
{¶15} This Court has addressed the issue of whether a plaintiff can allege both an
abuse of process claim and a malicious prosecution claim in the same complaint, since
once requires probable cause (abuse of process) and one requires the absence of
probable cause (malicious prosecution). Dever v. Lucas, 174 Ohio App.3d 725, 884
N.E.2d 641 (5th Dist. Delaware 2008). We held a plaintiff could allege both causes of
action, in separate counts. Id. We cited Civil Rule 8(E), which permits alternative or
hypothetical pleading, or even the use of inconsistent claims. The rule provides, “when
Stark County, Case No. 2021 CA 00122 6
two or more statements are made in the alternative and one of them, if made
independently, would be sufficient, the pleading is not made insufficient by the
insufficiency of one or more of the alternative statements. A party may also state as many
separate claims * * * as he has regardless of consistency * * *.” Ohio Civil Rule 8(E)(2).
{¶16} We also cited the Ohio Supreme Court’s holding that, “even though the tort
of malicious prosecution and the tort of abuse of process have different elements, in some
situations the same facts which may constitute an abuse of process may also support an
action for malicious prosecution. In that case, a complaint could allege both causes of
action, in separate counts.” Id., citing Yaklevich, Kemp, Schaeffer & Rowe Co., L.P.A.,
68 Ohio St.3d 294, 1994-Ohio-503, 626 N.E.2d 115; see also Miller-Wagenknecht v. City
of Munroe Falls, 9th Dist. Summit No. 20324, 2001-Ohio-1877.
{¶17} The sole reason the trial court dismissed appellants’ claim for abuse of
process is because it found the allegations in the complaint contradicted themselves.
Specifically, the trial court found that appellants could not simultaneously allege the action
was supported by probable cause and allege the ulterior purpose was improper because,
as a matter of law, a plaintiff cannot have probable cause for a complaint when the
complaint is barred by res judicata. However, the question is whether appellees instituted
the legal procedure with the reasonable belief that the case was legally just and proper
under applicable law. The court does not conduct an examination of the merits of the
claims or determine whether the claims were ultimately barred by the doctrine of res
judicata, because an abuse of process claim is not dependent upon the outcome of the
underlying proceeding. Turkoly v. Gentile, 7th Dist. Mahoning No. 20 MA 0043, 2021-
Ohio-965 (tort of abuse of process “provides a remedy for situations in which (successful
Stark County, Case No. 2021 CA 00122 7
or unsuccessful) legal procedure is instituted with probable cause but nevertheless has
been perverted to accomplish an ulterior purpose for which it was not designed”);
Yaklevich, Kemp, Schaeffer & Rowe Co., L.P.A., 68 Ohio St.3d 294, 1994-Ohio-503, 626
N.E.2d 115 (elements of tort of abuse of process do not include a requirement that the
legal procedure ultimately is unsuccessful or successful); Haller v. Borror, 10th Dist.
Franklin No. 93APE12-1657, 1994 WL 265660 (June 14, 1994) (action for abuse of
process is not dependent upon the outcome of the proceedings, key consideration is
whether an improper purpose was sought to be achieved); Read v. Fairview Park, 146
Ohio App.3d 15, 764 N.E.2d 1079 (8th Dist. 2001) (abuse of process claim is not
dependent upon resolution of underlying proceeding). We find the trial court’s legal
determination that a complaint that is barred by res judicata can never be filed with
probable cause to be in error.
{¶18} The complaint asserts that appellees, “filed the present action with probable
cause.” Appellants concede they believe they filed the present action with probable cause
multiple times throughout the pleadings. For example, in their Civil Rule 12(B)(6) motion
to dismiss, appellees include a chart detailing whether the necessary elements of each
claim (abuse of process and malicious prosecution) is “present” or “absent.” Appellees
state the element of a “legal proceeding was set in motion against [Aultman] in proper
form and with probable cause” is “present.” Appellees state the “lack of probable cause”
element is, “absent because Mr. [Steven] Armatas held a reasonable belief he could
prevail in the litigation for several reasons.” In their appellate brief in this case, appellees
argue the refiling of the claims in state court was reasonable based upon the federal
court’s judgment entry.
Stark County, Case No. 2021 CA 00122 8
{¶19} Based on the foregoing, we find the trial court committed error in dismissing
appellants’ abuse of process claim. Appellants’ first assignment of error is sustained.
II.
{¶20} In their second assignment of error, appellants contend the trial court
committed error in dismissing their counterclaim for malicious prosecution.
{¶21} The elements of the tort of malicious prosecution are: (1) malicious
institution of prior proceedings against the plaintiff by the defendant; (2) lack of probable
cause for filing the prior proceedings; (3) termination of the prior proceedings in the
plaintiff’s favor; and (4) the seizure of the plaintiff’s person or property during the course
of the prior proceedings. Crawford v. Euclid Nat’l Bank, 19 Ohio St.3d 135, 483 N.E.2d
1168 (1985).
{¶22} The Ohio Supreme Court has held that the general rule is that “no suit will
lie for the malicious prosecution of a civil action where there has been no arrest of the
person or seizure of property.” Id. This is known as the “English Rule.” Id.
{¶23} Appellants have failed to allege a seizure of person or property. However,
they argue the English Rule is now only used in a minority of states. They ask this Court
to reject or abandon the English Rule.
{¶24} However, the Ohio Supreme Court has repeatedly rejected attempts to
abandon the English Rule. In Crawford, the Supreme Court specifically declined to
abandon the English Rule and held, “the requirement of an arrest of the person or seizure
of property in malicious prosecution actions is necessary.” Id. Further, while the Supreme
Court later eliminated the arrest or seizure requirement from the claim of malicious
criminal prosecution, the Court specifically declined to overrule Crawford, and retained
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the seizure element in malicious civil prosecution cases. Robb v. Chagrin Lagoons Yacht
Club, Inc., 75 Ohio St.3d 264, 1996-Ohio-189, 662 N.E.2d 9 (“we therefore retain in
malicious civil prosecution cases the long-held and well-reasoned requirement of seizure
of property.”)
{¶25} We decline to abandon or reject the English Rule, as such a decision would
contradict the rule set forth in Crawford and Robb. According to the doctrine of stare
decisis, “courts [should] follow controlling precedent, thus creating stability and
predictability in our legal system.” Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-
Ohio-5849, 797 N.E.2d 1256. The Ohio Supreme Court has decided the issue. Thus,
this Court, like the trial court, is bound by the doctrine of stare decisis to apply the rule as
set forth in Crawford and Robb.
{¶26} Appellants’ second assignment of error is overruled.
{¶27} Based on the foregoing, appellants’ first assignment of error is sustained.
Appellants’ second assignment of error is overruled.
Stark County, Case No. 2021 CA 00122 10
{¶28} The April 22, 2021 judgment entry of the Stark County Court of Common
Pleas is affirmed in part and reversed and remanded in part, for proceedings consistent
with this opinion.
By Gwin, J.,
Wise, Earle, P.J., and
Delaney, J., concur