Kurinsky v. Natl. Cable Television Assn. , 98 Ohio App. 3d 716 ( 1994 )

I respectfully dissent from the majority opinion since appellees were clearly entitled to summary judgment as a matter of law. In addition, although a genuine issue of fact existed,viz., whether or not the actions of appellees were directed toward the accomplishment of an ulterior purpose, the issue was not a genuine issue of material fact but was, rather, irrelevant to resolution of the case sub judice.

In Yaklevich v. Kemp, Schaeffer Rowe Co., L.P.A. (1994),68 Ohio St.3d 294, 297-298, 626 N.E.2d 115, 117-118, the Supreme Court defined the tort of "abuse of process" stating in relevant part as follows:

"* * * The tort action termed `abuse of process' has developed for `cases in which legal procedure has been set in motion in proper form, with probable cause, and even with ultimate success, but nevertheless has been perverted to accomplish an ulterior purpose for which it was not designed.' * * *

"* * * We hold that the three elements of the tort of abuse of process are: (1) that a legal proceeding has been set in motion in proper form and with probable cause; (2) that theproceeding 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." (Emphasis added and footnotes omitted.)

In Clermont Environmental Reclamation Co. v. Hancock (1984),16 Ohio App.3d 9, 11, 16 OBR 9, 11-12, 474 N.E.2d 357, 361-362, the court elaborated on the first two elements of the tort of abuse of process which must be demonstrated in order to establish a prima facie case of abuse of process. In its discourse, the Clermont court made it quite clear that a defendant must use process before that defendant can abuse process as evidenced by the following statements:

"* * * The tort of abuse of process arises when one maliciously misuses legal process to accomplish some purpose not warranted by law. * * * Abuse of process does not lie for the wrongful bringing of an action, but for the improper use, or `abuse,' of process. * * *

"To make a case of abuse of process a claimant must show thatone used process with an `ulterior motive,' * * *. There must also be shown a further act in the use of process not proper in the regular conduct of the proceeding. * * * In a claim for abuse of process:

"`"* * * The tortious character of the defendant's conductconsists of his attempts to employ a legitimate process for alegitimate purpose in an improper manner, and this point must be clearly shown by the plaintiff to entitle him [to] maintain his action."'" (Emphasis added and citations omitted.) See Walker v.Cadillac Motor Car Div. (1989), 63 Ohio App.3d 220,578 N.E.2d 524; Avco Delta Corp. v. Walker (1969), 22 Ohio App.2d 61, 51 O.O.2d 122, 258 N.E.2d 254.

Clermont, supra, is neither inconsistent with nor inapposite to Yaklevich, supra, particularly in light of the fact thatYaklevich, supra, was premised in part upon Clermont, supra. In addition, the Clermont court articulated with great specificity the underlying concept which was only implicitly expressed by the Yaklevich court with respect to the precise actions which do, in fact, constitute the tort of abuse of process. In accordance with Yaklevich, supra, and Clermont, supra, it must be demonstrated that the precise actions of the defendant constituted the use of process which use of process perverted the legal proceeding in an attempt to accomplish the defendant's ulterior purpose. Simply stated, one cannot abuse process if one does not actually use process.

In the case sub judice, Kurinsky failed to establish aprima facie case of abuse of process for the simple reason that Kurinsky failed to demonstrate appellees actually used process. Restated, in accordance with the foregoing language of Clermont, supra, and in harmony with Yaklevich, supra, since appellees did not use process against appellant, appellees cannot be found to have abused process with respect to appellant. SeeCadillac, supra; Avco, supra.

The term "process" is defined in Black's Law Dictionary (5 Ed.1983) 630, in relevant part as follows:

"Any means used by [a] court to acquire or exercise its jurisdiction over a person or over specific property. Meanswhereby [a] court compels appearance of defendant before it or acompliance with its demands." (Emphasis added.)

Ohio Civ.R. 4 through 4.6 and R.C. Chapter 2703 provide for the institution, i.e., use of process. Civ.R. 4 states in relevant part as follows:

"(A) Summons: issuance. Upon the filing of the complaint the clerk shall forthwith issue a summons for service [of process] upon each defendant listed in the caption." (Emphasis added.)

In the case sub judice, it was undisputed that the FBI secured a warrant to search Arcade Sound from a federal magistrate and did, in fact, execute that search warrant against Arcade Sound. Upon execution of the search warrant, the FBI confiscated inventory, business equipment and business records belonging to Kurinsky. However, it was also undisputed that neither NCTA nor Allen was an employee or agent of the FBI. In addition, neither NCTA nor Allen initiated the FBI's investigation of Kurinsky or, by themselves, commenced any legal proceeding, i.e., used process against Kurinsky. Restated, appellees filed no complaint or otherwise requested the federal magistrate to compel Kurinsky's compliance as the use of process is defined in Civ.R. 4(A), supra, and Black's, supra.

Specifically, the record before this appellate court demonstrated clearly that in February 1988, FBI Special Agent Joseph L. Ramsak of the Cleveland, Ohio office of the FBI wasassigned to investigate the business activities of Kurinsky, d.b.a. Arcade Sound. The FBI, relying upon an informant's tipwhich emanated from a plea bargain, sought to determine whether probable cause existed to indict Kurinsky on charges of manufacturing, repairing or supplying unauthorized cable television decoder devices ("descramblers") in violation of Sections 553 and 605, Title 47, U.S.Code.

During his investigation, Ramsak, desiring to learn more about cable "piracy," contacted NCTA in Washington, D.C., which is the principal trade association for cable television system operators, cable programmers and equipment manufacturers. Thereafter, Allen, who was Executive Director of NCTA's Office of Cable Signal Theft, assisted Ramsak to understand the nature of cable piracy and the use of descramblers to implement cable piracy. Following completion of his entire investigation, Ramsak prepared a sworn affidavit regarding his investigation of Kurinsky which Ramsak submitted to his superior, Assistant United States Attorney Dan Polster ("Polster").

Ramsak's affidavit, which was seventeen pages in length, contained a detailed analysis of his findings and recommended the FBI obtain a warrant to search Arcade Sound. In his affidavit, Ramsak stated in relevant part as follows:

"10. On March 14, 1988, and/or March 27, 1989, James S. Allen, Director, Office of Cable Signal Theft, National Cable Television Association, Washington, D.C., advised there is noother purpose for a descrambler but to decode encrypted Cable Television signals to enable the user to watch `premium' cable television channels such as Home Box Office, Showtime, and etc. without paying the additional monthly fee for these channels." (Emphasis in original.)

In addition, Ramsak distinguished in his affidavit between the use of authorized versus unauthorized descramblers as follows:

"Additionally, ALLEN advised the descrambler industry uses certain controlling practices to limit access to and restrict unauthorized use of the descramblers. He noted the following practices: * * *

"B. Manufacturers in the United States will usually have only one or two:

"I. Authorized descrambler repair facilities.

"II. Authorized descrambler distributors or brokers.

"C. The cable television companies buy the descramblers directly from the manufacturers." (Emphasis in original.)

Based upon the foregoing facts contained in the within record, it is clear that the only role NCTA and Allen played in the process used in the case sub judice was that of expert witnesses at the express request of the FBI. Clearly, appellees did no more than provide, as expert witnesses, general information about cable piracy to the FBI which information contained no specific references to Kurinsky or Arcade Sound. At this point, the FBI clearly was free to use or not use this information or to seek other advice. Thus, while the FBI perhapsused process in the case sub judice, neither NCTA nor Allen used process as the use of process is defined in Civ.R. 4(A),supra, and in Black's, supra.

The majority opinion itself concurs with the fact that only the FBI instituted the investigation and secured the warrant to search Arcade Sound without prompting by appellees and withoutreliance upon the testimony of appellees. In fact, the majority opinion concludes the FBI possessed probable cause to search Arcade Sound absent the inclusion of appellees' testimony in itsaffidavit and states in relevant part as follows:

"A close reading of the affidavit submitted by Special Agent Ramsak to the federal magistrate shows that absent the allegedlyuntrue statements made to Ramsak by Allen, the federal magistrate would have found probablecause to have issued the search warrant on the appellant's placeof business. Ramsak detailed for the magistrate how the course of his investigation had uncovered distributors with whom the appellant conducted business, and the fact that these distributors were in violation of the federal law." (Emphasis added.)

In addition, the factual scenarios of Yaklevich, supra, upon which the majority relies, as well as Clermont, supra, Cadillac,supra, and Avco, supra, clearly involved actions for abuse of process brought by plaintiffs who, prior to instituting the action for abuse of process, had themselves been the subject of legal proceedings commenced by the defendants in the respective abuse of process actions. Restated, there is nothing in Ohio case law demonstrating that a plaintiff has ever successfully maintained an action for abuse of process against a defendant who did not, in fact, use process as defined in Civ.R. 4(A),supra, and in Black's, supra, against that plaintiff. Clearly, in order to establish a prima facie case of abuse of process against a defendant, a plaintiff must demonstrate that the defendant in some form or fashion, at the very minimum, induced another party into using process against the plaintiff.

The majority opinion, however, incredulously believes that appellees, by merely providing expert witness testimony to the FBI, used process. Merely providing information in the capacity of an expert witness, however, does not constitute the use of process. To so hold not only contradicts reason but also undermines the traditional role that expert witnesses play in tort litigation. By its opinion in the case sub judice, the majority would irresponsibly grant a cause of action for abuse of process to every unsuccessful, disgruntled litigant who seeks to sue the opposing party's expert witnesses armed with only contradictory expert authority and a claim that the expert witnesses provided false testimony.

Therefore, since Kurinsky failed to establish that appellees actually used process, he failed to demonstrate the first element necessary to the establishment of a prima facie case of abuse of process, viz., that appellees set in motion a legal proceeding in proper form and with probable cause. Yaklevich,supra; Cadillac, supra; Clermont, supra; Avco, supra. Appellees, therefore, were entitled to summary judgment as a matter of law.

The majority opinion, nevertheless, concludes that a genuine issue of material fact remained to be litigated, viz., whether or not appellees did the following:

"[A]ttempted to pervert the legal process with the ulterior motive of disrupting and ruining the successful business of a competitor." (Emphasis added.)

The majority concludes the foregoing issue implicates the second element which must be demonstrated in order to establish a prima facie case of abuse of process. It is noted Kurinsky maintained throughout the proceedings that NCTA was a competitor of Arcade Sound and that appellees' testimony to the FBI constituted an act intentionally designed to unlawfully stifle competition between NCTA and Arcade Sound.

In Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, the Ohio Supreme Court held that a summary judgment motion forces the nonmoving party to produce timely filed evidence in support of issues for which that party bears the burden of production at trial. Furthermore, in Shaw v. J.Pollock Co. (1992), 82 Ohio App.3d 656, 612 N.E.2d 1295, the court stated the nonmovant must present specific facts and may not rely upon mere unsupported allegations.

In the case sub judice, Kurinsky failed to comply withWing, supra, and with Shaw, supra, since he provided neither evidence nor specific facts demonstrating that NCTA was a competitor of Arcade Sound. On the contrary, NCTA was a national trade organization the goals of which appear to have included the promotion of fair competition and the prevention of cable piracy. Kurinsky's allegation that NCTA, as a competitor of Arcade Sound, engaged in unfair competition with Arcade Sound was, therefore, a wild, conclusory statement. Since Kurinsky's allegation was unsupported by evidence, Kurinsky could not withstand a summary judgment motion.

In addition, even if Allen's testimony on behalf of NCTA to the FBI, in fact, constituted unfair competition, such unfair competition was irrelevant to determination of the case subjudice since Kurinsky failed to demonstrate appellees actuallyused process against Kurinsky. The majority finds the issue of whether or not appellees attempted to pervert the legal process with the ulterior motive of disrupting and ruining the successful business of a competitor to be a genuine issue of material fact. However, Yaklevich, supra, does not require a demonstration that appellees attempted to pervert the proceeding. On the contrary, Yaklevich, supra, requires a demonstration that the proceeding was, in fact, perverted by appellees in an attempt to accomplish an ulterior purpose. The foregoing issue, thus, is irrelevant to a determination of the case sub judice.

More importantly, Clermont, supra, clearly requires, in order to satisfy the second element of the tort of abuse of process, a demonstration that appellees engaged in a further act in the use of process thus perverting the legal proceeding. In the casesub judice, Kurinsky claims on appeal that after the FBI obtained and executed the search warrant against Arcade Sound, appellees testified before the United States Prosecutor and, thereby, engaged in a further act in the use of process which constituted an abuse of process. Clermont, supra. It was undisputed that three months after the FBI executed the search warrant on Arcade Sound, i.e., on July 7, 1989, Allen travelled to Cleveland, Ohio, where he met with Assistant United States Attorney Polster in person. Allen and Polster, however, discussed only the cable industry in general, cable piracy and its consequences and the cable industry's efforts to combat piracy.

Such general testimony can hardly be called a use of process let alone a further act in the use of process even if it were demonstrated that the legal proceeding was perverted by such testimony. Civ.R. 4(A), supra; Black's, supra. It is simply insufficient to merely demonstrate or allege that the legal proceeding was perverted since Yaklevich, supra, and Clermont,supra, clearly require a demonstration that the legal proceedingwas in fact perverted by the defendant's use of process.

Kurinsky also makes reference to the fact that Allen and NCTA received and utilized his three computer diskettes after the United States determined not to prosecute Kurinsky. Kurinsky thereby insinuates Allen and NCTA engaged in a further act in the use of process which constituted an abuse of process.Clermont, supra. The record in the case sub judice, however, clearly demonstrates that the FBI voluntarily provided Allen and NCTA with Kurinsky's three computer diskettes.

Such acquisition by Allen and NCTA hardly constituted ause of process let alone a further act in the use of process even if such acquisition perverted the legal proceeding. Once again, Kurinsky failed to demonstrate that the legal proceeding was perverted by appellees' use of process. Clermont, supra;Yaklevich, supra; Civ.R. 4(A), supra; Black's, supra.

Thus, by failing to establish that appellees engaged in afurther act in the use of process, which use of process perverted the legal proceeding, Kurinsky also failed to demonstrate the second element necessary to the establishment of a prima facie case of abuse of process. Yaklevich, supra;Clermont, supra. It therefore follows that since appellant failed to demonstrate appellees used process against Kurinsky, the issue of whether or not appellees provided their testimony to the FBI only to disrupt and ruin the successful business of a competitor, Arcade Sound, and, in so doing, attempted to pervert the legal proceeding, was an irrelevant issue. Restated, although the issue upon which the majority remands the casesub judice was a genuine issue of fact, it was not a genuine issue of material fact. Appellees, therefore, were entitled to summary judgment as a matter of law.

In summary, since Kurinsky failed to present evidence in support of the first two elements which must be met in order to establish a prima facie case of abuse of process, pursuant toYaklevich, supra, Cadillac, supra, Clermont, supra, and Avco,supra, the trial court did not err when it granted appellees' summary judgment motion which argued Kurinsky failed to make aprima facie case of abuse of process. Even the outer limits of presumption are not sufficiently resilient to support a claim of abuse of process against NCTA and Allen when there was no evidence appellees actually used process.

The majority in the case sub judice, however, authorizes the prosecution of a civil suit against a party who is engaged merely as an expert witness, i.e., against a party who is consulted for an expert opinion and/or perhaps to testify at trial. Should such authorization be allowed to continue under the guise of abuse of process, e.g., in medical malpractice cases, I submit the use of expert witnesses will not only be diminished but also may ultimately become nonexistent. In all practicality, to permit an expert witness to be sued for merely providing an expert opinion would be ludicrous if it were not so absurd.

Based upon the foregoing analysis, I would affirm the trial court's grant of summary judgment to Allen and to NCTA in the case sub judice and, therefore, I respectfully dissent from the majority opinion.