COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69162 MICHELLE RYB, ET AL. : : ACCELERATED DOCKET : PLAINTIFFS-APPELLANTS : JOURNAL ENTRY : v. : AND : CONTEMPORARY OFFICE : OPINION PRODUCTS, INC. : : PER CURIAM DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 22, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-276997. JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: Sheldon P. Starke, Esq. 23200 Chagrin Blvd. 2-200 Beachwood, OH 44122-5525 For Defendant-Appellee: Joseph A. Pfundstein, Esq. Harry J. Jacob, Esq. 33790 Bainbridge Road, Suite 205 Cleveland, OH 44139 -2- PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.App.R. 25, the record from the Cuyahoga County Court of Common Pleas and the briefs of counsel. Michelle Ryb, et al., plaintiffs-appellants, appeal from the judgment of the Cuyahoga County Court of Common Pleas, Case No. CV- 276997, which dismissed their complaint for abuse of process, misrepresentation, negligent misrepresentation and loss of consortium for failure to state a claim upon which relief could be granted pursuant to Civ.R. 12(B)(6). Plaintiffs-appellants assign two errors for this court's review. Plaintiffs-appellants' appeal is affirmed in part, reversed in part and remanded. I. THE FACTS This action arose out of the August 15, 1991 sale of Complete Office Supply, Inc. to Contemporary Office Products, defendant- appellee. Prior to the sale, Michelle Ryb, plaintiff-appellant, had been an employee of Complete Office Supply, a family owned business operated by Michelle Ryb's parents. Immediately after the sale, Michelle Ryb terminated her employment with Complete Office Supply and went to work for Buy Rite Office Products, Inc. which was owned and operated by Michelle Ryb's husband, Greg Ryb, plaintiff-appellant. At this point, Michelle and Greg Ryb allegedly began contacting customers of Complete Office Supply in an effort to solicit business away from Complete Office Supply to Buy Rite Office Products. -3- In October, 1991, Contemporary Office Products, defendant- appellee, brought an action against plaintiffs-appellants alleging conversion of trade secrets and theft of proprietary information, specifically Complete Office Supply's customer list. Defendant- appellee voluntarily dismissed this action pursuant to Civ.R. 41(A) prior to the commencement of trial. On September 19, 1994, Michelle Ryb, Greg Ryb and Buy Rite Office Products, Inc., plaintiffs-appellants, brought suit against Contemporary Office Product, Inc., defendant-appellee, Lloyd Fingerhut, Star Bank Corporation and a number of John Doe defendants alleging abuse of process, misrepresentation, negligent misrepresentation and loss of consortium arising out of defendant- appellee's previously filed action. On September 28, 1994, prior to the expiration of the time for the filing of an answer, plaintiffs-appellants filed their first amended and supplemental complaint in which plaintiffs-appellants amended only their monetary prayer for relief. Defendant-appellee filed a timely answer to the amended complaint in which defendant- appellee asserted the affirmative defense of failure to state a claim upon which relief can be granted. The trial court held a case management conference on December 15, 1994 at which time plaintiffs-appellants were given until January 10, 1995 to file a proposed second amended complaint. No second amended complaint was filed by January 10, 1995. On January 17, 1995, plaintiffs-appellants filed a motion for leave to file a second amended and supplemental complaint and to -4- add new parties. Plaintiffs-appellants withdrew this motion on March 10, 1995. On February 28, 1995, Contemporary Office Products, Inc., defendant-appellee, filed its motion to dismiss plaintiffs-appellants' complaint for failure to state a claim upon which relief can be granted. On March 10, 1995, plaintiffs-appellants filed yet another motion for leave to file an amended and supplemental complaint and to add new parties Donald and Eileen Zimmerman as well as Nancy Fingerhut as new party defendants. On March 23, 1995, plaintiffs- appellants filed a response to defendant-appellee's motion to dismiss pursuant to Civ.R. 12(B)(6). The trial court denied plaintiffs-appellants' motion for leave to file an amended and supplemental complaint on May 2, 1995. On May 25, 1995, the trial court granted Contemporary Office Products, Inc.'s, defendant-appellee's, motion to dismiss plaintiffs-appellants' complaint for failure to state a claim upon which relief can be granted. On June 19, 1995, plaintiffs-appellants filed a timely notice of appeal from the judgment of the trial court. II. FIRST ASSIGNMENT OF ERROR Michelle Ryb, et al., plaintiffs-appellants', first assignment of error states: THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING PLAINTIFFS-APPELLANTS' MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT. Plaintiffs-appellants argue, through their first assignment of error, that the trial court abused its discretion by denying -5- plaintiffs-appellants' motion for leave to file an amended and supplemental complaint. Specifically, plaintiffs-appellants maintain that the motion for leave to amend was filed in a timely manner and in good faith so there was no apparent or disclosed reason for the trial court to deny the motion. Plaintiffs-appellants' first assignments of error is not well taken. Civ.R. 15(A), which governs amended and supplemental pleadings, provides in part: (A) Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within twenty-eight days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party. Leave of court shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within fourteen days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders. The decision as to whether to allow amendments by leave of court is left to the sound discretion of the trial court. Wilmington Steel Products, Inc. v. Cleveland Electric Illuminating Co. (1991), 60 Ohio St.3d 120, 122; Bloomer v. Van- Kow Enterprises, etc., et al. (May 5, 1994), Cuyahoga App. No. 64970, unreported. The trial court's denial of a motion for leave to amend a complaint will not be disturbed on appeal unless -6- it is clear that the decision was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. As stated by the Ohio Supreme Court in Blakemore: The term "abuse of discretion" was defined by this court in State v. Adams (1980), 62 Ohio St.2d 151, 157 [16 O.O.3d 169]: "The term 'abuse of discretion' connotes more than an error or law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Steiner v. Custer (1940), 137 Ohio St. 448 [19 O.O. 148]; Connor v. Connor (1959), 170 Ohio St. 85 [9 O.O.2d 480]; Chester Township v. Geauga Co. Budget Comm. (1976), 48 Ohio St.2d 372 [2 O.O.2d 248]." Id. at 219. In order to receive leave of court to amend a complaint, a plaintiff must make a prima facie showing that evidence can be produced in support of the new matters sought to be pleaded, that the amendment is not being sought for purposes of delay, and that the amendment would not result in prejudice to the defendant. Solowitch v. Bennett (1982), 8 Ohio App.3d 115, 117. In the case sub judice, a review of the record demonstrates that plaintiffs-appellants attempted to amend their original complaint four times. Plaintiffs-appellants' first amended complaint was properly filed pursuant to Civ.R. 15(A) since no responsive pleading had yet been filed and, therefore, leave of court was not required. The trial court then granted plaintiffs- appellants leave to amend their complaint again until January 10, 1995. No amended complaint was filed by January 10, 1995. Plaintiffs-appellants then filed two additional motions for leave -7- to file an amended complaint, the last of which was denied by the trial court. A review of the original complaint, the first amended complaint and plaintiffs-appellees' proposed amended complaint demonstrates that the material allegations contained in the original complaint did not significantly differ from those set forth in the subsequent pleadings, especially in regard to those claims raised against defendant-appellee. Given the fact that plaintiffs-appellants amended their original complaint once by rule and were allowed the opportunity by the trial court to amend their complaint a second time, this court cannot now say that the trial court abused its discretion in denying plaintiffs-appellants' additional requests for leave to amend the complaint where the proposed amended complaints failed to set forth new matters sought to be pleaded or a showing that the amendment was not merely a delaying tactic or one which would cause prejudice to defendant-appellee. Edmondson v. Steelman (1992), 87 Ohio App.3d 455, 458. Accordingly, plaintiffs-appellants' first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Michelle Ryb, et al.'s, plaintiffs-appellants', second assignment of error states: THE TRIAL COURT ERRED IN GRANTING DEFENDANT- APPELLEE'S CIVIL RULE 12(B)(6) MOTION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT WHEN THE PLAINTIFFS' AMENDED COMPLAINT PROPERLY PLEADED THE ELEMENTS OF ABUSE OF PROCESS. -8- Plaintiffs-appellants argue, through their second assignment of error, that the trial court erred in dismissing Contemporary Office Products, Inc., defendant-appellee, as a party from the underlying lawsuit. Specifically, plaintiffs-appellants maintain that their amended complaint set forth in sufficient detail the elements of the offense of abuse of process. Plaintiffs-appellants' second assignment of error is well taken. In Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A. (1994), 68 Ohio St.3d 294, at paragraph one of the syllabus, the Ohio Supreme court set forth the necessary elements of the tort of abuse of process: 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 the proceeding has been perverted in an attempt to accomplish an ulterior purpose for which it was not designed; and (3) that direct damage has resulted from wrongful use of process. A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint. State, ex rel. Hanson v. Guernsey Ct. Bd. of Commrs. (1992), 65 Ohio St.3d 545. It is well settled that "when a party filed a motion to dismiss for failure to state a claim, all the factual allegations of the complaint must be taken as true and all reasonable inferences must be drawn in favor of the nonmoving party." Byrd v. Faber (1991), 57 Ohio St.3d 56, 60, citing Mitchell v Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192; -9- Thompson v. Central Ohio Cellular, Inc. (Feb. 17, 1994), Cuyahoga App. No. 64545, unreported. The issue for this court's determination is whether plaintiffs-appellants' amended complaint included a statement of claim against Contemporary Office Products, Inc., defendant- appellee, pursuant to Civ.R. 8(A). This court held in Kelly v. City of East Cleveland (Oct. 28, 1982), Cuyahoga App. No. 44448, unreported, that: All the civil rules require is a short plain statement of the claim that will give the defendant fair notice of the plaintiff's claim and the grounds upon which it is based. In order for a court to properly grant a motion to dismiss for failure to state a claim, it must appear "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." O'Brien v. University Community Tenants Union (1975), 42 Ohio St.2d 242, 245. Moreover, a trial court should not dismiss that complaint based on doubt that plaintiff will win on the merits. Slife v. Kundtz Properties (1974), 40 Ohio App.2d 179, paragraph four of the syllabus. In the case sub judice, a review of plaintiffs-appellants' original and amended complaints demonstrates that plaintiffs- appellants sufficiently set forth the elements of the tort of abuse of process. Plaintiffs-appellants allege that a previous lawsuit was set in motion against them by defendant-appellee in proper form and, initially, with probable cause. Plaintiffs- appellants allege further that the lawsuit was somehow perverted -10- in an attempt to establish an unspecified ulterior purpose. Lastly, plaintiffs-appellants allege that direct damage was suffered as a result of the alleged wrongful use of process. While it is true that plaintiffs-appellants did not set forth specific factual details underlying their claim, plaintiffs- appellants' pleading does not fail to set forth a claim upon which relief can be granted pursuant to Civ.R. 12(B)(6) given the fact that the elements of the tort of abuse of process were tied to actions of defendant-appellee. Clermont Environmental Reclamation Co. v. Hancock (1984), 16 Ohio App.3d 9, 12. This sufficient allegation does not demonstrate the validity of plaintiffs-appellants' claim or relate to the probability of recovery. The allegations merely indicate that plaintiffs- appellants stated a claim against defendant-appellee with specificity pursuant to Civ.R. 8(A). Defendant-appellee maintains that, since plaintiffs-appellants alleged an intentional tort, abuse of process, plaintiffs- appellants must plead the allegations of their complaint with particularity. Defendant-appellee relies on Byrd v. Faber (1991), 57 Ohio St.3d 56, 60; and Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190 in support of its position. A review of these cases fails to support defendant-appellee's assertion. In Byrd, supra, the Ohio Supreme Court found that a heightened standard of pleading is required when a plaintiff alleges fraud, an intentional tort claim against an employer or a negligent hiring claim brought against a religious institution. Byrd, -11- supra, did not hold that this heightened standard of review applies across the board to all intentional tort causes of action. Similarly, in Mitchell, supra, the Ohio Supreme Court applied the heightened standard of pleading only to a claim of an intentional tort by an employer. Accordingly, since plaintiffs-appellants did not allege fraud, intentional tort against an employer or negligent hiring by a religious institution, the heightened standard of pleading set forth in Byrd, supra, at Mitchell, supra, is inapplicable. Plaintiffs-appellants' second assignment of error is well taken. Judgment of the trial court is affirmed in part, reversed in part and remanded for further proceedings consistent with this journal entry and opinion. -12- This cause is affirmed in part, reversed in part and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellants and said appellee equally share the costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SARA J. HARPER, PRESIDING JUDGE DAVID T. MATIA, JUDGE TERRENCE O'DONNELL, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .