COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71310 MICHELLE RYB, et al : : Plaintiffs-appellants : : JOURNAL ENTRY vs. : and : OPINION CONTEMPORARY OFFICE PRODUCTS, INC. : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : JULY 24, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 276,997 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiffs-appellants: SHELDON P. STARKE Attorney at Law 23200 Chagrin Boulevard Suite 2-200 Beachwood, Ohio 44122 For defendant-appellee: HARRY J. JACOB, III JOSEPH A. PFUNDSTEIN Attorneys at Law 33595 Bainbridge Road, #201 Solon, Ohio 44139 - 2 - HOLMES, J.: This is an appeal from the judgment of the Cuyahoga County Court of Common Pleas, which granted summary judgment against plaintiffs-appellants Michelle Ryb, Greg Ryb and Buy Rite Office Products and for defendant-appellee Contemporary Office Products, Inc. The facts giving rise to this appeal are as follows. On August 15, 1991, Contemporary Office Products ("Contemporary") purchased the assets of Complete Office Supply, Inc. ("Complete") through a third-party sale through Star Bank. Prior to that date, appellant Michelle Ryb was an employee of Complete Office Supply, a family-owned business. About August 15, Michelle Ryb terminated her employment with Complete and began employment with Buy Rite Office Products ("Buy Rite"), which was owned by her husband, appellant Greg Ryb. Michelle Ryb began calling upon the former customers of Complete for her new employer, Buy Rite. Contempo- rary believed that it had purchased the customer list of Complete and that the list was proprietary information. Consequently, Con- temporary believed that such competition and use of the customer list by Michelle Ryb, Greg Ryb and Buy Rite was prohibited. Sub- sequently, in October 1991, Contemporary brought an action against appellants, Case No. 219600, alleging conversion of trade secrets - 3 - and theft of proprietary information, specifically Complete's cus- tomer list. At the close of discovery, appellants, who were the defendants in that case, moved for summary judgment. Their motion was denied by the court. Before trial, Contemporary voluntarily dismissed Case No. 219600 without prejudice pursuant to Civ.R. 41(A). Appellants Michelle Ryb, Greg Ryb and Buy Rite filed this action on September 19, 1994, bringing claims against multiple defendants, including two claims against Contemporary wherein they alleged abuse of process by Contemporary and a derivative claim for loss of consortium. On February 28, 1995, Contemporary filed its motion to dismiss the complaint pursuant to Civ.R. 12(B)(6). Contemporary's motion to dismiss was granted by the trial court. Appellants appealed the dismissal by the trial court, and this court reversed the decision of the trial court in the case styled Michelle Ryb, et al v. Contemporary Office Products, Inc. (Nov. 22, 1995), Cuyahoga App. No. 69162, unreported. On remand of this case, discovery was completed and Contemporary moved for summary judgment on appellant's claim against it for abuse of process. After briefing by the parties, the trial court granted summary judgment in favor of Contemporary and against appellants. Appel- lants timely appeal and raise the following two assignments of error. - 4 - ASSIGNMENT OF ERROR NO. I THE TRIAL COURT ABUSED ITS DISCRETION IN SUS- TAINING DEFENDANT'S MOTION FOR SUMMARY JUDG- MENT. ASSIGNMENT OF ERROR NO. II THE TRIAL COURT ABUSED ITS DISCRETION IN NOT RECUSING THE DEFENDANT'S ATTORNEYS, WHERE THEY REPRESENTED THE THEN PLAINTIFF (NOW DEFENDANT) AND THE ATTORNEYS WERE WITNESSES TO AND ADVERSARIES IN THE VERY LITIGATION THAT SPAWNED THIS ABUSE OF PROCESS CASE. Appellants' first assignment of error challenges the trial court's grant of appellee's motion for summary judgment. This court reviews the lower court's grant of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711 ("We review the judgment independently and without deference to the trial court's determination."). An appellate court applies the same test as a trial court, which test is set forth in Civ.R. 56(C). Civ.R. 56(C) specifically provides that before summary judgment may be granted, it must be determined that: *** (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, at 327. Moreover, it is well settled that a party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), - 5 - 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115; Dresher v. Burt (1996), 75 Ohio St.3d 280. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, at 358-359. In accordance with Civ.R. 56(E), "a nonmovant may not rest on the mere allegations or denials of his pleading but must set forth specific facts showing that there is a genuine issue for trial." Chaney v. Clark Cty. Agricultural Soc., Inc. (1993), 90 Ohio App.3d 421. A nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 111; Dresher v. Burt, supra; Celotex, supra, at 322. An appellate court reviewing a grant of summary judgment must follow the standards set forth in Civ.R. 56(C). "The reviewing court evaluates the record *** in a light most favorable to the nonmoving party. *** [T]he motion must be overruled if reasonable minds could find for the party opposing the motion. [Citations omitted]." Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588. With these standards in mind, we address appellants' claimed error. 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 for 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 - 6 - been perverted in an attempt to accomplish an ulterior purpose for which it was not de- signed; and (3) that direct damage has re- sulted from wrongful use of process. Appellants admit that the previous lawsuit was set in motion by the appellee in the proper forum and with probable cause. Fur- ther, appellants indicate that direct damage was suffered by them as a result of appellee's alleged abuse of process. However, a careful review of the pleadings, briefs, affidavits and exhibits in this case leads us to conclude that there is no evidence presented by the appellants to defeat appellee's motion for summary judgment on the second required element of the tort of abuse of process -- that the proceeding was perverted in an attempt to accomplish an ulterior purpose for which it was not designed. Consequently, the lower court's grant of the appellee's motion for summary judgment was proper and should be upheld. A "derivative cause of action for loss of consortium cannot provide greater relief than the relief permitted for the primary cause of action. Messmore v. Monarch Machine Tool Co. (1983), 11 Ohio App. 3d 67, 11 OBR 117, 463 N.E. 2d 108." Lynn v. Allied Corp (1987) 41 Ohio App.3d 392, 402. Consequently, appellants' claim for loss of consortium, being a derivative claim of the abuse of process claim, must also fail. Appellants, in their second assigned error, contend that the trial court abused its discretion in failing to remove appellee's attorneys because they had represented the appellee when it was the plaintiff in the first case and these attorneys were witnesses to - 7 - and adversaries in the litigation which spurred this abuse of process case. The overruling of a motion to disqualify counsel is not an order made in a special proceeding and is, therefore, not a final appealable order. Bernbaum v. Silverstein (1980), 62 Ohio St.2d 445 at the syllabus. However, because appellants advance this assignment of error with their first assigned error, which is both final and appealable, we address the merits of their argument. DR 5-102 (B) states as follows: If, after undertaking employment in contem- plated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client. Appellants rely on the holding of General Mill Supply Co. v. SCA Services, Inc, (1982), 697 F.2d 704, which stated that "an abuse of process suit involves always a prior action of some kind, and counsel in the prior action will always have more knowledge about it than anyone else and be the one most aggrieved by the supposed abuse, therefore the most indispensable witness in the new action. This is precisely, and in its most acute form, the situation to guard against which the canon was written." However, pursuant to the exception contained in DR 5-102(B), where legal counsel learns or it is obvious that he will be called as a witness by the opposition, he may continue the representation until it is apparent that his testimony is or may be prejudicial to - 8 - his client. DR 5-102(B); see also, Mentor Lagoons Inc v. Teague (1991), 71 Ohio App.3d 719. "As the court held in Spivey v. Bender (1991) 77 Ohio App.3d 17, disqualification should ordinarily be granted only when a violation of the canons of the code of professional responsibility poses a significant risk of trial taint." Jackson v. Bellomy (1995), 105 Ohio App.3d 341, 349; In re Laverne Frazier, et al. v. Lloyd Newman (Feb. 4, 1994) Cuyahoga App. No. 63567, unreported. Here, there has been no testimony given by the attorneys nor was there any prior notice given that they would be called by the opposition. Any such testimony must be shown to be prejudicial to the client. No specificity as to any such prejudicial testimony is shown in the record; therefore, we conclude that the evidence before the trial court does not show or support a finding that the continued legal representation of the appellee by counsel would be prejudicial. Accordingly, appellants' second assignment of error is not well taken. Judgment of the trial court is affirmed. - 9 - It is ordered that appellee recover of appellants its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas 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. ANN DYKE, P.J and TERRENCE O'DONNELL, J. CONCUR JUDGE *ROBERT E. HOLMES *SITTING BY ASSIGNMENT: Robert E. Holmes, retired justice of the Ohio Supreme Court, sitting by assignment. N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .