COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73107 REGINA HOLMES BUTTS : : Plaintiff-Appellant : JOURNAL ENTRY : -vs- : AND : LJUBO BJELOVUK, ET AL. : OPINION : Defendants-Appellees : Date of Announcement of Decision: JULY 30, 1998 Character of Proceeding: Civil appeal from Court of Common Pleas Case No. 317194 Judgment: Reversed and remanded. Date of Journalization: Appearances: For Plaintiff-Appellant: VIOLET J. TARCAI, ESQ. 1598 Huntington Bldg. 925 Euclid Avenue Cleveland, Ohio 44115 For Defendants-Appellees: ABRAHAM KAY, ESQ. 1330 Illuminating Bldg. 55 Public Square Cleveland, Ohio 44113 -2- JAMES M. PORTER, P.J.: Plaintiff-appellant Regina Holmes Butts appeals from the trial court's summary judgment in favor of defendants-appellees Gordona (aka Gloria) Bjelovuk and her father, Ljubo Bjelovuk, on plaintiff's claim of malicious prosecution. Plaintiff essentially contends that genuine issues of material fact precluded disposition of the case on summary judgment. We find merit to this appeal and reverse and remand for further proceedings. This case arose out of the written Lease of an apartment at 9819 Denison Avenue in Cleveland from Ljubo Bjelovuk, lessor, to Mariah Kannel and her boyfriend, Christopher Horne, lessees, for a period of twelve months commencing August 15, 1994. Gordana, an attorney, acted for her father in this transaction. Since Mariah did not have enough money for the first month's payment, she borrowed $90 from her common law mother-in-law, plaintiff, Ms. Butts, to make the payment. The Lease was signed by Mariah in the presence of Gordana. Ms. Butt's purported signature appears on the Lease as a Co-signor. Mariah's affidavit states that Gordana told her to sign Ms. Butt's name as a formality. Gordana's affidavit denies any knowledge of how Butts' signature was placed on the Lease and states that Gordana spoke with someone over the telephone who said she was Butts and that she agreed to co-sign. This dispute in the testimony will later appear critical as a handwriting expert opines that it is not Ms. Butts' genuine signature on the Lease. -3- When Mariah failed to pay October's rent, on October 24, 1994, Gordana, as agent for her father, commenced a forcible entry and detainer action in the Cleveland Municipal Court with a claim for rent due against Mariah, Horne and Ms. Butts, all listed at the same address as the rental premises. Ms. Butts claimed she was never served, although her address on the Lease was listed as 3172 West 105th Street, Cleveland, Ohio 44111. On December 14, a default judgment was entered against the three for $900 in rent arrearage plus $300 for damage to the property. On March 6, 1995, Gordana obtained a garnishment order on Star Bank naming the three defendants, including Ms. Butts. The affidavit by Gordana specified Ms. Butt's account number at Star Bank. Gordana succeeded in attaching $322.82 which was the balance in Ms. Butt's account. Star Bank sent the Municipal Court a check for $272.82 after debiting Butt's account $50.00 for the garnishment. The $272.82 was remitted to Gordana by the Municipal Court. Ms. Butts claims she received no notice of the garnishment until the bank sent her a notice that there were insufficient funds in her account to cover a check that she wrote. It was at that time that she became aware for the first time that her checking account had been attached and garnished in the amount of $322.82. Butts allegedly spoke with Gordana four times to explain that her name was forged on the Lease and that she had no knowledge of being a co-signor. Gordana's alleged response was simply, I've got a judgment. Butts thereafter retained an attorney who advised her to have the signature on the Lease analyzed by a handwriting -4- expert. In spite of the handwriting expert's conclusion that Butts' signature on the Lease was not genuine, Gordana refused to return the funds. Thereafter, due to the inability to settle the matter, Ms. Butts' attorney filed a motion to vacate the default judgment based on the fact that Ms. Butts' was never served. The default judgment was vacated at a hearing on August 1, 1996 and Ms. Butts was then personally served the complaint by the bailiff. Approximately one month later, Gordana voluntarily dismissed the complaint without prejudice. Ms. Butts thereafter filed a complaint for malicious prosecution against defendants on October 18, 1996 seeking compensatory and punitive damages for the wrongful lawsuit, garnishment and subsequent proceedings. It was not until October 31, 1996 that Gordana finally attempted to return the funds. Her check was immediately returned to Gordana by Ms. Butts' attorneys and the malicious prosecution matter proceeded. The trial court thereafter granted Gordana's motion for summary judgment without opinion. Plaintiff's timely appeal ensued. Plaintiff's assignments of error will be discussed together because they are all related to whether summary judgment was properly granted. I. THE COURT ERRED IN RULING THAT THE PLAINTIFF FAILED TO STATE A CLAIM FOR CIVIL MALICIOUS PROSECUTION AGAINST THE DEFENDANTS. II. THE COURT ERRED IN GRANTING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT AS THERE ARE GENUINE ISSUES AS TO MATERIAL FACTS THAT SHOULD BE SUBMITTED TO A JURY AND THE -5- DEFENDANTS ARE NOT ENTITLED TO A JUDGMENT AS A MATTER OF LAW. III. THE COURT FAILED TO RECOGNIZE THE DEFENDANT'S GORDANA BJELOVUK'S, ALSO KNOWN AS GLORIA BJELOVUK'S VIOLATIONS OF THE CODE OF PROFESSIONAL RESPONSIBILITY AND THE OHIO RULES OF CIVIL PROCEDURE. Under Civ.R. 56, summary judgment is proper when: (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 nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. It is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. However, the nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, 111; Celotex, supra, at 322-323. In accordance with Civ.R. 56(E), "a nonmovant may not rest upon the mere allegations or denials of his pleadings, but must set forth specific facts showing there is a genuine issue for trial." Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. -6- In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Supreme Court of Ohio modified the summary judgment standard as was applied under Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108. Presently, under the new standard, "*** the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact or a material element of the nonmoving party's claim." Dresher at 296. This Court reviews the lower court's granting 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 reviewing the 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." Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50; Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741. The necessary elements in a malicious civil prosecution case are stated in Robb v. Chagrin Lagoons Yacht Club (1996), 75 Ohio App.3d 264, citing Crawford v. Euclid Natl. Bank (1985), 19 Ohio St.3d 135, as follows: In order to state a cause of action for malicious prosecution in Ohio four essential elements must be alleged by the plaintiff: (1) malicious institution of prior proceedings -7- against the plaintiff by defendant *** (2) lack of probable cause for the filing of the prior lawsuit *** (3) termination of the prior proceedings in plaintiff's favor, *** and (4) seizure of plaintiff's person or property during the course of the prior proceedings. Malice required for such an action is defined as the state of mind under which a person intentionally does a wrongful act without a reasonable lawful excuse and with the intent to inflict injury or under circumstances from which the law will infer an evil intent. Criss v. Springfield (1995), 56 Ohio St.3d 82, 85. Based on the affidavits of Ms. Butts and Mariah Kannel, it may be argued that the defendant Gordana instituted the eviction and rent claim case against Ms. Butts knowing full well that she was not a lessee and had not signed the Lease as a co-signor. The affidavit of Mariah states that defendant Gordana told her (Mariah) to sign Ms. Butt's name to the Lease. (Mariah Aff. at 2). If that testimony is believed rather than Gordana's version, there is a disputed issue of material fact as to whether Gordana instituted suit against Ms. Butts with malicious intent. At the same time, this factual dispute raises a question of lack of probable cause for the filing of the prior lawsuit against Ms. Butts. This Court addressed a similar situation in Ambrose v. Society National Bank (March 16, 1989), Cuyahoga App. No. 55137, unreported. In that case, the plaintiff's ex-wife had committed forgery by signing his name to a credit card application. A civil suit for collection proceedings was initiated in Cleveland Municipal Court with Society Bank obtaining a default judgment for the unpaid credit card balance. The plaintiff's wages were -8- garnished in the amount of the unpaid bill. The plaintiff thereafter filed a malicious prosecution claim against the bank alleging the bank instituted the legal action notwithstanding the fact it was given information regarding the forgery. This Court reversed the trial court's summary judgment in the bank's favor, holding: Examining the appellant's complaint and the record in the light most favorable to the appellant shows that the prior proceeding (civil action in Cleveland Municipal Court) was terminated in favor of the appellant and that his property, through garnishment was seized. (Cites omitted). In addition, the appellant in his complaint alleged that the appellee had been informed of the fraudulent conduct of the appellant's former wife in the execution of the VISA credit card application and his nonliability for any debt associated with the VISA credit card. These allegations, if true, raise the issue of whether the appellee had knowledge of the fraudulent conduct of the appellant's former wife prior to the institution of collection proceedings and garnishment which in turn raises the issue of malice and probable cause. Id. at 7. Furthermore, although we are aware that an attorney is immune from liability to third persons arising from his performance as an attorney in good faith on behalf of, and with the knowledge of his client, this does not hold true when the attorney is in privity with the client or acts maliciously. Scholler v. Scholler (1984), 10 Ohio St.3d 98, paragraph one of syllabus; Woyczynski v. Wolf (1983), 11 Ohio App.3d 226, 227. This Court in Woyczynski held that in the context of attorney liability for malicious prosecution, it must be shown that the attorney did not have a good -9- faith basis for believing that the civil or criminal proceeding was warranted under existing law, or under a good-faith argument for extension, modification or reversal of existing law. Woyczynski, supra at 228. In the case herein, Gordana was both the attorney and the client, i.e., agent for her lessor father. Gordana, according to Mariah's affidavit, encouraged the forgery and according to plaintiff, unbeknownst to her, added plaintiff as a co-signor. This alleged conduct (if true) by an attorney who then proceeds to file an action against the co-signor, satisfies the elements of malice and lack of probable cause required for a malicious prosecution action. The plaintiff has also offered evidence to satisfy the third prong of the malicious prosecution case. That is, that the prosecution terminated in her favor. Although Gordona did voluntarily dismiss the case against the plaintiff, it was not until September of 1996. This was well after the plaintiff allegedly contacted Gordona four times pleading with her to return her money as her name was forged. (Butts Aff. at 2). Even when plaintiff obtained an expert report from a handwriting expert which stated that the signature was a forgery, Gordana refused to return the money. It was not until the trial court granted the plaintiff's Civ.R. 60(B) motion to vacate the default judgment that Gordana finally voluntarily dismissed the case. Even then, she did not attempt to return the money until after the malicious prosecution action was filed against her. Given the history leading up to this action, it appears Gordana did not drop her case -10- until she saw she would have to confront the mounting evidence against her. Furthermore, this Court in Arrington v. Liberty Loan Corporation (Jan. 27, 1977), Cuyahoga App. No. 35454, unreported, citing to 3 Restatement, Torts, Comments to Sections 674 at 444-445 (1938) with respect to malicious prosecution, held: g. Termination in favor of the person whom civil proceedings are brought. Civil Proceedings may be terminated in favor of the person against whom they are brought under the rule stated in Clause (b), (1) by the favorable adjudication of the claim by a competent tribunal, or (2) by the withdrawal of the proceedings by the person bringing them ***. Defendant-appellees failure to continue garnishing plaintiff-appellant's wages clearly constituted a withdrawal of the proceedings, and consequently qualified as a termination in favor of the person against whom [the wrongful] civil proceedings [were] brought. Id. at 11. In that opinion, this Court also cited Fortman v. Rottier and Hoenig (1858), 8 Ohio St. 548, 552 for the proposition that in a malicious prosecution case, when the termination of the former suit can neither tend to establish nor invalidate the plaintiff's cause of action, it is not necessary to aver such termination. In this case, the voluntary dismissal by the defendant of the underlying action does not establish or invalidate the plaintiff's cause of action since the dismissal does not dissolve the fact that Gordona garnished the plaintiff's account in the amount of $322.52 and did not even return the money once she dismissed the case. It -11- was not until the malicious prosecution case was filed that she attempted to return the money. Finally, the plaintiff also presented sufficient evidence to overcome summary judgment regarding the final element of malicious prosecution, i.e., that her property was seized during the course of the prior proceedings. Although defendants argue that garnishment proceedings are not appropriate for the basis of a malicious prosecution claim, we disagree. Defendants cite Delk v. Colonial Finance Co. (1963), 118 Ohio App. 451 to support this proposition. However, in Delk, the plaintiff alleged the basis for the malicious prosecution was the defendant's failure to serve him with notice of the garnishment proceedings and that because it had summoned his employer to court to testify, he was thereafter fired. The plaintiff did not even contend that the underlying action to the garnishment was wrongly pursued as he agreed to voluntarily pay the judgment once he learned of the garnishment proceedings. In this case, there is no dispute that the money from the plaintiff's account was actually seized and plaintiff disputed the underlying action regarding the money judgment. Plaintiff is not merely alleging the lack of notice constituted the malicious prosecution as did the plaintiff in Delk. This Court has, in fact, found that where the money is in fact seized, the garnishment constitutes sufficient grounds for malicious prosecution. See Arrington, supra; Ambrose, supra; Dean v. Central National Bank (Nov. 19, 1981), Cuyahoga App. No. 43740, unreported. -12- Based on the foregoing, plaintiff's Assignments of Error I and II are sustained. Assignment of Error III relates to matters that are not properly before this Court. David v. Schwarzwald, Robiner, Wolf & Rock (1992), 79 Ohio App.3d 786, 802. Therefore, Assignment of Error III is overruled. Judgment reversed and remanded. -13- It is ordered that appellant recover of appellees her 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 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. LEO M. SPELLACY, J., and MICHAEL J. CORRIGAN, J., CONCUR. JAMES M. PORTER PRESIDING JUDGE 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 .