Abuse of Process: Takeaways from Pingue v. Preferred Real Estate Invests II, L.L.C. (Part 3 of 3)

February 16, 2016

This is the third and final installment in a series of blog posts about abuse of process in Ohio. Click here to read the first post, and here to read the second.

In deciding the case of Pingue v. Preferred Real Estate Invests II, L.L.C. (discussed in part two of this series), the Court of Appeals took into consideration the following: (1) the Plaintiff “admitted that he warned [the other side] at the closing that he would be watching it closely and that he warned it not to trespass ‘one inch’ on his property; (2) the Plaintiff admitted he felt he had been shorted around $78,000.00; (3) the Plaintiff admitted that his feeling of being cheated was one of the reasons he filed the present suit (probably a very bad fact for him); (4) the Plaintiff demanded $60,000.00 per acre more for the rest of the land than the Defendants offered, and his offer also “imposed unreasonable contingencies”; (5) the Plaintiff filed suit after the Defendants rejected his offer; (6) the Defendants testified that they had been endlessly harassed by the Plaintiff; and (7) there was additional testimony from the Plaintiff suggesting that he threatened (or implied a threat of) litigation if Defendants would not buy the rest of the property at the price he demanded.
The Court of Appeals affirmed the verdict, finding that “the jury did not lose its way in finding in favor of appellee Preferred on the abuse of process counterclaim.” It is unclear whether the Plaintiff has attempted to appeal the verdict to the Ohio Supreme Court (you have to file a “Memorandum in Support of Jurisdiction,” i.e., request that the case be “accepted” for review – it is not automatic). For now, however, the verdict stands.
One observation from Pingue is that the contours of the tort of abuse of process are not yet clearly defined in Ohio. At what point a lawsuit crosses the line and becomes an abuse of process is not 100% clear. The Pingue Court echoes the rule that “carry[ing] out the process to its authorized conclusion, even though with bad intentions” does not constitute abuse of process. However, there is no explanation of how the Plaintiff did more than simply carry out the lawsuit to its authorized conclusion (although the facts/testimony cited above should be noted, as well as the fact that the jury ruled against the Plaintiff on other trespass claims and he also made other claims that were thrown out by the Judge). The Yuklevich case does not provide any such illustration, either.
Abuse of process is determined on a case-by-case basis, though Pingue gives us guidance on the factors involved. We can certainly deduce from Pingue that conduct likely to give rise to an abuse of process claim includes: (1) filing a lawsuit in whole or in part because of anger or resentment that is unrelated to the subject of the lawsuit; (2) threatening a lawsuit if some condition unrelated to the subject of the lawsuit is not met; (3) filing a lawsuit very soon after such a condition is not met (or very soon after some other action occurs that is adverse to the Plaintiff); and (4) filing a lawsuit when little or no harm has been suffered. The more of these factors that are shown, and the greater the extent to which any of these factors are shown, the more likely it is that an abuse of process will be found.
Pingue also shows just how much appearances matter. It would be interesting to know if the case would have turned out differently if the Plaintiff just had refrained from saying and doing some of the “incriminating” things noted above. Many of the facts – filing suit right after what would appear to be a highly unreasonable demand for the sale of the property, after years of actions demonstrating resentment and anger, when the trespass he complained of caused only nominal damages, etc. – simply did not look good to a jury. Ultimately, whether the Plaintiff or the Defendants (or neither side) were truly in the right is impossible to tell. Regardless, there are a number of lessons to be learned from this case.
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