Construction Lawletter
For Industry Professionals, Managers, Trades & Suppliers
J. NORMAN STARK, ATTORNEY and REGISTERED ARCHITECT
JURIS DOCTOR, B. ARCHITECTURE, B.F.A.
17000 St. Clair Avenue . Cleveland, Ohio 44110-2535
Tel.: (216) 531-5310 . Fax: (888) 833-5860 . E-Mail: www.Normstark@aol.com
In Florida . 6500 Midnight Pass Rd. #105 . Sarasota, FL 34242 . (941) 349-2061.
Vol. 2009-11 November, 2009
ABUSE OF PROCESS

In any legal action (lawsuit) the named Defendant(s) who can truly claim, and prove, the claims stated are untrue, improper, unfounded or baseless, may be able to counterclaim for abuse of process.

The Courts of Ohio have defined this type of legal action. The elements of an abuse of process claim 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 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."
Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A. (1994), 68 Ohio St.3d 294, 298. In Robb v. Chagrin Lagoons Yacht Club, Inc. (1996), 75 Ohio St.3d 264, 271, the Supreme Court of Ohio stated that abuse of process is an action initiated for improper purposes and the "`[t]he improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club.'" Id., quoting Prosser & Keeton on Torts (5 Ed.1984) 898, 		Section 121. "Simply, abuse of process occurs where someone attempts to achieve through use of the court that which the court is itself powerless to order." Robb, supra, at 271.

Among the most frequent cases involving abuse of process, are those involving business transactions, hastily made, often without executed agreements in writing to confirm the terms of the entire agreement, including the manner to resolve claims. Faced with the prospect of defending against false and misleading allegations, prudent business practice indicates retaining experienced legal Counsel to evaluate, appear and vigorously defend against such abusive and coercive tactics.
"Who are a little wise the best fools be."
John Donne
AUTHOR / EDITOR: J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), admitted to practice law before the Bar of Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme Court. He is a Mediator, Arbitrator and Litigator with experience in Business, Construction, and Public Works, and with additional experience in Real Estate, Construction-Legal Project and Crisis Management, and as an Expert Witness. His office is in Cleveland, Ohio.