[This opinion has been published in Ohio Official Reports at
72 Ohio St.3d 520.]
ASH ET AL., APPELLANTS, v. ASH, APPELLEE.
[Cite as Ash v. Ash, 1995-Ohio-107.]
Torts—Malicious prosecution—Compromise between defendant in a criminal
proceeding and the prosecutor forecloses a later malicious prosecution
claim against the complaining witness when the complaining witness was
not a party to that compromise.
A prosecution that is terminated by reason of a voluntary settlement or agreement
of compromise with the accused is not indicative of guilt or innocence and,
therefore, is not a termination in favor of the accused. (3 Restatement of
the Law 2d, Torts [1977], Section 660[a], approved and adopted.)
(No. 94-1160—Submitted May 9, 1995—Decided April 26, 1995.)
CERTIFIED by the Court of Appeals for Wayne County, No. 2817.
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{¶ 1} In the summer of 1991, plaintiff-appellant, Deborah E. Ash, instituted
divorce proceedings against her husband, defendant-appellee, Ned D. Ash, Sr.
("Ash, Sr."), and left the house ("marital home"), where she had lived with Ash, Sr.
during their marriage. Ash, Sr. is the sole owner of the marital home, which is
located in Apple Creek, Ohio. Shortly after Deborah Ash instituted the divorce
proceedings, Ash, Sr. moved from the marital home and leased the property to his
son, defendant, Ned D. Ash, Jr. ("Ash, Jr.").
{¶ 2} On the advice of an assistant prosecuting attorney of Wayne County,
Deborah Ash forcedly entered the marital home on at least two occasions, allegedly
with her son-in-law, plaintiff-appellant, Craig Devore, for the purpose of collecting
her personal belongings. They allegedly damaged a pickup truck, a window, and a
door lock at the marital home.
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{¶ 3} After the unauthorized entries, Ash, Jr., accompanied by Ash, Sr.,
went to the office of the Prosecuting Attorney of Wayne County and signed
criminal complaints, charging Deborah Ash and Devore with committing criminal
trespass and criminal damaging. Deborah Ash and Devore were each charged with
two counts of criminal trespass, and Deborah Ash was also charged with one count
of criminal damaging.
{¶ 4} Deborah Ash and Devore filed motions to dismiss the charges against
them. The Wayne County Municipal Court denied their motions, holding that a
spouse can be found guilty of trespassing in an estranged spouse's house without
permission. During Deborah Ash's jury trial after the state had begun presenting its
evidence and the trial judge called the parties' attorneys into his chambers and
indicated that he was considering dismissing the criminal trespass charges against
Deborah Ash, but continuing the trial with respect to the charge of criminal
damaging. The judge suggested that Deborah Ash pay all court costs and agree to
a restraining order prohibiting her from entering the marital home and that the state,
in return, dismiss all criminal charges against her.
{¶ 5} After negotiating with Deborah Ash and after consulting with Ash,
Jr., the state agreed and moved to dismiss all charges against her and Devore in
exchange for their paying all court costs and Deborah Ash's consenting to a
restraining order prohibiting her from entering the marital home owned by Ash, Sr.
and from destroying marital assets. The prosecutor then moved to dismiss all
charges against Deborah Ash and Devore on the express condition that they pay all
court costs and that Deborah Ash agree to the restaining order. Deborah Ash paid
court costs of $444.81 and signed a restraining order prohibiting her from entering
the marital home. Devore paid court costs of $71. All charges against them were
dismissed.
{¶ 6} Subsequently, Deborah Ash and Devore filed separate malicious
prosecution actions against Ash, Sr. and Ash, Jr. in the Court of Common Pleas of
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Wayne County. The cases were consolidated before trial. In their complaints,
Deborah Ash and Devore asserted that Ash, Sr. and Ash, Jr. had procured criminal
proceedings against them without probable cause. The defendants filed motions
for summary judgment.
{¶ 7} The trial court ruled that Ash, Sr. and Ash, Jr. were entitled to
summary judgment and dismissed all complaints against them. Upon appeal, the
court of appeals concluded that the prosecutor had dismissed the criminal charges
against Deborah Ash and Devore in the earlier criminal cases pursuant to a
compromise and affirmed the judgment of the trial court. Finding its judgment in
conflict with the decision of the Fifth District Court of Appeals in Street v. Nichols
Philadelphia Corp. (Dec. 1, 1983), Tuscarawas App. No. 1781, unreported, the
court of appeals certified the record of the cause to this court for review and final
determination.
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Kennedy, Cicconetti & Rickett Co., L.P.A., David C. Knowlton and William
G. Rickett, for appellants.
Buckingham, Doolittle & Burroughs L.P.A., Reginald S. Kramer and
Hamilton DeSaussure, Jr., for appellee.
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WRIGHT, J.
{¶ 8} The issue certified to this court is whether "a compromise between a
defendant in a criminal proceeding and the prosecutor foreclose[s] a later malicious
prosecution claim against the complaining witness when the complaining witness
was not a party to that compromise." The answer to this query is "yes."
{¶ 9} This court previously has held that "[t]he elements of the tort of
malicious criminal prosecution are (1) malice in instituting or continuing the
prosecution, (2) lack of probable cause, and (3) termination of the prosecution in
favor of the accused." Trussell v. Gen. Motors Corp. (1990), 53 Ohio St.3d 142,
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559 N.E.2d 732, syllabus. A private person who initiates or procures the institution
of criminal proceedings against another is not subject to liability unless the person
against whom the criminal proceedings were initiated proves all three of the abovelisted elements. See 3 Restatement of the Law 2d, Torts (1977) 406, Section 653.
This case concerns only the third element—whether the criminal proceedings that
gave rise to these malicious prosecution actions were terminated in favor of the
plaintiffs.
{¶ 10} A proceeding is "terminated in favor of the accused" only when its
final disposition indicates that the accused is innocent. See 3 Restatement of the
Law 2d, Torts (1977) 420, Section 660, Comment a. Thus, an unconditional,
unilateral dismissal of criminal charges or an abandonment of a prosecution by the
prosecutor or the complaining witness that results in the discharge of the accused
generally constitutes a termination in favor of the accused. See Douglas v. Allen
(1897), 56 Ohio St. 156,
46 N.E. 707; see, also, Prosser & Keeton, Law of Torts (5
Ed.1984) 874, Section 119 ("Prosser"); 3 Restatement of the Law 2d, Torts (1977)
419, Section 659(c), Comment e.
{¶ 11} However, a prosecution that is terminated by reason of a voluntary
settlement or agreement of compromise with the accused is not indicative of guilt
or innocence and, therefore, is not a termination in favor of the accused. See
Prosser, supra, at 875; 54 Corpus Juris Secundum (1987) 581, Malicious
Prosecution, Section 55; 52 American Jurisprudence 2d (1970) 211, Malicious
Prosecution, Section 43. 3 Restatement of the Law 2d, Torts (1977), Section 660,
provides:
"A termination of criminal proceedings in favor of the accused other than
by acquittal is not a sufficient termination to meet the requirements of a cause of
action for malicious prosecution if
"(a) the charge is withdrawn or the prosecution abandoned pursuant to an
agreement of compromise with the accused[.]"
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{¶ 12} Comment c to that section gives the reason for this rule: "Although
the accused by his acceptance of a compromise does not admit his guilt, the fact of
compromise indicates that the question of his guilt or innocence is left open.
Having bought peace the accused may not thereafter assert that the proceedings
have terminated in his favor."
{¶ 13} The primary purpose of a settlement or an agreement of compromise
is to avoid a determination on the merits of the criminal proceeding. It would be
unfair to a complaining witness to allow an accused to secure the dismissal of the
criminal charges against him or her by consenting to a compromise and then take
advantage of the termination by suing the complaining witness.
{¶ 14} The appellants argue that the trial court should not have granted the
defendants' motions for summary judgment because the existence of an agreement
of compromise between the plaintiffs and the defendants is a jury question. We
disagree for two reasons. First, it is the function of the court and not the jury to
determine whether the criminal proceedings were terminated in favor of the
plaintiffs. See 3 Restatement of the Law 2d, Torts (1977) 448, Section 673(b).
With regard to the termination of criminal proceedings, a jury's only function is to
determine the circumstances surrounding the termination if facts are disputed. Id.
at 449, Comment e.
{¶ 15} In the case before us, both lower courts properly concluded, as a
matter of law, that the criminal charges were dismissed pursuant to a voluntary
agreement of compromise. The prosecutor expressly conditioned the motions to
dismiss the criminal charges upon both plaintiffs' agreement to pay court costs and
Deborah Ash's consent to a restraining order. It is undisputed that the plaintiffs
voluntarily fulfilled those express conditions. Under these circumstances, the
dismissal of the criminal charges was not unilateral; the plaintiffs, as well as the
prosecutor, gave up something to effectuate the settlement and secure their
dismissal. The actual amounts paid by the plaintiffs to secure their dismissal is
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immaterial. The amount of a settlement is often based on a variety of factors
completely unrelated to the merits of the case, such as a desire to avoid a timely
and inconvenient trial, a party's continued ability to finance further litigation, and
the extent to which a person is risk-adverse and unwilling to gamble on the outcome
of the trial.
{¶ 16} Appellants' argument fails for another reason. An agreement of
compromise does not have to be between the accused and the complaining witness.
We recognize that most of the published cases concerning a termination of criminal
proceedings by reason of a compromise involve a compromise between the accused
and the complaining witness.1 See, generally, Annotation (1983), 26 A.L.R.4th
565. However, the rule enunciated in Section 660 of the Restatement also
encompasses compromises between the accused and the prosecuting attorney.
Neither type of compromise terminates the prosecution in favor of the accused
because they both avoid a determination on the merits and leave open the question
of the accused's guilt or innocence.
{¶ 17} When faced with the issue, courts in other jurisdictions have held
that a voluntary compromise between an accused and the prosecutor bars a
malicious criminal prosecution action against the complaining witness. In Bowman
v. Breeden (Dec. 20, 1988), Tenn. App. No. 1206, unreported, 1988 WL 136640, a
case strikingly similar to the one before us, the attorney general moved to dismiss
a criminal larceny charge conditioned upon the accused's agreement to pay court
costs. The charges against the accused were subsequently dismissed pursuant to
his agreement to pay court costs. The accused then filed a malicious prosecution
action against the private person who had procured his arrest. The Tennessee court
of appeals held that the dismissal of the criminal charges pursuant to the settlement
1. Although not necessary for our holding, we note that Deborah Ash quite clearly entered into an
agreement of compromise with Ash, Sr. Both agreed to and applied for a temporary restraining
order prohibiting both of them from entering the marital home or destroying marital assets.
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between the accused and the state was not sufficiently favorable to the accused to
sustain his malicious prosecution action. Id. at 2. See, also, Schumer v. Craig
Distrib. Co. (Mo.App.1987), 745 S.W.2d 163; Shinn v. Bank of Crocker
(Mo.App.1990),
803 S.W.2d 621, 627-628.
{¶ 18} For the foregoing reasons, we agree with both lower courts that the
defendants were entitled to summary judgment. Although the plaintiffs may not
have been aware of the legal effect of their agreements of compromise, the legal
effect exists nonetheless and bars their malicious prosecution actions.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and HADLEY, JJ.,
concur.
RONALD E. HADLEY, J., of the Third Appellate District, sitting for COOK, J.
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