issues and in both claims arise out of b abuse of process and melissa prosecution going to focus on the summary judgment decision that we appealed as to our clients is this case arises in california that arises between two dentist in an organization the a f e which provides seminars to dentist and other medical professionals throughout the united states at issue in this case or seminars at the relevant to the dentistry program in california relevant to this doctor jesse has testified that he had provided botox to his patients in his california dental practice before any of the issues in this case during the issues in this case  currently he's always believed that the it's been lawful for dentist in california to offer these services to his patients he's kept abreast of the law and he always believed that the case dr jessie performed work of the if he pursued to written contracts in the written context provided that he was an independent contractor provided that ohio law would apply to any disputes set forth the reimbursements the doctor just he was entitled to and then most importantly stated that if there was any type of change to the contract that it had to be in writing and signed by the parties what your strongest claim a gets jesse here we've got a lot of claims grossed claim malicious prosecution if we look at dr jesse's testimony in this lawsuit when he was deposed he verified that the california lawsuit had no probable cause in fact that every day every one of the claims  lacked a factual basis and a legal basis in this lawsuit he testified that there was no fraud that they had a joint representation when the california dental board raised the issue that the joint representation required the two to have a unity of contract and some some related contract claims when that the truth the verdict came out in favor of the doctor most mocker at that point they they made the decision no appeal was filed by either side and they they looked at their rights and they filed an ohio lawsuit under california law for abuse of process and malicious prosecution with the district court by race judicata here that i would say that that is the primary basis for the district court's decision and i think that basis is legally unsound because these claims judge nugent is a very able district court judge he very much likes trials i've been in trials with them and i agree that trials  in general conclude the matter aside from appeals and that the trials are resident resolutions of disputes between the parties however and all of that zeroing in on the error there is number one that these two claims by a matter of law required us their st element to prove that the california lawsuit terminated in our favor so how you could say that i have to take a lawsuit to conclusion i have to win and then somehow by winning that  that the two things just simply are not legally tenable and so for the residue to kind of standpoint we believe it's just clear legal arest as to it for example on the abuse of process we had to prove that the declaration we asserted that the declaration that dr jesse provided in opposition of the summary judgment and again a trial was was false and he knew it was false and that was the act that supported our willful act for abuse of process the district court's decision stated that that declaration had been reviewed by by the the district court in california and then he was not going to relate a gay judge nugent was not going to really litigate the declaration will again your honor that is the abuse of process issue and the abuse of process issue is for the district court in this case judge nugent to review the declaration to review what was a declaration that the false declaration was that in the deposition in california dr jessie testified about consideration do you under could stand consideration i gave him a car example i buy your car i offered you money and he said this was just simply he said he would do it i did nothing in return when summary judgment was filed in order to avoid summary judgment he then argued that the promise was based on i entered into the joint relationship our joint defense in return for the promise to pay my fees of the heat with the argument that with them for parents of some sort a consideration for that his action yes that's what he asserted in his declaration will want it but what exactly was he for wearing what we don't believe there was for him no you don't as he always could have stopped the joint representation he testified that there was no forbearance and we believe that yes summary judgment should have been granted but the end in california on that claim and we should have had to go through a trial but the key point is that today dr jesse's testimony confirms that these two individuals are friends that he believed the seminar was lawful at the time he made it it was lawful during the course of the dental board proceedings and was lawful at all times to through today in the california lawsuit after having a joint defense and having a unity of interest he turned into a very different stance if you look at the california complaint and you look at his testimony in this case for example intentional misrepresentation in this case he testified in ambiguously that i knew all of the facts related to the dental board i agreed dispute everything we did was lawful and it was inappropriate for the dental board to be challenging yes my seminar was lawful the california lawsuit took a very different stance a california lawsuit alleged the doctor mall smock or hid facts from that doctor mauls marker presented a seminar that violated california law and had him present it in direct contradiction to the joint representation and more importantly in direct contradiction to his deposition testimony in this case with the  issued a regulation that stay the dentist as long as they weren't doing it for him just to make you look pretty it pretty different facial ascetics if it was for a medical reason that a dentist just like a doctor could use botox and other fillers are seminar and dr jesse agrees was was medically related that he was testifying that if you had migraines or if you had issues with your jaw here's how to use the botox for your patients in the the lawsuit in california he alleged one hundred and eighty degrees differently he alleged that this seminar was a lawful the live injections come up in our counter claim the counter claims were certain because of the fact that one of the issues in the california dental board issue was that they had an undercover investigator that undercover investigator believe that dr juste had in appropriately performed a live injection issue with that there was live injections being performed but you have to have a patient to to make a medically necessary you have to have a patient as an instructor he didn't have a patient present and so that's where the dental board had the issue so we found a kind of crime in this case and i'm surprised we have an appeal on it because in this case it was relevant to summary judgment i asked dr just see in his deposition about his counter claims he to in this lawsuit he testified in pages one thousand and eleven that there was no action sense the judgment in california that if he or dr moles parker took unlawfully against him and direct contradiction to his intentional interference climb supporting those counter claims yet we are still pursuing those kinds of claims here and so from our standpoint this is real real simple our standpoint is that the judge should not have applied rose judicata regina kata does not apply to abuse of process brief stating that the facts aren't in dispute they're not going to cite to the record that's much the same at the district court level they did not say to anything they just attached it's well established that the initial burden has to be on them to prove that there's no genuine issue of material fact th the burden shifts to to us we met that burden but that burden never shifted as as to it and then finally as to the summary judgment we do believe that if you look at dr jesse's testimony in this case where he confirms that there was no fraud that our seminar was lawful that the contract required a signed writing in order to have the payment of fees and that the contract most importantly did not require the if he did reimburse him for his legal fees by its very terms amid all those facts he nonetheless brought a lawsuit in california that had no probable cause that that alleged fraud that allege or seminar was on lawful alleged damages emotional harm punitive damages and went all the way to the jury alleging punitive damages emotional distress and so from our standpoint there's without question yes to both of our time summary judgment should have been either we had no probable cause to bring these claims there was clear malice this was somebody bringing a claim only to force their fee to pay something that they weren't required to that the law is clear as to venue choice the choice of law the law is clear as to the lack of probable cause and we believe under that with the false declaration and the facts that has thrown them out in the california case judge steven walter looked at the counter claims that were filed by their case by dr miles mocker an a f p and threw them out threw them out on summary judgment in may of two thousand sixteen in court in open court and granted dr jesse's motion for summary judgment throwing out those kind of claims well it was a shoe laces prosecution and abuse of process raised in california no sir it was not it was raised here in ohio it could have been raised is that what you're say well actually not the underlying facts the underlying bases of what they claim today and have claimed in ohio as being the bases of their abuse of process and malicious prosecution case were in part thrown out in california and i say in part because the abuse of process and malicious prosecution which i anticipate is where you're going your honor is is something that derives from the later activity of the whole court of the whole case in california failing by and not succeeding by dr jesse but that case in california went to the jury in a neck case you honor and your honor we have a situation in judge givens by audio we have a situation where judge walter heard all the different eight different claims there was a motion bless you that was thrown that was developed by d easy to dismiss the plaintiff's claims that motion came up it was a motion for judge for summary judgment it was ruled upon by judge walter and judge walter as mr campbell noted dismissed out five of the eight claims the last three claims fraud there was a breach of contract and a breach of the  duty of fair dealing and good thing those three went to the jury and directed verdict judge walter in california took two of those the duty of fair dealing breach and a breach of contract and stood there not going to go to the jury but the judge said and it's in the trial transcript which is part of the record the judge said and this is from the california case that became part of the record in ohio and the judge there judge walter said i'm going to let this go to a jury  think there's a basis for the jury to find based upon what we've heard so far today at the end of all the testimony at the end of all the evidence that i'm going to let this go to the jury and he so instructed the jury on the law dealing with fraud and yes it was a consideration issue that apparently was the hang up in that case now judge nugent later now in ohio under the abuse of process and malicious prosecution complaint brought by d he here in ohio came back and looked at it and said this race judicata there is a law that says that abuse of process and malicious prosecution can be dismissed due to race judicata and i'd cite the court to the prosecution and abuse of process case so the suggestion that it's contrary to law is just not apt at all and in fact judge nugent followed the law here in ohio and he said and in this in this court and said that the abuse of process and malicious prosecution claims as he found them and that were raised in ohio as a result of the california litigation were race judicata and it was covered by res judicata in that instance the judge in june of last year dismissed out the plaintiff's case on summary judgment and promptly did so we asked the court affirmed that ruling if i may though we also talked about and we heard discussion here today about the counter claims amended counter claims of dr jesse as it relates to the ohio case there were three counter claims that were brought by dr jesse one was abuse of process one was malicious prosecution and the rd was tortious interference with business relationships and prospective business relationships that case was dismissed those three counter claims were dismissed by judge nugent in december of one thousand of two thousand and seventeen plaintiff's nd motion for judgment on the pleadings now there's a significant point in the process of a case as you both understand and as i know judge gibbons would understand because all of you have served is just for judges in your careers and as you look at what happened in this case that case was dismissed those kind of things were dismissed before discovery was really able to move forward and be undertaken and proven via expert witness testimony in the case below and so as a result it's not that judge nugent erred by holding race judicata or anything else in that decision he didn't give us the chance to prove our counter claims now fundamentally before we go any further i'm authorized to talk to the court about dr jesse's position which is if this case and if this court deems fit to dismiss out and uphold judge nugent's ruling on the main case brought by multum ocker and a f e dr jessie wants this over with that would be the end of the case if a wave of fire the district court but if not then you've got your he wants is over with and wants no further pursuit of anything but if it is to go then jesse wants his chance to prove that he does have a case and can move forward beyond a simple motion to dismiss slash basis of those which were pled out in the amended counter claims was that the underlying case in california moved forward by malts mocker and a f e on their counter claims despite the fact that in january of two thousand and sixteen deposition by monica boatyard who was the model the person supposedly injected she testified i was never object injected by the botox at that particular two thousand and twelve program that became the subject of the california border town dentistry case and she testified no it was mocked up he acted as if he was so to show all the students there the dentists attending to learn how to use botox what it looks like and how you do the injection but it was never injection and yet dr mots marker and if he continued to pursue their case in federal court knowing that she was never injected by or own testimony and this is the model this is a doctor jessie is the person who purportedly was so in light of your client's desire  conditioner depended upon how the case goes have you all thought post the appeal trying to resolve everything with certainty outside  so as a result of where we are an abuse of process claim suggests that there was a reasonable basis to bring a claim and without conceding the fact on the malicious prosecution side which says there was no reasonable basis to bring  in the abuse of process argument there has to be a perversion at some point of the process at which point the the a person accused of abuse of process has so perverted with an ulterior motive that process as to render it abusive and in this case dr jessie properly pled in his counter claim that there was this injection allegation boni artie's testimony was very clear she was  never up close and personal she was never injected and dr marks marker knew that in california and didn't withdraw his claims and considered continued to pursue them why because he wanted to get back at dr jesse for abandoning him if you will abandoning their common defense before the california board of dentistry that issue come up in the trial of and california about the fact that the woman didn't even have the boat yes it was part of the california case it was part of the trial and that was all before judge walter and i'm sorry judge wilson and judge wilson knew that and judge wilson had it in front of him and presumably is part of his rulings rendered that as part of his decisions and so in that sense dr marks mocker and presumably a d fee as well because they're basically one in the same came through and  and yet still pursued their claims now there were no motions for sanctions and mr campbell is correct there was no motion under ruhleben or any other motions in california before judge wilson in fact the case was rendered with and it was over with and then dr nugent a judge nugent got the case and i have a tendency to call priests your honor sometimes and judges them anyway as we move forward and i apologise to the court judge nugent had a chance to look at this case and said this was judge wilson's case in california it shouldn't be here it's race judicata and he properly so ruled in his decision in june and eighteen now when we when we look at where we go we cannot live in a world we cannot have these legal system that we have in a situation where judges are being nd guessed and related gated and related gated it's as if a super ball was dropped on the floor and bounced up and kept on bouncing in every bounce is a new version of new litigation again and again nd guessing judge wilson nd guessing judge nugent and indeed looking at where this law should be and where this case should be it was in judge wilson's court and there it was resolved and it was never appealed from in california never appealed from in california it was brought as an abuse of process malicious prosecution case in ohio moved to federal court and here we are and so as a result of where we are we would ask that the court uphold the district court in its entirety and if the court here so chooses not to uphold the district court in its entirety as a relates to  we would ask that it also overturn the district court and let dr jessie complete his discovery and proofs as a relates to his abuse of process malicious prosecution and most of all tortious interference with business relationships claim your honor thank you very much for your time this morning and although i have a minute left i was hoping to reserve that for a bottle but i understand the cork does not permit cross appellants to participate in the bar act thank you thank you very much and have a great day thank you hundreds of the proof st of all as to the rescue to caught argument it's very clear from the law and i think the the elements of the malicious prosecution make clear that the st element the california lawsuit had to have terminated in our fa lawsuit in favor of the plaintiff has been concluded same as abuse of process so number one has to register to kata as a matter of law it's an inappropriate number two as to our claims we believe the evidence is very clear we didn't hear any to any to contrary arguments as to dr jesse's testimony dr jesse confirms in this deposition we cited extensively that he had no probable cause to bring that cuff your lawsuit that he pursued that california lawsuit all the way to a jury trial asserting fraud seeking emotional distress seeking punitive damages and it attempting to get the largest payment that he could out of this that this company midian he had no probable cause a do it had this counsel and there was two separate counsel had this counsel seen his deposition testimony in this case i am confident that that lawsuit would not have been filed that but but in this case it needs to be pointed out there was no rd party claim saying that the attorney acted inappropriately did not act on his behalf he stated the attorneys were on his behalf this lawsuit was without probable cause it was pursued why didn't we appeal because we want when you when you don't have to appeal a case why didn't we file ruhleben at that time and seek our fees because we made the litigation decision that we had a militia's prosecution abuse of process claims that could be asserted after if there was no appeal versus continuing that litigation and potential h we failed on the merits then i could see issue preclusion or maybe residue caught in this case as councils confirmed it went all the way to the jury there was never decision as to whether there was probable cause as to that and by the very it the mere fact that a summary judgment was denied or claims it could go to trial then you could never bring a malicious prosecution or abuse of process claims these claims to not accrue until we won it at that point so from our standpoint we actually to review dr just his testimony that we cite extensively in his testimony confirms that there was absolutely no probable cause to bring that california law suit was brought for malicious purpose and that declaration is clear evidence that he was doing anything possible to get a chance to that jury to see if he could recover damages far in excess of anything that he had incurred thank you very much thank you sara the matter is submit it and