[Cite as Corsaro & Assocs. Co., L.P.A. v. Weston Hurd, L.L.P., 2015-Ohio-423.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 101534 

CORSARO & ASSOCIATES CO., L.P.A.

PLAINTIFF-APPELLANT 

vs. 

WESTON HURD, L.L.P., ET AL.

DEFENDANTS-APPELLEES 

JUDGMENT: 

REVERSED AND REMANDED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-14-823689 

BEFORE: E.T. Gallagher, J., Jones, P.J., and Keough, J. 

RELEASED AND JOURNALIZED: February 5, 2015 
ATTORNEY FOR APPELLANT

Christian M. Bates 

Corsaro & Associates Co., L.P.A. 

28039 Clemens Road 

Westlake, Ohio 44145 

ATTORNEYS FOR APPELLEES

Ronald A. Rispo 

Angela G. Carlin 

Shawn W. Maestle 

Martha Allee 

Weston Hurd, L.L.P. 

The Tower at Erieview 

1301 East Ninth St., Suite 1900 

Cleveland, Ohio 44114-1862 
EILEEN T. GALLAGHER, J.: 

{¶1} Plaintiff-appellant, Corsaro & Associates Co., L.P.A. (“Corsaro”), appeals the trial 

court’s judgment dismissing its complaint with prejudice. We find merit to the appeal and 

reverse. 

{¶2} In December 2005, someone from the Cleveland Clinic Hospice Program contacted 

Claire Long (“Long”), an attorney at Corsaro, to prepare a will for a terminally ill patient named 

Albert Franz (“Franz”). Per Franz’s instructions, Long prepared the will to bequeath the 

majority of Franz’s assets to his neighbors Branko and Robin Prodanovic. In January 2006, 

Franz passed away, and Branko Prodanovic (“Prodanovic”) was appointed the executor of 

Franz’s estate. After Franz’s death, Prodanovic discovered that Franz had undisclosed wealth in 

excess of $1,000,000. Prodanovic hired Long and Corsaro to administer Franz’s will. 

{¶3} Prodanovic was a foreign citizen, held no assets, and had recently filed for personal 

bankruptcy. Under these circumstances, Prodanovic was unable to post the bond necessary to 

serve as executor of Franz’s estate. Therefore, Long obtained leave from the probate court to 

make a deposit in lieu of posting a bond. Prodanovic deposited funds in a custodial savings 

account at FirstMerit Bank. Franz’s relatives filed a will contest and named the Prodanovics as 

defendants. Appellees Weston Hurd L.L.P., Angela Carlin, and Shawn Maestle (collectively 

“appellees”) defended the Prodanovics in the will contest, and in January 2008, appellees took 

over the administration of Franz’s estate. In February 2009, appellees filed a legal malpractice 

action against Corsaro and Long alleging that they negligently administered Franz’s estate by 

failing to deposit the bond money into an account bearing a higher interest rate. 
{¶4} In March 2011, Corsaro and Long filed a third-party complaint against appellees in 

the legal malpractice suit. Corsaro asserted claims for contribution, alleging that appellees were 

negligent in their subsequent handling of Franz’s estate, and that their negligence contributed to 

any damages the Prodanovics may have suffered. 

{¶5} Appellees filed a motion to dismiss the third-party complaint, but the court never 

ruled on it. From June 2011 until June 2013, the case remained dormant on the trial court’s 

docket, and appellees did nothing to prosecute the malpractice action. Following two years of 

inactivity, Corsaro requested that the court set a pretrial. Corsaro also contacted appellees to 

schedule Prodanovic’s deposition. In November 2013, two days before the scheduled pretrial, 

appellees dismissed the legal malpractice action because they decided it was not cost effective. 

{¶6} On March 14, 2014, Corsaro filed this action and alleged a single count of abuse of 

process. In its complaint, Corsaro alleged that although appellees determined sometime after 

June 2011 that they would no longer pursue the underlying legal malpractice action, they did not 

dismiss the action and allowed the case to remain on the court’s active docket for over two years. 

 Corsaro further alleged that while the legal malpractice action may have been filed in proper 

form and with probable cause, appellees abused the process by not dismissing the action once it 

determined it would no longer pursue it. Finally, Corsaro alleged that appellees purposely 

decided not to dismiss the malpractice action in order to harm Corsaro’s goodwill and reputation 

and to solicit Corsaro’s employees and clients. 

{¶7} Appellees filed a motion to dismiss Corsaro’s complaint on grounds that it was 

barred by the applicable statute of limitations. The trial court granted the motion. Corsaro now 

appeals and raises one assignment of error. 
{¶8} In the sole assignment of error, Corsaro contends the trial court erred in granting 

appellees’ motion to dismiss. Corsaro argues the trial court erred in determining, from the face 

of the complaint, that its abuse of process claim was barred by the statute of limitations. 

Standard of Review

{¶9} We review an order dismissing a complaint for failure to state a claim for relief de 

novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44. 

Under this standard of review, we must independently review the record and afford no deference 

to the trial court’s decision. Herakovic v. Catholic Diocese of Cleveland, 8th Dist. Cuyahoga 

No. 85467, 2005-Ohio-5985, ¶ 13. 

{¶10} When reviewing a Civ.R. 12(B)(6) motion to dismiss, we must accept the material 

allegations of the complaint as true and make all reasonable inferences in favor of the plaintiff. 

Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 2005-Ohio-4985, 834 N.E.2d 791, ¶ 6. 

However, “[u]nsupported conclusions of a complaint are not considered admitted * * * and are 

not sufficient to withstand a motion to dismiss.” State ex rel. Hickman v. Capots, 45 Ohio St.3d 

324, 324, 544 N.E.2d 639 (1989). To prevail on the motion, it must appear from the face of the 

complaint that the plaintiff can prove no set of facts that would justify a court granting relief. 

O’Brien v. Univ. Comm. Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975). 

Statute of Limitations

{¶11} The statute of limitations is an affirmative defense and is generally not properly 

raised in a Civ.R. 12(B)(6) motion to dismiss. Lisboa v. Tramer, 8th Dist. Cuyahoga No. 97526, 

2012-Ohio-1549, ¶ 13, quoting Ryan v. Ambrosio, 8th Dist. Cuyahoga No. 91036, 

2008-Ohio-6646, ¶ 20. The Ohio Civil Rules require “notice pleading” rather than “fact 

pleading,” and the rules generally do not require a plaintiff to plead operative facts with 
particularity. Bush v. Cleveland Mun. School Dist., 8th Dist. Cuyahoga No. 99612, 

2013-Ohio-5420, ¶ 5. Moreover, the civil rules do not require plaintiffs to plead the facts 

necessary to avoid the applicability of an affirmative defense. Luburgh v. Bishop, 2d Dist. 

Montgomery No. 25818, 2014-Ohio-236, ¶ 12, citing Paul v. World Metals, Inc., 9th Dist. 

Summit No. 20130, 2001 Ohio App. LEXIS 718 (Feb. 28, 2001)(holding that Civ.R. 8(C) does 

not require the plaintiff to plead the absence of the affirmative defense of the statute of 

limitations in the complaint as an element of the tort action); Scott v. Columbus Dept. of Pub. 

Utils., 192 Ohio App.3d 465, 2011-Ohio-677, 949 N.E.2d 552, ¶ 8 (10th Dist.) (holding that 

plaintiffs need not plead exceptions to the immunity affirmative defense in the complaint). 

{¶12} Civ.R. 8(A)(1) requires that a complaint include only (1) a short and plain 

statement showing that the party is entitled to relief, and (2) a demand for judgment for the relief 

to which the party claims to be entitled. Id. Notwithstanding the liberal pleading requirements 

of Civ.R. 8, the Ohio Supreme Court has held that a court may dismiss a complaint pursuant to 

Civ.R. 12(B)(6) for failing to comply with the applicable statute of limitations where the 

complaint, on its face, conclusively indicates that the action is time barred. Doe v. Archdiocese 

of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 11; Mills v. Whitehouse 

Trucking Co., 40 Ohio St.2d 55, 58, 320 N.E.2d 668 (1974). 

Abuse of Process

{¶13} Abuse of process is governed by a four-year statute of limitations. R.C. 2305.09. 

Appellees argued in their motion to dismiss that Corsaro’s cause of action accrued, and the 

statute of limitation started to run on February 12, 2009, when appellees filed the legal 

malpractice action against Corsaro on Prodanovic’s behalf. According to appellees’ argument, 
the statute of limitations for abuse of process would have expired on February 12, 2013, and 

Corsaro did not file the complaint initiating this action until March 14, 2014. 

{¶14} However, abuse of process claims are “‘cases in which legal procedure has been set 

in motion in proper form, with probable cause, and even with ultimate success, but nevertheless 

has been perverted to accomplish an ulterior purpose for which it was not designed.’” Yaklevich 

v. Kemp, Schaeffer, & Rowe Co. L.P.A., 68 Ohio St.3d 294, 300, 626 N.E.2d 115 (1994), quoting 

Prosser & Keeton on the Law of Torts, Section 121, 897 (5th Ed.1984). 

{¶15} To prevail on an abuse of process claim, the plaintiff must prove that (1) a legal 

proceeding has been set in motion in proper form and with probable cause, (2) the proceeding 

was perverted to attempt to accomplish an ulterior purpose for which it was not designed, and (3) 

direct damage has resulted from the wrongful use of process. Id. at syllabus. Because an abuse 

of process claim arises from perverted actions taken during the litigation sometime after the 

complaint was filed, the cause of action generally does not accrue on the day the complaint was 

filed. Rather, an abuse of process claim accrues on the date of the allegedly tortious conduct. 

Read v. Fairview Park, 146 Ohio App.3d 15, 19, 764 N.E.2d 1079 (8th Dist.2001). 

{¶16} Corsaro’s complaint states, in part: 

Around the time Defendants filed the underlying Complaint on behalf of Branko 

Prodanovic, Defendant Weston Hurd was actively soliciting a number of 

Corsaro’s attorneys to work for Weston Hurd, and were successful in hiring two 

(2) Corsaro attorneys. * * * In connection with those efforts, Weston Hurd was 

using the solicited employees to further solicit Corsaro clients to become Weston 

Hurd clients. 

Appellees contend that, according to this paragraph, the alleged misconduct occurred when the 

complaint was filed. However, the phrase “around the time” is vague and does not mean that 

the actions alleged in the paragraph had occurred when the complaint was filed. Further, not all 
the actions described in the paragraph occurred at once. The complaint does not provide any 

specific dates as to when the solicitation started, when the attorneys left Corsaro to work at 

Weston Hurd, or when the solicitation of Corsaro’s clients occurred. 

{¶17} In a later paragraph, Corsaro’s complaint alleges that appellees’ failure to timely 

dismiss the underlying action constituted the misconduct element of the abuse of process claim. 

Corsaro claims appellees’ decision not to dismiss the malpractice action was intended to 

“undermine and besmirch the reputation and goodwill of Corsaro and its attorneys in connection 

with Weston Hurd’s attempt to solicit Corsaro’s attorneys and clients.” The failure to timely 

dismiss the underlying action occurred sometime after June 2011. As previously stated, Corsaro 

filed the complaint initiating this action on March 14, 2014, less than three years from the date of 

the specifically alleged misconduct. Therefore, the complaint does not conclusively indicate, on 

its face, that Corsaro failed to file this abuse of process action within the applicable four-year 

statute of limitations. Accordingly, the trial court erred in granting appellees’ motion to dismiss. 

{¶18} The sole assignment of error is sustained. 

{¶19} Judgment reversed and remanded to the lower court for further proceedings 

consistent with this opinion. 

It is ordered that appellant recover from appellees costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to the common pleas court 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. 
EILEEN T. GALLAGHER, JUDGE 

LARRY A. JONES, SR., P.J., and 

KATHLEEN ANN KEOUGH, J., CONCUR