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Nationwide Insurance Enterprises v. Progressive Specialty6/20/2002
s of the trial court." Mergenthal v. Star Banc Corp. (1997), 122 Ohio App.3d 100, 103.
. Renaut first claims the trial court erred in granting summary judgment on the malicious prosecution claim. The elements of malicious prosecution are: (1) malicious institution of prior proceedings; (2) lack of probable cause for filing the prior lawsuit; (3) termination of the prior proceedings in favor of the plaintiff; and (4) seizure of plaintiff's person or property in the prior proceedings. Crawford v. Euclid Natl. Bank (1985), 19 Ohio St.3d 135, 139. Renaut's counterclaim alleges that two separate acts constituted malicious prosecution: (1) Progressive maliciously filed the declaratory judgment action against him in Kentucky knowing that there was no jurisdiction in Kentucky; and (2) Progressive maliciously filed a motion to set aside Nationwide's September 22, 1999 voluntary dismissal of Renaut knowing that there was no such motion provided by the Ohio Civil Rules.
. With regard to the claim that Progressive maliciously filed the declaratory judgment action against Renaut in Kentucky, knowing that court did not have jurisdiction, the trial court found that Renaut's claim was barred by the statute of limitations. We agree. The applicable statute of limitations for malicious prosecution is R.C. 2305.11(A), which provides that an action shall be commenced within one year after the cause of action accrues. A cause of action for malicious prosecution accrues upon the rendition in the trial court of a judgment for the defendant in the action complained of. Levering v. Natl. Bank (1912), 87 Ohio St. 117, paragraph two of the syllabus.
. The latest date at which the malicious prosecution claim could have ripened so as to trigger the statute of limitations set forth in R.C. 2305.11(A) was May 7, 1999, the date of the judgment dismissing the declaratory judgment action filed by Progressive in Kenton County, Kentucky, for lack of personal jurisdiction. At that time Renaut knew, or in the exercise of reasonable judgment should have known, that he had a cognizable claim of alleged malicious prosecution against Progressive. Renaut did not file his counterclaim against Progressive until June 28, 2000, beyond the one-year period allowed in R.C. 2305.11(A).
. Renaut contends that the latest date on which the malicious prosecution claim against Progressive could have ripened so as to trigger the statute of limitations was August 6, 1999. Progressive filed a motion to vacate the Kentucky court's May 7, 1999 dismissal, and the Kentucky court issued a subsequent order on August 6, 1999 denying Progressive's motion to vacate. Thus, Renaut argues his malpractice claim against Progressive, which was filed June 28, 2000, was filed within the one-year statute of limitations. We addressed this same argument in our memorandum decision denying Renaut's motion for reconsideration of our prior decision in Nationwide Ins. Enterprises v. Progressive Specialty Ins. Co., supra. As we indicated in that decision, Renaut does not direct us to any case law or other authority to support his proposition that the filing of a motion to vacate tolls the commencement of the statute of limitations for a malicious prosecution claim. To follow Renaut's logic would subject a party to malicious prosecution in perpetuity because any decision or order is subject to a motion to vacate at any time in the future, thereby tolling the commencement of the statute of limitations indefinitely. Although Renaut points out that under Kentucky Rules of Procedure 73.02(e) the motion filed by Progressive operated to stay the appealability of the court's May 7, 1999 decision, he still directs us to no case law indicating that such a motion
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