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Kurinsky v. Natl. Cable Television Assn.11/14/1994
JAMES D. SWEENEY, Presiding Judge.
Plaintiff-appellant Andrew C. Kurinsky, Jr., d.b.a. Arcade Sound, appeals the trial court's decision granting the motion for summary judgment filed by thsdefendants-appellees National Cable Television Association ("NCTA") and James S. Allen. Allen was the Director of the Office of Cable Signal Theft of the NCTA. This suit was originally filed on August 29, 1991, under the theories of malicious prosecution and abuse of process. Pursuant to Civ.R. 41(A)(1), the case was dismissed on February 24, 1992. The appellant refiled the action on February 18, 1993, asserting the theory of abuse of process. It is from the final order on the second action that the appellant appeals.
On February 19, 1993, the appellant filed an amended complaint that included an affidavit inadvertently omitted from the original complaint. The complaint alleges that the appellant is in the business of manufacturing, recycling, repairing, and distributing cable television equipment. Appellee NCTA is an unincorporated trade association that represents and acts in the interest of multi-system cable television operators and major cable equipment manufacturers throughout the United States.
The complaint asserts that the appellant sells equipment for use in cable television systems to distributors. The distributors in turn offer the equipment to cable television subscribers for use as replacements for primary equipment or as secondary equipment on cable television systems. In effect, the appellant is in direct competition with the multi-system operators who are represented by appellee NCTA.
The complaint alleges that on March 27, 1989, Special Agent Ramsak of the Federal Bureau of Investigation sought to obtain a search warrant for the appellant's premises from a magistrate of the United States District Court for the Northern District of Ohio. Towards this end, Ramsak included in his affidavit a statement made to him by James Allen. The appellant asserts that the statement made by Allen was a materially false statement, without which the magistrate would not have issued the search warrant. The appellant states that at the time Allen made the statement to Ramsak he knew the statement was false.
The search warrant was issued and executed on March 29, 1989. A substantial portion of the appellant's inventory, equipment, and business records were seized. Following the seizure, the appellant's ability to operate his business was greatly impaired. In addition, the NCTA obtained possession of the business records and disseminated the information to its members. The information was used by the members to harm the appellant's business operations. The appellant alleges that the appellee sought to eliminate competition for its members, and that as a result he suffered embarrassment, humiliation, and emotional distress; that he was deprived of inventory, equipment, and business records for over a year, and that a substantial portion was returned in a damaged condition; that othesproperty was not returned; and that he suffered and continues to suffer a substantial economic loss.
The appellees filed a motion to dismiss or for summary judgment. The appellees first asserted that the statute of limitations for abuse of process is one year and that the suit was untimely filed; second, the appellee asserted that the appellant failed to establish the elements of abuse of process. Attached to the motion were the initial complaint, the first motion to dismiss/summary judgment, the voluntary dismissal of the first complaint, various case law and statutes, a letter from the FBI to James Allen, thanking him for his cooperation in the investig
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