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Kurinsky v. Natl. Cable Television Assn.11/14/1994
the FBI, used process. Merely providing information in the capacity of an expert witness, however, does not constitute the use of process. To so hold not only contradicts reason but also undermines the traditional role that expert witnesses play in tort litigation. By its opinion in the case sub judice, the majority would irresponsibly grant a cause of action for abuse of process to every unsuccessful, disgruntled litigant who seeks to sue the opposing party's expert witnesses armed with only contradictory expert authority and a claim that the expert witnesses provided false testimony.
Therefore, since Kurinsky failed to establish that appellees actually used process, he failed to demonstrate the first element necessary to the establishment of a prima facie case of abuse of process, viz., that appellees set in motion a legal proceeding in proper form and with probable cause. Yaklevich, supra; Cadillac, supra; Clermont, supra; Avco, supra. Appellees, therefore, were entitled to summary judgment as a matter of law.
The majority opinion, nevertheless, concludes that a genuine issue of material fact remained to be litigated, viz., whether or not appellees did the following:
" ttempted to pervert the legal process with the ulterior motive of disrupting and ruining the successful business of a competitor." (Emphasis added.)
The majority concludes the foregoing issue implicates the second element which must be demonstrated in order to establish a puma facie case of abuse of process. It is noted Kurinsky maintained throughout the proceedings thasNCTA was a competitor of Arcade Sound and that appellees' testimony to the FBI constituted an act intentionally designed to unlawfully stifle competition between NCTA and Arcade Sound.
In Wing v. Anchor Media, Ltd. of Texas (1991) 59 Ohio St.3d 108, 570 N.E.2d 1095, the Ohio Supreme Court held that a summary judgment motion forces the nonmoving party to produce timely filed evidence in support of issues for which that party bears the burden of production at trial. Furthermore, in Shaw v. J. Pollock & Co. (1992), 82 Ohio App.3d 656, 612 N.E.2d 1295, the court stated the non-movant must present specific facts and may not rely upon mere unsupported allegations.
In the case sub judice, Kurinsky failed to comply with Wing, supra, and with Shaw, supra, since he provided neither evidence nor specific facts demonstrating that NCTA was a competitor of Arcade Sound. On the contrary, NCTA was a national trade organization the goals of which appear to have included the promotion of fair competition and the prevention of cable piracy. Kurinsky's allegation that NCTA, as a competitor of Arcade Sound, engaged in unfair competition with Arcade Sound was, therefore, a wild, conclusory statement. Since Kurinsky's allegation was unsupported by evidence, Kurinsky could not withstand a summary judgment motion.
In addition, even if Allen's testimony on behalf of NCTA to the FBI, in fact, constituted unfair competition, such unfair competition was irrelevant to determination of the case sub judice since Kurinsky failed to demonstrate appellees actually used process against Kurinsky. The majority finds the issue of whether or not appellees attempted to pervert the legal process with the ulterior motive of disrupting and ruining the successful business of a competitor to be a genuine issue of material fact. However, Yaklevich, supra, does not require a demonstration that appellees attempted to pervert the proceeding. On the contrary, Yaklevich, supra, requires a demonstration that the proceeding was, in fact, perverted by appellees in an attempt to accomplish an ulterior purpose. The foregoing issue, thus, is irre
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