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Byrd v. Kirby3/22/2005
e action fell under these statutes, and the negligence aspect of the complaint therefore did not state a tenable claim. Summary judgment was properly granted, whether or not the complaint attempted to assert alternative claims for either simple negligence or wanton and willful conduct. Appellants' first assignment of error is accordingly overruled.
{ } Appellants' fourth assignment of error asserts that the trial court erred in granting summary judgment for the City of Columbus on appellants' malicious prosecution and abuse of process claims. In order to state an action for malicious prosecution, a plaintiff must show (1) malice in instituting or maintaining the prosecution; (2) lack of probable cause; and (3) termination of the prosecution in favor of the accused. Ash v. Ash (1995), 72 Ohio St.3d 520, 522. A proceeding is "terminated in favor of the accused" only when its final disposition indicates that the accused is innocent. Id. A prosecution terminated by reason of voluntary settlement or compromise with the accused is indicative of neither guilt nor innocence, and does not constitute a termination in favor of the accused. Id. "It would be unfair to a complaining witness to allow an accused to secure the dismissal of the criminal charges against him or her by consenting to a compromise and then take advantage of the termination by suing the complaining witness." Id. at 523.
{ } Howard Byrd's claim for malicious prosecution is based upon alleged malice in instituting a charge against him of vehicular homicide after his wife's death. Howard Byrd subsequently entered into a plea agreement under which he pled no contest to a charge of failing to yield to an emergency vehicle. He cannot now, therefore, assert that the prosecution was resolved in his favor, and, therefore, does not meet the three elements under Ash for an action for malicious prosecution. The trial court properly granted summary judgment for the City of Columbus on this claim, and appellants' fourth assignment of error is overruled.
{ } In summary, appellants' first, second, third, and fourth assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas granting summary judgment for defendants on all claims is affirmed.
Judgment affirmed.
PETREE and FRENCH, JJ., concur.
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