A “Kangaroo court” is defined as: “…a mock court in which the principles of law and justice are disregarded or perverted” “… a court characterized by irresponsible, unauthorized, or irregular status or procedures” “… judgment” “given outside of legal procedure. . . .” (1.) A [j]udge intimating that a party before her Kangaroo- Court... is a Monkey... in her “…mock court in which the principles of law and justice are disregarded or perverted” her “… court characterized by irresponsible, unauthorized, or irregular status or procedures” and “… judgment” “given outside of legal procedure. . . .”(2.) Thus, before “Defendant…” Wylie “…begins the descent into Alices Wonderland…” (3.) any further, Defendant Wylie asserts that: ...(T)his court…” should- “… not indulge a reincarnation of Judge Roy Bean and his Law West of the Pecos style of adjudication East of the Cuyahoga.(4.) and asserts that “…even if you put a calico dress on it and call it Florence, a pig is still a pig…” (5.) Two-year suspension, one stayed, to a common pleas judge based on a pattern of intemperate conduct including threats of bond revocation if cases proceeded to trial, conduct causing a loss of respect for the judicial system, and misconduct during the disciplinary process.(5.) Bizarre and abusive misconduct by a floundering domestic relations court judge nets a two year suspension with one year stayed. The fact she was not reelected does not call for a lesser sanction.(6.) Municipal court judge failed to maintain complete records of proceedings in his courtroom, was sluggish in implementing mandate of the court of appeals upon reversal, engaged in ex parte communication with a prosecutor, exhibited an anti-defense in criminal cases and more. One year suspension, six months stayed. (7.) Judges failure to respond to allegations contained in the affidavit of disqualification leads to disqualification to avoid the appearance of impropriety. (8.) Judges failure to respond to allegations contained in the affidavit of disqualification leads to disqualification to avoid the appearance of impropriety. (9.) Claims of judicial bias will not be addressed by an appellate court. R.C. 2701.03 provides the exclusive means by which a litigant may address claims of bias and prejudice against a trial court judge. (10.) The filing of an affidavit of prejudice is essential to the litigation of a claim that a judge should have been disqualified. (11.) ...the mere filing of an affidavit of disqualification in the Supreme Court divests a judge of authority to act in a case until the Supreme Court rules upon the affidavit, the only possible exception being to determine a matter which does not affect the substantive rights of the parties. (12.) OHIO TORT OF SPOLIATION: The Supreme Court of Ohio held that a cause of action exists in tort for intentional spoliation against parties to the primary action as well as third parties. The elements required are: “(1) pending or probable litigation involving the plaintiff; (2) knowledge on the part of the defendant that litigation exists or is probable; (3) willful destruction of evidence by defen...dant designed to disrupt plaintiff’s case; (4) disruption of plaintiff’s case; and (5) damages proximately caused by defendant’s acts.”(13.) PUNITIVE DAMAGES: “The Ohio Supreme Court has determined that spoliation of evidence may be the basis of an award of punitive damages in an underlying medical malpractice action.” (14.) SANCTIONS/ADVERSE INFERENCE: “ Courts also recognize discovery sanctions for an adverse party’s failure to provide evidence if the same was willful and prejudice is established.” (15.) Fraud Upon the Court The Ohio Supreme Court has defined the elements of fraud as follows: “The elements of an action in actual fraud are: (a) a representation or, where there is a duty to disclose, concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximately caused by the reliance.” (16.) The Ohio Supreme Court has further acknowledged that: “‘[a]ny fraud connected with the presentation of a case to a court is a fraud upon the court, in a broad sense,’” (17.) However, “‘Fraud upon the court’” is an elusive concept. ***“‘“Fraud upon the court” should, we believe, embrace only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by the officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication. Fraud, inter parties, without more, should not be a fraud upon the court, but redress should be left to a motion under 60(b)(3) or to the independent action.’”(18.) Similarly: ‘Fraud upon the court,’ as used in regard to obtaining relief from judgment must be narrowly construed to embrace only that type of conduct which defiles court itself, or fraud which is perpetrated by officers of the court so as to prevent the judicial system from functioning in the customary manner of deciding the cases presented in an impartial manner,” such as bribery of a judge or jury, fabrication of evidence by counsel, or*** prevention of an opposing party from fairly presenting his case.” (19.) Abuse of Process as Distinguished from Malicious Prosecution ***Please note that, unlike with malicious prosecution, ***the plaintiff does not have to prove that the defendant lacked probable cause in employing the misused court process.*** ***Also, the plaintiff does not have to prove that the overall case ended in his favor.”*** Malicious Prosecution: Wrongful institution of criminal proceedings against the plaintiff that results in damages to the plaintiff. Abuse of Process: Intentional misuse of the judicial process that results in damages to the plaintiff. Ohio Law: “Initially the tort of abuse of process must be distinguished from malicious prosecution. Abuse of process requires a showing that process, once it has been issued, has been perverted to accomplish an improper purpose. This tort is not for the wrongful or malicious institution of process. It is not enough that appellees herein may have had ulterior motives, rather it is incumbent upon appellant to prove that a legitimate process employed for a legitimate purpose was employed in an improper manner.”” See: fn.(20.) below for Citations to Authorities “The elements of a claim for malicious prosecution in Ohio include: (1) malice in instituting or continuing the prosecution, (2) lack of probable cause, and (3) termination of the prosecution in favor of the accused.” See: fn.(21.) below for Citations to Authorities. “The requisite elements for an abuse of process claim are (1) that a legal proceeding has been set in motion in proper form and with probable cause, (2) that the proceeding has been perverted to accomplish an ulterior purpose for which it was not designed and (3) direct damage has resulted from the wrongful use of process.” See: fn.(22.) below for Citations to Authorities. “As recognized by the Ohio Supreme Court, [t]he improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club.” “Simply, abuse of process occurs where someone attempts to achieve through use of the court that which the court is itself powerless to order.” See: fn.- (23.) below for Citations to Authorities. Thus, “Malicious prosecution involves the wrongful institution of criminal proceedings by one private citizen against another private citizen that results in damages to the plaintiff. In order for a cause of action to be viable, the criminal proceedings must be initiated by a charge made to the police or some other public official so as to cause the plaintiff’s arrest. Further, the plaintiff must show that the criminal proceedings concluded with an indication that he was innocent. Acquittal by a jury, dismissal for lack of evidence, or refusal by a grand jury to indict qualifies as a conclusive indication that the plaintiff is innocent. Dismissal on a technicality, a guilty verdict overturned on appeal, or a mistrial, does not qualify. In addition, the plaintiff must demonstrate that the defendant had no probable cause to institute criminal proceedings against the plaintiff. Also, the plaintiff must show that the defendant’s motive was malicious when he instituted the proceedings. As far as damages go, the plaintiff can recover all expenses relating to his defense, as well as his emotional damages, economic damages and, where appropriate, punitive damages. There are two possible defenses to a charge of malicious prosecution. The first is the plaintiff’s actual guilt. If the plaintiff is found guilty of the charges filed against him, or if the case concludes in a manner that does not indicate innocence, the plaintiff cannot recover. The second defense is that of privilege. However, only judges, prosecutors and other law enforcement officials have an absolute privilege from liability. ***Some jurisdictions now recognize a tort of malicious institution of civil proceedings. The elements to this tort are the same as in malicious prosecution and the damages that the plaintiff can recover are the same as well.*** *** See Dutt v. Kremp, 894 P.2d 354 (Nev. 1995).*** ***Please note that, unlike with malicious prosecution, ***the plaintiff does not have to prove that the defendant lacked probable cause in employing the misused court process.*** ***Also, the plaintiff does not have to prove that the overall case ended in his favor.”*** Finally, there is a tort called abuse of process, which establishes liability for intentionally using some court process or another for a purpose other than that for which the process was meant. To prove a prima facie case of abuse of process, the plaintiff must prove the intentional misuse of a court process that resulted in damages to the plaintiff. See Yaklevich v. Kemp, Schaeffer & Rowe Co. L.P.A. 626 N.E.2d 115 (Ohio 1994). ***Yaklevich v. Kemp, Schaeffer & Rowe Company, L.P.A., 68 Ohio St.3d 294 (1994)***: This case presents several questions concerning the tort of abuse of process. Specifically, we will consider (1) whether Ohio recognizes the tort, and if so, the elements of the tort; (2) whether a cause of action for abuse of process is a compulsory counterclaim which must be brought as part of the underlying litigation which gives rise to the claim; and (3) which statute of limitations is applicable to the tort. Because the trial court dismissed Yaklevichs abuse of process claim on statute of limitations grounds, this case has not progressed beyond an examination of the complaint on its face. While our consideration is accordingly limited as well, we are able to reach general conclusions in resolving the issues presented. Although a claim for malicious civil prosecution is not directly at issue, the nature of this case requires us to conduct an examination of certain aspects of a malicious civil prosecution claim in order to compare and contrast that tort with the related, but separate, tort of abuse of process. I ELEMENTS OF ABUSE OF PROCESS Ohio law, like the English common law before it, has long recognized a right to recover in tort for the misuse of civil and criminal actions as a means of causing harm. Trussell v. Gen. Motors Corp. (1990), 53 Ohio St.3d 142, 144, 559 N.E.2d 732, 734, citing Pope v. Pollock (1889), 46 Ohio St. 367, 368-371, 21 N.E. 356, 356-357. In Trussell, this court examined the development of case law in Ohio setting forth the elements of the tort of malicious criminal prosecution, contrasting the elements of that tort with the elements of the tort of malicious civil prosecution. The Trussell court, applying paragraph one of the syllabus of Rogers v. Barbera (1960), 170 Ohio St. 241, 10 O.O.2d 248, 164 N.E.2d 162, observed: The elements of the tort of malicious criminal prosecution are (1) malice in instituting or continuing the prosecution, (2) lack of probable cause, and (3) termination of the prosecution in favor of the accused. Trussell, supra, at syllabus. As was noted by the Trussell court, the elements of the tort of malicious civil prosecution were set forth in Crawford v. Euclid Natl. Bank (1985), 19 Ohio St.3d 135, 139, 19 OBR 341, 344, 483 N.E.2d 1168, 1171: `(1) malicious institution of prior proceedings against the plaintiff by defendant, * * * (2) lack of probable cause for the filing of the prior lawsuit, * * * (3) termination of the prior proceedings in plaintiffs favor, * * * and (4) seizure of plaintiffs person or property during the course of the prior proceedings * * *.1 (Citations omitted.) The tort of malicious prosecution, whether criminal or civil, provides a remedy when a proceeding is instituted without probable cause. However, it does not provide a remedy for a related, yet different situation. The tort action termed abuse of process has developed for 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. Prosser & Keeton, The Law of Torts (5 Ed.1984) 897, Section 121. We accept the proposition that the tort of malicious civil prosecution does not provide a remedy for a situation in which process is used to accomplish an improper ulterior purpose. Such a situation occurs when there is an act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process * * *. Id. at 898. Accordingly, we recognize the tort of abuse of process as a distinct tort in its own right, distinguishable from the tort of malicious civil prosecution. See Clermont Environmental Reclamation Co. v. Hancock (1984), 16 Ohio App.3d 9, 16 OBR 9, 474 N.E.2d 357; Avco Delta Corp. v. Walker (1969), 22 Ohio App.2d 61, 51 O.O.2d 122, 258 N.E.2d 254. Having determined that Ohio recognizes the tort of abuse of process, we now address the elements of the tort. We hold that the three elements of the tort of abuse of process are: (1) that a legal proceeding has been set in motion in proper form and with probable cause; (2) that the proceeding has been perverted to attempt to accomplish an ulterior purpose for which it was not designed; and (3) that direct damage has resulted from the wrongful use of process. Even though the tort of malicious prosecution and the tort of abuse of process have different elements, in some situations the same facts which may constitute an abuse of process may also support an action for malicious prosecution. In that case, a complaint could allege both causes of action, in separate counts. In such a situation, a consideration of whether probable cause was present to bring the underlying litigation would be the key to determining under which tort theory the action should proceed. II ABUSE OF PROCESS AS A COUNTERCLAIM Civ.R. 13(A) provides that, as a general rule, a party must state as a counterclaim any claim he or she has against an opposing party if it arises out of the transaction or occurrence that is the subject matter of the opposing partys claim * * *. We acknowledge that some courts have found that an abuse of process claim is a compulsory counterclaim in the underlying litigation, and that the failure to raise such a claim at that time precludes it from being raised in a subsequent suit. See, e.g., Yost v. Torok (1986), 256 Ga. 92, 344 S.E.2d 414. However, we, along with many other courts which have considered the issue, do not take that view. See, generally, Annotation, Necessity and Permissibility of Raising Claim for Abuse of Process by Reply or Counterclaim in Same Proceeding in Which Abuse Occurred—State Cases (1990), 82 A.L.R.4th 1115. We agree with the proposition that an abuse of process claim may be raised as a permissive counterclaim in the underlying litigation in the appropriate case. See, e.g., Clermont Environmental Reclamation Co., supra, and Avco Delta Corp., supra, both of which implicitly recognized that a claim for abuse of process can legitimately be brought as a counterclaim in the proper case.4 At the same time, we determine that the abuse of process claim need not be raised as a compulsory counterclaim pursuant to Civ.R. 13(A). In a typical case, the abuse of process does not arise out of the transaction or occurrence that is the subject matter of the underlying claim (emphasis added) but instead arises from events that occur during the course of the underlying litigation. Therefore we hold that a claim for abuse of process is not a compulsory counterclaim which must be brought in the underlying litigation. STATUTE OF LIMITATIONS FOR ABUSE OF PROCESS R.C. 2305.11(A) provides that [a]n action for * * * malicious prosecution * * * shall be commenced within one year after the cause of action accrued * * *. Both the trial court and court of appeals in this case found that the one-year limitations period of R.C. 2305.11(A) for an action for malicious prosecution is also applicable to an action for abuse of process. The courts below apparently held that because the two actions are related, the same statute of limitations should apply to both. We do not agree. R.C. 2305.09 provides, in pertinent part: An action for any of the following causes shall be brought within four years after the cause thereof accrued: * * * (D) For an injury to the rights of the plaintiff not arising on contract nor enumerated in sections 2305.10 to 2305.12, inclusive, 2305.14 and 1304.29 of the Revised Code. In determining which statute of limitations should apply, we must consider the language of these statutes; we also must consider whether malicious prosecution and abuse of process are sufficiently similar that both should be controlled by R.C. 2305.11. R.C. 2305.11(A) specifically provides for the application of the one-year statute of limitations for malicious prosecution. It does not necessarily follow that the same one-year statute applies to actions for abuse of process simply because such an action is similar to malicious prosecution. While both malicious prosecution and abuse of process involve the improper use of a separate civil action, the two torts have different elements, and differ in their focus. The key consideration in a malicious civil prosecution action is whether probable cause was present initially to bring the previous suit, whereas the key consideration in an abuse of process action is whether an improper purpose was sought to be achieved by the use of a lawfully brought previous action. Our discussion of the elements of abuse of process in Part I above convinces us that the differences between malicious prosecution and abuse of process are significant. Indeed, we recognized that malicious prosecution and abuse of process are separate and distinct causes of action. Because of the significant differences between the two torts, R.C. 2305.11s specific provision of a one-year period of limitations for an action for malicious prosecution does not also apply to a cause of action for abuse of process. **We hold that an action for abuse of process is governed by the four-year limitations period of R.C. 2305.09. See Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 375, 6 OBR 421, 427, 453 N.E.2d 666, 672 (four-year statute of limitations applicable to an injury not listed in any of the sections referred to in R.C. 2305.09).5** CONCLUSION In applying the conclusions reached in the preceding discussion to the facts of this case, we agree with the trial court and the court of appeals that Yaklevichs complaint on its face sets forth a claim for abuse of process which is capable of overcoming a motion to dismiss for failure to state a claim under Civ.R. 12(B)(6). Further, we agree with the court of appeals determination that Yaklevich was not required to raise his claim for abuse of process as a counterclaim during the underlying proceeding. Finally, although we disagree with the court of appeals on the issue of which statute of limitations applies to a claim for abuse of process, we uphold the ultimate result reached by the court of appeals, which is that Yaklevichs claim was timely brought. For all the foregoing reasons, the judgment of the court of appeals is affirmed as modified and this cause is remanded to the trial court for further proceedings consistent with this opinion. **fn.6 Yaklevich v. Kemp, Schaeffer & Rowe Company, L.P.A., 68 Ohio St.3d 294 (1994) at fn.6: ***“As was mentioned earlier, in some situations the same actions which support an abuse of process claim may also support a claim for malicious prosecution. However, the two torts are not interchangeable; each operates in its own sphere. The presence or absence of probable cause is the determining factor which divides the areas of operation of the two torts. Because of the distinctions we have drawn between the torts of abuse of process and malicious prosecution, and because of the differing elements of each, it will often be necessary to distinguish between the two, particularly in light of our determination that a different statute of limitations applies to each. Where it is not clear whether there was probable cause to bring the claims in the underlying suit, ***one who allegedly is injured by the improper use of a civil action would be wise to allege both malicious prosecution and abuse of process in separate counts of his or her complaint.***[Emphasis Added not supplied in original text] This case has never progressed beyond a consideration of the facial allegations of the complaint. Hence, the limited state of the record before us prevents us from conducting any type of inquiry into whether there was probable cause for the claims brought against Yaklevich by Kemp, Schaeffer & Rowe in the underlying Frecker litigation.”*** Footnotes Citations to Authorities: (1.) People v. Zackery C051431 3rd Dist. Ct. App. California 146 Cal. App. 4th 122; 52 Cal. Rptr. 3d 736; 2006 Cal. App. LEXIS 2054; 2006 Cal. Daily Op. Service 11956; Daily DAR 16843 at 15 citing (Webster’s 11th Collegiate Dict. (2006) p. 681.) (2.) People v. Zackery C051431 3rd Dist. Ct. App. California 146 Cal. App. 4th 122; 52 Cal. Rptr. 3d 736; 2006 Cal. App. LEXIS 2054; 2006 Cal. Daily Op. Service 11956; Daily DAR 16843 at 15 citing (Webster’s 11th Collegiate Dict. (2006) p. 681.); (3.) Bradshaw v. Unity Marine Corp., 147F Supp. 2d 668 (S.D. Tex. 2001); (4.) State v. Bayer (1995), 102 Ohio App. 3d 172, 182; (5.) Bradshaw v. Unity Marine Corp., 147F Supp. 2d 668 (S.D. Tex. 2001); (6.) Disciplinary Counsel v. Squire, 116 Ohio St. 3d 110, 2007-Ohio-5588; (7.) Disciplinary Counsel v. Plough, 126 Ohio St. 3d 167, 2010-Ohio-3298; (8.) In re Disqualification of Corrigan, 94 Ohio St. 3d 1234, 2001-Ohio-4092; (9.) Disciplinary Counsel v. ONeill, 103 Ohio St. 3d 204, 2004-Ohio-4704; (10.) State v. Webb, 173 Ohio App. 3d 547, 2007-Ohio-5670 at ¶22-23; (11.) Williams v. Banner Buick (1989), 60 Ohio App. 3d 128, 133; (12.) State ex rel. Stern v. Mascio (1998), 81 Ohio St. 3d 297. (13.) See: Smith v. Howard Johnson Co., Inc., 67 Ohio St.3d 28, 29, 615 N.E2d 1037 (Ohio 1993). (14.) See: Moskovitz v. Mt. Sinai Med. Ctr., 635 N.E.2d 331 (Ohio App. 1994). (15.) See: Barker v. Wal-Mart Stores, Inc., 2001 WL 1661961, 7 (Ohio Ct. App. Dec. 31, 2001). Ohio uses Jury Instruction § 305.1. Tate v. Adena Regional Med. Ctr., 801 N.E.2d 930 (Ohio App. 2003). (16.) Gaines v. Preterm-Cleveland, Inc. (1987), 33 Ohio St.3d 54, 55, 514 N.E.2d 709, 711. (17.) Coulson v. Coulson (1983), 5 Ohio St.3d 12, 15, 5 OBR 73, 76, 448 N.E.2d 809, 811-812 quoting 11 Wright & Miller, Federal Practice and Procedure (1973) 253, Section 2870. (18.) Coulson v. Coulson (1983), 5 Ohio St.3d at 15, 5 OBR at 76, 468 N.E.2d at 811, quoting 7 Moores Federal Practice (2 Ed.1971) 515, paragraph 60.33;accord Flowers v. Rigdon (1995), 101 Ohio App.3d 172, 175, 655 N.E.2d 235, 236. (19.) Hartford v. Hartford (1977), 53 Ohio App.2d 79, 83-84, 7 O.O.3d 53, 55-56, 371 N.E.2d 591, 595-596. (20.) Kerr v. Mid-Am. Mgt. Corp., 2012-Ohio-2632, 8th District Court of Appeals (Cuyahoga County) Ohio at ¶10 citing Garnett v. Meckler, 8th Dist. No. 56711, 1990 WL 37424 (Mar. 29, 1990) (Internal citations omitted). (21.) Kerr v. Mid-Am. Mgt. Corp., 2012-Ohio-2632, 8th District Court of Appeals (Cuyahoga County) Ohio at ¶6 citing Doyle v. Gauntner, 8th Dist. No. 95443, 2010-Ohio-6366, ¶ 24, citing Criss v. Springfield Twp., 56 Ohio St.3d 82, 84, 564 N.E.2d 440 (1990). (22.)Kerr v. Mid-Am. Mgt. Corp., 2012-Ohio-2632, 8th District Court of Appeals (Cuyahoga County) Ohio at ¶10 citing Doyle v. Gauntner, 8th Dist. No. 95443, 2010-Ohio-6366, at ¶ 23, citing Yaklevich v. Kemp, Schaeffer & Rowe Co., 68 Ohio St.3d 294, 298, 1994-Ohio-503, 626 N.E.2d 115. (23.) Kerr v. Mid-Am. Mgt. Corp., 2012-Ohio-2632, 8th District Court of Appeals (Cuyahoga County) Ohio at ¶11 citing Prosser & Keeton on Torts (5 Ed.1984) 898, Section 121; Robb v. Chagrin Lagoons Yacht Club, Inc., 75 Ohio St.3d 264, 271, 1996-Ohio-189, 662 N.E.2d 9.
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