David Gray v. Richard Hamilton

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0221n.06
Case No. 20-3981
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Apr 23, 2021
DAVID GRAY, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
RICHARD E. HAMILTON, Individually and ) OHIO
as Administrator of the Estate of Kelly Motta, )
)
Defendant-Appellee. )
BEFORE: GIBBONS, COOK, and LARSEN, Circuit Judges.
COOK, Circuit Judge. This dispute started when David Gray questioned the handling by
Richard Hamilton, the administrator of his ex-wife’s estate, of a $6000 monthly alimony check
deposited the day Gray’s ex-wife died. It worsened when Hamilton accused Gray of concealing
assets from his ex-wife’s estate. After much procedural maneuvering, the parties’ various filings
presented the district court with a sole dispositive question: whether under Ohio law the special
probate action codified at Ohio Revised Code §§ 2109.50–2109.52 is a criminal proceeding that
can support a malicious criminal prosecution action. The district court answered no. We AFFIRM.
I.
The single issue faced by the district court followed an acrimonious series of conflicts that
ultimately resulted in Hamilton’s filing a proceeding under Ohio Revised Code § 2109.50 against
Case No. 20-3981, Gray v. Hamilton
Gray. Ohio Revised Code § 2109.50, a procedurally unusual statute, allows for the expeditious
discovery of assets concealed or embezzled from an estate. Its procedure permits filing a complaint
in probate court alleging embezzlement. As the statute reads, the probate court then shall compel
the suspect to appear for examination under oath. Ohio Rev. Code § 2109.50. From there, the
court makes a finding of guilty or not guilty. Id. at § 2109.52. A guilty finding prompts judgment
in favor of the estate’s fiduciary for the amount concealed or embezzled, plus a ten percent penalty
and costs. Id. Importantly, that guilty finding carries no risk of a jail sentence. See id. But a
suspect who fails to appear or answer examination faces confinement until they “submit[] to the
court’s order.” Id. at § 2109.51; see also State v. Garretson, No. CA98-03-023, 1998 WL 873004,
at *2 (Ohio Ct. App. Dec. 7, 1998).
Ohio courts describe the action as “a special proceeding of a summary, inquisitorial
character whose purpose is to facilitate the administration of estates by summarily retrieving assets
that rightfully belong there.” Goldberg v. Maloney, 855 N.E.2d 856, 861 (Ohio 2006). It acts
neither as “a substitute for a civil action to recover a judgment for money,” State ex rel. Goldberg
v. Mahoning Cnty. Prob. Ct., 753 N.E.2d 192, 198 (Ohio 2001) (emphasis omitted), nor as a bar
for a subsequent criminal theft proceeding, see State v. Harmon, 72 N.E.3d 704, 715 (Ohio Ct.
App. 2017). Due to its unusual nature, including the finding of guilty or not guilty, courts
characterize it as “quasi-criminal.” See, e.g., Goldberg, 753 N.E.2d at 198.
Despite the use of “criminal,” a § 2109.50 proceeding “has historically been considered a
civil action.” Harmon, 72 N.E.3d at 715; see also In re Guardianship of Lindsey, No. CA2015-
01-004, 2015 WL 5934635, at *3–4 (Ohio Ct. App. 2015) (referring to the § 2109.50 proceeding
as a “civil concealment action”). Given its “civil . . . character,” the civil rules of procedure apply.
Wozniak v. Wozniak, 629 N.E.2d 500, 507 (Ohio Ct. App. 1993); see also Est. of DeChellis v.
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Case No. 20-3981, Gray v. Hamilton
DeChellis, 140 N.E.3d 1193, 1200 (Ohio Ct. App. 2019) (“While R.C. 2109.50 is a quasi-criminal
special statutory proceeding, this type of action is controlled by the laws governing civil
proceedings in the probate court.”); In re Est. of Popp, 641 N.E.2d 739, 744 (Ohio Ct. App. 1994)
(same). Courts also find that the monetary penalty—ten percent of the concealed assets—“is civil
in nature.” Harmon, 72 N.E.3d at 715.
II.
After Hamilton filed his § 2109.50 complaint against Gray, he then voluntarily dismissed
it. Gray then sued Hamilton, individually and as administrator of the estate, for malicious
prosecution, complaining that Hamilton used § 2109.50 vindictively. On Hamilton’s motion, the
district court dismissed Gray’s complaint under Rule 12(b)(6) for failure to state a claim. Fed. R.
Civ. P. 12(b)(6).
We review that decision de novo. Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601
F.3d 505, 512 (6th Cir. 2010).
In Ohio there are two types of malicious prosecution. Malicious criminal prosecution
requires a showing of: “(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 v. Gen. Motors
Corp., 559 N.E.2d 732, 736 (Ohio 1990). This differs from the tort of malicious civil prosecution
in that the civil version also requires showing prejudgment seizure of the plaintiff’s person or
property. Robb v. Chagrin Lagoons Yacht Club, Inc., 662 N.E.2d 9, 13–14 (Ohio 1996).
While Ohio courts wrestled over the years with whether to retain a prejudgment seizure
element for the two torts, they ultimately concluded that the harm to reputation from an unjustified
arrest before one has an opportunity to defend justified dispensing with the seizure requirement in
the criminal context. See, e.g., id. But Ohio courts determined that requiring a seizure of property
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Case No. 20-3981, Gray v. Hamilton
to recover for civil malicious prosecution was justified by the need to curtail unwarranted claims.
Id. Consideration of the many avenues available under the Ohio civil rules to forestall the harm
supported that conclusion. Id. at 14.
The district court dismissed Gray’s action because, although Gray’s complaint and briefing
repeatedly labeled the probate proceeding that Hamilton brought as criminal, Ohio courts have
repeatedly confirmed that § 2109.50 “has historically been considered a civil action.” Harmon,
72 N.E.3d at 715. And given its civil underpinnings, Gray cannot maintain this action in the
absence of a prejudgment seizure. See also Restatement (Second) of Torts § 654 cmt. a (1977)
(explaining that “‘quasi-criminal’ proceedings, in which the government seeks some remedy
against the accused that is not intended as a punishment,” cannot give rise to a malicious criminal
prosecution claim); Froehlich v. Ohio Dep’t of Mental Health, 871 N.E.2d 1159, 1162 (Ohio 2007)
(utilizing the Restatement to define the scope of malicious criminal prosecution); Ash v. Ash, 651
N.E.2d 945, 947 (Ohio 1995) (same); Trussell, 559 N.E.2d at 735–36 (same). Because Gray did
not plead a prejudgment seizure, the district court properly dismissed his malicious civil
prosecution claim.1
III.
We AFFIRM.
1
The district court also dismissed two conversion claims involving $4928.57 for lack of
jurisdiction. Gray does not appeal that decision.
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