COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61018 THE RESOLUTION TRUST CORPORATION, : as Receiver of Broadview Federal : Savings Bank : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION MIRIAM E. LEVITT, Administratrix : of Estate of Morris M. Levitt : : and : : HERSCHEL A. LEVITT : : Defendant-appellants : : : DATE OF ANNOUNCEMENT OF DECISION : ______JULY 30, 1992____ CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 171871 JUDGMENT : AFFIRM. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: ROBERT J. FOGARTY ANDREW S. POLLIS Hahn, Loeser & Parks 800 National City E. 6th Bldg. Cleveland, Ohio 44114-2262 For defendant-appellants: JAMES A. LEVIN 3010 Terminal Tower Cleveland, Ohio 44113 - 1 - ANN McMANAMON, J.: Defendants, Miriam E. Levitt, surviving spouse and administratrix of the estate of Morris M. Levitt, and her son, Herschel A. Levitt, appeal the trial court's dismissal of their counterclaim under Civ. R. 12(B)(6). Upon review, we affirm the trial court's ruling. Plaintiff, The Resolution Trust Corporation ("RTC"), acting as receiver for Broadview Federal Savings Bank, filed a complaint on June 23, 1989 alleging fraud against defendants. The com- plaint sought to set aside a transfer of real property from Morris Levitt to his son Herschel as void and fraudulent. The defendants answered and counterclaimed in pertinent part as follows: 12. The accusation of fraud against Herschel A. Levitt was made maliciously, willfully, and with ill will and malice. The Plaintiff intended to injure Defendant's character and reputation by the accusation of fraud. 13. The accusation of fraud was made with intent to harm the Defendant's professional reputation as a contractor and builder and has caused loss of work from Herschel A. Levitt's building business. 14. The Plaintiff's accusations of fraud, unjustly made, were made maliciously with intent to make Herschel A. Levitt concede financial concessions in the I 480/Tiedeman Road property wherein he has owned a benefi- cial interest since 1982. 15. As a result of the Plaintiff's actions, Herschel A. Levitt has suffered mental an- guish, stress, and humiliation and has been impaired in his ability to function as a building contractor. * * * - 2 - 19. The Administratrix alleges she has suf- fered by the malicious and willful accusa- tions made by the Plaintiff. It has caused her phy-sical distress and humiliation. On February 27, 1990, RTC replied to the counterclaim rais- ing as a defense the defendants' failure to state a valid claim for relief. Thereafter, RTC moved to dismiss the counterclaim pursuant to Civ. R. 12(B)(6) and for sanctions. Defendants made no responsive pleading. The court granted RTC's motion to dismiss on October 16, 1990, but denied the request for sanctions. The court found the dismissal of defendants' counterclaim to be a final appealable order and held that there was "no just reason for delay" pursuant to Civ. R. 54(B). It is from this order that defendants timely appeal. In their sole assignment of error, defendants contend, in three arguments, that the court erred in granting RTC's motion to dismiss. They first posit that RTC's motion was untimely under Civ. R. 12(B)(6); second, they argue that the motion to dismiss improperly contained evidentiary materials outside of the record; and finally, the defendants claim they have stated a valid cause of action for "abuse of process of malicious prosecution" and intentional infliction of emotional distress. Civ. R. 12(B) provides in part: Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, - 3 - coun-terclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: * * * (6) failure to state a claim upon which relief can be granted. This rule must be read in conjunction with section (H) of Civ. R. 12, which states in part: (H) Waiver of Defenses and Objections. * * * (2) A defense of failure to state a claim upon which relief can be granted, *** may be made in any pleading per- mitted or ordered under Rule 7(A), or by motion for judgment on the pleadings, or at the trial on the merits. Therefore, a party may raise the defense of failure to state a claim upon which relief can be granted at any time up to and including trial. See Miller v. Cudahy Co. (D. Kan. 1987), 656 F. Supp. 950; Steele v. Stephan (D. Kan. 1986), 633 F. Supp. 950; Gonzales v. Union Carbide Corp. (N.D. Ind. 1983), 580 F. Supp. 249. In RTC's answer to the counterclaim, it asserted, as a sec- ond affirmative defense, that the counterclaim failed to state a claim upon which relief could be granted. The defense was timely asserted and thereafter renewed in RTC's motion to dismiss. Defendants' contention that RTC's motion was improper since - 4 - it contained evidentiary materials outside the record is also without merit. It is well established that in reviewing a Civ. R. 12(B)(6) motion, only statements contained in the pleadings can be consi- dered and matters outside the pleadings are only to be considered if the court converts the motion into one for summary judgment. Wilson v. Patton (1988), 49 Ohio App. 3d 150, 155; South Euclid Fraternal Order of Police v. D'Amico (1982), 4 Ohio App. 3d 15, 16-17. A review of RTC's brief in support of its motion for dis- missal of the counterclaim and for sanctions shows that it in- cluded no evidentiary materials outside the record. The only materials to support dismissal were contained in defendants' answer and counterclaim. We note that RTC relied on evidentiary materials beyond the pleadings in support of its request for sanctions under Civ. R. 11. The matter of sanctions was separate and apart from RTC's brief in support of its motion to dismiss, and, therefore, its motion to dismiss was proper. Finally, defendants argue they made out a claim for relief for "abuse of process of malicious prosecution" and intentional infliction of emotional distress. A court may not dismiss a complaint for failure to state a claim upon which relief may be granted unless it appears "beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery." O'Brien v. University Communi- - 5 - ty Tenants Union (1975), 42 Ohio St. 2d 242, syllabus. See, also, Zuber v. Ohio Dept. of Insurance (1986), 34 Ohio App. 3d 42, 44. When considering a Civ. R. 12(B)(6) motion, the allega- tions in the complaint must be taken as true. Phung v. Waste Management, Inc. (1986), 23 Ohio St. 3d 100, 102. As with a complaint, a counterclaim may be summarily dismissed where a failure to state a claim for which relief can be granted is de- termined on the pleadings. Stanley Kalasunas, et al v. Charles Brydle (Sep. 22, 1983), Cuyahoga App. No. 46374, unreported. In order to state a cause of action for malicious prosecu- tion, four elements must be alleged by the plaintiff: 1) mali- cious 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 plaintiff's favor; and 4) seizure of plaintiff's person or property during the course of the prior proceedings. Crawford v. Euclid National Bank (1985), 19 Ohio St. 3d 135, 139. See, also, Trussell v. General Motors Corp. (1990), 53 Ohio St. 3d 142, 146. Bearing in mind that Civ. R. 8(A)(1) requires a "short and plain statement of the claim showing that the pleader is entitled to relief," the defendants' counterclaim must be analyzed with the elements of the tort of malicious prosecution in mind. Bor- der City Savings & Loan Assn. v. Moan (1984), 15 Ohio St. 3d 65. Both defendants have failed to allege the termination of any prior proceeding in their favor or the seizure of their person or - 6 - property during the course of those prior proceedings. Time spent in defending against a claim does not constitute a seizure of property. Pollock v. Kanter (July 12, 1990), Cuyahoga App. No. 57212, unreported at 11, citing Perry v. Ansham (1956), 101 Ohio App. 285, 287. Therefore, since defendants have failed to allege an essential element, they have failed to state a claim for relief for malicious prosecution. In order to make out a cause of action for intentional in- fliction of emotional distress, four elements must be proved: *** 1) that the actor either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to the plaintiff; 2) that the actor's conduct was extreme and outrageous, that it went beyond all possible bounds of decency and that it can be consi- dered as utterly intolerable in a civilized community; 3) that the actor's actions were the proximate cause of the plaintiff's psy- chic injury; and 4) that the mental anguish suffered by plaintiff is serious and of a nature that no reasonable person could be expected to endure it. Pyle v. Pyle (1983), 11 Ohio App. 3d 31, paragraph two of sylla- bus. See, also, Bowman v. Parma Bd. of Educ. (1988), 44 Ohio App. 3d 169, 175. The Ohio Supreme Court has held that, in order to state a claim alleging the intentional infliction of emotional distress, "the emotional distress alleged must be serious." Yeager v. Local Union 20 (1983), 6 Ohio St. 3d 369, 374. The court cited with approval comment d to section 46 of the Restatement of the Law 2d, Torts (1965) 71, in defining "extreme and outrageous": - 7 - *** It has not been enough that the defen- dant has acted with an intent which is tor- tious or even criminal, or that he has in- tended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive dam- ages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized commu- nity. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!" Id. at 73. A review of defendants' counterclaim displays no claim that the institution of the action by RTC was "extreme and outra- geous." The counterclaim alleged: 15. As a result of the Plaintiff's actions, Herschel A. Levitt has suffered mental anguish, stress, and humiliation and has been impaired in his ability to function as a building contractor. * * * 19. The Administratrix alleges she has suf- fered by the malicious and willful accusa- tions made by the Plaintiff. It has caused her phy-sical distress and humiliation. These allegations do not delineate any conduct on the part of RTC which rationally could be considered extreme or outrageous so as to support an action for emotional distress. See Singh v. Singh (June 4, 1992), Cuyahoga App. No. 60675, unreported at 8. We further note that the counterclaim does not allege the defen- - 8 - dants suffered serious emotional distress as a result of RTC's action. For these reasons, we conclude, as a matter of law, that the trial court properly granted RTC's motion to dismiss for failure to state a claim. The first assignment of error is overruled, and the judgment of the trial court is affirmed. Judgment affirmed. - 9 - It is ordered that appellee recover of appellants its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J. PATTON, J. CONCUR JUDGE ANN McMANAMON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .