COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66981 RODGER J. LOCHER : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION MARY BETH BAGLEY, ET AL. : : Defendant-Appellees : DATE OF ANNOUNCEMENT OF DECISION: MARCH 9, 1995 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-238356 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant, Mary Beth Bagley, et al.: THOMAS J. SILK (#0021462) SMITH, CONDENI AND ABEL CO., L.P.A. THE STERLING BUILDING, SUITE 505 1255 EUCLID AVENUE CLEVELAND, OHIO 44115-1807 DAVID R. JONES (#0005283) 5 SOUTH FRANKLIN STREET CHAGRIN FALLS, OH 44022 For Defendant-Appellees, Robert, Linda, and Mary Bagley: THOMAS G. LONGO (#0019110) JOSEPH D. RUSSO (#0055941) 28001 CHAGRIN BLVD., SUITE 300 CLEVELAND, OHIO 44122 For Defendant-Appellee, Russ Bayer: MARK D. EDWARDS (#0034687) 333 LEADER BUILDING 526 SUPERIOR AVENUE N.E. CLEVELAND, OHIO 44114 For Defendant-Appellees, Village of Chagrin Falls, Chagrin Falls Police Dept., Patrolman David Voss and Fire Fighter Bayer: JOSEPH W. DIEMERT, JR. (#0011573) THOMAS M. HANCULAK (#0006985) 1360 S.O.M. CENTER ROAD CLEVELAND, OHIO 44124 - 2 - 2 SPELLACY, P.J.: Plaintiff-appellant Rodger Locher ("appellant") appeals the grant of summary judgment in favor of the defendants in his suit for malicious prosecution and intentional infliction of emotional distress. Appellant assigns the following errors for review: I. THE TRIAL COURT ERRED IN GRANTING THE DEFEN- DANT-APPELLEES' MOTIONS FOR SUMMARY JUDGMENT WHEN SEVERAL QUESTIONS OF FACT EXISTED AS TO THE PLAINTIFF-APPELLANT'S CLAIMS FOR MALICIOUS PROSECUTION. II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN GRANTING THE DEFENDANT-APPELLEES' MOTIONS FOR SUMMARY JUDGMENT THEREBY DISPOSING OF THE PLAINTIFF-APPELLANT'S CLAIMS SOUNDING IN INTENTIONAL INFLICTION OF SEVERE EMOTIONAL DISTRESS. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. On May 14, 1991, appellant was arrested by the Chagrin Falls Police and charged with rape in violation of R.C. 2907.02. The arrest was predicated upon the allegations set forth in a complaint filed by Robert and Linda Bagley and their daughter, Maribeth. The Bagleys averred that on September 1, 1990, appellant had sexual relations with the then twelve-year old Maribeth. Maribeth maintained the encounter took place in appellant's bedroom at his parents' home. Afterwards, the two showered in an upstairs bathroom. The story came to light after Maribeth was sent to a counselor by her parents after her school grades dropped and - 3 - 3 she seemed withdrawn from family and friends. After consulting with their attorney, the Bagleys filed charges against appellant with the Chagrin Falls Police Department. A warrant was issued for appellant's arrest for the crime of rape. Following appellant's arrest, a preliminary hearing was held in the Bedford Municipal Court. The case was bound over to the Grand Jury which endorsed a true bill. Appellant was tried to the bench and acquitted of the charge. During the trial, members of the Chagrin Falls volunteer fire department attended wearing their uniforms. Robert Bagley is a volunteer fireman. Appellant avers that one of the fire fighters, defendant-appellee Ross Bayer., stated appellant would burn when the trial was over. The remark was heard by an acquaintance of appellant's family. Following his acquittal, appellant states he was followed by members of the Chagrin Falls Police Department and given tickets as a means of harassment. Appellant and his family have relocated to another state. Appellant filed a complaint for malicious prosecution and intentional infliction of severe emotional distress against the Bagleys, the Village of Chagrin Falls, the Chagrin Falls Police Department, Patrolman David Voss, and Fire Fighter Ross Bayer. The defendants filed motions for summary judgment which were granted by the trial court. - 4 - 4 II. In his first assignment of error, appellant contends the trial court erred in granting summary judgment for the defendants on his claim of malicious prosecution. Appellant maintains that the continuation of the criminal prosecution against him shows the defendants had an unlawful or evil intent or, at least, that there were material issues of fact in dispute precluding the entry of summary judgment. This case was decided by summary judgment. Civ.R. 56(C) provides that summary judgment is proper if the trial court determines that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Summary judgment is a procedural device designed to terminate litigation and to avoid a formal trial where there is nothing to try. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. Summary judgment is not appropriate where the facts are subject to reason- able dispute when viewed in a light favorable to the nonmoving party. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104. - 5 - 5 The tort of malicious criminal prosecution provides redress for the harm to a plaintiff's dignity and reputation occasioned by the misuse of criminal proceedings. Criss v. Springfield Twp. (1990), 56 Ohio St.3d 82, 84. In order to prevail the plaintiff must prove by a preponderance of the evidence the following elements: (1) malice in instituting or continuing the prosecution, (2) lack of probable cause for undertaking the prosecution, and (3) termination of the prosecution in favor of the accused. Trussell v. General Motors Corp. (1990), 53 Ohio St.3d 142, syllabus. Appellant was found not guilty of rape following a trial on the merits. He has met the third requirement of Trussel for bringing an action sounding in malicious prosecution as the prosecution was terminated in his favor. The Ohio Supreme Court has defined "malice" for purposes of a claim of malicious prosecution as "an improper purpose, or any purpose other than the legitimate interest of bringing an offender to justice." Criss, supra, at 85. In determining whether a criminal prosecution was instituted or continued for an improper purpose, inquiry must be made into the basis for the decision to prosecute. In the absence of evidence showing a basis for the decision, it will appear to have been made without any basis or maliciously. Id., at 85. The absence of probable cause is the gist of an action for malicious prosecution, and malice may be inferred from the absence of probable cause. - 6 - 6 The determination of whether a criminal prosecution was under- taken in the absence of probable cause entails an inquiry into the facts or circumstances actually known to or which were reasonably within the contemplation of the defendant at the time of the insti- gation of criminal proceedings. McFinley v. Bethesda Oak Hosp. (1992), 79 Ohio App.3d 613. A defendant meets the requirement of probable cause if he has a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged. Ash v. Marlow (1851), 20 Ohio 119, paragraph one of the syllabus. There is no requirement that there be enough evidence to ensure a conviction. Deoma v. Shaker Heights (1990), 68 Ohio App.3d 72, 77. The defendant's conduct should be measured in light of the facts and circumstances the defendant knew or reasonably should have known at the time of the filing of the criminal complaint. Portis v. TransOhio Savings Bank (1988), 46 Ohio App.3d 69, 70. The return of an indictment by a grand jury is prima facie evidence of probable cause. When an indictment has been returned by the grand jury, the plaintiff has the burden of producing substantial evidence to establish lack of probable cause. The plaintiff must produce evidence to the effect that the return of the indictment resulted from perjured testimony or that the grand jury proceedings were otherwise significantly irregular. Deoma, supra, at 77. - 7 - 7 Appellant addresses his argument toward the conduct of the Chagrin Falls Police Department in continuing the prosecution. Appellant argues the case was not adequately investigated as the police never investigated the scene of the alleged crime which would have shown significant discrepancies in the house described by Maribeth and his home as it actually appeared. Appellant also states the police never interviewed witnesses such as his parents who would have stated they were home at the time the rape supposedly occurred and the friend appellant avers he was with that evening. Appellant fails to include the actions of any of the other defendants in his argument. Appellant apparently has not appealed the grant of summary judgment in favor of those defendants. They are not a part of the present appeal. Appellant only has presented argument as to the continuation of the prosecution and not the initial decision to prosecute. During his deposition, appellant admitted he did not tell the officers who he was with or what he was doing on the evening in question. He never revealed the identity of any witnesses to the police or suggested his home be searched. Appellant apparently made no exculpatory statements to police. Appellant has provided no evidence the police lacked probable cause in continuing the investigation. The evidence before the Chagrin Falls police included Maribeth's statements and diary, the report of the counselor, the Bagley's complaint, and the statements - 8 - 8 by several girls that appellant had made sexual advances toward them. Further, once the grand jury returned a true bill, the decision to continue appellant's prosecution rested with the prosecutor and not the police department. See Robbins v. Fry (1991), 71 Ohio App.3d 360. Appellant has presented no evidence the continuation of the prosecution lacked probable cause or was carried out with a malicious purpose. Appellant's first assignment of error lacks merit. III. In his second assignment of error, appellant argues the trial court erred in granting summary judgment for the defendants on his intentional infliction of severe emotional distress claim. Again, appellant's argument focuses on the conduct of the Chagrin Falls police and Ross Bayer and none of the other defendants. Appellant states the comment of Ross Bayer that appellant would burn when the trial was concluded placed him and his family in fear for their lives as Bayer is a fire fighter. Appellant also avers the police engaged in behavior following the trial designed to harass and intimidate him. A claim for intentional infliction of severe emotional distress requires proof of the following elements: (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 so - 9 - 9 extreme and outrageous as to go beyond all possible bounds of decency and was such that it can be considered as utterly intolerable in a civilized community, (3) that the actor's actions were the proximate cause of the plaintiff's psychic injury, and (4) that the mental anguish suffered by the plaintiff is serious and of a nature that no reasonable man could be expected to endure it. Ashcroft v. Mt. Sinai Medical Ctr. (1990), 68 Ohio App.3d 359. Serious emotional distress requires an emotional injury which is both severe and debilitating. Paugh v. Hanks (1983), 6 Ohio St.3d 72. Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, used the description of extreme and outrageous conduct found in Restatement of the Law 2d, Torts (1965) 71, Section 46, which stated: "*** It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended 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 damages 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 community. 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!' "The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and - 10 - 10 required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one's feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam. See Magruder, Mental and Emotional Disturbance in the Law of Torts, [490 Harvard Law Review 1033, 1053 (1936). ***" Id., at 374-375. With regard to the conduct of Ross Bayer, appellant alleges Bayer made a comment to another spectator during appellant's trial. That comment was relayed to appellant's family by someone who overheard the remark. Bayer never made any statement directly to either appellant or his family either during or after the trial. There was nothing in Bayer's alleged conduct which was so outrageous that an ordinary person could not endure it. There is no evidence Bayer knew, should have known or intended to cause appellant emotional distress. Appellant presented no evidence supporting his claim Bayer caused him severe emotional distress. Appellant also argues the police purposefully followed him around Chagrin Falls and cited him for traffic violations in an effort to intimidate him. None of the alleged incidents was documented in any fashion. Even accepting appellant's allegations as true, the actions of the police officers do not rise to the level of conduct so extreme and outrageous that it was beyond all possible bounds of decency. Further, appellant presented no evidence of mental anguish so serious that it could not be endured - 11 - 11 by a reasonable man. Appellant sought counseling once by his minister and presented little evidence from which this court could conclude appellant's psychic injury was severe. Appellant's second assignment of error is overruled. Judgment affirmed. - 12 - 12 It is ordered that appellees recover of appellant their 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 Common Pleas Court 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. HARPER, J. AND DAVID T. MATIA, J., CONCUR. LEO M. SPELLACY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement 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 .