COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67458 ROBERT O. GARNETT : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION PUBLIC STORAGE, ET AL. : : Defendant-appellee : : DATE OF ANNOUNCEMENT : OF DECISION : JUNE 8, 1995 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 256725 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: Robert O. Garnett Irene Keyse Walker Robert O. Garnett Co., L.P.A. Sonali B. Wilson 20475 Farnsleigh Road, #306 Arter & Hadden Shaker Heights, Ohio 44122 1100 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115-1475 -2- HARPER, J.: Plaintiff-appellant, Robert O. Garnett, appeals from the granting of summary judgment in favor of defendants-appellees, Public Storage Management, Inc., Carol Jones and James Russell (collectively "Public"), by the Court of Common Pleas of Cuyahoga County. Appellant challenges the grant of summary judgment and other pretrial rulings by the trial court. A careful review of the record compels affirmance. As gleaned from the evidentiary materials submitted to the trial court, appellant and Public entered into a rental agreement on February 6, 1992 ("the agreement"). Pursuant to the agreement, appellant leased storage space at Public's facility located at 22800 Miles Road, Bedford Heights, Ohio. The term of the agreement was a month-to-month occupancy, and appellant agreed to a monthly rental fee of $71; the monthly rent subsequently increased to $73. If appellant failed to remit the rent by the tenth day of the month, he was obligated to pay a late fee of $10. Appellant stored a variety of personal belongings in the rental space, Space No. B058. He initially stored household goods and appliances with an estimated fair market value, as of February 6, 1992, of $4,000 to $5,000. Appellant, an attorney, commenced storing business records in the space within the first six months of the agreement's existence. The business records were comprised primarily of his inactive files from his practice, appointment calendars and telephone logs. Current files were not stored at the -3- facility. Appellant also removed some items from the space during this time period. The agreement also contained a provision, paragraph five, regarding appellant's use of the premises. Appellant first agreed that under no circumstances would the aggregate value of all of the personal property stored in the facility exceed $5,000. Second, appellant acknowledged by initialing the agreement in the appropriate space that the storage space was not suitable for irreplaceable property such as books, writings, objects which have no immediate resale market value, or objects which have special or emotional value to him. Appellant further initialed paragraph seven of the agreement. He thereby acknowledged that Public's total responsibility for any loss from any cause whatsoever would not exceed a total of $5,000. Paragraph nine outlined the owner's right to a lien on appellant's property stored in the facility. Public had the right to terminate appellant's use or access to the premises if rent or other charges due under the agreement were delinquent fourteen days past the due date. Public thereafter had the right to sell, destroy or otherwise dispose of appellant's property in accordance with R.C. Chapter 5322. Appellant recognized by signing the agreement that Public could take full control and possession of the storage space and any property contained therein if he defaulted in any manner under the agreement. Pursuant to paragraph fourteen, appellant was required to grant Public access to the storage space upon three days notice. -4- However, if appellant defaulted on any of his obligations under the agreement, Public "*** shall have the right to remove Occupant's lock and enter the Premises for purpose of examining the Premises or the contents thereof ***." The agreement moreover did not limit Public's right to pursue other remedies once it decided to pursue a specific remedy. Paragraph nineteen of the agreement provided that any written notices or demands permitted under the agreement, except as otherwise expressly stated, may be served personally on appellant or by first class mail. Service was complete upon either the date of personal delivery or deposit with the postal service. Pertaining to liability for the loss of appellant's property, the face of the agreement contained the following cautionary language at paragraph six: "ALL PROPERTY IS STORED BY OCCUPANT AT OCCUPANT'S SOLE RISK. INSURANCE IS OCCUPANT'S SOLE RESPONSIBIL- ITY." Appellant thus personally assumed all risk of loss if he did not obtain insurance coverage for the full value of his property. Appellant executed an Addendum to Lease/Rental Agreement/ Application for Insurance in compliance with paragraph six, obtaining insurance available through Public for his personal property. Appellant chose to pay a monthly premium of $5 in exchange for $2,000 worth of insurance notwithstanding that he estimated the fair market value of the stored goods to be between $4,000 and $5,000. He explained in his deposition that he selected the $2,000 coverage because it possessed the lowest premium, and he intended to sell his belongings. Appellant moreover conceded -5- during deposition that if he did not pay the monthly insurance premium, he would be in default of the agreement. In fact, appellant ceased paying the premiums because he wanted to sell the property. Finally, appellant furnished the name of Gerald Garnett, his brother, as the alternate under the agreement. Gerald Garnett thus had authorized access to Space No. B058 and was to receive copies of important notices relative to the space. Public forwarded a "20-day letter" to appellant on March 16, 1993 by first-class mail, informing him that his rent was late and he owed a $10 late fee. Appellant was warned that if he did not bring his account current, his property would be subject to a public lien sale. This notice was mailed in accordance with paragraph nineteen of the agreement, and service was complete upon deposit with the postal service. Appellant remitted a check in the amount of $86 to Public on March 19, 1993. The $86 was meant to extinguish the March 1993 rent, the late fee of $10, and the insurance premium. The check was returned unpaid from the bank due to insufficient funds. Public thus charged $15 to appellant's account as an overdraft charge. Appellant admitted during deposition that he received repeated telephone calls from Public when his account fell into default. He also was aware that the account from which the $86 check was drawn did not contain sufficient funds. His last payment to Public was -6- in the late spring of 1993 because it was then that he learned his account was in "lien status." Public sent a "Final Notice" to appellant on or about April 1, 1993. The letter advised appellant that Public would initiate legal process to sell his property if appellant did not remit $219 within five days. Appellant's affidavit which he filed with his brief in opposition to Public's motion for summary judgment discloses that he received this notice: "Defendants Ex. 4, dated April 1, 1993 must have first been sent out by certified mail and returned as unclaimed, because I did not receive my regular mail copy until April 27, 1993." Appellant, in his affidavit, admitted receipt of the written notice on April 27, 1993, and moreover that the notice stated Public would commence with legal proceedings, i.e., selling appellant's personal property, terminating the lease, and requiring appellant to vacate the premises. A Lien Sale Notice was sent to appellant on or about April 8, 1993. This notice repeated that appellant's account was past due in the amount of $219, and his property would be sold if he failed to make the payment. The notice also provided the following information: an itemized accounting of appellant's account; appellant could redeem his personal property up until the time of the scheduled sale, June 24, 1993, if he paid the current balance on his account. Public forwarded the same notice to Gerald Garnett, but both notices which were sent by certified mail were returned "unclaimed." -7- On May 11, 1993, Public posted a Partial Payment Receipt and Notice to appellant via certified mail, but it was returned with an "unclaimed" stamp. Earlier attempts to contact appellant via telephone were unsuccessful. Public credited appellant's account with a remitted $200, but it related that appellant still owed the sum of $102, said sum including the May 1993 rent and late fee. The notice furthermore informed appellant that the partial payment did not cure any still existing defaults, and thus Public still retained the right to sell appellant's personal property. Appellant was "locked out" of the storage space on May 13, 1993 when Public's District Manager, Tim Swan, inventoried the contents for the scheduled lien sale. The inventory took place without Swan's entrance into the space, i.e., it was conducted from the doorway. Additionally, Swan did not disturb any of the closed containers or boxes. The space was locked upon the completion of the inventory. Appellant sent a letter to Public on June 19, 1993, enclosing a $100 payment and requesting a written summary of his account. Appellant also questioned a $50 fee which was charged to his account. Public sent a Notice of Lien and Sale to appellant via certified mail on July 9, 1993, but it was returned with an "unclaimed" stamp. Public sent the same notice to the alternate listed in the agreement for notice purposes, Gerald Garnett, and this notice was not returned by the U.S. Postal Office. The notice advised appellant that his current balance was $158, consisting of -8- $44 for June 1993 rent; $73 for July 1993 rent; and $41 in late charges. The notice stated that unless the balance was paid within thirty days, appellant's property would be sold at public auction scheduled for September 9, 1993 at 10:00 a.m. Additional notices were mailed to appellant and Gerald Garnett in August 1993 regarding the current status of appellant's account. The notices set October 28, 1993, 10:00 a.m. as the date and time of sale of appellant's belongings; designated $241 as appellant's current balance; and informed appellant he could redeem his belongings prior to the time of sale with the satisfaction of his balance. Gerald Garnett's notice was returned "unclaimed," but appellant's notice was not so returned to Public. Public sent a letter to appellant by certified mail on August 20, 1993 as well in which Swan waived $31 in late fees. Telephone calls to appellant were unsuccessful. The letter further contained an itemization of appellant's current balance: $44, June rent; $73, July rent; $73, August rent; and $30, three months' worth of late fees. Appellant's balance as of August 20, 1993 was $220. The letter was not returned to Public. Appellant acknowledged that he spoke with Public's agents on the telephone sometime in early August 1993. Either defendant- appellee, Carol Jones, Public's Property Manager, or defendant- appellee, Jim Russell, Public's Auditor and Delinquent Tenant Manager, communicated that appellant's lock would be removed from his storage space, and Public would exercise its lien rights and sell his property. -9- Appellant filed his complaint in the trial court on August 16, 1993, enraged that Public removed the lock from his space. In addition to demanding an accounting of the fees owed to Public, appellant set forth the following claims for relief: breach of contract; conversion; fraud and deceit; invasion of privacy; intentional infliction of emotional distress. Public filed a counterclaim, primarily seeking judgment for the $336 in rent and late fees which accrued since appellant's default. Appellant next filed a "Motion for Pretrial Order Establishing the Following Findings of Fact and Conclusions of Law" on February 18, 1994 ("first pretrial motion"). The trial court conducted a scheduled settlement conference on March 14, 1994, after which it denied appellant's motion. The court advised appellant in its journal entry that the proper vehicle for his assertions was a motion for summary judgment. Moreover, since appellant requested a jury trial, the trial court was without authority to render findings of fact as requested by him. Appellant nonetheless filed a "Second Motion for Pretrial Order Establishing Certain Facts" on April 18, 1994 ("second pretrial motion"). He also filed two other motions, a "Motion for Court Participation in Determination of Request for Stipulations" ("the stipulation motion"), and a "Memorandum Brief in Support for Partial Summary Judgment on the Issue of Liability" ("the partial summary judgment motion"). Public filed a motion for summary judgment on April 14, 1994. Public also moved, on April 21, 1994, to strike appellant's second -10- pretrial motion, the stipulation motion and the partial summary judgment motion. Appellant filed his brief in opposition to Public's motion for summary judgment on May 19, 1994. The trial court granted Public's motion to strike in part on May 18, 1994, striking appellant's second pretrial motion and the stipulation motion from the record. Though the court did not strike appellant's partial summary judgment motion, it denied it on the same date. The trial court subsequently granted summary judgment on May 27, 1994 in favor of Public on appellant's complaint and its counterclaim. In a nunc pro tunc entry of February 23, 1995, the trial court entered judgment in favor of Public in the amount of $834. This appeal followed with appellant claiming as error: ASSIGNMENT OF ERROR NO. 1 THERE WERE NUMEROUS ISSUES OF MATERIAL FACT THAT SHOULD HAVE RECLUDED [sic] THE GRANTING OF SUMMARY JUDGMENT INCLUDING THOSE LISTED BELOW ASSIGNMENT OF ERROR NO. 2 THE TRIAL COURT ABUSED HIS DISCRETION BY PROPOSING A TOTALLY UNFAIR AT THE A [sic] SETTLEMENT AT THE PRETRIAL THAT ROBBED THE CASE OF ANY LIKELIHOOD OF BEING SETTLED ASSIGNMENT OF ERROR NO. 3 THE TRIAL JUDGE ERRED IN OVERRULING APPELLANT'S MOTION FOR A PARTIAL SUMMARY JUDGMENT ASSIGNMENT OF ERROR NO. 4 THE TRIAL JUDGE ERRED IN DENYING APPELLANT'S MOTIONS THAT CERTAIN FACTS BE ESTABLISHED -11- ASSIGNMENT OF ERROR NO. 5 THE TRIAL JUDGE ERRED IN OVERRULING APPELLANT'S MOTION FOR THE COURT'S PARTICIPATION IN APPELLANT'S REQUEST FOR STIPULATIONS I. R.C. Chapter 5322 governs self-service storage facilities in the state of Ohio. Appellant presents a dual argument regarding the procedures contained in R.C. 5322.03 and the agreement for enforcement of an owner's lien as established in R.C. 5322.02. He first infers that Public failed to comply with the requirements, which would be a question of fact. However, a review of appellant's brief reveals that he primarily takes issue with the failure to receive "actual notice." In other words, appellant asserts that he must receive "actual notice" before the lien could be enforceable, a question of law. The law applicable to the granting of summary judgment is thus an inappropriate means to analyze the first prong of appellant's first assignment. R.C. 5322.02(A) provides the owner of a self-service storage facility with a lien against the occupant on the personal property stored pursuant to a rental agreement. Moreover, a lien on the proceeds of the personal property is created in favor of the owner if and when the occupant defaults on the agreement. Once the occupant brings his or her property to the storage facility, the lien attaches on the property under R.C. 5322.02(B). The owner's lien for a claim that has become due may only be enforced as follows: *** -12- (A) All persons [of] whom the owner has actual knowledge claim[ing] an interest in the personal property, ***, shall be notified in accordance with divisions (B) and (C) of this section; (B) The notice shall be delivered in person or sent by certified mail to the last known address of each person who is required to be notified by division (A) of this section; *** (Emphasis added.) R.C. 5322.03(A), (B). The agreement in the present case specifically refers to Public's ability to terminate the agreement upon appellant's default in paragraph sixteen. This paragraph reads: 16. TERMINATION AND DEFAULT. *** Further, this Rental Agreement may, at the option of the owner, be terminated upon any default by Occupant under the terms of the Rental Agreement. *** Additionally, the agreement contains language pertaining to Public's obligation to notify appellant of the status of his account and the pending lien enforcement, respectively at paragraphs nine and nineteen: 9. OWNER'S LIEN. Occupant's personal property in or on the Premises will be subject to a claim of lien in favor of Owner. If rent or other charges due under this Rental Agreement are delinquent 14 days after the due date, Owner may terminate Occupant's right to use of and/or access to the Premises, and the property Occupant stored in the Premises may be sold, destroyed or otherwise disposed of by Owner in any manner considered appropriate by Owner, in accordance with the provisions of Chapter 5322 of the Ohio Revised Code. *** Occupant acknowledges the limitations on the use of the Premises and expressly consents to Owner's taking full control and possession of the Premises and any property stored on the Premises if Occupant defaults in any way under this Rental Agreement. -13- 19. NOTICES. Except as otherwise expressly provided in this Rental Agreement, any written notices or demands required or permitted to be given under the terms of this rental agreement may be personally served or may be served by first class mail deposited in the United States mail with postage thereon fully prepaid and addressed to the party so as to be served at the address of such party provided for in this Rental Agreement. Service of any such notice shall be deemed complete on the date delivered, or if mailed, shall be deemed complete on the date of deposit in the United States mail, ***. Appellant frames the "crux" of his first argument to be that he did not receive notice as required by R.C. 5322.03(B) and the agreement. He maintains that Public's attempted service by certified mail was not legally sufficient since R.C. 5322.03(B) provides for personal service as an alternate means of service. Appellant refers to the answers of all three defendants in response to interrogatories and requests for admissions to demonstrate that Public was fully aware that he did not actually receive any notices sent by certified mail. Since Public did not serve him personally as allowed by R.C. 5322.03(B), appellant proposes that Public's "unperfected lien rights are no rights at all." Appellant, however, fails to support his arguments with any legal authority. Public's lien on the personal property contained in appellant's storage space was automatically created under R.C. 5322.02(B) when appellant placed the property in the space. Public had the option to notify appellant of the enforcement of the lien by either certified mail or personal delivery pursuant to R.C. 5322.03(B). The statute fails to require personal delivery if the certified mail is returned "unclaimed." -14- A method for providing notice must be "reasonably calculated," under the circumstances, to advise interested parties of the pendency of a particular action, thereby affording them an opportunity to present objections. Mullane v. Central Hanover Bank & Trust Co. (1950), 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed.2d 865; Townsend v. Dollison (1981), 66 Ohio St.2d 225; In re Foreclosure of Liens (1980), 62 Ohio St.2d 333. This court's inquiry in the present case is whether the notice provisions of R.C. 5322.03(B) meet the "reasonably calculated" standard. Certified mail service is "reasonably calculated" to provide notice in accordance with Mullane. Castellano v. Kosydar (1975), 42 Ohio St.2d 107, 110. Appellant herein not only provided his address to Public, but provided the address of his brother, Gerald, in case appellant was not reachable. There is no dispute that Public sent a multitude of lien notice letters to appellant and/or Gerald at the addresses listed in the agreement; appellant does not allege that Public sent the notices to an incorrect address. These letters were "reasonably calculated" to reach appellant. The fact that appellant and/or his brother failed to claim Public's certified letters does not negate Public's compliance with the notice provisions contained in R.C. 5322.03(B) and the agreement. Appellant cannot attribute blame to Public when it was his actions which precluded his receipt of actual notice. Compare Townsend; State v. Hapsic (1991), 73 Ohio App.3d 804 (construing former R.C. 4507.40, amended and renumbered R.C. 4507.021, and R.C. 4507.021, failure of licensee to receive actual notice of suspension of -15- driver's license does not invalidate suspension when notice sent to driver's last known address). Appellant next contends that an accord and satisfaction extinguished Public's right to enter the storage space on May 15, 1993. In support of this contention, appellant relies on his remittance of $200 to Public which was enclosed in a May 10, 1993 letter. He argues that once Public accepted the $200 and applied it to his account, it possessed no right to enter the storage space three days later. Appellant also criticizes Public's alleged failure to provide him with an accounting, a request contained in the May 10th letter in addition to one forwarded to Public on June 18, 1993. The Supreme Court of Ohio discussed the operation of accord and satisfaction as an affirmative defense in Allen v. R.G. Indus. Supply (1993), 66 Ohio St.3d 229. "An accord is a contract between a debtor and a creditor in which the creditor's claim is settled in exchange for a sum of money other than that which is allegedly due. Satisfaction is the performance of that contract." Id., 231. If a party pleads an accord and satisfaction, the court's analysis is divided into three inquiries: (1) the parties must have participated in the process of offer and acceptance, i.e., an accord (2) the accord must have been carried out, i.e., the satisfaction; and (3) the accord and satisfaction must be supported by consideration. Id., 231-232. There are two safeguards built into the doctrine of accord and satisfaction which protect creditors from overreaching debtors. -16- The first requires there to be an actual dispute between the parties. The second requires the creditor to give reasonable notice to the debtor that a payment is intended as full satisfaction of the alleged debt. Id., 232. Regarding the second safeguard, a party asserting an accord and satisfaction can prove its existence by evidence of an agreement between the parties or by words appearing on the check which indicate full satisfaction and release from further liability. Id., 233. In the instant case, Jones' answers to interrogatories dis- close that she sent appellant a certified letter on May 12, 1993, informing him that the $200 was a partial payment of his current balance and it did not cure the existing default under the agreement. Moreover, appellant's May 10, 1993 letter to Public rebuts his accord and satisfaction claim. Appellant stated therein: *** I have enclosed a money order in the amount of $200.00, which is intended to redeem my returned check and pay for the other month mentioned herein. Once I have the information I seek and all monies claimed as owing are determined to be actually, due, I shall forthwith tender payment for May, plus the $10.00 late charge, and any additional sum due. (Emphasis added.) Not only did appellant not state that the $200 was intended to fully settle his account, he stated that he would remit additional sums if warranted following receipt of an itemization of his account. Under these circumstances, appellant failed to satisfy the necessary requirements to prove an accord and satisfaction. -17- Allen. Since appellant remained in default because the $200 did not fully settle his account, Public properly effected its lien rights under the agreement. Appellant's remaining allegations in his first assignment that material facts are at issue regarding Public's alleged false representations and outrageous conduct, its failure to notify appellant as to particular charges, and the accuracy of his account are not reviewable by this court. Appellant fails to satisfy the appellate rules of procedure, specifically he fails to argue these issues in this portion of his brief. See, App.R. 12(A)(2), 16(A) (6), (7); Loc.App.R. 6(6). Appellant's first assignment of error is overruled. II. Appellant's second assignment of error deals with the pretrial proceedings conducted by the trial court. The trial court allegedly proposed that appellant remove the property from the storage space in exchange for Public's withdrawal of its $336 counterclaim. Appellant suggests that the trial court "lacked the intellect" to recognize that the proposed settlement offer "robb[ed] [the] case of any settlement possibility." Appellant's appraisal of the trial court's "intellect" is an unwarranted and disrespectful insult not only to the particular judge, but to us as well. There is no need for an attorney to attack a judge's intellect, an issue which is irrelevant to our determination of an appeal. -18- Moreover, we note that appellant fails to cite any legal authority which requires us to reverse a final judgment based upon the parties' failure to settle a case. Settlement and final pretrial conferences in the Court of Common Pleas of Cuyahoga County are meant to effect amicable settlements, not to reach a settlement at all costs. See, Loc.R. 21 of the Court of Common Pleas of Cuyahoga County, General Division ("Loc.R. 21"). Appellant's second assignment of error is accordingly overruled. III. In his third assignment of error, appellant challenges the trial court's denial of his partial motion for summary judgment. He maintains that he provided ample evidence in support of his claims for breach of contract, conversion, fraud and deceit, invasion of privacy, and intentional or negligent infliction of emotional distress. The granting of summary judgment is only appropriate if there is no genuine issue as to any material fact, and reasonable minds can come to but one conclusion which is adverse to the nonmoving party. Toledo's Great Eastern Shoppers City, Inc. v. Abde's Black Angus Steak House No. III, Inc. (1986), 24 Ohio St.3d 198,201; Civ.R. 56(C). An order granting summary judgment will, therefore, only be upheld where the record discloses no genuine issue of material fact and the nonmoving party is entitled to judgment as a matter of law when construing the evidence most strongly in favor of the nonmoving party. Johnson v. New London (1988), 36 Ohio -19- St.3d 60; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Summary judgment is a procedural device which is used to terminate litigation and, therefore, must be awarded with caution with all doubts resolved in favor of the nonmoving party. Osborne v. Lyles (1992), 63 Ohio St.3d 326, 333; see, also, Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 359. However, it "forces the nonmoving party to produce evidence on any issue for which that party bears the production at trial." Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 111, citing Celotex v. Catrett (1986), 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265. Appellant herein first repeats the notice arguments contained, discussed and determined in his first assignment of error. Based upon our prior analysis, we find no merit in these arguments. Appellant next addresses whether Public notified him of the increase of his rent from $71 to $73 per month, and of the later charges assessed against his account. Jones' affidavit attached to Public's motion for summary judgment illustrates that Public notified appellant of the increase in his monthly rent in a letter dated February 27, 1993. The letter was sent via regular first- class mail in accordance with paragraph nineteen of the agreement. Additionally, the notices forwarded to appellant pertaining to the status of his account all included itemizations of his account and the reasons for the various charges. Appellant offers no support to the contrary as required by Wing. The trial court thus properly denied summary judgment to appellant on his claim for breach of -20- contract, i.e., failure to notify of rent increase and provide accounting. Appellant returns to the notice issue in arguing his claims for conversion and invasion of privacy. He asserts that Public's failure to give him proper notice and its placement of a lock on his storage space was an exercise of dominion and control over his property, i.e., conversion. Appellant then asserts that Public invaded his privacy by inventorying the contents of the storage space, and "exposing [his] confidential records to unintended eyes." Conversion is defined as an exercise of dominion or control wrongfully exerted over the personal property of another in denial of or under a claim inconsistent with the other's rights. See, LB Folding Co., Inc. v. Gergel-Kellem Corp. (1994), 94 Ohio App.3d 511, 519; Cent. Benefits Mut. Ins. Co. v. RIS Admrs. Agency, Inc. (1994), 93 Ohio App.3d 397, 402; Ohio Tel. Equip. & Sales, Inc. v. Hadler Realty Co. (1985), 24 Ohio App.3d 91, 93. Invasion of privacy, on the other hand, *** is the unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activity in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities. Housh v. Peth (1956), 165 Ohio St. 35, paragraph two of the syllabus. In the present case, once appellant defaulted on the agreement in April 1993, an act admitted by him in deposition, Public was -21- allowed to enter the space and deny appellant access to it. Paragraph nine of the agreement; R.C. 5322.02; 5322.03(B)(4). Public also complied with the provisions of the agreement and R.C. 5322.03, the latter reading at section (C)(3): The description shall be reasonably calculated to permit the person notified to identify it except that any container including, but not limited to, a trunk, valise, or box that is locked, fastened, sealed, or tied in a manner that deters immediate access to its contents and that has not been opened by the owner prior to the date on which the notice is given may be described as such without describing its contents. Public's District Manager, Swan, inventoried appellant's storage space from the doorway on May 13, 1993 without entering the space. Therefore, Swan did not disturb any of the closed containers or boxes contained therein, and appellant offers no proof in contradiction. The space was locked and sealed immediately following the inventory and the listing of the property on a designated inventory form. The same inventory form was used when Public scheduled the sale of appellant's personal property. Appellant, therefore, fails to support his assertions that Public violated his rights through either converting his property or invading his privacy. Reasonable minds when presented with appellant's claims would not differ regarding each element necessary for conversion and invasion of privacy claims. The trial court thus appropriately denied summary judgment in favor of appellant as to these claims. Appellant proceeds to argue that Public committed fraud. He asserts that Public failed to disclose the basis of charges -22- included in his account, specifically a $50 late fee, knowing that appellant would rely on the misrepresentation and submit the fee, with Public unfairly benefiting from the misrepresentation. A claim for fraud must be supported by the following elements: (1) a false representation; (2) knowledge by the person making the representation that it is false; (3) intent by the person making the representation to induce the other to rely on the represen- tation; (4) rightful reliance by the other to his detriment; and (5) an injury as a result of the reliance. Wing; Friedland v. Lipman (1980), 68 Ohio St.2d 255. Appellant failed to provide any evidence to the trial court that Public made any representations to him which were inconsistent with the agreement between the parties. Public provided documents which outlined the charges to appellant's account, and demonstrated that the documents were properly mailed to him. As stated supra, Jones set forth in her interrogatories that the rent increase letter was forwarded to appellant via regular first-class mail, and was not returned to Public. Appellant was also fully aware of the $10 late fee as this provision is contained in the agreement as well as other provisions for which a late charge could be affixed to appellant's account, e.g., lien fees. The record amply demonstrates Public's willingness and eagerness to resolve the delinquency status of appellant's account. It also shows that Public acted in conformance with the provisions contained in the agreement and R.C. Chapter 5322. Appellant's claim for fraud was thus not supported by the requisite evidence -23- that Public made any false representations, and hence failed under Wing, Friedland, and Civ.R. 56(C). Appellant's claim for punitive damages as a result of Public's alleged fraudulent conduct consequently fails as well. See, Motorists Mut. Ins. Co. v. Said (1992), 63 Ohio St.3d 690 (actual malice required for an award of punitive damages). Appellant's only remaining claim was for the intentional infliction of emotional distress. He alternatively suggests that even if he failed to prove intentional infliction of emotional distress, the evidence at least demonstrated entitlement to judgment on a claim for negligent infliction of emotional distress. There are four elements which must be proved in order for a plaintiff to recover in an action for intentional infliction of emotional distress. These elements are: *** 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 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," Restatement of Torts 2d (1965) 73, Section 46, comment d; 3) that the actor's actions were the proximate cause of plaintiff's psychic injury; and 4) that the mental anguish suffered by plaintiff is serious and of a nature that "no reasonable man could be expected to endure it," Restatement of Torts 2d 77, Section 46, comment j. *** Pyle v. Pyle (1983), 11 Ohio App.3d 31. See, also, Tschantz v. Ferguson (1994), []. The Supreme Court of Ohio in Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 375, stated with regard to the conduct which is -24- necessary to make out a claim for the intentional infliction of emotional distress: *** 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 same court also discussed a plaintiff's burden of proof regarding the "seriousness" of an alleged emotional injury in Paugh v. Hanks (1983), 6 Ohio St.3d 72. The term "serious" goes "*** beyond trifling mental disturbance, mere upset or hurt feelings." Id., 78. Rather, the emotional injury must be both severe and debilitating. Id. In the instant case, appellant's deposition testimony reveals that reasonable minds could come to but one conclusion that he failed to satisfy the elements necessary to prove his claim for intentional infliction of emotional distress. First, cutting off appellant's lock from the storage space and allegedly ignoring the notice requirements contained in the agreement and R.C. Chapter 5322, allegations we rejected supra, does not amount to the "outrageous!" conduct envisioned by Yeager. Second, appellant testified that following the conduct complained of, he was "very upset, annoyed, angry"; not anxious or depressed; his appetite was fine; he slept well; and never sought treatment for emotional distress. Appellant's evidence of "emotional distress" is anything but "severe" and "debilitating," the standard espoused in Paugh. -25- Under these circumstances, the trial court properly denied summary judgment in favor of appellant on his intentional infliction of emotional distress claim. Appellant's suggestion that Public's conduct alternatively resulted in the negligent infliction of emotional distress is not reviewable by this court. Appellant first did not raise this as a claim for relief in his complaint. Moreover, though he raised it in his partial motion for summary judgment, he failed then and fails now to offer any argument with regard to its application to the present facts. See, App.R. 12(A)(2), 16(A)(6), (7); Loc.App.R. 6(6). Appellant's third assignment of error is accordingly overruled. IV. Appellant, in his fourth assignment of error, asserts that the trial court erred in denying his request to establish certain facts. He argues: One purpose of a pretrial conference is to narrow the issues for trial. The facts that Appellant sought to have established were based on his discovery efforts, and no agreement could be reached by opposing counsel. Indeed, establishing such facts is the specific reason for engaging discovery. See Civil Rule 16 and Local Rule 21. Appellant, for his fifth assignment of error, proposes that the trial court purportedly erred in overruling appellant's motion for the court to participate in his requests for stipulations. As this assignment is also based upon Civ.R. 16, it will be reviewed simultaneously with appellant's prior assignment. -26- Neither Civ.R. 16 nor Loc.R. 21 support appellant's arguments. Loc.R. 21 governs case management and pretrial procedure, and more specifically, settlement and pretrial conferences. The rule fails to mandate that a trial court engage in fact finding prior to trial; at the most, it allows a trial court to participate in pretrial matters, e.g., leading the parties to narrow factual and legal issues, not to determine the facts. Civ.R. 16 addresses pretrial procedure. The only relevant objectives incorporated therein are the simplification of issues in section (2), and the possibility of obtaining admissions of fact in section (9)(a). Neither of these sections require the trial court to actively participate in the stipulation process or to determine facts on its own. Finally, appellant offers no legal support for his assertion that the trial court's refusal to actively participate in the pretrial process by determining facts or rendering stipulations in any way amounts to either error or abuse of discretion. The trial court offered sound advice to appellant in response to his motions for "establishing certain facts" -- file a motion for summary judgment. Appellant's fourth and fifth assignments of error are overruled. V. The final issue before this court is the determination of Public's motion for sanctions. Public submits that appellant's appeal from the trial court's rulings, both pretrial and final, is -27- frivolous under App.R. 23. Public, therefore, requests an award of reasonable expenses incurred in litigating this appeal, including attorney fees and costs. App.R. 23 provides: "If a court of appeals shall determine that an appeal is frivolous, it may require the appellant to pay reasonable expenses of the appellee including attorney fees and costs." An appeal is frivolous when it essentially presents "no reasonable question for review." Danis Montco Landfill Co. v. Jefferson Twp. Zoning Comm. (1993), 85 Ohio App.3d 494. This court's review of the record, including a thorough review of appellant's deposition testimony, compels us to find that appellant presented no reasonable question for our review. Appellant's action was basically premised upon his failure to pick up a certified letter from the post office because he did not want to stand in line. The record is replete with evidence that appellant knew about his account status notwithstanding his failure to receive "actual" notice as conceived by him. Moreover, when questioned about proof of damages during his deposition with regard to all of his claims for relief, appellant admitted that he had, e.g., no documents or other evidence which proved Public's itemization of his account was in error. Finally, we are disturbed by appellant's hollow allegations and arguments regarding the trial court's participation in the pretrial process. Consequently, we find the appeal to be frivolous under App.R. 23. Public Storage Management, Inc., Carol Jones and James Russell may submit evidence by way of affidavit regarding the costs, -28- including attorney fees incurred by them in this appeal, within seven days of the judgment entry herein. Appellant may submit counter-affidavits concerning the reasonable attorney fees and costs to be awarded within fourteen days after judgment is entered herein. This court will thereafter make a finding of costs, including attorney fees, which will be assessed in favor of these appellees against appellant. Judgment affirmed. -29- It is ordered that appellees recover of appellant 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 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. DAVID T. MATIA, J., AND JAMES M. PORTER, J., CONCUR PRESIDING JUDGE SARA J. HARPER 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, .