COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67608 ARTHUR R. SWANEY II : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : : OPINION OHIO FURNITURE CO. : : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: MAY 18, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-257848. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: Arthur R. Swaney II, Pro se 16000 Terrace Road, #1909 East Cleveland, Ohio 44112 For Defendant-appellee: James L. Glowacki, Esq. Christopher R. Claflin, Esq. 510 Leader Building Cleveland, Ohio 44114 - 2 - SPELLACY, LEO M., P.J.: Plaintiff-appellant Arthur R. Swaney II ("Swaney") appeals from the granting of defendant-appellee Ohio Furniture Company's ("OFC") motion for summary judgment. For the reasons adduced below, we affirm. A review of the record on appeal indicates that Swaney purchased a three piece living room set from OFC on May 28, 1993. At that time, the sales clerk allegedly told Swaney that the furniture would be delivered to Swaney's residence by June 3, 1993. The furniture was not delivered. On June 5, 1993, Swaney returned to the place of purchase and demanded a refund of his $230 deposit, even though the purchase order contained the phrase "NO TIME STOPS, NO REFUNDS, NO CANCELLATIONS." Swaney alleged that OFC caused him emotional distress by (1) refusing to return his money, (2) daring him to sue the store if he was dissatisfied with the service, and (3) threatening to call the police to remove him from the store. Thereafter, Swaney, acting pro se, filed suit in Cleveland Municipal Court, Small Claims Division, case number 93-CVI-12830, alleging a violation of the Consumer Sales Practices Act in OFC's failure, as a supplier, to deliver the goods. R.C. 1345 et seq., OAC 109:4-3-09. Subsequent to the filing of the small claims complaint, Swaney, again acting pro se, filed the complaint sub judice on September 9, 1993, in common pleas court alleging the tort of intentional infliction of emotional distress, presumably causing a relapse in his documented psychological maladies, and - 3 - requested compensatory damages in the amount of $3,000,000 and punitive damages in the amount of $3,000,000. On November 18, 1993, the municipal court, subsequent to a hearing and report by the referee, trebled the damages pursuant to R.C. 1345.09(B) and found in favor of Swaney against OFC in the 1 amount of $690 plus costs. The parties herein filed cross-motions for summary judgment. On June 17, 1994, the trial court denied Swaney's motion for summary judgment. On June 20, 1994, the trial court granted OFC's motion for summary judgment. This timely appeal followed by Swaney, acting pro se, presenting nineteen rambling assignments of error. In his appellate brief, however, Swaney separately argues only the trial court's rulings on the motions for summary judgment. See Appellant's brief at 15. Accordingly, only the specific rulings on the motions for summary judgment will be addressed. North Coast Cookies, Inc. v. Sweet Temptations, Inc. (Cuyahoga, 1984), 16 Ohio App.3d 342; App.R. 12(A). The standard of review relative to a motion for summary judgment was stated by this court in Stone v. Greater Cleveland Regional Transit Authority (September 30, 1993), Cuyahoga App. No. 63556, unreported, at 7-8, as follows: 1 In early January, 1994, Swaney successfully secured a bank attachment for the full amount of the small claims judgment. See Swaney deposition at 16 (a copy of Swaney's deposition, taken on February 22, 1994, is attached to OFC's motion for summary judgment at exhibit A). - 4 - The following was stated in Manofsky v. Goodyear Tire & Rubber Co. (Summit, 1990), 69 Ohio App.3d 663, 666, relative to the review of a motion for summary judgment: The standard of review in this appeal is well established. Pursuant to Civ.R. 56 (C), 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, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274; see, also, Delker v. Ohio Edison Co. (1989), 47 Ohio App.3d 1, 2, 546 N.E.2d 975, 976. Once summary proceedings have been properly initiated, the responding party must set forth specific facts demonstrating triable issues on all essential matters for which he bears the initial burden of proof. Mere reliance upon the pleadings is insufficient. Civ.R.56(E); see, also, Celotex Corp. v. Catrett (1986), 477 U.S. 317, 322-323, 106 S.Ct. 2548, 2552-2553, 91 L.Ed.2d 265, 273-274. The dispute must be "material" in that the facts involved have the potential to affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211. The issue to be tried must also be "genuine," allowing reasonable minds to return a verdict for the nonmoving party. Id. 477 U.S. at 248- 252, 106 S.Ct. at 2510-2512, 91 L.Ed.2d at 211-214. - 5 - Also see Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095. In the case sub judice, Swaney has alleged a claim of intentional infliction of emotional distress. In Ashcroft v. Mt. Sinai Medical Ctr. (Cuyahoga, 1990), 68 Ohio App.3d 359, paragraph five of the syllabus, this court stated the following: A claim for intentional infliction of serious emotional distress requires proof of four 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 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, 34, 11 OBR 63, 66, 463 N.E.2d 98, 103, followed.) In Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 375, a case which first recognized the tort of emotional distress in Ohio, the court stated the following with regard to liability for that tort: "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 required to be hardened to a certain amount of - 6 - 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 (sic) 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, [49] Harvard Law Review 1033, 1053 (1936). * * *" Applying the Ashcroft factors to the present case, we conclude that Swaney has failed to demonstrate conduct by OFC "so extreme and outrageous," as to go beyond the bounds of decency or be considered "intolerable in a civilized community." While the actions of OFC in (1) refusing to refund the deposit, (2) daring plaintiff to sue the defendant, and (3) threatening to call the police to remove plaintiff from the store may be considered insulting, rude, inappropriate, threatening and annoying to plaintiff, these actions do not rise to the level of being atrocious or outrageous. Furthermore, we note that plaintiff has provided no medical expert testimony to support his claim that the conduct by OFC proximately caused the recurrence of his depression and paranoid schizophrenia, which Swaney has been suffering from since 1984. The only expert medical evidence attached to the plaintiff's brief in opposition to OFC's motion for summary judgment is evidence relating to incidents occurring prior to the furniture debacle herein. Thus, the element of causation is lacking. - 7 - In summary, we conclude that the trial court properly granted summary judgment in favor of OFC. Judgment affirmed. - 8 - It is ordered that appellee 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 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. Exceptions. DONALD C. NUGENT, J., and JOSEPH NAHRA, J., CONCUR. LEO M. SPELLACY PRESIDING 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 .