COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67989 LINDA P. MARTIN : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION EDITH SILVERMAN, ET AL. : : : Defendant-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: JULY 13, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-246390 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: DONALD G. DRINKO STEVEN J. DELONG Licata & Crosby 750 Courthouse Square Bldg. 310 Lakeside Avenue Cleveland, Ohio 44113 For Defendant-Appellees: IRVIN DINN STEVEN B. POTTER ARI H. JAFFE Dinn, Hochman & Potter 5885 Landerbrook Drive Suite 205 Cleveland, Ohio 44124 - 3 - O'DONNELL, J.: Appellant Linda P. Martin appeals from the orders of the trial court granting partial summary judgment in favor of appellee AMG Consulting Association, Inc., granting a directed verdict in favor of Edith Silverman, and denying appellant's motions for prejudgment interest and costs. In January of 1987, Edith Silverman, acting as president, and Charles Snider, acting as vice-president and chief operating officer, incorporated AMG Consulting Association Inc. (Tr. 38, 128.) In March of 1987, Snider hired appellant as a legal search consultant to place individuals in law firms and businesses. (Tr. 38, 39.) On September 28, 1989, Silverman and Snider had a disagreement which resulted in Snider leaving AMG and forming a new company, Charles Snider and Associates. (Tr. 10, 47, 93, 136.) Shortly thereafter, appellant resigned from AMG, and joined Snider's new company. (Tr. 50, 105, 106.) At that time, appellant had begun efforts to place five new clients, Larry Silvesteri at Zaremba Real Estate Development Company, David Nees at Trinova, Beth Campbell at Kahn, Kleinman, Yanowitz, and Arnson, Christine Neiman at Porter-Wright, and Susan Nelson at Stouffer's, but these placements were not made until after she resigned. (Tr. 98, 99, 100.) Appellant thereafter demanded payment from Silverman for these commissions and $500 in salary, - 4 - for a total claim of $15,998, but never received any payment from Silverman. (Tr. 107.) On January 26, 1993, appellant and Sandra Girbino-Pittock filed a complaint naming as defendants Edith Silverman, AMG Consulting Association Inc., Le-Gals Inc., Lee Silverman, Francine Moss, and Gretchen Oleski, and asserting claims of state RICO, civil conspiracy, breach of employment contract, conversion, fraud, impairment of credit, intentional and/or negligent infliction of emotional distress, and joint and several liability. Appellees answered and counterclaimed, alleging interference with contract, defamation, disparagement, unfair competition, conversion of trade secrets, and breach of employee confidence. On March 24, 1993, appellees moved for and the court denied partial summary judgment, but after depositions of Fran Moss and Edith Silverman were taken, appellees renewed the motion for partial summary judgment and the court then granted the motion. The court also dismissed Sandra Girbino-Pittock for failure to prosecute her claim. A jury trial began on August 29, 1994, during which the court granted a directed verdict for Edith Silverman and directed a verdict for appellant on all counterclaims. The court submitted only the issue of breach of contract against AMG Consulting Association, Inc. to the jury, which returned a verdict in favor of appellant in the amount of $15,998.00. The - 5 - court denied subsequent motions by appellant to tax costs and for prejudgment interest. Appellant timely filed a notice of appeal and has assigned the following four errors for our review. I. THE TRIAL COURT ERRED WHEN IT GRANTED THE DEFENDANT- APPELLEE'S SECOND MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO ALL CLAIMS WITH THE EXCEPTION OF THAT FOR BREACH OF EMPLOYMENT CONTRACT. Appellant argues that the trial court should have denied appellee's second motion for partial summary judgment based on the doctrine of the law of the case and because genuine issues of material fact existed which precluded summary judgment. Appellee believes the trial court properly granted its second motion for partial summary judgment because the doctrine of the law of the case does not apply and because no genuine issues of material fact existed to preclude summary judgment. Resolution of this assignment of error requires a two-step analysis. First, we must consider whether the doctrine of the law of the case applies. Then, we must consider whether the trial court properly granted appellee's second motion for partial summary judgment. We begin with the doctrine of the law of the case, which " *** provides that the decision of a reviewing court in a case remains the law of that case on the legal questions involved for - 6 - all subsequent proceedings in the case at both the trial and reviewing levels." Nolan v. Nolan (1984), 11 Ohio St.3d 1, at 3. (Emphasis added) The record before us contains no decision of any reviewing court on any legal questions involved in this case. Accordingly, we conclude that the doctrine of the law of the case has no application here and could not operate to bar the trial court from re-considering appellant's second motion for partial summary judgment based on additional deposition testimony of two parties to the lawsuit. We next consider whether the trial court properly granted summary judgment for appellee on appellant's causes of action for conversion, fraud, impairment of credit, and emotional distress. The court in Leibreich v. A.J. Refrigeration (1993), 67 Ohio St.3d 266, set forth the test for summary judgment at page 268: "Under Civ.R. 56, summary judgment is proper when: (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 the 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 ***." Appellant claims she has set forth a cause of action based on conversion because she believes she had a vested right to the commissions for the placements and deprivation of that right constituted a conversion. Appellee claims appellant is unable to - 7 - prove any specific entitlement or property rights to personal property in the hands of appellee. "The elements of a cause of action for conversion are: (1) plaintiff has ownership interests or a right to possession of the property at the time of the conversion; (2) defendant's conversion was by a wrongful act or disposition of plaintiff's property rights, and (3) damages." Hodges v. Byars (May 28, 1992), Montgomery App. No. 12839, unreported. In this case, the named defendants denied owing appellant any money and as such, appellant's burden was to establish her entitlement to that money at trial. Therefore, appellant could not prove appellee had converted her personal property. We conclude that no genuine issue as to any material fact existed regarding the cause of action for conversion and therefore the trial court properly granted summary judgment. Appellant next avers the trial court improperly granted summary judgment on the cause of action for fraud stated with particularity. Appellee asserts appellant did not satisfy the requirement of Civ.R. 9(B) which mandates in relevant part: "*** . In all averments of fraud ***, the circumstances constituting fraud *** shall be stated with particularity. ***" In Gaines v. Preterm-Cleveland, Inc. (1987), 33 Ohio St.3d 54, at 55, the court defined the elements of fraud: "(a) a representation or, where there is a duty to disclose, concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, - 8 - (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximately caused by the reliance." Since this case concerns payment of commissions allegedly due for job placements, appellant has failed to plead with particularity the necessary elements to establish a cause of action based on fraud. Therefore, no genuine issue as to any material fact exists to preclude summary judgment and the trial court did not err in its judgment. Appellant then claims the trial court erred in granting summary judgment for impairment of credit alleging that appellee had a duty to timely pay commissions, and as a direct and proximate result of appellee's tortious refusal to do so, appellant's credit has been impaired. Appellee urges appellant has not set forth a cause of action because she has not established that the alleged loss of credit was intentional based on Balyint v. Arkansas Freight (1985), 18 Ohio St.3d 126, where the court held that a cause of action falls within the scope of an intentional tort. The record here reveals that appellant has failed to demonstrate that appellee intentionally withheld the commissions to impair her credit since a dispute concerning entitlement to the commissions existed between the parties. Therefore, we conclude that the trial court properly granted summary judgment on appellant's cause of action based on impairment of credit. - 9 - Finally, appellant argues that she stated a claim for intentional and or negligent infliction of emotional distress sufficient to permit the issue to go to the jury. Appellee believes that appellant failed to set forth the necessary elements sufficient to allege a cause of action. In Ashcroft v. Mt. Sinai Medical Center (1990), 68 Ohio App.3d 359, the court set forth the elements for this tort: " *** 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 do '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 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,' ***." Appellant in this case has failed to demonstrate that appellee's actions amounted to extreme and outrageous conduct sufficient to cause serious emotional distress, or that appellant suffered mental anguish so serious that no reasonable person could be expected to endure it. Therefore, the trial court properly granted summary judgment on this cause of action. Because the doctrine of the law of the case has no application to this case and no genuine issue as to any material fact remains to be litigated, the trial court properly granted appellee's second motion for partial summary judgment on appellant's causes of action for conversion, fraud, impairment of credit, and - 10 - emotional distress. This assignment of error is not well taken and is overruled. II. THE TRIAL COURT ERRED IN GRANTING A MOTION FOR A DIRECTED VERDICT IN FAVOR OF EDITH SILVERMAN AS AN INDIVIDUAL. Appellant claims the trial court erred in granting a directed verdict in favor of Edith Silverman because the court should have permitted the jury to disregard the corporate entity, or pierce the corporate veil, and hold Edith Silverman individually liable. Appellee believes the trial court properly granted a directed verdict in favor of Edith Silverman because no evidence existed to support individual liability for Edith Silverman. The issue is whether the trial court properly granted a directed verdict in favor of Edith Silverman. The Ohio Supreme Court set forth the test for a directed verdict in The Limited Stores, Inc. v. Pan American World Airways, Inc. (1992), 65 Ohio St.3d 66, and stated at page 73: "A motion for a directed verdict is to be granted when, construing the evidence most strongly in favor of the party opposing the motion, the trial court finds that reasonable minds could come to only one conclusion and that conclusion is adverse to such party." - 11 - The court also enunciated the test for piercing the corporate veil in Belvedere Condo. v. R.E. Roark (1993), 67 Ohio St.3d 274, at paragraph three of the syllabus: "The corporate form may be disregarded and individual shareholders held liable for wrongs committed by the corporation when (1) control over the corporation by those to be held liable was so complete that the corporation has no separate mind, will, or existence of its own, (2) control over the corporation by those held to be liable was exercised in such a manner as to commit fraud or an illegal act against the person seeking to disregard the corporate entity, and (3) injury or unjust loss resulted to the plaintiff from such control and wrong." In this case, our review of the record revealed no evidence which demonstrates that Edith Silverman exercised such complete control or acted in a personal capacity which would render her personally liable. Therefore, we conclude the trial court properly granted a directed verdict in favor of Edith Silverman and this assignment of error is overruled. III. THE TRIAL COURT ERRED IN DENYING APPELLANT LINDA MARTIN'S MOTION FOR PREJUDGMENT INTEREST. Appellant claims the trial court erred in denying her motion for prejudgment interest because she was entitled to interest calculated from the date the amount became due. Appellee believes the trial court properly denied appellant's motion for prejudgment interest because the contract damages were not liquidated or determined at the time of trial. - 12 - The issue for this court, then, is whether the trial court erred in denying appellant's motion for prejudgment interest. Prejudgment interest can be awarded pursuant to R.C. 1303.03, and a trial court's denial of prejudgment interest under R.C. 1343.03(C) will not be reversed absent an abuse of discretion. See Huffman v. Hair Surgeon, Inc. (1985) 19 Ohio St.3d 83, 87. In a contract action where the amount due is unliquidated, the interest runs from the date of the judgment. See Allied Erecting & Dismantling Co. v. Auto Baling Co. (1990), 69 Ohio App.3d 502, 503. Where the parties to the contract hold different views as to amount owing and where the amount cannot be determined by mere reference to the parties agreement, the debt is unliquidated. See Mahon-Evans Realty, Inc. v. Spike (1986), 33 Ohio App.3d 268, 271. In this case, the record reveals the parties disputed the amount of commissions owing for placements, and therefore the amount due was unliquidated at the time of trial. We conclude the trial court did not err or abuse its discretion in denying appellant's motion for prejudgment interest, and this assignment of error is not well taken. IV. THE TRIAL COURT ERRED IN DENYING APPELLANT LINDA MARTIN'S MOTION TO TAX COSTS. - 13 - Appellant claims the trial court erred in denying her motion to tax deposition costs because the depositions were used in evidence. Appellee believes the trial court properly denied appellant's motion to tax costs because deposition expenses are not properly taxed as costs under Civ.R.54(D). The issue, then, is whether the trial court erred in denying appellant's motion to tax deposition costs. We begin our analysis of this issue by examining Civ.R. 54(D) which provides: " ***. Except when express provision therefor is made either in a statute or in these rules, costs shall be allowed to the prevailing party unless the court otherwise directs." The court in Vance v. Roedersheimer (1992), 64 Ohio St.3d 552, 555, held that Civ.R. 54(D), "*** grants the court discretion to order that the prevailing party bear all or part of his or her own costs." The court continued, and citing Centennial Ins. Co. v. Liberty Mut. Ins. Co. (1982), 69 Ohio St.2d 50, stated: "Today, we reaffirm the principle that '[t]he subject of costs is one entirely of statutory allowance and control.' State, ex rel. Michaels, v. Morse (1956), 165 Ohio St. 599, 607 ***, quoted with approval in Sorin v. Bd. of Edn. (1976), 46 Ohio St.2d 177, 179 ***" - 14 - This court, in Wiltsie v. Teamor (1993), 89 Ohio App.3d 380, in applying Vance, found that since there is no statutory authority for taxing deposition costs, a court may not properly make such an award under Civ.R. 54(D). As such, the trial court did not err in denying appellant's motion to tax deposition costs. This assignment of error is overruled. Judgment affirmed. - 15 - It is ordered that appellee(s) recover of appellant(s) 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. SARA J. HARPER, P.J., and * DONALD C. NUGENT, J., CONCUR JUDGE TERRENCE O'DONNELL *Judge Donald C. Nugent concurred in this opinion before resigning from this court. 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 journaliza- .