COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68593 PATRICK MURPHY, : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION BROOKLYN ACRES MUTUAL HOMES, : INC., : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION : MAY 30, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 275341 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Paul Mancino, Jr. 75 Public Square Suite 1016 Cleveland, Ohio 44113-2098 For defendant-appellee: Alan Belkin 75 Public Square Suite 920 Cleveland, Ohio 44113 -2- NAHRA, J.: Appellant, Patrick Murphy, is appealing the trial court's dismissal of his complaint for failure to state a claim upon which relief could be granted. For the following reasons, we affirm. Appellant's complaint stated as follows: Appellee-defendant Brooklyn Acres Mutual Homes, Inc. is a non-profit corporation, which operates as owner and lessor of various residential homes. Appellant owns a certificate of participation in the assets of Brooklyn Acres, and has ownership in the assets of the corporation. Appellant and/or his family have occupied a home owned by Brooklyn Acres at 4456 West 69th Place, Brooklyn, Ohio, since 1944 or 1945. The other appellees-defendants are officers or trustees of Brooklyn Acres. The complaint further states that the Board of Trustees of Brooklyn Acres made a formal complaint against appellant, stating that "a dog has been seen in your residence." A hearing was held at which the person who allegedly saw the dog did not appear. The Board of Trustees voted to terminate appellant's tenancy. Appellant claimed appellees' actions were in violation of the corporate charter, bylaws and regulations of Brooklyn Acres. He stated he had no adequate remedy at law, and prayed for an injunction to prevent appellees from ousting him from the premises. The complaint further stated that the appellees' actions caused appellant severe emotional distress. Appellant prayed for compensatory and punitive monetary damages. -3- Appellees' answer states that subsequent to the filing of appellant's complaint, appellees filed an eviction action in Parma Municipal Court, Case No. 94CVG22559. In their answer and motion to dismiss, appellees stated appellant had an adequate remedy at law by asserting defenses in the eviction action, so appellant was not entitled to injunctive relief. Appellant's sole assignment of error states: THE COURT COMMITTED PREJUDICIAL ERROR IN DISMISSING THE COMPLAINT OF THE PLAINTIFF. In order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. O'Brien v. University Community Tenants Union (1975), 42 Ohio St.2d 242. In this case, appellant was not entitled to injunctive relief, because he had an adequate remedy at law by means of asserting defenses in the forcible entry and detainer action. Fodor v. First National Supermarket, Inc. (1992), 63 Ohio St.3d 489, Standard Oil Co. v. Carr (App. 1937), 24 Ohio Law Abs. 278, Ream v. Gaskill (Ohio App. 1946), 70 N.E.2d 475. Appellant asserts that his complaint prays for monetary damages for intentional infliction of emotional distress and breach of the lease's covenant of quiet enjoyment, as well as injunctive relief. Appellee asserts appellant is required to bring these claims as counterclaims in the forcible entry and detainer action. -4- The sole issue in a forcible entry and detainer action is who is entitled to possession of the premises. A forcible entry and detainer action may include claims for damages under the rental agreement. R.C. 1923.081. In general, the tenant may file a separate lawsuit or a counterclaim in the forcible entry and detainer action, based on breach of the lease by the landlord. Lobo v. Hoelscher (1975), 44 Ohio Misc. 46. However, if the additional claims for breach of the lease are incident to the possession action, these claims must be brought in the eviction action and cannot prevent an injunction action from being dismissed. Standard Oil Co., supra, at 280. "Incident to the possession action" means that when the tenant secures possession, the other relief will follow. Id. In this case, if the appellant maintains possession, the covenant of quiet enjoyment will not be breached. A covenant of quiet enjoyment is breached when the landlord substantially interferes with the beneficial use of the premises by the tenant. Howard v. Simon (1984), 18 Ohio App.3d 14, Frankel v. Steman (1915), 92 Ohio St. 197, 200. Under the facts of this case, if the appellant maintains possession, the appellees did not interfere with appellant's use of the premises. If appellant maintains possession, appellant cannot claim appellees intentionally inflicted emotional distress upon him by evicting him from the premises. No such eviction would have taken place. Appellant's claim for intentional infliction of emotional distress is incidental to the possession action. -5- Arguably, appellant made a claim separate from the eviction action for infliction of emotional distress for appellee's actions prior to filing the eviction action, such as holding an unfair hearing not in accordance with corporation rules. However, the complaint fails to allege all the necessary elements of intentional infliction of emotional distress. The elements of intentional infliction of emotional distress are: the defendant, by extreme and outrageous conduct, intentionally or recklessly caused severe emotional distress to the plaintiff. Yeager v. Local Union 20 Teamsters, Chauffeurs, Warehousemen & Helpers of America (1983), 6 Ohio St.3d 369, King v. Bogner (1993), 88 Ohio App.3d 564, 569. The complaint does not allege that appellee acted recklessly or intentionally. The complaint did not allege extreme and outrageous conduct, which means "conduct 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." Yeager, King, supra, Rogers v. Targot Telemarketing Services (1990), 70 Ohio App.3d 689. In conclusion, appellant's claims for intentional infliction of emotional distress and breach of the covenant of quiet enjoyment are incident to the possession action. These claims must be brought in the possession action, and cannot prevent appellant's complaint from being dismissed. Even if appellant's claims for intentional infliction of emotional distress are not incident to the possession action, the complaint fails to allege all the necessary elements of intentional infliction of emotional distress. -6- Accordingly, this assignment of error is overruled. The decision of the trial court is affirmed. -7- 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. PATTON, C.J., CONCURS. KARPINSKI, J., CONCURS IN PART AND DISSENTS IN PART. (See attached Concurring and Dissenting Opinion.) JOSEPH J. NAHRA 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 for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68593 : PATRICK MURPHY, : : : CONCURRING Plaintiff-Appellant : : AND v. : : DISSENTING BROOKLYN ACRES MUTUAL HOMES, : INC., : OPINION : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: MAY 30, 1996 KARPINSKI, J., CONCURRING IN PART AND DISSENTING IN PART: I concur with the majority that the common pleas court properly dismissed Murphy's claim for injunctive relief; however, the dismissal of his claim for infliction of emotional distress should be reversed. The majority has cited no authority to deny access to the common pleas court to adjudicate a tort claim simply because a forcible entry and detainer claim was subsequently filed in the municipal court. This court has addressed the issue of concurrent jurisdiction between the common pleas and municipal courts and recognized that related actions involving property owners and occupants may proceed -2- in both courts. Cleveland v. A.J. Rose Mfg. Co. (1993), 89 Ohio App.3d 267. Forcible entry and detainer actions, regardless of whether they are filed in a common pleas or municipal court, are special summary proceedings and involve only the right to possession of the premises. Central Park Place v. McDowell (1974), 38 Ohio App.2d 29, 31. Murphy's claim for infliction of emotional distress, filed first in the common pleas court before any other claims were pending, involved more than his right to possession of the premises. He sought compensatory damages from Brooklyn Acres for its actions and failure to follow its own rules, both of which occurred before any eviction took place. This claim would not be resolved by determining his right to possession in the forcible entry and detainer action subsequently filed by Brooklyn Acres in the municipal court. See, id. The majority purports to support its argument to the contrary by citing Standard Oil Co. v. Carr (1937), 24 O.L.A. 278, for the following proposition: if the additional claims for breach of lease are incident to possession, these claims must be brought in the eviction action ***." Ante at p. 4. By its own terms, however, this proposition does not apply in this case. First, Murphy's "additional" claim for infliction of emotional distress is a tort claim and is not a claim for "breach of lease" or any contract. Second, Murphy's claim for infliction of emotional distress is not "incident to the possession action," because he would not obtain complete relief by retaining -3- possession of the premises in the forcible entry and detainer action. Unlike the tenant in Standard Oil, Murphy alleges an existing separate, independent tort injury prior to any eviction. Accordingly, even if Murphy retained possession of the premises, the forcible entry and detainer action would not involve, adjudicate, or compensate him for emotional distress inflicted prior to the attempt to evict him through legal proceedings. Finally, it should be noted that the case sub judice involves a cooperative housing association. Central Park Place arose in this precise context rather than under a traditional landlord- tenant lease as in Standard Oil. This court in Central Park Place specifically held that, in cases involving a cooperative housing associations, claims other than possession of the premises could not be raised in a forcible entry and detainer action. Id. at 31. The majority has cited no persuasive reason to ignore this more modern authority. I share the majority's concern that litigation be resolved expeditiously in this context because the rapid adjudication of forcible entry and detainer claims is an integral element of the remedy. However, this concern does not warrant dismissing related tort actions filed in the common pleas court prior to an eviction case commencing. The Ohio Supreme Court has recognized that the pendency of an action relating to the property in the common pleas court does not preclude the rapid determination of forcible entry and detainer claims filed in the municipal court. The Court, in -4- State ex rel. Carpenter v. Court (1980), 61 Ohio St.2d 208, 210, stated in this context as follows: To allow the Municipal Court the discretion to stay proceedings in this cause would be to defeat the purpose of the forcible entry and detainer statutes (i.e., immediate possession), to permit their circumvention by merely bringing title into question in a collateral suit in common pleas court, and to deny through successive appeals the relief they were intended to provide. [Emphasis added.] Accord Cleveland v. A.J. Rose Mfg. Co., supra. The majority has perplexingly appended, as an additional ground for dismissal of Murphy's complaint, the argument that his complaint failed to state a claim for intentional infliction of emotional distress. However, it should be noted that Brooklyn Acres' motion to dismiss argued solely that Murphy's complaint did not properly state a claim for injunctive relief. Brooklyn Acres' motion did not raise any argument concerning his emotional distress claim or raise the majority's contention that Murphy's complaint failed to sufficiently allege the "intent" and "outrageousness" elements. It is well settled that a complaint may not be dismissed under Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted unless it appears "beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery." Border City S. & L. Ass'n v. Moan (1984), 15 Ohio St.3d 65, 66 (citations omitted). Civ.R. 8(A) establishes pleading requirements and requires parties to assert only a "short and plain statement of the claim" showing the party is entitled to relief. Illinois -5- Controls, Inc. v. Langham (1994), 70 Ohio St.3d 512, syllabus paragraph six. Civ.R. 8 specifically abandoned the majority's "cause of action" pleading theory which required parties to allege the existence of each element of the cause of action relied upon. Fancher v. Fancher (1982), 8 Ohio App.3d 79, 82-83. Contrary to the majority's opinion, complaints are not "fatally defective and subject to dismissal" when "each element of a cause of action is not set forth in the complaint with crystalline specificity." Border City S. & L. v. Moan, supra. I agree with the majority that Murphy's complaint is no pleading masterpiece. However, his complaint sufficiently alleges that Brooklyn Acres engaged in a course of misconduct which culminated in wrongfully ordering him to vacate his residence of fifty years. The complaint specifically alleged the Brooklyn Acres refused to follow its own rules and took action against him for allegedly having a dog on his premises without supporting evidence. When viewed in the light most favorable to Murphy, these allegations are sufficient to show "reckless or intentional" misconduct which is both "extreme and outrageous." Brooklyn Acres' failure to object to the sufficiency of these allegations or to request a more definite statement indicates that it had fair notice of these elements. While I share the majority's concern that Murphy may not be able to prevail on these claims, dismissal of the claims at this stage of the litigation was premature. -6- I am unable to join the majority in establishing a rule of law that occupants or tenants threatened with eviction may file tort or contract claims against the owner or landlord of the premises only in a forcible entry and detainer action. This policy ignores substantial authority and is unsound. Therefore, I respectfully .