COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69727 KEITH DUNKER : ACCELERATED DOCKET : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION BABITT FUNERAL HOME, INC., : ET AL. : PER CURIAM : Defendant-appellee : : DATE OF ANNOUNCEMENT : OF DECISION : APRIL 25, 1996 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 286688 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: George R. Oryshkewych, Esq. Stephen P. Bond, Esq. 5566 Pearl Road 120 East Avenue Parma, Ohio 44129-2541 Elyria, Ohio 44035 -2- HARPER, J.: Plaintiff-appellant, Keith Dunker, appeals from the dismissal of his complaint against defendant-appellee, the city of North Royalton ("the city"), by the Court of Common Pleas of Cuyahoga County. Appellant submits that the dismissal was erroneous because he set forth cognizable claims for relief in his complaint. A careful review of the record compels affirmance. Appellant filed his complaint on March 22, 1995 against the city and Babitt Funeral Home, Inc. The complaint set forth that appellant's mother died in August 1979 and was interred at the North Royalton Cemetery. Defendants placed a double headstone at appellant's mother's grave in the spring of 1980. Appellant's father died in November 1993; funeral arrangements were made with the defendants. Appellant discovered on the date of the funeral, March 24, 1993, that his father's grave was alongside that of his mother, but on the opposite side of the father's headstone. The complaint set forth furthermore that appellant discussed the apparent problem, i.e., the incorrectly dug grave, with agents and/or employees of the city. He learned that the headstone "had been placed on the wrong end of the graves, and that his father's half of the headstone was above someone else's grave." The headstone also "stood at his mother's feet rather than at her head." The confusion over the placement of the headstone delayed the burial service for approximately thirty minutes. Appellant, for his first cause of action, asserted that defendants were negligent and/or reckless because they knew or -3- should have known about the mistake in the placement of the headstone. Appellant's second cause of action set forth a claim for intentional, reckless, and/or negligent infliction of emotional distress. The third and fourth causes of action respectively set forth claims for tortious breach of the funeral agreement, and intentional, reckless and/or negligent infliction of emotional distress as a result of an incorrect inscription of the headstone. The final cause of action was solely against the funeral home. Only the first and second causes of action are pertinent to this appeal. Additionally, appellant dismissed his claims against the funeral home on September 29, 1995. The city filed a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief may be granted. The city argued that appellant's first cause of action was barred by R.C. 2744.04(A) because the alleged wrong, the wrongful placement of the headstone, occurred in 1980, and appellant did not file his complaint against the city within the two years permitted by the statute. The city argued that appellant's second cause of action did not set forth a cognizable claim for relief. The trial court dismissed the action pursuant to the city's motion on July 31, 1995. Appellant's sole assignment of error in this accelerated appeal relates to the propriety of the Civ.R. 12(B)(6) dismissal. A trial court must presume the truth of all factual allegations in the complaint and must make all reasonable inferences in favor of the nonmoving party when it rules on a Civ.R. 12(B)(6) motion to -4- dismiss a complaint for failure to state a claim upon which relief can be granted. Perez v. Cleveland (1993), 66 Ohio St.3d 397, 399; Mitchell v. Lawson Milk Co. (1989), 40 Ohio St.3d 190, 192; Phung v. Waste Mgt., Inc. (1986), 23 Ohio St.3d 100, 102. In order for a trial court to grant such a motion, it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. See York v. Ohio State Hwy. Patrol (1991), 60 Ohio St.3d 143, 145; O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 246. A reviewing court must independently review the complaint to determine if dismissal is appropriate when considering the propriety of a Civ.R. 12(B)(6) dismissal. Civ.R. 12(B)(6) rulings are after all based upon conclusions of law rather than findings of fact. See State ex rel. Drake v. Athens Cty. Bd. of Elections (1988), 39 Ohio St.3d 40. The city herein concedes that pursuant to this court's recent opinion in Biro v. Hartman Funeral Home (Nov. 16, 1995), Cuyahoga App. No. 69085, unreported, the argument relating to R.C. 2744.04(A), which it submitted in its motion to dismiss, is no longer viable with regard to appellant's negligence claim. This court, however, must affirm the trial court's judgment if any valid grounds are found upon review in support of the judgment. Joyce v. General Motors Corp. (1990), 49 Ohio St.3d 93, 96; Van Deusen v. Baldwin (1994), 99 Ohio App.3d 416, 420. "Ohio law has long recognized 'a cause of action for abuse of a dead body' which would include mishandling of a dead body and -5- desecration of a grave." Frys v. City of Cleveland (Oct. 26, 1995), Cuyahoga App. No. 68273, unreported, 6, quoting Carney v. Knollwood Cemetery Ass'n. (1986), 33 Ohio App.3d 31, 32. See, also, Brownlee v. Pratt (1946), 77 Ohio App. 533; Grill v. Abele Funeral Home, Inc. (1940), 69 Ohio App. 51. This court in Frys found that Ohio does not recognize the negligence tort of "wrongful burial." Frys, 9. We also stated, "[n]or is there a cognizable duty to provide a proper and dignified burial aside from appropriate contractual obligations which are not at issue here." Id. See, also, Grill. In the present case, appellant advances that the acts of the city "are sufficient in and of themselves to state a cause of action in neglience." Appellant never complained that the city mishandled or desecrated his father's remains either before or after the date of burial. Even in Frys where the plaintiff's mother's casket was moved from a temporary grave to permanent one, this court declined to recognize a claim for negligence. Therefore, pursuant to Frys, we conclude that the trial court properly dismissed appellant's claim against the city for negligence. Perez; York. This conclusion is reached regardless of whether we view appellant's negligence claim as relating to the misplacement of the headstone or the burial site. This court acknowledges the dissent in Frys which is partially based upon McCracken v. Ziehm (1925), 3 Ohio Law. Abs. 573. This court concluded in McCracken that the plaintiff was entitled to nominal damages resulting from the burial of her daughter, an act -6- done without notice to her parents or their consent. Id. Without even addressing the plaintiff's cause of action in McCracken, a cause of action which is not apparent from reading the opinion, the present case is factually distinguishable. With regard to appellant's intentional infliction of emotional distress claim, this court delineated the essential elements that appellant was required to set forth in order to state such a claim. See Ashcroft v. Mt. Sinai Med. Ctr. (1990), 68 Ohio App.3d 359; see, also, Dickerson v. Internatl. United Auto Workers Union (1994), 98 Ohio App.3d 171. The city proposed in its motion to dismiss that the alleged acts of misplacement of the headstone and/or misplacement of the graves "do not exceed all possible bounds of decency and, therefore, do not support a viable claim for intentional tort." (Emphasis sic.) See Ashcroft, 366. The city alternatively argued that it was not foreseeable that either of the alleged misplacements would have caused severe and debilitating injuries. This court agrees with the city's argument that its alleged actions failed as a matter of law to amount to the culpable conduct required for an intentional infliction of emotional distress claim. See Reamsnyder v. Jaskolski (1984), 10 Ohio St.3d 150; Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369; Ashcroft; Foster v. McDevitt (1986), 31 Ohio App.3d 237; compare, Davis v. Billow Co. Falls Chapel (1991), 81 Ohio App.3d 203 (defendant's alleged intentional and/or negligent act of not having body in casket during calling hours or not informing family members of the empty -7- casket, did not rise to that extreme level of outrageousness from which severe emotional distress would likely result); Brownlee (damages allowed for "mental suffering and anguish" resulting from continuing trespass and acts of indignity upon place of burial); King v. Shelby (1931), 40 Ohio App. 195 (damages denied in action for mental anguish on account of removal of body upon abandonment of cemetery). The trial court's dismissal of appellant's emotional distress claim was accordingly proper under Civ.R. 12(B)(6). Perez; York. Appellant's assignment of error is overruled. 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 Cuyahoga Countyn 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, PRESIDING JUDGE DAVID T. MATIA, JUDGE ANN DYKE, 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. .