COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70006 HAROLD LEVINE, ET AL. : : : PLAINTIFFS-APPELLANTS : JOURNAL ENTRY : v. : AND : COMPLETE OFFICE SUPPLY, INC., : OPINION ET AL. : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 5, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-283197. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: Christopher M. DeVito, Esq. 400 Burgess Building 1406 W. 6th Street Cleveland, OH 44113 For Defendants-Appellees: Richard G. Witkowski, Esq. Martha S. Sullivan, Esq. Ulmer & Berne 900 Bond Court Building 1300 E. 9th Street Cleveland, OH 44114-1583 -2- DAVID T. MATIA, J.: Harold and Sandra Levine, plaintiffs-appellants, appeal from the judgment of the Cuyahoga County Court of Common Pleas which granted the motion for summary judgment of Complete Office Supply, Inc., et al., defendants-appellees. Plaintiffs-appellants assign one error for this court's review. For the following reasons, plaintiffs-appellants' appeal is not well taken. I. THE FACTS This action arises out of the March 10, 1989 sale of an office furniture supply company known as Mercantile Printing Company owned by Harold and Sandra Levine, plaintiffs-appellants, to the shareholders of Complete Office Supply, Inc., defendants- appellees. The shareholders of Complete Office Supply, Inc. included Lloyd J. and Nancy G. Fingerhut, H. Bruce Lederer and Donald and Eileen Zimmerman. Soon after the sale of Mercantile Printing Company, concerns arose regarding the accuracy of the business' previously supplied and projected financial data provided to Complete Office Supply and its shareholders by Harold and Sandra Levine. Consequently, Complete Office Supply initiated a lawsuit in which it sought compensatory and punitive damages and to rescind portions of the March 10, 1989 sale of Mercantile Printing Company based upon the alleged fraudulent representations by Harold and Sandra Levine. In a counterclaim, the Levines sought to enforce the terms of the contract. -3- After discovery, Levines filed a motion for summary judgment seeking the dismissal of all of the Complete Office Supply's claims based upon fraud. On July 20, 1992, the trial court granted Levines' motion for summary judgment. The case then proceeded to trial on Levines' counterclaim upon which Levines prevailed. Although Complete Office Supply's fraud claim had been dismissed, the trial court allowed Complete Office Supply to offer evidence of fraud as an affirmative defense to Levines' counterclaim during trial. On January 11, 1995, Harold and Sandra Levine, plaintiffs- appellants, filed the underlying action in the Cuyahoga County Court of Common Pleas against Complete Office Supply and its shareholders alleging an abuse of process, intentional infliction of emotional distress and loss of consortium arising out of Complete Office Supply's activity in the prior litigation. Harold and Sandra Levine alleged that, after Complete Office Supply's fraud claims had been dismissed by the trial court, Complete Office Supply continued to prosecute its defense without probable cause. On May 1, 1995, Complete Office Supply, Inc. and its shareholders, defendants-appellees, filed a motion for summary judgment alleging that Levines had failed to present any evidence to support the essential elements of their claims. No affidavits or exhibits were attached to defendants-appellees' summary judgment motion. On July 20, 1995, Levines filed their brief in opposition to defendants-appellees' motion for summary judgment. On August 21, 1995, with leave of court, defendants-appellees filed their -4- reply to plaintiffs-appellants' brief in opposition. Attached to defendants-appellees' reply were the affidavits of Lloyd and Nancy Fingerhut, H. Bruce Lederer and Donald and Eileen Zimmerman which stated that the previous litigation was based upon a good faith belief and not pursued for an illegitimate ulterior purpose. On November 21, 1995, the trial court granted Complete Office Supply Inc.'s, et al., defendants-appellees', motion for summary judgment. On December 22, 1995, Harold and Sandra Levine, plaintiffs- appellants, filed a timely notice of appeal from the judgment of the trial court. II. ASSIGNMENT OF ERROR Harold and Sandra Levine's, plaintiffs-appellants', sole assignment of error states: THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. A. THIS ISSUE RAISED: SUMMARY JUDGMENT. Plaintiffs-appellants argue, through their sole assignment of error, that the trial court erred in granting defendants- appellees' motion for summary judgment. Specifically, plaintiffs-appellants maintain that defendants-appellees' summary judgment motion was not supported by sufficient evidence, such as affidavits or other documentary evidence, to warrant the entry of summary judgment. Plaintiffs-appellants maintain further that genuine issues of material fact existed so as to preclude the entry of summary judgment. Lastly, plaintiffs-appellants maintain that the trial court should not have permitted -5- defendants-appellees to file a reply brief with affidavits attached effectively ambushing plaintiffs-appellants procedurally. Plaintiffs-appellants' sole assignment of error is not well taken. B. STANDARD OF REVIEW FOR SUMMARY JUDGMENT. Civ.R. 56(C) provides that before summary judgment may be granted, the court must determine 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; (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. Osborne v. Lyles (1992), 63 Ohio St.3d 326. A motion for summary judgment forces the non-moving party to produce evidence on issues for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108 (syllabus). The non-movant must also present specific facts and may not rely merely upon the pleadings or upon unsupported allegations. Shaw v. Pollack & Co. (1992), 82 Ohio App.3d 656. When a party moves for summary judgment supported by evidentiary material of the type and character set forth in Civ.R. 56(E), the opposing party has a duty to submit affidavits or other material permitted by Civ.R. 56(C) to show that there is a genuine issue -6- for trial. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Ohio Supreme Court recently discussed the proper standard to be applied when reviewing summary judgment motions. The court found as follows: Again, we note that there is no requirement in Civ.R. 56 that any party submit affidavits to support a motion for summary judgment. See, e.g., Civ.R. 56(A) and (B). There is a requirement, however, that a moving party, in support of a summary judgment motion, specifically point to something in the record that comports with the evidentiary materials set forth in Civ.R. 56(C). Id. at 298. This court's analysis of an appeal from a summary judgment is conducted under a de novo standard of review. See Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107; Howard v. Willis (1991), 77 Ohio App.3d 133. No deference is given to the decision under review, and this court applies the same test as the trial court. Bank One of Portsmouth v. Weber (Aug. 7, 1991), Scioto App. No. 1920, unreported. C. STANDARD OF REVIEW FOR ABUSE OF PROCESS. In Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A. (1994), 68 Ohio St.3d 294, the Ohio Supreme defined the tort of abuse of process: The tort action termed "abuse of process" has developed for "cases in which legal procedure has been set in motion in proper form, with probable cause, and even with ultimate success, but nevertheless has been perverted to accomplish an ulterior purpose for which -7- it was not designed." Prosser & Keeton, The Law of Torts (5 Ed. 1984) 897, Section 121. Id. at 297. The Supreme Court stated further: Having determined that Ohio recognizes the tort of abuse of process, we now address the elements of the tort. We hold that the three elements of the tort of abuse of process are (1) that a legal proceeding has been set in motion in proper form and with probable cause; (2) that the proceeding has been perverted to attempt to accomplish an ulterior purpose for which it was not designed; and (3) that direct damage has resulted from the wrongful use of process. Id. at 298. In Clermont Environmental Reclamation Co. v. Hancock (1984), 16 Ohio App.3d 9, 11, the court discussed the first two elements of the tort of abuse of process: To make a case of abuse of process a claimant must show that one used process with an "ulterior motive," as the gist of the offense is found in the manner in which the process is used. *** The tortious character of the defendant's conduct consists of his attempts to employ a legitimate process for a legitimate purpose in an improper manner, and this point must be clearly shown by the plaintiff to entitle him [to] maintain his action. Id. at 11. D. STANDARD OF REVIEW FOR NEGLIGENT/INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. In order to prevail upon a claim of negligent infliction of serious emotional distress, a plaintiff must demonstrate that he/she (1) was a bystander to an incident or accident; (2) reasonably appreciated the peril thereof; and (3) suffered an -8- unforeseeable emotional distress as a result. See Paugh v. Hanks (1983), 6 Ohio St.3d 72 paragraph three of syllabus. The Paugh court defined serious emotional distress as an emotional injury which is both severe and debilitating. Id. at paragraph three (A) of syllabus. Mere "hurt feelings" do not rise to the level of serious emotional distress. Honesty v. Liter Discount Drugstore Co. (Oct. 1, 1987), Cuyahoga App. No. 5279A, unreported. The essential elements a plaintiff must demonstrate in order to establish a claim of intentional infliction of emotional distress were summarized by this court in Ashcroft v. Mt. Sinai Medical Ctr. (1990), 68 Ohio App.3d 359, 366: 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, 11 OBR 63, 66, 463 N.E.2d 98, 103. -9- In attempting to define what constitutes extreme and outrageous conduct, Ohio has adopted Section 46(1) and (2) of the Restatement of Law 2d Torts (1965), and the comments thereto as standards to be used in deciding emotional distress cases. Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 374, the case in which the Ohio Supreme Court first recognized the tort at issue, quotes comment (d) of the Restatement in describing the standard: *** [It] has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by 'malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. 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 liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppression, 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 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 someone's 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. ***. -10- Followed in Reamsnyder v. Jaskolski (1984), 10 Ohio St.3d 150, 153; Ashcroft v. Mt. Sinai Medical Ctr., supra at 366; Pyle v. Pyle (1983), 11 Ohio App.3d 31, 34. The conduct must also be viewed in context to determine what is "beyond all possible bounds of decency *** and utterly intolerable in a civilized community." As this court has previously noted: Ohio courts have consistently recognized that it is essential to view such conduct in context. There are situations naturally fraught with antagonism and emotion where a person must be expected to endure the resultant antagonism and mental anguish. Stepien v. Franklin (1988), 39 Ohio App.3d 47, 51; Dickerson v. International United Auto Workers Union, et al. (Oct. 13, 1994), Cuyahoga App. Nos. 65513 and 65543. E. THE TRIAL COURT DID NOT ERR IN GRANTING DEFENDANTS-APPELLEES' MOTION FOR SUMMARY JUDGMENT. In the present case, a review of the record from the trial court demonstrates that the trial court properly granted defendants-appellees' motion for summary judgment. Initially, plaintiffs-appellants maintain that the trial court improperly granted defendants-appellees' motion as it was not supported by sufficient evidentiary materials and/or documentary evidence as set forth in Civ.R. 56. As previously stated, there is no requirement in Civ.R. 56 that any party submit affidavits, etc. to support a motion for summary judgment. Dresher v. Burt, supra. Summary judgment is properly granted even if the absence of supporting evidentiary materials where the opposing party had -11- sufficient time for discovery and has produced no evidence in support of its claim. Hubbard v. Laurelwood Hosp. (1993), 85 Ohio App.3d 607. Accordingly, the trial court was not precluded from granting defendants-appellees' summary judgment motion merely because it was not supported by sufficient evidentiary materials. Dent v. Ford Motor Co. (1992), 83 Ohio App.3d 283, 285. As previously set forth, the elements of the tort of abuse of process are, (1) a legal proceeding that has been set in motion in proper form and with probable cause, (2) the proceeding has been perverted in an attempt to accomplish an ulterior purpose for which it was not designed, and (3) direct damage resulted from the wrongful use of process. Yalkevich, supra; Ryb v. Contemporary Office Products, Inc. (Nov. 22, 1995), Cuyahoga App. No. 69162, unreported. Applying the elements of the tort of abuse of process to the present facts, it is apparent that plaintiffs-appellants failed to establish that the underlying proceeding was perverted in an attempt to accomplish an ulterior purpose for which it was not designed. Harold Levine's affidavit attached to the plaintiffs- appellants' brief in opposition to defendants-appellees' motion for summary judgment states in pertinent part: 4. Both prior to and throughout the prior litigation, it became apparent that the ultimate purpose of the Plaintiffs in that matter pursuing the litigation against me was to coerce an agreement from myself and the other Defendant wherein the Plaintiffs in that matter would be granted a recission of -12- the transaction to which the Plaintiffs in that matter were bound by the terms of the Sales Agreement; The alleged ulterior purpose identified by Harold Levine, i.e., recission of the transaction set forth in the sales agreement, was in actuality one of the stated purposes of the original lawsuit as well as possible relief the trial court could have ordered had the original allegations of fraud been sufficiently demonstrated. In addition, Levine's affidavit constitutes, at best, a mere conclusory statement unsupported by the evidence and insufficient to withstand defendants-appellees' motion for summary judgment. Accordingly, since plaintiffs- appellants failed to satisfy the second element of the tort of abuse of process, the trial court properly granted summary judgment in favor of defendants-appellees. Viewing the evidence before the court in a light most favorable to plaintiffs- appellants, it is apparent that no genuine issue of material fact exists and reasonable minds could only come to one conclusion adverse to plaintiffs-appellants. Defendants-appellees were properly entitled to judgment as a matter of law on plaintiffs- appellants' claim for abuse of process. Cejer v. Ashmus (May 19, 1994), Cuyahoga App. No. 65538, unreported. Similarly, a review of the record clearly demonstrates that defendants-appellees were also entitled to judgment as a matter of law on plaintiffs-appellants' claim for negligent/intentional infliction of emotional distress. The tort of negligent infliction of emotional distress requires a claimant to -13- demonstrate that he/she was in fear of imminent physical danger resulting in emotional distress/injury which is both severe and debilitating. King v Bogner (1993), 88 Ohio App.3d 564; Paugh v. Hanks, supra. No such elements are even arguably present in this case. Intentional infliction of emotional distress requires that the actor's conduct be "so extreme and outrageous" as to exceed all possible bounds of decency and be considered "utterly intolerable" in a civilized community. Ashcroft v. Mt. Sinai Medical Center, supra. The facts of the present case reveal no such conduct by any party involved. Accordingly, the trial court properly granted summary judgment as to plaintiffs-appellants' emotional distress claims. Lastly, plaintiffs-appellants argue that the trial court erred in allowing defendants-appellees to submit evidentiary materials and address the claim for negligent/intentional infliction of emotional distress for the first time in defendants-appellees' reply brief. A review of the record from the trial court reveals that plaintiffs-appellants did not object to the defendants- appellees' reply brief, which was filed with leave of court pursuant to Loc.R. 11(D) of the Court of Common Pleas of Cuyahoga County, General Division, nor to the fact that affidavits were attached to the reply brief. Accordingly, plaintiffs-appellants are now precluded from asserting this argument for the first time on appeal. McCarthy, Lebit, Crystal & Haiman Co., L.P.A. v. -14- First Union Mgt., Inc. (1993), 87 Ohio App.3d 613; Cleveland v. Association of Firefighters (1991), 73 Ohio App.3d 220. Accordingly, plaintiffs-appellants' sole assignment of error is not well taken. Judgment of the trial court is affirmed. -15- It is ordered that appellees recover of appellants their 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. SPELLACY, C.J. and PATTON, J., CONCUR. DAVID T. MATIA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .