COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71089 : JOHN OSWALD : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : ACTION AUTO BODY & FRAME INC. : ET AL. : : Defendant-Appellee : : DATE OF ANNOUNCEMENT APRIL 24, 1997 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 295989 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: MICHAEL J. SKINDELL, ESQ. ERNEST C. PISANELLI, ESQ. Seaman & Associates Company Quandt, Giffels and Buck 1600 Rockefeller Building 800 Leader Building 614 Superior Avenue, N.W. 526 Superior Avenue, N.E. Cleveland, Ohio 44113 Cleveland, Ohio 44114 -2- PATRICIA ANN BLACKMON, P.J.: John Oswald, plaintiff-appellant, appeals a decision of the trial court granting summary judgment in favor of Action Auto Body & Frame, Inc., defendant-appellee. Oswald assigns the following error for our review: WHETHER THE TRIAL COURT ERRED IN GRANTING THE MOTION OF DEFENDANTS-APPELLEES [sic] FOR SUM- MARY JUDGMENT. After reviewing the record and the arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. James Oswald prior to September 15, 1994, was employed by Action Auto Body and Frame, Inc. ("Action Auto"). Action Auto was in the business of towing, repairing, and storaging automobiles. In mid-July, Action Auto towed a damaged 1994 Monte Carlo to its lot. It was fitted in John Quinlan's name and insured by Victoria Fire and Casualty Company ("Victoria"). Victoria, thereafter, appraised the car as a total loss. Oswald notified Victoria that he was interested in acquiring the vehicle. Victoria accepted Oswald's offer. In October 1994, Oswald had the car towed from Action Auto's lot having paid $100.00 towards the storage. Sometime later, Action Auto learned that the car was missing and that it had not been paid $804 for towing and storage. Action Auto determined the car was removed with permission. Action Auto employee Joseph Fort called Euclid police to report the car missing. When contacted by the police, Oswald -3- admitted he had the car. Police told Oswald he could be charged with theft and advised him to return the car until arrangements had been made for the payment of the outstanding towing and storage fees. When Oswald failed to return the car, he was indicted for breaking and entering and grand theft of a motor vehicle. The case was nolled after Oswald paid Action Auto $705 as full restitution. On September 28, 1995, Oswald filed a complaint against Action Auto for malicious prosecution, defamation, and intentional infliction of serious emotional distress. He sought $250,000 in compensatory damages and $500,000 in punitive damages as well as interest, attorney fees, and costs. On May 28, 1996, Action Auto filed a motion for summary judgment alleging that Oswald failed to make the showing of malice to establish his claim of malicious prosecution. Action Auto also argued Oswald failed to establish the element of falsity necessary to support his claim of defamation. Action Auto also argued that Oswald failed to establish any of the elements of his intentional infliction of serious emotional distress action. Oswald responded to the summary judgment motion on June 28, 1996 and gave a different version of events. Oswald alleged that he arranged to purchase the vehicle from Victoria shortly after the car arrived at Action Auto. He offered Victoria $500 for the car and his bid was accepted. Oswald claimed he notified Fort and John Benovitch that he had acquired the Monte Carlo. According to Oswald, he was told that, because he was an employee, he would -4- receive a discount on the storage and towing fees and would have to pay $100 to $150. Oswald performed front end work on the Monte Carlo in full view of Action Auto employees. Benovitch prepared several repair estimates dated August 20, 1994 for the car which listed Oswald as its owner. Also, Oswald paid Benovitch $1200 for use of a machine to straighten the car's frame. According to Oswald, he was unable to work after being injured on the job on September 12, 1994 and later filed a Workers' Compensation claim. He went to Action Auto on September 26, 1994 to discuss his injury, John Shippitka became angry at him for filing a Workers' Compensation claim and fired him. Benovitch returned the $1200 Oswald paid him for use of the frame machine. Fort told Oswald he could use one of the company's tow truck operators to tow the car away. Oswald then left the shop after placing his keys and pager on the desk. Oswald asked Bob Middleton, one of Action Auto's tow truck drivers, to tow the Monte Carlo off the property. On October 17, 1994, Oswald paid Victoria the agreed $500 for the vehicle. He was also told that the title would be mailed to him. He also sent Action Auto a check for $100. Thereafter, Oswald had the Monte Carlo towed from the lot. According to Oswald, on October 18, 1994, Fort called Euclid police and reported the Monte Carlo had been removed without permission. Oswald later received notice of his indictment for breaking and entering and grand theft of a motor vehicle. The case -5- was dismissed on March 27, 1995. Thereafter, Oswald filed his complaint. After reviewing the parties' arguments, the trial court granted Action Auto's motion for summary judgment on July 24, 1996. This appeal followed. In his sole assignment of error, Oswald asserts error in the trial court's grant of summary judgment in favor of Action Auto on his claims of malicious prosecution, defamation, and intentional infliction of serious emotional distress. We begin our analysis with an outline of the standard of review for summary judgments. Under Civ.R. 56, summary judgment should be granted if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts, and stipulations of fact filed in the action show there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Summary judgment should be denied unless, after construing the evidence most strongly in favor of the non-movant, it appears that reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmovant. Once a motion for summary judgment is made, a nonmovant must go forward with evidence on any issue for which he would have the burden of proof at trial. To prove his malicious prosecution claim, Oswald had to show malice in instituting or continuing the prosecution, lack of probable cause for undertaking the prosecu- tion, and termination of the prosecution in favor of the accused. -6- Trussell v. General Motors Corp. (1990), 53 Ohio St.3d 142 at syllabus. In its summary judgment motion, Action Auto argued Oswald failed to demonstrate the element of malice. In malicious prosecution cases, malice has been defined as "an improper purpose, or any purpose other than the legitimate interest of bringing an offender to justice." Criss v. Springfield Twp. (1990), 56 Ohio St.3d 82, 85. Malice may be inferred when a criminal action is instituted without probable cause. See Locher v. Bagley (March 9, 1995), Cuyahoga App. No. 66981, unreported. When determining whether probable cause exists, we must be mindful that the evidence need not be enough to support a conviction but need only be enough to support a cautious man's reasonable belief that the accused is guilty of the crime charged. Id. In this case, there was probable cause to charge Oswald with breaking and entering and grand theft. The evidence is undisputed that Oswald was no longer an employee of Action Auto on the day the Monte Carlo was removed from the lot and that he was not given permission to remove the car on that day. Action Auto employees stated the lot was unoccupied at the time Oswald removed the car. It is also undisputed that Oswald did not have legal title to the car at the time he removed it. In his deposition, Oswald admitted that Victoria had title to the car on the day he removed it from the lot. We conclude this evidence amounted to probable cause to prosecute Oswald for breaking and entering and grand theft. Because Oswald has failed to demonstrate the absence of probable -7- cause, he has not gone forward with sufficient evidence of malice to support his malicious prosecution claim. Consequently, the trial court properly granted summary judgment on that claim. We now turn to Oswald's defamation claim. Defamation has been defined as a false publication causing injury to a person's reputation, or exposing him to public hatred, contempt, ridicule, shame or disgrace, or affecting him adversely in his trade or business. Ashcroft v. Mt. Sinai Medical Ctr. (1990), 68 Ohio App.3d 359, 365. Oswald argues Action Auto made several false statements to police in connection with the removal of the car. However, any communications made by private citizens to law enforcement personnel for the prevention or detection of crime are qualifiedly privileged and may not serve as the basis for a defamation action unless it is shown that the speaker was motivated by actual malice. Hartung-Teter v. McKnight (June 26, 1991), Defiance App. No. 4-91-2, unreported. In this case, Oswald has not shown that Action Auto's statement to the police was made with actual malice. The evidence reveals that Oswald was in the process of negotiating the purchase of the car from Victoria. Though the exact amount is disputed, both parties agree that salvage fees were owed on the car. The record reveals that Action Auto had not received the payment for the salvage fees at the time Oswald removed the car. Even if we accept as true Oswald's claim that Action Auto personnel asked him to remove the car several times, there is no indication that they authorized him to do so without first paying the outstanding towing -8- and purchase fees. The money order for $100 that Oswald alleges was for payment of the towing and storage fees was not received by Action Auto until after Oswald took the car. Under the circumstances, Oswald has not established that Action Auto's statement to police that he did not have permission to remove the car was false or motivated by actual malice. Consequently, the trial court correctly granted summary judgment on his defamation claim. Oswald also argues a genuine issue of fact remained as to his claim for intentional infliction of serious emotional distress. To prevail on his claim, Oswald had to show: *** (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; (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. Ashcroft at 284. The evidence in this case does not support a finding that Action Auto's conduct exceeded the bounds of decency and was utterly intolerable. In addition, Oswald has presented no evidence of serious mental anguish that no reasonable man could be expected to endure. He claimed that he was "emotionally distraught through the entire criminal prosecution" but produced no other evidence -9- beyond his original pleadings in support of his claim for inten- tional infliction of emotional distress. The record is devoid of any evidence that Oswald suffered a severe and debilitating emotional injury. See Burkes v. Stidham (1995), 107 Ohio App.3d 363, 375. The trial court correctly granted summary judgment on Oswald's claim for intentional infliction of emotional distress. Oswald's assignment of error is overruled. Judgment affirmed. -10- It is ordered that Appellee recover of Appellant 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. Exceptions. KARPINSKI, J., and O'NEILL,* J., CONCUR. PATRICIA ANN BLACKMON PRESIDING JUDGE (*SITTING BY ASSIGNMENT: JOSEPH E. O'NEILL, RETIRED JUDGE OF THE 7TH DISTRICT COURT OF APPEALS.) 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 of decision by the .