COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73219 CAROL PISANI : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION FRANCES LOPARO : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OCTOBER 29, 1998 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-316916 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellant: CAROL PISANI, Pro Se 30 Commons Court Chagrin Falls, Ohio 44022 For Defendant-Appellee: RONALD V. RAWLIN, ESQ. Rhoa Follen & Rowlin 1850 Midland Building 101 Prospect Avenue, W. Cleveland, Ohio 44115-1027 PATRICIA ANN BLACKMON, A.J.: -2- Appellant Carol Pisani appeals a decision by the trial court granting summary judgment in favor of appellee Francesca Loparo. Pisani assigns the following error for our review: I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT FRANCES LOPARO SUMMARY JUDGEMENT WHEN THE CASE IS A MATTER OF FACT AND NOT A MATTER OF LAW AND PREVENTING APPELLANT HER RIGHT TO A TRIAL. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. On August 18, 1995, Francesca Loparo reported to the Chagrin Falls Police that on three separate occasions, Carol Pisani attempted to injure Loparo by intentionally swerving her car at Loparo. The Chagrin Falls Police presented the matter to the grand jury, and Pisani was indicted on three counts of felonious assault with a deadly weapon, an automobile. Pisani also had charges pending against her involving her ex- husband, which included the charges of telephone harassment. As part of a plea bargain, Pisani was allowed to plead to telephone harassment. The other charges including the felonious assault charges involving Loparo were dismissed as a result of this plea bargain. Pisani was sentenced to eighteen months, sentence suspended, and placed on five years probation. A year later Pisani sued Loparo alleging malicious prosecution, defamation, intentional infliction of emotional distress, and invasion of privacy. Loparo moved for summary judgment and the trial court granted the motion stating no genuine -3- issue as to any material fact remain[ed] to be litigated. This appeal followed. In her assigned error, Pisani argues the trial court erred in granting summary judgment. We disagree. Summary judgment may be granted only if no genuine issue of material fact exists. Civil Rule 56(C). Our standard of review for summary judgment is the same as that of the trial court. Consequently, we review cases de novo. Brown v. Scioto Cty Bd of Commrs. (1993), 87 Ohio App.3d 704, citing Midwest Specialties, Inc. v. Firestone Co. (1988), 42 Ohio App.3d 6. In applying the de novo standard, we review the trial court's decision independently and without deference to the trial court's determination. Id. at 711. Summary judgment is appropriate when the following have been established: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence construed most strongly in its favor. Brown, supra,citing State ex rel. Coulverson v. Ohio Adult Parole Auth. (1991), 62 Ohio St.3d 12, 14; Civ.R. 56(C). The burden of showing no genuine issue as to any material fact is on the party who requested the summary judgment. Dresher v. Burt (1996), 75 Ohio St.3d 280, citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64 and Hamlin v. McAlpin Co. -4- (1964), 175 Ohio St. 517, 519-520. However, the non-moving party has the initial burden of showing a genuine issue of material fact for trial. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. See Dresher, supra at 295, [limiting syllabus 3 of Wing v. Anchor Media, Ltd of Texas (1991), 59 Ohio St.3d 108.] An issue is genuine only if the evidence is such that a reasonable jury could find for the non-movant. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242. Pisani argues Loparo gave false testimony to the grand jury and is liable to her for malicious prosecution, defamation, intentional infliction of emotional distress, and invasion of privacy. Essentially, she is arguing that she is the truthful one and thus Loparo is untruthful. However, the law is quite pristine on these issues. Pisani must produce evidence of a genuine issue of material fact for which a reasonable jury could find for her. The tort of malicious criminal prosecution is designed to compensate a wrongly accused criminal defendant for the damages caused by the misuse of criminal actions. Carlton v. Davisson (1995), 104 Ohio App.3d 636, 650, citing Criss v. Springfield Twp. (1990), 56 Ohio St.3d 82,84. To prevail on a claim of malicious prosecution, Pisani must provide evidence of each element of malicious prosecution: (1) malice in instituting or continuing the prosecution, (2) lack of probable cause, and (3) termination of the prosecution in favor of the accused. Trussell v. General Motors Corp. (1990), 53 Ohio St.3d 142, syllabus; Rogers v. Barbera (1960), 170 Ohio St. 241, paragraph one of the syllabus. -5- In order to establish malice Pisani must show that Loparo had an improper purpose or any purpose other than the legitimate interest of bringing an offender to justice. Loparo told the police that Pisani tried to injure her on three occasions with Pisani's automobile. The police referred the matter to the grand jury and the grand jury indicted Pisani. Consequently, Loparo's goal was only to prosecute Pisani because she tried to injure her. Pisani failed to show an improper purpose by Loparo in prosecuting her. Pisani, having failed to establish malice as a matter of law, fails to establish the first element of malicious prosecution. Pisani also failed to establish the second element, lack of probable cause. The police presented sufficient evidence to establish probable cause that Pisani attempted to cause injury to Loparo. Loparo testified before the grand jury. The grand jury indicted Pisani based upon the information presented to it. Consequently, Pisani has failed to show the lack of probable cause. Finally, Pisani failed to establish that the criminal matter was terminated in her favor. The facts show that Pisani was not acquitted of the felonious assault charges, but was allowed to plea bargain. The felonious assault was dismissed only because she pled guilty to telephone harassment. Consequently, she cannot say she was acquitted of the charges. A termination of criminal proceedings in favor of the accused other than by acquittal is not a sufficient termination to meet the requirements of a cause of action for malicious prosecution if: (a) the charge is withdrawn or the prosecution abandoned pursuant to an agreement or compromise with accused; ***. The rationale for the rule is -6- that: *** [a]lthough the accused by his acceptance of a compromise does not admit his guilt, the fact of compromise indicates that the question of his guilt or innocence is left open. Having bought peace the accused may not thereafter assert that the proceedings have terminated in his favor. Neff v. Engle (1986), 28 Ohio App.3d 44, 45, quoting Restatement of the Law 2d, Torts (1977), 419, Section 660 and Section 660(a), Comment c. Accordingly, as a matter of law, Pisani failed to establish liability for malicious prosecution. Pisani also alleged defamation, specifically slander per se. Slander per se means slander is accomplished by the very words spoken. McCartney v. Oblates of St. Francis De Sales (1992), 80 Ohio App.3d 345, 346, seventh paragraph of syllabus. Slander per se also consists of words which import an indictable criminal offense involving infamous punishment or moral turpitude * * *. Id. at eighth paragraph of syllabus. However, even where prima facie evidence exists, the claim fails where privilege exists. McCartneyat 354, citing Hahn v. Kotten (1975), 43 Ohio St.2d 237, 243. Here, Loparo testified before the grand jury, and as a witness, she has a privilege from liability for slander. A witness is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding or as a part of a judicial proceeding in which [she] is testifying if it has some relation to the proceeding. Restatement of the Law, 2d Torts (1977) 250, Section 588. Since -7- Loparo's grand jury testimony was privileged, Pisani's defamation claim fails. Pisani also claimed in her complaint that she suffered intentional infliction of emotional distress. Such a claim requires proof of the following: 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.' Carlton, supra, citing Pyle v. Pyle (1983), 11 Ohio App.3d 31, [quoting Restatement of Law 2d, Torts (1965) Section 46, at comments d and j]. Essential to a successful claim is evidence of outrageous conduct by defendant and mental anguish suffered by the plaintiff. Pisani failed to show some evidence that Loparo's conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency. Wilkins v. Ondrovich (1997), 118 Ohio App.3d 93, 98. The only conduct complained of by Pisani was Loparo's testimony before the grand jury. We concluded earlier that said testimony was privileged. Pisani also provided no evidence of mental anguish. Pisani submitted to the trial court a psychological report from Dr. Donald -8- J. Weinstein, the court appointed psychologist. However, the purpose of the report was to address the issue of the emotional and psychological needs of Pisani's children for visitation with her. The type of mental anguish required to prevail on intentional infliction of emotional distress is both severe and debilitating. Roe v. Franklin Cty (1996), 109 Ohio App.3d 772, 784, citing Paugh v. Hanks (1983), 6 Ohio St.3d 72. Regarding Pisani's mental anguish, Dr. Weinstein reported, The intervening time - maturationally speaking, including therapy and jail time, that has passed has allowed for and created a healthier Carol Pisani * * *. (Dr. Weinstein's June 24, 1997 Report p. 3.) Since there is no evidence of emotional distress or outrageous conduct, her claim fails. Finally Pisani argues invasion of privacy. Our review of the record reveals no evidence indicating Pisani suffered from invasion of privacy. An actionable invasion of the right of privacy is the * * * publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities. Rogers v. Buckel (1992), 83 Ohio App.3d 653, 658. Again, Pisani fails to offer some evidence to further her claim. A judicial proceeding in which Pisani is a party does not amount to an invasion of privacy. [A] moving party is entitled to judgment as a matter of law where the nonmoving party failed to come forth with evidence of specific facts on * * * essential elements of the -9- case with respect to which [she] has the burden of proof. Black v. Cosentino (1996), 117 Ohio App.3d 40, citing Celotex Corp. v Catrett (1986), 477 U.S. 317, 323. Thus, we conclude that the trial court properly granted Loparo's summary judgment motion. Judgment affirmed. It is ordered that appellee recover of appellant her 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. KENNETH A. ROCCO, J., and MICHAEL J. CORRIGAN, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE 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 .