[Cite as Georgin v. Georgin , 2022

- Ohio

- 4328.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

RACHEL GEORGIN

,

Appell ant

,

- vs

-

MARJORIE GEORGIN, et al.

,

Appell ees

. :

:

:

:

:

: CASE NO. CA 202 2

- 05

- 0 34

O P I N I O N

12/5/2022

CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS

Case No. 21CV94458

Faulkner & Tepe LLP, and David C. Ah l strom, for appell ant

.

Rittgers & Rittgers, and Konrad Kircher and Ryan J. McGraw

, for appel l ees

.

M

. POWELL

, P. J.

{¶ 1} Appellant, Rachel Georgin, appeals a decision of the Warren County Court of

Common Pleas granting summary judgment to appellee, Brendan Freisthler

.

{¶ 2} Appellant and Andrew Georgin were divorced in 2017 and have since been

involved in a contentious litigation in the domestic relations court over the allocation of

parental rights and responsibilities for their child

, Rory

. Andrew is now married to Marjorie

Georgin. Brendan is Marjorie's 1 9

- year

- old son and Andrew's stepson.Warren CA20 2 2

- 05

- 0 34

- 2

- {¶ 3} In 2019, Andrew moved to terminate the shared parenting plan for R ory. A

first hearing on the motion was held in June 2020; a second hearing was held on October

6, 2020. On July 10, 2020, during the pendency of the custody litigation between appellant

and Andrew, Marjorie obtained an ex parte civil protection order ("CPO") against appellant.

The ex parte CPO included Brendan as a protected party

. As pertinent here, the ex parte

CPO provided

, appellant "SHALL NOT ENTER the place of employment" of the persons

protected by the CPO and "SHALL STAY AWAY " from and " not be present within 500 feet "

of the protected persons "wherever those protected persons may be found." The ex parte

CPO further prohibited appellant from having any contact with the protected persons and

provided that should appellant accidentally come in contact with a protected person

, she

"must depart immediately ."

{¶ 4} On October 2, 2020, appellant went to a wine store where, unbeknownst to

her

, Brendan was employed. Appellant purchased some items and Brendan rang out her

purchases without incident. Appellant then left. Appellant did not know Brendan, did not

know what he looked like

, and was not aware he was the person who waited on her at the

check

- out counter. Brendan recognized appellant and was aware that his mother had a

CPO against her. Brendan called his mother to ask her if appellant's presence at the wine

store violated the CPO. Brendan then called the police to report the incident.

{¶ 5} A deputy responded to the wine store and took a report. The police report

indicate s that Brendan " wanted to pursue criminal charges if possible" against appellant.

The deputy contacted appellant a nd advised her that she would be charged with violating

the CPO and that a warrant would be issued for her arrest. The d eputy then filed a

complaint in the m unicipal c ourt charging appellant with violating the ex parte CPO. The

matter proceeded to a bench trial on November 12, 2020

, resulting in appellant's acquittal

.

T he municipal court found there was probable cause to file the charge but that appellantWarren CA20 2 2

- 05

- 0 34

- 3

- was unaware that Brendan worked at the wine store.

{¶ 6} The summary judgment evidence also reflects that Marjorie called the police

multiple times between August 2020 and February 2021, alleging that a ppellant had

violated the ex parte CPO. Criminal charges were not filed against a ppellant based on all

of these calls and a ppellant was never convicted of violating the ex parte CPO. Hearings

on Marjorie ' s petition for a CPO against a ppellant were held before a magistrate between

October 2020 and March 2021. The magistrate did not issue a final CPO and vacated the

ex parte CPO.

{¶ 7} On August 6, 2021, a ppellant filed a civil complaint against Andrew, Marjorie

,

and Brendan

, alleging malicious prosecution, abuse of process, intentional infliction of

emotional distress

, and civil conspiracy. Brendan moved for summary judgment and

attached his own affidavit in support of the motion. In his affidavit, Brendan averred that he

was 18 years old at the time of the wine store incident

, that he wa s scared when appellant

entered his place of employment because he was aware of the conflict between appellant,

Andrew, and Marjorie

, and believed that appellant was "an unstable and dangerous

person," and that

I called my mother to ask what I should do. I then called the

police for my protection.

I was never asked whether to pursue charges. I understand that

it was the prosecutor who made the choice to go forward with

the hearing. I was told to appear and testify.

I never acted in bad faith or with malice against [appellant]. I

only acted for my own protection.

{¶ 8} Appellant filed a memorandum in opposition to Brendan's motion and

attached her own affidavit and the police report from the wine store incident. On April 18,

2022, the trial court granted summary judgment in favor of Brendan. In so ruling, the trial

court refused to consider the police report because it was unauthenticated and thereforeWarren CA20 2 2

- 05

- 0 34

- 4

- not competent summary judgment evidence.

{¶ 9} Appellant now appeals the trial court's decision

, raising four assignments of

error. All four assignments of error challenge the trial court's grant of summary judgment

to Brendan.

{¶ 10} An appellate court reviews a trial court's decision on a motion for summary

judgment de novo, independently and without deference to the decision of the trial court.

Betzko v. Mick

, 12th Dist. Fayette No. CA2021

- 08

- 018, 2022

- Ohio

- 999, ¶ 13. Pursuant to

Civ.R. 56(C), summary judgment is proper when (1) there are no genuine issues of material

fact to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3)

when all evidence is construed most strongly in favor of the nonmoving party, reasonable

minds can come to only one conclusion, and that conclusion is adverse to the nonmoving

party. Zivich v. Mentor Soccer Club, Inc.

, 82 Ohio St.3d 367, 369

- 370

, 19 9 8

- Ohio

- 389.

{¶ 11} The moving party bears the initial burden of producing evidence that

affirmatively demonstrates the absence of a genuine issue of material fact as to the

essential elements of the nonmoving party's claims. Dresher v. Burt, 75 Ohio St.3d 280,

292

- 293

, 1996

- Ohio

- 107. Once the moving party satisfies its burden, the nonmoving party

may not rest upon the mere allegations or denials of the pleadings, but must produce

competent evidence of the types listed in Civ.R. 56 (C) demonstrat ing that there is a genuine

issue for trial. Civ.R. 56(E) ; Puhl v. U.S. Bank, N.A.

, 12th Dist. Butler No. CA2014

- 08

- 171,

2015

- Ohio

- 2083, ¶ 13

. Summary judgment is proper if the nonmoving party fails to set forth

such facts. Id.

{¶ 12} Assignment of Error No. 1:

{¶ 13} THE COURT ERRE D IN GRANTING SUMMARY JUDGMENT ON

PLAINTIFF'S CLAIM FOR MALICIOUS PROSECUTION BASED ON THE COURT'S

FAILURE TO CONSIDER THE POLICE RE PORT OFFERED AND THUS THE FACTUALWarren CA20 2 2

- 05

- 0 34

- 5

- DISPUTES RELATED TO IT.

{¶ 14} Appellant argues the trial court erred in granting summary judgment to

Brendan on her claim for malicious prosecution

, raising two issues for review

.

{¶ 15} To prevail on a claim for malicious prosecution, the plaintiff must prove (1)

malice in initiating or continuing the prosecution, (2) lack of probable cause, and (3)

termination of the prosecution in favor of the accused. Betzko

, 2022

- Ohio

- 999 at ¶ 21. The

core of any action for malicious prosecution is lack of probable cause. Id. If the plaintiff

cannot show lack of probable cause, the claim for malicious prosecution fails as a matter of

law. Id. Probable cause exists when the facts and circumstances are such that a cautious

individual would be warranted in the belief that the person accused is guilty of the offense

with which he or she is charged. Barnes v. Meijer Dept. Store

, 12th Dist. Butler No. CA2003

-

09

- 246, 2004

- Ohio

- 1716, ¶ 13. Whether the accused actually committed an offense is not

pertinent to a probable cause determination. Id.

{¶ 16} In her first issue for review, appellant argues that the police report shows the re

is a genuine issue of material fact as to whether Brendan initiated the CPO violation charge

against her. Appellant asserts that th e trial court erred in rejecting the police report as

unauthenticated without first providing her the opportunity to authenticate the report.

{¶ 17} Civ.R. 56(C) provides an exclusive list of materials that a trial court may

consider when deciding a motion for summary judgment. Allstate Vehicle & Property Ins.

Co. v. Inabnitt

, 12th Dist. Warren Nos. CA2021

- 10

- 094 and CA2021

- 10

- 098, 2022

- Ohio

2098, ¶ 25. Those materials are "pleadings, depositions, answers to interrogatories, written

admissions, affidavits, transcripts of evidence, and written stipulations of fact." Civ.R.

56(C). A party may properly introduce evidence not specifically authorized by Civ.R. 56(C)

by incorporating it by reference through a properly framed affidavit pursuant to Civ.R. 56(E).

Id. In order for any document presented to be admiss ible evidence for summary judgmentWarren CA20 2 2

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- 6

- purposes, it must be accompanied by a personal certification that such document is, in fact,

genuine. Id. " Due to the strict language of Civ.R. 56(C), '[d]ocuments which are not sworn,

certified or authenticated by way of affidavit have no evidentiary value and shall not be

considered by the trial court.'" Id. at ¶ 26

, quoting Mitchell v. Ross

, 14 Ohio App.3d 75

, 75

(8th Dist.1984).

{¶ 18} Police reports "are not materials authorized by Civ.R. 56(C) for consideration

on a motion for summary judgment." Steven son v. Prettyman

, 193 Ohio App.3d 234, 2011

-

Ohio

- 718, ¶ 27 (8th Dist.). Appellant did not incorporate the police report into a properly

framed affidavit pursuant to Civ.R. 56(E) when she submitted the report in opposition to

Br endan's summary judgment motion. Butler v. Young

, 8th Dist. Cuyahoga No. 73549,

1999 Ohio App. LEXIS 32, *6

- 7 (Jan. 14, 1999). Appellant also did not certify that the

unsigned police report was a true copy of what it purported to be. Id

. at *7. Although the

police report is a public record, the report was not self

- authenticating because the document

was not certified as a true copy of an official p ublic record

. Id. ; Stevenson at ¶ 27.

{¶ 19} Appellant laments the fact that the trial court did not provide her with the

opportunity to authenticate the police report as it could have easily been done. Appellant

asserts that the failure to properly authenticate the police report was attributable to her prior

attorney. Such argument implicitly acknowledges that the police report was

unauthenticated. The trial court was not required to advise appellant of the law under Civ.R.

56 and appellant failed to avail herself of the procedure afforded by Civ.R. 56 (F). Moreover,

Ohio law recognizes that an attorney's neglect is imputed to his or her client. Clark v. Ohio

Dept. of Job & Family Servs.

, 8th Dist. Cuyahoga No. 105 642, 2017

- Ohio

- 9173, ¶ 14

. A

client is bound by the actions of his or her attorney

. Pomeroy v. Pomeroy

, 11th Dist.

Ashtabula No. 2005

- A

- 0032, 2006

- Ohio

- 5833, ¶ 16

. In light of the foregoing, the trial court

did not err in refusing to consider the police report and we will not consider it in our analysis.Warren CA20 2 2

- 05

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- 7

- {¶ 20} In her second issue for review, a ppellant argues that the trial court erred in

finding there was no genuine issue of material fact relating to the existence of probable

cause to initiate the CPO violation charge against her. Appellant asserts the trial court

ignored the rancor between appellant, Andrew, and Marjorie arising from the contentious

custody dispute and the fact Brendan did not call the police until after he had spoken to

Marjorie.

{¶ 21} W e find that there is no genuine issue of material fact regarding appellant's

claim of malicious prosecution because appellant failed to present evidence establishing

that Brendan engaged in any act with malice or that he lacked probable cause to report the

CPO violation to the police.

{¶ 22} Malice has been defined as " the willful and intentional design to do injury, or

the intention or desire to harm another, usually seriously, through conduct which is unlawful

or unjustified." Sygula v. Regency Hosp. of Cleveland E.

, 8th Dist. Cuyahoga No. 103436,

2016

- Ohio

- 2843, ¶ 29

. "An inference of malice arises from the institution and continuation

of a prosecution without probable cause." Crosset v. Marquette

, 1st Dist. Hamilton No s

. C

060148 and C

- 060180, 2007

- Ohio

- 550, ¶ 13.

{¶ 23} It is undisputed that there was an active and enforceable ex parte CPO

against appellant on October 2, 2020, and that Brendan was a protected party

. The CPO

prohibited appellant from entering Brendan's place of employment

, prohibited her from

having contact with Brendan, required her to stay 500 feet away from Brendan "wherever

[he] may be found," and required her to leave immediately in the event of an accidental

contact with Brendan. Appellant entered Brendan's place of employment, had contact with

Brendan at the cash register, and failed to leave immediately. Following appellant's

departure from the wine store, Brendan made one phone call to Marjorie

. He then notified

the police of the CPO violation. In light of the foregoing, there is no genuine issue of materialWarren CA20 2 2

- 05

- 0 34

- 8

- fact that there was probable cause to support CPO violation charges and that Brendan

acted with probable cause and without malice. We note that at the conclusion of appellant's

CPO violation trial, the municipal court orally stated that the charges were supported by

probable cause.

{¶ 24} The trial court, therefore, did not err in granting summary judgment in favor of

Brendan on appellant's malicious prosecution claim. Appellant's first assignment of error is

overruled.

{¶ 25} Assignment of Error No. 2 :

{¶ 26} THE COURT ERRED IN GRANTING SUMMARY JUDGMENT ON

PLAINTIFF'S CLAIM FOR ABUSE OF PROCESS BECAUSE IT WEIGHED THE

EVIDENCE AND CONSTRUED KEY FACTS AGAINST PLAINTIFF.

{¶ 27} Appellant argues the trial court erred in granting summary judgment to

Brendan on her abuse

- of

- process claim because the court failed to consider that Brendan

report ed the CPO violation in the context of the contentious custody dispute between

appellant and Andrew and only after speaking with Marjorie. Appellant asserts that

"Brendan was an active participant in the perversion of the CPO trial, by participating in one

of the many calls to the police made in an attempt to have [appellant] arrested for violating

the CPO ," and that the CPO violation charge was filed for the purpose of providing an

advantage to Andrew in his ongoing custody dispute with appellant.

{¶ 28} Abuse of process encompasses cases where " 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 it was not

designed." Y

aklevich v. Kemp, Schaeffer & Rowe Co., L.P.A.

, 68 Ohio St.3d 294, 297,

1994

- Ohio

- 503. To prevail on an abuse

- of

- process claim, the plaintiff must establish that

(1) a legal proceeding has been set in motion in proper form and with probable cause, (2)Warren CA20 2 2

- 05

- 0 34

- 9

- the proceeding has been perverted to attempt to accomplish an ulterior purpose for which

it was not designed, and (3) direct damage has resulted from the wrongful use of process.

Id. at 298

. "'Abuse of process' differs from 'malicious prosecution' in that the former

connotes the use of process properly initiated for improper purposes, while the latter relates

to the malicious initiation of a lawsuit which one has no reasonable chance of winning."

Robb v. Chagrin Lagoons Yacht Club, Inc.

, 75 Ohio St.3d 264, 271, 1996

- Ohio

- 189, quoting

Clermont Environmental Reclamation Co. v. Hancock

, 16 Ohio App.3d 9, 11 (12th

Dist.1984). There is no liability for abuse of process where the defendant has done nothing

more than carry out the process to its authorized conclusion, even though with bad

intentions. Yaklevi

ch at 298, fn. 2.

{¶ 29} We find that there is no genuine issue of material fact regarding appellant's

abuse

- of

- process claim because appellant failed to present evidence establishing

Brendan's ulterior motive

.

{¶ 30} In his affidavit, Brendan averred he was scared when appellant entered the

wine store because he was aware of the conflict between appellant, Andrew, and Marjorie

and believed appellant was a dangerous and unstable person. Brendan further averred he

reported the CPO violation for his own protection. Appellant did not provide competent

summary judgment evidence to show otherwise.

{¶ 31} There is no summary judgment evidence that Brendan had an ulterior motive

in reporting appellant's CPO violation to the police. Although Andrew was involved in a

protracted and contentious custody dispute with appellant

, there is no summary judgment

evidence, other than Brendan ' s relationship with Andrew, that suggests Brendan reported

the matter to the police to give Andrew some advantage in the custody dispute. The only

evidence concerning Brendan ' s call to Marjorie was to ask her what he should do. There

is no evidence of what Marjorie told Brendan that would suggest he reported the matter toWarren CA20 2 2

- 05

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- 10

- the police with such an ulterior motive.

{¶ 32} Appellant invites us to speculate that Marjorie told Brendan to report the CPO

violation to the police to assist Andrew in the custody dispute and that Brendan agreed.

However, Brendan had nothing to gain by reporting the CPO violation to the police and

there is no evidence as to the content of Brendan ' s telephone conversation with Marjorie

.

Although there may be issues as to whether Marjorie had an ulterior motive in advising

Brendan what to do about the CPO violation (presumably to call the police), there is nothing

to suggest he shared that ulterior motive. The mere fact of Brendan's family relationship

with Marjorie and Andrew does not create a genuine issue of material fact that Brendan

acted in concert with Marjorie and Andrew to gain an advantage in the pending custody

litigation. The only conduct of Brendan relied upon by appellant as creating a genuine issue

of material fact regarding he r abuse

- of

- process claim is a call to Marjorie and a single call

to the police

. Walsh v. Walsh

, 4th Dist. Lawrence No. 08CA 4, 2008

- Ohio

- 5701 ; Cantrell v.

Deitz

, 10th Dist. Franklin No. 12AP

- 357, 2013

- Ohio

- 1204, ¶ 26

- 30.

{¶ 33} The trial court, therefore, did not err in granting summary judgment in favor of

Brendan on appellant's abuse

- of

- process claim. Appellant's second assignment of error is

overruled.

{¶ 34} Assignment of Error No. 3 :

{¶ 35} THE COURT ERRED IN GRANTING SUMMARY JUDGMENT ON

PLAINTIFF'S CLAI M FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

BECAUSE IT WEIGHED THE EVIDENCE AND CONSTRUED KEY FACTS AGAINST

PLAINTIFF.

{¶ 36} Appellant argues the trial court erred in granting summary judgment to

Brendan on her claim for intentional infliction of emotional distress because the court failed

to consider that Brendan report ed t he CPO violation in the context of the contentiousWarren CA20 2 2

- 05

- 0 34

- 11

- custody dispute between appellant and Andrew and only after speaking with Marjorie

.

{¶ 37} To prevail on a claim of intentional infliction of emotional distress, the plaintiff

must show that (1) the defendant either intended to cause emotional distress or knew or

should have known the actions taken would result in serious emotional distress to the

plaintiff

, (2) the defendant'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) the defendant's actions proximately caused psychological injury

to the plaintiff

, and (4) the plaintiff suffered serious emotional distress of a nature that no

reasonable man could be expected to endure it. Ward v. Oakley

, 12th Dist. Butler No.

CA2013

- 03

- 031, 2013

- Ohio

- 4762, ¶ 35. Parties generally c annot be held liable for

intentional infliction of emotional distress for having performed an act they were legally

entitled to perform. Morrow v. Reminger & Reminger Co.

, L

. P

. A

. , 183 Ohio App.3d 40,

2009

- Ohio

- 2665, ¶ 49 (10th Dist.) ; Sears Roebuck & Co. v. Swaykus

, 7th Dist. Jefferson

No. 02 JE 8, 2002

- Ohio

- 7183

, ¶ 12.

{¶ 38} The requirement that the conduct be "extreme and outrageous" is high. It is

not 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 "m alice, " or a degree of aggravation which would entitle the plaintiff to

punitive damages for another tort. Reamsnyder v. Jaskolski

, 10 Ohio St.3d 150, 153 (1984)

.

" 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. " Id. It is the act

, rather than

the result, that must be outrageous and extreme. Scott v. Spearman

, 115 Ohio App.3d 52,

58 ( 5th Dist.1996). Whether conduct is "outrageous and extreme" is initially a question of

law for the court. Staki ch v. Russo

, 8th Dist. Cuyahoga No. 20 CA 109392, 202 1

- Ohio

-Warren CA20 2 2

- 05

- 0 34

- 12

- 1098, ¶ 27.

{¶ 39} We find that there is no genuine issue of material fact regarding appellant's

claim of intentional infliction of emotional distress because appellant failed to present

evidence establishing the elements of her claim. Specifically, appellant has not

demonstrated that Brendan's conduct was extreme and outrageous and has failed to show

that she suffered the type of serious emotional distres s required to establish a claim of

intentional infliction of emotional distress.

{¶ 40} Appellant asserts that Brendan's report of the CPO violation to the police was

extreme and outrageous given the ongoing contentious custody dispute between appellant

and Andrew, the fact Marjorie had called the police several times in an attempt to find

appellant in violation of the CPO, and the timing of Brendan's report a mere four days before

the second custody hearing.

{¶ 41} Brendan was a protected person under the ex parte CPO against appellant

when she entered Brendan's place of employment. Brendan made a single report to the

police about the CPO violation

. Brendan was legally entitled to report the CPO violation

and th e report and subsequent charge against appellant were supported by probable cause.

Morrow

, 2009

- Ohio

- 2665 at ¶ 49; Sears

, 2002

- Ohio

- 7183 at ¶ 12. Moreover, i nitiating a

police report and cooperating with a police investigation are not "utterly intolerable" acts in

a civilized community and do not rise to the level of ext reme and outrageous conduct

necessary to support a claim of intentional infliction of emotional distress. Stakich

, 2021

-

Ohio

- 1098 at ¶ 27, citing Ma tthias v. Wendy's of Pearl, Inc.

, 8th Dist. Cuyahoga No. 71721,

1997 Ohio App. LEXIS 4227, * 10 (Se p t

. 18, 1997). Brendan's report of the CPO violation

does not constitute a 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 ."Warren CA20 2 2

- 05

- 0 34

- 13

- {¶ 42} Moreover, appellant h as failed to establish that she suffered the type of

serious emotional distress required to establish a claim of intentional infliction of emotional

distress. See Yeager v. Local Union 20

, 6 Ohio St.3d 369, 374 (1983). In order to constitute

serious emotional distress, "the injury that is suffered must surpass upset or hurt feelings,

and must be such that 'a reasonable person, normally constituted, would be unable to cope

adequately with the mental distress engendered by the circumstances in the case.'" Ward

,

2013

- Ohio

- 4762 at ¶ 37 ; Paugh v. Hanks

, 6 Ohio St.3d 72, 78 (1983). The person claiming

serious emotional distress must present some "guarantee of genuineness" in support of his

or her claim to prevent summary judgment. Ward at ¶ 38. A plaintiff can supply this

genuineness with expert medical testimony or with testimony of lay witnesses who are

acquainted with the plaintiff and who "testify as to any marked changes in the emotional or

habitual makeup that they discern in the plaintiff

. " Id. at ¶ 39

, citing Paugh at 80

.

{¶ 43} Appellant's complaint simply alleged that she suffered "humiliation,

embarrassment, fear, anxiety, mental anguish, and emotional distress

, " and that she has

difficulty sleeping at night. Likewise, her affidavit simply avers that she has suffered "severe

emotional distress." Appellant provided no evidence establishing that her fear, anxiety, and

mental anguish rendered her unable to function in daily life, or that she sought or received

any medical treatment for emotional distress resulting from the October 2, 2020 incident

giving rise to her lawsuit. Stancik v. Deutsche Natl. Bank

, 8th Dist. Cuyahoga No. 102019,

2015

- Ohio

- 2517, ¶ 44

- 45 ; Crable v. Nestle USA

, Inc.

, 8th Dist. Cuyahoga No. 86746, 2006

-

Ohio

- 2887 ( summary judgment on a claim for intentional infliction of emotional distress is

appropriate when the plaintiff presents no testimony from experts or third parties as to the

emotional distress suffered and where the plaintiff does not seek medical or psychological

treatment for the alleged injuries ).

{¶ 44} The trial court, therefore, did not err in granting summary judgment in favor ofWarren CA20 2 2

- 05

- 0 34

- 14

- Brendan on appellant's claim of intentional infliction of emotional distress. Appellant's third

assignment of error is overruled.

{¶ 45} Assignment of Error No. 4 :

{¶ 46} THE COURT ERRED IN GRANTING SUMMARY JUDGMENT ON

PLAINTIFF'S CLAIM FOR CIVIL CONSPIRACY BECAUSE IT WEIGHED THE EVIDENCE

AND CONSTRUED KEY FACTS AGAINST PLAINTIFF.

{¶ 47} A civil conspiracy is a "malicious combination of two or more persons to injure

another person or property, in a way not competent for one alone, resulting in actual

damages." Betzko

, 20 22

- Ohio

- 999 at ¶ 3 2. The elements of civil conspiracy are (1) a

malicious combination, (2) two or more persons, (3) injury to person or property

, and (4)

existence of an unlawful act independent from the actual conspiracy. Mangelluzzi v. Morley

,

8th D ist. Cuyahoga No. 102272, 2015

- Ohio

- 3143, ¶ 54

. An action for civil conspiracy

cannot be maintained unless an underlying unlawful act is committed. Wells Fargo v. Smith

,

12th Dist. Brown No. CA2012

- 04

- 006, 2013

- Ohio

- 855, ¶ 53.

{¶ 48} We have held that the trial court properly granted summary judgment to

Brendan on all of appellant's claims discussed above

. Without an underlying tort, appellant

cannot establish a claim for civil conspiracy. Id. at ¶ 54 ; Betzko at ¶ 33

. Consequently, the

trial court did not err in granting summary judgment to Brendan on appellant's civil

conspiracy claim.

{¶ 49} Appellant's fourth assignment of error is overruled.

{¶ 50} Judgment affirmed.

HENDRICKSON and PIPER

, J J

. , concur.