[Cite as Clay v. Schriver Allison Courtley Co., 2018-Ohio-3371.]



             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 MAHONING COUNTY

                                  BEVERLY ANN CLAY, et al.,

                                        Plaintiffs-Appellants,

                                                      v.

                       SHRIVER ALLISON COURTLEY CO., et al.,

                                       Defendants-Appellees.


                        OPINION AND JUDGMENT ENTRY
                                         Case No. 17 MA 0003


                                    Civil Appeal from the
                       Court of Common Pleas of Mahoning County, Ohio
                                   Case No. 2015 CV 2906

                                         BEFORE:
                  Cheryl L. Waite, Gene Donofrio, Kathleen Bartlett, Judges.


                                         JUDGMENT:
                     Affirmed in part. Reversed in part. Remanded in part.

Atty. William Paul McGuire
William Paul McGuire Co., L.P.A., 106 E. Market Street, Suite 705, P.O. Box 1243,
Warren, Ohio 44482-1243, for Plaintiffs-Appellants

Atty. Kurt R. Weitendorf, and
Atty. Todd Anthony Mazzola, Roderick Linton Belfance, LLP, 50 S. Main Street, 10th
Floor, Akron, Ohio 44308, for Defendant-Appellee Shriver Allison Courtley Company

Atty. Morris L. Hawk, and
Atty. Ronald A. Rispo, Weston Hurd LLP, The Tower at Erieview, 1301 E. Ninth Street,
Suite 1900, Cleveland, Ohio 44114-1862, for Defendant-Appellee Funeral Home
Services Corp.
                                                                                     –2–



                                 Dated: August 16, 2018


WAITE, J.

       {¶1}    Plaintiffs-Appellants, Estate of Beverly Ann Clay (with Elmer Clay as

Administrator), Lilly May Curtis, and Mary Jane Patton (collectively “Appellants”), appeal

the trial court’s decision to grant summary judgment in favor of Defendants-Appellees,

Funeral Home Services Corp. (“FHS”) and Shriver Allison Courtley, Company, aka

Shriver-Allison-Courtley-Weller-King (“Shriver”) in this matter, which is based on

intentional infliction of emotional distress and breach of contract.

       {¶2}    Appellants’ lawsuit centers on conduct that occurred during both the

preparation and execution of the funeral services for their mother, Rose White.

Appellants have not appealed the trial court’s judgment in favor of Appellees on their

negligent infliction of emotional distress claims or the breach of oral contract claim

against FHS.

       {¶3}    For the following reasons, the judgment of the trial court is affirmed with

respect to Appellants’ intentional infliction of emotional distress claims against FHS and

Shriver. The breach of contract claim against Shriver, to the extent that this claim is

based on an obliterated handwritten provision in the parties’ contract, is also affirmed.

The matter is reversed in part, however, with respect to the remainder of the breach of

contract claim against Shriver. We also affirm the trial court’s decision to overrule

Appellants’ motion to amend their verified complaint. This matter is remanded for trial

on the breach of contract claim against Appellee Shriver.

                                    Procedural History




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       {¶4}   Originally, Appellants brought suit against three parties defendant: FHS,

Shriver and a defendant named and Brian Lozano. Appellants voluntarily dismissed

their original complaint after discovery was completed and summary judgment had been

entered in favor of FHS and Lozano. When Appellants re-filed this action in common

pleas court, Lozano was named but never served.

       {¶5}   Prior to voluntary dismissal, all three defendants had filed motions for

summary judgment and an appeal was pending in this Court.                 The appeal was

prematurely taken, because the trial court had not included the language making its

order final and appealable. When the matter was voluntarily dismissed, we dismissed

the premature appeal as well.

       {¶6}   When the case was re-filed, the trial court entered a stipulated order

incorporating the discovery from the original complaint.          The prayer for relief in

Appellants’ verified complaint states claims for intentional infliction of emotional distress

and breach of contract, as well as “[s]uch other and additional causes of action,

including but not limited to, misrepresentation, fraud, malice, intent, knowledge that the

actions did cause or would cause infliction of harm or irreparable psychological effect,

and such additional causes of action or equitable relief as may be determined by a jury.”

(11/4/15 Verified Compl., Prayer for Relief, ¶ 1-3.)       In the body of the complaint,

Appellants allege that they suffered severe emotional distress as a result of the

intentional acts, gross negligence, negligence, and violation of professional standards of

FHS and Shriver employees. (11/4/15 Verified Compl., ¶ 14.)

       {¶7}   Summary judgment motions were immediately re-filed. Because of the

interlocutory nature of the summary judgment originally entered in favor of FHS and




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Lozano, the trial court re-considered the claims against these parties, despite the fact

that Lozano was never properly served.

         {¶8}   A motion for leave to amend the verified complaint to include a fraud claim

and a motion to file surreplies were filed by Appellants after briefing on summary

judgment was complete, but neither motion was addressed by the trial court. In fact, in

the trial court’s entry granting summary judgment in favor of Shriver the court states that

no motion to amend was filed.

         {¶9}   It appears neither judgment entry was actually drafted by the court.

Instead, they seem to be proposed entries submitted by FHS and Shriver. The FHS

judgment        entry   is   erroneously   captioned    “PROPOSED         FINDINGS      OF

FACT/STATEMENT OF THE CASE.” It is unclear as to the date or dates the proposed

entries were submitted to the trial court, but it is probable that they were submitted prior

to the filing of the motions to amend and request to file surreplies, which explains the

language in one of the entries that no motion to amend the verified complaint had been

filed.

                                           Facts

         {¶10} The following facts are taken from the written discovery and deposition

testimony of the parties, as well as affidavits offered in support of summary judgment.

                                        Rose’s death

         {¶11} The Appellants’ mother, Rose White, suffered a massive stroke while

renewing her drivers’ license at the ODMV. She was ninety-three years old. After Rose

was pronounced brain dead at Northside Hospital in Youngstown, Ohio, her daughters

had her transferred by ambulance to the main campus of the Cleveland Clinic.




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       {¶12} Appellants described their mother as a spry woman, who maintained

herself, her home, and her yard without assistance, despite her advanced age. They

were shocked by her sudden illness. Physicians at the Cleveland Clinic confirmed

Northside’s prognosis, and life support was removed on July 24, 2008 at roughly 4:00

p.m.

       {¶13} Within one half of an hour of her mother’s death, Patton contacted Shriver

and spoke to the funeral director, David Courtley. Shriver had conducted the funeral

services for several members of Rose’s family without incident when the funeral home

was under different management.

       {¶14} Patton requested that her mother’s body be retrieved from the Cleveland

Clinic and brought to the funeral home in Youngstown by Shriver. She also asked that

she and her sisters be permitted to accompany their mother’s body back to

Youngstown. She told Courtley that they were unfamiliar with the Cleveland area and

needed guidance to return to Youngstown. She did not request a hearse.

                          FHS and the transportation services

       {¶15} Courtley contacted FHS to arrange for the transportation of the body.

While the transportation services were provided by FHS, Shriver billed for the services.

       {¶16} Lozano, who appears to have been an independent contractor for FHS,

retrieved the body on behalf of FHS. He contacted Appellants roughly two and one-half

hours after Patton’s conversation with Courtley to inform them that he was detained

because the vehicle he was driving got a flat tire. Lozano arrived in a family-style,

maroon van at approximately 9:00 p.m. (Curtis Depo., p. 35.)




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       {¶17} Lozano collected Rose’s body outside of the view of Appellants and they

concede that they never saw the interior of the van. Lozano met Appellants in the

parking lot of the Cleveland Clinic, where he asked Patton if she thought she could

“keep up” with him on the way to Youngstown. He then traveled to Youngstown, in the

rain, between 9:00 and 10:00 p.m. and at an alarmingly high rate of speed, in excess of

85 miles per hour on the interstate, weaving in and out of heavy traffic.

       {¶18} Lozano conceded that he expressed surprise to Appellants when they

arrived in Youngstown that Patton had been able to follow him. Patton responded that

Lozano had missed his calling and should have been a race car driver. According to

Patton’s testimony, Lozano traveled approximately 76.6 miles in roughly fifty minutes.

       {¶19} At Shriver, Lozano asked Appellants if they intended to embalm their

mother.    He then engaged in a heated conversation with Patton in which he

emphatically expressed his opinion that embalming was unnecessary.               Shortly

afterward, Lozano told them that state law prohibited them from entering the embalming

room, so they returned home without viewing Rose’s body at the funeral home.

       {¶20} Lozano testified that the van contained all of the equipment required for

the transportation of a deceased person, and that he followed all of the required

protocols. William Schaper, the owner of FHS, testified that all of the vans owned by

the company were outfitted with the required equipment for the transportation of

deceased persons. However, he testified that all four of the vans owned by FHS at the

time were silver. (Schaper Depo., p. 17.)

                             Shriver and the funeral service




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       {¶21} When Appellants arrived at the funeral home to make arrangements for

the viewing hours and funeral service the following day, Kimberly Romanchuk,

Courtley’s daughter and a Shriver employee, rushed them through the decision-making

process, interjecting several times that she had a thirteen year old daughter who was at

home alone. When Appellants could not immediately decide on certain elements of the

funeral service, Romanchuk became belligerent. Romanchuk informed them that there

would not be sufficient time to print prayer cards. At one point, she asked why they

wanted both afternoon and evening calling hours and whether they intended to “stand

around and look at each other.” (Patton Depo., pp. 115-116.)

       {¶22} When Curtis commented about their dangerous and upsetting trip home

from Cleveland, Romanchuk told her that Rose’s body had been transported in a family

van belonging to the driver’s mother-in-law because the hearse had a flat tire. (Curtis

Depo., pp. 100-102.) However, Romanchuk refused to identify Lozano as the driver.

       {¶23} Appellants purchased a Matthews Andover maple coffin with a peach

lining and a mahogany exterior. Both the exterior color and lining were important to the

family. Romanchuk assured the family that the coffin was similar to the one that Rose

selected for their father. They chose a peach lining because Rose disliked pink.

       {¶24} When the arrangements were complete, Romanchuk told Appellants that

they had only thirty minutes to return with Rose’s clothing, otherwise the doors would be

locked. She instructed certain family members to collect the clothing while the others

went to the florist shop to save time.




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      {¶25} Some floral deliveries were not able to be made because there was no

one at the funeral home to accept delivery. As a consequence, family and friends were

forced to bring their arrangements with them to the funeral home.

      {¶26} At the viewing, Appellants were shocked at Rose’s appearance. Her hair

was fanned out six to eight inches around her head on the pillow with a thick layer of

hair spray, and there were hair clippings in the casket and on her gown.           Family

members collected the cut hair and removed it from the casket. Rose had no color and

her veins were visible. They noticed visible stitching in her mouth.

      {¶27} Rose was not lying flat in the casket; her head and right shoulder were

upturned to the left. She was not wearing the bra that the family brought to the funeral

home with the gown, so the outline of her breasts and nipples was visible. (Betty June

Fischer Depo., p. 35.) When Romanchuk lifted the blanket to put booties on Rose’s

feet, Appellants discovered bruising and a bloody bandage on her right ankle.

      {¶28} No funeral home employee visited them to offer support during calling

hours. That evening after the final guests had left and when the family was taking a

private moment at their mother’s side, Courtley told them that it was time to leave.

      {¶29} The following day, during the minister’s eulogy at Shriver, Romanchuk

began removing the cards from the floral arrangements, which she placed in a bag.

She handed the bag and the funeral bill to Patton during the eulogy. She then began

removing the floral arrangements.      Courtley appeared and could be heard telling

Romanchuk, “[d]amn it to hell, get moving, we have another funeral.” (Patton Depo., p.

131.) At the conclusion of the eulogy, Courtley slammed the casket lid shut and said,

“[c]an I get my damn job done here?” (Patton Depo., p. 133.)




Case No. 17 MA 0003
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       {¶30} There was no final procession before the casket for mourners. Courtley

dismissed everyone including the pall bearers to their automobiles. He and another

funeral employee put the casket on the gurney and took it to the hearse. After half-

heartedly attempting to organize the family vehicles he was heard to say, “[t]he hell with

it.” He got in the hearse and left. (Patton Depo., p. 138.)

       {¶31} There was no organized funeral procession to the cemetery. There were

roughly fifteen cars, but several cars were separated from the hearse due to traffic. At

the grave site, Courtley announced that he had another funeral and left before the

grave-side service was concluded. No guest registry was kept by the funeral home.

                           Allegations against FHS and Shriver

       {¶32} Appellants assert that their mother’s body was misshapen as a result of

Lozano’s failure to properly secure it in a van that was not equipped for the

transportation of a deceased person, coupled with the frantic manner in which it was

transported to Youngstown.       They surmise that Rose’s body was left in the van

overnight in the funeral home parking lot, although they have offered no evidence to

support that allegation. As a consequence, Appellants contend that Lozano and FHS

are liable for intentional infliction of emotional distress. They also asserted breach of an

oral contract, apparently based on Appellants’ request to follow Lozano back to

Youngstown, Ohio, but this is not raised on appeal. Due to the behavior of Courtley and

Romanchuk, as well as the sub-standard funeral services provided by Shriver,

Appellants contend that Shriver is liable for intentional infliction of emotional distress

and breach of contract.




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       {¶33} The contract for funeral services was executed by Beverly Ann, and

signed on behalf of the funeral home by “David & Kim.” The total cost of the funeral

services was $10,633.04. The fee was due within one month following the execution of

the contract, with a 12% per annum late fee. There is a handwritten notation at the

bottom of the contract that was scratched out by Courtley. The parties stipulate that the

handwritten notation stated that the contract price would be paid after Rose’s house

was sold. The bill was, in fact, paid several years later, after the sale of Rose’s house.

With the late fee, the bill totaled $13,326.73.

                           Events following the funeral services

       {¶34} After the burial service at the cemetery was complete, Appellants

complained that their mother’s plot was facing the wrong direction from the rest of the

family plots. Appellants decided to return to the burial site later to confirm that the

casket was properly repositioned. When they arrived, cemetery workers had already

used a backhoe to dig around the casket and turn it, instead of raising and repositioning

it. Appellants concede that Shriver was not responsible for the incorrect positioning and

repositioning of the casket at the grave site.

       {¶35} In order to investigate the allegations in the original complaint, Rose’s

body was exhumed on July 14, 2014. Both Patton and Curtis were present for the

disinterment. Upon exhumation, the parties discovered that the lid had collapsed and

water had filled the casket, so it had to be drained before it was opened. The broken

casket lid lay atop Rose’s remains, which were bloated and unrecognizable because

they had been completely submerged in water.




Case No. 17 MA 0003
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       {¶36} Due to the damage to the body caused by the water and broken casket,

Appellants’ expert, Curtis Robinson, a funeral home director and licensed mortician,

was unable to determine Appellants’ claim that the face and body had been in a

skewed, raised position, but he confirmed that the body had been embalmed. He noted

that the funeral gown was sheer and that Rose was not wearing a bra. The wire holding

her mouth closed was visible. The embalmer did not use eye caps, which was standard

in the industry. Robinson ultimately concluded that the decedent’s overall appearance

for viewing did not meet the standard of care in the funeral home industry.

       {¶37} Photographs revealed that a plate on the casket read, “York Northern

Maple.”   (Sterling Williams Aff., ¶ 3.)      In their motion to amend and also in their

opposition to Shriver’s motion for summary judgment, Appellants contend that Shriver

defrauded them by replacing the Andover Maple casket with the peach interior they had

ordered and paid for with a casket of lesser quality having a pink lining. According to

Courtley’s affidavit, York is a wholly-owned subsidiary of Matthews International, the

marketers of the Andover Maple casket purchased by Beverly Ann. He attests that the

casket in which Rose was buried is the same model number as the casket identified in

the contract. (David Courtley Aff., ¶ 3-7.)

       {¶38} Patton and Curtis were required to re-inter Rose’s body the same day it

was exhumed. Consequently, Rose was buried in a metal casket. Appellants filed a

separate lawsuit against the vault manufacturer and the cemetery association in 2015.

That case was voluntarily dismissed in 2016 and re-filed in 2017. Summary judgment is

pending in the matter.

                   Appellants’ evidence of serious emotional distress




Case No. 17 MA 0003
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       {¶39} Beverly Ann died on February 26, 2012, roughly three and one-half years

after her mother’s death and five months before depositions were taken in the original

case. Curtis and Patton both testified that the circumstances surrounding their mother’s

funeral haunted Beverly Ann for the remainder of her life and hastened her death at the

age of 64.

       {¶40} Beverly Ann had promised her mother that she would oversee the funeral,

and she was plagued with guilt over the manner in which her mother’s remains were

handled. After the funeral, she could hardly function and no longer prepared meals or

performed any housekeeping chores. She frequently wept over the fear that she had

disappointed Rose. The night before Beverly Ann died, she cried about her mother’s

funeral. (Curtis Depo., pp. 137-138.)

       {¶41} Medical records from Beverly Ann’s primary physician, M.C. Dougherty,

M.D. were offered to oppose summary judgment. Notes dated November 31, 2008

indicate that she contacted Dr. Dougherty’s office due to health problems following her

mother’s death and she was told to take Xanax twice a day, which had been previously

prescribed. (Opp. Brf. to FHS Mot. For S.J. in 11 CV 2151, Exh. 9.) Notes dated

October 9, 2009 indicate that Beverly Ann exhibited stress following the deaths of her

mother the previous summer and her brother within the previous year. Notes captioned

“History of Present Illness” from her visit to Dr. Dougherty on July 27, 2011 read, in

pertinent part:

       The patient comes in today for follow-up. She has [sic] under a lot of

       stress. Her mother and brother died and her son committed suicide. She

       and her husband are raising their 12-year-old grandson. Overall she has




Case No. 17 MA 0003
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      been doing okay. She denies chest pain or shortness of breath. She has

      no medical insurance at this point. Her husband was recently called back

      to work. She sleeps okay at night. She doesn’t know if [prescribed heart

      medication] is making her tired.

(Opposition Brf. to Shriver Mot. For S.J., Exh. 3.) The notes indicate that she was

prescribed Xanax for situational stress.

      {¶42} Elmer Clay, Beverly Ann’s husband, testified that she cried on a daily

basis, had difficulty performing household chores, would rarely dress for the day, and

that she was treated for heart problems, hypertension, anxiety, and depression.

However, he conceded that Beverly Ann never sought psychiatric treatment for her

emotional problems. (Elmer Clay Depo., pp. 32, 64.)

      {¶43} Curtis testified at her deposition on July 16, 2012 that she was

hospitalized after her mother’s death due to uncontrollable blood pressure spikes. She

was prescribed medication to treat hypertension and anxiety. Curtis testified that she

struggles with sleeplessness and lack of concentration, which she attributes to daily

triggers that remind her of her mother’s funeral. She no longer listens to music because

it frequently makes her cry and she no longer wants to have a funeral when she dies.

(Curtis Depo., pp. 67-70, 126-133.)

      {¶44} Patton testified at her deposition on July 17, 2012 that she suffers from

numbness in her face, which was attributed to nervousness and anxiety in 2011. She

experiences anxiety, depression, nervousness, sleeplessness, and stress. She was

prescribed an anti-anxiety medication. (Patton Depo., pp. 64-70.)




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      {¶45} Both Patton and Curtis sought psychiatric treatment in April and May of

2015, respectively, roughly nine months after their mother’s disinterment. They treated

with Jessica Hart, Ph.D., who diagnosed them with posttraumatic stress disorder and

depressive disorder. Dr. Hart characterized their symptoms as moderately impairing

their daily functioning. Medical records reflect that both sisters saw Dr. Hart weekly or

bi-weekly for roughly five months.

      {¶46} Patton and Curtis described depressed moods, crying spells, feelings of

anger, guilt, and loss, racing thoughts, anxiety, and difficulty sleeping after their

mother’s funeral, as well as an inability to stop the reoccurring image of their mother’s

remains following her disinterment. Dr. Hart noted that both women were tearful and

emotional in recounting the funeral experience, despite the fact that seven years had

passed.

      {¶47} Dr. Hart attributed the sisters’ PTSD and depression to “the events and

experiences in the aftermath of [their] mother’s passing, specifically how the family was

treated by the funeral home and cemetery workers, the moving of [their] mother’s body

after it was placed improperly, the disinterment, and conditions of [their] mother’s body

due to the hole in the vault.” (Emphasis deleted.) (12/13/16 J.E. (FHS), p. 6.) Dr. Hart

observed that neither woman could overcome the feelings of guilt and anger stemming

from their mother’s funeral, or erase their final image of Rose’s remains.

                                     Standard of Review

      {¶48} This appeal is from a trial court judgment resolving a motion for summary

judgment. An appellate court conducts a de novo review of a trial court’s decision to

grant summary judgment, using the same standards as the trial court set forth in Civ.R.




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56(C). Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

Before summary judgment can be granted, the trial 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 the evidence most favorably in

favor of the party against whom the motion for summary judgment is made, the

conclusion is adverse to that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317,

327, 364 N.E.2d 267 (1977). Whether a fact is “material” depends on the substantive

law of the claim being litigated. Hoyt, Inc. v. Gordon & Assoc., Inc., 104 Ohio App.3d

598, 603, 662 N.E.2d 1088 (8th Dist.1995).

       {¶49} “[T]he moving party bears the initial responsibility of informing the trial

court of the basis for the motion, and identifying those portions of the record which

demonstrate the absence of a genuine issue of fact on a material element of the

nonmoving party’s claim.” (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280,

296, 662 N.E.2d 264 (1996). If the moving party carries its burden, the nonmoving party

has a reciprocal burden of setting forth specific facts showing that there is a genuine

issue for trial. Id. at 293. In other words, when presented with a properly supported

motion for summary judgment, the nonmoving party must produce some evidence to

suggest that a reasonable factfinder could rule in that party’s favor.            Brewer v.

Cleveland Bd. of Edn., 122 Ohio App.3d 378, 386, 701 N.E.2d 1023 (8th Dist.1997).

       {¶50} The evidentiary materials to support a motion for summary judgment are

listed in Civ.R. 56(C) and include the pleadings, depositions, answers to interrogatories,

written admissions, affidavits, transcripts of evidence, and written stipulations of fact that




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have been filed in the case. In resolving the motion, the court views the evidence in a

light most favorable to the nonmoving party. Temple, 50 Ohio St.2d at 327.

                                           Law

      {¶51} The elements required to recover in a claim for intentional infliction of

emotional distress are:

      (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.

Martin v. Wills, 7th Dist. No. 16 MA 0091, 2017-Ohio-9382, ¶ 29, citing Pyle v. Pyle, 11

Ohio App.3d 31, 34, 463 N.E.2d 98 (1983).

      {¶52} A defendant's conduct is not “extreme and outrageous” merely because it

is “ ‘tortious or * * * criminal.’ ” Yeager v. Local Union 20, 6 Ohio St.3d 369, 374, 453

N.E.2d 666 (1983), quoting Restatement of the Law 2d, Torts 73, Section 46, comment

d (1965).   It also is not “extreme and outrageous” simply because the defendant

“ ‘intended to inflict emotional distress,’ ” or acted with malice. Id. at 374-375, quoting

Restatement, supra.




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       {¶53} In other words, “ ‘mere insults, indignities, threats, annoyances, petty

oppressions, or other trivialities’ ” do not constitute “extreme and outrageous” conduct.

Id., quoting Restatement, supra. The Yeager Court explained:

       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 some one'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. See Magruder, Mental and Emotional

       Disturbance in the Law of Torts, [49] Harvard Law Review 1033, 1053

       (1936).

Id., quoting Restatement, supra. Several Ohio intermediate courts have held that the

determination that conduct is “extreme and outrageous” is a question of law. Krlich v.

Clemente, 11th Dist. No. 2015-T-0089, 2017-Ohio-7945, ¶ 26; Jones v. Wheelersburg

Local School Dist., 4th Dist. No. 12CA3513, 2013-Ohio-3685, ¶ 41, citing Sturdevant v.

Likely, 9th Dist. No. 12CA0024-M, 2013-Ohio-987, ¶ 23; and Morrow v. Reminger &

Reminger Co. L.P.A., 183 Ohio App.3d 40, 2009-Ohio-2665, 915 N.E.2d 696, ¶ 48 (10th

Dist.) (Citations omitted.)

       {¶54} Absent an actual, contemporary physical injury, plaintiffs must establish

that defendant intentionally or recklessly caused them “serious” emotional distress for

plaintiffs to sustain a claim for tortious infliction of emotional distress.   Schultz v.




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Barberton Glass Co., 4 Ohio St.3d 131, 136, 447 N.E.2d 109 (1983) (negligent infliction

of emotional distress); Paugh v. Hanks, 6 Ohio St.3d 72, 451 N.E.2d 759 (1983),

paragraphs one and two of the syllabus (negligent infliction of emotional distress);

Yeager, supra (adopting for intentional infliction of serious emotional distress the

standard established in Paugh that emotional injury be serious). The Supreme Court in

Paugh explained the standard of “serious” emotional distress as follows:

      By the term “serious,” we of course go beyond trifling mental disturbance,

      mere upset or hurt feelings. We believe that serious emotional distress

      describes emotional injury which is both severe and debilitating. Thus,

      serious emotional distress may be found where a reasonable person,

      normally constituted, would be unable to cope adequately with the mental

      distress engendered by the circumstances of the case.

Id. at 78. “A non-exhaustive litany of some examples of serious emotional distress

should include traumatically induced neurosis, psychosis, chronic depression, or

phobia.” Id.

      {¶55} The Ohio Supreme Court has stated the need for some “guarantee of

genuineness” that “insures that the mental injury is serious enough to be rendered

compensable.” Id. at 76. “[A] plaintiff in a case for intentional infliction of emotional

distress must present some evidence beyond the plaintiff's own testimony that he or she

has experienced emotional distress due to the defendant's actions.” Buckman-Peirson

v. Brannon, 159 Ohio App.3d 12, 2004-Ohio-6074, 822 N.E.2d 830, ¶ 56.

      {¶56} Expert opinion is helpful in proving the genuineness of a plaintiff's claim.

As the Supreme Court has observed, in a case involving the tortious infliction of




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emotional distress, “expert medical testimony can assist the judicial process in

determining whether the emotional injury is indeed, serious,” Paugh at 80, and “[i]n most

instances, expert medical testimony will help establish the validity of the claim of serious

emotional distress.” Schultz, supra, at 135.

       {¶57} Nonetheless, expert medical testimony is not indispensable to a claim of

serious emotional distress. Uebelacker v. Cincom Sys., Inc., 48 Ohio App.3d 268, 276,

549 N.E.2d 1210 (5th Dist.1988). As an alternative to expert testimony, a plaintiff may

submit the testimony of lay witnesses who are acquainted with the plaintiff about any

“marked changes in the emotional or habitual makeup” of the plaintiff following a

defendant’s allegedly culpable conduct. Paugh at 80, see also Barker v. Netcare Corp.,

147 Ohio App.3d 1, 768 N.E.2d 698 (10th Dist.2001) (determining a lay witness was

competent to testify regarding emotional distress damages where plaintiff's husband

testified to significant changes in the plaintiff's emotions and personality after alleged

tortious conduct by defendants.)

       {¶58} A court may decide whether a plaintiff has stated a cause of action for

tortious infliction of emotional distress by ruling whether the emotional injury alleged is

“serious” as a matter of law. Paugh, supra. The “seriousness” of the emotional distress

is decided on a case-by-case basis. Id. at 80.

       {¶59} Also, a plaintiff claiming severe emotional distress must establish a

“substantial causal relationship” between the cause alleged (as distinguished from other

possible causes), and the claimed emotional injury suffered by the plaintiff. Ryan v.

Connor, 28 Ohio St.3d 406, 503 N.E.2d 1379 (1986). At least one Ohio appellate court

has held that expert testimony is necessary to establish causality where an emotional




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distress claim is based on events following the death of another. In Powell v. Grant

Med. Ctr., 10th Dist. No. 01AP-754, 148 Ohio App.3d 1, 2002-Ohio-443, 771 N.E.2d

874, the Tenth District reasoned that expert testimony was required to determine

whether the emotional injury alleged was the result of the postmortem injuries to the

decedent’s body, or from the death of the decedent. Id. at ¶ 20.

      {¶60} Turning to the breach of contract claims, “[t]o prove the existence of a

contract, a party must establish the essential elements of a contract:       an offer, an

acceptance, a meeting of the minds, an exchange of consideration, and certainty as to

the essential terms of the contract.” Schambach v. Afford-A-Pool & Spa, 7th Dist. No.

08 BE 15, 2009-Ohio-6809, ¶ 8, quoting Juhasz v. Costanzo, 144 Ohio App.3d 756,

762, 761 N.E.2d 679 (7th Dist.2001). “In order to recover on a claim of breach of

contract, the plaintiff must prove (1) the existence of a contract, (2) performance by the

plaintiff, (3) breach by the defendant, and (4) damage or loss to the plaintiff.” Price v.

Dillon, 7th Dist. Nos. 07-MA-75, 07-MA-76, 2008-Ohio-1178, ¶ 44.

      {¶61} Damages for emotional distress from a breach of contract may be

recovered if the contract or the breach is of such a kind that “serious emotional

disturbance” was a particularly likely result. Kishmarton v. William Bailey Constr., Inc.,

93 Ohio St.3d 226, 230, 754 N.E.2d 785 (2001) (emotional damages available resulting

from breach of vendee and builder-vendor contract); Stockdale v. Baba, 10th Dist. No.

02AP-402, 153 Ohio App.3d 712, 2003-Ohio-4366, 795 N.E.2d 727, ¶ 105 (emotional

damages available from breach of settlement agreement based on stalking charges);

Allen v. Lee, 43 Ohio App.3d 31, 34, 538 N.E.2d 1073 (8th Dist.1987) (residential lease

lacks special emotional significance to recover emotional damages); Brown Deer




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Restaurant v. New Market Corp., 8th Dist. No. 48910, 1985 WL 9802 (Mar. 28, 1985); 3

Restatement of the Law 2d, Contracts (1981) 149, Section 353.

      {¶62} Comment a to Section 353 of the Restatement explains that, although

damages for emotional disturbance are not ordinarily allowed, and difficult to prove even

when they are foreseeable, there are two exceptional situations where such damages

are recoverable: (1) when an emotional disturbance accompanies a bodily injury, and

(2) when the contract or the breach is of such a kind that serious emotional disturbance

was a particularly likely result. Kishmarton at 230, citing 3 Restatement of the Law 2d

Contracts (1981), 149, Section 353. The comment provides that a contract for the

proper disposition of dead bodies is an example of a contract where recovery of serious

emotional distress damages is allowed. Stockdale at 104, citing 3 Restatement of the

Law 2d Contracts (1981), 149, Section 353.

      {¶63} In adopting the Restatement, the Ohio Supreme Court cited Section 16,

Article I of the Ohio Constitution, which reads, in pertinent part, “every person, for an

injury done him * * * shall have remedy by due course of law.” Kishmarton at 229.

Because emotional distress injuries are injuries for which the Ohio Constitution

guarantees a right to a remedy, the Court recognized that it is reasonable to allow

emotional distress damages caused by a breach of contract. The Kishmarton Court

observed:

      To continue to disallow emotional distress damages unfairly exposes

      innocent persons to harm that a wrongdoer has no incentive to avoid or

      mitigate. As one commentator put it, “the breaching party to a contract

      intentionally assumed must bear the full burden of the harm caused, and




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       there should be no exception for emotional distress damages * * *.”

       Whaley, Paying for the Agony: The Recovery of Emotional Distress

       Damages in Contract Actions (1992), Suffolk U.L.Rev. 935, 948.

Id.

                               Summary Judgment Entries

       {¶64} With respect to Appellants’ claims for intentional infliction of emotional

distress, the trial court found as a matter of law that the allegations against FHS and

Shriver did not constitute extreme or outrageous conduct. The trial court characterized

the actions of Lozano and Shriver’s employees as rude and unprofessional, rather than

outrageous and extreme.

       {¶65} The trial court further concluded that Appellants failed to demonstrate any

genuine issue of material fact regarding the element of serious emotional distress.

Because Patton and Curtis did not seek mental health treatment until several years after

the funeral and Beverly Ann never sought such treatment, the trial court found that they

did not suffer serious emotional distress.

       {¶66} Because Dr. Hart attributed the mental conditions suffered by Patton and

Curtis to the circumstances surrounding not only Rose’s funeral but also her

disinterment, the trial court held that Appellants had failed to establish a genuine issue

of material fact regarding the element of causation. The trial court reasoned that the

same was true for Beverly Ann. The medical notes attributed her stress not only to the

loss of her mother, but the loss of her brother, as well as her son’s suicide and the

pressure of raising his young son.




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       {¶67} The trial court determined that the decision by Patton and Curtis to view

their mother’s disinterred remains was not the natural or probable consequence of any

of the alleged conduct of the employees of FHS or Shriver. The court stated that “[i]t

defies logic that [Appellants], who claim to be so deeply affected by what they claim to

be an unprofessional presentation of their mother for viewing at the funeral, would

expose themselves to the predictably unpleasant experience of her exhumation.”

(12/13/16 J.E. (Shriver), p. 30.)

       {¶68} The court also held that Appellants’ claims for negligent infliction of

emotional distress and breach of contract claims were barred by the two-year statute of

limitations for negligence claims in Ohio. Whether the non-intentional acts were alleged

in the context of a claim of infliction of emotional distress or a claim for breach of

contract, the court determined that the actual nature of the allegations sounded in

negligence.

       {¶69} Assuming arguendo that the breach of contract claims against Shriver

were timely filed, the trial court held that the handwritten clause on the contract (which

read that the bill would be paid after Rose’s house was sold) would not have prevented

the penalty provision from taking effect had it not been obliterated. The plain language

of the clause established only that the bill would not be paid until after the sale of Rose’s

house, not that the penalty provision would be suspended until the house was sold.

Also, because the contract did not specify the color of the lining of the casket, the trial

court concluded that no breach had occurred in that regard.




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      {¶70} The trial court held that Appellants’ breach of oral contract claim against

FHS failed as a matter of law because there was no evidence of an offer by FHS,

acceptance by Appellants, or consideration exchanged between the parties.

      {¶71} Finally, the trial court held that the fraud claim, raised for the first time by

Appellants in their opposition to summary judgment, was not asserted in the complaint,

nor had Appellants filed a motion to amend the complaint. As previously stated, a

motion to amend was pending when the summary judgment entries were entered.

                                          Analysis

                           ASSIGNMENT OF ERROR NO. 1

      THE TRIAL COURT ERRED IN ITS FAILURE TO VIEW THE EVIDENCE

      (EVEN CONTROVERTED) IN THE MOST FAVORABLE LIGHT OF THE

      PLAINTIFF       PERMITS     [SIC]     INCLUSION      OF     EVIDENCE       OF

      INTENTIONAL CAUSATION OF SEVERE EMOTIONAL DISTRESS AND

      OTHER MATERIAL PROBATIVE AND DISPOSITIVE EVIDENCE.

      {¶72} Appellants contend that the trial court erred when it did not consider every

act alleged by Appellants and conclude that Appellees should have known that those

acts would cause severe emotional distress. Rather than undertaking any independent

analysis or making any independent findings, Appellants complain that the trial court

adopted the findings of fact and conclusions of law proposed by Appellees in their

entirety. Appellees’ proposed findings of fact omitted virtually every fact advanced by

Appellants. As a result, the judgment entries contain a sanitized version of the events,

rather than a recitation of the facts as alleged by Appellants, which should have been

credited as true on summary judgment.




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                     Intentional Infliction of Emotional Distress - FHS

       {¶73} Again, Lozano was never served with the re-filed complaint. Hence, the

only remaining defendants were FHS and Shriver. Appellants alleged the following

facts in support of their intentional infliction of emotional distress claim against FHS:

       {¶74} Lozano, who may have been an independent contractor for FHS and not

an employee, arrived in a family-style van. According to Curtis, the van was maroon.

(Curtis Depo., p. 35.) Appellants never saw the interior of the van. Romanchuk told her

that Rose’s body had been transported in a family van belonging to the driver’s mother-

in-law because the hearse had a flat tire. (Curtis Depo., pp. 100-102.) Schaper testified

that all four of the vans owned by FHS at the time were silver. (Schaper Depo., p. 17.)

       {¶75} Lozano met Appellants in the parking lot of the Cleveland Clinic, where he

asked Patton if she thought she could “keep up” with him on the way to Youngstown.

He traveled to Youngstown, in the rain, between 9:00 and 10:00 p.m. at an alarmingly

high rate of speed, in excess of 85 miles per hour on the interstate, weaving in and out

of heavy traffic.    Lozano expressed surprise to Appellants when they arrived in

Youngstown that Patton was able to follow him. Patton told Lozano he had missed his

calling and should have been a race car driver.          According to Patton’s testimony,

Lozano traveled approximately 76.6 miles in roughly fifty minutes.

       {¶76} At Shriver, Lozano asked Appellants if they intended to embalm their

mother.    He then engaged in a heated conversation with Patton in which he

emphatically expressed his opinion that embalming was unnecessary. Following this,

Lozano told them that state law prohibited them from entering the embalming room, and

they returned home without viewing the body at the funeral home.




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       {¶77} With respect to FHS, we find that the trial court did not err in entering

summary judgment on Appellants’ intentional infliction of emotional distress claim. It

appears that Lozano may have been an independent contractor for FHS, not an

employee, meaning that FHS may not be answerable for his behavior. Regardless,

resolving facts in favor of Appellants, we review this matter under the assumption that

Lozano was an FHS employee. For purposes of summary judgment, we must, then,

accept that Lozano transported Rose’s body in his mother-in-law’s van, that he violated

speed limits from Cleveland to Youngstown in a rain storm while Appellants were trying

to follow him, and that he engaged in a heated debate with Patton about embalming and

did not allow Appellants inside the funeral home to view their mother’s body.

       {¶78} The trial court did not consider the allegation that Lozano transported

Rose in his mother-in-law’s van because the trial court characterized it as speculation.

However, Curtis testified that the van that transported Rose was maroon, but Schaper

testified that all four of FHS’s vans were silver. Moreover, the trial court ignored Curtis’s

testimony that Romanchuk told her that Lozano drove his mother-in-law’s van because

the hearse had a flat tire. The trial court should have assumed for the purposes of

summary judgment that Appellants’ allegation was true. On the other hand, Appellants’

contention that Rose’s body was left in the van overnight and that her body was

misshapen because it was jostled around the van are not supported by any evidence.

Lozano collected Rose’s body outside the view of Appellants. They concede that they

never saw the interior of the van and they left Shriver without seeing the body.

Therefore, the trial court correctly found that these allegations made by Appellants mere

speculation.




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      {¶79} Viewing the evidence in a light most favorable to Appellants, we cannot

conclude that FHS’s conduct meets the standard necessary to prove intentional

infliction of emotional distress. In order to meet their burden, Appellants must offer

evidence of conduct “beyond all possible bounds of decency” and “utterly intolerable in

a civilized community.” Restatement of Torts 2d, supra. Although Lozano’s behavior

was incredibly rude and thoughtless, it was not unendurable.        Further, the record

reflects that Lozano did not know that his behavior would cause severe emotional

distress, as that term is defined in Ohio for the purpose of intentional infliction of

emotional distress.

      {¶80} Even assuming for the purposes of this analysis that Lozano’s actions

constituted extreme and outrageous conduct, Appellants cannot establish that they

actually suffered severe emotional distress stemming solely from his behavior or that it

was the proximate result of FHS’s actions. Taking the facts alleged against FHS in

isolation, Appellants have not alleged a fact pattern under which a reasonable person,

normally constituted, would be unable to cope. Further, it is clear from their arguments

Appellants do not isolate FHS’s behavior in this regard. Appellants describe Lozano’s

conduct as the first in a series of events that caused them to suffer depression and

PTSD. Despite the temporal proximity of Lozano’s conduct to the conduct of the Shriver

employees, Appellants have offered no evidence to distinguish any emotional distress

suffered by them as a result of FHS’s actions from any emotional distress caused by the

actions of the Shriver employees. In other words, they cannot establish causation as it

relates to FHS.




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       {¶81} Accordingly, Appellants have failed to demonstrate extreme and

outrageous behavior on the part of Lozano and FHS and have failed to offer sufficient

evidence of severe emotional distress or a substantial causal relationship to such

conduct to survive summary judgment. The trial court did not err in entering summary

judgment in favor of FHS on Appellants’ intentional infliction of emotional distress claim.

                    Intentional Infliction of Emotional Distress - Shriver

       {¶82} Appellants alleged the following facts in support of their intentional

infliction of emotional distress and breach of contract claims against Shriver:

       {¶83} When Rose’s family arrived at the funeral home to make arrangements for

the viewing hours and funeral service the following day, Kimberly Romanchuk,

Courtley’s daughter and a Shriver employee, rushed them through the decision-making

process because her daughter was home alone. When they could not immediately

decide on certain elements of the funeral service, Romanchuk became belligerent. She

told them there would not be sufficient time to print prayer cards. She argued about

their desire for both afternoon and evening calling hours and asked if they intended to

“stand around and look at each other.” (Patton Depo., pp. 115-116.)

       {¶84} When the arrangements were complete, Romanchuk told Rose’s family

that they had only thirty minutes to return with Rose’s clothing, otherwise the doors

would be locked, and ordered some family members to collect the clothing while others

were told to go to the florist shop, to save time.

       {¶85} Some floral deliveries were not able to be made because there was no

one at Shriver to accept delivery. Hence, family and friends were forced to bring their

arrangements with them to the funeral.




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       {¶86} At the viewing, Appellants were shocked at Rose’s appearance. Her hair

was fanned out around her head with a thick layer of hair spray, and there were hair

clippings in the casket and on her gown. Family members themselves collected the cut

hair and removed it from the casket. Rose had no color and her veins were visible.

They noticed visible stitching in her mouth.

       {¶87} Rose was not lying flat in the casket; her head and right shoulder were

upturned to the left. She was not wearing the bra that the family brought to the funeral

home with the gown, so the outlines of her breasts and nipples were visible. (Betty

June Fischer Depo., p. 35.) When Romanchuk lifted the blanket to put booties on her

feet, Appellants saw bruising and a bloody bandage on her right ankle. Appellants later

discovered that the body had not been furnished “eye caps” as is standard in the

industry.

       {¶88} After the final guests had left, the family was trying to take a private

moment at their mother’s side when Courtley told them to leave.

       {¶89} During the minister’s eulogy the next day, Romanchuk removed the cards

from the floral arrangements, handing them to Patton during the eulogy, along with the

bill. She began removing the floral arrangements during the eulogy.

       {¶90} Courtley told Romanchuk during the eulogy, “[d]amn it to hell, get moving,

we have another funeral.” (Patton Depo., p. 131.) At the conclusion of the eulogy,

Courtley slammed the casket lid shut and said, “[c]an I get my damn job done here?”

(Patton Depo., p. 133.) Both of these statements were overheard by others.




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       {¶91} There was no final viewing before the casket for mourners. Courtley sent

everyone, including the pall bearers, to their automobiles where he and another funeral

employee put the casket on the gurney and took it to the hearse.

       {¶92} After half-heartedly attempting to organize the family vehicles, Courtley

said, “[t]he hell with it,” and got in the hearse and left. (Patton Depo., p. 138.)

       {¶93} There was no organized funeral procession to the cemetery and several

cars were separated from the hearse due to traffic.

       {¶94} At the grave site, Courtley announced that he had another funeral and left

before the side service was concluded. No guest registry was kept by Shriver.

       {¶95} Despite the grossly unprofessional and insensitive behavior of Courtley

and Romanchuk alleged by Appellants, we cannot conclude their behavior was so

egregious that it could not be endured by a reasonable person. Even assuming for the

purposes of this analysis that Shriver employees’ actions constituted extreme and

outrageous conduct, Appellants cannot establish that they suffered severe emotional

distress or that it was the proximate result of Shriver employees’ actions, alone.

Despite the sensitive nature of bereavement, they have not alleged a fact pattern under

which a reasonable person, normally constituted, would be unable to cope. The record

shows that with the possible exception of Beverly Ann, Appellants’ mental problems

were not debilitating. However, Beverly Ann’s medical notes do not distinguish the

emotional distress she suffered as a result of the funeral services from the emotional

distress resulting from the death of her brother and her son’s suicide. Once again, their

allegations against Shriver are seen by them as a continuum of bad events which

culminated, based on their entirety, in actionable behavior. This is not the standard in




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Ohio. In other words, Appellants cannot establish in Shriver’s action alone the severity

of the injury required for intentional infliction of emotional distress, or the causal

relationship to Shriver’s employees’ conduct necessary to survive summary judgment.

       {¶96} In the Shriver judgment entry, the trial court determined that the emotional

distress suffered by Curtis and Patton as a result of their decision to witness Rose’s

disinterment was not attributable to Shriver. The court opined that as Curtis and Patton

chose to view their mother’s remains, Shriver should not be liable for any damages

resulting from that decision. To the contrary, because the decision to disinter their

mother and view Rose’s remains was solely in furtherance of the claims asserted in this

case (including their breach of contract claims), Curtis and Patton’s distress is

attributable in some measure to Shriver. However, this does not alter the fact that the

trial court reached the correct conclusion regarding the intentional infliction of emotional

distress claim against Shriver.

       {¶97} In Ohio, claims of intentional infliction of emotional distress demand a

virtually insurmountable burden of proof, imposing liability solely for conduct that goes

beyond all possible bounds of decency, and that is atrocious and utterly intolerable in a

civilized community.    The resulting emotional damages must be unendurable to a

normally-constituted reasonable person and there must be a substantial causal

connection to the conduct of the defendant. Even with the facts taken in a light most

favorable to Appellants, they have not met that burden of proof in this case. While

Appellants were party to an escalating series of extremely distressing events, even they

do not attribute their emotional upheaval to the action of one or the other of the

individual defendants, but rather, to the combined effects of all defendants when taken




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in a continuum. This is not the standard in Ohio. Accordingly, we affirm the entries of

summary judgment in favor of FHS and Shriver on Appellants’ intentional infliction of

emotional distress claims. Appellants’ first assignment of error is without merit.

                            ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT ERRED IN ITS OPINION BY CONCLUDING THE

       ACTIONS OF SHRIVER EMPLOYEES ARE NOT INTENTIONAL NOR

       EXTREME AND OUTRAGEOUS.

       {¶98}    While Appellants seem to focus on the behavior of Shriver employees in

this assignment, they partially again attack certain portions of the trial court’s decision to

grant summary judgment on their intentional infliction of emotional distress claim: (1)

failure to properly construe Dr. Hart’s expert opinion; (2) imputation of liability on

Appellants for attending their mother’s disinterment; (3) application of the statute of

limitations in R.C. 2305.10 resulting in the dismissal of the breach of contract claim

against Shriver; (4) misrepresentation regarding the color of the casket lining and the

obliteration of the contract provision resulting, and (5) the conclusion that the fraud

claim was raised for the first time in Appellants’ opposition to summary judgment.

Because the elements of the intentional infliction of emotional distress claims were

addressed in their entirely in the first assignment of error, only those allegations and

arguments regarding their breach of contract and fraud claims will be addressed, here.

                                Breach of Contract - Shriver

       {¶99}    The trial court concluded that both Appellants’ negligent infliction of

emotional distress and breach of contract claims against Shriver were time barred. This

is because the trial court held that the Appellants’ allegations regarding breach actually




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                                                                                       – 33 –


were claims of negligence, and so the longer limitations period for contract actions did

not apply. R.C. 2305.10 provides, in pertinent part:

      (A) Except as provided in division (C) or (E) of this section, an action

      based on a product liability claim and an action for bodily injury or injuring

      personal property shall be brought within two years after the cause of

      action accrues. Except as provided in divisions (B)(1), (2), (3), (4), and (5)

      of this section, a cause of action accrues under this division when the

      injury or loss to person or property occurs.

      {¶100} Rose’s body was transported from the Cleveland Clinic to Shriver on

July 24, 2008. The funeral preparations and services occurred over the next few days.

The original complaint was filed on June 30, 2011. Although Appellants concede that,

standing alone, their negligent infliction of emotional distress claims were not timely

filed, they assert that the trial court erred in dismissing the breach of contract claim

against Shriver as time barred.

      {¶101} The statute of limitations that applies in a particular case does not

depend on the form of the pleadings or the headings in the complaint, but on the actual

nature of the subject matter of the complaint. Shorter v. Neapolitan, 179 Ohio App.3d

608, 2008-Ohio-6597, 902 N.E.2d 1061, ¶ 17 (7th Dist.), citing Hunter v. Shenango

Furnace Co., 38 Ohio St.3d 235, 237, 527 N.E.2d 871 (3d Dist.1988). “[W]hether a suit

is brought in contract or tort, when the ‘essence’ of an action is wrongful harm to person

or personal property, the R.C. 2305.10 statute of limitations is the appropriate one to

apply.” Shorter at ¶ 19, quoting Ressallat v. Burglar & Fire Alarms, Inc., 79 Ohio App.3d

43, 49, 606 N.E.2d 1001 (1992).




Case No. 17 MA 0003
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       {¶102} Shriver contends that this case is on all fours with JRC Holdings, Inc. v.

Samsel Servs. Co., 166 Ohio App.3d 328, 2006-Ohio-2148, 850 N.E.2d 773 (11th

Dist.). JRC, a rubber parts manufacturer, contracted with Samsel, an environmental

remediation firm, to determine the extent of pollution resulting from JRC’s use of

trichloroethylene (“TCE”), an industrial degreaser, and to formulate a remediation plan

acceptable to the Ohio EPA. Samsel submitted recommendations for certain measures,

by letter or report, and JRC issued its standard purchase orders in reply. Samsel would

then submit its standard invoice form and receive checks in payment.

       {¶103} Samsel drilled several wells for the purpose of monitoring ground water

contamination. In this process, it contaminated deep water on JRC’s property. JRC

filed an action for negligence, breach of contract, and breach of warranty based on the

chemical contamination of the deep water zone. The Eleventh District held that JRC’s

claims were barred by the two-year statute of limitations for property damage:

       [T]he damages allegedly suffered by JRC are not contractual: they do not

       depend upon the loss of the benefit of JRC's bargain with Samsel,

       whatever that bargain included.      A finding that this action sounds in

       contract would not entitle JRC to different damages than it might recover

       in tort. Such a finding would only extend the limitations period for bringing

       the action. All of JRC's causes of action allege exactly the same thing:

       that Samsel damaged JRC's real property by introducing TCE

       contamination into the deep-water zone through its drilling processes.

Id. at ¶ 20.




Case No. 17 MA 0003
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       {¶104} Despite Shriver’s contention to the contrary, the same is not true here.

In addition to the emotional distress suffered by Appellants, the Appellants allege

contractual damages for the loss of the benefit of Beverly Ann’s bargain with Shriver for

the provision of funeral services. The itemized contract contains charges for services of

the funeral home director and staff in the amount of $1,825.00, plus charges for use of

the facilities and merchandise. Like JRC, where the damages remain the same whether

the action is contractual or tortious, the damages claimed by Appellants for emotional

distress are an unintended consequence of the negligent performance of a contractual

service. Unlike JRC, where the damages were in no way tied to the “benefit of the

bargain” between JRC and Samsel, Appellants seek damages independent of the

emotional damages suffered as a result of the Shriver employees’ performance under

the contract.

       {¶105} Despite our conclusion that Appellants’ breach of contract claim is not

based on negligence and is not subject to the statute of limitations for tortious conduct,

we nonetheless conclude that the Estate may attempt to additionally prove emotional

damages that logically arose from this breach of contract claim. Although the Ohio

Supreme Court has recognized that emotional damages flowing from a breach of

contract are difficult to prove, even when foreseeable, they are available when the

contract or the breach is of such a kind that serious emotional disturbance was a

particularly likely result. Kishmarton, supra. Further, unlike the burden of proof for

intentional infliction of emotional distress claims, the emotional damages resulting from

a breach of contract need not be severe.




Case No. 17 MA 0003
                                                                                     – 36 –


       {¶106} Accordingly, this record reflects that the Estate’s breach of contract claim

is not grounded in tort. Hence, this claim is not barred by the statute of limitations found

in R.C. 2305.10. This record also reflects that genuine issues of material fact exist with

respect to the breach of contract claim. As earlier discussed, Appellants have alleged a

plethora of facts that, if true, tend to show that they did not receive the benefit of their

bargain and did not receive the goods or services for which they contracted. While the

trial court ruled otherwise, it appears that the exhumation, done in preparation for suit,

also revealed facts pertinent to the breach of contract claims. Further, the loss of their

contractual bargain and the ensuing preparation for lawsuit may have consequently

caused serious emotional disturbance, and the standard for proving this emotional

damage is lower than that utilized in reviewing Appellants’ intentional infliction of

emotional distress claims. Therefore, summary judgment on this claim should not have

been entered.

       {¶107} Not all of Appellants’ contractual claims are valid, however. Turning to

the specific issue of the obliterated handwritten clause in the contract, the construction

of written contracts is a matter of law. Alexander v. Buckeye Pipe Line Co., 53 Ohio

St.2d 241, 374 N.E.2d 146 (1978), paragraph one of the syllabus. The purpose of

contract construction is to discover and give effect to the parties' intent, which is

presumed to reside in the contractual language they chose to use. Graham v. Drydock

Coal Co., 76 Ohio St.3d 311, 313, 667 N.E.2d 949 (1996). Common words in a written

contract will be given their ordinary meaning unless manifest absurdity results or unless

some other meaning is clearly evidenced from the face or overall content of the

contract. Alexander, paragraph two of the syllabus. If language in a contract is clear




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and unambiguous, the court cannot create a new contract by finding an intent not

expressed in the clear language employed by the parties. Id. at 246. If the contract is

clear and unambiguous, its interpretation is a matter of law, and there is no issue of fact

to determine. Inland Refuse Transfer Co. v. Browning–Ferris Industries of Ohio, Inc., 15

Ohio St.3d 321, 322, 474 N.E.2d 271 (1984), citing Alexander. However, where the

contract language is reasonably susceptible of more than one interpretation, the

meaning of the ambiguous language becomes a question of fact. Ohio Historical Soc.

v. Gen. Maint. & Eng. Co., 65 Ohio App.3d 139, 146, 583 N.E.2d 340 (10th Dist.1989).

       {¶108} There is no dispute that the executed contract contained a handwritten

clause and that it was later obliterated by Courtley. It is also undisputed that this clause

stated that payment of Rose’s funeral bill would be made after the sale of her house.

However, and regardless of Courtley’s actions, the plain and unambiguous language of

the clause did not suspend application of the penalty provision in the contract. Instead,

it merely explained the condition precedent to payment.         Because the handwritten

clause did not suspend the penalty provision, Appellants’ breach of contract claim, to

the extent that it was based on the handwritten clause, was properly dismissed as a

matter of law.

                       Motion to Amend to Include a Fraud Claim

       {¶109} Appellants contend that their fraud claim was raised in the verified

complaint.   Fraud must be pled with particularity pursuant to Civ.R. 9(B), which

provides:




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       In all averments of fraud or mistake, the circumstances constituting fraud

       or mistake shall be stated with particularity. Malice, intent, knowledge,

       and other condition of mind of a person may be averred generally.

       {¶110} In the complaint, a plaintiff must state the time, place and content of the

false representation, the fact misrepresented, and what was obtained or given as a

consequence of the fraud. The plaintiff must allege, at a minimum, the time, place and

contents of the misrepresentation on which they relied. Generally, the pleadings must

be sufficiently particular to apprise the opposing party of the claim against him or her.

Haddon View Investment Co. v. Coopers & Lybrand, 70 Ohio St.2d 154, 158-159, 436

N.E.2d 212 (1982). Moreover, failure to plead fraud with particularity results in waiver of

that claim. Allied Erecting & Dismantiling Co. v. Ohio Edison Co., 7th Dist. No. 10-MA-

25, 2011-Ohio-2627, ¶ 39-42.

       {¶111} Fraud is mentioned a single time in the verified complaint, in the final

paragraph of the prayer for relief. That paragraph reads, in its entirety, “[s]uch other

and additional causes of action, including but not limited to, misrepresentation, fraud,

malice, intent, knowledge that the actions did cause or would cause infliction of harm or

irreparable psychological effect, and such additional causes of action or equitable relief

as may be determined by a jury.” (11/4/15 Verified Compl., Prayer for Relief, ¶ 3.) This

brief, general statement is insufficient to fulfill the requirements of Civ.R. 9(B) or to put

Appellees on proper notice of a fraud claim. Further, the allegations in the verified

complaint regarding the casket lining refers specifically to the breach of contract claim.

(11/4/15 Verified Compl., ¶ 14-15.) This record shows that Appellants failed to plead

fraud with particularity in the verified complaint.




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      {¶112} Turning to the proposed fraud claim in their motion to amend, motions on

which a trial court fails to rule prior to rendering a final judgment are to be deemed

overruled on the issuance of that final judgment. Switka v. City of Youngstown, 7th Dist.

No. 05 MA 74, 2006-Ohio-4617, ¶ 11. In their appellate brief, Appellants allege that

Shriver committed fraud when it provided a York Northern Maple casket instead of the

Andover Maple casket identified in the contract.

      {¶113} Appellants filed a motion for leave to amend the verified complaint to

conform to the evidence pursuant to Civ.R. 15(B) on September 8, 2016. Civ.R. 15(B)

governs the amendment of pleadings “[w]hen issues not raised by the pleadings are

tried by express or implied consent of the parties.” Appellants relied in error on Civ.R.

15(B) because this matter had not been tried. We have previously observed that the

mistaken invocation of Civ.R. 15(B) is reason alone to deny a motion to amend.

Suriano v. NAACP, 7th Dist. No. 05 JE 30, 2006-Ohio-6131, ¶ 83.

      {¶114} Although the language of Civ.R. 15(A) favors a liberal amendment

policy, amendment is not proper where there is a showing of bad faith, undue delay or

undue prejudice to the opposing party. Hoover v. Sumlin, 12 Ohio St.3d 1, 6, 465

N.E.2d 377 (1984). Our role is to determine whether the trial judge’s decision amounts

to an abuse of discretion, not whether we would have reached the same conclusion.

West v. Devendra, 7th Dist. No. 11 BE 35, 2012-Ohio-6092, 985 N.E.2d 558, ¶ 49.

“The term ‘abuse of discretion’ connotes more than an error of law or of judgment; it

implies that the court's attitude is unreasonable, arbitrary or unconscionable.’ ” Huffman

v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985).




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       {¶115} According to the motion to amend, Williams attested that the York casket

was of lesser quality than the Andover Northern Maple casket.          There is no such

averment in Williams’ affidavit. Williams simply states that Rose’s casket had a plate

attached which read “York Northern Maple.” In Courtley’s affidavit, he explains that

York is a wholly-owned subsidiary of Matthews International, the marketers of the

Andover Maple casket purchased by Beverly Ann. He attests that the casket in which

Rose was buried is the same model number as the casket identified in the contract.

Appellants have offered no evidence to call into question the veracity of Courtley’s

statements.

       {¶116} Williams concedes that he took the photograph of the casket on July 14,

2014, the day of Rose’s disinterment. More than two years passed between Rose’s

disinterment and the filing on the motion to amend. The failure to timely file the motion

to amend based on evidence in Appellants’ possession constitutes undue delay.

       {¶117} Finally, because the color of the casket’s lining was not identified in the

contract, Appellants’ proposed fraud claim, to the extent that it was based on the color

of the casket lining, has no merit. Appellants were aware of the color of the lining of the

casket during the funeral services.

       {¶118} Appellants did not plead fraud with particularity in the verified complaint.

Further, Appellants engaged in undue delay in seeking to amend the verified complaint,

and the evidence in the record does not establish the elements of fraud. Accordingly, it

does not appear from this record that the trial court abused its discretion in overruling

the motion to amend the verified complaint to add a fraud claim.




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       {¶119} In summary, the trial court erred in granting summary judgment on the

breach of contract claim and in failing to accept facts arising from the exhumation of the

deceased, except to the extent that the breach claim was based on the obliterated

handwritten clause.      Appellants did not plead fraud with particularity in the verified

complaint and the trial court did not err in overruling the motion to amend the verified

complaint. Accordingly, Appellants’ second assignment of error is sustained in part and

overruled in part.

                                        Conclusion

       {¶120} For the following reasons, the judgment of the trial court is affirmed in

part with respect to the intentional infliction of emotional distress claim against FHS and

the intentional infliction of emotional distress claim against Shriver. The trial court’s

determination as to the handwritten provision in the parties’ contract is also affirmed,

however, the judgment is reversed in part with respect to the remainder of the breach of

contract claim against Shriver. The trial court also did not abuse its discretion when it

overruled Appellants’ motion to amend the verified complaint and this decision is

affirmed. This matter is remanded for trial on the breach of contract claim against

Shriver.


Donofrio, J., concurs.

Bartlett, J., concurs.




Case No. 17 MA 0003
[Cite as Clay v. Schriver Allison Courtley Co., 2018-Ohio-3371.]




        For the reasons stated in the Opinion rendered herein, the Appellants’ first

assignment of error is overruled and their second assignment is sustained in part and

overruled in part. It is the final judgment and order of this Court that the judgment of the

Court of Common Pleas of Mahoning County, Ohio, is affirmed in part and reversed in

part. We hereby remand this matter to the trial court for trial on the breach of contract

claim against Appellee Shriver according to law and consistent with this Court’s

Opinion. Costs to be taxed against the Appellees.

        A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.




                                        NOTICE TO COUNSEL

        This document constitutes a final judgment entry.
