[Cite as Acheff v. Meijer, Inc., 2019-Ohio-2314.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



PETER ACHEFF                                        :   JUDGES:
                                                    :   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant                         :   Hon. Craig R. Baldwin, J.
                                                    :   Hon. Earle E. Wise, Jr., J.
-vs-                                                :
                                                    :
MEIJER, INC.                                        :   Case No. 18CA86
                                                    :
        Defendant-Appellee                          :   OPINION




CHARACTER OF PROCEEDING:                                Appeal from the Court of Common
                                                        Pleas, Case No. 2017CV0908




JUDGMENT:                                               Affirmed




DATE OF JUDGMENT:                                       June 10, 2019




APPEARANCES:

For Plaintiff-Appellant                                 For Defendant-Appellee

BYRON CORLEY                                            W. CHARLES CURLEY
28 Park Avenue West                                     10 West Broad Street
Suite 1002                                              Suite 2400
Mansfield, OH 44902                                     Columbus, OH 43215
Richland County, Case No. 18CA86                                                      2



Wise, Earle, J.

       {¶ 1} Plaintiff-Appellant, Pete Acheff, appeals the August 23, 2018 judgment

entry of the Court of Common Pleas of Richland County, Ohio, granting summary

judgment to Defendant-Appellee, Meijer Inc.

                        FACTS AND PROCEDURAL HISTORY

       {¶ 2} On December 22, 2017, appellant filed a complaint against appellee

claiming false accusations and unlawful detention. Appellant alleged on December 28,

2016, upon attempting to exit appellee's store, he was stopped and accused of stealing.

Appellee's employee "forcibly and unlawfully seized" appellant's shopping bag, and

appellant was detained for approximately thirty minutes. As a result, appellant suffered

"great and lasting mental anguish" requiring "continuous expert counseling into the

future."

       {¶ 3} On July 24, 2018, appellee filed a motion for summary judgment, arguing

statute of limitations and no genuine issues of material fact. By judgment entry filed

August 23, 2018, the trial court agreed and granted appellee's motion.

       {¶ 4} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

       {¶ 5} "REVIEWING THE MOTION FOR SUMMARY JUDGMENT DE NOVO THE

RECORD IS CLEAR AND CONVINCING THAT THE TRIAL COURT ERRED TO THE

PREJUDICE OF ACHEFF BY BRANTING MEIJER'S, INC. MOTION FOR SUMMARY

JUDGMENT."
Richland County, Case No. 18CA86                                                      3




                                            I

      {¶ 6} In his sole assignment of error, appellant claims the trial court erred in

granting summary judgment to appellee. We disagree.

      {¶ 7} Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996):



             Civ.R. 56(C) provides that before summary judgment may be

      granted, it must be determined 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, and (3) it appears from the evidence that reasonable minds

      can come to but one conclusion, and viewing such evidence most strongly

      in favor of the nonmoving party, that conclusion is adverse to the party

      against whom the motion for summary judgment is made. State ex. rel.

      Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,

      citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d

      466, 472, 364 N.E.2d 267, 274.



      {¶ 8} As an appellate court reviewing summary judgment motions, we must stand

in the shoes of the trial court and review summary judgments on the same standard and

evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506

N.E.2d 212 (1987).
Richland County, Case No. 18CA86                                                           4

      {¶ 9} As explained by this court in Leech v. Schumaker, 5th Dist. Richland No.

15CA56, 2015-Ohio-4444, ¶ 13:



             It is well established the party seeking summary judgment bears the

      burden of demonstrating that no issues of material fact exist for trial.

      Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91

      L.Ed.2d 265 (1986).      The standard for granting summary judgment is

      delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293: " * * * a party

      seeking summary judgment, on the ground that the nonmoving party cannot

      prove its case, bears the initial burden of informing the trial court of the basis

      for the motion, and identifying those portions of the record that demonstrate

      the absence of a genuine issue of material fact on the essential element(s)

      of the nonmoving party's claims. The moving party cannot discharge its

      initial burden under Civ.R. 56 simply by making a conclusory assertion the

      nonmoving party has no evidence to prove its case. Rather, the moving

      party must be able to specifically point to some evidence of the type listed

      in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has

      no evidence to support the nonmoving party's claims. If the moving party

      fails to satisfy its initial burden, the motion for summary judgment must be

      denied. However, if the moving party has satisfied its initial burden, the

      nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to

      set forth specific facts showing there is a genuine issue for trial and, if the

      nonmovant does not so respond, summary judgment, if appropriate, shall
Richland County, Case No. 18CA86                                                         5


       be entered against the nonmoving party."           The record on summary

       judgment must be viewed in the light most favorable to the opposing party.

       Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150.



       {¶ 10} In his complaint filed December 22, 2017, appellant alleged the following in

pertinent part:



              3. On or about December 28, 2016, plaintiff was an invitee on

       defendant's premises.

              4. On said date, plaintiff purchased and paid for merchandise in

       defendant's store.

              5. As plaintiff proceeded past the point of sale terminal an employee

       of defendant walked hurriedly toward plaintiff, grabbed his shopping bag

       and falsely and maliciously accused plaintiff in a loud and startling voice: "I

       want to see what's in that bag you have stolen!!"

              6. Defendant's employee forcibly and unlawfully seized the bag held

       by the plaintiff.

              7. Defendant then and there compelled plaintiff to remain there for

       approximately thirty minutes.

              8. As a direct and proximate result of the false accusations, and

       plaintiff's unlawful detention, plaintiff was humiliated, embarrassed, suffered

       great and lasting mental anguish that required continuous expert counseling

       into the future.
Richland County, Case No. 18CA86                                                         6




       {¶ 11} In its motion for summary judgment filed July 24, 2018, appellee argued

appellant's claims were beyond the statute of limitations and further, genuine issues of

material fact did not exist.

       {¶ 12} In its judgment entry filed August 23, 2018, the trial court made numerous

citations to appellant's deposition testimony wherein appellant explained the incident in

detail. Thereafter, the trial court granted the motion for summary judgment, finding the

following on the statute of limitations issue:



              Plaintiff's complaint raises claims of defamation and false

       imprisonment, both subject to the one-year statute of limitations found in

       O.R.C. § 2305.11(A).       This case was filed on December 22, 2017;

       consequently, in order to be filed within the statute of limitations, the cause

       of action must have accrued on or after December 22, 2016.

              Defendant argues that from the deposition testimony, the court can

       infer the date of the incident occurring prior to December 21, 2016, the last

       day of fall, based on Mr. Acheff's deposition testimony that "it happened in

       the fall," it happened in 2016, and he didn't think it was December.

              There is no sworn factual allegation cognizable under Civ. R. 56(C)

       that these events happened on or after December 21, 2016. Consequently,

       there is no dispute of material fact to be resolved. The case is barred by

       the one-year statute of limitations, and the defendant is entitled to summary

       judgment on that basis.
Richland County, Case No. 18CA86                                                             7




       {¶ 13} Based upon our review of the record and appellant's deposition testimony,

we concur with the trial court's analysis. Acheff depo. at 28-29, 80.

       {¶ 14} The trial court further found on the genuine issues of material fact issue:1



              In this case, the defendant has pointed out the undisputed testimony

       of Mr. Acheff at deposition, which establishes that the only delay in the

       plaintiff leaving the Meijer store was not caused by the store employee who

       allegedly accosted Mr. Acheff, but by the automatic operation of the door

       opening and closing mechanism.

              Mr. Acheff voluntarily appeared at the Meijer store premises and he

       was free to leave during the entire encounter with the Meijer employee. In

       fact, the Meijer employee explained to him how to trigger the door to re-

       open so that he could leave. The court finds as a matter of law that there

       was no confinement of the plaintiff to support a claim for false imprisonment.



       {¶ 15} Based upon our review of the record and appellant's deposition testimony,

we concur with the trial court's analysis. Acheff depo. at 10, 45-53. Appellant was not

detained at all, let alone thirty minutes as alleged in his complaint.




1We  note the trial court analyzed the motion for both a false imprisonment claim and a
defamation claim stemming from appellant's complaint allegation of "false accusations."
However, in his appellate brief at 1, appellant acknowledges he filed "a false
imprisonment action against appellee" and does not mention any defamation claim.
Therefore, we will review the trial court's findings on the false imprisonment claim only.
Richland County, Case No. 18CA86                                                        8


      {¶ 16} Upon review, we find the trial court did not err in granting summary judgment

to appellee.

      {¶ 17} The sole assignment of error is denied.

      {¶ 18} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Hoffman, P.J. and

Baldwin, J. concur.


EEW/db 531
