[Cite as Thomas v. Thomas, 2014-Ohio-1714.]


STATE OF OHIO                   )                    IN THE COURT OF APPEALS
                                )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                )

DAVID B. THOMAS                                      C.A. No.       27153

        Appellant

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
MARVIN THOMAS, et al.                                AKRON MUNICIPAL COURT
                                                     COUNTY OF SUMMIT, OHIO
        Appellees                                    CASE No.   13 CVI 02922

                               DECISION AND JOURNAL ENTRY

Dated: April 23, 2014



        WHITMORE, Judge.

        {¶1}    Plaintiff-Appellant, David Thomas, appeals from the judgment of the Akron

Municipal Court, Small Claims Division, dismissing his complaint for failure to state a claim.

This Court affirms.

                                                 I

        {¶2}    Thomas filed a pro se complaint against two of his siblings (“the Siblings”) in the

Akron Municipal Court, Small Claims Division. Subsequently, Thomas filed two motions to

transfer his case from the Small Claims Division to the regular docket. The court denied his

request, citing Loc.R. 37 which provides that a case may be transferred from the Small Claims

Division to the regular docket: (1) “upon motion of the [c]ourt,” (2) “upon motion of a

defendant,” or (3) “upon the filing of a counterclaim in an amount greater than the jurisdiction of

the Small Claims Division.”
                                                 2


       {¶3}    At a subsequent hearing, the Siblings orally moved to dismiss Thomas’ complaint

for failure to state a claim. The court granted the motion and dismissed the case. Thomas now

appeals and raises one assignment of error for our review.

                                                 II

                                       Assignment of Error

       THE TRIAL COURT ERRED WHEN IT DISMISSED MY CASE FOR LACK
       OF A COGNIZABLE CLAIM PLEADED WITHIN MY COMPLAINT. (Sic.)

       {¶4}    In his sole assignment of error, Thomas argues that the court erred in dismissing

his pro se complaint for failure to state a claim. We disagree.

       {¶5}    An order granting a motion to dismiss for failure to state a claim is subject to a de

novo review. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, ¶ 5. “In

reviewing whether a motion to dismiss should be granted, we accept as true all factual

allegations in the complaint.” Id.

       {¶6}    Ohio is a notice-pleading state. Kincaid v. Erie Ins. Co., 128 Ohio St.3d 322,

2010-Ohio-6036, ¶ 23 (Brown, C.J., dissenting). The pleading rule requires that the complaint

contain “a short and plain statement of the claim showing that the party is entitled to relief.”

Civ.R. 8(A). “The purpose of the pleading rules is to provide opposing parties with notice of the

claims and defenses against them so they have a fair opportunity to respond.” Kryder v. Kryder,

9th Dist. Summit No. 25665, 2012-Ohio-2280, ¶ 16.

       {¶7}    “This Court has held that pro se litigants are ‘presumed to have knowledge of the

law and correct legal procedures so that [they] remain[ ] subject to the same rules and procedures

to which represented litigants are bound.’” Akron v. Prince, 9th Dist. Summit No. 26713, 2013-

Ohio-2671, ¶ 8, quoting Sherlock v. Myers, 9th Dist. Summit No. 22071, 2004-Ohio-5178, ¶ 3.
                                                  3


However, pro se motions and pleadings should be liberally construed so as to decide the issues

on the merits, if possible. Sherlock at ¶ 3.

        {¶8}    Thomas’ complaint, in its entirety, says that “my siblings have excluded me from

participating in the funeral arrang[e]ments of my parents and they would not let me see the will

of my mom. Etc. Feb 2012 [and] April 2013 – I want $3000[.]” On appeal, Thomas argues that

he stated a cause of action for intentional infliction of emotional distress. We disagree.

        {¶9}    “In a case for intentional infliction of emotional distress, a plaintiff must prove (1)

that the defendant intended to cause the plaintiff serious emotional distress, (2) that the

defendant’s conduct was extreme and outrageous, and (3) that the defendant’s conduct was the

proximate cause of plaintiff’s serious emotional distress.” Phung v. Waste Mgt., Inc., 71 Ohio

St.3d 408, 410 (1994). Even construing Thomas’ complaint liberally, it fails to allege facts that

support a claim of intentional infliction of emotional distress. Thomas’ complaint does not

mention intentional infliction of emotional distress and nowhere in his complaint does he allege

that he has suffered emotional distress, a necessary element in the cause of action he pleaded.

Therefore, we conclude that the court did not err in granting the Siblings’ motion to dismiss for

failure to state a claim.

        {¶10} Thomas’ sole assignment of error is overruled.

                                                  III

        {¶11} Thomas’ assignment of error is overruled. The judgment of the Akron Municipal

Court, Small Claims Division, is affirmed.

                                                                                  Judgment affirmed.




        There were reasonable grounds for this appeal.
                                                 4


       We order that a special mandate issue out of this Court, directing the Akron Municipal

Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     BETH WHITMORE
                                                     FOR THE COURT



BELFANCE, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

DAVID THOMAS, pro se, Appellant.

MARVIN THOMAS, pro se, Appellee.

JOSEPHINE JONES, pro se, Appellee.
