COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60642 IVAN SAWCHYN : : Plaintiff-appellant/ : cross-appellee : : JOURNAL ENTRY -vs- : AND : OPINION CITY OF MIDDLEBURG HEIGHTS, : ET AL. : : Defendants-appellees/ : cross-appellants : DATE OF ANNOUNCEMENT : OF DECISION : JULY 2, 1992 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CP 193,983 JUDGMENT : AFFIRMED IN PART, REVERSED AND REMANDED IN PART. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant/ For defendants-appellees/ cross-appellee: cross-appellants: IVAN SAWCHYN, PRO SE ALAN E. JOHNSON, ESQ. 14410 Uhlin Drive The Dallas Building Middleburg Hts., OH 44130 2217 East 9th Street Cleveland, Ohio 44115 - 2 - J.F. CORRIGAN, J., Plaintiff Ivan Sawchyn appeals from the order of the trial court which dismissed his complaint against defendants the City of Middleburg Heights, Bonnie White, and Peter Hull. Defendants cross-appeal, contesting the trial court's refusal to hold a hearing upon their motion for attorneys' fees. I. Plaintiff filed this pro se complaint against defendants on July 25, 1990. In the first and second claims for relief, plaintiff alleged: *** that defendant City of Middleburg Heights knowingly and willfully deprived him of a legitimate and legal business opportunity in 1986 by denying him a moderate rezoning of a large parcel of real estate which plaintiff had an option to purchase for only $160,000 from owners Andrew and Vera Braunitzer and then in 1989 after owners filed suit against Middleburg Heights to get this rezoning granted it to them on practically the identical terms if not the identical terms that the plaintiff had offered to settle his case against Middleburg Heights. *** *** that defendant City of Middleburg Heights denied him such zoning for a variety of motivations, none of them which were ethical or even legal. ****. Plaintiff further averred, with respect to these allegations: I had an option to purchase a property on Pearl & Fowles Road in Middleburg Heights for $160,000. I was deprived of this opportunity by a committee chaired by Bonnie White and filed a law suit against the city and other defendants. I was the loser in that law suit - 3 - by virtue of a summary judgement which I should have but didn't appeal as there was no merit to the summary judgement. In his third claim for relief, plaintiff alleged: In the audience participation portion of the April 25, 1989 council meeting Bonnie White shouted the plaintiff down and divulged some unflattering information about the plaintiff revealed to her by her own admission by the showing to her a letter written by the plaintiff to Peter Hull in the plaintiff's capacity of a client of Mr. Hull. Mr. Hull's divulging of this confidential information was a violation of Ohio Revised Code 2317.02 as well as the ABA Disciplinary Rule DR 4-101 which observance is mandatory on Ohio Attorneys. 5. These acts *** [were] done to INTENTIONALLY AND WRECKLESSY [SIC] INFLICT EMOTIONAL DISTRESS on the Plaintiff. *** 6. The entire council sided with defendant White in deleting the demand by plaintiff from the minutes of June 27, 1989 council meeting for an explanation of *** suspected squandering of taxpayer's money. 7. During October 1989 prior to the November 1989 general election Mayor Starr went campaigning with plaintiff's opponent Catterini and was telling potential voters derogatory and distorted information about the fact that the plaintiff had at one time used poor judgement in acting on a recommendation to contact defendant Hull for possible legal assistance. The fact resulted is all these acts of the defendants resulted in causing the Plaintiff to lose the election but more importantly the fact is that these acts of the defendants were intentional and malicous [sic] and constituted the INTENTIONAL AND WRECKLESS [SIC] INFLICTION OF EMOTIONAL DISTRESS ON THE PLAINTIFF which caused the plaintiff unnecessary pain & suffering for which he is entitled to compensation for punitive damages. - 4 - Defendants subsequently moved to dismiss the complaint and to recover their attorneys' fees citing, to patent deficiencies in each claim for relief. On September 14, 1990, the trial court dismissed the complaint and denied defendants' request for attorneys' fees. II. Plaintiff's Appeal Plaintiff's first assignment of error states: "THE COURT ERRED IN NOT ISSUEING [SIC] A WRITTEN OPINION & JUDGEMENT [SIC] IN IT'S [SIC] GRANTING OF THE DEFENDANT'S MOTION TO DISMISS. THIS LEAVES THE APPELLANT IN A POSITION TO HAVE TO PRESUME AND GUESS AT WHICH OF THE DEFENDANT'S ARGUMENTS IS FOUND MERITORIOUS." Plaintiff's seventh assignment of error states: "THE COURT ERRED IN NOT EVEN AS MUCH AS CALLING A PRE TRIAL OR HEARING TO AFFORD THE PLAINTIFF SAWCHYN AN OPPORTUNITY TO FORCEFULLY EXPRESS AND PREOVE [SIC] THE LEGITIMACY OF HIS CAUSE OF ACTION." When a court dismisses a complaint pursuant to Civ. R. 12(B)(6), it makes no factual finding beyond its legal conclusion that the complaint fails to state a claim upon which relief can be granted. State, ex rel. Drake, v. Athens Cty. Bd. of Elections (1988), 39 Ohio St. 3d 40, 41. Accordingly, the court does not assume the role of fact finder and has no duty to issue findings of fact and conclusions of law. Id. Similarly, plaintiff at no time requested that the trial court conduct a pretrial hearing in this mater. Moreover, - 5 - pursuant to Loc. R. 21 of the Court of Common Pleas of Cuyahoga County, General Division provides merely that a pretrial shall be set within ninety (90) days after suit is filed and in this instance the matter was dismissed prior to this deadline. Accordingly, plaintiff's first and seventh assignments of error lack merit and are overruled. B. Plaintiff's second and third assignments of error are: "APPELLANT IN THE PRESUMPTION THAT THE COURT AGREED WITH THE DEFENDANT'S DISTORTED ALLEGATION ON PAGE 3 OF THEIR BRIEF IN SUPPORT THAT THE ALLEGATION THAT RES JUDICATA OR COLLATERAL ESTOPPEL WOULD BE CAUSE TO DISMISS THE CASE ALLEGES THAT THIS IS A SERIOUS ERROR. "IN THE FINAL PARAGRAPH ON PAGE 3 OF THE DEFENDANT'S MOTION TO DISMISS THE DEFENDANT'S ALLEGATION THAT A MUNICIPALITY HAS THE AUTHORITY TO REZONE IS DISTORTION IN THAT THE PLAINTIFF HAS ALLEGED THAT THE REZONING WAS AN ADMISSION OF SELECTIVE ENFORCEMENT OF THE ISSUE OF REZONING." Res judicata encompasses two concepts: "estoppel by judgment" and "collateral estoppel." Krahn v. Kinney (1989), 43 Ohio St. 3d 103, 107. The estoppel by judgment aspect of res judicata prevents a party from litigating a cause of action after a prior court has rendered a final judgment on the merits of that case as to that party. Id. Thus, where it is established that in a prior suit in the same cause of action between the same parties, a valid and existing final judgment was rendered for defendant, such judgment is on the merits and is res judicata, thereby barring a subsequent action on that same cause of action - 6 - between the same parties. La Barbera v. Batch (1967), 10 Ohio St. 2d 106, 108-110. In this case, plaintiff averred that he had raised the allegations of his first and second claims for relief in a previous lawsuit which he lost on the merits and did not appeal. Accordingly, the causes of action asserted in these claims are, on their face, barred by res judicata and the trial court did not err in dismissing these claims. Plaintiff's second and third assignments of error lack merit. C. Plaintiff's fourth assignment of error states: "ON PAGE 4 THE DEFENDANTS ALLEGE STATUTORY SOVEREIGN IMMUNITY AS A DEFENSE. SOVEREIGN IMMUNITY WAS LONG AGO DISMISSED AS A DEFENSE BY THE OHIO SUPREME COURT AND THIS IS OF SUCH COMMON KNOWLEDGE THAT THE APPELLANT WILL NOT EVEN CITE THE CASE." In 1983, the Supreme Court abolished the defense of municipal immunity in Enghauser Mfg. Co. v. Eriksson Engineering Ltd. (1983), 6 Ohio St. 3d 31. The court held, however: "Under this decision abolishing municipal immunity, no tort action will lie against a municipal corporation for those acts or omissions involving the exercise of a legislative or judicial function or the exercise of an executive or planning function involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion ***" paragraph two of the syllabus. Thus, even under Enghauser Mfg. Co., supra, a city council was determined to be immune from suit - 7 - where it exercised a high degree of official judgment or discretion in deciding whether to approve a subdivision plat. See C & D Partnership v. Gahanna (1984), 15 Ohio St. 3d 359, 362. Moreover, the General Assembly responded to the judicial abrogation of sovereign immunity by promulgating R.C. Chapter 2744. R.C. 2744.02, effective July 1, 1989, provides for political subdivision immunity in connection with governmental functions, subject to certain exceptions. In this case, the municipal activity giving rise to this action was the denial of a rezoning request. This clearly involved a discretionary action, cf. Consolidated Management, Inc. v. Cleveland (1983), 6 Ohio St. 3d 238, and therefore would be subject to immunity even under Enghauser Mfg. Co., supra. Moreover, even if the city were not entitled to municipal immunity herein, the judgment of the trial court which dismissed the claims against the city is nonetheless sustainable under the res judicata defense raised by defendants. Plaintiff's fourth assignment of error is overruled. D. Plaintiff's fifth assignment of error states: "ON PAGE 5, PARAGRAPH III THE DEFENDANT'S ALLEGATION THAT DEFENDANT HULL IS BARRED FROM BEING A DEFENDANT BECAUSE THE STATUTE OF LIMITATIONS EXPIRED HAS NO MERIT IN THAT APPELLANT SAWCHYN NEVER BECAME A CLIENT OF PETER HULL AND FURTHER SAWCHYN SUFFERED HIS DAMAGE AFTER THE ELECTION IN NOVEMBER 1989 BECAUSE OF HULL'S ACTS." While plaintiff asserts here that he never became defendant Hull's client, plaintiff alleged in paragraph four of his - 8 - complaint that at a council meeting on April 25, 1989 he learned that defendant Hull showed defendant White a "letter written by plaintiff to Peter Hull in the plaintiff's capacity as a client of Mr. Hull." It is this allegation which must be considered in light of defendants' motion to dismiss the complaint for failure to state a claim. O'Brien v. University Community Tenants Union (1975), 42 Ohio St. 3d 242, syllabus. Moreover, because the malpractice claim was not brought within one year of its accrual, as required in R.C. 2305.11, the trial court properly dismissed it. Accord DePaolo v. DeVictor (1988), 51 Ohio App. 3d 166, 172. Plaintiff's fifth assignment of error is overruled. E. Plaintiff's sixth assignment of error states: "THE CORT [SIC] ERRED IN GRANTING ANY MERIT ON PAGE 5 PARAGRAPH III THAT DEFENDANT WHITE'S CONDUCT WAS NOT EXTREME AND OUTRAGEOUS. IT FURTHER ERRED ON PAGE 6 IN TRYING TO RATIONALIZE THAT 'MERE INSULTS, INDIGNITIES, THREATS, ANNOYANCES, PETTY OPPRESSION, OR OTHER TRIVIALITIES' [SIC] ARE SOMEHOW BY SOME STRETCH OF THE IMAGINATION BARRED AS A CAUSE OF ACTION FOR RELIEF." In order to state a claim for intentional infliction of emotional distress, a plaintiff must allege serious emotional distress. Yeager v. Local Union 20 (1983), 6 Ohio St. 3d 369, 374. Here, no such allegation was contained in plaintiff's complaint, and this claim was therefore properly dismissed. Plaintiff's sixth assignment of error is overruled. - 9 - For the foregoing reasons, we hold that plaintiff's complaint was properly dismissed. III. Defendants' cross-appeal For their sole assignment of error, defendants assert that the trial court erred in refusing to hold an oral hearing on their motion for attorneys' fees, made pursuant to R.C. 2323.51. R.C. 2323.51 provides in relevant part: "(B) *** the court may award reasonable attorney's fees to any party to that action adversely affected by frivolous conduct. *** "(2) An award of reasonable attorney's fees may be made pursuant to division (B)(1) of this section upon the motion of a party to a civil action, but only after the court does all of the following: "(a) Sets a date for a hearing to determine whether particular conduct was frivolous, to determine, if the conduct was frivolous, whether any party was adversely affected by it, and to determine, if an award is to be made, the amount of that award; "(b) Gives notice of the date of the hearing described in division (B)(2)(a) of this section to each party or counsel of record who allegedly engaged in frivolous conduct and to each party allegedly adversely affected by frivolous conduct; "(c) Conducts the hearing described in division (B)(2)(a) of this section, allows the parties and counsel of record involved to present any relevant evidence at the hearing, including evidence of the type described in division (B)(5) of this section, determines that the conduct in question was frivolous and that a party was adversely affected by it, and then determines the amount of the award to be made." - 10 - This language has been construed to mean that a "trial court must conduct a hearing, at which the parties and counsel must be given the opportunity to present any evidence relevant to the issues raised." Pisanick-Miller v. Roulette Pontiac-Cadillac GMC, Inc. (1991), 62 Ohio App. 3d 757, 761. Accord Dreger v. Bundas (Nov. 15, 1990), Cuyahoga App. 57389, unreported at p. 15. Accordingly, we conclude that the trial court was required to conduct a hearing upon defendants' application therefore. Defendants' assignment of error is sustained and the matter is reversed and remanded solely as to this issue. - 11 - It is ordered that appellees/cross-appellants recover of appellant/cross-appellee their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, C.J., and PATTON, J., CONCUR. JUDGE JOHN F. CORRIGAN N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .