COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67493 : TIBOR J. SAROSSY, ET AL. : : JOURNAL ENTRY Plaintiffs-Appellants : : and -vs- : : OPINION : MARIA SAROSSY, ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT APRIL 20, 1995 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 264468 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFFS-APPELLANTS FOR DEFENDANT-APPELLEE TIBOR J. SAROSSY, ET AL.: MARIA SAROSSY: THOMAS P. ALDRICH, III, ESQ. JAMES M. JOHNSON, ESQ. 1060 Greyton Road 330 Hanna Bldg.,1422 Euclid Ave. Cleveland Heights, Ohio 44112 Cleveland, Ohio 44115-1901 FOR DEFENDANTS-APPELLEES FOR DEFENDANT-APPELLEE MARIA SAROSSY, RICHARD AMBROSE, CITY OF ROCKY RIVER, OHIO, MCDONALD, HOPKINS, BURKE & ROCKY RIVER MUNICIPAL COURT: HABER CO. L.P.A.: DAVID J. MATTY, ESQ. MICHAEL J. JORDAN, ESQ. 55 Public Square THOMAS C. SCHRADER, ESQ. Suite 1775 2100 Bank One Center Cleveland, Ohio 44113 600 Superior Avenue, East Cleveland, Ohio 44114 -2- PATRICIA ANN BLACKMON, J: Tibor J. Sarossy and Roger Tanner, plaintiffs-appellants, appeal the trial court's granting of a Civ.R. 12(B)(6) dismissal in favor of Maria Sarossy, Richard J. Ambrose, McDonald, Hopkins, Burke & Haber, Co. L.P.A., the City of Rocky River, and Rocky River Municipal Court, defendants-appellees. Sarossy and Tanner assign the following errors for our review: I. THE TRIAL COURT ERRED IN FAILING TO DETERMINE THAT APPELLANTS-PLAINTIFFS' CONSTITUTIONAL AND CIVIL RIGHTS WERE VIOLATED BY APPELLEES- DEFENDANTS. II. THE TRIAL COURT ERRED IN FAILING TO FIND THAT APPELLANTS-PLAINTIFFS' RIGHTS UNDER THE OHIO REVISED CODE WERE VIOLATED BY THE DEFENDANTS. III. THE TRIAL COURT ERRED IN FAILING TO FIND THAT APPELLEES-DEFENDANTS MARIA SAROSSY, RICHARD E. AMBROSE, ESQ. AND MCDONALD, HOPKINS, BURKE & HABER BREACHED A CONTRACT MADE WITH APPELLANT- PLAINTIFF TIBOR SAROSSY. IV. THE TRIAL COURT ERRED IN FAILING TO ALLOW NO DISCOVERY AND IN FAILING TO HAVE ANY PROCEEDINGS WHATSOEVER. Having reviewed the record and the arguments presented by the parties, we affirm the decision of the trial court. We also impose sanctions against the plaintiffs-appellants and their lawyer for the prosecution of this appeal. The apposite facts follow. Tibor Sarossy and Tanner filed a complaint and alleged the following: In 1974, Tibor Sarossy lived at 22955 Westwood Road, Fairview Park, Ohio. The property was owned by his parents, Tibor and Maria Sarossy. Tibor Sarossy had an agreement with his parents to live -3- at the property as long as he paid the mortgage, taxes, and insurance, and once the mortgage was paid, they would give him the property. Tibor Sarossy continued to live at the property, through the time of his father's death in 1978, and paid off the mortgage in May of 1989. Except for the period of a year, in which he lived in Europe and left money with his mother to care for the property, Tibor Sarossy occupied the property continuously through 1992. In 1992, Maria Sarossy filed a forcible entry and detainer action against her son in Rocky River Municipal Court. He filed an action for quiet title to the property in Cuyahoga County Common Pleas Court. Both courts ruled in favor of Maria Sarossy and Tibor Sarossy appealed. While the appeal was pending, the parties entered a settlement under which Tibor Sarossy would agree to dismiss the appeals, vacate the property by January 5, 1994, and receive 45% of the proceeds of the sale of the property. Tibor Sarossy began searching for a bona fide purchaser for the property. In January, Tibor Sarossy found two potential bona fide purchasers, one of whom was Roger Tanner. On January 3, 1994, Tanner began negotiations to purchase the property with Maria Sarossy, and she assured her son, Tibor, he could continue to live at the property until a sale was negotiated. On January 4, 1994, Maria Sarossy assured counsel for Tibor Sarossy that Tibor could remain in the property after January 5, 1994. January 5, 1994 passed and negotiations for the sale of the property continued. On January 13, 1994, officers of Rocky River Municipal Court appeared at the property and began evicting Tibor Sarossy without -4- any prior notice. Tibor Sarossy's possessions were put out in the snow. Some of his property was damaged and some was subject to scavengers. Tibor Sarossy operated an import-export business of auto and motorcycle parts out of his home. As a result of the eviction, his business was destroyed. Maria Sarossy and Ambrose rescinded the offer to sell the property to Tanner, and Tibor Sarossy was informed he would not receive 45% of the proceeds of the sale of the property. Thereafter, Tibor Sarossy and Tanner filed an action in the Cuyahoga County Common Pleas Court against Maria Sarossy, her attorney Richard J. Ambrose, his law firm, McDonald, Hopkins, Burke & Haber, Co. L.P.A., the city of Rocky River, and Rocky River Municipal Court. Sarossy and Tanner sought $1,000,000 in compensatory damages, recovery of the property, and punitive damages under the theories of breach of contract, fraud, and violation of his right to due process. The city of Rocky River and Rocky River Municipal Court moved for dismissal and asserted governmental immunity under R.C. 2744.02 and 2744.03 for acting under the municipality's judicial function. Maria Sarossy, Richard Ambrose, and McDonald, Hopkins, Burke & Haber Co., L.P.A. moved for dismissal under Civ.R. 10(D), 12(B)(6), 12(E), or 12(F). Maria Sarossy filed a separate motion to dismiss with new counsel. All motions to dismiss were granted and this appeal followed. The four assigned errors set forth by Tibor Sarossy and Tanner attempt to argue the complaint does state a claim upon which relief -5- can be granted. Therefore, it is necessary to look at the standard of review for a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim in order to resolve whether dismissal of the complaint was proper. In reviewing a dismissal for failure to state a claim, a reviewing court must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party. E.g., Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190. A complaint may not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts warranting recovery. O'Brien v. Univ. Community Tenants Union (1975), 42 Ohio St.2d 242. Under this rule, regardless of the particular legal theories advanced by the plaintiff, a trial court has a duty to examine a complaint to determine if the allegations provide for relief on any possible theory. Rogers v. Targot Telemarketing Services (1990), 70 Ohio App.3d 689, 692. In their first and second assignments of error, Sarossy and Tanner argue the complaint should not have been dismissed because the forcible entry and detainer action and the eviction violated Sarossy's constitutional and civil rights and the provisions of R.C. Chapter 1923. These assignments of error has no merit. It is a well established law that a municipality retains immunity from liability for judicial acts. See Kalk v. Woodmere (1985), 27 Ohio App.3d 145, 147-149 (held municipality may not be sued in tort for physically removing a disruptive individual from a village council meeting.) See, also, Wilson v. Neu (1984), 12 Ohio -6- St.3d 102. In the case sub judice, Rocky River Municipal Court's actions in conducting the forcible entry and detainer proceedings and evicting Tibor Sarossy were clearly judicial functions for which they retain immunity. While the doctrine of municipal immunity protects Rocky River Municipal Court from tort law claims, it is not applicable to civil rights claims brought under federal law. Id. at 149. However, the complaint in this case merely states "[t]here are clear constitu- tional and civil rights violations which Mr. Sarossy will be taking up in Federal Court." Sarossy and Tanner's complaint neither purports to make a civil rights claim, nor does it allege any set of facts stating a civil rights claim. Because municipalities acting within their judicial functions are immune from state tort law claims, and no civil rights claim was actually alleged, Sarossy and Tanner's complaint fails to state a claim upon which relief can be granted against Rocky River and the Rocky River Municipal Court. Accordingly, the motion to dismiss of Rocky River and Rocky River Municipal Court was properly granted. In their third assignment of error, Tibor Sarossy and Tanner argue the complaint should not have been dismissed because Maria Sarossy breached their settlement agreement. Tibor Sarossy presumably believes the oral promise to extend the time he could stay on the property was a valid contract. This assignment of error has no merit. -7- "A contract of novation is created where a previous valid obligation is extinguished by a new valid contract, accomplished by substitution of parties or of the undertaking, with the consent of all the parties, and based on valid consideration." McGlothin v. Huffman (1994), 94 Ohio App.3d 240, 244. See, also, 18 Ohio Jurisprudence 3d (1980) 207, Contracts, Section 285. Under the original settlement agreement, a material term required Tibor Sarossy to vacate the premises on or before January 5, 1994. When Tibor Sarossy asked to remain on the property for an undetermined additional period of time, no additional consideration was offered or accepted. Although Maria Sarossy may have promised Tibor Sarossy he could remain on the property while the sale was being negotiated, there was no valid consideration for the promise. Thus, a contract of novation was not created by Maria Sarossy's promise. We now turn to the issue of liability with respect to Maria Sarossy's attorney, Richard Ambrose and his law firm, McDonald, Hopkins, Burke & Haber. It is a well settled principle of law that "***a third party has no claim for relief [in a negligence or breach of contract action] against an adversary's attorney with respect to the manner in which the attorney prosecutes a lawsuit on behalf of his client." See, e.g. Strauch v. Gross (1983), 10 Ohio App.3d 303, 304-305 (held appeal from summary judgment frivolous). The complaint reveals Richard Ambrose did nothing more than prosecute an eviction and attempt to enforce a settlement agreement on behalf of his client. Therefore, Sarossy and Tanner had no -8- claim of relief against Ambrose or his law firm. Accordingly, the motions to dismiss of Maria Sarossy, Richard Ambrose, and McDonald, Hopkins, Burke & Haber were properly granted. In their fourth assignment of error, Sarossy and Tanner argue the trial court erred in denying them discovery prior to dismissing the action. This assignment of error has no merit. "When a court dismisses a complaint pursuant to Civ.R. 12(B)(6), it makes no factual findings beyond its legal conclusion that the complaint fails to state a claim upon which relief can be granted. Thus, the court does not assume the role of fact finder***." State, ex rel. Drake, v. Athens Cty. Bd. of Elections (1988), 39 Ohio St.3d 40, 41 (held no duty to make findings of fact and conclusions of law prior to a Civ.R. 12(B)(6) dismissal). When a trial court dismisses an action solely because the complaint fails to state a claim under Civ.R. 12(B)(6), and does not act as finder of fact, discovery is not required. Because Sarossy and Tanner's complaint was dismissed under Civ.R. 12(B)(6), discovery was not required prior to dismissal. We now address whether this is a frivolous appeal. App.R.23 provides: "If a court of appeals shall determine that an appeal is frivolous, it may require the appellant to pay reasonable expenses of the appellee including attorney fees and costs." An appeal is frivolous when it essentially presents "no reasonable question for review." Danis Montco Landfill Co. v. Jefferson Twp. Zoning Comm. (1993), 85 Ohio App.3d 494. -9- We find no reasonable question for review with respect to the tort claims against the city of Rocky River and the Rocky River Municipal Court because immunity for municipalities in executing their judicial functions is well established. We further find no reasonable question for review with respect to the breach of contract claim against Richard Ambrose and McDonald, Hopkins, Burke & Haber because the lack of liability of an attorney to a third party with respect to the manner in which he prosecutes a lawsuit on behalf of his client is also well established law. Conse- quently, the court finds the appeal against the city of Rocky River, Rocky River Municipal Court, Richard Ambrose, and McDonald, Hopkins, Burke & Haber to be frivolous under App.R. 23. The city of Rocky River, Rocky River Municipal Court, Richard Ambrose, and McDonald, Hopkins, Burke & Haber may submit evidence by way of affidavit regarding the costs, including attorney fees incurred by them in this appeal, within seven days of the judgment entry herein. The appellants may submit counter-affidavits concerning the reasonable attorney fees and costs to be awarded within fourteen days after judgment is entered herein, following which the court will make a finding of costs, including attorney fees, which will be assessed in favor of these particular appellees against appellants. Judgment affirmed. -10- It is ordered that Appellees recover of Appellants their costs, including attorney fees, herein taxed. The Court finds there were reasonable grounds for the appeal from the dismissal of the action against Maria Sarossy, but finds no reasonable grounds for the appeal with respect to the city of Rocky River, Rocky River Municipal Court, Richard Ambrose, and McDonald, Hopkins, Burke & Haber Co. L.P.A. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court 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. Exceptions. HARPER, J., and NAHRA, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING JUDGE 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .