COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68869 JOSEPH HUGHES : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION CITY OF CLEVELAND : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: MAY 9, 1996 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CV-266480 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: JOSEPH HUGHES, PRO SE SHARON SOBOL JORDAN, ESQ. 3478 East 78th Street DIRECTOR OF LAW Cleveland, Ohio 44127 CHARLES E. HANNAN, JR., ESQ. ASSISTANT DIRECTOR OF LAW Room 106 - City Hall 601 Lakeside Avenue Cleveland, Ohio 44114 - 2 - DYKE, J.: Plaintiff-appellant Joseph Hughes, claims the trial court erred in granting summary judgment in favor of the City of Cleveland, Defendant-appellee herein. Upon review, we find appellant's claim lacks merit. Hence, we affirm the judgment of the trial court. The record demonstrates the following. On March 2, 1994 appellant filed an action for money damages alleging misrepresentation and the infliction of emotional distress in connection with appellee's administration of a $20,000 loan for 1 home improvement. On January 6, 1995 appellee filed a motion for summary judgment arguing that the action was barred by the doctrine of res judicata as appellant had filed a similar action on November 8, 1993 predicated upon the same transaction which was dismissed for failure to state a claim and never appealed. (See, Hughes v. City of Cleveland, C.P. No. 260600 referred to herein as "Hughes I") Appellee further argued in its motion for summary judgment that it was immune to appellant's complaint pursuant to the political subdivision tort liability provisions set forth in R.C. 2744.02 (A)(1). On February 6, 1995 appellant filed a "Response" 1 Appellant alleged that he originally applied for and received an "emergency" loan to correct certain foundation and wall defects from appellee's Department of Community Development, Rehabilitation Division. He stated that he "reluctantly conceded" to utilize approved funds for "non-emergency" purposes after appellee discovered that his premises did not conform to its building code. Appellee determined that appellant's premises constituted a two family residence and classified same as an "illegal conversion." See, appellant's "Complaint" and "Response" to appellee's motion for summary judgment. - 3 - to appellee's motion arguing that "Hughes I" was not identical to the instant action and that appellee was not immune to his claim for emotional distress. On March 21, 1995 the court granted summary judgment in favor of appellee. This appeal followed. Appellant's pro se brief lacks specifically delineated assign- ments of error. However, he nevertheless claims that the trial court erred in dismissing "Hughes I" because it did so without providing him with a "reasonable" amount of time to oppose the City of Cleveland's Civ.R 12(B)(6) motion. Appellant also incorporates by reference the arguments he advanced in his "Response" to appellee's motion for summary judgment to wit, that res judicata was inapplicable because "Hughes I" did not include a claim for emotional distress and was filed pro se. Appellant seems to suggest that a distinction can be drawn between the actions based upon his assertion that the trial court dismissed "Hughes I" not because it lacked a legal basis but because it was unskillfully 2 pled. Appellant's arguments are unpersuasive. Pro se civil litigants are bound by the same rules and procedures as those litigants who retain counsel. They are not to be accorded greater rights and must accept the results of their own mistakes and errors. Meyer v. First Natl. Bank (1981), 3 Ohio App.3d 209, 210. 2 Appellant's theory that the trial court dismissed the case due to unskilled or pro se pleading is devoid of merit. The record clearly demonstrates that "Hughes I" was dismissed pursuant to the City of Cleveland's "unopposed" Civ.R. 12(B)(6) Motion. See, Journal Entry, Vol. 1705, Pg 414 C.P. 260600, Exhibit B attached to appellee's motion for summary judgment. - 4 - A final judgment or decree rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction * * * is a complete bar to any subsequent claim or cause of action between the parties or those in privity with them. Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 381 citing Norwood v. McDonald (1943), 142 Ohio St. 299. An unappealed judgment is res judicata in subsequent litigation. Sturgill v. Sturgill (1989), 61 Ohio App.3d 94. The record demonstrates that appellant failed to appeal the Civ.R. 12(B)(6) dismissal he sustained in "Hughes I." Hence, appellant is precluded from raising any errors which occurred therein in this appeal and is bound by the "Hughes I" judgment which remains valid and final. See, App. R. 4 and Sturgill, supra. In addition, the court's order which specifically dismissed "Hughes I" pursuant to Civ.R. 12(B)(6) did not specify that it was 3 otherwise than on the merits. Hence, such dismissal operates as an adjudication on the merits. See, Civ.R. 41(B)(3). Moreover, appellant is collaterally estopped from attacking the judgment rendered in "Hughes I" as the parties and claims advanced therein 4 are identical to those advanced below. See, Cully v. Lutheran Medical Ctr. (1987), 37 Ohio App.3d 64. Appellant's argument that 3 See, Exhibit B, appellee's motion for summary judgment. 4 Appellant captioned the complaint filed in "Hughes I" as "Fraud by Misrepresentation." A review of the complaint indicates that it was predicated upon the same loan application and the same subsequent conduct of the appellee. See, Exhibit A, attached to appellee's motion for summary judgment. - 5 - his emotional distress claim precludes an award of summary judgment lacks merit. Appellant is precluded from raising the claim of the infliction of emotional distress as it could have been pled in "Hughes I." See, Grava and Norwood, supra. Even if we were to assume arguendo that such claim constituted a new cause of action, in the absence of wanton or reckless conduct, appellee would still be immune to such alleged tort. See, Wilson v. Stark Cty. Dept. Human Serv. (1994), 70 Ohio St.3d 450 and R.C. 2744.03 (A)(6). Summary judgment is proper pursuant to Civ.R. 56(C) if the trial court determines 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 conclu- sion and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274; see, also Delker v. Ohio Edison Co. (1989), 47 Ohio App.3d 1, 2, 546 N.E.2d 975, 976. Once summary proceedings have been properly initiated, the responding party must set forth specific facts demonstrating triable issues on all essential matters for which he bears the initial burden of proof. Mere reliance upon the pleadings is insufficient. Civ.R. 56(D); see, also, Celotex Corp. v. Catrett (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211. The issue to be tried must also be "genuine," allowing reasonable minds to return a verdict for the nonmoving party. Id. 477 U.S. at 248-252, 106 S.Ct. at 2510-2512, 91 L.Ed. at 211-214. - 6 - See, Manofsky v. Goodyear Tire & Rubber Co. (1990), 69 Ohio App.3d 663, 666, motion to certify overruled (1991), 58 Ohio St.3d 703. Appellant alleged that appellee conducted an "investigation" of his premises; that appellee classified his premises as an "illegal" conversion and that he "reluctantly conceded" to have $20,000 in approved emergency loan monies utilized to make "non- essential and non-emergency repairs." Appellant further alleged that as a result of such concession, his "emergency" loan was exhausted and he was unable to realize the repairs which were the basis of his initial loan application. Hence, appellant asserts that his damages were caused by an inspection and certain other administrative activities conducted by the appellee. However, these activities clearly fall within the definition of "govern- mental function" as provided by R.C. 2744.02(A)(1), R.C. 5 2744.01(C)(1) and R.C. 2744.01(C)(2) (m)(p)(q). Hence, appellee 5 R.C. 2744.02(A)(1) provides in relevant part that: For the purpose of this chapter, the functions of political subdivisions are hereby classified as governmental functions. Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function. (emphasis added) "Governmental function" is broadly defined under R.C. 2744.01(C)(1) to include: - 7 - is immune to appellant's action. While appellant contended in his A function of a political subdivision that is specified in division (C)(2) of this section or that satisfies any of the following: (a) A function that is imposed upon the state as an obligation of sovereignty and that is performed by a political subdivision voluntarily or pursuant to legislative requirement; (b) A function that is for the common good of all citizens of the state; (c) A function that promotes or preserves the public peace, health, safety or welfare; that involves activities that are not engaged in or not customarily engage in by nongovernmental persons; and that is not specified in division (G)(2) of this section as a proprietary function. R.C. 2744.01(C)(2) defines "governmental function" to include inter alia: (m) The operation of a human services depart- ment or agency, including but not limited to the provision for assistance to aged and infirm persons and to persons who are indi- gent; * * * (p) The provision or nonprovision of inspection services of all types, including, but not limited to, inspections in connection with building, zoning and electrical codes, and the taking of actions in connection with those types of codes, including, but not limited to, the approval of plans for the construction of buildings or structures and the issuance or revocation of building permits or stop work orders in connection with buildings or structures; (q) Urban renewal projects and the elimina- tion of slum conditions. - 8 - "Response" that appellee's activities were "proprietary," he failed to support such contention as required by Catrett, supra. Moreover, a plain reading of the above cited statutes indicates that building inspection, building construction and the administration of home improvement loans constitute governmental functions to which immunity would attach. The trial court did not err in granting summary judgment in favor of appellee as no triable issue of fact remains with respect to whether appellant's action is barred by the doctrine of res judicata or whether appellee is immune to the action pursuant to R.C. 2744.01(A)(1). Appellant's assignments of error are overruled. The judgment of the trial court is affirmed. - 9 - It is ordered that appellee recover of appellant its 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 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. KARPINSKI, J., AND MCMONAGLE, J., CONCUR ANN DYKE 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 announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .