[Cite as Highfield v. Pietrykowski, 2016-Ohio-5695.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                     OTTAWA COUNTY


Richard K. Highfield                                   Court of Appeals No. OT-16-008

        Appellant                                      Trial Court No. CVF 1500578

v.

William F. Pietrykowski, et al.                        DECISION AND JUDGMENT

        Appellees                                      Decided: September 2, 2016

                                                  *****

        Richard K. Highfield, pro se.

        William F. Pietrykowski, for appellees.

                                                  *****

        CELEBREZZE, JR., J.

        {¶ 1} Plaintiff-appellant, Richard K. Highfield (“appellant”), appeals the trial

court’s dismissal of his complaint for unjust enrichment and monetary damages.

Specifically, appellant argues that (1) the motion to dismiss contained material and false

representations, (2) the trial court erred in applying the doctrine of res judicata, (3) the
trial court had a duty to find that a quasi contract existed between the parties, (4) the trial

court violated the Ohio Code of Judicial Conduct, and (5) defendant-appellee, William F.

Pietrykowski, violated the Ohio Rules of Professional Conduct. After a thorough review

of the record and law, this court affirms.

                            I. Factual and Procedural History

       {¶ 2} On February 5, 2015, appellant filed a complaint against defendants-

appellees, William F. Pietrykowski, Carol A. Pietrykowski, and Gill Road Development,

L.L.C. (“appellees”), alleging a cause of action based on an account for the accounting

services he provided by preparing income tax returns for appellees for the calendar years

of 2010 through 2013. Appellant alleged that he received $420, $250, and $750 from

appellees for preparing tax returns for the calendar year of 2009, and that appellees owed

him $1,680, $1,000, and $2,440 for the tax returns he prepared for the calendar years of

2010 through 2013. The trial court granted appellees’ motion for judgment on the

pleadings, finding that appellant’s complaint failed to establish a prima facie case. The

trial court dismissed the case with prejudice. Appellant did not appeal the trial court’s

dismissal.

       {¶ 3} On December 28, 2015, appellant filed a second complaint against appellees

alleging a cause of action based on unjust enrichment. The complaint alleged that

appellees owed appellant compensation for the accounting services he provided between

2010 and 2013. Appellees filed a motion to dismiss arguing that appellant’s second

complaint was barred by the doctrine of res judicata because it was based on the same




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alleged facts as appellant’s first complaint. The trial court noted that although appellant’s

second complaint was founded upon a different theory of recovery, the complaint was

barred by the doctrine of res judicata. The trial court granted appellees’ motion to

dismiss, concluding that:

       It is obvious from the record that [appellant] is attempting to relitigate his

       failed attempt to present a claim against the same named defendants [in the

       second complaint] as were sued in the previous action. Here, [appellant]

       brings suit to recover based upon a theory of unjust enrichment; whereas in

       the former suit, his claim for relief was based upon an account.

       {¶ 4} Appellant filed the instant appeal assigning six errors for review:

              I. The trial court erred by imposing judicial standards never

       intended for the adjudication of a small claims case and contrary to Ohio

       Code of Judicial Conduct, Rule 2.2 impartiality and fairness.

              II. The trial court erred by accepting the defendants-appellees’

       motion to dismiss that contained material false representations of the

       plaintiff-appellant’s complaint for unjust enrichment.

              III. The trial court erred when rendering its decision and judgment

       based upon the doctrine of res judicata after said court significantly altered

       the set of facts from plaintiff-appellant’s original complaint.




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              IV. The trial court erred by not accepting a pleading of quasi

       contract after all defendants-appellees’ acknowledged services (unilateral

       consideration) were rendered to their benefit by plaintiff-appellant. The

       doctrine of “righting a wrong” preempts other doctrines.

              V. The trial court erred by not reporting [William Pietrykowski’s]

       pattern of subterfuge, deceit, fraud and misrepresentation to the appropriate

       authority as required by the Ohio Code of Judicial Conduct, Rule 2.15.

              VI. The trial court erred by demonstrating bias, prejudice and

       contempt in violation of the Ohio Rules of Judicial Conduct, Rule 1.1,

       compliance with the law and Rule 2.3, bias, prejudice and harassment.

For ease of discussion, we address appellant’s assignments of error out of order.

                                  II. Law and Analysis

                          A. Conversion of Motion to Dismiss

       {¶ 5} Before addressing the merits of the case, we must first address a procedural

matter. In order for a trial court to grant a motion to dismiss “it must appear beyond a

doubt from the complaint that the plaintiff can prove no set of facts entitling him to

relief.” City of Cincinnati v. Berretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480,

768 N.E.2d 1136, ¶ 5. When construing a complaint upon a motion to dismiss, “we must

presume that all factual allegations of the complaint are true and make all reasonable

inferences in favor of the non-moving party.” Mitchell v. Lawson Milk Co., 40 Ohio

St.3d 190, 192, 532 N.E.2d 753 (1988). The court may only look to the complaint to




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determine whether the allegations are legally sufficient. Home Builders Assn. of Dayton

& Miami Valley v. Lebanon, 12th Dist. Warren No. CA2003-12-115, 2004-Ohio-4526,

¶ 8.

         {¶ 6} When a motion to dismiss presents matters outside the record and the trial

court does not exclude those matters, the motion “shall be treated as a motion for

summary judgment and disposed of as provided in Rule 56.” Civ.R. 12(B). However,

when a motion to dismiss is converted to a motion for summary judgment, the trial court

is required to notify the parties and give them the opportunity to present such evidence as

permitted under Civ.R. 56(C). JNS Ents., Inc. v. Sturgell, 4th Dist. Ross No. 05CA2814,

2005-Ohio-3200, ¶ 8. Failure to provide notice to the parties constitutes reversible error.

State ex rel. Baran v. Fuerst, 55 Ohio St.3d 94, 97, 563 N.E.2d 713 (1990); State ex rel.

Boggs v. Springfield Local School Dist. Bd. of Edn., 72 Ohio St.3d 94, 96, 647 N.E.2d

788 (1995). Whether or not the trial court expressly states in its decision, when a court

considers matters outside the pleadings, it is converting a Civ.R. 12(B)(6) motion to

dismiss to a Civ.R. 56 motion for summary judgment and must notify the parties. Baran,

supra.

         {¶ 7} In Blood v. Hartland Twp., 6th Dist. Huron No. H-04-032, 2005-Ohio-3860,

the appellate court held that the trial court improperly considered appellant’s prior cases

in granting one of the defendant-appellee’s motions to dismiss for failure to state a claim

because the material was outside of the complaint. Id. at fn. 2. However, despite the trial

court’s failure to notify the parties that it was converting the Civ.R. 12(B)(6) motion to




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dismiss into a motion for summary judgment, the Sixth District did not reverse on that

basis because appellant could not prove a set of facts upon which she might recover

against the defendant-appellee. Id.

       {¶ 8} In Bowling Transp. v. Gregg, 6th Dist. Sandusky No. S-96-007, 1997 Ohio

App. LEXIS 168 (Jan. 24, 1997), the trial court considered documents outside the

pleadings in ruling on a Civ.R. 12(B)(6) motion to dismiss and did not convert the motion

to dismiss to a motion for summary judgment. Id. at 8. On appeal, the Sixth District held

that the trial court erred as a matter of law by failing to comply with the requirements of

Civ.R. 56. Id. However, the Sixth District did not reverse the trial court’s judgment

because plaintiff-appellant’s complaint revealed the lack of a contract between appellant

and two of the defendants-appellees upon which appellant’s claims could be based.

Id. at 11. Accordingly, the Sixth District concluded that the trial court “did not err in

granting, although for different reasons, appellees’ motions to dismiss for failure to set

forth a claim upon which relief could be granted.” Id.

       {¶ 9} In the instant matter, the record reveals that the trial court improperly relied

upon appellant’s first complaint in granting appellees’ motion to dismiss the second

complaint. In doing so, the trial court considered information beyond the face of the

second complaint. See Charles v. Conrad, 10th Dist. Franklin No. 05AP-410, 2005-

Ohio-6106, ¶ 30. Thus, the trial court effectively converted appellees’ motion to dismiss

into a motion for summary judgment and was required to notify the parties of the

conversion. See Bethel Village Condominium Assn. v. Republic-Franklin Ins. Co., 10th




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Dist. Franklin No. 06AP-691, 2007-Ohio-546, ¶ 7. However, the trial court failed to do

so.

       {¶ 10} Although the failure to convert a motion to dismiss to a motion for

summary judgment and notify the parties may constitute reversible error, neither

appellant nor appellees have raised the trial court’s failure to comply with the

requirements of Civ.R. 56 as error on appeal. Furthermore, the parties did not raise this

issue with the trial court in their pleadings on appellees’ motion to dismiss. Instead, both

parties contested the merits of the arguments involving res judicata and unjust

enrichment. Accordingly, the parties waived the argument regarding the trial court’s

failure to comply with the requirements of the rule and failure to notify the parties of the

conversion.

       {¶ 11} Because the parties waived the issue, we will proceed to the merits of the

appeal.

                                      B. Res Judicata

       {¶ 12} In his third assignment of error, appellant argues that the trial court erred

by dismissing his complaint based upon the doctrine of res judicata.

       {¶ 13} The record reflects that the trial court granted appellees’ motion to dismiss

appellant’s second complaint on the basis of res judicata. The doctrine of res judicata

requires that a party to a lawsuit must present every ground for relief in that action or be

forever barred from asserting any additional grounds. Natl. Amusements, Inc. v.

Springdale, 53 Ohio St.3d 60, 62, 558 N.E.2d 1178 (1990). Under Ohio law, it is well




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established that “an existing final judgment or decree between the parties to litigation is

conclusive as to all claims which were or might have been litigated in a first lawsuit.”

(Emphasis sic.) Rogers v. Whitehall, 25 Ohio St.3d 67, 69, 494 N.E.2d 1387 (1986).

       {¶ 14} In Grava v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995), the

Ohio Supreme Court held that “[a] valid, final judgment rendered upon the merits bars all

subsequent actions based upon any claim arising out of the transaction or occurrence that

was the subject matter of the previous action.” Id. at syllabus. The doctrine of res

judicata applies to those who were parties in the prior action, to those who were in privity

with the litigants, and to those who could have joined the action and did not. See Howell

v. Richardson, 45 Ohio St.3d 365, 367, 544 N.E.2d 878 (1989).

       {¶ 15} In the instant matter, appellant filed his first and second complaints against

the same three appellees. Furthermore, appellant’s complaints arose out of the same

transaction or occurrence — the accounting services that appellant provided by preparing

tax returns for appellees, and the compensation that appellees allegedly owed appellant

for his services. The only difference between appellant’s first and second complaints was

the theory upon which he claimed he was entitled to relief.

       {¶ 16} The trial court noted that in appellant’s first complaint, he neither included

unjust enrichment as an alternative claim to his cause of action based on an account nor

sought leave of court to amend the complaint to include the alternative theory of relief.

Accordingly, based on Rogers, 25 Ohio St.3d 67, 494 N.E.2d 1387, the trial court

concluded that appellant’s second complaint was barred under the doctrine of res judicata




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because appellant could have raised the issue of unjust enrichment in his first complaint,

but failed to do so.

       {¶ 17} “‘It is well established that pro se litigants are presumed to have knowledge

of the law and legal procedures and that they are held to the same standard as litigants

who are represented by counsel.’” State ex rel. Fuller v. Mengel, 100 Ohio St.3d 352,

2003-Ohio-6448, 800 N.E.2d 25, ¶ 10, quoting Sabouri v. Ohio Dept. of Job & Family

Servs., 145 Ohio App.3d 651, 654, 763 N.E.2d 1238 (10th Dist.2001). Accordingly, the

fact that appellant filed his complaints pro se does not excuse his failure to raise his

unjust enrichment claim in his first complaint.

       {¶ 18} Based on the foregoing analysis, the trial court properly granted appellees’

motion to dismiss appellant’s second complaint. Because appellant’s second complaint

was based on the same operative facts as his first complaint and arose out of the same

transaction or occurrence, the second complaint was barred under the doctrine of res

judicata. Accordingly, the trial court did not err by granting appellees’ motion to dismiss.

                              C. Alleged Misrepresentations

       {¶ 19} In his second assignment of error, appellant argues that the trial court erred

by granting appellees’ motion to dismiss because the motion contained material and false

representations regarding his second complaint. Specifically, appellant contends that

appellees’ statement that “[appellant] previously filed a complaint against [appellees]

alleging liability arising from the preparation of income tax returns for the years 2009




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through 2013” is a material and false representation because he never alleged that

appellees owed him compensation for preparing tax returns for the 2009 calendar year.

       {¶ 20} In his third assignment of error, appellant argues that the trial court erred

by dismissing his second complaint because the trial court “significantly altered the set of

facts from [his] original complaint” by relying upon the material and false representations

contained in appellees’ motion to dismiss. Specifically, appellant argues that the

magistrate’s reference to the 2009 calendar year constitutes a “significant

misrepresentation” because he did not allege that appellees owed him compensation for

preparing tax returns for the 2009 calendar year. The magistrate’s decision and

recommendation states that in appellant’s complaints against appellees, he was seeking

money allegedly owed to him for preparing tax returns for the calendar years of 2009

through 2013.

       {¶ 21} After reviewing the record, it is evident that appellant was not seeking

compensation for preparing appellees’ tax returns for the 2009 calendar year. Although

appellant’s complaints reference the 2009 tax returns, the complaints acknowledge that

appellees did in fact compensate him for preparing the 2009 tax returns. However, we

cannot say that either appellees’ or the magistrate’s reference to the 2009 tax returns

constitutes a material and false representation. Furthermore, the inaccurate reference to

the 2009 tax returns has no bearing whatsoever on the trial court’s disposition of the

matter.




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       {¶ 22} In adopting the magistrate’s decision, the trial court corrected the

magistrate’s findings and noted that appellant’s claims pertained to the calendar years of

2010 through 2013 — not to the 2009 calendar year. Aside from this correction, the trial

court concluded that “there are no errors of law or other material defects on the face of

[the magistrate’s] decision.”

       {¶ 23} Based on the foregoing analysis, appellant’s second and third assignments

of error are overruled.

                                     D. Quasi Contract

       {¶ 24} In his fourth assignment of error, appellant argues that the trial court had a

duty to find that a quasi contract existed between him and appellees. Appellant

emphasizes that appellees’ acknowledged that appellant provided tax return services for

the calendar years of 2010 through 2013, and that appellant’s tax return services

constitute “the receipt of a benefit.”

       {¶ 25} Appellant did not raise the quasi contract theory of recovery in his

complaints, but he did raise the theory in his objections to the magistrate’s decision and

in opposing appellees’ motion to dismiss. However, in light of our disposition of

appellant’s third assignment of error, we find no merit to appellant’s argument.

       {¶ 26} Because appellant neither asserted his unjust enrichment nor quasi contract

claims in his first complaint, he was barred under the doctrine of res judicata from

subsequently asserting these claims against appellees. Accordingly, the trial court did not




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err by granting appellees’ motion to dismiss. Appellant’s fourth assignment of error is

overruled.

                                     E. Ethical Issues

       {¶ 27} In appellant’s first, fifth, and sixth assignments of error, he argues that the

trial court violated Rules 1.1, 2.2, 2.3, and 2.15 of the Ohio Code of Judicial Conduct.

       {¶ 28} A violation of the Ohio Code of Judicial Conduct does not permit this court

to reverse the trial court’s judgment. Appellate courts have consistently recognized that it

is improper to raise allegations that a trial court violated the Code of Judicial Conduct,

acted in a manner demeaning to the judiciary, and engaged in unethical misconduct on

appeal. Wilburn v. Wilburn, 9th Dist. Lorain No. 05CA008798, 2006-Ohio-5820, 863

N.E.2d 204, ¶ 10; Szerlip v. Spencer, 5th Dist. Knox No. 01CA16, 2002 Ohio App.

LEXIS 1375 (Mar. 14, 2002). “[A]ny allegations of judicial misconduct are not

cognizable on appeal, but is a matter properly within the jurisdiction of the Disciplinary

Counsel.” Szerlip at 2.

       {¶ 29} Furthermore, in appellant’s fifth assignment of error, he argues that

defendant-appellee William Pietrykowski violated Rule 8.4 of the Ohio Rules of

Professional Conduct.

       {¶ 30} It is well-established that “the Ohio Supreme Court has exclusive

jurisdiction to determine violations of attorney disciplinary rules. * * * All grievances

involving alleged misconduct by attorneys and judges are to be brought and disposed of

in accordance with the provisions of Rule 5 of the Supreme Court Rules for the




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Government of the Bar of Ohio.” Madison Cty. Bd. of Commrs. v. Bell, 12th Dist.

Madison No. CA2005-09-036, 2007-Ohio-1373, ¶ 15; see also Watterson v. King, 166

Ohio App.3d 704, 2006-Ohio-2305, 852 N.E.2d 1278 (5th Dist.) (with regard to a

complaint of misconduct by an attorney for violation of a disciplinary rule, jurisdiction is

with the Ohio Supreme Court).

       {¶ 31} Based on the foregoing analysis, we are without jurisdiction to address the

merits of appellant’s first, fifth, and sixth assignments of error. The proper method by

which to raise appellant’s allegations is by a grievance filed before the Board of

Commissioners on Grievances and Discipline of the Supreme Court — not an appellate

brief filed before this court. See generally Gov.Bar R. V.

       {¶ 32} Appellant’s first, fifth, and sixth assignments of error are overruled.

                                      III. Conclusion

       {¶ 33} Appellant filed his two complaints against the same three defendants-

appellees, and his complaints were based on the same operative facts and arose out of the

same transaction or occurrence. Under the doctrine of res judicata, appellant was

required to present every ground for relief in his first action against appellees or be

forever barred from asserting any additional grounds. Natl. Amusements, Inc., 53 Ohio

St.3d at 62, 558 N.E.2d 1178. However, appellant only presented a cause of action based

on an account in his first complaint — he failed to raise his unjust enrichment and quasi

contract claims in his first complaint, and he only asserted these additional grounds for

relief after the trial court had dismissed his first complaint with prejudice. Thus,




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appellant’s second complaint was barred under the doctrine of res judicata, and the trial

court did not err by granting appellees’ motion to dismiss.

       {¶ 34} Judgment affirmed.

       It is ordered that appellee recover of appellant 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 municipal

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.



___________________________________
FRANK D. CELEBREZZE, JR., JUDGE

KATHLEEN ANN KEOUGH, P.J. and
SEAN C. GALLAGHER, J., CONCUR.




Judges Frank D. Celebrezze, Jr., J., Kathleen Ann Keough, P.J., and Sean C. Gallagher, J.,
Eighth District Court of Appeals, sitting by assignment of the Chief Justice of the
Supreme Court of Ohio.




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