Kobal v. Edward Jones Secs.

K
[Cite as Kobal v. Edward Jones Secs., 2021-Ohio-1088.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

JOHN E. KOBAL,                                           :

                Plaintiff-Appellant,                     :
                                                             No. 109753
                v.                                       :

EDWARD JONES SECURITIES,                                 :
ET AL.,
        Defendants-Appellees.                            :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: April 1, 2021


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                                Case No. CV-20-928021


                                           Appearances:

                John E. Kobal, pro se.

                Porter Wright Morris & Arthur L.L.P., and C. Darcy
                Jalandoni, and W. Hunter West, for appellee Edward
                Jones & Co., L.P.

                Darren W. DeHaven, for appellee Kathleen Kobal.



MARY J. BOYLE, A.J.:

                  Plaintiff-appellant, John E. Kobal, appeals the trial court’s judgment

dismissing his claims against defendants-appellees, Kathleen Kobal (“Kathleen”)
and Edward Jones Securities (“Edward Jones”), and against defendant KMK

Consulting, L.L.C. Appellant raises seven assignments of error for our review:

      1. Misuse of Res Judicata as an excuse/reason for dismissal of this case
      due to fraud and misrepresentation. For res judicata to be properly
      applied as an acceptable doctrine for dismissal, the litigation shall be
      absent of fraud/misrepresentation. This case has numerous credible
      examples of fraud/misrepresentation.

      2. Misuse of Res Judicata as an excuse/reason for dismissal of the case
      due to collusion/situational circumstances of collusion between
      Plaintiff Attorney and opposing Counsel. For res judicata to be applied
      as an acceptable doctrine for dismissal, the litigation shall be absent of
      collusion and/or situations where collusion was evident considering
      actions and/or inactions of the parties. Many credible examples.

      3. Plaintiff[’s] claims are not barred by [the] statute of limitations.

      4. Trial Court consistently finding ways to sidestep/avoid discovery
      phase of the legal process in Mr. Kobal’s case(s) - including this case.
      Discovery protects the integrity of a fair proceeding and a fair trial for
      all parties.

      5. Dismissal of KMK Consulting, L.L.C. was unjustified, improper and
      legally abusive considering the overwhelming evidence, circumstances,
      obvious identity differences regarding specific offenses for specific
      defendants, prejudice and conflict of interest.

      6. The actions of the Defendants and the Trial Court are abuse of
      process.

      7. Trial Court[’s] determination [that] Plaintiff failed to state a claim for
      which relief can be granted is improper, inaccurate and not legally
      sound when considering the evidence and circumstances.

              Finding no merit to his assignments of error, we affirm the trial

court’s judgment.
I.   Factual Background and Procedural History

              This case is appellant’s latest attempt to relitigate his divorce case

against Kathleen, his ex-wife. A summary of the previous litigation, as explained in

one of appellant’s most recent appeals, will provide helpful context:

      Kobal and Kathleen were married in 1976. In 2001, Kathleen filed for
      divorce, but later voluntarily dismissed her complaint. In October
      2006, Kobal was arrested for criminal charges involving a minor in case
      number CR-06-487194-A. The same month, Kobal executed a general
      power of attorney naming Kathleen as his attorney-in-fact. The
      document provided Kathleen with various powers over Kobal’s estates
      and affairs. In November 2006, Kobal and two of his business partners
      assisted Kathleen in organizing KMK. According to Kathleen, Kobal’s
      goal in organizing this entity was to create a vehicle to “protect the
      family from financial ruin” related to his criminal case.

      In March 2007, Kobal pleaded guilty to rape and other charges and was
      sentenced to 14 years in prison. Kobal did not appeal his criminal
      conviction. As of the date of this opinion, Kobal remains incarcerated;
      his prison term is set to expire on March 18, 2021. Before Kobal was
      incarcerated in April 2007, he transferred various assets, including an
      Edward Jones investment account and an RBC Wealth Management
      account, to KMK.

      In December 2015, Kathleen again filed a complaint for divorce. In
      December 2016, a contested trial was held before a magistrate judge.
      Because Kobal was incarcerated at the time of the trial, he appeared by
      video. At trial, Kobal initially claimed that he had no memory of
      transferring an Edward Jones account worth approximately $160,000
      to KMK. He ultimately testified that he had authorized this transfer,
      but he claimed that he and Kathleen had a verbal agreement that the
      funds were “not to be touched.” He also admitted that he transferred
      an RBC Wealth Management account to KMK, and he admitted that
      there was no verbal agreement regarding any limitations on Kathleen
      using or retaining these funds.

      The magistrate made numerous findings relating to the division of the
      couple’s property. The magistrate determined that the Edward Jones
      and RBC Wealth Management were Kathleen’s separate property by
      virtue of her ownership of KMK consulting. In May 2017, the trial court
      adopted the magistrate’s decision.     The divorce decree stated, in
      relevant part:

            The Edward Jones account and the RBC accounts
            presently owned by KMK Consulting shall be transferred
            to [Kathleen] and shall remain her property free and clear
            of any claim by the Defendant.

      Kobal appealed, and this court affirmed the trial court’s decision.
      Kobal v. Kobal, 2018-Ohio-1755, 

111 N.E.3d 804

(8th Dist.).

Kobal v. RBC Wealth Mgt., 8th Dist. Cuyahoga No. 109775, 2021-Ohio-213, ¶ 3-6.

              The instant appeal stems from a case appellant initiated in January

2020 against Edward Jones, Kathleen, and KMK Consulting. The complaint states

that when appellant was incarcerated in 2007, he assigned $160,000 in securities

from his Edward Jones investment account to Walmatt, Inc., d.b.a ABC Bail

Bonding “as collateral for his bond.” Appellant alleged that he instructed an Edward

Jones representative to return the securities to his investment account after the

bond period ended, creating an implied-in-fact contract. The complaint states that

Edward Jones breached the implied-in-fact contract when it “allowed” ABC Bail

Bonding to transfer the $160,000 in securities into an Edward Jones account held

by KMK Consulting without appellant’s “knowledge and express authority.”

              Appellant further alleged that in the 2016 divorce trial, Kathleen, her

trial counsel, and KMK Consulting “knowingly and willfully misled” the trial court

to believe that appellant voluntarily transferred ownership of his Edward Jones

investment account to KMK Consulting.          Appellant also claimed that KMK

Consulting never registered to operate as a business in Ohio, and all its account

activities with Edward Jones must be rescinded.
               Appellant brought claims against Edward Jones for accounting,

breach of contract, constructive fraud, and “reckless negligence.” He brought claims

against KMK Consulting and Kathleen for fraud, unjust enrichment, and

constructive trust. He also brought a claim for “deception and misrepresentation”

against Kathleen.    Appellant demanded an accounting, money damages, and

injunctive relief to prevent “further dissipation” of his assets. He also requested to

be held “harmless for any and all [f]ederal, [s]tate and local taxes from 2/1/2007[.]”

               In February 2020, Edward Jones and Kathleen filed answers, in

which they denied appellant’s allegations and raised affirmative defenses. Both

answers raised the affirmative defenses of res judicata and failure to state a claim

upon which relief can be granted.

               In March 2020, Kathleen filed a motion to dismiss appellant’s claims

against her pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief

could be granted. She argued that res judicata and the applicable statutes of

limitations barred his claims, and he failed to plead fraud with particularity. Also in

March 2020, Edward Jones filed a motion for judgment on the pleadings pursuant

to Civ.R. 12(C). Edward Jones also argued that res judicata and the applicable

statutes of limitations barred appellant’s claims, and the claims were otherwise

defective. Appellant filed an opposition to Kathleen’s motion to dismiss but not to

Edward Jones’ motion for judgment on the pleadings.

               In May 2020, the trial court granted Kathleen’s motion to dismiss and

Edward Jones’ motion for judgment on the pleadings. The trial court found that all
of appellant’s claims against Edward Jones and Kathleen are barred by res judicata,

barred by the relevant statutes of limitations, and failed to state legal causes of

action. The trial court further found that the defects with appellant’s complaint

likewise apply to the claims he asserted against KMK Consulting (which never

responded to the complaint), and the trial court sua sponte dismissed those claims.

               Appellant timely appeals from this judgment.

II. Standard of Review

               As an initial matter, we note that Kathleen filed her motion to dismiss

pursuant to Civ.R. 12(B)(6) after she filed her answer. Because Civ.R. 12(B)(6)

motions must be filed before a responsive pleading, we must construe her motion as

a motion for judgment on the pleadings under Civ.R. 12(C). See State ex rel.

Mancino v. Tuscarawas Cty. Court of Common Pleas, 

151 Ohio St. 3d 35

, 2017-

Ohio-7528, 

85 N.E.3d 713

, ¶ 8, fn. 2; Tennant v. Huntington Natl. Bank, 8th Dist.

Cuyahoga No. 108993, 2020-Ohio-4063, ¶ 8.

               We apply a de novo standard of review to a trial court’s decision on a

motion for judgment on the pleadings filed under Civ.R. 12(C). Vinicky v. Pristas,

163 Ohio App. 3d 508

, 2005-Ohio-5196, 

839 N.E.2d 88

, ¶ 3 (8th Dist.). Granting a

judgment on the pleadings is appropriate where plaintiffs have failed in their

complaint to allege a set of facts that, if true, would establish the defendant’s liability.

Walters v. First Natl. Bank of Newark, 

69 Ohio St. 2d 677

, 

433 N.E.2d 608

(1982).

And, like a motion to dismiss, the factual allegations of the complaint are taken as

true, but unsupported conclusions are insufficient to withstand the motion. See
Moya v. DeClemente, 8th Dist. Cuyahoga No. 96733, 2011-Ohio-5843, ¶ 10.

“Civ.R. 12(C) requires a determination that no material factual issues exist and that

the movant is entitled to judgment as a matter of law.” State ex rel. Midwest Pride

IV, Inc. v. Pontious, 

75 Ohio St. 3d 565

, 570, 

664 N.E.2d 931

(1996). Thus, a trial

court appropriately grants a motion for judgment on the pleadings when it “(1)

construes the material allegations in the complaint, with all reasonable inferences

to be drawn therefrom, in favor of the nonmoving party as true, and (2) finds beyond

doubt that the plaintiff could prove no set of facts in support of his claim that would

entitle him to relief.”

Id. We will address

appellant’s assignments of error out of

order for ease of discussion.

III. Validity of Claims

               In his seventh assignment of error, appellant argues that the trial

court erred in finding that his complaint failed to state a claim for which relief could

be granted. In support of this argument, he maintains that fraud and collusion

“hijacked” the divorce case.

               We find that appellant failed to state a claim for accounting,

constructive    trust,   fraud,    constructive    fraud,    and     “deception    and

misrepresentation.” First, Kobal’s claims for accounting and constructive trust are

remedies, not independent causes of action. Graham v. Lakewood, 2018-Ohio-

1850, 

113 N.E.3d 44

, ¶ 58 (8th Dist.) (“A constructive trust is a remedy, not a cause

of action.”); Krohn v. Ostafi, 6th Dist. Lucas No. L-19-1002, 2020-Ohio-1536, ¶ 37
(“An accounting, like a constructive trust, is an equitable remedy, not a cause of

action[.]”).

               Second, appellant failed to state a claim for fraud and “deception and

misrepresentation” against Kathleen and KMK Consulting because his complaint

does not plead these claims with particularity.1 A claim for fraud requires proof of

the following elements: (1) a representation or, where there is a duty to disclose,

omission of a fact, (2) which is material to the transaction at hand, (3) made falsely,

with knowledge of its falsity, or with such utter disregard and recklessness as to

whether it is true or false that knowledge may be inferred, (4) with the intent of

misleading another into relying upon it, (5) justifiable reliance upon the

representation or concealment, and (6) a resulting injury proximately caused by the

reliance. Russ v. TRW, Inc., 

59 Ohio St. 3d 42

, 49, 

570 N.E.2d 1076

(1991).

               A plaintiff must state the circumstances constituting fraud with

particularity. Civ.R. 9(B). This means that a plaintiff must state “‘the time, place,

and content of the false representation, the fact misrepresented, and the nature of

what was obtained or given as a consequence of the fraud.’” Carter-Jones Lumber

Co. v. Denune, 

132 Ohio App. 3d 430

, 433, 

725 N.E.2d 330

(10th Dist.1999), quoting

Baker v. Conlan, 

66 Ohio App. 3d 454

, 

585 N.E.2d 543

(1st Dist.1990). Particularity

in pleading serves three purposes: (1) protecting defendants’ reputations from ill-



       1 Ohio law does not recognize “deception and misrepresentation” as a cause of
action, but we construe this claim as another claim for fraud. See Swanson v. BSA, 4th
Dist. Vinton No. 07CA663, 2008-Ohio-1692, ¶ 17 (treating a claim pleaded as a claim for
deception as a claim of fraud).
defined accusations of deceitful conduct, (2) notifying defendants of the challenged

conduct, and (3) discouraging plaintiffs’ fishing expeditions for undiscovered

fraudulent conduct. Reinglass v. Morgan Stanley Dean Witter, 8th Dist. Cuyahoga

No. 86407, 2006-Ohio-1542, ¶ 20, citing Carter-Jones.

              In his appellate brief, appellant argues that his attorney colluded with

Kathleen’s attorney at the divorce trial to deceive the magistrate. He also maintains

that he was tricked at the divorce trial into agreeing that he voluntarily transferred

his Edward Jones investment account to KMK Consulting because Kathleen’s

attorney misrepresented an Edward Jones financial document dated February 12,

2007.   He argues he could have transferred securities worth no more than

approximately $14,000 because the rest of the securities from the investment

account were in the possession of ABC Bail Bonding at the time. Appellant attaches

numerous exhibits, including the February 12, 2007 document, to his appellate brief

and reply briefs as evidence of the fraud and collusion. However, we are not

permitted to consider exhibits or arguments that are not part of the trial court

record. App.R. 9(A)(1); see Morgan v. Eads, 

104 Ohio St. 3d 142

, 2004-Ohio-6110,

818 N.E.2d 1157

,¶ 13. Indeed, the exhibits attached to appellant’s reply briefs were

sua sponte stricken, and we cannot consider them on appeal. When reviewing

motions pursuant to Civ.R. 12(C), we are constrained to the allegations in the

pleadings and any writings attached to the pleadings. Bradigan v. Strongsville City

Schools, 8th Dist. Cuyahoga No. 88606, 2007-Ohio-2773, ¶ 11.
               The allegations of fraud in appellant’s complaint are vague and

conclusory. In his complaint, appellant alleged that Kathleen, KMK Consulting, and

Kathleen’s counsel “committed willful fraud upon the Court by providing misleading

and known false testimony” to trick the domestic relations court into believing that

appellant voluntarily transferred the investment account to KMK Consulting.

Appellant also alleged that Kathleen’s counsel misrepresented the value of the

investment account. In his affidavit in support of his complaint, appellant stated

that his divorce attorney engaged in collusion with Kathleen’s attorney.

               Appellant’s complaint in this case does not present a claim for fraud

against either party’s trial counsel; the only allegations of fraud relevant to Kathleen

and KMK Consulting are that they presented false testimony. But appellant does

not identify the content of the allegedly false representations. See Johnson v.

Johnson, 8th Dist. Cuyahoga No. 108420, 2020-Ohio-1381, ¶ 28 (claimant did not

plead fraud with the necessary particularity by alleging the defendant misled the

court and other entities by spreading rumors, without further detail); Becker v.

Becker, 12th Dist. Clermont No. CA97-01-001, 1997 Ohio App. LEXIS 3650, 8-9

(Aug. 11, 1997) (appellant’s allegations that his ex-wife and her attorney made false

statements regarding marital debts at the divorce trial did not meet Civ.R. 9(B)’s

particularity requirement). We find that appellant failed to meet the heightened

pleading standard for his claims of fraud and “deception and misrepresentation”

against Kathleen and KMK Consulting.
               Lastly, appellant did not plead his claim for constructive fraud against

Edward Jones with particularity. Constructive fraud is “a breach of a legal or

equitable duty, which, irrespective of moral guilt of the fraud feasor [sic], the law

declares fraudulent, because of its tendency to deceive others, to violate public or

private confidence, or to injure public interests.” Cohen v. Estate of Cohen, 23 Ohio

St.3d 90, 91-92, 

491 N.E.2d 698

(1986). Constructive fraud does not require

fraudulent intent; “it is dependent on a special confidential or fiduciary relationship,

thereby giving rise to a duty to disclose.” Schmitz v. NCAA, 2016-Ohio-8041, 

67

N.E.3d 852

, ¶ 63 (8th Dist.). In a fiduciary relationship, “special confidence and

trust is reposed in the integrity and fidelity of another and there is a resulting

position of superiority or influence, acquired by virtue of this special trust.”

Federated Mgt. Co. v. Coopers & Lybrand, 

137 Ohio App. 3d 366

, 384, 

738 N.E.2d

842

(10th Dist.2000).

               In his complaint, appellant sets forth two paragraphs for his

constructive fraud claim. In one paragraph, he alleges that Edward Jones breached

its duty to appellant by allowing his assets to be transferred to KMK Consulting. In

the other paragraph, he states that KMK Consulting was appellant’s fiduciary agent

and breached a legal duty by accepting the securities from ABC Bail Bonding “under

a knowing and willful falsity of representation in a civil proceeding in 12/2016.”

These allegations do not set forth a “special confidential or fiduciary relationship”

between appellant and Edward Jones that would give rise to a claim for constructive

fraud. Appellant has failed to state a constructive fraud claim.
               Accordingly, the trial court did not err in dismissing appellant’s

claims for accounting, constructive trust, fraud, constructive fraud, and “deception

and misrepresentation.” We therefore overrule appellant’s seventh assignment of

error.

IV. Res Judicata

               In his first assignment of error, appellant argues that res judicata does

not bar his claims due to fraud and misrepresentation in the divorce trial. Likewise,

in his second assignment of error, he argues that res judicata does not preclude his

claims because his counsel at the divorce trial colluded with Kathleen and her trial

counsel. We will therefore address these assignments of error together. Because we

have already concluded that appellant failed to state a claim for accounting,

constructive    trust,   fraud,    constructive    fraud,    and     “deception    and

misrepresentation,” we will address the application of res judicata to appellant’s

remaining claims for breach of contract, unjust enrichment, and “reckless

negligence.”

               Res judicata precludes “‘the relitigation of a point of law or fact that

was at issue in a former action between the same parties and was passed upon by a

court of competent jurisdiction.’” State ex rel. Kroger Co. v. Indus. Comm., 80 Ohio

St.3d 649, 651, 

687 N.E.2d 768

(1998), quoting Office of Consumers’ Counsel v. Pub.

Util. Comm., 

16 Ohio St. 3d 9

, 10, 

475 N.E.2d 782

(1985). The doctrine of issue

preclusion is one of two related concepts, along with claim preclusion, within the

legal doctrine of res judicata. Grava v. Parkman Twp., 

73 Ohio St. 3d 379

, 381, 

653
N.E.2d 226

(1995). Under the concept of claim preclusion, “[a] valid, final judgment

[] on 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.

               Issue preclusion, also known as collateral estoppel, provides that “a

fact or a point that was actually and directly at issue in a previous action, and was

passed upon and determined by a court of competent jurisdiction, may not be drawn

into question in a subsequent action between the same parties or their privies,

whether the cause of action in the two actions be identical or different[.]” Fort Frye

Teachers Assn. v. State Emp. Relations Bd., 

81 Ohio St. 3d 392

, 395, 

692 N.E.2d 140

(1998). While claim preclusion prevents relitigation of the same cause of action,

issue preclusion bars relitigation of an issue that has been actually and necessarily

litigated and determined in a prior action.

Id., citing Whitehead v.

Gen. Tel. Co., 

20

Ohio St. 2d 108

, 112, 

254 N.E.2d 10

(1969). Here, we are concerned solely with issue

preclusion or collateral estoppel.

               In Thompson v. Wing, 

70 Ohio St. 3d 176

, 

637 N.E.2d 917

(1994), the

Ohio Supreme Court set forth three requirements for the application of collateral

estoppel or issue preclusion:

      Collateral estoppel applies when the fact or issue (1) was actually and
      directly litigated in the prior action, (2) was passed upon and
      determined by a court of competent jurisdiction, and (3) when the
      party against whom collateral estoppel is asserted was a party in privity
      with a party to the prior action.


Id. at

183, citing Whitehead at paragraph two of the syllabus. “The essential test in

determining whether the doctrine of collateral estoppel is to be applied is whether

the party against whom the prior judgment is being asserted had full representation

and a ‘full and fair opportunity to litigate that issue in the first action.’” Cashelmara

Villas Ltd. Partnership v. DiBenedetto, 

87 Ohio App. 3d 809

, 813, 

623 N.E.2d 213

(8th Dist.1993), quoting Hicks v. De La Cruz, 

52 Ohio St. 2d 71

, 74, 

369 N.E.2d 776

(1977).

               We first note that res judicata is generally not a proper ground for

dismissal pursuant to a Civ.R. 12(C) motion because review of such a motion is

limited to the pleadings. See Hawke, Inc. v. Universal Well Servs., 9th Dist. Summit

No. 25056, 2010-Ohio-4730, ¶ 12. However, the trial court here was permitted to

take judicial notice of the divorce case judgments because the pleadings incorporate

them. See Hammerschmidt v. Wyant Woods Care Ctr., 9th Dist. Summit No.

19779, 2000 Ohio App. LEXIS 6166, 2 (Dec. 27, 2000) (trial court properly granted

judgment on pleadings based on res judicata and took judicial notice of a prior

judgment that was incorporated into the pleadings). The complaint and appellant’s

accompanying affidavit repeatedly refer to “the divorce trial – 12/19/2016” and the

magistrate’s decision. Both answers raise res judicata as an affirmative defense, and

Kathleen’s answer specifically stated that appellant’s claims have been addressed by

the Eighth District Court of Appeals, which opinion is publicly available.

               In the divorce case, the trial court found that appellant voluntarily

transferred the Edward Jones investment account to KMK Consulting, and the
account was Kathleen’s separate property because of her ownership in KMK

Consulting. Kobal v. Kobal, 2018-Ohio-1755, 

111 N.E.3d 804

, ¶ 31 (8th Dist.).

Appellant appealed, raising an assignment of error that the funds in the Edward

Jones investment account were “his and his alone.”

Id. at

¶ 16. This court overruled

his assignment of error.

Id. at

¶ 33. We explained that appellant testified he

transferred his Edward Jones investment account to KMK Consulting to protect the

asset from liability related to the criminal charges against him:

       [Appellant] testified that his mother left him money when she died in
       2002, which he invested in the account with Edward Jones. He
       estimated that at the time he was incarcerated in April 2007, the
       account was worth approximately $160,000. At the time of trial, the
       account had a value of $165,795.90. At trial, [appellant] initially
       claimed to have no memory of transferring the money, claiming
       “[Kathleen] moved the money from my [Edward Jones] account into
       KMK Consulting.”         On cross-examination, Kathleen’s counsel
       presented [appellant] with a receipt of the transfer authorization with
       his signature. [Appellant] then admitted to authorizing the transfer,
       explaining that he transferred the account to KMK Consulting to
       insulate this asset from attachment in any potential civil action related
       to the criminal charges he faced. [Appellant] further testified that he
       and Kathleen had “a verbal understanding that [the funds were] not to
       be touched,” because it was his “inheritance money.” He admitted
       there was no written agreement providing Kathleen could not use or
       retain the funds. [Appellant] further admitted he had transferred the
       Edward Jones and RBC Wealth Management accounts to KMK
       Consulting to protect these assets.

Id. at

¶ 11.

               Collateral estoppel applies here to bar appellant’s claims for breach of

contract, unjust enrichment, and “reckless negligence.” First, the issue of whether

appellant voluntarily transferred the investment account to KMK Consulting was

actually and directly litigated in the divorce case. Second, the Cuyahoga County
Domestic Relations Court, a court of competent jurisdiction over the divorce case,

determined that appellant voluntarily transferred the investment account to KMK

Consulting, and this court affirmed the judgment of the domestic relations court.

Third, appellant was a party in the divorce case, was represented by counsel, and

had a full and fair opportunity to litigate the issue. The transfer of appellant’s

investment account is the basis of appellant’s claims for breach of contract, unjust

enrichment, and “reckless negligence.” Indeed, the transfer underlies all appellants’

claims in this lawsuit except for his claims of fraud and “deception and

misrepresentation” during the divorce case against KMK Consulting and Kathleen.

Collateral estoppel therefore bars these claims.

               Appellant argues that the doctrine of res judicata does not preclude

his claims due to fraud, misrepresentation, and collusion during the divorce case.

“A judgment obtained by way of fraud or collusion may not be used as a basis for

applying principles of res judicata.” Fought v. Fought, 8th Dist. Cuyahoga No.

54824, 1988 Ohio App. LEXIS 5189, 2-3 (Dec. 22, 1988).             However, a party

attempting to avoid the application of res judicata by asserting allegations of fraud

must plead “this assertion with the required particularity.” Carman v. LeMasters,

4th Dist. Jackson No. 638, 1990 Ohio App. LEXIS 4472, 10 (Oct. 1, 1990); see also

Green v. Cumberland, 4th Dist. Highland No. 92 CA 801, 1992 Ohio App. LEXIS

5687, 10-11 (Oct. 28, 1992) (appellant failed to sufficiently allege fraud or collusion

in the prior judgment when he alleged only that the court colluded with the appellees

by preventing depositions and acting “unfairly”).
               Appellant maintains that his counsel for the divorce trial colluded

with Kathleen and her attorney to present knowingly false testimony and to trick

him into testifying that he voluntarily transferred the investment account. However,

as previously discussed, although appellant’s brief provides more detailed

arguments of fraud and collusion, the allegations in his complaint fail to state fraud

with particularity. The allegations of fraud therefore cannot prevent the application

of collateral estoppel.

               Accordingly, we find that the doctrine of res judicata bars appellant’s

claims for breach of contract, unjust enrichment, and “reckless negligence.”2

Accordingly, we overrule appellant’s first and second assignments of error.

V.   Statute of Limitations

               In his third assignment of error, appellant contends that his claims

are timely because he did not discover the defendants’ misconduct until the 2016

divorce trial. We first note that all of appellant’s claims either failed to state a claim

upon which relief can be granted or are precluded by the doctrine of res judicata (or

both). However, most of his claims are also time barred.

               Claims for breach of oral contracts and unjust enrichment have a six-

year statute of limitations. R.C. 2305.07. Ohio does not recognize a claim for

“reckless negligence,” but negligence claims have a four-year statute of limitations.

R.C. 2305.09(D).     Fraud claims also have a four-year statute of limitations.


      2 Res judicata would likewise preclude his claims for accounting, constructive trust,

and constructive fraud against Edward Jones, for which appellant also failed to state a
claim upon which relief could be granted.
R.C. 2305.09(C). As previously discussed, accounting and constructive trust are not

causes of action, so we exclude these claims from our discussion.

               Appellant’s claims for fraud and “deception and misrepresentation”

arise from the December 2016 divorce trial. Appellant therefore timely brought

these claims in his January 2020 complaint. However, appellant’s claims for breach

of contract, unjust enrichment, “reckless negligence,” and constructive fraud stem

from the 2007 transfer of securities from ABC Bail Bonding to KMK Consulting’s

investment account with Edward Jones. Therefore, the statute of limitations for

these claims have long since expired.

               Appellant maintains that the statute of limitations for his claims did

not begin to run until December 2016 because he did not discover the defendants’

misconduct until the divorce trial. The Ohio Supreme Court has explained the

discovery rule:

       Generally, a cause of action accrues and the statute of limitations
       begins to run at the time the wrongful act was committed. However,
       the discovery rule is an exception to this general rule and provides that
       a cause of action does not arise until the plaintiff discovers, or by the
       exercise of reasonable diligence should have discovered, that he or she
       was injured by the wrongful conduct of the defendant.

Norgard v. Brush Wellman, 

95 Ohio St. 3d 165

, 2002-Ohio-2007, 

766 N.E.2d 977

,

¶ 8.   “A court may invoke the discovery rule ‘in situations where the injury

complained of may not manifest itself immediately and, therefore, fairness

necessitates allowing the assertion of a claim when discovery of the injury occurs

beyond the statute of limitations.’” Cristino v. Admr., 2012-Ohio-4420, 

977 N.E.2d
742

, ¶ 40 (10th Dist.), quoting NCR Corp. v. United States Mineral Prods. Co., 

72

Ohio St. 3d 269

, 271, 

649 N.E.2d 175

.

                We decline to apply the discovery rule to this case to extend the time

limitations for appellant’s claims for breach of contract, unjust enrichment,

“reckless negligence,” and constructive fraud. This is not a case “where the injury

complained of may not manifest itself immediately.” Appellant knew since 2007, or

should have known by the exercise of reasonable diligence, that ABC Bail Bonding

did not return approximately $160,000 worth of securities to his Edward Jones

investment account. Appellant did not bring these claims until 13 years later. We

do not believe that, under these circumstances, “fairness necessitates allowing the

assertion of a claim when discovery of the injury occurs beyond the statute of

limitations.”   We find that appellant’s claims for breach of contract, unjust

enrichment, “reckless negligence,” and constructive fraud are time barred.

                Accordingly, we overrule appellant’s third assignment of error.

Although his claims for fraud and “deception and misrepresentation” against

Kathleen and KMK Consulting would have been timely, he failed to plead them with

the required particularity, as we previously discussed.

VI. Discovery

                In his fourth assignment of error, appellant argues that the trial court

improperly “sidestep[ped]” discovery in this case and in other, unidentified

proceedings. He requests that this court require discovery to be completed in this

case. However, appellant cannot challenge here the discovery proceedings from
previous cases. In this case, the magistrate properly found that appellant could

prove no set of facts in support of his claims that would entitle him to relief, and no

amount of discovery would change the outcome. We therefore overrule appellant’s

fourth assignment of error.

VII. Dismissal of KMK Consulting

               In his fifth assignment of error, appellant argues that the trial court

erred when it dismissed his claims against KMK Consulting because it acted as both

the “defense lawyer and [the] judge.” “In general, a court may dismiss a complaint

on its own motion pursuant to Civ.R. 12(B)(6) only if the parties are given notice of

the court’s intention to dismiss and an opportunity to respond.” State ex rel.

Edwards v. Toledo City School Dist. Bd. of Edn., 

72 Ohio St. 3d 106

, 108, 

647 N.E.2d

799

(1995). However, there is an exception to this general rule: “Sua sponte

dismissal of a case on the merits without notice is appropriate only if the complaint

is frivolous or the claimant obviously cannot prevail on the facts alleged in the

complaint.” State ex rel. Scott v. Cleveland, 

112 Ohio St. 3d 324

, 2006-Ohio-6573,

859 N.E.2d 923

, ¶ 14; see also Beck v. Lally, 8th Dist. Cuyahoga Nos. 109374 and

109429, 2020-Ohio-4305, ¶ 31. Here, as previously discussed, appellant could

obviously not prevail on the facts alleged. Accordingly, the trial court did not err in

dismissing the claims against KMK Consulting, and we overrule appellant’s fifth

assignment of error.
VIII. Abuse of Process

               In his sixth assignment of error, appellant raises a claim for abuse of

process against the defendants and the domestic relations court. Appellant makes

this argument for the first time on appeal, and as such has waived all but plain error.

Appellant, however, failed to invoke the plain-error doctrine on appeal, much less

make a showing that plain error occurred below. Under these circumstances, we

need not address it. See State v. Gavin, 4th Dist. Scioto No. 13CA3592, 2015-Ohio-

2996, ¶ 25, citing State v. Quarterman, 

140 Ohio St. 3d 464

, 2014-Ohio-4034, 

19

N.E.3d 900

(an appellate court need not consider plain error where appellant fails

to timely raise plain-error claim); State v. Sims, 10th Dist. Franklin No. 14AP-1025,

2016-Ohio-4763, ¶ 11 (appellant cannot meet burden of demonstrating error on

appeal when she preserved only plain error and did not argue plain error on appeal);

In re A.R., 12th Dist. Butler No. CA2015-08-143, 2016-Ohio-4919, ¶ 33 (appellant is

precluded from raising plain error on appeal where he does not argue it in his brief).

               Accordingly, we overrule appellant’s sixth assignment of error.

               Even construing the allegations in the complaint in favor of appellant,

we find that he can prove no set of facts that would entitle him to relief on any of his

claims. The trial court properly granted the motions of Kathleen and Edward Jones

and dismissed the claims against KMK Consulting.

               Judgment affirmed.

      It is ordered that appellees recover from appellant the costs herein taxed.

      The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate be sent to said 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.



MARY J. BOYLE, ADMINISTRATIVE JUDGE

LARRY A. JONES, SR., J., and
MICHELLE J. SHEEHAN, J., CONCUR

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