Am. Mut. Share Ins. Corp. v. Hughes , 2012 Ohio 1347 ( 2012 )

[Cite as Am. Mut. Share Ins. Corp. v. Hughes, 2012-Ohio-1347.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97148
AMERICAN MUTUAL SHARE INS. CORP., ET AL.
PLAINTIFFS-APPELLANTS/
CROSS-APPELLEES
vs.
MARTIN J. HUGHES, JR.
DEFENDANT-APPELLEE/
CROSS-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-517015
BEFORE: Rocco, J., Blackmon, A.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: March 29, 2012
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ATTORNEYS FOR APPELLANTS/CROSS-APPELLEES
George J. Argie
Lou D’Amico
Argie, D’Amico & Vitantonio
6449 Wilson Mills Road
Mayfield Village, Ohio 44143
ATTORNEYS FOR APPELLEE/CROSS-APPELLANT
Michael N. Schaeffer
Scott N. Schaeffer
Kemp, Schaeffer & Rowe Co., L.P.A.
88 West Mound Street
Columbus, Ohio 43215
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KENNETH A. ROCCO, J.:
{¶1} In this appeal and cross-appeal assigned to the accelerated calendar pursuant
to App.R. 11.1 and Loc.App.R. 11.1, plaintiff-appellant American Mutual Share
Insurance Corporation and defendant-appellee/cross-appellant Natalie A. Hughes, as
Administrator for the Estate of Martin J. Hughes, Jr., appeal from the order of the trial
court, issued nunc pro tunc, that dismissed this action with prejudice.
{¶2} The purpose of an accelerated appeal is to allow this court to render a brief
and conclusory opinion. Crawford v. Eastland Shopping Mall Assoc., 11 Ohio App.3d
158, 463 N.E.2d 655 (10th Dist.1983); App.R. 11.1(E).
{¶3} Appellant and appellee/cross-appellant both present the same single
assignment of error for this court’s review. Both assert that the trial court erred by
issuing a nunc pro tunc entry stating that the case had been previously settled and ordered
the case dismissed with prejudice.
{¶4} In light of the fact that the parties agree the trial court’s order was issued in
error, and the fact that the trial court’s use of a nunc pro tunc entry was improper, the
assignment of error is sustained.
{¶5} The record of this case reveals it was filed in 2003, and after protracted
motion practice, the parties came to an agreement to dismiss the case without prejudice.
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The parties drafted an order to that effect with the word “without” set forth in bold type.
The trial court signed the order and filed it with the clerk on March 31, 2010.
{¶6} On July 12, 2011, the trial court issued a judgment entry “nunc pro tunc” as of
and for March 31, 2010, that stated, “the parties indicated that this matter ha[d] settled
and as such this matter is dismissed with prejudice.” The parties filed this appeal and
cross-appeal from that order, asserting that the trial court’s action was improper.
{¶7} This court agrees on the authority of Moore v. Houses on the Move, Inc., 177
Ohio App.3d 895, 2008-Ohio-3552, N.E.2d 579 (8th Dist.), which stated as follows at
¶15-17:
* * * The effect of this entry was to change the substantive nature of
the [prior] order and to extinguish any claims that plaintiff had against
[defendant].
The purpose of a nunc pro tunc order is to have the judgment of the
court reflect its true action so that the record speaks the truth. In re Estate
of Cook (1969), 19 Ohio St.2d 121, 127, 48 O.O.2d 113, 249 N.E.2d 799.
The function of a nunc pro tunc order is not to change, modify, or correct
erroneous judgments, but merely to have the record speak the truth. Id. A
trial court may exercise its nunc pro tunc authority in limited situations to
correct clerical errors. However, a trial court may not use a nunc pro tunc
entry to enter of record that which it intended to or might have done but
which in fact it did not do. McKay v. McKay (1985), 24 Ohio App.3d 74,
24 OBR 129, 493 N.E.2d 317; Webb v. W. Res. Bond & Share Co. (1926),
115 Ohio St. 247, 153 N.E. 289. See also State ex rel. Litty v.
Leskovyansky (1996), 77 Ohio St.3d 97, 671 N.E.2d 236; Pepera v. Pepera
(Mar. 26, 1987), Cuyahoga App. Nos. 51989 and 52024, 1987 WL 8586.
Here, we find that * * * [t]he trial court used the nunc pro tunc order to change or
correct its prior judgment entry. However, this modification is more than a simple
correction of a clerical error; rather, it substantially altered what the court had entered
[previously], and was far beyond the scope of correcting a clerical mistake. Accordingly,
we find that the [final] journal entry that dismissed * * * defendant was improper and
prejudicial to the plaintiff.” (Emphasis added.)
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{¶8} Based upon the foregoing, the appellants’ and the cross-appellant’s identical assignment of
error is sustained.
{¶9} The order of the trial court is reversed, and this case is remanded for further proceedings.
It is ordered that appellee and appellants share 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.
_________________________________________
KENNETH A. ROCCO, JUDGE
PATRICIA ANN BLACKMON, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR