[Cite as Pickett v. Rice-Roberts,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100881

GREGORY PICKETT PLAINTIFF-APPELLEE

vs.

ERICA RICE-ROBERTS

DEFENDANT-APPELLANT

JUDGMENT: VACATED AND REMANDED

Civil Appeal from the Garfield Heights Municipal Court Case No. CVG 1102745

BEFORE: Boyle, A.J., Rocco, J., and McCormack, J.

RELEASED AND JOURNALIZED: July 31, 2014 ATTORNEY FOR APPELLANT

Wesley Alton Johnston The Podor Law Firm, L.L.C. 33565 Solon Road Solon, Ohio 44139

FOR APPELLEE

Gregory Pickett, pro se 4468 Ingleside Road Warrensville Heights, Ohio 44128 MARY J. BOYLE, A.J.:

{¶1} Defendant-appellant, Erica Rice-Roberts, appeals the trial court’s order sua

sponte dismissing her counterclaim through a nunc pro tunc entry. In her single

assignment of error, she argues that “[t]he trial court’s use of a nunc pro tunc order to

dismiss the pending counterclaim was improper.” Finding merit to the appeal, we

vacate and remand for further proceedings.

Procedural History and Facts

{¶2} On September 30, 2011, plaintiff-appellee, Gregory Pickett (“landlord”),

filed a forcible entry and detainer action in Garfield Heights Municipal Court, seeking to

evict Rice-Roberts from the premises located at 18705 Waterburg in Maple Heights.

Landlord also asserted a second claim for unpaid rent, seeking $276 in money damages.

{¶3} On October 5, 2011, the municipal court issued a copy of the complaint

and a summons to Rice-Roberts, notifying her that “[t]he trial for eviction is on October

27, 2011,” and the “[t]he trial on the claim for money is on 12/01/2011.” The summons

further notified Rice-Roberts that she must serve an answer to the complaint on the claim

for money within 28 days. The summons further stated that “[i]f you do not appear at

the trial [on December 1, 2011], judgment will be entered again [sic] you.”

{¶4} On October 24, 2011, Rice-Roberts filed an answer to the complaint and

asserted a counterclaim, alleging that the “filing of the eviction case was retaliatory, in violation of [R.C.] 5321.02.” She further alleged that the conditions of

the premises violated R.C. 5321.04 and constituted a common law nuisance.

Rice-Roberts alleged that she suffered damages and sought compensatory and punitive

damages as well as attorney fees.

{¶5} The parties ultimately reached an agreement on the landlord’s first cause of

action and an agreed judgment entry was filed with the court. On December 1, 2011,

none of the parties appeared for trial on the landlord’s second cause of action for money.

On that day, the trial court issued an order, stating the following: “Neither party

having appeared for trial on the second cause of action, said cause of action is dismissed

with prejudice at Plaintiff’s costs.” Nearly two years later, on September 26, 2013,

Rice-Roberts filed a motion to transfer to common pleas. On October 28, 2013, the

trial court issued two orders: one denying the motion to transfer and one stating the

following: “Neither party having appeared in Court on or about 12/01/2011, the

Complaint and Counterclaim are dismissed with prejudice, nunc pro tunc.”

{¶6} From this order, Rice-Roberts appeals.1

Nunc Pro Tunc

{¶7} In her sole assignment of error, Rice-Roberts argues that the trial court’s

use of a nunc pro tunc order to dismiss her counterclaim was improper. We agree.

Landlord has not filed an appellee brief in this case. We further note that Rice-Roberts 1

has not raised any assignment of error challenging the trial court’s denial of her motion to transfer her counterclaim to the common pleas court. This issue, therefore, is not before this court on appeal. See App.R. 12(A). {¶8} “Civ.R. 60(A) permits a trial court, in its discretion, to correct clerical

mistakes which are apparent on the record, but does not authorize a trial court to make

substantive changes in judgments.” State ex rel. Litty v. Leskovyansky,

,

(1996). “The term ‘clerical mistake’ refers to a mistake or

omission, mechanical in nature and apparent on the record which does not involve a

legal decision or judgment.”

{¶9} “The trial court’s use of a nunc pro tunc entry is restricted to placing upon

the record evidence of judicial action that has been actually taken; thus, it can be

exercised only to supply omissions in the exercise of merely clerical functions.”

Mosley v. Cuy. Cty. Bd. of Mental Retardation, 8th Dist. Cuyahoga No. 96070,

, citing Jacks v. Adamson,

, 402,

(1897). “The function of nunc pro tunc is not to change, modify, or correct erroneous

judgments, but merely to have the record speak the truth.” Ruby v. Wolf,

,

(8th Dist. 1931). “A court may not, therefore, by way of a nunc

pro tunc entry, enter of record that which it intended but, in fact, was not made.”

; see also State ex rel. Cruzado v Zaleski,

,

,

(nunc pro tunc entries “are limited in proper use to

reflecting what the court actually decided, not what the court might or should have

decided”).

{¶10} Here, the trial court improperly utilized a nunc pro tunc entry to dismiss

Rice-Roberts’s counterclaim when the court had never previously adjudicated the claim. The December 1, 2011 entry was completely silent as to Rice-Roberts’s counterclaim.

It is clear that the nunc pro tunc entry substantively changed the trial court’s order of

December 1, 2011, which only disposed of the landlord’s claim for unpaid rent — not

Rice-Roberts’s counterclaim.

{¶11} Accordingly, we sustain the sole assignment of error.

{¶12} Judgment vacated, and case remanded for further proceedings on

Rice-Roberts’s counterclaim.

It is ordered that appellant recover from appellee 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

KENNETH A. ROCCO, J., and TIM McCORMACK, J., CONCUR

KEY WORDS:

100881 Nunc pro tunc; Civ.R. 60(A). Trial court’s use of a nunc pro tunc order to dismiss counterclaim was improper because the court had never previously adjudicated the claim. A nunc pro tunc entry is restricted to placing upon the record evidence of judicial action that has been actually taken.