[Cite as Wickham v. Wickham, 2015-Ohio-4136.]


                                     COURT OF APPEALS
                                 DELAWARE COUNTY, OHIO
                                 FIFTH APPELLATE DISTRICT

                                                        JUDGES:
JOHN WICKHAM AND                                :       Hon. W. Scott Gwin, P.J.
LISA F. WICKHAM                                 :       Hon. William B. Hoffman, J.
AS TRUSTEES OF THE                              :       Hon. Sheila G. Farmer, J.
WICKHAM FAMILY TRUST, ET AL                     :
                                                :
                     Plaintiffs-Appellees       :       Case No. 15 CAE 07 0057
                                                :
-vs-                                            :
                                                :       OPINION
ROBIN LESLIE WICKHAM,
AS TRUSTEE, OR HER
SUCCESSORS IN TRUST, UNDER
THE ROBIN LESLIE WICKHAM
TRUST, ET AL

                 Defendants-Appellees
And

JAMES D. HARGREAVES

                  Defendant-Appellant

CHARACTER OF PROCEEDING:                            Civil appeal from the Delaware County
                                                    Court of Common Pleas, Case No.
                                                    13CVH12 1035

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             October 2, 2015

APPEARANCES:
For: Delaware County Treasurer                      For: Plaintiffs-Appellees
CAROL HAMILTON O'BRIEN                              DAVID C. BARRETT, JR.
Delaware Prosecuting Attorney                       AMANDA J. STACY
MARK J. FOWLER                                      7259 Sawmill Road
140 North Sandusky Street                           Dublin, OH 43016-6342
Delaware, OH 43015-8006
                                                    For: Robin Leslie Wickham, Trustee
For: James D. Hargreaves                            SCOTT M. GORDON
STEPHEN MARTIN                                      82 North Franklin Street
50 North Sandusky Street                            Delaware, OH 43015-1932
Delaware, OH 43015-1926
Delaware County, Case No. 15 CAE 07 0057                                                   2

Gwin, P.J.

      {¶1}   Appellant James D. Hargreaves ["Hargreaves"] appeals from the Delaware

County Court of Common Pleas June 24, 2015 Judgment Entry granting of Plaintiffs-

Appellee John M. Wickham and Lisa F. Wickham, as Trustees of the Wickham

family Trust and Deborah S. Shipley and Robert G. Shipley, Jr., as Trustees Under the

Shipley Family Revocable Trust ["Appellees"] motion for summary judgment and

ordering partition and the Amended Judgment Entry filed July 1, 2015, granting

appellees' motion for summary judgment and ordering partition.

                                 Facts and Procedural History

      {¶2}   Appellees filed a Complaint for Partition and Quiet Title against

Hargreaves and Defendants Robin Leslie Wickham, as Trustee, or her Successors in

Trust, Under the Robin Leslie Wickham Trust; James D. Wickham, Debra Wickham,

Thomas C. Hargreaves, James D. Hargreaves, Diane Hargreaves, the Delaware

County Treasurer, and the Unknown Heirs of Wilmer Siegfried on December 18, 2013,

and an Amended Complaint for Partition and Quiet Title Action on January 10, 2014.

      {¶3}   The parties are siblings and their spouses who are the grandchildren to

the former owners, J.C. and Ruth Wickham. (Case Summary of Defendants Robin

Leslie Wickham, Trustee for purposes the Initial Status Conference, filed Oct. 9, 2014).

      {¶4}   Hargreaves filed his Answer, Counterclaim and Cross-Claim on March 26,

2014. The Counterclaim and Cross-Claim demanded,

             (A) That the Property be appraised and sold and the proceeds paid

      to Plaintiffs and Defendants as their interests may appear; and
Delaware County, Case No. 15 CAE 07 0057                                               3


             (B) That the Court direct a new survey of the premises should the

      same be determined to be necessary for transfer purposes, and order that

      the costs of the survey be taxed as a cost of this actions; and

             (C) That Defendant James D. Hargreaves, be awarded such other

      legal and equitable relief to which Defendant, James D. Hargreaves , may

      be entitled, including an allowance of his attorney fees herein and the cost

      of this action; and

             (D) That each Plaintiff and Defendant be required to set forth their

      interest in the premises.

Answer of Defendant James D. Hargreaves, filed Mar. 26, 2014 at 6-7.

      {¶5}   Appellees filed a Motion for Entry of Summary and Declaratory Judgment

with Respect to the Quiet Title Action on March 25, 2014, in regard to the Unknown

Heirs of Wilmer Siegfried. (First Motion for Summary Judgment.) No oppositions to this

motion were filed and the court entered a Judgment Entry Quieting Title to Real

Property on May 9, 2014. (May 9, 2014, Judgment Entry.)

      {¶6}   On October 8, 2014, Appellees filed a Motion for Partition and Appointment

of Commissioners. On October 16, 2014, Appellees filed an Affidavit in Support of

Motion for partition and Appointment of Commissioners. The co-tenant Defendants did

not file responses or objections to the motion. The Court scheduled a bench trial for

January 8, 2015, to address this motion, which was subsequently continued by

Judgment Entries to January 29, 2015; March 5, 2015; and June 4, 2015.

      {¶7}   On January 2, 2015, Defendant Thomas C. Hargreaves filed a Motion to

Modify Plaintiff's Action, Order for Partition and Subsequently Alter the Schedule of the
Delaware County, Case No. 15 CAE 07 0057                                                  4


Court. Appellees filed a memorandum in response on January 8, 2015. Thomas C.

Hargreaves sought dismissal of the action or a stay until a survey of the property is

conducted, arguing that the value and disposition of the property will be adversely

affected by a lack of a survey and corrected deed prior to any order of partition. The trial

court denied the motion by Judgment Entry filed March 2, 2015. The trial court held that

there is no statutory requirement that a survey be conducted prior to an order of partition.

The court noted R.C. 5307.06 and R.C. 5703.07 provide for a survey if the

commissioners "set the estate apart in lots" or divide any tract when partition of more

than one tract is demanded. This is done after partition is ordered. The trial court further

observed that a revised deed if needed will be determined at that time.

       {¶8}   Appellees filed a Motion for Summary Judgment on Issues of Partition and

Appointment of Commissioners on March 20, 2015. Attached to the motion for

summary judgment were two affidavits. The first was from the Chief Executive Officer

of Northwest Title, the company that prepared the title insurance, who explained that

all of the co-tenants own a one-sixth interest in the property. The second affidavit was

from an attorney verifying that true and accurate copies of the co-tenants completed

Stipulations executed by Defendants James D. Wickham, Debra Kay Wickham,

Thomas C. Hargreaves, and Robin Leslie Wickham, as Trustee, or her successor in

trust, under the Robin Leslie Wickham Trust dated February 29, 2012.

       {¶9}   Hargreaves is the only party not to execute the stipulations provided by

the trial court. Instead, on April 6, 2015 he and his wife, Diane L. Hargreaves filed a

"Request — Court Reject Plaintiff[s] Motion for Summary Judgment on Issues of

Partition and Appointment of Commissioners" with the trial court. Hargreaves affirmed the
Delaware County, Case No. 15 CAE 07 0057                                             5


need for a partition but questioned, "whether the Plaintiff has properly and completely

prepared for and filed the Partition action." Id. at 3.

       {¶10} Hargreaves filed his Response to appellees' Motion for Summary

Judgment on April 9, 2015. In his response, Hargreaves again stressed his belief that

a survey was necessary prior to partition. Affidavits or other materials did not

accompany the response.

       {¶11} By Judgment Entry filed May 18, 2015, the trial court denied appellees

motion for summary judgment stating that appellees did not seek leave to file their

motion for summary judgment and that they had missed the deadline established by

the court for dispositive motions.

       {¶12} On May 19, 2015, appellees filed a Motion for Nunc Pro Tune Order

Correcting the May 18, 2015, Judgment Entry Denying Plaintiffs' Motion for

Summary Judgment and Motion for Reconsideration of Plaintiffs' Motion for

Summary Judgment.

       {¶13} Appellees noted that the trial court had filed a scheduling entry on June

23, 2014 requiring all dispositive pre-trial motions be filed on or before November 24,

2014. However, by Judgment Entry filed July 28, 2014, the trial court filed a Judgment

Entry Scheduling Telephone Conference that stated, "[t]he Scheduling Entry filed on

June 23, 2014 at 8:43 a.m. is hereby VACATED."

       {¶14} Appellees argued that no new dispositive motion deadline was set by the

trial court, so appellees did not miss the deadline for filing dispositive motions.

Appellees also argued the Court could, at its own discretion, rule on a motion for

summary judgment, even if leave was not sought.
Delaware County, Case No. 15 CAE 07 0057                                                6


      {¶15} The trial court agreed and subsequently filed two Judgment Entries on

June 3, 2015. In the first entry filed at 10:56 a.m., the trial court granted the nunc pro

tunc order to reflect that the court had vacated the June 23, 2014 scheduling order. The

court further granted the motion for reconsideration. After noting that appellees had not

sought leave before moving for summary judgment, the trial court noted that it was

vacating the June 4, 2015 trial date. The court stated it would consider the motion for

summary judgment at a non-oral hearing in ten days.

      {¶16} In the second judgment entry filed by the trial court on June 3, 2015 at

10:57 a.m. the trial court filed a nunc pro tunc entry denying appellees' motion for

summary judgment because they did not seek leave of court and the matter had been

scheduled for a June 4, 2015 bench trial.

      {¶17} Hargreaves did not file a response or opposition to Appellees' Motion for

Nunc Pro Tunc Order and Reconsideration.

      {¶18} On June 24, 2015, the trial court granted appellees motion for summary

judgment and order of partition. On July 1, 2015, the trial court filed an Amended

Judgment Entry to reflect that the entry filed June 24, 2015, "disposes of both the

Plaintiffs' claims as set forth in their Amended Complaint and the claims set forth in

Defendant James D. Hargreaves' Counterclaim/Crossclaim."

                                  ASSIGNMENT OF ERROR

      {¶19} Hargreaves raises one assignment of error,

      {¶20} "I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN

GRANTING SUMMARY JUDGMENT TO PLAINTIFFS ON THEIR PARTITION CLAIM

FOR RELIEF."
Delaware County, Case No. 15 CAE 07 0057                                                           7


         Accelerated calendar.

         {¶21} This case comes to us on the accelerated calendar. App. R. 11.1, which

governs accelerated calendar cases, provides, in pertinent part:

               (E) Determination and judgment on appeal. The appeal will be

         determined as provided by App. R. 11. 1. It shall be sufficient compliance

         with App. R. 12(A) for the statement of the reason for the court’s decision

         as to each error to be in brief and conclusionary form. The decision may

         be by judgment entry in which case it will not be published in any form.

         {¶22} One of the important purposes of the accelerated calendar is to enable an

appellate court to render a brief and conclusionary decision more quickly than in a case

on the regular calendar where the briefs, facts and legal issues are more complicated.

Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655(10th

Dist.1983).

         {¶23} This appeal shall be considered in accordance with the aforementioned

rules.

         Summary Judgment.

         {¶24} Summary judgment proceedings present the appellate court with the unique

opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The

Wedding Party, Inc. 30 Ohio St.3d 35, 36, 506 N.E.2d 212(1987) As such, we must refer to Civ.R.

56(C).

         {¶25} Civ.R. 56(C) states that summary judgment shall be rendered forthwith if “the

pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no
Delaware County, Case No. 15 CAE 07 0057                                                             8


genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

of law.” Summary judgment is a procedural device to terminate litigation, so it must be awarded

cautiously with any doubts resolved in favor of the nonmoving party. Murphy v. Reynoldsburg, 65

Ohio St.3d 356, 358-359, 604 N.E.2d 138(1992)

       {¶26} Accordingly, summary judgment is appropriate only where: (1) no genuine issue of

material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law;

and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can

come to but one conclusion and that conclusion is adverse to the nonmoving party. Tokles & Son,

Inc. v. Midwestern Indemn. Co. 65 Ohio St.3d 621, 629, 605 N.E.2d 936(1992), citing Harless v.

Willis Day Warehousing Co., 54 Ohio St.2d 64, 65-66, 375 N.E.2d 46(1978).

                Since summary judgment denies the party his or her ‘day in court’ it is not to

       be viewed lightly as docket control or as a ‘little trial.’ The jurisprudence of summary

       judgment standards has placed burdens on both the moving and the nonmoving

       party.

                In Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264, the

       Supreme Court of Ohio held that the moving party seeking summary judgment

       bears the initial burden of informing the trial court of the basis for the motion and

       identifying those portions of the record before the trial court that demonstrate the

       absence of a genuine issue of fact on a material element of the nonmoving party's

       claim. The evidence must be in the record or the motion cannot succeed. The

       moving party cannot discharge its initial burden under Civ.R. 56 simply by making a

       conclusory assertion that the nonmoving party has no evidence to prove its case

       but must be able to specifically point to some evidence of the type listed in Civ.R.
Delaware County, Case No. 15 CAE 07 0057                                                          9


       56(C) that affirmatively demonstrates that the nonmoving party has no evidence to

       support the nonmoving party's claims. If the moving party fails to satisfy its initial

       burden, the motion for summary judgment must be denied. If the moving party has

       satisfied its initial burden, the nonmoving party has a reciprocal burden outlined in

       the last sentence of Civ.R. 56(E) to set forth specific facts showing there is a

       genuine issue for trial. If the nonmoving party fails to do so, summary judgment, if

       appropriate shall be entered against the nonmoving party based on the principles

       that have been firmly established in Ohio for quite some time in Mitseff v. Wheeler

       (1988), 38 Ohio St.3d 112, * * *.

               “The Supreme Court in Dresher went on to hold that when neither the

       moving nor non-moving party provides evidentiary materials demonstrating that

       there are no material facts in dispute, the moving party is not entitled to a judgment

       as a matter of law as the moving party bears the initial responsibility of informing the

       trial court of the basis for the motion, ‘and identifying those portions of the record

       which demonstrate the absence of a genuine issue of fact on a material element of

       the nonmoving party's claim.’ Id. at 276.”

Welch v. Ziccarelli, 11th Dist. Lake No.2006-L-229, 2007-Ohio-4374, at ¶ 36-37, 40-42. (Parallel

citations omitted.); Egli v. Congress Lake Club, 5th Dist. Stark No.2009CA00216, 2010-Ohio-2444

at ¶ 24-26.

       {¶27} In deciding whether there exists a genuine issue of fact, the evidence must be

viewed in the nonmovant's favor. Civ.R. 56(C). Even the inferences to be drawn from the

underlying facts contained in the evidentiary materials, such as affidavits and depositions, must be
Delaware County, Case No. 15 CAE 07 0057                                                             10

construed in a light most favorable to the party opposing the motion. Turner v. Turner, 67 Ohio

St.3d 337, 341, 617 N.E.2d 1123, 1127(1993).

        {¶28}   Appellate review of summary judgments is de novo. Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105, 671 N.E.2d 241(1996); Smiddy v. The Wedding Party, Inc., 30 Ohio St .3d

35,506 N.E.2d 212(1987). We stand in the shoes of the trial court and conduct an independent

review of the record. As such, we must affirm the trial court's judgment if any of the grounds raised

by the movant at the trial court is found to support it, even if the trial court failed to consider those

grounds. See Dresher, supra; Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41-42, 654 N.E.2d

1327(9th Dist. 1995).

                                               Analysis

        {¶29} Hargreaves makes several arguments. First, Hargreaves contends that the trial

court overruled appellees' motion for summary judgment when it filed its Judgment Entry on June

3, 2015 at 10:57 a.m. Hargreaves argues this was done after the trial court granted the appellees'

nunc pro tunc to correct the fact that they did not miss the filing deadline for dispositive motions

because the trial court had vacated the scheduling entry setting the deadline. Hargreaves next

argues that the motion was not pending before the court when it ruled on June 24, 2015. Further

Hargreaves contends they had no reason to submit evidence before the June 13, 2015 non-oral

hearing date because the trial court had previously denied the motion for summary judgment.

Hargreaves submits that not all relevant evidence was before the court when it ruled on the motion.

        {¶30} Partition actions are governed by R.C. Chapter 5307. Under that statute, a

tenant in common, survivorship tenant, or coparcener (joint heir) may file a petition in

the common pleas court seeking partition of real estate. R.C. 5307.01; R.C. 5307.03. “If

the court of common pleas finds that the plaintiff * * * has a legal right to any part of the
Delaware County, Case No. 15 CAE 07 0057                                                        11


estate, it shall order partition of the estate in favor of the plaintiff or all interested parties,

appoint one suitable disinterested person to be the commissioner to make the partition,

and issue a writ of partition.” R.C. 5307.04. The court may appoint up to three

commissioners. R.C. 5307.04.

       {¶31} The commissioner has the duty to make the partition. R.C. 5307.06. In

doing so, the commissioner is required to view and examine the property. Id. If the

commissioner concludes that the estate cannot be divided “without manifest injury to its

value,” the commissioner “shall return that fact to the court of common pleas with a just

valuation of the estate.” R.C. 5307.09.

       {¶32} If the court accepts the return, a party may elect to take the estate at the

appraised value. Id. If so, the court must adjudge the property to that party, upon the

party’s paying to the other parties their proportion of its appraised value, according to

their respective rights, or securing it as provided in R.C. 5307.10. If none of the parties

elects to take the property, the court may order the property to be sold. R.C. 5307.11.

Similarly, if multiple parties separately elect to take the property at its appraised value,

the court must sell the property. Weber v. McGowan–Young, Clark App. No. 07–CA–89,

2008-Ohio-4147, 2008 WL 3586900, ¶ 14, citing Darling v. Darling, 85 Ohio St. 27, 33,

96 N.E. 939(1911). Once the court confirms the sale, the proceeds are distributed to the

parties in proportion to their rights. R.C. 5307.14.

       {¶33} Hargreaves has previously agreed that partition is appropriate,

               Defendant does not believe that the question of partition is in

       dispute in this action. The dispute in this action concerns the procedure to

       be followed in carrying out the partition.
Delaware County, Case No. 15 CAE 07 0057                                            12

Case Summary of Defendant James D. Hargreaves for Status Conference, filed Oct. 8,

2014 at 1-2. Hargreaves concerns are with the procedures to be employed.            He

requested three commissioners, a new survey, a determination of whether partition was

possible without harming the value, and a determination of whether an auctioneer would

conduct the sale. Hargreaves further wanted the ability to submit names for the

commissioners, surveyors or auctioneers. In short, none of Hargreaves concerns

created a genuine issue as to whether or not the partition should be granted.

      {¶34} Hargreaves did file a response to the appellees motion for summary

judgment on April 9, 2015. He did not attach any affidavits or other materials to his

response. His response simply raised the need for a survey and a corrected deed, the

same arguments that the trial court rejected on March 2, 2015 when it overruled

Defendant Thomas C. Hargreaves Motion to Modify Plaintiff's Action, Order for Partition

and Subsequently Alter the Schedule of the Court.

      {¶35} Hargreaves has not cited this court to any requirement that a survey be

conducted before a partition is granted.

      {¶36} In Todd Dev. Corp., Inc. v. Morgan, 116 Ohio St.3d 461, 2008–Ohio–87,

880 N.E.2d 88, the Ohio Supreme Court held that a plaintiff moving for summary

judgment “does not bear the initial burden of addressing the nonmoving party’s

affirmative defenses.” Id. at ¶ 24, 880 N.E.2d 88. Rather, a non-moving party has the

burden to submit evidence as to its own affirmative defenses. Id. at ¶ 14–18, 880

N.E.2d 88.

      {¶37} In Capital One Bank (USA) N.A. v. Ryan, the Court observed,
Delaware County, Case No. 15 CAE 07 0057                                                 13


            The granting of leave to file an untimely motion for summary

     judgment is discretionary with the trial court. Brinkman v. Toledo, 81 Ohio

     App.3d 429, 432 (6th Dist.1992); City Loan & Sav. Co. v. Howard, 16 Ohio

     App.3d 185, 189 (2d Dist.1984). Accordingly, “a trial court’s decision to

     grant leave to file will not be reversed absent an abuse of discretion.”

     Boyle v. City of Portsmith, 4th Dist. No. 99CA669 (Mar. 31, 2001). See

     also Paramount Supply Co. v. Sherlin Corp., 16 Ohio App.3d 176, 180

     (8th Dist.1984) (noting that the party complaining about a court’s decision

     to grant another party leave must demonstrate prejudice).

            A trial court may, “in exercise of its sound discretion, consider a

     motion for summary judgment which has been filed, without express leave

     of court, after the action has been set for pretrial or trial.” Indermill v.

     United States, 5 Ohio App.3d 243 (9th Dist.1982), paragraph one of the

     syllabus. This is so because “[l]eave of court may be express or implied by

     the action of the court.” Coney v. Youngstown Metro. Hous. Auth., 7th

     Dist. No. 00–C.A.–251, 2002–Ohio–4371, ¶ 42. “‘[W]here the acceptance

     of a motion occurs by the grace of the court, the decision to accept is by

     itself leave of court.’" Meyer v. Wabash Alloys, L.L.C., 8th Dist. No. 80884,

     2003–Ohio–4400, ¶ 16, quoting Lachman v. Wiermarschen, 1st Dist. No.

     C–020208, 2002–Ohio–6656. By “addressing [a] motion for summary

     judgment [filed out of rule and without leave of court], the trial court

     implicitly grant[s] leave to * * * file it.” Smith v. Cincinnati Gas & Elec. Co.,

     75 Ohio App.3d 567, 572 (1st Dist.2000); Meyer at ¶ 16 (when the court
Delaware County, Case No. 15 CAE 07 0057                                                   14


       “acknowledged their motion [for summary judgment filed without leave]

       and set a hearing date” the court “showed that retroactive leave to file was

       granted”); Juergens v. Stang, Klkubnik and Assoc., Inc., 96 Ohio App.3d

       223, 234 (1994) (noting that “[t]he acceptance of the motion [for leave to

       file a motion for summary judgment] by the court after the case has been

       set for pretrial is in itself by leave of court albeit without the formal writing

       saying ‘I seek the leave of court’ ”); St. Paul Fire & Marine Ins. Co. v.

       Corwin, 6th Dist. No. WD–00–058 (May 18, 2001) (the trial court “impliedly

       granted Marx and Corwin leave to file their motion for summary judgment

       when it considered and ruled on the motion”).

10th Dist. Franklin No. 14AP-102, 2014-Ohio-3932, ¶¶ 31-31.

       {¶38} The purpose of a nunc pro tunc entry is to make the record speak the

truth. Smith v. Smith, Marion App. No. 9–06–41, 2007-Ohio-1089, ¶13, citing Ruby v.

Wolf, 39 Ohio App. 144, 146, 177 N.E. 240(8th Dist. 1931). A court’s power to enter a

nunc pro tunc judgment is restricted to placing upon the record evidence of judicial

action that has already been taken and can be exercised only to supply omissions in the

exercise of functions that are merely clerical. Id. The function of a nunc pro tunc entry is

not to correct or modify an existing judgment but rather to make the record conform to

what has already occurred. Pepera v. Pepera, 8th Dist. Cuyahoga No. 51989, 1987 WL

8586(Mar. 26, 1987), citing State ex rel. Phillips v. Indus. Comm., 116 Ohio St. 261, 155

N.E. 798(19270. A court may not by way of a nunc pro tunc entry enter of record that

which it intended or might have done but which in fact was not done. Id., citing Webb v.

W. Res. Bond & Share Co., 115 Ohio St. 247, 153 N.E. 289(1926).
Delaware County, Case No. 15 CAE 07 0057                                                 15


       {¶39} In the case at bar, the trial court mistakenly ruled that appellees had

missed the deadline for filing dispositive pre-trial motions. The purpose of the nunc pro

tunc entry filed by the trial court was to make the record accurately reflect that the trial

court had in fact vacated the scheduling order. The court did this via the Judgment Entry

filed at 10:56 a.m. on June 3, 2015. That entry explicitly stated that the trial court would

enter a "separate nunc pro tunc Judgment Entry..." The trial court additionally granted

appellees leave to file the motion on June 3, 2015 and gave Hargreaves and any other

interested party time to respond.

       {¶40} The trial court filed the second nunc pro tunc entry on June 3, 2015 at

10:57 a.m. The purpose of the second entry was to correct the original May 18, 2015

entry in which the trial court had denied appellees motion for summary judgment. As no

rights of any party are abridged, the second nunc pro tunc entry relates back to the

original May 18, 2015 date. See, State ex rel. Womack v. Marsh, 128 Ohio St.3d 303,

2011-Ohio-229, 943 N.E.2d 1010, ¶15, citing State v. Yeaples, 180 Ohio App.3d 720,

2009-Ohio-184, 907 N.E.2d 333(3rd Dist.), ¶15 (“A nunc pro tunc entry is the procedure

used to correct clerical errors in a judgment entry, but the entry does not extend the

time within which to file an appeal, as it relates back to the original judgment entry”).

Thus, the June 3, 2015 entry filed at 10:57 a.m. did not overrule the trial court's decision

to consider appellees' motion for summary judgment granted by the trial court in the

entry filed at 10:56 a.m. on June 3, 2015.

       {¶41} Viewing the evidence in a light most favorable to Hargreaves, we find

there are no genuine issues of material fact, and reasonable minds could come to but

one conclusion in favor of appellees. Because all of the relevant evidence was before
Delaware County, Case No. 15 CAE 07 0057                                                   16


the trial court and no genuine issue of fact existed, we find that the trial court did not err

in granting judgment in favor of appellees.

       {¶42} Hargreaves sole assignment of error is overruled.

       {¶43} Accordingly, the judgment of the Court of Common Pleas, Delaware

County, Ohio is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Farmer, J., concur
