[Cite as Barton v. Miller, 2019-Ohio-3241.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
ROBERT BARTON, ET AL                           :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                      Plaintiffs-Appellants    :       Hon. Patricia A. Delaney, J.
                                               :
-vs-                                           :
                                               :       Case No. 2019CA00016
JOE MILLER                                     :
                                               :
                     Defendant-Appellee        :       OPINION




CHARACTER OF PROCEEDING:                           Civil appeal from the Stark County Court of
                                                   Common Pleas, Case No.2018CV01385



JUDGMENT:                                          Reversed and Remanded




DATE OF JUDGMENT ENTRY:                            August 12, 2019


APPEARANCES:

For Plaintiffs-Appellants                          For Defendant-Appellee

JON TROYER                                         ALETHA CARVER
1953 Gulf St. N.W.                                 4775 Munson Street
Uniontown, OH 44685                                P.O. Box 36963
                                                   Canton, OH 44735-6963
Stark County, Case No. 2019CA00016                                                          2

Gwin, P.J.

       {¶1}   Appellants appeal the January 8, 2019 and the January 15, 2019 judgment

entries of the Stark County Court of Common Pleas.

                                     Facts & Procedural History

       {¶2}   On July 17, 2018, appellants Robert Barton (“Barton”) and L.C.F.,

Incorporated filed a complaint for breach of contract against appellee Joe Miller. In the

complaint, Barton alleges he and appellee entered into an oral contract in 2009 related to

appellee’s purchase of Gorant Chocolatier, LLC. Appellants aver appellee agreed to pay

Barton a finder’s fee of $80,500 upon successful completion of appellee’s purchase of

Gorant and a 5% fee on any future sale of real estate obtained by appellee in the purchase

of Gorant. Appellants allege the purchase of Gorant was completed on October 9, 2009,

and while appellee made partial payments in 2009 and 2010, he failed to make further

payments on the remaining balance.             Appellants aver appellee made a written

acknowledgment via letter dated April 9, 2010 indicating a desire to pay the remaining

balance through the summer of 2010 and argue this letter constitutes a written contract,

the breach of which is within the eight-year statute of limitations. Appellants further allege

Barton agreed to extend appellee’s deadline for payment of the balance of the finder’s

fee until the end of the summer of 2012 and the breach of such modification is within the

six-year statute of limitations for oral contracts.

       {¶3}   Appellee filed an answer to the complaint on September 7, 2018. On

December 14, 2018, appellee filed a motion for judgment on the pleadings. Appellee

argues he is entitled to judgment on the pleadings because appellants’ complaint is

barred by the statute of limitations.
Stark County, Case No. 2019CA00016                                                       3


       {¶4}   On January 7, 2019, appellee filed a motion for leave to file a first amended

answer.    Appellee sought to amend his answer to assert counterclaims against

appellants.

       {¶5}   The trial court issued a judgment entry granting appellee’s motion for

judgment on the pleadings on January 8, 2019. The trial court noted appellants did not

respond to the motion for judgment on the pleadings. The trial court found appellants’

claim is based solely upon an oral breach of contract and is thus barred by the applicable

statute of limitations. The trial court included Civil Rule 54(B) language and stated the

judgment entry dated January 8, 2019 is a final appealable order.

       {¶6}   On January 15, 2019, the trial court issued a nunc pro tunc entry granting

appellee’s motion for judgment on the pleadings. The trial court stated as follows:

              This judgment entry is being filed as a nunc pro tunc entry in order

       to delete the final appealable order language contained in the previous

       filing. The basis for this deletion is that on January 7, 2019, defendant filed

       a motion for leave to file first amended answer which asserts counterclaims

       against plaintiffs. The court was not aware that the motion had been filed

       at the time of the filing of the original judgment entry on January 8, 2019.

       {¶7}   Also on January 15, 2019, the trial court granted appellee’s motion for leave

to file its first amended answer.

       {¶8}   Appellants appeal the judgment entries of the Stark County Court of

Common Pleas and assign the following as error:
Stark County, Case No. 2019CA00016                                                      4


      {¶9}   “I. THE TRIAL COURT ERRED BY CONSIDERING THE TIME FOR THE

STATUTE OF LIMITATIONS TO RUN FROM THE TIME OF FORMATION OF THE

CONTRACT RATHER THAN FROM THE TIME THE CAUSE OF ACTION ACCRUED.

      {¶10} “II. THE TRIAL COURT ERRED IN MODIFYING ITS JANUARY 8, 2019

JUDGMENT ENTRY NUNC PRO TUNC.”

                                               I.

      {¶11} In their first assignment of error, appellants argue the trial court erred in

granting appellee’s motion for judgment on the pleadings. Appellants contend they

alleged sufficient facts in the complaint to overcome the motion for judgment on the

pleadings, as the complaint does not conclusively show on its face the action is barred

by the statute of limitations. Appellants do not challenge the trial court’s finding that

appellants’ claim is based solely upon a breach of oral contract.

      {¶12} Civil Rule 12(C) provides, “after the pleadings are closed but within such

time as not to delay the trial, any party may move for judgment on the pleadings.” The

standard of review of the grant of a motion for judgment on the pleadings is the same as

the standard of review for a Civ.R. 12(B)(6) motion. As the reviewing court, our review of

a dismissal of a complaint based upon a judgment on the pleadings requires us to

independently review the complaint and determine if the dismissal was appropriate. Rich

v. Erie County Dept. of Human Resources, 106 Ohio App.3d 88, 665 N.E.2d 278 (6th

Dist. Erie 1995). A reviewing court need not defer to the trial court’s decision in such

cases. Id.

      {¶13} A motion for judgment on the pleadings, pursuant to Civil Rule 12(C),

presents only questions of law. Peterson v. Teodosio, 34 Ohio St.2d 161, 297 N.E.2d
Stark County, Case No. 2019CA00016                                                         5


113 (1973). The determination of a motion under Civil Rule 12(C) is restricted solely to

the allegations in the pleadings and the nonmoving party is entitled to have all material

allegations in the complaint, with all reasonable inferences to be drawn therefrom,

construed in its favor. Id. Evidence in any form cannot be considered. Conant v.

Johnson, 1 Ohio App.2d 133, 204 N.E.2d 100 (4th Dist. Athens 1964). In considering

such a motion, one must look only to the face of the complaint. State ex rel. Osborne v.

City of North Canton, 5th Dist. Stark No. 2018CA00132, 2019-Ohio-1744. When granting

a motion for judgment on the pleadings based upon the expiration of the statute of

limitations, the complaint must show conclusively on its face that the action is time-barred.

Williams v. Bureau of Workers’ Comp., 10th Dist. Franklin No. 09AP-1076, 2010-Ohio-

3210.

        {¶14} An oral contract is subject to a six-year statute of limitations. R.C. 2305.07.

A cause of action for breach of contract accrues when the breach occurs or when the

wrongful act was committed. Collins v. Sotka, 81 Ohio St.3d 506, 692 N.E.2d 581 (1998).

Pursuant to the allegations in the complaint, Barton and appellee entered into an oral

agreement to pay a finder’s fee of $80,500 upon successful completion of appellee’s

purchase of Gorant Chocolatier, LLC and the purchase of Gorant was completed on

October 9, 2009. Application of the six-year statute of limitations to that claim would mean

the statute of limitations expired on October 9, 2015.

        {¶15} However, appellants also allege in their complaint that, at the request of

appellee, Barton subsequently agreed to extend appellee’s deadline for payment of the

balance of the fee, and the last such extension of payment of the final amount due

($20,250.00 plus interest from 2009) was to be completed by the end of the summer of
Stark County, Case No. 2019CA00016                                                          6


2012. Further, appellants aver appellee breached this oral modification of the original

oral agreement and the breach of this subsequent oral modification is within the six-year

statute of limitations for oral contracts. Taking these allegations as true and drawing all

reasonable inferences in appellants’ favor, application of the six-year statute of limitations

to the breach of the oral modification of the oral contract expired at the end of the summer

of 2018. Appellants filed their complaint on July 17, 2018, prior to the end of the summer

of 2018. Thus, the complaint does not conclusively show on its face that the action is

time-barred.

       {¶16} Appellee cites Certified Alarm & Signal Co., Inc. v. Chasteen, Inc. in support

of his argument that appellants’ allegation of a breach of an oral modification of a contract

is not sufficient to overcome the motion for judgment on the pleadings because appellants

do not allege what or if any new consideration forms the basis of the new oral agreement.

6th Dist. Lucas No. L-88-031, 1988 WL 96182 (Sept. 16, 1998). We first note that

Certified Alarm, a decision by the Sixth District Court of Appeals, is not binding on this

Court. Moore v. Michalski, 5th Dist. Fairfield No. 17-CA-44, 2018 WL 3904257. We also

find Certified Alarm distinguishable from the instant case, as the case involved the oral

modification of a written contract whereas, in this case, appellants allege an oral

modification of an oral contract.

       {¶17} Further, procedurally, the Certified Alarm case was decided at a bench trial

after testimony from multiple witnesses. In this case, we are restricted solely to the

allegations in the complaint and must construe all allegations in appellants’ favor.

Appellants allege in their complaint that, at the request of appellee, Barton agreed to

extend appellee’s deadline for payment of the remaining balance of the finder’s fee and
Stark County, Case No. 2019CA00016                                                         7


that the last such extension for payment of the final amount due of the original agreed

amount ($20,250.00 plus interest from 2009) was to be completed by the end of the

summer of 2012.

         {¶18} Upon our de novo review, construing the allegations in the complaint in

appellants’ favor. Appellants’ first assignment of error is sustained.

                                                 II.

         {¶19} In their second assignment of error, appellants contend the trial court erred

in modifying its January 8, 2019 judgment entry nunc pro tunc and in granting the motion

for leave to amend after it had issued a final appealable order. Appellants argue the trial

court was without jurisdiction to make substantive changes to its previous decision. We

agree.

         {¶20} The function of a nunc pro tunc order is not to change, modify, or correct

judgments, but merely to have the record speak the truth. In re Estate of Cook, 19 Ohio

St.2d 121, 249 N.E.2d 799 (1969). A trial court may exercise its nunc pro tunc authority

in limited situations to correct clerical errors. Douglass v. Provia Door, Inc., 5th Dist.

Tuscarawas No. 2012 AP 05 0034, 2013-Ohio-2853. It is not made to show what the

court might or should have decided, or intended to decide, but what it actually did decide.

Id.

         {¶21} In this case, the January 8, 2019 judgment entry was a final appealable

order. Because they substantively modifiy a final appealable order, we find the January

15, 2019 entries are nullities, as the trial court lacked jurisdiction to issue them. Tate v.

Tate, 5th Dist. Holmes Nos. 17CA013, 17CA014, 2018-Ohio-1245. We find the harmless
Stark County, Case No. 2019CA00016                                                     8


error doctrine does not apply in this case because the trial court lacked jurisdiction to

issue the entries. Appellants’ second assignment of error is sustained.

      {¶22} Based on the foregoing, appellants’ assignments of error are sustained.

      {¶23}      The judgment entries of the Stark County Court of Common Pleas are

reversed and remanded for proceedings consistent with this opinion.

By Gwin, P.J.,

Hoffman, J., and

Delaney, J., concur
