[Cite as Trunzo v. Debt Recovery Solutions of Ohio, Inc., 2012-Ohio-6078.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                                      :      JUDGES:
TERRY L. AND CAROL S. TRUNZO                          :      W. Scott Gwin, P.J.
                                                      :      William B. Hoffman, J.
                     Plaintiffs-Appellants            :      Julie A. Edwards, J.
                                                      :
-vs-                                                  :      Case No. 2012 CA 0036
                                                      :
                                                      :
DEBT RECOVERY SOLUTIONS OF                            :      OPINION
OHIO, INC.

                     Defendant-Appellee




CHARACTER OF PROCEEDING:                                      Civil Appeal from Mansfield Municipal
                                                              Case No. 2011 CVH 01409

JUDGMENT:                                                     Affirmed In Part and Reversed and
                                                              Remanded In Part

DATE OF JUDGMENT ENTRY:                                       December 19, 2012

APPEARANCES:

For Plaintiffs-Appellees                                      For Defendant-Appellant

TERRY L. AND CAROL S. TRUNZO                                  JOHN ALLEN HOLMES
655 Bangorville Road                                          76 North Mulberry Street
Bellville, Ohio 44813                                         Mansfield, Ohio 44902
[Cite as Trunzo v. Debt Recovery Solutions of Ohio, Inc., 2012-Ohio-6078.]


Edwards, J.


        {¶1}     Appellants, Terry and Carol Trunzo, appeal a summary judgment of the

Mansfield Municipal Court awarding summary judgment to appellee Debt Recovery

Solutions of Ohio, Inc.

                                    STATEMENT OF FACTS AND CASE

        {¶2}     On June 3, 2011, appellee filed the instant action alleging that it was the

assignee of various unpaid accounts against appellants. The complaint alleged that

appellants owed $313.44 for health care services rendered by Mid-Ohio Heart Clinic,

Inc., plus prejudgment interest in the amount of $18.72. The complaint alleged that

appellants owed $894.00 for services rendered by Dermatology Associates of

Mansfield, Inc., plus prejudgment interest in the amount of $101.32.            Finally, the

complaint alleged that appellant owed $6.92 for services provided by Radiology

Associates of Mansfield, Inc., plus prejudgment interest in the amount of $1.03.

        {¶3}     Appellants filed an answer, alleging in part that the surgery performed by

Dr. Wood of Dermatology Associates was careless and inferior, leaving appellant Carol

Trunzo with a large lump on her face which has caused her much pain, suffering and

embarrassment.         Appellant also filed a counterclaim alleging that appellee had not

provided notice of the debts as required by the Fair Debt Collection Practices Act

(FDCPA).

        {¶4}     Appellee filed a motion for summary judgment. Attached to the motion

was the affidavit of John Holmes, attorney for appellee, in which he averred that he had

complied with the FDCPA in collecting the instant debt. Appellee also filed the affidavit

of Kathy Shambre, president of appellee, in which she averred that the balances due on
Richland County App. Case No. 2012 CA 0036                                              3


the accounts after receiving payments in June were $123.87 to Mid-Ohio Heart,

$894.00 to Dermatology Associates, and $6.92 to Radiology Associates. Her affidavit

stated that collection notices were sent to appellants on March 3, 2009, regarding past-

due accounts of Radiology Associates and Dermatology Associates and June 18, 2009

regarding Mid-Ohio Heart Clinic.    She further stated that all collection action taken by

appellee was compliant with the FDCPA.

      {¶5}     Appellants filed a response to the motion for summary judgment.

Appellant did not attach any materials of evidentiary quality to their response. They

attached photocopies of checks to Mid-Ohio Heart in the amount of $123.87 and

Radiology Associates of Mansfield in the amount of $6.92, a photograph that purports to

be the lump on Carol Trunzo’s forehead, and a copy of the notice they received under

the FDCPA regarding the assignment of the Mid-Ohio Heart account to appellee. None

of these exhibits were authenticated.

      {¶6}     Appellee responded that all of the principal balances due for medical bills

to Mid-Ohio Heart and Radiology Associates had in fact been paid in full. They noted in

their response that appellants had presented no expert evidence of medical

malpractice.

      {¶7}     The court denied the motion for summary judgment on March 13, 2012,

finding that there were genuine issues of material fact.        The court then granted

summary judgment on April 2, 2012.          The court awarded appellee $123.87 plus

prejudgment interest in the amount of $14.81 on the Mid-Ohio Heart account, $894.00

plus prejudgment interest in the amount of $127.73 on the Dermatology Associates
Richland County App. Case No. 2012 CA 0036                                              4


account, and $6.92 plus prejudgment interest in the amount of $1.25 on the Radiology

Associates account. The court dismissed appellants’ counterclaim.

      {¶8}   Appellants filed a notice of appeal on May 1, 2012. On June 5, 2012, the

court issued a nunc pro tunc judgment awarding damages in the amount of $14.81 for

prejudgment interest owed on the Mid-Ohio Heart account, $894.00 plus prejudgment

interest in the amount of $127.73 on the Dermatology Associates account, and

prejudgment interest in the amount of $1.25 on the Radiology Associates account.

      {¶9}   Appellants assign a single error on appeal:

      {¶10} “THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR

SUMMARY JUDGMENT OF PLAINTIFF-APPELLEE, DEBT RECOVERY SOLUTIONS

OF OHIO, INC.”

      {¶11} At the outset, we note that appellee has filed a motion to dismiss the

appeal as moot based on the nunc pro tunc judgment filed by the court on June 5, 2012.

      {¶12} The purpose of a nunc pro tunc judgment is restricted to placing upon the

record evidence of judicial action which has actually been taken. State, ex rel. Phillips,

v. Indus. Comm., 116 Ohio St. 261, 155 N.E. 798 (1927). It can be exercised only to

supply omissions in the exercise of functions which are merely clerical         Jacks v.

Adamson, 56 Ohio St. 397 (1897). It is not made to show what the court might or

should have decided, or intended to decide, but what it actually did decide. Webb v.

Western Reserve Bond & Share Co., 115 Ohio St. 247, 153 N.E. 289 (1926).

      {¶13} In the instant case, the nunc pro tunc judgment does not reflect what the

court actually decided nor does it correct only clerical omissions. The entry shows what

the court intended to decide regarding damages, not what the court actually decided.
Richland County App. Case No. 2012 CA 0036                                               5


Therefore, the entry is not a proper nunc pro tunc entry. The trial court entered final

judgment on April 2, 2012, and that entry was appealed on May 1, 2012. The court

therefore did not have jurisdiction to alter that judgment on June 5, 2012. Appellee’s

motion to dismiss is accordingly overruled.

       {¶14} We next turn to the merits of appellants’ assignment of error.

       {¶15} 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 (1987). As such, we must

refer to Civ. R. 56(C) which provides in pertinent part: “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 genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law. No evidence or

stipulation may be considered except as stated in this rule. A summary judgment shall

not be rendered unless it appears from the evidence or stipulation, and only from the

evidence or stipulation, that reasonable minds can come to but one conclusion and that

conclusion is adverse to the party against whom the motion for summary judgment is

made, that party being entitled to have the evidence or stipulation construed most

strongly in the party’s favor.”

       {¶16} Pursuant to the above rule, a trial court may not enter summary judgment

if it appears a material fact is genuinely disputed.     The party moving for summary

judgment bears the initial burden of informing the trial court of the basis for its motion

and identifying those portions of the record that demonstrate the absence of a genuine
Richland County App. Case No. 2012 CA 0036                                            6


issue of material fact. The moving party may not make a conclusory assertion that the

non-moving party has no evidence to prove its case. The moving party must specifically

point to some evidence which demonstrates that the non-moving party cannot support

its claim. If the moving party satisfies this requirement, the burden shifts to the non-

moving party to set forth specific facts demonstrating that there is a genuine issue of

material fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing

Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107.

      {¶17} Appellants first argue that the court erred in awarding damages in the

amount of $123.87 on the Mid-Ohio Heart account and $6.92 on the Radiology

Associates account because these amounts had already been paid.                Appellee

conceded in their reply memorandum to appellants response to their summary judgment

motion that the principal balances due Mid-Ohio Heart and Radiology Associates had

been paid in full. As noted above, the trial court’s attempt to correct the amount of

damages in the judgment entry by way of a nunc pro tunc entry was improper because

the court lacked jurisdiction to do so. Therefore, we find that the judgment appealed

from does incorrectly award damages for principal balances due Mid-Ohio Heart and

Radiology Associates when these amounts had been paid.

      {¶18} Appellants next argue that the court erred in only giving them one week to

provide expert testimony to prove medical negligence. They argue that the obvious

large red lump on Carol Trunzo’s forehead as well as their testimony at the pre-trial

conference creates a genuine issue of disputed fact.

      {¶19} The record does not reflect that appellants were given only one week to

provide expert testimony.   To the extent such conversations occurred at a pre-trial
Richland County App. Case No. 2012 CA 0036                                          7


conference, they were not placed on the record and appellants have not demonstrated

error in the record. While there is a picture attached to appellants’ response to the

summary judgment motion, this picture is not authenticated and is not therefore proper

evidence. Further, if any testimony was taken at the pre-trial conference, there is no

transcript of this hearing. Appellants therefore have not demonstrated from the record

that the court erred regarding their claim of medical negligence.

      {¶20} Finally, appellants argue that the court erred in dismissing their

counterclaim. Appellee presented affidavit testimony demonstrating compliance with

the FDCPA. Appellants presented no evidence to rebut this testimony in response to

the motion for summary judgment. The court therefore did not err in granting summary

judgment dismissing the counterclaim.

      {¶21} The assignment of error is sustained as to the amount of damages. In all

other respects, the assignment of error is overruled.
Richland County App. Case No. 2012 CA 0036                                           8


      {¶22} The judgment of the Mansfield Municipal Court is affirmed in part and

reversed in part and this cause is remanded to that court for further proceedings as to

the amount of damages. Costs split evenly between the parties.




By: Edwards, J.

Gwin, P.J. and

Hoffman, J. concur

                                                 ______________________________



                                                 ______________________________



                                                 ______________________________

                                                             JUDGES




JAE/r1113
[Cite as Trunzo v. Debt Recovery Solutions of Ohio, Inc., 2012-Ohio-6078.]


              IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


TERRY L. AND CAROL S. TRUNZO                           :
                                                       :
                         Plaintiffs-Appellees          :
                                                       :
                                                       :
-vs-                                                   :        JUDGMENT ENTRY
                                                       :
DEBT RECOVERY SOLUTIONS OF
OHIO, INC.                                             :
                                                       :
                        Defendant-Appellant            :        CASE NO. 2012 CA 0036




        For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Mansfield Municipal Court is affirmed in part and reversed in part and

remanded to that court for further proceedings. Costs split evenly between the parties.




                                                           _________________________________


                                                           _________________________________


                                                           _________________________________

                                                                             JUDGES
