[Cite as Pickett v. Rice-Roberts, 2014-Ohio-3329.]



                 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, 77 Ohio St.3d

97, 100, 671 N.E.2d 236 (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.” Id.

      {¶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,

2011-Ohio-3072, ¶ 44, citing Jacks v. Adamson, 56 Ohio St. 397, 402, 47 N.E. 48

(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, 39 Ohio App.

144, 147, 177 N.E. 240 (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.”

Mosley at ¶ 44; see also State ex rel. Cruzado v Zaleski, 111 Ohio St.3d 353,

2006-Ohio-5795, 856 N.E.2d 263 (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.
