[Cite as United Tel. Credit Union v. Hughes, 2012-Ohio-1638.]



                     Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 97078


                UNITED TELEPHONE CREDIT UNION

                                                          PLAINTIFF-APPELLANT

                                                    vs.

           NATALIE A. HUGHES, AS FIDUCIARY FOR
           THE ESTATE OF MARTIN J. HUGHES, JR.
                                                          DEFENDANT-APPELLEE



                                  JUDGMENT:
                            REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-752213

        BEFORE: Stewart, P.J., Celebrezze, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                         April 12, 2012
ATTORNEYS FOR APPELLANT

Lou D’Amico
George J. Argie
Argie, D’Amico & Vitantonio
6449 Wilson Mills Road
Mayfield Village, OH 44143


ATTORNEYS FOR APPELLEE

Michael N. Schaeffer
Richard G. Murray, II
Scott N. Schaeffer
Kemp, Schaeffer & Rowe Co., L.P.A.
88 West Mound Street
Columbus, OH 43215
MELODY J. STEWART, P.J.:

       {¶1} This case came to be heard upon the accelerated calendar pursuant to App.R.

11.1 and Loc.R. 11.1, the record from the Cuyahoga County Court of Common Pleas, and

the briefs and oral arguments of counsel. Plaintiff-appellant United Telephone Credit

Union (“union”) appeals from an order that dismissed its complaint against

defendant-appellee Natalie A. Hughes, the administratix of the estate of Martin Hughes,

on grounds that it had been previously dismissed with prejudice as settled by the parties.

The union argues that the court erred because the prior dismissal had specifically been

entered as being “without prejudice,” so it did not operate as a dismissal on the merits.

       {¶2} Civ.R. 41(A)(1)(b) permits a plaintiff to dismiss all claims asserted by

plaintiff by “filing a stipulation of dismissal signed by all parties who have appeared in

the action.” The parties dismissed a previously filed union complaint against Hughes by

entering an “agreed judgment entry of dismissal” that advised the court that “the parties

have entered into a mutual agreement and that they agree that the within cause should be

dismissed without prejudice.”      (Emphasis sic.)   When the union refiled the case, the

court dismissed it on its own initiative, stating that the case had been “previously disposed

of as settled[.]”   Hughes filed a motion for reconsideration of the dismissal.   The court

denied the motion, stating that it was amending the notice of dismissal nunc pro tunc to

correct the earlier dismissal to reflect it as being with prejudice.   It also indicated that

regardless of whether the case had been dismissed with or without prejudice, the union
failed to refile the action within one year as required by the savings statute, so dismissal

was nonetheless proper.

       {¶3} The court erred by amending nunc pro tunc the stipulated voluntary dismissal

to state that it was with prejudice.   A nunc pro tunc entry can only be used to have the

record “speak the truth.” McKay v. McKay, 24 Ohio App.3d 74, 75, 493 N.E.2d 317

(11th Dist.1985). The parties entered a Civ.R. 41(A)(1)(b) dismissal by stipulation and

expressly stated that the dismissal was without prejudice. Although the record contains

a journal entry by the court stating that the parties had previously “indicated to the Court

that this matter has settled,” the notice of dismissal gave no indication that it was the

result of a settlement.   While the court may have been led to believe that a settlement

was in the offing, it was bound by the express terms of the dismissal, so it had no

authority to amend that dismissal nunc pro tunc. Bayes v. Toledo Edison Co., 6th Dist.

Nos. L-03-1177 and L-03-1194, 2004-Ohio-5752, ¶ 93-95.

       {¶4} The court also erred to the extent it believed that the union failed to refile its

action within one year as required by R.C. 2305.19. The union voluntarily dismissed the

previous action with a notice of voluntary dismissal filed on March 31, 2010. It refiled

the action on March 30, 2011.            In its order denying the union’s motion for

reconsideration, the court stated that the union voluntarily dismissed its action on March

29, 2010, but this was a reference to a journal entry stating that the parties had indicated

to the court that they had reached a settlement.        But without a notice of voluntary

dismissal, the case could not be deemed to have been dismissed.           What is more, the
March 29, 2010 journal entry ordered the parties to “submit a more definitive entry.”

Had a settlement actually been reached on that date, not only would there have been no

need for a more definitive entry, but the court would have been powerless to take any

action following a complete dismissal of an action. State ex rel. Fifth Third Mtge. Co. v.

Russo, 129 Ohio St.3d 250, 2011-Ohio-3177, 951 N.E.2d 414, ¶ 17. The assigned error

is sustained.

       {¶5} This cause is reversed and remanded for proceedings consistent with this

opinion.

       It is ordered that appellant recover of appellee its costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the Cuyahoga County Court of

Common Pleas 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.




MELODY J. STEWART, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
SEAN C. GALLAGHER, J., CONCUR
