Barker v. Emergency Professional Servs., Inc.
2014 Ohio 1368
Ohio Ct. App.2014Background
- On June 18, 2010, Jeffrey Barker suffered a diving/near-drowning injury at the Speakers’ pond; he was later treated at Trumbull Memorial Hospital and now is quadriplegic. Plaintiffs sued multiple medical defendants for alleged malpractice; they did not sue the pond owners (the Speakers).
- Dr. Harold Robinson (a defendant/third-party plaintiff) filed a third-party complaint against Clarence and Cynthia Speaker alleging their negligence caused Barker’s injuries and seeking contribution/indemnification.
- The Speakers moved to dismiss the third-party complaint and also moved for summary judgment based on recreational user immunity (R.C. 1533.181). A hearing notice failed to state that the Speakers’ summary judgment motion would be heard.
- The trial court’s November 6, 2012 entry granted both the Speakers’ motion to dismiss and their motion for summary judgment (an internally inconsistent disposition because the motions are mutually exclusive).
- Dr. Robinson moved for clarification or to void the entry; he appealed and this court remanded for the trial court to determine whether a clerical error occurred and, if so, issue a nunc pro tunc entry.
- On remand the trial court issued a February 12, 2013 nunc pro tunc entry: it clarified that it granted only the motion to dismiss and held the summary-judgment motion in abeyance due to defective notice. The appellate court affirmed that nunc pro tunc entry; one judge dissented, arguing the change was substantive, not clerical, and thus improper under Civ.R. 60(A).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly issued a nunc pro tunc entry altering its prior judgment | Dr. Robinson: the November 6 entry was internally inconsistent; clarification/nunc pro tunc was appropriate to reflect the court's intended ruling and correct the record | Speakers: trial court unlawfully reconsidered and vacated its final judgment granting summary judgment; Civ.R. procedures do not permit such reconsideration | Court: nunc pro tunc clarification was permissible under remand and Civ.R. 60(A) to correct the inconsistent entry; affirmed trial court |
| Whether correction implicated Civ.R. 60(A) (clerical) vs. Civ.R. 60(B) (substantive relief) | Dr. Robinson: relief sought was clarification/voiding of inconsistent entry, not a Civ.R. 60(B) motion; remand authorized correction | Speakers: change was substantive (lack of notice to rule on summary judgment), so 60(A) nunc pro tunc unavailable and 60(B) standards apply | Court: treated the change as correction of an internal inconsistency under remand; did not require Civ.R. 60(B) relief; affirmed |
| Whether the trial court abused discretion in correcting the record while appeal was pending | Dr. Robinson: remand authorized the trial court to clarify; correction not an abuse | Speakers: remand and correction improperly altered a final judgment, abusing discretion | Court: no abuse of discretion; correction within trial court’s authority under Civ.R. 60(A) and this court’s limited remand |
| Whether the summary-judgment ruling should remain effective | Speakers: view that summary judgment was final and should remain | Dr. Robinson: summary-judgment ruling was not properly before the court due to notice; should be held in abeyance | Court: held summary-judgment motion in abeyance pending appeal and removed any grant from the record; dismissal (motion to dismiss) stands |
Key Cases Cited
- State ex rel. Litty v. Leskovyansky, 77 Ohio St.3d 97 (1996) (Civ.R. 60(A) permits correction of clerical mistakes but not substantive changes)
- Webb v. W. Res. Bond & Share Co., 115 Ohio St. 247 (1926) (nunc pro tunc entries may show what court actually decided, not what it might have decided)
- State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353 (2006) (nunc pro tunc entries limited to reflecting the court’s actual decision)