Pollock v. Hall
2017 Ohio 1218
| Ohio Ct. App. | 2017Background
- Landlord Robert Pollock sued tenant Carrie Hall (Jan. 21, 2015) for unpaid rent and property damages.
- Pollock attempted service by certified mail and sheriff; both failed. He then attempted service by publication but did not file the affidavit required by Civ.R. 4.4(A) before publication.
- Hall answered (Nov. 30, 2015) and later moved to dismiss (Feb. 22, 2016) for lack of personal jurisdiction, insufficiency of process, and insufficiency of service.
- Trial court (Apr. 5, 2016) granted Hall’s motion and dismissed the case with prejudice, finding lack of jurisdiction due to the missing affidavit for service by publication.
- Ten days later (Apr. 15, 2016) the trial court issued a nunc pro tunc entry amending the dismissal to one without prejudice.
- The court of appeals held the nunc pro tunc entry improperly attempted to correct a substantive decision, declared that nunc pro tunc entry void, and treated the original April 5, 2016 dismissal (with prejudice) as the final judgment.
Issues
| Issue | Pollock's Argument | Hall's Argument | Held |
|---|---|---|---|
| Whether the trial court could use a nunc pro tunc entry to change dismissal from with prejudice to without prejudice | N/A — appellee did not defend the nunc pro tunc as a clerical correction on appeal | The nunc pro tunc was improper because it altered a substantive final judgment | Nunc pro tunc was improper; it attempted to correct a substantive error and is void |
| Whether the change was a clerical mistake or a substantive decision | Arguably the court had discretion to amend for "good cause" (implicit) | The change was substantive (altered final disposition), not a mechanical record correction | The amendment was substantive, not clerical; Civ.R. 60(B), not Civ.R. 60(A)/nunc pro tunc, governs such corrections |
| Effect of an improper nunc pro tunc entry | N/A | An improper nunc pro tunc entry cannot stand and is void | An improper nunc pro tunc judgment is void; the original final judgment controls |
Key Cases Cited
- State ex rel. Litty v. Leskovyansky, 77 Ohio St.3d 97 (1996) (defines "clerical mistake" for nunc pro tunc purposes)
- State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158 (1995) (nunc pro tunc entry may only make the record reflect what the court actually decided)
- Natl. Life Ins. Co. v. Kohn, 133 Ohio St. 111 (1937) (an improper nunc pro tunc entry can render the judgment void)