2018 Ohio 1245
Ohio Ct. App.2018Background
- Bruce and Robyn Tate married in 1998; no children of the marriage. Prior to marriage Bruce helped form Tate Farms Company, Ltd. (1997) and Tate Farms, a Partnership (2004).
- Robyn filed for divorce on March 10, 2015; the Tate Farms entities were named as defendants and later moved to dismiss.
- After multiple hearings, the trial court dismissed the Tate Farms entities on October 11, 2016; the entities sought sanctions (denied by the trial court).
- The trial court issued findings of fact and conclusions of law on February 13, 2017 but referenced Exhibits A, B, and C; Exhibit C was not attached. A divorce decree was filed March 30, 2017 attaching Exhibits A and B but not C.
- This court granted a limited remand to allow the trial court to rule on a nunc pro tunc motion to add the missing Exhibit C. On remand the trial court filed a nunc pro tunc entry that attached Exhibit C but also made substantive changes to its earlier findings. Appellants challenged the trial court’s authority to make substantive changes via nunc pro tunc.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court could use a nunc pro tunc entry to make substantive changes to earlier findings and conclusions | Robyn (appellee) did not successfully argue that substantive changes were appropriate via nunc pro tunc. | Bruce/Tate Farms: trial court lacked jurisdiction to make substantive changes on nunc pro tunc remand. | The court held the trial court exceeded nunc pro tunc authority by making substantive changes; those changes are invalid. |
| Whether attaching the missing Exhibit C on nunc pro tunc was proper | Robyn: inclusion of the missing exhibit was necessary and proper. | Bruce/Tate Farms: requested correction but objected to substantive revision. | Attaching Exhibit C was proper; nunc pro tunc valid only to include the missing exhibit. |
| Whether the nunc pro tunc entry could be used to change the record to reflect what the trial court ‘‘intended’’ but did not do | Robyn: no persuasive argument that intention justifies substantive alteration. | Bruce/Tate Farms: trial court cannot record what it ‘‘might have done’’ via nunc pro tunc. | Court reaffirmed that nunc pro tunc cannot be used to enter matters the court intended or might have done but in fact did not. |
| Procedural result of exceeding nunc pro tunc authority | Robyn: outcome remained as originally filed (except for inclusion of Exhibit C). | Bruce/Tate Farms: sought relief from substantive changes and appealed. | Substantive parts of the nunc pro tunc entry were void; only inclusion of Exhibit C stands. Appeals dismissed for lack of a live appealable matter under these appeals. |
Key Cases Cited
- In re Estate of Cook, 19 Ohio St.2d 121 (1969) (nunc pro tunc corrects clerical errors so record reflects court’s true action; not to change substantive judgments)
- McKay v. McKay, 24 Ohio App.3d 74 (1985) (court may not use nunc pro tunc to enter what it intended or might have done but did not)
- Webb v. Western Reserve Bond & Share Co., 115 Ohio St. 247 (1926) (limits on nunc pro tunc entries; cannot alter judicial action after the fact)
- State ex rel. Litty v. Leskovyansky, 77 Ohio St.3d 97 (1996) (nunc pro tunc cannot be used to correct judicial errors of substance)
- National Life Ins. Co. v. Kohn, 133 Ohio St. 111 (1937) (nunc pro tunc entries limited to correcting the record; substantive changes are void)