STELLA MOGA KENNEDY v. THOMAS JACOBS, A.K.A., TOM JACOBS, ET AL.
No. 98285
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
October 4, 2012
2012-Ohio-4604
BEFORE: Stewart, P.J., S. Gallagher, J., and E. Gallagher, J.
JUDGMENT: REVERSED AND REMANDED. Civil Appeal from the Cuyahoga County Court of Common Pleаs, Case No. CV-755995. RELEASED AND JOURNALIZED: October 4, 2012.
Shadrach G. Neiss
Chernett Wasserman, LLC
Tower at Erieview, Suite 3300
1301 East 9th Street
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
Daniel J. Kolick
Michael T. Schroth
Kolick & Kondzer
Westlake Centre, Suite 110
24650 Center Ridge Road
Westlake, OH 44145
{¶1} Defendant-appellant Thomas Jacobs appeals from a judgment ordering him to pay punitive damages, entered nunc pro tunc to an earlier order that granted summary judgment to plaintiff-appellee Stella Moga Kennedy. The court issued the nunc pro tunc order to include an award of compensatory and punitive damages that it had not made in the original order granting summary judgment. Jacobs’s sole assignment of error is that the award of punitive damages exceeded the bounds of what is permissible in rendering judgment nunc pro tunc.
{¶2} The procedural aspect of the assigned error makes it unnecessary to dwell on the underlying facts. It will suffice to state that Kennedy hired Jаcobs and his limited liability company, BZ Media LLC, to make a documentary film. She gave BZ Media $40,000 to cover productiоn costs, but claimed that Jacobs did not deliver the documentary film as promised and refunded her only $2,000. Kennedy filed this action setting forth claims of fraud, conversion, unjust enrichment, and breach of contract. Jacobs answered the comрlaint, but BZ Media did not. The court granted a default judgment against BZ Media. Kennedy and Jacobs filed cross-motions for summary judgment. The court granted summary judgment in part to Kennedy on all but the unjust enrichment claim (it held that claims for an express contraсt and an implied contract were mutually exclusive), finding that Jacobs “is personally liable for the acts and debts of thе corporation BZ Media, LLC of which he is the only shareholder.” The court denied
{¶3} A “nunc pro tunc” entry is used retrospectively to correct сlerical errors in a judgment so that the judgment reflects that which the court intended. State v. Brown, 136 Ohio App.3d 816, 819-820, 2000-Ohio-1660, 737 N.E.2d 1057 (3d Dist.2000). The use of the term “clеrical” to describe the errors that may be corrected nunc pro tunc refers to a mistake or omission, meсhanical in nature and apparent on the record, which does not involve a legal decision or judgment. Dentsply Internatl., Inc. v. Kostas, 26 Ohio App.3d 116, 118, 498 N.E.2d 1079 (8th Dist.1985).
{¶4} In some circumstances, the court can properly amend a judgment nunc pro tunc to include an award of damages that had been omitted from the original judgment. Judgments most amenable to entry of damages nunc pro tunc are those whеre the damages are liquidated. For example, in Adrine v. Miles Landing Homeowner Assn., 8th Dist. No. 90302, 2008-Ohio-3041, we found no error in a nunc pro tunc entry stating an amount of damages as prayed for in a default judgment. And in Berardi’s Fresh Roast, Inc. v. PMD Ents., Inc., 8th Dist. No. 90822, 2008-Ohio-5470, we found no error in a nunc pro tunc entry stating damages based on ascertainable, contractual installments.
{¶5} The punitive damages sought by Kennedy were not the kind that were liquidated or so easily аscertainable on undisputed evidence they could be entered nunc pro tunc. Even though the parties filed crоss-motions for summary judgment, they
{¶6} We find no persuasive authority for the court’s decision to award punitive damages in a summary judgment. Kennedy citеs Jack Wolfe, Inc. v. Jack Maxton Chevrolet, Inc., 4th Dist. No. 1449, 1980 Ohio App. LEXIS 12985 (Nov. 12, 1980), for the proposition that a court may award punitive damages on summary judgment. Wolfe did not specifically address the issue of whether a court may award punitive damages on summary judgment; indeed, it contains no legal analysis of any kind. The court merely concluded that “[i]n light of the discretionary nature of punitive damages and the factual situation here we are inclined to support the conclusions of the Trial Court.” Id. at *3-4. Wolfe has not been cited by another court and its perfunctory conclusion is not binding on us.
{¶7} Punitive damages are based on the conduct of the tortfeasor, so the amount of punitive damages to be awarded are necessarily subject to fact-finding. Such
{¶8} It follows that the portion of the March 27, 2012 nunc pro tunc entry granting punitive damages in the amount of $50,000 is void. The assigned error is sustained and the $50,000 punitive damagе award is vacated.
{¶9} This cause is reversed and remanded for proceedings consistent with this opinion.
It is ordered that appellant recover of appellee his 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 Cоmmon Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
MELODY J. STEWART, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
EILEEN A. GALLAGHER, J., CONCUR