SUE NEMCIC, Plаintiff-Appellee v. CECIL W. PHELPS, et. al., Defendants-Appellants
Appellate Case No. 26066
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
September 12, 2014
2014-Ohio-3952
Trial Court Case No. 2012-CV-1791 (Civil Appeal from Common Pleas Court)
OPINION
Rendered on the 12th day of September, 2014.
FRED MILLER, Atty. Reg. No. 0017872, 246 High Street, Hamilton, Ohio 45011 Attorney for Plaintiff-Appellee
JOSE M. LOPEZ, Atty. Reg. No. 0019580, 18 East Water Street, Troy, Ohio 45373 Attorney for Defendants-Appellants
WELBAUM, J.
{¶ 2} We conclude that the trial court lacked jurisdiction to amend the complaint in the absence of a motion requesting
I. Facts and Course of Proceedings
{¶ 3} This casе arises from a dispute over a family-owned gas station and drive-through store (J&M Mart, referred to hereafter as “market“), located in Gratis, Ohio. The real estate and business was owned by J&M, and Cecil Phelps (known as Wayne) is J&M‘s sole member. At the time of the events giving rise to this litigation, Wayne and his wife, Cheryl, were the parents of Aaron Phelps and were the in-laws of Lori Phelps. (Aaron and Lori have since divorced). In turn, Lori is the daughter of Plaintiff-Appellee, Sue Nemcic, who worked at the market between October 2008 and August 2011.
{¶ 4} Before becoming employed at the market, Nemcic worked at Gratis Express, a convenience store in Gratis, Ohio, that was owned by Aaron and Lori. In 2008, Aaron convinced Wayne that a drive-through could succeed at the location of a two-bay filling station that had been for sale for a year. As a result, Wayne formed J&M, and purchased the property. During the time that renovations to the filling station were in process, Gratis Express went bankrupt, and J&M‘s market had to open immediately.
{¶ 5} Nemcic was hired as a co-manager of the new enterprise, at an initial salary of $900 per week, beginning in February 2009. Prior to that time, Nemcic had been working on a volunteer basis.2 Nemcic ran the cash register, did book-keeping, ordered supplies, wrote checks to suppliers, and paid bills. In contrast, Aaron and Lori were paid $600 each per week, for doing very little. Aaron and Lori also admitted taking cash from the business on a frequent basis. According to Lori, she and Aaron each took between $50 and $200 in cash from the store each week.
{¶ 6} By spring 2010, the business was in financial distress. The State of Ohio had sent a letter to Wayne indicating that if the delinquent state sales taxes were not paid, the market‘s liquor license would be revoked. This letter was never shared
{¶ 7} The amount placed on Nemcic‘s credit card from April through November 2010 for delinquent taxes was about $19,069.20. Nemcic claimed that she had also given Aaron cashier‘s checks for J&M totaling $15,000, and had paid other taxes and expenses in 2011 on the Chase card as well as another credit card. In total, Nemcic claimed that J&M and Aaron owеd her a total of about $35,800 for business expenses that she had paid. She also claimed that Aaron owed her about $9,530 for personal expenses that he had charged on her credit card without her permission. Nemcic testified that her daughter, Lori, did not owe her any money, because Lori had repaid her for personal expenses that she had charged on Nemcic‘s credit card.
{¶ 8} The payment of the overdue sales tax did not resolve the financial issues. Faced with continuing financial problems and difficulty in obtaining proper records for filing income tax returns, Aaron informed Wayne of the financial issues in April 2011. As a result, Wayne became involved in the business and investigated the record-keeping. Wayne admitted at trial that Nemcic had been repaid certain sums for the sales tax, because the store owed Nemcic the money. However, Wayne also claimed that Nemcic was not entitled to any further money, based on the following contentions: (1) his belief that about $21,870, other than payroll checks, had been deposited into Nemcic‘s own account over the pertinent time period; (2) his suspicion that Nemcic was skimming cash during her employment; and (3) his belief that Nemcic was overpaid during her tenure of employment by about $75,000. This latter point was based on Wayne‘s opinion that Nemcic should only have been paid at a rate of $8.00 per hour, or slightly more than minimum wage, due to his assessment of her job duties.
{¶ 9} During a bench trial, the court granted a dismissal of the claims against Wayne and Cheryl after Nemcic presented her case. After hearing the rest of the evidence, the trial court filed a Decision and Verdict Entry from Bench Trial on November 26, 2013. In the decision, the trial court found in favor of Nemcic in the amount of $19,069.20 on her first claim for relief. The court also found in Nemcic‘s favor on the third claim for relief, in the amount of $9,530.63, and concluded that Lori аnd Aaron would be jointly and severally liable for that entire amount. Finally, the court rejected Nemcic‘s claims for punitive damages and attorney fees, and ordered J&M, Aaron, and Lori to pay court costs. The court also denied J&M‘s counterclaim for unauthorized use of funds.
{¶ 10} On December 10, 2013, Nemcic filed a motion for reconsideration, asking the court to order additional damages, including amounts expended for taxes in the year 2011, and interest on the credit card debt. The court overruled the motion for reconsideration. Subsequently, on December
{¶ 11} Subsequently, on January 2, 2014, the trial court filed an amended judgment entry, on its own accord. The court noted that while the first claim for relief had excluded J&M, the evidence indicated that J&M should be liable for payments made on its behalf. Accordingly, the court amended the complaint, pursuant to
{¶ 12} All Appellants, other than Lori Phelps, appeal from the judgment entry filed on January 2, 2014. However, no notice of appeal was filed from the judgment entry filed on December 19, 2013.
II. Did the Trial Court Err in Amending the Complaint?
{¶ 13} Appellants’ Sole Assignment of Error states that:
The Trial Court Erred by Amending, Sua Sponte, Plaintiff‘s Complaint to Include a Claim Against J&M Mart, Pursuant to Civil Rule 15, and Over the Objections of Defendants.
{¶ 14} Under this assignment of error, Appellants raise three separate issues. However, prior to addressing these issues, we will consider the issue of our jurisdiction to hear this case. We are permitted to consider jurisdictional issues on our own motion. Care Risk Retention Group v. Martin, 191 Ohio App.3d 797, 2010-Ohio-6091, 947 N.E.2d 1214, ¶ 97 (2d Dist.), citing State ex rel. White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d 543, 544, 684 N.E.2d 72 (1997).
{¶ 15} As was noted, the trial court in this case entered a “Decision and Verdict Entry from Bench Trial” on November 26, 2013, and a “Judgment Entry” on December 19, 2013. The Decision and Verdict Entry explained the basis for the trial court‘s decision, and awarded Nemcic judgment on the first clаim for relief without specifying a particular party against whom judgment was being rendered. The subsequent Judgment Entry awarded Nemcic judgment against J&M, Lori, and Aaron, in the amount of $19,069.20, and disposed of the other claims in the case as well. On January 2, 2014, the trial court then filed an “Amended Judgment Entry.” The Amended Judgment Entry amended the pleadings to include J&M within the First Claim for Relief, and reaffirmed the prior judgment filed on December 19, 2013.
{¶ 16} Appellants did not appeal from either of the two earlier entries; instead, they appealed only from the judgment entry of January 2, 2014. It is well-established that:
A trial court has “no authority sua sponte to reopen and amend a final judgment.” (Emphasis sic.) Kemper Securities, Inc. v. Schultz, 111 Ohio App.3d 621, 625, 676 N.E.2d 1197 (10th Dist.1996). See also Anderson v. Consumer Portfolio Servs., Inc., 10th Dist. No.12AP-339, 2012-Ohio-4380, ¶ 7 (“[o]ther than a judgment that is void ab initio for lack of jurisdiction, a court has no authority to vacate or modify its final orders other than as set forth under
Civ.R. 60(B) “); GMAC, L.L.C. v. Greene, 10th Dist. No. 08AP-295, 2008-Ohio-4461, ¶ 19. Once an оrder ” ‘has been journalized by a trial court as a final appealable order, that order cannot be modified or vacated except as provided underCiv.R. 50(B) (motion notwithstanding the verdict),Civ.R. 59 (motion for a new trial), orCiv.R. 60(B) (motion for relief from judgment).’ ” Jurasek v. Gould Electronics, Inc., 11th Dist. No.2001-L-007, 2002-Ohio-6260, ¶ 15, quoting Krumheuer v. Flowers & Versagi Ct. Reporters, 8th Dist. No. 72431 (Nov. 6, 1997). See also Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378, 380, 423 N.E.2d 1105 (1981).
Jeffrey v. Marietta Mem. Hosp., 10th Dist. Franklin Nos. 11AP-492, 11AP-502, 2013-Ohio-1055, ¶ 69.
{¶ 17} Furthermore, although ” ’
{¶ 18} In the case before us, the decision to allow amendment of the complaint was not merely a clerical issue, but was substantive. According to Appellants, J&M‘s liability under an equitable theory was not raised in the complaint, and the trial of such an issue was not done with express or implied assent. Appellants contend that they, in fact, objected to inclusion of any other issues, and that Nemcic failed to move to amend the complaint.
{¶ 19}
When issues not raised by the pleadings are tried by express or implied consеnt of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motiоn of any party at any time, even after judgment. Failure to amend as provided herein does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. Thе court may grant a continuance to enable the objecting party to meet such evidence.
{¶ 20} ”
{¶ 21} Normally, “[a]n amendment under
Nonetheless, amendment under these circumstances is not merely a clerical issue, and the trial court could not have amended its prior order under
{¶ 22} Accordingly, in the case before us, the trial court lacked jurisdiction on its own motion to “reopen and substantively modify” its December 19, 2013 entry, and the amended judgment entry was a “nullity.” Jeffrey, 10th Dist. Franklin Nos. 11AP-492, 11AP-502, 2013-Ohiо-1055, at ¶ 74. As a result, we lack jurisdiction over this appeal, and the appeal must be dismissed.
{¶ 23} In view of the above holding, the sole assignment of error raised by Appellants, and the three issues raised in their assignment of error, cannot be addressed.
III. Conclusion
{¶ 24} Based on the preceding discussion, this appeal is dismissed for lack of jurisdiction.
DONOVAN and HALL, JJ., concur.
Copies mailed to:
Fred S. Miller
Jose M. Lopez
Hon. Gregory Singer