Scaglione v. SaridakisScaglione v. Saridakis
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-545171
RELEASED: September 10, 2009
JOURNALIZED:
ATTORNEYS FOR APPELLANTS
Victor M. Javitch
Javitch, Block & Rathbone L.L.P.
1100 Superior Ave., 19th Floor
Cleveland, OH 44114
Paul V. Wolf
Dubyak & Goldense
920 Terminal Tower
50 Public Square
Cleveland, OH 44113-2206
Kimberly A. Hrenko
Apelt & Hrenko, LLC
Two Commerce Park Square
23220 Chagrin Blvd., Suite 300
Beachwood, Ohio 44122
ATTORNEYS FOR APPELLEES
Attorney for Thomas McCutcheon
Terrance P. Gravens
Rawlin Gravens Co., L.P.A.
55 Public Square
Suite 850
Cleveland, OH 44113
For The Car Corner
The Car Corner
13801 Lorain Avenue
Cleveland, OH 44111
David C. Engel
Alicia Whiting-Bozich
Buckley King LPA
1400 Fifth Third Center
600 Superior Avenue, East
Cleveland, OH 44114-2652
N.B. This entry is an announcement of the court‘s decision. See
COLLEEN CONWAY COONEY, A.J.:
{¶ 1} Plaintiff-appellant, Benedetto Scaglione (“Scaglione“), appeals the trial court‘s denial of his motion to correct the record. Finding no merit to the appeal, we affirm.
{¶ 2} This case arose in October 2004, when Scaglione sued several defendants after he was struck by a vehicle at an auto repair shop. In May 2007, a jury awarded Scaglione $333,000 in damages, finding American Family Insurance Company liable. In July 2007, the trial court entered a $333,000 judgment against American Family Insurance Company and the
{¶ 3} Scaglione now appeals. In his sole assignment of error, he claims that the trial court abused its discretion in failing to correct the record nunc pro tunc to substitute McCutcheon as the sole proprietor for The Car Corner. We disagree.
{¶ 4} Underlying this appeal are the following facts and procedural history. When Scaglione initially filed his lawsuit in October 2004, he named “ABC Automobile Dealership” as one of the defendants. He later amended the complaint, replacing ABC Automobile Dealership with “The Car Corner.” Although the amended complaint did not reflect that The Car Corner was the fictitious name of a business entity and did not name McCutcheon as a defendant, McCutcheon was personally served with the amended complaint.
{¶ 5} In July 2005, the court held a case management conference, and The Car Corner failed to appear. At the second case management conference
{¶ 6} Scaglione subpoenaed McCutcheon in November 2007 and concluded that The Car Corner was an unregistered fictitious name for a sole proprietorship owned by McCutcheon. Scaglione claimed that he did not know the legal status of The Car Corner until after the trial court had entered judgment, because “The Car Corner” name was not registered with the Ohio Secretary of State. Then Scaglione moved to have the trial court “correct” its July 2007 judgment entry nunc pro tunc by substituting McCutcheon for The Car Corner. Following a hearing on the matter, the trial court denied the motion in a nine-page judgment entry and opinion.
{¶ 7}
“Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.”
{¶ 8} We review a trial court‘s decision to grant or deny a
{¶ 9} The Ninth District explained the function of a nunc pro tunc entry in State v. Greulich (1988), 61 Ohio App.3d 22, 24-25, 572 N.E.2d 132:
“A nunc pro tunc order may be issued by a trial court, as an exercise of its inherent power, to make its record speak the truth. It is used to record that which the trial court did, but which has not been recorded. It is an order issued now, which has the same legal force and effect as if it had been issued at an earlier time, when it ought to have been issued. Thus, the office of a nunc pro tunc order is limited to memorializing what the trial court actually did at an earlier point in time. State, ex rel. Phillips v. Indus. Comm. (1927), 116 Ohio St. 261, 155 N.E. 798. It can be used to supply information which existed but
was not recorded, to correct mathematical calculations, and to correct typographical or clerical errors. Jacks v. Adamson (1897), 56 Ohio St. 397, 47 N.E. 48. “A nunc pro tunc order cannot be used to supply omitted action, or to indicate what the court might or should have decided, or what the trial court intended to decide. Its proper use is limited to what the trial court actually did decide. Webb v. Western Reserve Bond & Share Co. (1926), 115 Ohio St. 247, 153 N.E. 289. That, of course, may include the addition of matters omitted from the record by inadvertence or mistake of action taken. See Black‘s Law Dictionary (5 Ed. 1979) 964. Therefore, a nunc pro tunc order is a vehicle used to correct an order previously issued which fails to reflect the trial court‘s true action.”
{¶ 10} In the instant case, the trial court found that a nunc pro tunc entry would be improper for several reasons. First, The Car Corner had been known by no other name throughout the litigation, and Scaglione never amended his complaint to name McCutcheon as a party. Moreover, throughout the pendency of the suit, Scaglione had never described The Car Corner as a fictitious name for a sole proprietor. The court had not omitted McCutcheon‘s name simply because of an oversight, and the judgment entry accurately reflected what the court actually decided.2
{¶ 11} Nonetheless, Scaglione asserts that the trial court would not be modifying the judgment by substituting McCutcheon‘s name for the fictitious
{¶ 12} Still, on the facts before us, we cannot conclude that the trial court abused its discretion. It did not act arbitrarily or unconscionably. To the contrary, it set forth detailed reasons for its conclusion.
{¶ 13} The trial court declared in its entry:
“Plaintiff relies upon Family Medicine Foundation, Inc., 96 Ohio St.3d 183, 2002-Ohio-4034[, 772 N.E.2d 1177] for the premise that there is no legal distinction between a sole proprietor and his fictitious name. However, Family Medicine Foundation is not apposite to the facts at hand. The Ohio Supreme Court simply held in Family Medicine Foundation that ’
R.C. 1329.10(C) permits a plaintiff to bring suit against a party named only by its fictitious name.’ Id. at 187. Family Medicine Foundation did not address the issue of whether a final judgment could be altered to add the name of the legal entity behind a fictitious name. Also, the facts of Family Medicine Foundation differ from the facts here because Family Medicine Foundation involved a lawsuit brought against a fictitious name used by a corporation while the Plaintiff in the case sub judice alleges that he brought suit against a fictitious name used by a sole proprietor. In making a distinction between the use of fictitious names by corporations as opposed to sole proprietors, the Supreme Court reviewed its prior decision in Patterson v. V & M Auto Body (1992), 63 Ohio St.3d 573, where it held that a plaintiff may not maintain an action against a defendant solely under a fictitious name where the plaintiff knows that the defendant does business as a sole proprietor. The Supreme Court noted that Patterson was not applicable to the facts of Family Medicine Foundation and did not overturn Patterson when holding that a plaintiff may bring suit against a party named only by its fictitious name. In distinguishingthe facts in Patterson from the facts in Family Medicine Foundation, the Supreme Court noted the good faith efforts made by plaintiffs to identify the legal entity behind the fictitious name. This differs from the plaintiff in Patterson who, despite knowing the identity of the individual operating a business under a fictitious name, chose not to amend the complaint to properly identify him as a defendant. “The facts in the case sub judice, while not directly on point with either Patterson or Family Medicine Foundation, are, in this Court‘s opinion, more analogous to the scenario in Patterson. Under the holding in Family Medicine Foundation, Plaintiff‘s decision to name the fictitious entity, The Car Corner, as a defendant instead of naming the sole proprietor doing business as The Car Corner was permissible. However, following the holding in Patterson, Plaintiff‘s lawsuit against The Car Corner may not be maintained if Plaintiff knew the identity of the individual behind the fictitious name. The Court finds that the holding in Patterson and the dicta in Family Medicine Foundation requires * * * Plaintiff to make at least some effort to determine the individual or legal entity behind a fictitious name, especially in situations involving sole proprietorship. Assuming the case sub judice does in fact involve a sole proprietorship, which Plaintiff has failed to establish by either clear and convincing proof or a preponderance of the evidence, then Plaintiff was aware of the identity of the individual, Thomas McCutcheon, operating the sole proprietorship under a fictitious name. Plaintiff failed to amend his pleading accordingly to add Mr. McCutcheon. To allow the record to be amended post judgment would be prejudicial to Mr. McCutcheon and contrary to the holding of Patterson.”
{¶ 14} We find the trial court‘s reasoning does not constitute an abuse of discretion. The sole assignment of error is overruled.
{¶ 15} Judgment is affirmed.
It is ordered that appellees recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to
COLLEEN CONWAY COONEY, ADMINISTRATIVE JUDGE
KENNETH A. ROCCO, J., and
MELODY J. STEWART, J., CONCUR