COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 60631, 61121 RICHARD HERSHBAIN : : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION : CITY OF CLEVELAND, ET AL. : : : Defendant-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 4, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 191792 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: VIOLET J. TARCAI 1540 East 38th Street Cleveland, Ohio 44114 For Defendant-Appellees: CRAIG S. MILLER Director of Law KATHLEEN M. SWEENEY Assistant Director of Law Room 106- City Hall 601 Lakeside Avenue Cleveland, Ohio 44114 - 2 - KRUPANSKY, J.: Plaintiff appeals from the trial court decisions dismissing his complaint pursuant to Civ. R. 12(B)(6) for failure to state a claim upon which relief can be granted and denying his motion for leave to file an amended notice of appeal. The relevant facts follow. On April 23, 1987, plaintiff filed a complaint in the Cuyahoga County Court of Common Pleas against defendants for the negligent shooting of plaintiff's dog by members of the Cleveland Police Department. The case was assigned to Judge Daniel O. Corrigan. On June 9, 1989, plaintiff filed a notice of voluntary dismissal without prejudice in the case pursuant to Civ. R. 41(A)(1)(a). On June 12, 1989, the trial court journalized, on a half- sheet, the following order: Vol. Dismissal Pursuant to Rule 41(A)(1)(a) w/o Prej. This judgment entry indicated the order was final and postcard notice was sent to the parties. On June 16, 1989, the trial court issued another half-sheet judgment entry on plaintiff's notice of dismissal. On June 15, 1990, plaintiff refiled his complaint against defendants in the Cuyahoga County Court of Common Pleas pursuant to R.C. 2305.19, which states in pertinent part the following: 2305.19 Saving in case of reversal. - 3 - In an action commenced, or attempted to be commenced, if in due time a judgment for the plaintiff is reversed, or if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of reversal or failure has expired, the plaintiff, or, if his dies and the cause of action survives, his repre- sentatives may commence a new action within one year after such date. (Emphasis added.) Plaintiff received a new case number and the case was assigned to a different judge. On July 18, 1990, defendants filed a motion to dismiss the complaint pursuant to Civ. R. 12(B)(6), asserting that plaintiff had failed to file his new action within the one-year time limitation of R.C. 2305.19. Defendants attached to their motion a certified copy of the June 12, 1989 order of dismissal. On July 25, 1990, plaintiff filed a brief in opposition to defendants' motion to dismiss. Therein, plaintiff stated in pertinent part as follows: Counsel respectfully submits for the Courts consideration that prior to refiling this cause of action, Counsel did go to the Clerk's Office of the Clerk of Courts to learn the date of dismissal of Plaintiff's cause of action pursuant to Rule 41(A)(1)(a), Ohio Rules of Civil Procedure. Counsel was given the dismissal date of June 16, 1989 in Vol. 1159 Page 272,273 of the book of Judgment Entries. Counsel verified the Judgment Entry ***. * * * Counsel for the City of Cleveland found a Judgment Entry dated June 12, 1989, while - 4 - Counsel for the Plaintiff was given the Judgment Entry of Dismissal dated June 16, 1989, copies of both Judgment Entries are attached hereto, Marked Exhibit "A" and Exhibit "B". Counsel for Plaintiff respectfully submits that Counsel nor her client can be held liable for this error on the part of Court personnel. The Judgment Entry upon which Plaintiff's Counsel had a right to depend was registered by the Court on the Notice of Dismissal filed by Plaintiff on June 9, 1989, and received for filing on June 16, 1989, after Judge Daniel Corrigan signed the dismissal on June 15, 1989. (Emphasis added.) On September 9, 1990, the trial court granted defendants' motion to dismiss the complaint with prejudice for failure to refile it within the statutory period mandated by R.C. 2305.19. On October 10, 1990, plaintiff filed a notice of appeal from that order to this court designated Case No. 60631. Thereafter, on October 16, 1990, plaintiff filed in the trial court a "motion to vacate judgment." Therein, plaintiff stated as follows: Counsel for Plaintiff respectfully incor- porates the Brief in Opposition which she previously filed in the within cause objecting to the dismissal of the cause of action on the grounds that the second Complaint of Plaintiff was not filed within one (1) year of the voluntary dismissal of the first Complaint. As further proof that Plaintiff's Counsel had a legal right to depend upon the date of June 16, 1989, as furnished to her by the Court, Counsel submits a copy of the post card that she received from the Court in reference to her dismissal of the Plaintiff's first Complaint. - 5 - For the sake of not burdening this Motion, Counsel will not include the recently filed Brief in Opposition To Defendant's Motion To Dismiss; however, Counsel attaches hereto, makes the Judgment Entries issued by the Court in the cause herein, and the post card received by her giving her the date of June 16, 1989 as the dismissal date, and marks same Exhibits "A", "B", "C", & "D". Counsel respectfully believes that the Court should vacate its entry of dismissal and return this case to the active trial docket. On October 25, 1990, the trial court denied plaintiff's "motion to vacate judgment," stating that plaintiff's complaint was "untimely [filed] and properly dismissed." On November 9, 1990, plaintiff filed in the trial court a "motion for leave to file amended notice of appeal." Therein, plaintiff apparently sought to "add" to his previously filed appeal to this court an appeal from the October 25, 1990 denial 1 of his motion to vacate judgment. On December 11, 1990, the trial court denied this motion, with the notation, "This Court has no jurisdiction over an appellate case." On January 3, 1991, plaintiff filed a notice of appeal to this court from the trial court's order of December 11, 1990, which was designated Case No. 61121. Plaintiff's cases were thereafter consolidated for appellate disposition. 1 On November 26, 1990, plaintiff also filed in this court a motion to amend notice of appeal; this motion was subsequently denied by this court on December 17, 1990. - 6 - Plaintiff cites three assignments of error for this court's 2 review. Plaintiff's first assignment of error follows: DID THE COURT OF COMMON PLEAS ERR IN DISMISSING THE REFILED COMPLAINT OF APPELLANT WHEN IT ISSUED TWO JUDGMENT ENTRIES OF VOLUNTARY DISMISSAL BUT ONLY NOTIFIED THE APPELLANT OF THE LATER DATE BY POSTCARD? This assignment of error lacks merit. Since plaintiff's assignments of error are not separately argued, his argument on this issue is unclear; however, plaintiff seems to contend he should not be held responsible for not being aware of the June 12, 1990 journal entry. This contention is unpersuasive. The following two axioms apply in the case sub judice: (1) "a court of record speaks only through its journal and not by oral pronouncement ***." Schenley v. Krauth (1953), 160 Ohio St. 109, paragraph one of the syllabus; and (2) an entry on the trial court's docket constitutes notice of a decision. Reis Flooring Co. v. Dileno Constr. Co. (1977), 53 Ohio App. 2d 255 It is well settled that a judgment is final, effective and imbued with a permanent character when filed with the clerk of the trial court pursuant to Civ. R. 58. William Cherry Trust v. Hofmann (1985), 22 Ohio App. 3d 100, paragraph three of the syllabus. However, "no provision in Ohio law or rule of civil or appellate procedure requires that a party be given actual notice 2 These assignments of error are not separately argued as required by App. R. 12(A) and App. R. 16(A). - 7 - of the filing of a judgment entry." American Corp. v. Misenko (1984), 10 Ohio St. 3d 132. (Emphasis added.) Rather, notice shall be deemed to have been provided once the clerk has served notice of the entry and made the appropriate notation on the docket. Atkinson v. Grumman Ohio Corporation (1988), 37 Ohio St. 3d 80, syllabus 2(c). Moreover, the validity of a judgment is not affected by a party's failure to receive such notice. Id. In the case sub judice, plaintiff argues he received notice only of the June 16, 1989 judgment entry. He states his counsel contacted the clerk's office of the Cuyahoga County Court of Common Pleas and verified this date as that of the final judgment entry in the first case. However, plaintiff's arguments are unavailing. Civ. R. 41(A)(1) states as follows: RULE 41. DISMISSAL OF ACTIONS (A) Voluntary Dismissal; Effect Thereof. (1) By Plaintiff; by Stipulation. Subject to the provisions of Rule 23(E) and Rule 66, an action may be dismissed by the plaintiff without order of court (a) by filing a notice of dismissal at any time before the commencement of trial unless a counterclaim which cannot remain pending for independent adjudications by the court has been served by the defendant ***. (Emphasis added.) Regarding Civ. R. 41(A)(1), the court in Clay Hyder Trucking Lines, Inc. v. Riley (1984), 16 Ohio App. 3d 224, stated the rule as follows: The plain language of Civ. R. 41(A)(1)(a) gives a plaintiff an absolute right to - 8 - terminate his cause of action voluntarily and unilaterally at any time prior to commencement of trial. The plaintiff is not required to serve notice upon opposing counsel before the dismissal can become effective. (Emphasis added.) Therefore, in the case sub judice, plaintiff's notice of dismissal became effective June 9, 1989, the date he filed it since the rule is self-executing. Thus, plaintiff must indeed be held responsible for being aware that according to the rule of civil procedure under which he was proceeding, his original action was dismissed as of the date he filed his notice thereof. The trial court's half-sheet journal entry is merely a perfunctory act performed without discretion constituting notice to the world of plaintiff's unilateral action. Moreover, parties are expected to keep themselves informed of the progress of their case, see, e.g., State Farm Mut. Auto. Ins. Co. v. Peller (1989), 63 Ohio App. 3d 357. Therefore, plaintiff had a duty to check the docket to ascertain the date of the original order of dismissal; he was not justified in merely "calling" or talking to the clerk's office. Euclid North Company v. Cuyahoga County Board of Revision (April 19, 1984), Cuyahoga App. No. 47360, unreported. Furthermore, there is a presumption of proper service in cases where the Civil Rules on service are followed. Grant v. Ivy (1980), 69 Ohio App. 2d 40. This presumption may be rebutted by sufficient evidence. Martin v. Manning (Dec. 5, 1991), Cuyahoga App. No. 62039. In the case sub judice, however, plaintiff argues he received no notice of the - 9 - June 12, 1990 journal entry but submitted no evidence in the form of an affidavit or otherwise to support this allegation in either the trial court or this court. Defendants, however, did receive such notice. Thus, it is presumed plaintiff received notice of the trial court's July 12, 1989 judgment entry which formally journalized his Civ. R. 41(A)(1)(a) notice of dismissal. Grant v. Ivy, supra; Atkinson v. Grumman Ohio Corporation, supra. Therefore, the trial court did not err in dismissing the refiled complaint which, pursuant to R.C. 2305.19, was untimely filed and, accordingly, plaintiff's first assignment of error is overruled. Plaintiff's second assignment of error follows: WAS THE ISSUANCE OF TWO JUDGMENT ENTRIES ANNOUNCING THE DECISION OF THE COURT OF COMMON PLEAS IN THE INSTANT CASE A CLERICAL ERROR ENTITLED TO BE VACATED PURSUANT TO CIVIL RULE 60(A) AND RULE 61, OF THE OHIO RULES OF CIVIL PROCEDURE? This assignment of error also lacks merit. It can be gleaned that plaintiff argues in this assignment of error that in his original cause of action, the trial court's issuance of two differently dated judgment entries of dismissal was a "clerical error" and, therefore, he was entitled to relief - 10 - 3 from that order pursuant to Civ. R. 60(A). This argument is unavailing. Civ. R. 60(A) provides as follows: RULE 60. RELIEF FROM JUDGMENT OR ORDER (A) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from over- sight 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. (Emphasis added.) This court must first note that plaintiff filed no motion pursuant to Civ. R. 60(A) in the trial court which rendered the judgment entries of June 12, 1989 and June 16, 1989. Moreover, in the case sub judice, there was no "clerical error" to correct pursuant to Civ. R. 60(A) as that term has been judicially defined. The following definition of "clerical mistake" has been adopted: The phrase merely describes the type of error identified with mistakes in transcription, alteration or omission of any papers and documents which are traditionally or 3 Plaintiff also cites Civ. R. 61 in support of his argument, but fails to adequately explain how this rule is applicable to the facts of the case sub judice. Therefore, this court exercises its prerogative under App. R. 12(A) and declines to address this argument. North Coast Cookies, Inc. v. Sweet Temptations, Inc. (1984), 16 Ohio App. 3d 342. - 11 - customarily handled or controlled by clerks but which papers or documents may be handled by others. [Emphasis added.] It is a type of mistake or omission mechanical in nature which is apparent on the record and which does not involve a legal decision or judgment by an attorney ***." (Emphasis in original.) Dentsply Internat'l, Inc. v. Kostas (1985), 26 Ohio App. 3d 116. Thus, a correction of an order pursuant to Civ. R. 60(A) "*** does not reflect a modification of an erroneous judgment but rather supplies omissions of a clerical nature which serve to have the record speak the truth. [Citations.]" Id. (Emphasis added.) Therefore, Civ. R. 60(A) permits the court to correct a clerical error or an oversight or omission in order to effect the court's original intention. Musca v. Chagrin Falls (1981), 3 Ohio App. 3d 192; Breen v. Cassese (January 9, 1992), Cuyahoga App. No. 62154, unreported. Civ. R. 60(A) does not permit the court to make a different or supplemental legal decision without a motion, notice or hearing. Musca, supra, at 194. Dentsply Internat'l, Inc. v. Kostas, supra, at 118; accord Davis v. Davis (1988), 55 Ohio App. 3d 196, 201. The basic distinction between clerical mistakes that can be corrected under Civ. R. 60(A) and substantive mistakes that cannot be corrected is that the former consists of "blunders in execution" whereas the latter consists of instances where the court changes its mind, either because it made a legal or factual mistake in making its original determination, or, because, on second thought, it has decided to exercise its discretion in a different manner. (Emphasis added.) - 12 - Kuehn v. Kuehn (1988), 55 Ohio App. 3d 245, paragraph three of the syllabus. It is axiomatic that a court has the power to correct a clerical error pursuant to Civ. R. 60(A). However, this rule is applied to inadvertent clerical errors only, Cale Products, Inc. v. Orrville Bronze & Alum. Co. (1982), 8 Ohio App. 3d 375, 378, fn. 1, and cannot be used to change something which was deliberately done, Security Mut. Cas. Co. v. Century Cas. Co. (C.A. 10, 1980), 621 F.2d 1062, 1065. Dentsply Internat'l., Inc. v. Kostas, supra, at 118. In the case sub judice, it is obvious that in its order of June 12, 1990, the intention of the trial court was to terminate the action. Therefore, it was a final judgment as of that date. Jurisdiction of a court cannot be altered by a subsequent journal entry. The judgment entry of June 16, 1989 was thus merely a redundancy, not a "clerical error;" the judgment entry of June 12, 1989 is controlling. William Cherry Trust v. Hofmann, supra. Invocation of Civ. R. 60(A) thus gains plaintiff nothing. Accordingly, plaintiff's second assignment of error is overruled. Plaintiff's third assignment of error follows: DID THE COURT ERR IN DENYING THE MOTION TO VACATE THE ORDER OF DISMISSAL FILED BY APPELLANT? This assignment of error also lacks merit. It can be gleaned that as to this assignment of error plaintiff argues his "motion to vacate" the trial court's September 11, 1990 order of dismissal was improperly overruled. - 13 - He apparently contends this motion was filed pursuant to Civ. R. 60(B) and should have been granted. Plaintiff filed his notice of appeal to this court on October 10, 1990. At that point, the trial court lost jurisdiction of the case. If after entering a final judgment, a timely notice of appeal is filed the trial court does not have authority to act on a motion to reconsider its action or to grant relief from judgment under Civil Rule 60(B) during the pendency of the appeal. Vavrina v. Greczanik (1974), 40 Ohio App. 2d 129. See also, Dempsey v. Chicago Title Ins. Co. (1985), 20 Ohio App. 3d 90. The plaintiff filed his "motion to vacate the order of dismissal" on October 16, 1990, six days after filing the notice of appeal and six days after the trial court lost jurisdiction. Thus, the trial court had no jurisdiction to entertain plaintiff's motion and, therefore, any rulings the trial court made in the case sub judice subsequent to October 10, 1990 were null and void. Accordingly, plaintiff's final assignment of error is also overruled and the judgment of the trial court dismissing plaintiff's complaint is affirmed. - 14 - It is ordered that appellee(s) recover of appellant(s) costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J., and ANN McMANAMON, J., CONCUR JUDGE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .