COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67909 LEE P. HIGGINBOTTOM : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION REHOBOTH TEMPLE CHURCH OF : GOD IN CHRIST : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION SEPTEMBER 14, 1995 CHARACTER OF PROCEEDING Civil appeal from Cleveland Municipal Court Case No. 94-CVE-2700 JUDGMENT Reversed and remanded. DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: EDWIN V. HARGATE, ESQ. IRVING S. BERGRIN, ESQ. RONALD SUSTER, ESQ. 950 Leader Building 18519 Underwood Avenue 526 Superior Avenue, E. Cleveland, Ohio 44119 Cleveland, Ohio 44114 - 2 - JAMES M. PORTER, J., Plaintiff-appellant Lee P. Higginbottom appeals from the dismissal of his action for eviction and rent entered by the Cleveland Municipal Court, Housing Division, in favor of defendant- appellee Rehoboth Temple Church of God in Christ. Plaintiff claims the Housing Court erred in finding that the complaint was beyond its subject matter jurisdiction and in vacating a denial of the motion to dismiss by nunc pro tunc entry. We find merit to the appeal and reverse for the reasons hereinafter set forth. This case arose out of a written lease agreement with option to purchase dated May 10, 1990, for the property located at 13324 Casper Road in Cleveland. On February 3, 1994, plaintiff filed an action in the Housing Court for eviction and for past due rent. Defendant failed to answer or otherwise plead. Defendant also failed to appear at the eviction hearing held on June 2, 1994. An eviction order was granted and no appeal was taken. On June 10, 1994, defendant moved to stay and vacate the eviction judgment. The trial court granted a stay pending a decision on the motion to vacate. A hearing on the motion to vacate was held on June 23, 1994, at which time the parties argued their respective positions. Defendant argued that the lease was between the plaintiff and three individuals, to wit: Joseph Whitthorne, Sr., Arthur Whitthorne and Marlene Williams; that the defendant church was a - 3 - fictional entity and not a legally formed entity; that a forcible entry and detainer action must be brought by the landlord against the tenants obliged by the rental agreement. Plaintiff argued that pursuant to the Lease, the "agreement is to apply to and hold Rehoboth Church of God in Christ equally responsible with the above signed principals"; that Whitthorne, a named lessee, was properly served; that the claimed defenses, including failure to join indispensable parties (i.e., other tenants) were waived by failure to move or plead or appear at the hearing or appeal the court's eviction decision. Defendant also argued at the hearing to vacate that plaintiff had failed to fulfill his Lease obligations to repair the roof, install gutters and repair the main doors. The premises also went into foreclosure proceedings for plaintiff's failure to pay real estate taxes. Plaintiff argued that defendant had not paid any rent for over two years; the foreclosure entry for unpaid real estate taxes resulted from the defendant's failure to pay rent; and that all foreclosure notices had been sent to the premises occupied by defendants and not forwarded to plaintiff. Defendant also moved orally to dismiss the complaint on the grounds that the Housing Court lacked subject matter (monetary) jurisdiction since damages of more than $12,000 were due at the time of the hearing. Plaintiff's complaint did not seek relief beyond the maximum statutory amount. Plaintiff argues that the subject matter jurisdiction of the court had not been exceeded. - 4 - On June 27, 1994, the court denied defendant's motion to consolidate and remove the proceedings to the Court of Common Pleas. Although the court mentioned defendant's motion to dismiss, it did not indicate whether the motion was denied or granted. No appeal was taken. However, on August 12, 1994, the Housing Court entered a nunc pro tunc entry granting the motion to dismiss. A timely notice of appeal was filed herein. Plaintiff's assignments of error will be considered together as they are interrelated and all address whether the trial court properly granted defendant's motion to dismiss. I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING APPELLEES [SIC] MOTION TO DISMISS WHEN THE RELIEF REQUESTED IN THE COMPLAINT OF THE APPELLANT WAS CLEARLY NOT BEYOND THE SUBJECT MATTER JURISDICTION OF THE CLEVELAND MUNICIPAL COURT; AND ANY LACK OF SUBJECT MATTER JURISDICTION WAS WAIVED BY THE APPELLEES BY THEIR FAILURE TO OBJECT TO IT PRIOR TO TRIAL AND ENTRY OF FINAL JUDGMENT. II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING APPELLEES' MOTION TO DISMISS SINCE THE TRIAL COURT DID NOT HAVE JURISDICTION TO VACATE A FINAL JUDGMENT ON ISSUES WHICH HAD BEEN ADJUDICATED AND A DISAPPOINTED LITIGANT MUST CHALLENGE CLAIMED ERRORS IN A TIMELY APPEAL; AND SINCE THE TRIAL COURT HAD JURISDICTION TO DECIDE ITS OWN JURISDICTION, ANY JUDGMENT IT RENDERS IS NOT VOID AT ALL, BUT IS AT MOST ERRONEOUS AND REVERSIBLE UPON APPEAL ONLY; AND SINCE THE RECORD SHOWED JURISDICTION BY ALLEGATIONS IN THE APPELLANT'S COMPLAINT AS TO JURISDICTIONAL FACTS, THE "BOOTSTRAP" DOCTRINE PRECLUDED JURISDICTIONAL ATTACK BY THE APPELLEES AFTER THE FINAL JUDGMENT. - 5 - III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ISSUING A NUNC PRO TUNC ENTRY ON AUGUST 12, 1994 GRANTING DEFENDANTS-APPELLEES [SIC] MOTION TO DISMISS REVERSING THE ENTRY OF JUNE 27, 1994 DENYING SUCH MOTION; AND THE ISSUANCE OF SUCH ENTRY DEPRIVED APPELLANT OF HIS RIGHTS ACCORDED HIM BY THE PREVIOUS ENTRIES AND DID NOT MAKE THOSE ORDERS ANY LESS FINAL; AND THE TRIAL COURT HAD NO AUTHORITY TO VACATE ITS FINAL ENTRY SUA SPONTE AND THE ISSUANCE OF SUCH ENTRY WAS DONE WITHOUT NOTICE AND AN OPPORTUNITY TO BE HEARD. IV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ISSUING A NUNC PRO TUNC ENTRY ON AUGUST 12, 1994 WITHOUT CLEAR AND CONVINCING EVIDENCE THAT THIS DECISION OF GRANTING APPELLEES [SIC] MOTION TO DISMISS WAS IN FACT TAKEN EARLIER WITHOUT AFFIRMATIVELY SHOWING WHAT IT WAS INTENDED TO CORRECT, THE GROUNDS UPON WHICH THE COURT ACTED, WHETHER UPON ITS OWN RECOLLECTION, UPON MEMORANDA CONTAINED IN THE COURT RECORDS OR UPON EXTRANEOUS ORAL EVIDENCE. The pertinent sections of the Ohio Revised Code which provide for the jurisdiction of the municipal courts are as follows: R.C. 1901.17, monetary jurisdiction: A municipal court shall have original jurisdiction only in those cases where the amount claimed by any party, or the appraised value of the personal property sought to be recovered, does not exceed ten thousand dollars. Judgment may be rendered in excess of the jurisdictional amount, when the excess consists of interest, damages for the detention of personal property, or costs accrued after the commencement of the action. R.C. 1901.18, jurisdiction of subject matter: [S]ubject to the monetary jurisdiction of municipal courts as set forth in section 1901.17 of the Revised Code, a municipal court has original jurisdiction within its territory: - 6 - * * * (3) In any action at law based on contract, to determine, preserve, and enforce all legal and equitable rights, involved in the contract, to decree an accounting, reformation, or cancellation of the contact and to hear and determine all legal and equitable remedies necessary or proper for a complete determination of the rights of the parties to the contract. R.C. 1901.181, exclusive jurisdiction of housing division: (A)(1) *** and subject to section 1901.17 of the Revised Code and to division (C) of this section, if a municipal court has a housing or environmental division, the division has exclusive jurisdiction within the territory of the court in any *** civil action commenced pursuant to Chapter 1923 (Forcible Entry and Detainer) ***. From these statutes it is evident that the Housing Court has exclusive jurisdiction of forcible entry and detainer actions in the City of Cleveland and monetary jurisdiction of contract (rent) claims up to $10,000. State, ex rel. McGraw v. Gorman (1985), 17 Ohio St.3d 147; Behrle v. Beam (1983), 6 Ohio St.3d 41, 44. As stated in State, ex rel. J.K. & E. Auto Wrecking v. Trumbo (1992), 64 Ohio St.3d 73, 76: [Under R.C. 1901.181(A), former 1901.131, and 1923.081] a municipal court's housing division has exclusive jurisdiction over forcible entry and detainer actions, wherein a plaintiff may include damage claims arising from a lease transaction, and the housing division has full power to render a complete determination of the rights of the parties. Consequently, the Cleveland Municipal Court, Housing Division, has exclusive jurisdiction over the dispute - 7 - between the parties and the claims arising from it. Plaintiff's complaint against defendant is a forcible entry and detainer action under R.C. 1923 and did not exceed $10,000. As of the date the complaint was filed, plaintiff was due one year and seven months of rent at $500/month. Therefore, the amount of rent due was $10,000. Although the rent continued to accrue until the hearing, pursuant to R.C. 1901.17, amounts accrued after the commencement of the action do not affect the court's jurisdiction. Furthermore, although plaintiff in his complaint also asked for $250.00 for each of the three benches and $13.00 for each of the 32 chairs, totalling an amount of $1,166, this amount does not affect the court's jurisdiction. Pursuant to R.C. 1901.17 "when the excess consists of *** damages for the detention of personal property" then "judgment may be rendered in excess of the jurisdictional amount." Since plaintiff is seeking damages from claims arising from a lease transaction, the housing division had full power to render a complete determination of the rights of the parties. Since we find that the trial court had subject matter jurisdiction, it is not necessary to address plaintiff's further arguments dealing with waiver. They are moot. App. R. 12(A)(1)(c). Plaintiff also argues that the Housing Court committed reversible error in changing its denial of defendant's motion to dismiss to a granting of the motion to dismiss by a nunc pro tunc entry journalized August 22, 1994. Plaintiff argues that the court - 8 - could not use a nunc pro tunc entry to change its decision, as it was a final order. This argument has no merit. As stated by this Court in Dentsply International, Inc. v. Kostas (1985), 26 Ohio App.3d 116,118 held, "It is axiomatic that a court has the power to correct a clerical error pursuant to Civ. R. 60(A)." Civ. R. 60(A) provides in pertinent part as follows: (A) Clerical Mistakes. 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 ***. (Emphasis added.) In Kuehn v. Kuehn (1988), 55 Ohio App.3d 245, 247 the court stated: 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. The court in the case herein, corrected a "blunder in execution" as the June 27, 1994 judgment entry did not state whether the defendant's motion to dismiss was granted or denied. The judgment entry reads as follows: The Motion to Consolidate and Remove Proceedings is denied. The Motion to Dismiss on the Grounds that this Court Lacks Jurisdiction of the Subject Matter according to the complaint filed on February 2, 1994, damages of more than Twelve Thousand - 9 - Dollars ($12,000) were due at the date of the hearing of the first Cause of Action in this matter. Each party is to bear their own costs. IT IS SO ORDERED. The court made no ruling whether the motion to dismiss was denied or granted. In its nunc pro tunc order journalized on August 22, 1994, the court corrected this omission by stating the motion was granted. The order stated as follows: For good cause shown, Journal Entry of 6-27-94 is vacated. The following nunc pro tunc entry is made effective that date: (A) Defendant's motion to consolidate and remove proceedings is denied. (B) Defendant's motion to dismiss complaint on ground that court lacks monetary jurisdiction is granted. Consequently, the trial court acted within its power in ordering the nunc pro tunc entry to reflect its ruling on the defendant's motion to dismiss. The entry is not a modification of an erroneous judgment, but rather supplies an omission of a clerical nature. However, since we find that the court had subject matter jurisdiction as set forth herein, we reverse and remand the case for further proceedings consistent with this opinion. Judgment granting motion to dismiss reversed and remanded. - 10 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein taxed. It is ordered that a special mandate be sent to the Cleveland Municipal 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. PATTON, C.J., and KARPINSKI, J., CONCUR. JAMES M. PORTER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which .