COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67940 : CHRISTINE WELLS : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION SPIRIT FABRICATING LTD., ET AL. : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 7, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-170803 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: WILLIAM A. CARLIN, ESQ. WILLIAM P. FARRALL, ESQ. PAUL E. CARPENTER, ESQ. ANDREW J. DORMAN, ESQ. Carlin & Carlin Reminger & Reminger 29425 Chagrin Boulevard The 113 St. Clair Bldg. Suite 305 Suite 700 Pepper Pike, Ohio 44122 Cleveland, Ohio 44114 - 2 - KARPINSKI, J.: Defendant-appellant Spirit Fabricating Ltd. ("Spirit") appeals from an agreed judgment entry in favor of plaintiff- appellee Christine Wells. Plaintiffs Christine Wells and Paul Marzola commenced this personal injury action by filing a complaint in the trial court against Robert Puleo on June 6, 1989. The complaint arose out of an automobile collision one year earlier on June 7, 1988, when the automobile occupied by plaintiffs was "rear-ended" by a vehicle driven by Puleo. Plaintiffs subsequently filed an amended complaint adding Puleo's employer, Spirit, as an additional defendant. The case against Puleo was thereafter settled and dismissed with prejudice. Wells and Spirit thereafter filed cross-motions for summary judgment concerning the vicarious liability of Spirit for the alleged negligence of its employee Puleo. Spirit's motion for summary judgment argued that it was not liable because (1) the settlement with Puleo exonerated Spirit as his employer, and (2) Puleo was not acting within the scope of his employment when the collision occurred. Wells' motion for summary judgment argued Spirit was liable under the doctrine of respondeat superior since the accident occurred while Puleo was driving to a medical facility following a workplace injury. The trial court denied the parties' cross-motions for summary judgment in an order journalized December 18, 1990. - 3 - The record demonstrates the matter thereafter proceeded to a jury trial on May 7, 1991, on only the issue of Spirit's vicarious liability for Puleo's conduct. The transcript of proceedings indicates the jury returned a verdict in favor of Wells and found in a special interrogatory that Puleo was acting within the scope of his employment at Spirit when the collision occurred. The record demonstrates the trial court did not record or enter judgment on the jury verdict and the case did not proceed further for approximately twenty-seven months. Without ever entering a journal entry on the prior trial and without even clarifying the scope of the issues, the court scheduled another trial, which was continued several times in 1994. The parties entered into the following agreed judgment entry, journalized by the trial court on August 30, 1994: It is hereby agreed between the parties that Judgment is rendered in favor of Christine Wells and against Spirit Fabricating Ltd. in the amount of Two Hundred Fifty Thousand Dollars ($250,000). The agreed journal entry did not resolve the claims of co- plaintiff Marzola. Spirit filed a notice of appeal from the agreed judgment entry on September 23, 1994. This court of appeals dismissed the appeal for lack of a final appealable order since the agreed judgment entry did not expressly resolve all claims and parties. This court reinstated the appeal after the parties submitted the following nunc pro tunc agreed judgment entry, journalized March 20, 1995, dismissing the claims of Marzola with prejudice as follows: - 4 - It is agreed by the parties that the claim of Plaintiff, Paul Marzola, as raised in Count III, of the Third Amended Complaint, is dismissed with prejudice. It is also hereby agreed between the parties that judgment is rendered in favor of Christine Wells only against Spirit Fabricating, Ltd. in the amount of Two Hundred Fifty Thousand Dollars ($250,000). Spirit's brief on appeal raises the following three assignments of error to challenge the agreed judgment entries: THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S MOTION FOR SUMMARY JUDGMENT BECAUSE THE RELEASE SIGNED BY THE PLAINTIFFS-APPELLEES WITH MR. PULEO BARRED ANY CLAIM AGAINST DEFENDANT-APPELLANT SPIRIT FABRICATING LTD. THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT- APPELLANT'S MOTION FOR A DIRECTED VERDICT BECAUSE AS A MATTER OF LAW MR. PULEO WAS NOT WITHIN THE SCOPE AND COURSE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON AGENCY LAW. Spirit's three assignments of error lack merit. Spirit argues the trial court (1) improperly denied its motion for summary judgment since Spirit was exonerated from any vicarious liability by the settlement with Puleo; (2) erroneously denied its motions for summary judgment and for a directed verdict under principles of respondeat superior liability, and (3) improperly instructed the jury concerning the scope of Puleo's employment. It is axiomatic, however, that a party may not appeal a judgment to which it has agreed. Jackson v. Jackson (1865), 16 Ohio St. 163, syllabus paragraph one; In re Annexation of Riveredge Twp. to Fairview Park (1988), 46 Ohio App.3d 29, 31- 32; Madorsky v. Madorsky (Sept. 27, 1990), Cuyahoga App. No. - 5 - 57517, unreported at p. 2. The record in this case unambiguously demonstrates the parties agreed to the entry of judgment in favor of Wells in the amount of $250,000. The agreed judgment entries do not, by their own terms, preserve Spirit's right to an appeal or purport to resolve only the issue of damages subject to appeal. The Ohio Supreme Court in Jackson rejected a similar attempt to challenge a pre-judgment ruling of the trial court and circumvent an agreed judgment entry, stating as follows: The record shows that the judgment was based, not upon the finding or holding of the court, but upon the 'consent of the parties.' It is immaterial what induced the parties to consent to the judgment; it was sufficient that the consent was given. The jurisdiction and authority of a court to render such judgment in the case is not questioned. Whatever other errors the court may have committed, there surely was none in rendering such final judgment as the parties consented to have entered in the case; and if it be substantially decisive of the case, whatever its form may be it is conclusive between them, and will not be reversed on error. Id. at 166. Under the circumstances, Spirit cannot demonstrate prejudicial error, since Spirit agreed to the August 30, 1994, and March 20, 1995, journal entries entering judgment in favor of Wells. Defendant's attempt to change this conclusion, by belatedly filing additional documents concerning the parties' agreement, is unavailing. Defendant's motion to supplement the record instanter, filed after oral argument and submission of the appeal for decision, sought to file a third journal entry of the trial court concerning the agreed judgment. The trial court's third - 6 - judgment entry, journalized on May 23, 1995, the day following oral argument on appeal, purported to "clarify" nunc pro tunc the trial court's original August 30, 1994, entry. This court of appeals denied defendant's motion to supplement the record by separate journal entry. It should be noted, contrary to defendant's argument, that the additional documents would not change the result of this appeal. Trial courts speak only through journal entries, such as the trial court's August 30, 1994, and March 20, 1995, agreed judgment entries in this case. During the pendency of this appeal, however, the trial court lacked jurisdiction to journalize its subsequent May 23, 1995, entry. At this point, the proper procedure to clarify an entry is to file a motion for relief from the prior agreed judgment entries. Accordingly, Spirit's three assignments of error are overruled. Judgment affirmed. - 7 - It is ordered that appellee recover of appellant her 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. PATTON, C.J., CONCURS; BLACKMON, J., DISSENTS (See Dissenting Opinion.) DIANE KARPINSKI 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 time it will become the judgment and order of the court and the time period for review will begin to run. - 8 - COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67940 : CHRISTINE WELLS : : Plaintiff-Appellee : : DISSENTING -vs- : : OPINION : SPIRIT FABRICATING, ET AL. : : Defendant-Appellant : : DATE: SEPTEMBER 7, 1995 PATRICIA ANN BLACKMON, J., DISSENTING: Because I believe the merits of Spirit's appeal should have been addressed by this court, I respectfully dissent from the decision of the majority. The majority finds that Spirit "agreed to the judgment in favor of Wells in the amount of $250,000." They further conclude that, under the agreed judgment entry, Spirit's right to appeal the judgment was not preserved. I disagree. The record reveals that the trial court bifurcated the case and decided to resolve separately the issues of liability and damages. Although the record contains no journal entry of the jury verdict in this case, a review of the transcript from May 8, -2- 1991 reveals that the jury issued a general verdict in favor of Wells on the issue of liability. The case went forward on the issue of damages. On August 30, 1994, the parties signed an agreed judgment entry on the issue of damages. Clearly, the entry cannot be construed to represent a settlement with respect to liability because that issue had already been resolved by the jury. Unlike the Jackson case cited by the majority, the judgment with respect to liability was issued not by agreement of the parties, but by a jury. In addition, if the August 30, 1994 agreed judgment entry had been intended to settle the issue of liability, Wells would have moved to dismiss the appeal based upon the agreement. In evaluating the August 30, 1994 journal entry, the majority points out that the agreed judgment entry does not "preserve Spirit's right to an appeal or purport to resolve only the issue of damages subject to appeal." I am cognizant of the rule that a court speaks only through its journal entry. However, since the intent of the parties is clear from other evidence in the record in this case, the majority's strict application of the rule produces an unjust result. I am convinced that the majority's decision is unjust because, after oral argument before this court, both parties approved a May 23, 1995 nunc pro tunc journal entry which clarified the agreed judgment entry of August 30, 1994. The entry read as follows: -3- By entering into this judgment entry, it is specifically understood by all the parties that the liability issues of whether Mr. Puleo was acting within the scope and course of his employment at the time of the subject motor vehicle accident, and whether the release of Mr. Puleo necessarily released Defendant-Appellant are preserved for appeal. This judgment entry is for clarification only. (Emphasis added.) The May 23, 1995 journal entry further evidences the understanding between the parties that Spirit agreed to the amount of damages but did not concede the issues of liability. In light of the parties' clear intent to preserve liability issues for appeal, I would have proceeded to address the merits .