COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68373 MERCANTILE SAVINGS BANK, : ET AL. : : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION G & M BOLIVAR ASSOCIATES, : ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 14, 1995 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CV-106316 JUDGMENT: Reversed and Vacated. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant For Defendants-Appellees: Federal Deposit Ins. Co. : WILLIAM F. SNYDER, ESQ. FRANK A. DiPIERO, ESQ. LAURENCE R. SNYDER, ESQ. JILL G. OKUN, ESQ. SNYDER ASSOCIATES BRENDA M. JOHNSON, ESQ. One Erieview Plaza, Suite 450 SQUIRE, SANDERS & DEMPSEY Cleveland, Ohio 44114 4900 Society Center 127 Public Square Cleveland, Ohio 44114-1304 - 2 - DYKE, J.: Appellant Federal Deposit Insurance Company ("FDIC") appeals from the entry of a nunc pro tunc order issued by the trial court on December 6, 1994. The entry purports to clarify a prior order, filed September 21, 1989. The September 1989 order found G & M Bolivar Associates liable to Mercantile Savings Bank and the Federal Savings and Loan Insurance Corporation ("FSLIC") on a note in the amount of $1,600,000. That order also released the individually named defendants, Robert L. Miller, Linette C. Miller, Wayne A. Gerl and Susan G. Gerl, from their obligations on the note due to fraud perpetrated by an officer of the predecessor in interest to Mercantile Savings Bank. The Gerls and the Millers are partners in G & M Bolivar Associates. An appeal was never taken from the September 1989 order. The FDIC undertook proceedings to collect on the judgment against G & M Bolivar and against the Millers and Gerls as the partners. The Millers filed a motion with the trial court requesting a nunc pro tunc order to clarify the earlier order's meaning with regard to their liability on the note. The trial court executed the nunc pro tunc order stating that the Millers and Gerls were released from liability "whether as individuals or as partners in G & M Bolivar Associates." (December 6, 1994 Journal Entry). Appellant appeals from this order, asserting three interrelated assignments of error. - 3 - I THE TRIAL COURT ERRED IN ENTERING ITS JOURNAL ENTRY OF DECEMBER 6, 1994, WHICH PURPORTS TO RELIEVE MEMBERS OF A PARTNERSHIP OF THEIR STATUTORY LIABILITY FOR A JUDGMENT AGAINST THE PARTNERSHIP. II THE TRIAL COURT ERRED IN ENTERING A JOURNAL ENTRY NUNC PRO TUNC THAT SUBSTANTIVELY MODIFIES ITS EARLIER JOURNAL ENTRY OF SEPTEMBER 21, 1989. III THE TRIAL COURT COMMITTED PLAIN ERROR BY ENTERING ITS JOURNAL ENTRY OF DECEMBER 6, 1994, AS THE JOURNAL ENTRY IS ERRONEOUS ON ITS FACE, PREJUDICIAL TO APPELLANT- DEFENDANT, AND CONTRARY TO PUBLIC POLICY. Appellant argues that the trial court had no authority to issue a nunc pro tunc order which substantively changes the rights and liabilities of the parties. Appellant's argument is well taken. We find that the subsequent order improperly modifies the original journal entry and is prejudicial to appellant. It is inappropriate for a trial court to enter a nunc pro tunc order modifying its prior judgment entry, as the purpose of such an order is restricted to placing upon the record evidence of judicial action which was actually taken, i.e., supplying omissions in the judgment entry or correcting clerical errors. McKay v. McKay (1985), 24 Ohio App.3d 74, at the syllabus. Appellees argue that the subsequent entry is a clarification, not a modification, of the original order. We find that the original entry is clear as to the obligations of the parties and that no omissions needed to be supplied nor clerical errors corrected. Under the September 1989 order, the individually named defendants were released from liability. This prevented the FDIC - 4 - from suing the Millers or Gerls in their individual capacity for the entire sum of the note plus interest, under a theory of joint and several liability. Pursuant to the law of partnerships in Ohio, the original order entitled the FDIC to recovery from G & M Bolivar Associates and, after the partnership's assets were depleted, from the Millers and Gerls in their capacity as partners of G & M Bolivar Associates, under a theory of joint liability. The Ohio Supreme Court recently set forth the law regarding partnership liability: At common law, as well as pursuant to R.C. 1775.14(B), general partners are jointly liable, rather than jointly and severally liable, for partnership contractual debts in the absence of an agreement among themselves to the contrary. Wayne Smith Constr. Co., Inc. v. Wolman, Duberstein & Thompson (1992), 65 Ohio St.3d 383, paragraph two of the syllabus. The language used by the court in Wayne Smith Constr. Co., Inc. is similar to the language used in the original order in the present case. The contractual dispute in Wayne Smith Constr. Co., Inc. took place in South Carolina, thus the order was issued by a court in that jurisdiction. The order held the partnership of Wolman, Duberstein & Thompson liable, but did not hold the partners individually liable. Wayne Smith Constr. Co., Inc. began proceedings in Ohio to collect from the Ohio partnership. The Franklin County Court of Appeals affirmed the trial court's judgment, holding that "Smith Construction is entitled to execute on the assets of the individual partners in Ohio once partnership - 5 - assets have been exhausted and the judgment remains unsatisfied." Wayne Smith Constr. Co., Inc. v. Wolman, Duberstein & Thompson (1992), 65 Ohio St.3d at 385. The Ohio Supreme Court then examined the law of partnerships in South Carolina, which is analogous to that in Ohio, and determined that: Appellants' argument that the South Carolina Court of Appeals decision should be construed in Ohio as precluding execution on the partnership debt against the property of the individual partners is clearly inconsistent with the well-established precedent from that jurisdiction. We will not interpret that court's decision as an attempt to "overrule" law handed down by South Carolina's high court for over a century. Nor will we presume an intent on its part to hold contrary to legislative enactments. Wayne Smith Constr. Co., Inc. v. Wolman, Duberstein & Thompson (1992), 65 Ohio St.3d at 386-87. In the present case we agree with the Ohio Supreme Court's analysis of the language in the original order. The ruling is clear in that it releases the Millers and Gerls from individual liability, but not from partnership liability. The subsequent nunc pro tunc order eliminates the joint partnership liability which existed in the original order. It is therefore a substantive change and impermissible. The appellees assert repeatedly in their appellate brief that G & M Bolivar Associates can not be held liable on the note because the partnership did not sign on the note. This assertion raises a problem with the original order, which explicitly finds G & M Bolivar Associates liable on the note, which could only have been - 6 - raised by a timely appeal from the September 1989 order. We therefore are precluded from even considering this issue. Appellant's assignments of error are sustained. The trial court's nunc pro tunc entry is hereby reversed and vacated. - 7 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) its costs herein. It is ordered that a special mandate be sent to said 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. BLACKMON, P.J., AND HARPER, J., CONCUR ANN DYKE JUDGE 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 journalization, .