COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69563 VERSIE SIMS : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : : OPINION JOYCE MANUFACTURING CO. : : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: APRIL 25, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-255380. JUDGMENT: DISMISSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: Donald Scherzer, Esq. Sarah Gabinet, Esq. One Cleveland Center, 20th Floor Cleveland, Ohio 44114 For Defendant-appellee: Thomas Schrader, Esq. Tyler Mathews, Esq. McDonald, Hopkins, Burke & Haber 2100 Bank One Center 600 Superior Avenue Cleveland, Ohio 44114 - 3 - SWEENEY, JAMES D., J.: Plaintiff-appellant Versie Sims ("Sims") appeals from the trial court's granting of defendant-appellee Joyce Mfg. Co.'s ("Joyce") motion for directed verdict on Count One of the complaint and the trial court's exclusion at trial of testimony from a certain witness. Prior to addressing the merits of the appeal, we must dispose of Joyce's motion to dismiss the notice of appeal, which challenges the jurisdiction of this court on two grounds, namely: (1) that the appeal is untimely pursuant to the expiration of the thirty- day filing period contained in App.R. 4(A); and, (2) the order appealed from is a nullity. For the reasons adduced below, we grant Joyce's motion to dismiss. A review of the record on appeal indicates that Sims had been employed by Joyce as an office manager and her employment was terminated in June of 1993. On July 19, 1993, Sims filed a five- 1 count wrongful discharge action against Joyce. Following discovery and the denial of Joyce's motion for summary judgment, the case proceeded to a jury trial commencing testimony on March 20, 1995. On March 22, 1995, Sims completed her case-in-chief and 1 Count One alleged that she was wrongfully discharged because she had allegedly refused to testify falsely at a deposition involving Joyce and one of Joyce's material suppliers in an unrelated action. Count Two alleged that she was wrongfully terminated on the basis of her age. Count Three alleged handicap discrimination. Counts Four and Five alleged a violation of Ohio's public policy discouraging employment termination on the basis of age or handicap. - 4 - rested. Joyce moved for a directed verdict on all counts. After entertaining oral argument from the parties, the trial court announced in open court that the motion for directed verdict was granted only as to the first count and overruled as to the remaining counts in the complaint. This ruling from the bench, granting a partial directed verdict, was never reduced to writing and journalized. Following this announcement from the bench and after a short recess, the parties entered into a stipulation for dismissal and judgment entry. The stipulation was memorialized on March 22, 1995, by the completion of a preprinted court form, containing the signatures of the trial judge and counsel, which stated in pertinent part the following: We, the attorneys for the respective parties, do hereby stipulate and agree that the case is settled and dismissed with prejudice at Defendant's costs ***. (Emphasis added.) Journal Vol. 1833, page 174, journalized March 23, 1995. Also on March 22, 1995, the trial court prepared a half-sheet status form entry for the case, checked the box indicated on the form for a final order, and wrote the following language in the space provided: On trial. Settled and dismissed w/prejudice at deft's costs. 2 Journal Vol. 1833, page 173, journalized March 23, 1995. 2 The record indicates that court costs were taxed and paid by Joyce on May 1, 1995. - 5 - Once these dismissal orders were journalized on March 23, 1995, they were final and appealable orders, R.C. 2505.02, 3 commencing the thirty-day appeal time. Thereafter, on a date which is not certain, counsel for Sims hand delivered a letter, dated June 20, 1995, to the trial judge with a copy to opposing counsel. In this letter, Sims expressed concern with the terms of the settlement release language, refused to sign the release as written thereby hobbling the full execution of the settlement, and requested a conference with the court with counsel present to resolve the impasse: for practical purposes, the letter, although not titled as such, was a motion to enforce the settlement. Note, this letter contains no filing date and does not appear on the court's journal as having been filed with the clerk 4 of court. 3 The App.R. 4(A) time requirements are jurisdictional. Donofrio v. Amerisure Ins. Co. (Cuyahoga, 1990), 67 Ohio App.3d 272. 4 Civ.R. 5(D) provides that "[A]ll papers, after the complaint, required to be served on a party shall be filed with the court within three days after service, ..." After contemplating the language of Civ.R. 5(D), the question which must be answered is whether the letter at issue, as a "paper," was "required to be served on a party," keeping in mind that the letter was essentially a motion to enforce the settlement. The answer to this question is in the affirmative on the basis of the language contained in Civ.R. 5(A), which provides in pertinent part as follows: (A) Service: When Required. Except as otherwise provided in these rules, ... every written motion other than one which may be heard ex parte, and every other written notice, appearance, demand, offer of judgment, and similar paper shall be served - 6 - By letter dated June 21, 1995, which was mailed to the trial judge and opposing counsel, counsel for Joyce responded to Sims' letter. In this response, Joyce objected to the requested intervention of the court and some of the assertions made in Sims' letter, and insisted that the settlement release be executed as written so that the settlement funds could be distributed to Sims. Attached to this response were copies of letters to opposing counsel, made during the attempt to have the settlement release executed by Sims, and a copy of the proposed settlement release. As was the case with Sims' letter, this response letter contains no filing date and does not appear on the court's journal as having been filed with the clerk of court. See fn. 4, supra. On July 25, 1995, despite lacking the proper invocation of 5 jurisdiction over the case at this time, the trial judge conducted upon each of the parties. ***. Civ.R. 5(E) provides the method for filing "papers" with the court: (E) Filing With the Court Defined. The filing of pleadings and other papers with the court, as required by these rules, shall be made by filing them with the clerk of court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note the filing date on the papers and forthwith transmit them to the office of the clerk. ***. (Emphasis added.) 5 The court lacked jurisdiction because at the time the parties filed their letters, there was no case or controversy before the court, the case having been dismissed with prejudice on March 23, 1995. Since the parties' letters were not properly filed with the court, see fn. 4, supra, the court's jurisdiction - 7 - a hearing on the letter and its response and effectively reinstated the case to the active docket. The half-sheet status form order which resulted from this hearing provided: Hearing had to enforce settlement. Cannot be resolved. Set for trial Sept. 1, 1995 9:00 a.m. No continuance. 6 Journal Vol. 1872, page 901, journalized July 28, 1995. The court's journal reflects that on September 1, 1995, Sims filed a motion to enforce settlement or in the alternative to vacate judgment of dismissal, but this motion is not contained in 7 the record on appeal. Also on September 1, 1995, the court issued three separate half-sheet status form entries, one of which was ordered nunc pro tunc. The first ordered the following: It is ordered that Defendant's motion for a directed verdict is granted as to Count 1. It is further ordered that Counts 2 and 3 are dismissed without prejudice. It is further ordered that this is a final appealable order as to Count 1, there being no just reason for delay pursuant to Ohio Civ.R. 54(B). Journal Vol. 1883, page 365, journalized September 5, 1995. The second ordered the following: was not properly invoked relative to the enforcement of the settlement. 6 Absent the proper invocation of its jurisdiction, this order is a void order. 7 The filing of this motion properly invoked the jurisdiction of the trial court on the enforcement of the settlement and dismissal. The failure of the court to allow a proper response time to expire before ruling on this motion is not raised as error within this appeal and will not be discussed. - 8 - Plaintiff's motion to enforce the judgment is denied. Journal Vol. 1883, page 366, journalized September 5, 1995. The third, which was noted as a nunc pro tunc entry as of and for March 23, 1995, ordered the following: It is ordered that the order of this court dated March 23, 1995 dismissing this action with prejudice at Defendant's cost is hereby vacated. Journal Vol. 1883, page 366, journalized September 5, 1995. The putative effect of these three orders from September 5, 1995 was: (1) to vacate, by the use of the nunc pro tunc order, the two March 23, 1995 settlement and dismissal with prejudice orders, which were final and appealable orders at the time of their earlier journalization; (2) to reinstate the case to the active docket; and, (3) to enter judgment on the partial directed verdict bench ruling of March 23, 1995 on Count One, thereby attempting to give the ruling on this count a fresh thirty-day appeal period. Sims filed her notice of appeal on September 15, 1995. The order appealed from is the first of the three orders journalized on September 5, 1995, namely, the order journalized at Journal Vol. 1883, page 365 and relating to the journalized ruling on the partial directed verdict. The two assignments of error presented by Sims attack only the partial directed verdict ruling in favor of Joyce on Count One; the first on the grounds that the court's ruling was contrary to law, the second on the grounds that had a witness's testimony not been excluded from evidence the ruling on - 9 - the motion for directed verdict on Count One would have been in favor of Sims. The question which must be answered at this point in our review is whether the September 5, 1995 nunc pro tunc order was a proper use of a nunc pro tunc entry, for without such a proper use, the case could not be reactivated to the pending docket and thereby be made subject to further orders. We note that, The function of a nunc pro tunc entry is to correct an omission in a prior journal entry so as to enter upon the record judicial action actually taken but erroneously omitted from the record. McKay v. McKay (1985), 24 Ohio App.3d 74, 75, 24 OBR 129, 129-130, 493 N.E.2d 317, 317-318. A nunc pro tunc judgment cannot be used to change a prior journal entry unless it did not reflect what was actually decided in court. State, ex rel. Cincinnati v. Schneider (1950), 89 Ohio App. 96, 45 O.O. 242, 100 N.E.2d 863, and Herman v. Ohio Finance Co. (1940), 66 Ohio App. 164, 166-167, 19 O.O. 444, 445, 32 N.E.2d 28, 30. Roth v. Roth (1989), 65 Ohio App.3d 768, 771. In the present case, the attempted use of the nunc pro tunc entry on the third order of September 5, 1995 was improper as the prior entry of March 23, 1995 reflected what was actually decided in court. There was no erroneous omission in the prior entry which could be corrected through this attempted use of a nunc pro tunc entry which alters the record by changing the substantive nature of the prior entry. Having concluded that the settlement should not be enforced, it is within the discretion of the trial court to vacate the settlement, presumably under a demonstration of Civ.R. 60(B) relief, and reinstate the case to the active docket for - 10 - resolution of the remainder of the case. However, this reinstatement does not vitiate the appellate time limits of what had been final and appealable orders, the law of the case, made prior to the vacation of judgment and whose appeal time had expired well before the subsequent vacation of the earlier settlement and dismissal. The trial court obviously recognized this issue when it, by a separate entry, entered the directed verdict ruling in an effort to transform the final nature of that earlier dismissal ruling with prejudice into an interlocutory order subject to further appeal. For purposes of this appeal, the appeal time for the ruling on the partial directed verdict commenced on March 23, 1995, the date it was vested with finality by virtue of the final orders entered by the court with prejudice. Notwithstanding the Civ.R. 54(B) certification, the entry of the partial directed verdict ruling on Count One on September 5, 1995, which is the order appealed from in this appeal, could not serve to fix a new date for an appeal. Rose v. Rose (1970), 23 Ohio App.2d 201. To hold otherwise would allow a trial court to resurrect a case following a final order of dismissal, breathe new life into it, and circumvent the law of the case and appellate jurisdiction over that law. Accordingly, the notice of appeal herein was not timely filed. Appeal dismissed. - 11 - It is ordered that appellee recover of appellant its costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. LEO M. SPELLACY, C.J., and JAMES M. PORTER, J., CONCUR. JAMES D. SWEENEY 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 .