COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71772 THE PRUDENTIAL INSURANCE : ACCELERATED DOCKET COMPANY OF AMERICA : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION CORPORATE CIRCLE, LTD., ET AL. : : PER CURIAM Defendants-appellees : : DATE OF ANNOUNCEMENT : OF DECISION : JUNE 5, 1997 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. 250945 JUDGMENT : Dismissed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANTS-APPELLEES: Bruce L. Ingram, Esq. Martin L. Karp, Esq. David J. Tocco, Esq. Stuart A. Laven, Esq. Vorys, Sater, Seymour & Pease Martin W. Elson, Esq. 52 East Gay Street Ulmer & Berne L.L.P. P.O. Box 1008 900 Bond Court Building Columbus, Ohio 43216-1008 1300 East Ninth Street Suite 900 Cleveland, Ohio 44114-1583 - 2 - PER CURIAM: In this accelerated appeal, plaintiff-appellant The Prudential Insurance Company of America ("Prudential") appeals from the trial court order which prevented it from executing on its judgment against certain "assets" of defendant-appellee Corporate Circle, Ltd. ("Corporate Circle"). Prudential asserts in its assignment of error that the trial court's order improperly limits its right to recover from Corporate Circle in contravention of this court's holding in Prudential Ins. Co. of Am. v. Corporate Circle, Ltd. (1995), 103 1 Ohio App.3d 93 ("Prudential I"). Prudential's assignment of error, however, since pursuant to 2 App.R. 4(A) its appeal is unti trial court issued its final judgment entry in this case on June 3, 1996. In that entry, the trial court granted Prudential's motion for summary judgment on the only remaining count of the complaint, which was the subject of Prudential's appeal in Prudential I. Thus, on June 3, 1996, the trial court ordered 1 A discretionary appeal to the Ohio Supreme Court was not allowed in (1995), 73 Ohio St.3d 1453. 2 App.R. 4(A) states: RULE 4. Appeal as of right - when taken (A) Time for appeal. A party shall file the notice of appeal required by App.R. 3 within thirty days of the later of entry of the judgment or order appealed or, in a civil case, service of the notice of judgment and its entry if service is not made on the party within the three day period in Rule 58(B) of the Ohio Rules of Civil Procedure. - 3 - judgment for Prudential in the amount of "Net Rents" collected by Corporate Circle. The trial court both defined in its order what constituted "Net Rents" and provided a formula by which they could be calculated. Included in the formula was the phrase Prudential challenges in this appeal. The trial court indicated in its judgment entry that there was "no just cause for delay" and that nothing contained in the judgment entry "shall limit either party's right to appeal all or any part of this judgment." The case was noted on the docket as having been "dismissed with prejudice." Subsequently, after an accounting by the parties, the trial court issued a journal entry on November 20, 1996, nunc pro tunc "as of and for 6/3/96." Therein, the trial court stated the June 3, 1996 judgment was "supplemented so that the judgment is entered nunc pro tunc in favor of [Prudential] against *** Corporate Circle, Ltd. for the total amount of 'Net Rents' (as therein defined) for $1,704,745.21, plus interest accrued ***." Prudential thereafter filed its notice of appeal from the foregoing November 20, 1996 nunc pro tunc judgment entry. ***The general rule is that a nunc pro tunc entry cannot operate to extend the period within which an appeal may be prosecuted, especially where the appeal grows out of the original order rather than the nunc pro tunc entry. See Perfection Stove Co. v. Sherer (1929), 120 Ohio St. 445. State v. Schinkle (1986), 27 Ohio App.3d 54. (Emphasis added.) The November 20, 1996 entry merely corrected an omission in the June 3, 1996 judgment entry, viz., the final amount of "Net Rents" due to Prudential after inserting the figures obtained - 4 - 3 from Therefore, it was a proper nunc pro tunc journal entry. Cf., Roth v. Roth (1989), 65 Ohio App.3d 768; McCabe/Marra Co. v. Dover (1995), 100 Ohio App.3d 139. The June 3, 1996 judgment entry determined the action and contained the appropriate language of Civ.R. 54(B), hence, it was a final appealable order. R.C. 2505.02; Chef Italiano Corp. v. Kent State University (1989), 44 Ohio St.3d 86. No substantive issues remained for the trial court to determine; moreover, the subsequent nunc pro tunc journal entry was one which determined no substantive issues. Webb v. The Western Reserve Bond & Share Co. (1926), 115 Ohio St. 247; cf., McKay v. McKay (1985), 24 Ohio App.3d 74. 3 Parenthetically, with regard to Prudential's assignment of error, this court is constrained to observe that there is nothing in the language of this court's opinion in Prudential I, the loan documents themselves, or the trial court's June 3, 1996 order which limits the definition of the term "Net Rents for the Applicable Period" to the interpretation later adopted by Corporate Circle, viz., only those net rents which remained undistributed to the partners of Corporate Circle. In view of this, Prudential has several avenues of recourse it may pursue in the trial court. It may file a motion for clarification of the June 3, 1996 order requesting the trial court to state its definitional intent with greater specificity, see, e.g., Northfield Park Associates v. Northeast Ohio Harness (1987), 36 Ohio App.3d 14. Alternatively, Prudential may seek an order to enforce the judgment pursuant to Civ.R. 70. Tessler v. Ayer (1995), 108 Ohio App.3d 47. Finally, Prudential may commence collection proceedings on the amount of the debt as stated in the trial court's nunc pro tunc judgment entry. Piazza v. R.S. Sarver, Inc. (1984), 17 Ohio App.3d 177. Unfortunately for Prudential, this appeal was an improper forum in which to seek redress of its grievance against Corporate Circle. - 5 - Since Prudential filed its notice of appeal not from the final judgment in this case, but from a subsequent and proper nunc pro tunc journal entry, this court lacks jurisdiction to consider its appeal. App.R. 4(A); Bosco v. Euclid (1974), 38 Ohio App.2d 40. Accordingly, Prudential's appeal is dismissed. - 6 - It is ordered that appellee recover of appellant 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 Cuyahoga County 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. DAVID T. MATIA, PRESIDING JUDGE JAMES M. PORTER, JUDGE KENNETH A. ROCCO, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .