COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72947 ROBERT LINDLE : : : JOURNAL ENTRY PLAINTIFF-APPELLANT : : AND v. : : OPINION INLAND LAKES MANAGEMENT, : INC. : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: JUNE 4, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-299807. JUDGMENT: DISMISSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Christopher D. Kuebler, Esq. O'Bryan Baun Cohen 401 S. Old Woodward, Suite 320 Birmingham, MI 48009 For Defendant-Appellee: Julia R. Brouhard, Esq. Gene B. George, Esq. Ray, Robinson, Carle, Davies & Snyder, P.L.L. 1650 East Ohio Building 1717 E. 9th Street Cleveland, OH 44114-2898 -2- TIMOTHY E. McMONAGLE, J.: Plaintiff-appellant Robert Lindle ( appellant ) appeals from the judgment of the trial court which granted defendant-appellee Inland Lakes Management Inc.'s ( appellee ) motion for a directed verdict at the close of appellant's case-in-chief and assigns the following errors for our review: I. THE LOWER COURT ERRED BY GRANTING THE DEFENDANT'S MOTION FOR DIRECTED VERDICT AT THE CLOSE OF PLAINTIFF'S CASE IN CHIEF [R. 4, 6 (VOL. 2103, P. 179). II. THE LOWER COURT ERRED BY APPLYING THE WRONG DIRECTED VERDICT STANDARD WHICH GOVERNS UNDER MARITIME CLAIMS. For the reasons stated below, we find this court is without jurisdiction to hear the within appeal and dismiss the appeal as untimely. The facts giving rise to this appeal are as follows. Appellant was a seaman on board a vessel owned by appellee. Appellant brought an action against appellee alleging both negligence and unseaworthiness of the vessel as a result of a alleged homosexual assault by his bunkmate, a cadet from the Great Lakes Maritime Academy. After a period of discovery, the matter went to trial before the bench. In order to prove his case appellant testified on direct examination as to the circumstances of the incident and submitted depositions in lieu of live testimony. At the close of appellant's case-in-chief, the defense moved for directed verdict based upon appellant's failure to show negligence and unseaworthiness as required pursuant to the Jones -3- Act. After oral argument on the motion taken on the record, the court reserved ruling until further review of the deposition transcripts offered in the case. During trial and in open court, on June 27, 1997, the court addressed appellee's motion to dismiss. The court found the evidence submitted was insufficient to prove the issues, sustained the motion, directed the verdict for appellee and dismissed the case. The half-sheet entry written on June 27, 1997 was journalized June 30, 1997 at vol. 2103 pg. 0179 and states: Case proceeds in trial. [Deft's] motion for directed verdict is granted. Case dismissed. Final. (Emphasis in original.) Upon journalization of this entry the docket further reflects the clerk of court's notation indicating: Notice issued. Case disposed of without prejudice 6/30/97. On July 9, 1997 the trial court, sua sponte, issued a further entry stating: Nunc pro tunc for 6/27/97, [Deft's] motion for directed verdict is granted. Case dismissed with prejudice. Final[.] (Emphasis in original.) It is from this July 9, 1997 judgment entry that appellant brought this appeal by filing his notice of appeal on August 1,1997. Notice of appeal was filed by the same counsel who originally filed and tried the within matter. In the notice of appeal, counsel for appellant asserts that this appeal is taken with regard to the order and nunc pro tunc dismissing the case with prejudice and entered July 9, 1997 as having *** superseded the dismissal without prejudice entered June 30, 1997 ***" and -4- consequently is timely filed within thirty (30) days of the July 9, 1997 judgment entry. App.R. 3(A) instructs us that an appeal shall be taken by filing a notice of appeal with the clerk within the time allowed by App.R. 4. App.R. 4 requires the notice of appeal in a civil case to be filed with the clerk of the trial court within thirty days of the date of entry of the judgment or order appealed from. App.R. 4(A) time requirements are jurisdictional. Donofrio v. Amerisure Ins. Co. (1990), 67 Ohio App 3d 272; Bosco v. City of Euclid (1974), 38 Ohio App.2d 40. The nature of a nunc pro tunc judgment generally prevents an appeal therefrom. In re Estate of Parmelee (1938), 134 Ohio St. 420, 424. See Roth v. Roth (1989), 65 Ohio App.3d 768, 771. *** 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 [citations omitted]. Prudentital Ins. Co. of America v. Corporate Circle Ltd. et al., (June 5, 1997) Cuyahoga App. 71772, unreported. Only when the trial court changes a matter of substance or resolves a genuine ambiguity in a judgment previously rendered should the period within which an appeal must be taken begin to run anew. [citations omitted] The relevant inquiry is whether the trial court, in its second judgment entry, has disturbed or revised legal rights and obligations which by its prior judgment had been settled -5- with finality. [citation omitted] (June 17, 1993) Cuyahoga App. 62739, unreported. Civ.R. 60(A) permits correction of blunders in execution which becloud a judgment but which do not call into question the sSoroka v. Sorokaubstance of the court's original determination. Soroka, supra. subsequent judgment entry clarifying the initial entry relates back to the time of the filing of the initial entry and does not extend the time for appeal. Morton v. Morton (1984), 19 Ohio App. 3d 212. As stated in Soroka only when the trial court changes a matter of substance or resolves a genuine ambiguity in a judgment previously rendered should the period within which an appeal must be taken begin to run anew. Soroka, id. at 10. In the matter sub judice there is no ambiguity in the actual journalized entry of June 30, 1997. The court granted appellee's motion for directed verdict in open court and then indicated that this judgment was Final. 1 A clerical error was made on the docket indicating that this was a dismissal without prejudice. The nunc pro tunc entry of July 9, 1997 which added the words with prejudice in this case did not create or deny any rights or change a matter of substance. Had a notice of appeal been filed with this court, along with a copy of the entry of judgment made June 30, 1997, jurisdiction would lie with this court as a final 1 Motion for directed verdict in a non-jury trial is governed by Civ.R. 41(B)(2). Dismissals made under Civ.R. 41(B) are considered adjudicated on the merits unless the court in its order otherwise specifies. Civ.R. 41 (B)(3). In this case the court did not otherwise specify and, consequently, the June 30, 1997 judgment entry is a dismissal with prejudice. -6- entry of judgment. The relief afforded by the nunc pro tunc entry is the judgment which was actually rendered by the court on June 30, 1997. Consequently, since a proper appeal could have been taken from the the June 30, 1997 judgment entry, the nunc pro tunc entry of July 9, 1997 corrects only the docket and does not correct the original judgment entry or change any matter of substance. Moreover, it does not operate to start the appeal clock anew. Final judgment in this case was clearly entered on June 30, 1997; the time for perfecting this appeal was not extended by the entry of the judgment made July 9, 1997. As such, the notice of appeal filed August 1, 1997 was not timely filed pursuant to App. R. 4(A). Accordingly, this court is without jurisdiction to hear the appeal. -7- This appeal is dismissed. It is, therefore, considered that said appellee recover of appellant their costs herein taxed. It is ordered that a special mandate be sent to the Common Pleas Court directing 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. JOSEPH J. NAHRA, P.J., and JAMES D. SWEENEY, J., CONCUR. TIMOTHY E. McMONAGLE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 of decision by the clerk per App.R. 22(E). See, also, S.Ct. Prac.R. II, Section 2(A)(1). .