Trunzo v. Debt Recovery Solutions of Ohio, Inc. , 2012 Ohio 6078 ( 2012 )

[Cite as Trunzo v. Debt Recovery Solutions of Ohio, Inc., 2012-Ohio-6078.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
TERRY L. AND CAROL S. TRUNZO : W. Scott Gwin, P.J.
: William B. Hoffman, J.
Plaintiffs-Appellants : Julie A. Edwards, J.
:
-vs- : Case No. 2012 CA 0036
:
:
DEBT RECOVERY SOLUTIONS OF : OPINION
OHIO, INC.
Defendant-Appellee
CHARACTER OF PROCEEDING: Civil Appeal from Mansfield Municipal
Case No. 2011 CVH 01409
JUDGMENT: Affirmed In Part and Reversed and
Remanded In Part
DATE OF JUDGMENT ENTRY: December 19, 2012
APPEARANCES:
For Plaintiffs-Appellees For Defendant-Appellant
TERRY L. AND CAROL S. TRUNZO JOHN ALLEN HOLMES
655 Bangorville Road 76 North Mulberry Street
Bellville, Ohio 44813 Mansfield, Ohio 44902
[Cite as Trunzo v. Debt Recovery Solutions of Ohio, Inc., 2012-Ohio-6078.]
Edwards, J.
{¶1} Appellants, Terry and Carol Trunzo, appeal a summary judgment of the
Mansfield Municipal Court awarding summary judgment to appellee Debt Recovery
Solutions of Ohio, Inc.
STATEMENT OF FACTS AND CASE
{¶2} On June 3, 2011, appellee filed the instant action alleging that it was the
assignee of various unpaid accounts against appellants. The complaint alleged that
appellants owed $313.44 for health care services rendered by Mid-Ohio Heart Clinic,
Inc., plus prejudgment interest in the amount of $18.72. The complaint alleged that
appellants owed $894.00 for services rendered by Dermatology Associates of
Mansfield, Inc., plus prejudgment interest in the amount of $101.32. Finally, the
complaint alleged that appellant owed $6.92 for services provided by Radiology
Associates of Mansfield, Inc., plus prejudgment interest in the amount of $1.03.
{¶3} Appellants filed an answer, alleging in part that the surgery performed by
Dr. Wood of Dermatology Associates was careless and inferior, leaving appellant Carol
Trunzo with a large lump on her face which has caused her much pain, suffering and
embarrassment. Appellant also filed a counterclaim alleging that appellee had not
provided notice of the debts as required by the Fair Debt Collection Practices Act
(FDCPA).
{¶4} Appellee filed a motion for summary judgment. Attached to the motion
was the affidavit of John Holmes, attorney for appellee, in which he averred that he had
complied with the FDCPA in collecting the instant debt. Appellee also filed the affidavit
of Kathy Shambre, president of appellee, in which she averred that the balances due on
Richland County App. Case No. 2012 CA 0036 3
the accounts after receiving payments in June were $123.87 to Mid-Ohio Heart,
$894.00 to Dermatology Associates, and $6.92 to Radiology Associates. Her affidavit
stated that collection notices were sent to appellants on March 3, 2009, regarding past-
due accounts of Radiology Associates and Dermatology Associates and June 18, 2009
regarding Mid-Ohio Heart Clinic. She further stated that all collection action taken by
appellee was compliant with the FDCPA.
{¶5} Appellants filed a response to the motion for summary judgment.
Appellant did not attach any materials of evidentiary quality to their response. They
attached photocopies of checks to Mid-Ohio Heart in the amount of $123.87 and
Radiology Associates of Mansfield in the amount of $6.92, a photograph that purports to
be the lump on Carol Trunzo’s forehead, and a copy of the notice they received under
the FDCPA regarding the assignment of the Mid-Ohio Heart account to appellee. None
of these exhibits were authenticated.
{¶6} Appellee responded that all of the principal balances due for medical bills
to Mid-Ohio Heart and Radiology Associates had in fact been paid in full. They noted in
their response that appellants had presented no expert evidence of medical
malpractice.
{¶7} The court denied the motion for summary judgment on March 13, 2012,
finding that there were genuine issues of material fact. The court then granted
summary judgment on April 2, 2012. The court awarded appellee $123.87 plus
prejudgment interest in the amount of $14.81 on the Mid-Ohio Heart account, $894.00
plus prejudgment interest in the amount of $127.73 on the Dermatology Associates
Richland County App. Case No. 2012 CA 0036 4
account, and $6.92 plus prejudgment interest in the amount of $1.25 on the Radiology
Associates account. The court dismissed appellants’ counterclaim.
{¶8} Appellants filed a notice of appeal on May 1, 2012. On June 5, 2012, the
court issued a nunc pro tunc judgment awarding damages in the amount of $14.81 for
prejudgment interest owed on the Mid-Ohio Heart account, $894.00 plus prejudgment
interest in the amount of $127.73 on the Dermatology Associates account, and
prejudgment interest in the amount of $1.25 on the Radiology Associates account.
{¶9} Appellants assign a single error on appeal:
{¶10} “THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR
SUMMARY JUDGMENT OF PLAINTIFF-APPELLEE, DEBT RECOVERY SOLUTIONS
OF OHIO, INC.”
{¶11} At the outset, we note that appellee has filed a motion to dismiss the
appeal as moot based on the nunc pro tunc judgment filed by the court on June 5, 2012.
{¶12} The purpose of a nunc pro tunc judgment is restricted to placing upon the
record evidence of judicial action which has actually been taken. State, ex rel. Phillips,
v. Indus. Comm., 116 Ohio St. 261, 155 N.E. 798 (1927). It can be exercised only to
supply omissions in the exercise of functions which are merely clerical Jacks v.
Adamson, 56 Ohio St. 397 (1897). It is not made to show what the court might or
should have decided, or intended to decide, but what it actually did decide. Webb v.
Western Reserve Bond & Share Co., 115 Ohio St. 247, 153 N.E. 289 (1926).
{¶13} In the instant case, the nunc pro tunc judgment does not reflect what the
court actually decided nor does it correct only clerical omissions. The entry shows what
the court intended to decide regarding damages, not what the court actually decided.
Richland County App. Case No. 2012 CA 0036 5
Therefore, the entry is not a proper nunc pro tunc entry. The trial court entered final
judgment on April 2, 2012, and that entry was appealed on May 1, 2012. The court
therefore did not have jurisdiction to alter that judgment on June 5, 2012. Appellee’s
motion to dismiss is accordingly overruled.
{¶14} We next turn to the merits of appellants’ assignment of error.
{¶15} Summary judgment proceedings present the appellate court with the
unique opportunity of reviewing the evidence in the same manner as the trial court.
Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 36 (1987). As such, we must
refer to Civ. R. 56(C) which provides in pertinent part: “Summary Judgment shall be
rendered forthwith if the pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any,
timely filed in the action, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law. No evidence or
stipulation may be considered except as stated in this rule. A summary judgment shall
not be rendered unless it appears from the evidence or stipulation, and only from the
evidence or stipulation, that reasonable minds can come to but one conclusion and that
conclusion is adverse to the party against whom the motion for summary judgment is
made, that party being entitled to have the evidence or stipulation construed most
strongly in the party’s favor.”
{¶16} Pursuant to the above rule, a trial court may not enter summary judgment
if it appears a material fact is genuinely disputed. The party moving for summary
judgment bears the initial burden of informing the trial court of the basis for its motion
and identifying those portions of the record that demonstrate the absence of a genuine
Richland County App. Case No. 2012 CA 0036 6
issue of material fact. The moving party may not make a conclusory assertion that the
non-moving party has no evidence to prove its case. The moving party must specifically
point to some evidence which demonstrates that the non-moving party cannot support
its claim. If the moving party satisfies this requirement, the burden shifts to the non-
moving party to set forth specific facts demonstrating that there is a genuine issue of
material fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, citing
Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107.
{¶17} Appellants first argue that the court erred in awarding damages in the
amount of $123.87 on the Mid-Ohio Heart account and $6.92 on the Radiology
Associates account because these amounts had already been paid. Appellee
conceded in their reply memorandum to appellants response to their summary judgment
motion that the principal balances due Mid-Ohio Heart and Radiology Associates had
been paid in full. As noted above, the trial court’s attempt to correct the amount of
damages in the judgment entry by way of a nunc pro tunc entry was improper because
the court lacked jurisdiction to do so. Therefore, we find that the judgment appealed
from does incorrectly award damages for principal balances due Mid-Ohio Heart and
Radiology Associates when these amounts had been paid.
{¶18} Appellants next argue that the court erred in only giving them one week to
provide expert testimony to prove medical negligence. They argue that the obvious
large red lump on Carol Trunzo’s forehead as well as their testimony at the pre-trial
conference creates a genuine issue of disputed fact.
{¶19} The record does not reflect that appellants were given only one week to
provide expert testimony. To the extent such conversations occurred at a pre-trial
Richland County App. Case No. 2012 CA 0036 7
conference, they were not placed on the record and appellants have not demonstrated
error in the record. While there is a picture attached to appellants’ response to the
summary judgment motion, this picture is not authenticated and is not therefore proper
evidence. Further, if any testimony was taken at the pre-trial conference, there is no
transcript of this hearing. Appellants therefore have not demonstrated from the record
that the court erred regarding their claim of medical negligence.
{¶20} Finally, appellants argue that the court erred in dismissing their
counterclaim. Appellee presented affidavit testimony demonstrating compliance with
the FDCPA. Appellants presented no evidence to rebut this testimony in response to
the motion for summary judgment. The court therefore did not err in granting summary
judgment dismissing the counterclaim.
{¶21} The assignment of error is sustained as to the amount of damages. In all
other respects, the assignment of error is overruled.
Richland County App. Case No. 2012 CA 0036 8
{¶22} The judgment of the Mansfield Municipal Court is affirmed in part and
reversed in part and this cause is remanded to that court for further proceedings as to
the amount of damages. Costs split evenly between the parties.
By: Edwards, J.
Gwin, P.J. and
Hoffman, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r1113
[Cite as Trunzo v. Debt Recovery Solutions of Ohio, Inc., 2012-Ohio-6078.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
TERRY L. AND CAROL S. TRUNZO :
:
Plaintiffs-Appellees :
:
:
-vs- : JUDGMENT ENTRY
:
DEBT RECOVERY SOLUTIONS OF
OHIO, INC. :
:
Defendant-Appellant : CASE NO. 2012 CA 0036
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Mansfield Municipal Court is affirmed in part and reversed in part and
remanded to that court for further proceedings. Costs split evenly between the parties.
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JUDGES