Tate v. Tate ( 2018 )

[Cite as Tate v. Tate, 2018-Ohio-1245.]
COURT OF APPEALS
HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ROBYN M. TATE : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
: Case Nos. 17CA013
BRUCE E. TATE, ET AL. : 17CA014
:
Defendants-Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Domestic Relations Division,
Case No. 15DR019
JUDGMENT: Appeals Dismissed
DATE OF JUDGMENT: March 29, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendants-Appellants
LON R. VINION JAMES M. RICHARD
3431 Commerce Parkway 127 East Liberty Street, Suite 100
Suite C P.O. Box 1207
Wooster, OH 44691 Wooster, OH 44691
R.J. Helmuth ALETHA M. CARVER
343 South Crownhill Road 4775 Munson Street, NW
P.O. Box 149 P.O. Box 36963
Orrville, OH 44667 Canton, OH 44735-6963
GRANT A. MASON
The Lincoln Building
88 South Monroe Street
Millersburg, OH 44654
Holmes County, Case Nos. 17CA013 and 17CA014 2
Wise, Earle, J.
{¶ 1} Defendants-Appellants, Bruce E. Tate (Case No. 17CA013) and Tate
Farms Company, Ltd. and Tate Farms, a Partnership (Case No. 17CA014), appeal the
June 26, 2017 statement of the case, findings of fact, conclusions of law, and decision
filed nunc pro tunc by the Court of Common Pleas of Holmes County, Ohio, Domestic
Relations Division. Plaintiff-Appellee is Robyn M. Tate.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On February 14, 1998, Bruce Tate and appellee were married. No
children were born as issue of the marriage.
{¶ 3} In 1997, prior to the parties' marriage, Bruce, together with father, mother,
and brother, formed Tate Farms Company, Ltd. In 2004, the same parties entered into
a written partnership agreement, forming Tate Farms, a Partnership.
{¶ 4} On March 10, 2015, appellee filed a complaint for divorce against Bruce,
and also named the Tate Farms entities.
{¶ 5} On June 23, 2015, the Tate Farms entities filed a motion to dismiss. The
trial court took the matter under advisement.
{¶ 6} Hearings were held on September 19, 21, 22, 23, 29, and October 10,
2016. At the conclusion of the September 29, 2016 hearing, the Tate Farms entities
moved for a directed verdict. By judgment entry filed October 11, 2016, the trial court
granted the motion and dismissed the Tate Farms entities from the case.
{¶ 7} On October 28, 2016, the Tate Farms entities filed a motion for sanctions
followed by an affidavit detailing the attorney fees incurred.
Holmes County, Case Nos. 17CA013 and 17CA014 3
{¶ 8} On February 13, 2017, the trial court issued a statement of the case,
findings of fact, and conclusions of law. The trial court referred to attached Exhibits A,
B, and C which were not attached. Also on February 13, 2017, the trial court filed a
judgment entry denying the Tate Farms entities' motion for sanctions.
{¶ 9} On February 24, 2017, the Tate Farms entities filed a notice of appeal
(Case No. 17CA001).
{¶ 10} On March 30, 2017, the trial court issued a decree of divorce, attaching
Exhibits A and B, but not C.1
{¶ 11} On April 4, 2017, Bruce filed a notice of appeal (Case No. 17CA004).
{¶ 12} On April 7, 2016, the Tate Farms entities filed an amended notice of
appeal to incorporate the divorce decree.
{¶ 13} On April 25, 2017, Bruce filed with the trial court a motion for a nunc pro
tunc order to address the missing Exhibit C. The trial court did not rule on this motion.
{¶ 14} On May 15, 2017, Bruce filed with this court a motion to correct the record
under App.R. 9(E), seeking a limited remand to address the missing exhibit. By
judgment entry filed June 8, 2017, this court granted the motion and remanded the
matter to the trial court to address the April 25, 2017 motion for a nunc pro tunc order
and the missing exhibit. On June 26, 2017, the trial court filed a nunc pro tunc
statement of the case, findings of fact, conclusions of law, and decision, attaching the
missing Exhibit C. The trial court made substantive changes to its previous decision.
{¶ 15} Appellants filed notices of appeal on July 5, and 20, 2017.
1We note the decree did not specifically reference Exhibit C, although it did adopt and
incorporate the February 13, 2017 filing which did.
Holmes County, Case Nos. 17CA013 and 17CA014 4
{¶ 16} In their appellate briefs, appellants argue the trial court was without
jurisdiction to make substantive changes to its previous decision. We agree.
{¶ 17} Pursuant to this court's limited remand, the trial court was to address the
April 25, 2017 motion for a nunc pro tunc order to include the missing Exhibit C. In
Douglass v. Provia Door, Inc., 5th Dist. Tuscarawas No. 2012 AP 05 0034, 2013-Ohio-
2853, ¶ 46, this court explained the purpose of a nunc pro tunc as follows:
The purpose of a nunc pro tunc order is to have the judgment of the
court reflect its true action so that the record speaks the truth. In re Estate
of Cook (1969), 19 Ohio St. 2d 121, 127. The function of a nunc pro tunc
order is not to change, modify, or correct erroneous judgments, but merely
to have the record speak the truth. Id. A trial court may exercise its nunc
pro tunc authority in limited situations to correct clerical errors. However,
a trial court may not use a nunc pro tunc entry to enter of record that
which it intended to or might have done but which in fact it did not do.
McKay v. McKay (1985), 24 Ohio App. 3d 74; Webb v. W. Res. Bond &
Share Co. (1926), 115 Ohio St. 247. See also State ex rel. Litty v.
Leskovyansky (1996), 77 Ohio St .3d 97; Pepera v. Pepera (Mar. 26,
1987), Cuyahoga App. Nos. 51989 and 52024. (Emphasis sic.)
{¶ 18} In its nunc pro tunc decision, the trial court properly exercised its
jurisdiction on remand to attach the missing exhibit, but exceeded its authority in making
Holmes County, Case Nos. 17CA013 and 17CA014 5
substantive changes to its February 13, 2017 findings of fact and conclusions of law
which in effect was in conflict with the March 30, 2017 divorce decree.
{¶ 19} The nunc pro tunc decision is only valid as it pertains to the inclusion of
Exhibit C. The rest of the decision is invalid and is of no force and effect. National Life
Insurance Company v. Kohn, 133 Ohio St. 111, 11 N.E.2d 1020 (1937).
{¶ 20} This court will review Exhibit C within the context of the trial court's
February 13, 2017 filing, the March 30, 2017 divorce decree, and the appeals filed in
17CA001 and 17CA004.
{¶ 21} As this court has nothing to review under the appeals sub judice, the
appeals are dismissed.
By Wise, Earle, J.
Delaney, P.J. and
Gwin, J. concur.
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