Nemcic v. Phelps

[Cite as Nemcic v. Phelps, 2014-Ohio-3952.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

SUE NEMCIC

Plaintiff-Appellee

v.

CECIL W. PHELPS, et. al.

Defendants-Appellants

Appellate Case No. 26066

Trial Court Case No. 2012-CV-1791

(Civil Appeal from
(Common Pleas Court)
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OPINION

Rendered on the 12th day of September, 2014.

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FRED MILLER, Atty. Reg. No. 0017872, 246 High Street, Hamilton, Ohio 45011
Attorney for Plaintiff-Appellee

JOSE M. LOPEZ, Atty. Reg. No. 0019580, 18 East Water Street, Troy, Ohio 45373
Attorney for Defendants-Appellants

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WELBAUM, J.

{¶ 1} In this case, Defendants-Appellants, Cecil W. Phelps, Cheryl Phelps, Aaron

Phelps, and J&M Mart, LLC (“J&M”) appeal from a judgment rendered in favor of

Plaintiff-Appellee, Sue Nemcic, following a bench trial.1 Appellants contend that the trial court

erred by sua sponte amending Nemcic’s complaint to include a claim against J&M.

{¶ 2} We conclude that the trial court lacked jurisdiction to amend the complaint in

the absence of a motion requesting Civ.R. 60(B) relief. Although the trial court could have

amended its prior entry pursuant to Civ.R. 60(A), which allows amendment to address clerical

errors, the amended judgment entry addressed a substantive issue, in that it changed the basis of

liability for the judgment. Because the order being appealed is a nullity, there is no appellate

jurisdiction over the case. Accordingly, Defendants’ appeal must be dismissed.

I. Facts and Course of Proceedings

{¶ 3} This case arises from a dispute over a family-owned gas station and

drive-through store (J&M Mart, referred to hereafter as “market”), located in Gratis, Ohio. The

real estate and business was owned by J&M, and Cecil Phelps (known as Wayne) is J&M’s sole

member. At the time of the events giving rise to this litigation, Wayne and his wife, Cheryl,

were the parents of Aaron Phelps and were the in-laws of Lori Phelps. (Aaron and Lori have

1
For purposes of convenience, we will refer to the individual Defendants by their first names, or collectively, as Appellants. We
also note that Defendant, Lori Phelps, has not appealed from the judgment of the trial court.
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since divorced). In turn, Lori is the daughter of Plaintiff-Appellee, Sue Nemcic, who worked at

the market between October 2008 and August 2011.

{¶ 4} Before becoming employed at the market, Nemcic worked at Gratis Express, a

convenience store in Gratis, Ohio, that was owned by Aaron and Lori. In 2008, Aaron

convinced Wayne that a drive-through could succeed at the location of a two-bay filling station

that had been for sale for a year. As a result, Wayne formed J&M, and purchased the property.

During the time that renovations to the filling station were in process, Gratis Express went

bankrupt, and J&M’s market had to open immediately.

{¶ 5} Nemcic was hired as a co-manager of the new enterprise, at an initial salary of

$900 per week, beginning in February 2009. Prior to that time, Nemcic had been working on a

volunteer basis. 2 Nemcic ran the cash register, did book-keeping, ordered supplies, wrote

checks to suppliers, and paid bills. In contrast, Aaron and Lori were paid $600 each per week,

for doing very little. Aaron and Lori also admitted taking cash from the business on a frequent

basis. According to Lori, she and Aaron each took between $50 and $200 in cash from the store

each week.

{¶ 6} By spring 2010, the business was in financial distress. The State of Ohio had

sent a letter to Wayne indicating that if the delinquent state sales taxes were not paid, the

market’s liquor license would be revoked. This letter was never shared with Wayne.3 As the

2
As with most evidence in this case, the facts are disputed. Nemcic claimed that she worked on a volunteer basis to help out
prior to February 2009. In contrast, Aaron claimed that Nemcic was paid “under the table.” Nemcic’s salary was also reduced over the
period of her employment, to an ending salary of $600 per week. She left employment when Wayne told her that her salary would be reduced
further, to $300 per week.
3
According to Nemcic and Lori, Aaron hid the tax letter from Wayne, and Aaron was also the one responsible for asking
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result of a request from Lori and/or Aaron, the back taxes were paid with Nemcic’s Chase credit

card.

{¶ 7} The amount placed on Nemcic’s credit card from April through November 2010

for delinquent taxes was about $19,069.20. Nemcic claimed that she had also given Aaron

cashier’s checks for J&M totaling $15,000, and had paid other taxes and expenses in 2011 on the

Chase card as well as another credit card. In total, Nemcic claimed that J&M and Aaron owed

her a total of about $35,800 for business expenses that she had paid. She also claimed that

Aaron owed her about $9,530 for personal expenses that he had charged on her credit card

without her permission. Nemcic testified that her daughter, Lori, did not owe her any money,

because Lori had repaid her for personal expenses that she had charged on Nemcic’s credit card.

{¶ 8} The payment of the overdue sales tax did not resolve the financial issues.

Faced with continuing financial problems and difficulty in obtaining proper records for filing

income tax returns, Aaron informed Wayne of the financial issues in April 2011. As a result,

Wayne became involved in the business and investigated the record-keeping. Wayne admitted

at trial that Nemcic had been repaid certain sums for the sales tax, because the store owed

Nemcic the money. However, Wayne also claimed that Nemcic was not entitled to any further

money, based on the following contentions: (1) his belief that about $21,870, other than payroll

checks, had been deposited into Nemcic’s own account over the pertinent time period; (2) his

suspicion that Nemcic was skimming cash during her employment; and (3) his belief that Nemcic

Nemcic for money for the taxes. However, Aaron claimed that he never saw the letter, that Lori and Sue ran the store, and that he found
out after the fact that Nemcic had paid for the taxes with her credit card. This inconsistency is typical of the trial testimony from all parties,
which was replete with contradictions. Basically, all the parties disclaimed responsibility for the store’s financial problems, claimed that the
other side was responsible for managing the store, disputed amounts that had been incurred or repaid, and so forth.
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was overpaid during her tenure of employment by about $75,000. This latter point was based on

Wayne’s opinion that Nemcic should only have been paid at a rate of $8.00 per hour, or slightly

more than minimum wage, due to his assessment of her job duties.

{¶ 9} During a bench trial, the court granted a dismissal of the claims against Wayne

and Cheryl after Nemcic presented her case. After hearing the rest of the evidence, the trial

court filed a Decision and Verdict Entry from Bench Trial on November 26, 2013. In the

decision, the trial court found in favor of Nemcic in the amount of $19,069.20 on her first claim

for relief. The court also found in Nemcic’s favor on the third claim for relief, in the amount of

$9,530.63, and concluded that Lori and Aaron would be jointly and severally liable for that entire

amount. Finally, the court rejected Nemcic’s claims for punitive damages and attorney fees,

and ordered J&M, Aaron, and Lori to pay court costs. The court also denied J&M’s

counterclaim for unauthorized use of funds.

{¶ 10} On December 10, 2013, Nemcic filed a motion for reconsideration, asking the

court to order additional damages, including amounts expended for taxes in the year 2011, and

interest on the credit card debt. The court overruled the motion for reconsideration.

Subsequently, on December 19, 2013, the court filed a judgment entry finding that Nemcic was

entitled to judgment against J&M, Aaron, and Lori, pursuant to the first claim for relief, in the

amount of $19,069.20, and against Lori and Aaron on the third claim for relief, in the amount of

$9,530.63. The rest of the judgment entry reflected the matters set forth in the decision and

verdict entry.

{¶ 11} Subsequently, on January 2, 2014, the trial court filed an amended judgment

entry, on its own accord. The court noted that while the first claim for relief had excluded J&M,
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the evidence indicated that J&M should be liable for payments made on its behalf. Accordingly,

the court amended the complaint, pursuant to Civ.R. 15(B), to include J&M within the first claim

for relief. The court also amended the complaint with respect to the third claim for relief, to

include Lori as a person responsible for conversion of Nemcic’s credit card. In all other

respects, the court reaffirmed the judgment entry filed on December 19, 2013.

{¶ 12} All Appellants, other than Lori Phelps, appeal from the judgment entry filed on

January 2, 2014. However, no notice of appeal was filed from the judgment entry filed on

December 19, 2013.

II. Did the Trial Court Err in Amending the Complaint?

{¶ 13} Appellants’ Sole Assignment of Error states that:

The Trial Court Erred by Amending, Sua Sponte, Plaintiff’s Complaint to

Include a Claim Against J&M Mart, Pursuant to Civil Rule 15, and Over the

Objections of Defendants.

{¶ 14} Under this assignment of error, Appellants raise three separate issues.

However, prior to addressing these issues, we will consider the issue of our jurisdiction to hear

this case. We are permitted to consider jurisdictional issues on our own motion. Care Risk

Retention Group v. Martin, 191 Ohio App.3d 797, 2010-Ohio-6091, 947 N.E.2d 1214, ¶ 97 (2d

Dist.), citing State ex rel. White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d 543, 544, 684

N.E.2d 72 (1997).

{¶ 15} As was noted, the trial court in this case entered a “Decision and Verdict Entry

from Bench Trial” on November 26, 2013, and a “Judgment Entry” on December 19, 2013. The
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Decision and Verdict Entry explained the basis for the trial court’s decision, and awarded

Nemcic judgment on the first claim for relief without specifying a particular party against whom

judgment was being rendered. The subsequent Judgment Entry awarded Nemcic judgment

against J&M, Lori, and Aaron, in the amount of $19,069.20, and disposed of the other claims in

the case as well. On January 2, 2014, the trial court then filed an “Amended Judgment Entry.”

The Amended Judgment Entry amended the pleadings to include J&M within the First Claim for

Relief, and reaffirmed the prior judgment filed on December 19, 2013.

{¶ 16} Appellants did not appeal from either of the two earlier entries; instead, they

appealed only from the judgment entry of January 2, 2014. It is well-established that:

A trial court has “no authority sua sponte to reopen and amend a final

judgment.” (Emphasis sic.) Kemper Securities, Inc. v. Schultz, 111 Ohio

App.3d 621, 625, 676 N.E.2d 1197 (10th Dist.1996). See also Anderson v.

Consumer Portfolio Servs., Inc., 10th Dist. No.12AP-339, 2012-Ohio-4380, ¶ 7

(“[o]ther than a judgment that is void ab initio for lack of jurisdiction, a court has

no authority to vacate or modify its final orders other than as set forth under

Civ.R. 60(B)”); GMAC, L.L.C. v. Greene, 10th Dist. No. 08AP–295,

2008-Ohio-4461, ¶ 19. Once an order “ ‘has been journalized by a trial court as a

final appealable order, that order cannot be modified or vacated except as

provided under Civ.R. 50(B) (motion notwithstanding the verdict), Civ.R. 59

(motion for a new trial), or Civ.R. 60(B) (motion for relief from judgment).’ ”

Jurasek v. Gould Electronics, Inc., 11th Dist. No.2001-L-007, 2002-Ohio-6260, ¶

15, quoting Krumheuer v. Flowers & Versagi Ct. Reporters, 8th Dist. No. 72431
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(Nov. 6, 1997). See also Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378, 380,

423 N.E.2d 1105 (1981).

Jeffrey v. Marietta Mem. Hosp., 10th Dist. Franklin Nos. 11AP-492, 11AP-502,

2013-Ohio-1055, ¶ 69.

{¶ 17} Furthermore, although “ ‘Civ.R. 60(A) permits a trial court, in its discretion,

[and on its own initiative] to correct clerical mistakes that are apparent on the record [, it] does

not authorize a trial court to make substantive changes in judgments.’ ” Jeffrey at ¶ 72, quoting

Rowell v. Smith, 186 Ohio App.3d 717, 2010-Ohio-260, 930 N.E.2d 360, ¶ 15 (10th Dist.).

(Other citation omitted.) “The chief distinction between clerical mistakes and substantive

mistakes, for Civ.R. 60(A) purposes, is that ‘ “the former consists of ‘blunders in execution’

whereas the latter consists of instances where the court changes its mind, either because it made a

legal or factual mistake in making its original determination, or because, on second thought, it

has decided to exercise its discretion in a different manner.” ’ ” Id., quoting Brewer v. Brewer,

10th Dist. Franklin No. 09AP146, 2010-Ohio-1319, ¶ 13. (Other citation omitted.)

{¶ 18} In the case before us, the decision to allow amendment of the complaint was not

merely a clerical issue, but was substantive. According to Appellants, J&M’s liability under an

equitable theory was not raised in the complaint, and the trial of such an issue was not done with

express or implied assent. Appellants contend that they, in fact, objected to inclusion of any

other issues, and that Nemcic failed to move to amend the complaint.

{¶ 19} Civ.R. 15(B) provides that:

When issues not raised by the pleadings are tried by express or implied

consent of the parties, they shall be treated in all respects as if they had been
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raised in the pleadings. Such amendment of the pleadings as may be necessary to

cause them to conform to the evidence and to raise these issues may be made upon

motion of any party at any time, even after judgment. Failure to amend as

provided herein does not affect the result of the trial of these issues. If evidence

is objected to at the trial on the ground that it is not within the issues made by the

pleadings, the court may allow the pleadings to be amended and shall do so freely

when the presentation of the merits of the action will be subserved thereby and the

objecting party fails to satisfy the court that the admission of such evidence would

prejudice him in maintaining his action or defense upon the merits. The court may

grant a continuance to enable the objecting party to meet such evidence.

{¶ 20} “Civ. R. 15(B) is consistent with the general principle that cases should be

decided on the issues actually litigated at trial.” Baxter v. ABS Const. Supply Co., 2d Dist.

Montgomery No. 1344, 1994 WL 731475, *5 (Dec. 28, 1994), citing State ex rel. Evans v.

Bainbridge Twp. Trustees, 5 Ohio St.3d 41, 44, 448 N.E.2d 1159 (1983).

{¶ 21} Normally, “[a]n amendment under Civ.R. 15(B) must be made by motion.”

Springfield v. Palco Invest. Co., Inc., 2013-Ohio-2348, 992 N.E.2d 1194, ¶ 51 (2d Dist.), citing

Vanderhorst v. 6105 N. Dixie Drive, L.L.C., 2d Dist. Montgomery No. 23491, 2009-Ohio-6687,

¶ 16. In opposing the motion, the objecting party is required to show “that he will be subject to

‘serious disadvantage’ if the amendment were allowed.” Palco at ¶ 46, citing Baltes

Commercial Realty v. Harrison, 2d Dist. Montgomery No. 23177, 2009-Ohio-5868, ¶ 42. We

have inferred amendment “from the arguments of the parties and the ruling of the trial court,

even though Civ.R. 15(B) was not expressly identified.” Palco at ¶ 51, citing Baltes at ¶ 48.
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Nonetheless, amendment under these circumstances is not merely a clerical issue, and the trial

court could not have amended its prior order under Civ.R. 60(A). See, e.g., Business Data

Systems, Inc. v. Gourmet Café Corp., 9th Dist. Summit No. 22096, 2005-Ohio-4, ¶ 37 (noting

that “[c]hanging a party's liability on a judgment is clearly a substantive change in the parties'

rights and not merely the correction of a clerical error.”) Instead, the court would only have had

jurisdiction to amend its prior order upon a properly-filed motion for Civ.R. 60(B) relief.

{¶ 22} Accordingly, in the case before us, the trial court lacked jurisdiction on its own

motion to “reopen and substantively modify” its December 19, 2013 entry, and the amended

judgment entry was a “nullity.” Jeffrey, 10th Dist. Franklin Nos. 11AP-492, 11AP-502,

2013-Ohio-1055, at ¶ 74. As a result, we lack jurisdiction over this appeal, and the appeal must

be dismissed.

{¶ 23} In view of the above holding, the sole assignment of error raised by Appellants,

and the three issues raised in their assignment of error, cannot be addressed.

III. Conclusion

{¶ 24} Based on the preceding discussion, this appeal is dismissed for lack of

jurisdiction.

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DONOVAN and HALL, JJ., concur.

Copies mailed to:
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Fred S. Miller
Jose M. Lopez
Hon. Gregory Singer