This motion has been sitting on the judges desk for 2 months today.    Can nunc pro tunc be used as a free do-over for the plaintiff's mistake?



Now comes Defendants ADCO Firearms, LLC and Steven E. Thompson, by and through counsel, and submit their reply memorandum in support of their motion to dismiss.
Plaintiff’s decedent died on July 8, 2020. The period of limitation for her wrongful death claim expired on July 8, 2022. On September 9, 2022, Plaintiff, not the Probate Court, moved to have the estate dismissed, not for any clerical error but because she no longer wished to pursue the present action, according to her motion. The estate was closed eliminating any authority on the part of Plaintiff to pursue the present wrongful death claim. Because Plaintiff had no authority to represent the estate, any action filed
by her is a nullity and should be dismissed as the Court has no jurisdiction over such a matter. Burchett v. Larkin, 192 Ohio App.3d 418, 2011-Ohio-684, 949 N.E.2d 516 (4th Dist.)
Plaintiff claims that she has solved the problem by re-opening the estate and having the Court issue a nunc pro tunc order that the re-opening relates back to the date the estate was closed. Plaintiff did not provide an affidavit explaining her actions in wanting to dismiss the estate or claiming that she made an error in doing so or that the Court erred in granting her the relief that she requested.

"A nunc pro tunc order may be issued by a trial court, as an exercise of its inherent power, to make its record speak the truth. It is used to record that which the trial court did, but which has not been recorded. It is an order issued now, which has the same legal force and effect as if it had been issued at an earlier time, when it ought to have been issued. Thus, the office of a nunc pro tunc order is limited to memorializing what the trial court actually did at an earlier point in time. It can be used to supply information which existed but was not recorded, to correct mathematical calculations, and to correct typographical or clerical errors.
A nunc [***15] pro tunc order cannot be used to supply omitted action, or to indicate what the court might or should have decided, or what the trial court intended to decide. Its proper use is limited to what the trial court actually did decide."

Alden v. FirstEnergy Corp., 8th Dist. Cuyahoga No. 100575, 2014-Ohio-3235, ¶ 10, quoting Scaglione v. Saridakis, 8th Dist. Cuyahoga No. 91490, 2009-Ohio-4702, ¶ 9. And:
The trial court's use of a nunc pro tunc entry is restricted to placing upon the record evidence of judicial action that has been actually taken; thus, it can be exercised only to supply omissions in the exercise of merely clerical functions. Jacks v. Adamson, 56 Ohio St. 397, 402, 47 N.E. 48 (1897). The function of nunc pro tunc is not to change, modify, or correct erroneous judgments, but, rather, to have the record speak the truth. Ruby v. Wolf, 39 Ohio App. 144, 10 Ohio Law Abs. 79, 177 N.E. 240 (1931); Dentsply Internatl., Inc. v. Kostas, 26 Ohio App. 3d 116, 26 Ohio B. 327, 498 N.E.2d 1079 (8th Dist.1985). A court may not, therefore, by way of a nunc pro tunc entry, enter of record that which it intended but, in fact, was not made. Pepera v. Pepera, 8th Dist. Cuyahoga Nos. 51989 and 52024, 1987 Ohio App. LEXIS 6807 (Mar. 26, 1987), quoting Myers v. Shaker Hts., 8th Dist. Cuyahoga Nos. 57005 and 58056, 1990 Ohio App. LEXIS 2278 (June 7, 1990).
Mosley v. Cuyahoga Cty. Bd. of Mental Retardation, 8th Dist. Cuyahoga No. 96070, 2011-Ohio-3072, ¶ 44


Thus, the Probate Court’s signing of the order crafted by Plaintiff’s counsel is improper as it changes the Court’s ruling on Plaintiff’s Motion to Dismiss the Estate. In other words, the mistake was not that of the Probate Court, but the Plaintiff, if she did not mean to tell the Court that she wanted the Estate dismissed as she no longer wished to pursue the present action.

Providing an improper order to the Probate Court does not solve the problem with the lack of authority to pursue this action. And doesn’t correct the problem with the fact that the period of limitations had expired when Plaintiff asked the Probate Court to dismiss the estate.
Plaintiff’s effort to save this matter based upon a procedurally improper action in the Probate Court should not be accepted by this Court. Nor should either Court consider that there is a relation back of the nunc pro tunc order. Plaintiff dismissed the estate on its merits, not some procedural flaw. And make no mistake that it was Plaintiff that chose that course and cited her desire not to pursue this matter. There was no clerical error for the Probate Court to correct. The Probate Court’s dismissal was, in truth, what Plaintiff requested. The Probate Court’s order was not in error and the Court did not actually do something else that needed to be reflected in a nunc pro tunc order.


WHEREFORE, because the Plaintiff still lacks authority to pursue this action and this Court therefore lacks subject matter jurisdiction in the matter, the Court should dismiss Plaintiff’s complaint.

Yes, I have an attorney.  He wrote the motion I posted.   No one has ever seen a situation like this, but he's convinced once the estate was closed after the SOL had passed, the lawsuit is done.   I have no idea why the Judge hasn't ruled on it yet.  

That background is the plaintiff hired a firm in Toledo to open a wrongful death estate(no assets) to sue the deceased's boyfriend who bought/gave her the gun.   He was a judgement proof felon so the Toledo firm told (to quote from their deposition) "There was nothing we could put our hands on".  
Plaintiff then hired a firm from Columbus to sue me for legally selling the boyfriend the gun.
I'm assuming the Toledo attorney must have assumed everything was over and closed the estate.   I found the error a few months ago a brought it to my attorney's attention.

Basically, one law firm is wanting to use nunc pro tunc to undo what another firm did. No accidents,   Not a court mistake or error.

The boyfriend became a felon when he was convicted for the straw purchase.  He also declared bankruptcy before the family opened the estate to sue him.

This is why my attorney filed a motion to dismiss, that the judge has been sitting on for 4 months.  
It's an invalid nunc pro tunc for a few big reasons.

1. It's order to open the estate, that has the words nunc pro tunc in it.


2.It's not correcting any clerical error or mistake made by the court.


3. It's completely changing/reversing a court judgment.



Why the Judge is not dismissing this immediately I have no idea. This law suit should have ended 9 months ago when the estate is closed. How is the plaintiff's attorney getting away filing motions without a client to represent?!

@naseby


The judge ruled the estate being closed by the plaintiff was a mistake of the court, making the nunc pro tunc proper.  Motion to dismiss denied. Trial is on for May 2024.

               THIS CAUSE IS BEFORE THE COURT ON DEFENDANT'S MOTION TO
DISMISS. UPON CONSIDERATION OF THE PLEADINGS, MEMORANDA
OF COUNSEL, EVIDENCE OF RECORD, AND APPLICABLE LAW, THIS
COURT FINDS DEFENDANT'S MOTION TO DISMISS TO BE MOOT AND
DENIES IT.

DEFENDANT MOVES FOR DISMISSAL, ARGUING THAT NO ONE HAS
THE CAPACITY TO BRING A WRONGFUL DEATH ACTION IN THAT THE
ESTATE'S ADMINISTRATOR WAS DISCHARGED IN SEPTEMBER, 2022.
THE PLAINTIFF, THE ESTATE'S ADMINISTRATOR, HAS REPLIED,
ACKNOWLEDGING THE SEPTEMBER 2022 DISCHARGE, BUT OFFERING
EXPLANATION THAT THE ESTATE WAS CLOSED IN ERROR AND
SUBSEQUENTLY RE-OPENED BY WAY OF NUNC PRO TUNC ORDER,
CORRECTING THE COURT'S MISTAKE, IN A JUDGMENT ENTRY
ISSUED BY THE PROBATE COURT ON MARCH 28, 2023. AS SUCH,
THE DEFENDANT'S GROUNDS FOR DISMISSAL NO LONGER EXIST,
RENDERING THE ISSUE MOOT.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED THAT
DEFENDANT'S MOTION TO DISMISS IS MOOT AND THEREFORE
DENIED.