[Cite as Trunzo v. Debt Recovery Solutions of Ohio, Inc., 2012-Ohio-6078.]

COURT OF APPEALS 

 RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

TERRY L. AND CAROL S. TRUNZO 

 Plaintiffs-Appellants 

-vsDEBT RECOVERY SOLUTIONS OF 

OHIO, INC. 

 

 Defendant-Appellee 

: JUDGES: 

: W. Scott Gwin, P.J. 

: William B. Hoffman, J. 

: Julie A. Edwards, J. 

: 

: Case No. 2012 CA 0036 

: 

: 

: O P I N I O N

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 pastdue 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 nonmoving 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. 

 _________________________________ 

 _________________________________ 

 _________________________________ 

 JUDGES