[Cite as Dickerson v. Cleveland Metro. Hous. Auth, 2011-Ohio-6437.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 96726 

J’LEXXYS DICKERSON, ETC., ET AL.

PLAINTIFFS-APPELLEES 

vs. 

CLEVELAND METROPOLITAN HOUSING 

AUTHORITY, ET AL.

DEFENDANTS-APPELLANTS 

JUDGMENT: 

REVERSED AND REMANDED 

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-705527 

BEFORE: Cooney, J., Celebrezze, P.J., and Jones, J. 

RELEASED AND JOURNALIZED: December 15, 2011 

ATTORNEYS FOR APPELLANTS
2

Timothy A. Marcovy 

Michael S. Lewis 

Aubrey B. Willacy 

Willacy, Lopresti & Marcovy 

700 Western Reserve Building 

1468 West Ninth Street 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEES

Mark A. Dicello 

Robert F. Dicello 

The Dicello Law Firm 

7556 Mentor Avenue 

Mentor, Ohio 44060 

COLLEEN CONWAY COONEY, J.: 

{¶ 1} Defendant-appellant, Cleveland Metropolitan Housing Authority, 

(“CMHA”), appeals the trial court’s order vacating its earlier order that granted summary 

judgment in favor of CMHA. Finding merit to the appeal, we reverse. 

{¶ 2} In September 2009, plaintiffs-appellees, J’Lexxys Dickerson, et al. 

(“Dickerson”), filed suit against CMHA.1

 Dickerson alleges that CMHA was guilty of 

negligent, willful, wanton, and/or reckless misconduct in failing to maintain its premises, 

and failing to warn occupants of known and/or hidden dangers, pitfalls, obstructions, or 

 1

 The original complaint also included as defendants ten unnamed “John Does.” None of these 

defendants were ever identified, however, nor was service obtained within one year of filing the complaint. See 

Civ.R. 3(A), 4(E), and 15(D). 
3

defects on its premises, resulting in the injury suffered by Dickerson, a minor child. 

This claim stems from a laundry pole that fell and injured the child’s hand. In addition, 

Dickerson’s parents are parties to the suit, claiming loss of consortium and financial loss. 

{¶ 3} On March 7, 2011, CMHA filed a motion for leave to file a motion for 

summary judgment instanter, with its motion for summary judgment attached. The 

motion for leave was granted, and the motion for summary judgment was accepted as 

filed on March 7, 2011. More than 30 days later, on April 18, 2011, Dickerson filed a 

motion to extend the time to respond to CMHA’s motion for summary judgment pursuant 

to Civ.R. 56(F). On April 19, 2011, the trial court granted summary judgment for 

CMHA. On April 20, 2011, the court denied Dickerson’s motion to extend time to 

respond. On April 21, 2011, the court sua sponte vacated its order granting summary 

judgment in favor of CMHA, without any explanation. 

{¶ 4} CMHA now appeals, raising three assignments of error. 

{¶ 5} In its first assignment of error, CMHA argues that the trial court erred when 

it sua sponte vacated its prior entry of summary judgment in favor of CMHA. Dickerson 

argues that the trial court properly vacated the order granting summary judgment pursuant 

to Civ.R. 60(A) or, in the alternative, properly vacated the order because it was void. 

{¶ 6} The authority to vacate its own void judgment constitutes an inherent power 

possessed by Ohio courts. Patton v. Diemer (1988), 35 Ohio St.3d 68, 518 N.E.2d 941, 

paragraph four of the syllabus. A judgment is void only where the court lacks 
4

jurisdiction over the subject matter or the parties or where the court acts contrary to due 

process. Thomas v. Fick (June 7, 2000), Summit App. No. 19595; Rondy v. Rondy 

(1983), 13 Ohio App.3d 19, 22, 468 N.E.2d 81. In exercising its inherent power, a court 

is recognizing that the void judgment or order was always a nullity. Van DeRyt v. Van 

DeRyt (1966), 6 Ohio St.2d 31, 35, 215 N.E.2d 698. 

{¶ 7} However, as a general rule, a trial court has no authority to vacate or modify 

its final orders sua sponte. N. Shore Auto Financing, Inc. v. Valentine, Cuyahoga App. 

No. 90686, 2008-Ohio-4611, ¶12, citing Rice v. Bethel Assoc., Inc. (1987), 35 Ohio 

App.3d 133, 520 N.E.2d 26; Hellmuth, Obata & Kassabaum v. Ratner (1984), 21 Ohio 

App.3d 104, 107, 487 N.E.2d 329; Sperry v. Hlutke (1984), 19 Ohio App.3d 156, 158, 

483 N.E.2d 870. Prior to the adoption of the Ohio Rules of Civil Procedure, trial courts 

possessed the inherent power to vacate their own judgments. See McCue v. Buckeye 

Union Ins. Co. (1979), 61 Ohio App.2d 101, 103, 399 N.E.2d 127. Since the adoption 

of the Civil Rules, however, Civ.R. 60(B) provides the exclusive means for a trial court to 

vacate a final judgment. Rice at 134; Cale Products, Inc. v. Orrville Bronze & Alum. 

Co. (1982), 8 Ohio App.3d 375, 378, 457 N.E.2d 854. 

{¶ 8} Civ.R. 60(B) states: 

“Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud; etc. 

 On motion and upon such terms as are just, the court may relieve a party or his 

legal representative from a final judgment, order or proceeding for the following 

reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly 

discovered evidence which by due diligence could not have been discovered in 

time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore 
5

denominated intrinsic or extrinsic), misrepresentation or other misconduct of an 

adverse party; (4) the judgment has been satisfied, released or discharged, or a 

prior judgment upon which it is based has been reversed or otherwise vacated, or it 

is no longer equitable that the judgment should have prospective application; or (5) 

any other reason justifying relief from the judgment. The motion shall be made 

within a reasonable time, and for reasons (1), (2) and (3) not more than one year 

after the judgment, order or proceeding was entered or taken. A motion under 

this subdivision (B) does not affect the finality of a judgment or suspend its 

operation. 

“The procedure for obtaining any relief from a judgment shall be by motion as 

prescribed in these rules.” 

See, also, Davis v. Davis (1992), Cuyahoga App. Nos. 60224 and 60751 (trial court had 

no authority to vacate final order without Civ.R. 60(B) motion); State, ex rel. Boardwalk 

Shopping Ctr. Inc. v. Court of Appeals for Cuyahoga Cty. (1990), 56 Ohio St.3d 33, 564 

N.E.2d 86; Hellmuth, Obata & Kassabaum at 107. 

{¶ 9} Unlike Civ.R. 60(B), Civ.R. 60(A) pertains only to the correction of orders 

that contain clerical mistakes and does not apply to situations in which prior orders are 

vacated in their entirety. Civ.R. 60(A) states: 

“Clerical mistakes in judgments, orders or other parts of the record and errors 

therein arising from oversight or omission may be corrected by the court at any 

time on its own initiative or on the motion of any party and after such notice, if 

any, as the court orders. During the pendency of an appeal, such mistakes may be 

so corrected before the appeal is docketed in the appellate court, and thereafter 

while the appeal is pending may be so corrected with leave of the appellate court.” 

{¶ 10} Thus, Civ.R. 60(A) authorizes a trial court to modify its judgments sua 

sponte, without any notice to the parties. However, Civ.R. 60(A) permits a court to 

correct only clerical mistakes arising from an oversight or omission. 
6

{¶ 11} The basic distinction between clerical mistakes that can be corrected under 

Civ.R. 60(A) and substantive mistakes that can be corrected pursuant to Civ.R. 60(B) 

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. RPM, Inc. v. Oatey Co. (1998), Medina App. No. 

2745-M, citing Kuehn v. Kuehn (1988), 55 Ohio App.3d 245, 247, 564 N.E.2d 97. 

{¶ 12} In the instant case, Dickerson failed to respond to CMHA’s motion for 

summary judgment within the 30 days allowed under Loc.R. 11. Dickerson failed to 

reply despite having been specifically alerted to the 30-day deadline in the court’s journal 

entry in which the court accepted CMHA’s motion for summary judgment. The entry 

specified that Dickerson’s response must be filed in accordance with Loc.R. 11.2

 

Moreover, in addition to failing to timely oppose summary judgment, Dickerson also 

failed to timely file a motion seeking more time. 

{¶ 13} Dickerson defends her lack of response, claiming that the trial court granted 

her an extension, pursuant to Civ.R. 56(F), during a March 22, 2011 phone conference. 

However, despite three separate entries for March 22 on the docket regarding scheduling 

 2

 Loc.R. 11 states: 

“(I) Unless otherwise ordered by the Court, (1) a party opposing a motion for summary judgment made pursuant to 

civil rule 56 may file a brief in opposition with accompanying evidentiary materials (as permitted by civil 

rule 56(C)) within thirty (30) days of service of the motion. * * * (2) Unless otherwise ordered by the court, 

motions for summary judgment shall be heard on briefs and accompanying evidentiary materials (as 

permitted by civil rule 56(C)) without oral argument.” 
7

a pretrial and trial date, there is no mention on the docket of any extension granted to 

Dickerson or any earlier request for an extension. It is well-settled that a court speaks 

through its journal entries. State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 

N.E.2d 1024, ¶47, citing Kaine v. Marion Prison Warden, 88 Ohio St.3d 454, 455, 

2000-Ohio-381, 727 N.E.2d 907. 

{¶ 14} More than one week after the 30-day deadline for filing a response to 

CMHA’s motion for summary judgment, Dickerson filed a motion for extension of time 

to respond, pursuant to Civ.R. 56(F). 

{¶ 15} A party opposing a motion for summary judgment may obtain a continuance 

pursuant to Civ.R. 56(F) by submitting affidavits that state a factual basis or provide 

sufficient reasons for the lack of supporting affidavits and the need for additional time to 

permit affidavits to be obtained or further discovery to be had. Gates Mills Invest. Co. v. 

Pepper Pike (1978), 59 Ohio App.2d 155, 168-169, 392 N.E.2d 1316. A trial court has 

discretion to grant or deny a request for a continuance pursuant to Civ.R. 56(F), and its 

decision will not be overruled absent an abuse of discretion. Id. The trial court denied 

Dickerson’s motion on April 20, 2011. 

{¶ 16} This court has previously addressed the issue of whether a trial court may 

sua sponte vacate an order granting summary judgment. In Chomor v. Euclid Clinic 

Found. (Apr. 2, 1992), Cuyahoga App. No. 62270, this court stated that: 

“[s]ummary judgment is a final appealable order and not subject to a motion to 

vacate, filed by a party to the action or by the trial court sua sponte, unless the 
8

record contains sufficient facts to establish that the judgment is void or subject to 

Civ.R. 60(B).” 

{¶ 17} In Chomor, this court found that there were no facts in the record to 

establish that the judgment granting summary judgment was void or subject to Civ.R. 

60(B). This court reversed the trial court’s order sua sponte vacating summary judgment 

and reinstated the original order granting summary judgment to the defendant. 

{¶ 18} In addition, the Eleventh District Court of Appeals in Hall v. Stabler

(Sept. 29, 2000), Lake App. No. 99-L-202, came to the same conclusion, stating: 

“We do not need to address whether appellee was required to submit an affidavit 

from a medical expert in support of his action to withstand summary judgment 

because the trial court had no jurisdiction to reverse its previous judgment granting 

summary judgment in favor of appellant. 

“After the trial court granted summary judgment in favor of appellant, on October 

14, 1999, it had no authority sua sponte to vacate that judgment. Kemper 

Securities, Inc. v. Schultz (1996), 111 Ohio App.3d 621, 625, 676 N.E.2d 1197. 

‘When the trial court awards summary judgment to a party, the judgment is final 

and can only be vacated upon the losing party’s motion to vacate in conformity 

with Civ.R. 60(B).’ Levin v. George Fraam & Sons, Inc . (1990), 65 Ohio App.3d 

841, 848, 585 N.E.2d 527. Because appellee did not file a Civ.R. 60(B) motion 

in this case, the trial court’s October 14, 1999 judgment, granting summary 

judgment in favor of appellant, remains.” 

{¶ 19} Finally, in RPM, the Ninth District Court of Appeals found that a trial court 

cannot sua sponte vacate a previous order granting summary judgment under Civ.R. 

60(A), despite a pending Civ.R. 56(F) motion to extend time to respond. RPM, like 

Dickerson, claimed that the trial court made a clerical error when it overlooked the 
9

motion for a delay pending discovery pursuant to Civ.R. 56(F). The RPM court found 

that: 

{¶ 20} “* * * even assuming that discovery had not yet been completed, the order 

granting summary judgment to Oatey was much more than a mere clerical error. The 

trial court prepared the order, signed the order, and served both parties with notice that a 

final appealable order had been issued in the case. This was not simply a blunder in 

execution; presumably, the trial court read the entire order prior to signing it and fully 

understood what was being signed. Therefore, regardless of what the trial court should 

have done, or what it may have intended to do, it deliberately granted Oatey summary 

judgment. The trial court cannot change its mind sua sponte simply because it 

determines that it should have waited until discovery was completed. See Green v. 

Ken’s Flower Shops (Nov. 10, 1994), Lucas App. No. L 94-088, unreported. But, see, 

O’Neill v. Contemporary Image Labeling, Inc. (Oct. 3, 1997), Hamilton App. No. 

C-961019, unreported.” 

{¶ 21} Following the precedent of this and other districts, we find that the trial 

court erred in sua sponte vacating its order granting summary judgment. Having granted 

the motion for summary judgment and subsequently denying the motion to extend time 

pursuant to Civ.R. 56(F), the trial court lacked jurisdiction to vacate the order granting 

summary judgment. Moreover, we find no evidence in the record to establish that the 

court’s entry granting summary judgment is void or that it was subject to a Civ.R. 60(B) 
10

motion prior to the trial court’s vacating the summary judgment.3 Thus, the trial court 

had no authority to sua sponte vacate a final judgment. Accordingly, CMHA’s first 

assignment of error is sustained. 

{¶ 22} Having sustained the first assignment of error, we need not address the 

remaining two assignments of error because they are now moot. 

Judgment reversed and case remanded to reinstate the final judgment granting 

summary judgment for CMHA. 

It is ordered that appellants recover of said appellees costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

______________________________________________ 

COLLEEN CONWAY COONEY, JUDGE 

FRANK D. CELEBREZZE, JR., P.J., and 

LARRY A. JONES, J., CONCUR 

 3

 CMHA filed the instant appeal on April 27, 2011. On July 27, 2011, Dickerson filed a motion for 

relief pursuant to Civ.R. 60(A) or (B) and a motion for remand to the trial court. The motion to remand was denied

by this court.