Decision Date23 September 2010
Docket NumberNo. SD 30249.,SD 30249.
Citation323 S.W.3d 447
PartiesPaul BRYANT and Gloria R. REYNOLDS, Carol E. Whitaker, Tracy Scott Reynolds, Ramona L. Kindrick and Debra J. Reynolds, Plaintiffs-Appellants, v. CARTER COUNTY, Missouri and Commissioners Eddie Ballard, Lynn Murdick, and Gene Oakley, Defendants-Respondents.
CourtMissouri Court of Appeals


Devin Kirby, Doniphan, MO, for Appellants.

Ivan L. Schraeder, St. Louis, MO, for Respondents.


Paul Bryant and Jerry Reynolds (Plaintiffs) each served as the Sheriff of Carter County. Each sued Carter County and its Commissioners, Eddie Ballard, Lynn Murdick, and Gene Oakley, (Defendants) for past wages they claimed they should have received. The case was ultimately submitted to the trial judge on stipulated facts. After the trial court entered a judgment awarding each plaintiff monetary damages, Defendants filed a motion for new trial. The trial court granted Defendants' request without stating any grounds for its ruling. Plaintiffs now appeal that decision.

Because the trial court did not specify “the ground or grounds on which the new trial [was] granted,” Plaintiffs filed a Rule 84.05(c) 1 statement requesting that Defendants file the opening brief. This switch in the usual briefing order is allowed because the trial court's failure to identify the ground(s) for its order results in a “presumption [ ] that the trial court erroneously granted the motion for new trial and the burden of supporting such action is placed on the respondent.” Rule 84.04(c).

Defendants' opening brief asserts two points: 1) the trial court did not err in granting a new trial because it lacked “subject matter jurisdiction” over Plaintiffs' claims because they were time-barred by the applicable statute of limitation; and 2) the trial court did not err in correcting the date of its decision to order a new trial via a nunc pro tunc order.

Because Defendants have failed to demonstrate that a new trial was required on nondiscretionary grounds, and Defendants have failed to rebut the presumption of error, the trial court's order granting a new trial must be reversed.

Factual and Procedural Background

To put it mildly, this case has a somewhat tortured history. Plaintiffs filed their petition in Carter County more than eight years ago. Defendants initially responded with a general motion to dismiss for failure to state a claim. In July 2002, Plaintiffs filed a motion seeking both a change of judge and change of venue. Although the court's order in response to that motion has not been included in the record on appeal, the change of judge request was apparently granted the next day, and a series of special judges were assigned to hear the case. In May 2005-three years after it was filed-the trial court denied Defendants' motion to dismiss. 2 Defendants filed an answer on June 1, 2005, and the case was scheduled for a bench trial. Defendants' answer contained an affirmative assertion that Plaintiffs' causes of action are barred by the Statue [sic] of Limitations.” No specific statute was referenced, and no facts were averred in support of the alleged defense.

In January 2007, the parties filed a “Joint Stipulation in Lieu of Live Testimony.” Among other things, the stipulation provided that Carter County had less than 8,000 inhabitants and set forth the method the county used to determine the salaries of elected officials, along with a schedule of the salaries actually paid Plaintiffs during their respective years in office. The parties stipulated that: Plaintiff Bryant was the duly elected sheriff of Carter County from January 1, 1985, to December 31, 1992, and again from January 1, 1997, to December 31, 2000; Plaintiff Reynolds was the duly elected sheriff from January 1, 1993, to December 31, 1996; Carter County paid its Sheriff $13,750.00 per year from 1985 to 1996 and $25,000 per year from 1997 through 2000. The stipulation contained no other facts that might support a statute of limitation defense and made no reference to any particular statute that might apply.

In June 2007, Judge Mark Richardson was assigned to the case. By agreement of the parties, the case was then transferred to Butler County. After the parties submitted written suggestions, Judge Richardson took the case under submission. On March 21, 2008, Judge Richardson entered a judgment awarding each plaintiff $70,824.00 plus statutory interest at 9% per year. The judgment included findings of fact, grounds for the decision, and the method the court used to calculate Plaintiffs' damages. 3 The judgment contained no findings or grounds regarding any statute of limitation defense.

Defendants responded to the judgment by filing their motion for new trial on April 11, 2008. On June 9, 2008, Judge Richardson held a hearing on Defendants' motion. At that hearing, Defendants argued that the case should have been dismissed or the judgment set aside because: 1) the claims were barred by the statute of limitation; 2) some of the plaintiffs lacked standing to pursue the case; 3) the trial court lacked jurisdiction; and 4) the wrong parties were named as defendants in the action. Judge Richardson took the motion under advisement.

On July 10, 2008, the 90th day after Defendants filed their motion for new trial, Defendants filed a notice of appeal that challenged the judgment entered in favor of Plaintiffs. The next day-the 91st day after Defendants filed their motion for new trial-the following entry appeared in the court's docket record: Court reviews Motion for New Trial and hereby sustains said motion. Clerk to notify counsel. So Ordered. MLR [Judge Richardson's initials] [.] On July 21, 2008, the court made the following docket entry: Court enters nunc pro tunc order to correct the scrivener's error dating said order 7/11/08 to be changed to 7/10/08. Clerk to notify counsel. So Ordered. MLR[.]

Defendants continued to pursue their appeal of the trial court's underlying March 21, 2008, judgment because they were unsure of the effectiveness of the trial court's July 21st nunc pro tunc order. This court subsequently held that the July 21st order was properly used to correct a scrivener's error and the trial court had therefore timely granted Defendants' motion for new trial on the last day it had the authority to do so, July 10, 2008. See Bryant v. Carter Cnty., 283 S.W.3d 802, 803-04 (Mo.App. S.D.2009) (“ Bryant I ”). The timely entry of the new trial order meant that the March 21, 2008, judgment in favor of Plaintiffs was no longer a final judgment, and Defendants' appeal was dismissed for that reason. Id. at 804.

Before this court had issued its opinion in Bryant I, Plaintiffs attempted to appeal the new trial order. We dismissed Plaintiffs' appeal at that time on the grounds that it was not taken from a final, appealable judgment. Plaintiffs sought to overturn that ruling by filing a petition for writ of prohibition with our Supreme Court on March 19, 2009. That request for extraordinary relief was denied.

In the meantime, Judge Richardson retired from the bench. The Honorable Robert Smith was appointed to replace him on October 21, 2009. On December 14, 2009, after our mandate had issued in Bryant I, Judge Smith entered a “Judgment and Decree” which stated, “Upon review of the file, the Court hereby declares that the docket entry of July 11, 2008, as amended by the Nunc Pro Tunc docket entry of July 21, 2008, granting a new trial is a final decree for purposes of RSMo. § 512.020.” 4 This appeal timely followed.


We will address Defendants' second point first. This court upheld the validity of Judge Richardson's July 21, 2008, nunc pro tunc order in Bryant I. Absent a showing that our decision relied on a mistaken fact, resulted in “manifest injustice,” or was followed by a change in the law, there is no need to readdress it. See Walton v. City of Berkeley, 223 S.W.3d 126, 128-30 (Mo. banc 2007). None of these exceptions to the “law of the case doctrine apply here. Defendants' second point is correct; the trial court's decision to grant a new trial was not erroneous simply because a nunc pro tunc order was used to correct the date of its issuance.

Defendants' first point asserts, “The trial court did not err in granting [Defendants'] motion for new trial based on the affirmative defense of the statute of limitations under [section] 516.120 because the court lacked subject matter jurisdiction over [Plaintiffs'] claims, in that the claims are time-barred under [section] 516.120 since [Plaintiffs] did not file their lawsuit until after five years had elapsed from the date the cause of action accrued.” 5 Plaintiffs responded that Defendants “failed to show a legal nondiscretionary basis to support the granting of a new trial in that the trial court failed to specify the ground(s) upon which the motion for new trial was granted.” Plaintiffs are correct.

Rule 78.03 states, “Every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted.” Rule 84.05(c) provides that [w]hen a trial court grants a new trial without specifying of record the ground or grounds on which the new trial is granted, the presumption shall be that the trial court erroneously granted the motion for new trial and the burden of supporting such action is placed on the respondent.” Thus, [w]hen a trial court enters an order for new trial but fails to specify reasons for ordering a new trial, the trial court's actions are presumed to be erroneous.” Greek by Greek v. Midwestern Tel., Inc., 880 S.W.2d 364, 365 (Mo.App. S.D.1994).

Defendants mistakenly assert that we should review the trial court's decision to grant a new trial for an abuse of discretion, citing Thurman v. St. Andrews Mgmt. Servs., Inc., 268 S.W.3d 434 (Mo.App. E.D.2008). But in Thurman, [t]he trial court granted Plaintiffs' motion for a new trial ‘on the grounds that the court erred in...

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