Dobson v. Riedel Survey & Engineering Co., Inc.
| Decision Date | 18 August 1998 |
| Docket Number | No. WD,WD |
| Citation | 973 S.W.2d 918 |
| Court | Missouri Court of Appeals |
| Parties | Leon DOBSON, Appellant, v. RIEDEL SURVEY & ENGINEERING CO., INC., Respondent. 55021. |
William J. Daily, Glasgow, for appellant.
Kenneth M. Hayden, Versailles, for respondent.
Before ULRICH, C.J., P.J., and BRECKENRIDGE and SMART, JJ.
This case involves an attempt by a trial court to correct an allegedly erroneous judgment entry seven months after the entry of judgment. The appellant, Leon Dobson, contends that the court cannot amend the judgment to correct an alleged clerical error without some objective substantiation from the record that a clerical error was made. Because we agree, and because we conclude that in this case there is no substantiation in the record we vacate the trial court's order attempting to correct the previously entered judgment.
On February 21, 1997, Leon Dobson filed suit against Riedel Survey & Engineering Co., Inc. ("Riedel"), in the small claims division of the Circuit Court of Howard County. He asked for judgment in the amount of $3,000.00 against Riedel. Riedel filed a counterclaim on March 4, 1997, praying for judgment in the amount of $3,000.00 against Dobson. The court's docket sheet entry of March 18, 1997 shows the following entries made on a pre-printed form:
JUDGMENT MEMO
Cause Called
/ Plaintiff(s) appear(s) in person/by Agent/Attorney _______________
----
/ Defendant(s) appear(s) in person/by Agent/Attorney _______________
---- Defendant(s) remain in DEFAULT although called thrice
----
Cause submitted and heard, evidence adduced. Court enters judgment as
follows
Judgment in favor of the plaintiff(s) on plaintiff's petition in the
sum of $3,000.00
----
/ Judgment in favor of the defendant(s) on plaintiff's petition.
----
/ and in favor of plaintiff(s) on defendant's counter-claim.
---- and in favor of defendant(s) on defendant's counter-claim in the sum
of $ __________
---- Execution stayed on condition defendant(s) __________.
----
Costs assessed against [/] Defendant(s) [ ] Plaintiff(s)
SO ORDERED: _______________
The next entry on the docket sheet is dated September 10, 1997, some six months later. It states:
Clerk presents file to Ct. for review. Ct. notes that judgment memo does not correctly reflect the findings by the Ct. from the Ev. as presented by the parties. The Ct. notes that it has no authority to proceed at this time. Clerk to notify B & y's atty.
Notice of this docket entry was mailed to the parties on September 11, 1997. On September 18, 1997, Riedel filed a motion to correct the judgment. In its motion, Riedel claimed that as a result of a clerical error, the judgment incorrectly reflects that Dobson was awarded judgment, the opposite of what, according to Riedel, the court announced during the hearing on the matter. The court set Riedel's motion for hearing. Dobson claimed that the trial court did not have jurisdiction because Riedel's motion was filed more than thirty days after the judgment. Dobson claimed that Rule 74.06(a) did not authorize an order nunc pro tunc because no error exists, or, if an error does exist, it was not shown to be a clerical error. The court denied Dobson's motion to dismiss and granted Riedel's motion to correct the judgment. In its judgment, the court stated:
NOW ON THIS 7th day of October, 1997, the Defendant's Motion to Correct Judgment does come before this court for hearing. The Plaintiff does appear in person and by and through counsel of record, William J. Daily, for the limited purpose of objecting to the jurisdiction of this court to entertain said motion; the Defendant does appear by and through its attorney of record, Kenneth M. Hayden; whereupon the court does hear the argument presented by counsel for Plaintiff and Defendant in this case, and does hereby make the following findings:
1. On March 18, 1997, this cause came on before the court. Plaintiff appeared in person; Defendant appeared by and through Shirley Riedel, Jerry Riedel, Dexter Slagle and Danny Denrow.
2. After hearing evidence and being duly advised in the premises, the court announced and all parties were advised that the court was rendering judgment in favor of the Defendant on Plaintiff's petition and in favor of the Defendant on Defendant's counterclaim in the sum of Three Thousand Dollars ($3,000.00), with costs taxed against Plaintiff.
3. The court further finds that after rendition of the judgment in favor of Defendant on Plaintiff's claim and in favor of Defendant on Defendant's counterclaim against Plaintiff that the court in performing the ministerial act of entering said judgment on the record made a mechanical clerical error in checking the inappropriate blanks in its judgment memo form, so as to inaccurately set forth the judgment on the docket sheet.
4. The court has acknowledged that the judgment memo of March 18, 1997, does not correctly reflect the judgment by the court from the evidence as presented by the parties on March 18, 1997.
WHEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that this court's judgment entered on March 18, 1997, is hereby corrected to accurately reflect this court's judgment of March 18, 1997, finding in favor of Defendant and against Plaintiff on Plaintiff's claim against Defendant and in favor of Defendant, Riedel Survey and Engineering, Inc. in the amount of Three Thousand Dollars ($3,000.00) against Plaintiff on Defendant, Riedel Survey and Engineering, Inc.'s counterclaim with costs being taxed to the Plaintiff.
Dobson appeals.
In his sole point, Dobson argues that the trial court erred when it entered its order nunc pro tunc on October 7, 1997, changing its earlier judgment entered March 18, 1997 on the basis of clerical error. Dobson claims that there was no competent evidence of a clerical error sufficient to overcome the presumption that the original judgment was correct. He points out that there is no record of the hearing and there are no docket entries, judge's minutes or other papers that would support an order nunc pro tunc. He also contends that the judge's memory is not a proper basis for an order nunc pro tunc. Riedel, on the other hand, contends that the trial court did not err in entering judgment nunc pro tunc on the basis that the court made a ministerial clerical error in checking the incorrect boxes on the judgment form. Riedel claims that there is competent evidence in the docket sheet and court file containing docket entries, pleadings and a judgment to support the order nunc pro tunc that speaks the truth of what happened on March 18, 1997.
In Pirtle v. Cook, 956 S.W.2d 235 (Mo. banc 1997), the Missouri Supreme Court provides a comprehensive review of the power that a court retains over its judgments. The court pointed out that a court's power to change its judgments is a threat to the finality of judgments and is, therefore, limited. Id. at 240. The jurisdiction of a court over its judgments is distinguished from its jurisdiction over its records. In the former case, Rule 75.01 prescribes a thirty-day period in which the court retains jurisdiction over a judgment. As to its records, however, a court's jurisdiction is not bound by time constraints. Id. Correction of the court's records may be made at any time, notwithstanding the question of whether the court has jurisdiction over the cause. Correction of the records is, however, severely constrained by the nature of the change sought.
As the court in Miller v. Varity Corp., 922 S.W.2d 821, 824 (Mo.App.1996) notes, the term "nunc pro tunc" is a Latin rendition of the phrase "now for then." Use of an order nunc pro tunc is extremely limited. Blake v. Irwin, 913 S.W.2d 923, 933 (Mo.App.1996). It is intended as a device whereby a court may correct clerical errors or omissions in the record that inaccurately reflect the judgment actually rendered by the court. Pirtle, 956 S.W.2d at 240. A nunc pro tunc amendment may not be used to alter or amend the judgment rendered. Id. The Pirtle court looks to the nature of the court's order; whether it changes the original judgment in the case or whether the change is merely to the record. Id. at 242. It is the nature of the error that is at issue, not the identity of the person making the error. A judge may make a clerical error. Blankenship v. Grandy's, Inc., 839 S.W.2d 680, 683 (Mo.App.1992).
Parol evidence will not support an order nunc pro tunc, and there must be a source supporting the order in the court's record or papers. Miller, 922 S.W.2d at 824. This has been the rule in Missouri for over one hundred years. See Ross v. Kansas City, Ft.S. & M.R. Co., 141 Mo. 390, 395, 38 S.W. 926, 927 (1897). A judge's recollection of what occurred may not serve as the basis for an order nunc pro tunc. Id.; Meek v. Pizza Inn, 903 S.W.2d 541, 545 (Mo.App.1995); Blankenship, 839 S.W.2d at 683. "It is not proper to amend a decree nunc pro tunc to correct judicial inadvertence, omission, oversight or error, or to show what the court might or should have done as distinguished from what it actually did, or to conform to what the court intended to do but did not do." In re Marriage of Royall, 569 S.W.2d 369, 371 (Mo.App.1978).
Under Rule 75.01 of the Supreme Court Rules, a trial court has the same power during a 30-day period following rendition of a judgment to vacate, modify or set aside the judgment that common law courts traditionally possessed during the same term of court that a judgment was entered. After the abolition in Missouri of the concept of terms of court, the court's...
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