McGuire v. Kenoma, LLC

• Decision Date: 12 November 2014
• Docket Number: No. SC 93836,SC 93836
• Citation: 447 S.W.3d 659
• Court: Missouri Supreme Court
• Parties: Zach McGuire, et al., Respondents, v. Kenoma, LLC, et al., Appellants.

447 S.W.3d 659

Zach McGuire, et al., Respondents

v.Kenoma, LLC, et al., Appellants.

No. SC 93836

SUPREME COURT OF MISSOURI en banc

Opinion issued November 12, 2014

The companies were represented by Jean Paul Bradshaw II, Chad E. Blomberg and Mara H. Cohara of Lathrop & Gage LLP in Kansas City, (816) 292-2000.

The plaintiffs were represented by Anthony L. DeWitt, Edward D. Robertson Jr. and Mary D. Winter of Bartimus, Frickleton, Robertson & Gorny LLC in Jefferson City, (573) 659-4454; and Charles F. Speer and Peter B. Bieri of The Speer Law Firm in Kansas City, (816) 472-3560.

Opinion

Patricia Breckenridge, Judge

Synergy, LLC, and Kenoma, LLC, (collectively “Synergy”) appeal the trial court's nunc pro tunc judgment awarding the plaintiffs statutory post-judgment interest on the damages awarded on their tort claims. In its sole point on appeal, Synergy asserts that the trial court erred in entering the nunc pro tunc judgment because a nunc pro tunc judgment may only be used to correct clerical errors and the record reflects that the award of statutory post-judgment interest was not requested or actually awarded until after the judgment became final. It claims this amendment of the judgment is a substantive change, not a correction of a clerical error. Because there is nothing in the record to reflect that the trial court intended to award post-judgment interest in its original judgment, this Court reverses the provisions in the trial court's nunc pro tunc judgment that awarded post-judgment interest.

Factual and Procedural Background

This case was initiated by twelve plaintiffs who filed suit against Synergy, claiming that its large-scale hog operations constituted a temporary nuisance. On May 10, 2011, the trial court entered a judgment against Synergy following a jury trial awarding the plaintiffs damages on their tort claims. The judgment did not award post-judgment interest or state an applicable interest rate as prescribed in section 408.040.¹ Despite this omission, the plaintiffs did not file a timely post-trial motion to request the inclusion of post-judgment interest, seek to amend the judgment, or file an appeal claiming error in the judgment.

In the appeal by Synergy of the original judgment, the court of appeals affirmed the judgment, in part, and reversed it, in part. McGuire v. Kenoma, LLC, 375 S.W.3d 157 (Mo.App.2012). Because all errors were corrected by the court of appeals in its opinion, it did not remand the case. Id. at 179, 190. After the court of appeals and this Court denied Synergy's post-opinion motions, the court of appeals issued its mandate on September 27, 2012.

After the mandate issued, the plaintiffs filed a motion in the trial court on October 2, 2012, asking the court to award post-judgment interest, set the post-judgment interest rate, and affix their costs. The motion requested an amendment nunc pro tunc of the now final judgment so the plaintiffs could receive post-judgment interest at a rate of 5.09 percent on a principal sum of $1.51 million, retroactive to May 10, 2011. Synergy filed an opposition to the plaintiffs' motion, and the trial court held a hearing. At the conclusion of the hearing, the trial court orally granted the plaintiffs' motion.

Thereafter, the trial court entered its “Nunc Pro Tunc Journal Entry,” retroactively amending the May 10, 2011 judgment to award the plaintiffs the interest requested and affix costs.² Synergy filed a notice of appeal within ten days of the trial court's decision. Due to the omission of the word “judgment” in its original nunc pro tunc journal entry, the trial court then entered a corrected judgment titled “Nunc Pro Tunc Journal Entry and Judgment.” Synergy appealed, contending the trial court erred in entering its nunc pro tunc judgment because the trial court's failure to determine the post-judgment interest rate was a substantive error, not a clerical error, and nunc pro tunc was not an appropriate remedy. This Court granted transfer after an opinion by the court of appeals. Mo. Const. art. V, sec. 10.

Standard of Review

The interpretation of a Missouri statute is a question of law that this Court reviews de novo. Kivland v. Columbia Orthopaedic Grp., LLP, 331 S.W.3d 299, 311 (Mo. banc 2011). When there are no factual disputes, the application of a statute is also reviewed de novo. Billings v. Div. of Employment Sec., 399 S.W.3d 804, 806 (Mo. banc 2013). Additionally, the rules of the Supreme Court of Missouri are reviewed de novo because “ ‘[t]his Court interprets its rules by applying the same principles used for interpreting statutes.’ ” In re Hess, 406 S.W.3d 37, 43 (Mo. banc 2013). When only legal issues are at stake, this Court reviews the trial court's judgment de novo. Dudley v. Agniel, 207 S.W.3d 617, 618 (Mo. banc 2006).

The Proper Use of Nunc Pro Tunc Judgments

The issue on appeal is whether a trial court may enter a nunc pro tunc judgment to award plaintiffs statutory post-judgment interest in a tort action when there is no indication in the record that the trial court intended to set an interest rate or order payment of interest until after the judgment became final. Since 1988, Rule 74.06(a) governs nunc pro tunc judgments. Section 408.040 regulates awards of post-judgment interest.³

Nunc pro tunc emerged as a common law power to allow a court that has lost jurisdiction over a case to maintain jurisdiction over its records to correct clerical mistakes in the judgment arising from either scrivener's errors or from omissions that are indicated in the record but are not recorded in the original judgment. Pirtle v. Cook, 956 S.W.2d 235, 240 (Mo. banc 1997). The court retains jurisdiction over its records so that it may “amend its records according to the truth, so that they should accurately express the history of the proceedings which actually occurred prior to the appeal.” DeKalb Cnty. v. Hixon, 44 Mo. 341, 342 (Mo.1869). The label “clerical mistake” is not intended to designate who made the mistake, but what type of mistake was made. Gordon v. Gordon, 390 S.W.2d 583, 586–87 (Mo.App.1965). As such, a clerical mistake can be committed by a judge or clerk. Id. But the correction of the mistake must be clerical insofar as it must not effect a substantive change to the party's rights. Pirtle, 956 S.W.2d at 242–43. A nunc pro tunc correction is confined to “that which was actually done ... it may not be used to order that which was not actually done, or to change or modify the action which was taken.” Soehlke v. Soehlke, 398 S.W.3d 10, 22 (Mo. banc 2013) (internal quotations and citations omitted).

Nunc pro tunc cannot be used to add anything to the judgment that is not in some way already reflected in the record, even if a judge should have included or intended to include the omission or has a laudatory motive in wanting to amend the judgment. City of Ferguson v. Nelson, 438 S.W.2d 249, 253 (Mo.1969) ; see also Soehlke, 398 S.W.3d at 21 (finding a nunc pro tunc judgment was not authorized under Rule 74.06(a), “[h]owever laudatory the court's purpose”). Nunc pro tunc cannot even be used to amend the judgment “by agreement and consent of the parties with the approval of the court” unless this agreement is supported in the original record. Scharlott v. Gibson, 463 S.W.2d 849, 850 (Mo.1971). This Court has narrowly defined “a clerical mistake” as “a mistake in writing or copying.” Higher Educ. Assistance Foundation v. Hensley, 841 S.W.2d 660, 662–63 (Mo.1992). The narrowly proscribed purpose of nunc pro tunc is to allow the trial court to amend its judgment so that the judgment will conform to what is actually evidenced in the record. Pirtle, 956 S.W.2d at 240.

In this way, nunc pro tunc can be contrasted with a court's power to amend a judgment when it still retains jurisdiction over the case. Under Rule 75.01, within 30 days after issuing the judgment, a trial court may, “after giving the parties an opportunity to be heard and for good cause, vacate, reopen, correct, amend, or modify its judgment within that time.” Rule 75.01. This Court has contrasted the purpose of Rule 75.01, to “simplify or forestall any further litigation at the appellate level,” with the purpose of nunc pro tunc to “make the record conform.” Pirtle, 956 S.W.2d at 241 (citations omitted). Unlike Rule 75.01, a nunc pro tunc judgment is not a “judicial declaration of the parties' rights” but merely a judicial power to ensure the accuracy of its own records. Id. at 242. Moreover, unlike an amended judgment under Rule 75.01, a correction by a nunc pro tunc judgment does not create a new judgment.

Id. at 239. Instead, the corrected judgment relates back to the time the original judgment was issued, with nothing changed regarding the time limit for appeals of the original judgment and no notice or opportunity to be heard is required. Id. at 241.

In 1988, Rule 74.06(a) codified common law nunc pro tunc. Pirtle, 956 S.W.2d at 240. Rule 74.06(a) provides:

Clerical Mistakes—Procedure. 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 of its own initiative or on the motion of any party and after such notice, if any, as the court orders.

The plaintiffs argue that Rule 74.06(a) made changes in civil procedure by “changing from a common-law based standard for orders nunc pro tunc to a rule-based standard under Rule 74.06(a)” such that “[f]rom that point forward the plain language of the Rule, and not the prior common law, dictated the use of nunc pro tunc, ” having “replaced and superseded the common law.” The plaintiffs contend that Rule 74.06(a) no longer requires that a nunc pro tunc judgment only corrects “what was actually done” but instead allows “a mechanism to correct omissions in judgments, so long as those omissions result from oversights.”

Plaintiffs maintain that the omission of the post-judgment interest is a clerical omission because there is a...