586 S.W.3d 873
Mo. Ct. App.2019Background:
- Fidelity sued tenants Joyce Norman and Marsha Eaton for unpaid lease-related charges (principal claimed $5,693.52 plus interest, attorneys’ fees, and costs) after they vacated leased premises in 2010; petition filed Sept. 12, 2017.
- Fidelity moved for summary judgment (filed July 19, 2018); the court entered judgments Aug. 22, 2018 awarding $5,693.52 plus 9% interest and costs but did not expressly award attorneys’ fees or clarify pre-judgment interest.
- Fidelity filed a post‑disposition motion styled as a “nunc pro tunc” amendment requesting the judgment be amended to specify principal, pre‑judgment interest, attorneys’ fees and costs; the court entered an Oct. 3, 2018 order repeating Fidelity’s requested figures.
- Tenants appealed, arguing (1) summary judgment was improper because exhibits attached to Fidelity’s motion were internally inconsistent and created genuine issues of material fact, and (2) the Oct. 3 order improperly used nunc pro tunc to substantively alter the Aug. 22 judgments.
- Court resolved jurisdictional/timeliness dispute: because the Aug. 22 judgments did not dispose of attorneys’ fees the judgments were not final; the Oct. 3 amended judgment became final and the tenants’ Nov. 12, 2018 notice of appeal was timely.
Issues:
| Issue | Fidelity's Argument | Norman/Eaton's Argument | Held |
|---|---|---|---|
| Whether the Oct. 3, 2018 order improperly used nunc pro tunc to add fees/interest | The Aug. 22 judgments omitted or ambiguously addressed fees/interest; Fidelity’s post‑disposition motion sought substantive amendment (though styled nunc pro tunc) | The court improperly used nunc pro tunc to substantively change the judgment (nunc pro tunc may only correct clerical errors) | The court treated Fidelity’s motion as an authorized motion to amend and the Oct. 3 order as an amended judgment; nunc pro tunc nomenclature was immaterial and Point II denied |
| Whether summary judgment was improper because exhibits were internally inconsistent | Movant argued its Rule 74.04(c)(1) statement of uncontroverted facts and supporting affidavit established a prima facie right to judgment | Tenants argued exhibits (responses to requests for admission) created a genuine issue of material fact (relying on Street v. Harris) | Court rejected Street as inconsistent with current Rule 74.04; tenants’ denials lacked specific evidentiary support under Rule 74.04(c)(2), so summary judgment was proper |
| Whether the appeal was untimely / appellate court lacked jurisdiction | Fidelity argued the notice of appeal was untimely | Tenants argued the appeal was timely after the Oct. 3 amended judgment | Because attorneys’ fees were unresolved, the Aug. 22 judgments were not final; the Oct. 3 order was the final judgment and the Nov. 12 notice was timely, so appellate jurisdiction exists |
Key Cases Cited
- ITT Commercial Fin. Corp. v. Mid‑Am. Marine Supply Corp., 854 S.W.2d 371 (Mo. banc 1993) (materials attached to a motion may defeat a movant’s prima facie showing when inconsistent, but decision predates current Rule 74.04 amendments)
- Spicer v. Donald N. Spicer Revocable Living Tr., 336 S.W.3d 466 (Mo. banc 2011) (timely filing of notice of appeal is jurisdictional and Rule 75.01 governs post‑judgment trial court control)
- McGuire v. Kenoma, LLC, 447 S.W.3d 659 (Mo. banc 2014) (nunc pro tunc cannot add matters not reflected in the record once the court has lost jurisdiction)
- Street v. Harris, 505 S.W.3d 414 (Mo. App. E.D. 2016) (held inconsistencies in exhibits could defeat movant’s prima facie case; court here characterizes Street as an aberration)
- Great S. Bank v. Blue Chalk Constr., LLC, 497 S.W.3d 825 (Mo. App. S.D. 2016) (explains Rule 74.04(c) burdens: movant must state numbered uncontroverted facts with specific evidentiary references; non‑movant must specifically admit/deny with citations)
- Chastain v. Geary, 539 S.W.3d 841 (Mo. App. W.D. 2017) (nunc pro tunc may not be used to effect what the court intended but failed to do; distinguishes clerical correction from substantive change)