447 S.W.3d 659
Mo.2014Background
- Twelve plaintiffs sued Synergy, LLC and Kenoma, LLC alleging their hog operations were a temporary nuisance; a jury awarded damages and the trial court entered final judgment on May 10, 2011.
- The original judgment did not state post-judgment interest or the statutory interest rate required by § 408.040. Plaintiffs did not file a timely post-trial motion or appeal raising that omission.
- On appeal the court of appeals partly affirmed and partly reversed; no remand occurred. Mandate issued September 27, 2012.
- After mandate, plaintiffs moved (Oct. 2, 2012) for a nunc pro tunc amendment to the final judgment to add statutory post-judgment interest (5.09%) retroactive to May 10, 2011; trial court granted and entered a nunc pro tunc judgment awarding interest and costs.
- Synergy appealed, arguing nunc pro tunc may only correct clerical errors reflected in the record and cannot be used to make substantive changes (such as adding statutorily mandated interest) absent record evidence the court actually intended the award when the original judgment was entered. The Supreme Court of Missouri reversed the nunc pro tunc award of interest and otherwise affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a trial court may use nunc pro tunc to add statutory post-judgment interest to a final judgment when the record contains no evidence the court intended to award interest | The omission is a clerical error; Rule 74.06(a) allows correction of omissions from oversight and a statutory interest award is mandatory, so nunc pro tunc may conform the judgment to the statute | Nunc pro tunc is limited to correcting clerical errors that reflect what the court actually did; adding statutory interest without record evidence is a substantive change and improper via nunc pro tunc | Nunc pro tunc cannot be used to add post-judgment interest absent record evidence the court actually made that award; the nunc pro tunc amendment awarding interest was reversed |
Key Cases Cited
- Pirtle v. Cook, 956 S.W.2d 235 (Mo. banc 1997) (codified common-law nunc pro tunc corrects the record to reflect what was actually done)
- Soehlke v. Soehlke, 398 S.W.3d 10 (Mo. banc 2013) (nunc pro tunc cannot order what was not actually done)
- State ex rel. Missouri Highway & Transp. Comm’n v. Roth, 735 S.W.2d 19 (Mo. App. 1987) (omission of mandatory statutory language presumed clerical; contrasted by this Court)
- City of Ferguson v. Nelson, 438 S.W.2d 249 (Mo. 1969) (nunc pro tunc cannot be used to correct mere errors that change substantive rights)
- Scharlott v. Gibson, 463 S.W.2d 849 (Mo. 1971) (parties’ post-judgment agreement cannot supply nunc pro tunc correction absent record support)
- Childers v. State, 502 S.W.2d 249 (Mo. 1973) (evidence for nunc pro tunc must be discernible from judge’s minutes, clerk’s entries, or some paper in the cause)