FIDELITY REAL ESTATE COMPANY, Rеspondent, v. JOYCE E. NORMAN and MARSHA L. EATON, Appellants.
WD82282
IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT
November 5, 2019
Before Division Four: Karen King Mitchell, Chief Judge, and Gary D. Witt and Anthony Rex Gabbert, Judges
Appeal from the Circuit Court of Jackson County, Missouri, The Honorable Cory L. Atkins,
Joyce Norman and Marsha Eaton (“Tenants“)1 appeal from the lower court‘s grant of summary judgment in favor of Fidelity Real Estate Company (“Landlord“) on its contract action against Norman and Eaton arising from a prior landlord/tenant relationship. Tenants raise two claims on appeal. First, they argue that the lower court improperly granted summary judgment because Landlord failed to establish a prima facie case demonstrating it was entitled to judgment as a matter of law insofar as the documents attached to its summary judgment motions were inconsistent with respect to a material fact. Second, they argue that the lower court improperly awarded attorneys’ fees, costs, and interest to Landlord in a nunc pro tunc order insofar as the court‘s failure to initially award these items did not constitute a clerical error or omission that could be remedied by a nunc pro tunc order. We affirm.
Background
On September 12, 2017, Landlord filed a petition against Tenants, alleging that Landlord and Tenants executed a lease agreement on real property located in Kansas City, Missouri, on March 13, 2006. According to the petition, Tenants vacated the property on December 1, 2010. The petition further alleged that Landlord conducted a walk-through of the property on December 7, 2010, and discovered a variety of needed repairs. Landlord alleged that, in the lease agreement, Tenants agreed to be liable for such repairs. Landlord claimed that Tenants failed to pay as agreed in the lease and that Landlord sent Tenants a demand letter on December 26, 2010. According to Landlord, Tenants failed to make payment following the demand letter, so Landlord filed its petition, seeking damages in the amоunt of $5,693.52 for the remaining balance owed on the lease; interest in the amount of 9.00% per annum beginning January 21, 2011; reasonable attorneys’ fees and costs accrued and that continued to accrue for the suit; unpaid costs and expenses incurred and those that continued to accrue in the collection and enforcement of Landlord‘s rights under the contract; and post-judgment interest in the amount of 9.00% per annum.2
On July 19, 2018, Landlord filed motions for summary judgment against Tenants
Now on this 22[nd] day of August, 2018, the Court takes up Plaintiff‘s First Motion For Summary Judgment Against [Tenant], filed July 19, 2018. Upon review of the pleadings, record, and relevant law, Judgment is GRANTED in favor of Plaintiff in the amount of $5,693.52, plus interest at the statutory rate of 9% per annum pursuant to R.S.Mo. Section 408.020, plus costs.
(Emphasis in original.)
On September 4, 2018, Tenant Norman filed a Motion to Set Aside the Judgment,4 arguing that the lower court failed to consider her timely filed response to Landlord‘s motion for summary judgment. The lower court held a hearing on September 12, 2018, after which it denied Tenant Norman‘s motion.5
One week later, Landlord filed a “Motion for Nunc Pro Tunc Amendment of the August 22nd 2018 Judgments,” wherein Landlord argued that the judgments were ambiguous with respect to Landlord‘s request for pre-judgment interest and omitted any ruling on Landlord‘s request for attorneys’ fees. In the motion, Landlord requested that the lower court amend[] . . . the judgments to reflect the following account:
“Summary Judgment is GRANTED in favor of Plaintiff in the amount of:
Principal: $5,693.52 Interest to August 22, 2018: $3,887.35 Attorneys’ Fees: $854.02 Court Costs: $62.50 Certified Mail Fees: $12.40 Process Service Fees Incurred: $160.00 TOTAL JUDGMENT: $10,669.79, plus post-judgment interest at the rate of 9.00% per annum, and Court costs incurred hereafter as authorized by law.”
On October 1, 2018, Tenant Norman filed an objection to Landlord‘s motion, arguing that Landlord‘s motion was improper insofar as the nunc pro tunc procedure is permissible solely to correct clerical errоrs and not as a vehicle to substantively change a judgment.6 On October 3, 2018, the lower court entered a single “Order Amending August 22nd 2018 Judgments Nunc Pro Tunc,” naming both Tenants as defendants, wherein it repeated verbatim Landlord‘s requested amendment. Tenants jointly filed a notice of appeal on November 12, 2018.
Jurisdiction
Before addressing the merits of Tenants’ appeal, we must first address Landlord‘s contention that we lack appellate jurisdiction. After Tenants filed their brief on appeal, Landlord filed a motion to dismiss the appeal, arguing that we lack appellate jurisdiction because Tenants’ notice of appeal was untimely. We disagree.
“Timely filing of a notice of appeal is jurisdictional.” Spicer v. Donald N. Spicer Revocable Living Tr., 336 S.W.3d 466, 471 (Mo. banc 2011) (quoting Berger v. Cameron Mut. Ins. Co., 173 S.W.3d 639, 640 (Mo. banc 2005)). “If a notice of appeal is untimely, the appellate court is without jurisdiction and must dismiss the appeal.” Id. (quoting Popular Leasing USA, Inc. v. Universal Art Corp. of New York, 57 S.W.3d 875, 877 (Mo. App. E.D. 2001)). To be timely filed, a notice of appeal must be filed within ten days of the underlying judgment becoming final.
“Rule 75.01 provides that ‘the trial court retains control over judgments during the 30-day period after entry of judgment and may, after giving the parties an opportunity to be heard and for good cause, vacate, reopen, correct, amend or modify its judgments within that time period.‘” Spicer, 336 S.W.3d at 468 (quoting
The initial judgments were entered on August 22, 2018. These judgments, however, were not final insofar as they failed to dispose of all issues. “A judgment that does not dispose of all of the issues pending in an adjudication is not a final judgment.” State ex rel. Kinder v. Dandurand, 261 S.W.3d 667, 671 (Mo. App. W.D. 2008). “If a judgment is not final, Rule 75.01 does not apply, and the circuit court retains jurisdiction to enter a final judgment disposing of all remaining issues.” Id. Here, the initial judgments did not address Landlord‘s request for attorneys’ fees, and “[a]n unresolved claim for attorney‘s fees can arrest the finality of a judgment” if the request was properly pled in the petition. Ruby v. Troupe, 580 S.W.3d 112, 114 (Mo. App. W.D. 2019) (emphasis removed).
“To be awarded attorney‘s fees, a party must plead a basis for an award of fees, in addition to simply including a request for attorney‘s fees in its prayer for relief.” Id. at 115. “Attorney fees are recoverable in two situations: when a statute specifically authorizes recovery and when the contract provides for attorney fees.” Id. (quoting Lucas Stucco & EIFS Design, LLC v. Landau, 324 S.W.3d 444, 445 (Mo. banc 2010)) (emphasis added). In its petition, Landlord pleaded that “the Lease provides [Tenants] may be liable for [Landlord‘s] collection costs and attorneys’ fees.” The petition also sought reasonable attorneys’ fees in the prayer for relief. And Landlord continued to pursue attorneys’ fees through its post-trial mоtion.8 As such, the issue of attorneys’ fees was properly pled and pursued, and required resolution by the lower court before any judgment issued could be deemed final. Because the August 22, 2018 judgments did not address Landlord‘s request for attorneys’ fees, they failed to resolve all issues and therefore could not become final. It was not until the court issued its October 3, 2018 order amending the initial judgments that the court finally resolved all pending issues. As such, only the October 3, 2018 order was capable of becoming a final judgment.
Because no authorized post-disposition motions were filed after this order, per
Analysis
Tenants raise two points on appeal. First, they argue that the lower court erred in granting summary judgment because one of the exhibits attached to one of Landlord‘s motions exhibited internal inconsistencies with respect to material facts and, therefore, Landlord failed to establish a prima facie casе that it was entitled to judgment as a matter of law. Second, they argue that the lower court erred in amending the original judgments through an order nunc pro tunc because the errors in the original judgments were not merely clerical errors and, therefore, the nunc pro tunc procedure was unavailable. For ease
I. The October 3, 2018 order was simply an amended judgment.
In their second point, Tenants argue that the lower court abused its discretion in entering the October 3, 2018 order purporting to amend the August 22, 2018 judgments nunc pro tunc. Tenants claim that the court was actually substantively amending the judgments—an action that is improper under the nunc pro tunc procedure. While we agree with Tenants that substantively amending a judgment via nunc pro tunc is imprоper, their challenge to the October 3, 2018 order is misplaced.
“Although Rule 74.06(a) provides that ‘[c]lerical mistakes in judgments, orders[,] or other parts of the record . . . may be corrected by the court at any time[,]’ [i]t is improper to use a [nunc pro tunc] order . . . to conform to what the court intended to do but did not do.” Chastain v. Geary, 539 S.W.3d 841, 846 (Mo. App. W.D. 2017) (internal quotation omitted).
Here, however, the court‘s October 3, 2018 order appears to have been denominated “nunc pro tunc” only because that was how Landlord‘s motion was styled. That said, Landlord‘s motion did not invoke
“Missouri law requires [this Court] tо treat motions based upon the allegations contained in the motion regardless of the motion‘s style or form.” Ronald K. Barker, PC v. Walkenhorst, 547 S.W.3d 782, 784 n.2 (Mo. App. W.D. 2018) (quoting Payne v. Markeson, 414 S.W.3d 530, 538 (Mo. App. W.D. 2013)). Here, Landlord‘s motion, though denominated as a request via nunc pro tunc, was substantively a post-disposition motion to amend the judgments, as it was “directed towards errors of fact or law” in the original judgments. Id. (quoting State v. Carter, 202 S.W.3d 700, 705 (Mo. App. W.D. 2006)). “In determining whether a motion is an authorized after-trial motion, Missouri courts have looked not to the nomenclature employed by the parties, but to the actual relief requested in the motion.” Id. (quoting Berger, 173 S.W.3d at 641). Because Landlord was seeking amendment of the judgments to both address unaddressed matters and clarify ambiguous ones, аnd because Landlord was not seeking any correction of clerical errors, Landlord‘s motion is properly viewed as a motion to amend, despite its erroneous title.9
As such, the court‘s October 3, 2018 order was, in fact, simply an amended judgment.10 And, as the initial judgments
Because Tenants’ challenge in Point II is directed solely at the purported usage of the nunc pro tunc procedure and does not otherwise challenge the substance of the amended judgment, we have nothing further to address.
Point II is denied.
II. The lower court properly granted summary judgment.12
In their first point, Tenants argue that the lоwer court erred in granting summary judgment because an inconsistency in one of the exhibits attached to Landlord‘s motion for summary judgment against Tenant Norman precluded Landlord from establishing its prima facie case demonstrating a right to judgment as a matter of law insofar as the alleged inconsistency created a genuine issue of material fact. Tenants rely on the Eastern District‘s decision in Street v. Harris, 505 S.W.3d 414 (Mo. App. E.D. 2016), to support their claim of error.
In Street, summary judgment was granted against the plaintiff on her tort claims against the defendants. Id. at 415. In the proceedings below, the defendants filed a motion for summary judgment in accordance with the dictates of
questioned whether “the failure of [the plaintiff/non-movant]
To begin, we acknowledge that ITT directly states that “materials submitted by the movant that are, themselves, incоnsistent on the material facts defeat the movant‘s prima facie showing.” ITT, 854 S.W.2d at 382. But the Court in ITT was interpreting a very different version of
The motion shall state with particularity the grounds therefor and shall be served at least ten days before the time fixed for the hearing. Prior to the day of hearing the adverse party may serve opposing affidavits. The judgment sought shall be entered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
The 1994 amendment was meant “to assist the judge in ruling on summary judgment motions by requiring such motions to conform to a specific form that w[ould] reveal the areas of dispute.” Pemiscot Cty. Port Auth. v. Rail Switching Servs., Inc., 523 S.W.3d 530, 533 (Mo. App. S.D. 2017) (quoting 16 Mo. Prac. § 74.04:2 (2016 ed.)).
Under our current Rule, the movant must include a statement of uncontroverted material facts that “state[s] with particularity in separately numbered paragraphs each material fact as to which movant claims there is no genuine issue, with specific references to the pleadings, discovery, exhibits or affidavits that demonstrate the lack of a genuine issue as to such facts.”
At the time ITT was decided,
In light of the 1994 (and later) amendments to
Pac. R.R. Co., 556 S.W.3d 80, 87 (Mo. App. E.D. 2018), transfer denied (Sept. 25, 2018) (In reviewing the grant of summary judgment to employer on employee‘s claim of work-related injury, the appellate court refused to consider portions of employee‘s medical records attached to a motion for summary judgment where the employee/non-movant had not relied on those portions of the medical records in opposing the grant of summary judgment and had admitted in his summary judgmеnt response that the medical records did not link his injury to his work.).16
Consequently, Street does not aid Tenants’ claim.
Further, Tenants’ entire argument on this point consists of the following assertions:
In this case before the court, the circuit court granted Fidelity‘s summary judgment as to Norman even though the materials submitted by Fidelity created a genuine dispute. Fidelity submitted Norman‘s answers to Fidelity‘s Request for Admissions. In denying the request for admissions, Norman stated factual reasons for the denials which contradicts Fidelity‘s contention that Norman owes rent, cost of property damage, and attorney‘s fees. Because the document submitted by Fidelity are inconsistent with Fidelity‘s Uncontroverted Material Fаcts, summary judgment was inappropriate.
Nowhere in Tenants’ brief do they identify the specific requests and responses that allegedly create the genuine dispute of material fact. “Arguments, such as this, that are completely disconnected from the numbered paragraph material facts in the summary judgment record, as required by
There is one other issue we must address. Here, unlike the appellant in Street, Tenant Norman timely filed a response to Landlord‘s summary judgment motion, but the lower court does not appear to have considered it, as the August 22, 2018 judgments were entered earlier in the day than the response was filed. Below, Landlord argued that the response was untimely. Though Tenants have not challenged the lower court‘s failure to consider their response below, “our
de novo decision on appeal must be in accordance with all the requirements of Rule 74.04 and, therefore, must be made in the very same manner the trial court should have applied that rule in the first instance.” Great S. Bank, 497 S.W.3d at 836 (emphasis added).
In her response, Tenant Norman complied with
There were eighteen asserted material facts in Landlord‘s motion. Tenant Norman expressly admitted five of them. As for the remaining thirteen asserted facts, which Tenant Norman denied, she included a direct denial of each fact, followed by this remark:
The Affidavit of Susan L. Mindham, is
specious,17 she has no first-hand knowledge, personal knowledge of the contract of March 13, 2006, how events were recorded at that time, and the business routine of Fidelity in 2006 because she did not become a “corporate officer” until July, 2018, Exhibit C, Corporate Filings.
According to Tenant Norman‘s response, Exhibit C consisted of “Corporate Filings.” Exhibit C, however, was actually Tenant Norman‘s affidavit. As such, it did not support the assertion made with respect to Mindham. Exhibits A and B, also attached to Tenant Nоrman‘s response, do appear to consist of corporate records and facially appear to support Tenant Norman‘s assertion that Mindham became a corporate officer in July 2018.18 The remainder of Tenant Norman‘s allegation, however, is not supported by any exhibit and consists of argument, rather than fact. “A ‘genuine issue’ that will prevent summary judgment exists where the record shows two plausible, but contradictory, accounts of the essential facts and the ‘genuine issue’ is real, not merely argumentative, imaginary, or frivolous.” Hibbs v. Berger, 430 S.W.3d 296, 305 (Mo. App. E.D. 2014) (quoting Daugherty v. City of Maryland Heights, 231 S.W.3d 814, 818 (Mo. banc 2007)).
Furthermore, where a denial fails to address the substance of an alleged uncontroverted material fact, it is an ineffective denial that cannot serve to defeat summary judgment. Davis v. Walgreen Co., 581 S.W.3d 619 (Mo. App. W.D. 2019), transfer denied (Sept. 3, 2019). In short, none of Tenant Norman‘s denials were effective denials under
Because Tenants have not shown that summary judgment was improperly granted in favor of Landlord, Point I is denied.
Conclusion
The lower court did not err in granting summary judgment in favor of Landlord, nor did it commit reversible error in amending the August 22, 2018 judgments to include interest, costs, and attornеys’ fees. Its judgment is affirmed.
Karen King Mitchell, Chief Judge
Gary D. Witt and Anthony Rex Gabbert, Judges, concur.
Notes
Lackey v. Iberia R-V Sch. Dist., 487 S.W.3d 57, 62 (Mo. App. S.D. 2016) (citations and internal quotation marks omitted). Furthermore, allowing a non-movant to argue for the first time on appeal that the movant failed to make a prima facie case on the basis of disputed material facts that were not identified for the trial court is directly at odds with the rules that “[p]arties are bound by the position they took in the trial court and will not be heard on a different theory on appeal,” and that “[w]e will not ‘convict a trial court of error on an issue that was not put before the trial court to decide.‘” Loutzenhiser v. Best, 565 S.W.3d 723, 730 (Mo. App. W.D. 2018) (quoting Barner v. Mo. Gaming Comm‘n, 48 S.W.3d 46, 50 (Mo. App. W.D. 2001)).Courts cannot sift through a voluminous record, separating fact from conclusion, admissions from disputes, the material from the immaterial, in an attempt to determine the basis for the motion without impermissibly acting as advocates. Rule 74.04(c) aims at benefiting trial and appellate courts to expedite the disposition of cases; noncompliance with these requirements is not a matter subject to waiver by a party.