            SUPREME COURT OF MISSOURI
                                       en banc
ZACH McGUIRE, et al.,                      )
                                           )
                    Respondents,           )
                                           )
v.                                         )     No. SC93836
                                           )
KENOMA, LLC, et al.,                       )
                                           )
                     Appellants.           )

           APPEAL FROM THE CIRCUIT COURT OF HENRY COUNTY
                    The Honorable James K. Journey, Judge

                           Opinion issued November 12, 2014

       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



1
    Unless otherwise noted, statutory references are to the RSMo Supp. 2013.
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


2
 Synergy does not contest the trial court’s award of costs because they were previously
awarded in the trial court’s original judgment.

                                              3
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


3
    Section 408.040 provides:

         All such judgments and orders for money shall bear a per annum interest
         rate equal to the intended Federal Funds Rate, as established by the Federal
         Reserve Board, plus five percent, until full satisfaction is made. The
         judgment shall state the applicable interest rate, which shall not vary once
         entered.


                                              4
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.



                                               5
       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,


                                             6
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 presumption that the failure to comply with a statute is

classified as a clerical error. In the alternative, they contend that the plain language of

Rule 74.06(a) does not exclude the correction of either clerical or substantive omissions

but allows the correction of “errors . . . arising from oversight or omission” regardless of

what was actually done. Therefore, they assert the court may use a nunc pro tunc

judgment to make substantive changes in a judgment as long as the court is not exercising

its discretion to act “in favor of one party or the other and its act is in the furtherance of

justice.” 4 In effect, plaintiffs argue that even if the inclusion of post-judgment interest is

a substantive change to the judgment, it is allowed under Rule 74.06(a).

       Plaintiffs’ attempt to sever Rule 74.06(a) from its common law roots to broaden

Rule 74.06(a) to include “omissions from oversights” when such oversights are not

expressed in the record is directly contrary to this Court’s interpretation of Rule 74.06(a).

4
  A statute is substantive, and not merely relating to the form and language of the
judgment, if it creates, defines, and regulates rights. Wilkes v. Missouri Highway Transp.
Comm’n, 762 S.W.2d 27, 28 (Mo. banc 1988). Interest rates do not “relate to the form or
language of the judgment” but relate to the substance of the judgment insofar as the
statute affects a plaintiff’s substantive right to recover interest on a judgment. Good
Hope Missionary Baptist Church v. St. Louis Alarm Monitoring Co., Inc., 358 S.W.3d
528, 533 (Mo. App. 2012).

                                              7
This Court has interpreted Rule 74.06(a) as an embodiment of common law nunc pro

tunc, intended to codify, not alter, the existing substantive common law. Pirtle, 956

S.W.2d at 240 (stating “this common law power to correct the record continues to this

day.”). Post-Rule 74.06(a) opinions have reaffirmed that nunc pro tunc judgments can

only be used to make corrections that were omitted from the judgment but “were actually

done” and evidenced in the record. Nine years after the enactment of Rule 74.06(a), this

Court in Pirtle held that “[t]he court’s power over its records, therefore, exists so that the

court can cause its records to represent accurately what occurred previously.”            956

S.W.2d at 240. Twenty-five years after the enactment of Rule 74.06(a), this Court, in

Soehlke, held that “the only true function of a nunc pro tunc order is to correct some error

or inadvertence in the recording of that which was actually done.” 398 S.W.3d at 22

(internal citations omitted). Therefore, the plaintiffs’ argument that an omission from

oversight may be corrected by nunc pro tunc even without evidence of the omission in

the record is discredited by this Court’s consistent adoption of common law nunc pro

tunc jurisprudence in its interpretation of its rule. It is irrelevant whether the omission is

clerical or substantive, as correction of neither is permitted by a nunc pro tunc judgment

without evidence in the record. For the post-judgment statutory interest to be corrected in

this case by a nunc pro tunc judgment, the plaintiffs must show that the omission from

the judgment was actually done by the trial court and reflected in the record.

       Under both common law nunc pro tunc jurisprudence and Rule 74.06(a), “[a]

presumption exists that there are no clerical errors in judgments.” Pirtle, 956 S.W.2d at

243. The party seeking the correction has the burden to prove that the judgment did not

                                              8
conform to the record. Id. at 243. The party seeking correction must prove that: (1) the

correction does not include any “exercise of judicial discretion” because “any such

change constitutes a change in the court’s judgment,” not merely a correction of a clerical

error, and (2) the clerical error is “discernible from the record.” Id. (citations omitted).

The evidence needed to prove the error or omission is discernible from the record is

broad, as long as it can “in some way show, either from the judge’s minutes, the clerk’s

entries, or some paper in the cause, the facts authorizing such [nunc pro tunc] entries.”

Childers v. State, 502 S.W.2d 249, 251 (Mo. 1973).

       In the present case, it is undisputed that the record shows no timely request for the

inclusion of the applicable interest rate, and neither the record nor the original judgment

included the statutorily mandated interest rate. The plaintiffs, however, argue that even

though the trial court originally omitted the statutory interest from the judgment and had

lost jurisdiction over the case before the plaintiffs requested the interest, the nunc pro

tunc correction of the judgment to include statutory interest was appropriate because “this

action did not require the exercise of discretion, and was in fact a ministerial act . . .

because it was merely conforming the judgment to the statute.”

       The plaintiffs state that the omission of post-judgment statutory interest is a

clerical error that does not change the substance of the judgment because the interest is

automatic insofar “it does not require any party to make a request” and is mandatory,

outside the realm of judicial discretion. According to the plaintiffs, the omission is

discernible in the record because its omission is “patent on the judgment” and the interest



                                             9
rate is fixed as equal to the Federal Funds Rate plus five percent. 5 The plaintiffs find

support for their argument in a long line of cases, the most cited of which is State ex rel.

Missouri Highway and Transp. Comm’n v. Roth, 735 S.W.2d 19 (Mo. App. 1987). 6

       In Roth, the trial court’s original judgment failed to order plaintiffs to repay the

difference between their jury award and the amount already paid to them by the

condemnation commissioners, as required by section 523.045, RSMo 1986. Id. at 20.

The trial court issued a nunc pro tunc judgment requiring the repayment. On appeal, the

court of appeals affirmed the nunc pro tunc judgment, holding:

       The law is that where upon the trial of a cause, a judgment is shown to have
       been rendered for one of the parties, and a statute directs what that
       judgment shall be, it is presumed that the judgment rendered by the court
       was such a judgment as only could have been rendered, and anything short
       of that will be attributed to the mistake or misprision of the clerk.

Id. at 22. Roth’s holding that omissions of mandatory statutory language are presumed to

be clerical errors correctable by a nunc pro tunc judgment has since been relied on in

5
  Though not dispositive in this case, it should be noted that as of December 2008, the
intended federal funds rate, as established by the Federal Reserve Board, is no longer a
fixed percentage but a range. Board of Governors of the Federal Reserve System, Open
Market Operations, http://www.federalreserve.gov/monetarypolicy/openmarket#2012
(last visited October 23, 2014) (record retained in this file). For example, on May 10,
2011, the day of the trial court’s original judgment, the intended federal funds rate was 0-
0.25 percent. Id. Because of this, a court appears to have discretion to set the intended
federal funds rate, so that setting the amount of post-judgment interest would be a
discretionary action.
6
  See also State ex rel. and to Use of Grant v. Juden, 50 S.W.2d 702, 704 (Mo. App.
1932) (citing as precedent Wand v. Ryan, 166 Mo. 646 (Mo. 1901), Lexington & St. L.
R.R. Co. v. Mockbee, 63 Mo. 348 (Mo. 1876), Horstkotte v. Menier, 50 Mo. 158 (Mo.
1872), Mann v. Schroer, 50 Mo. 306 (Mo. 1872), Saunders v. Scott, 111 S.W. 874 (Mo.
App. 1908), Carter v. Louisiana Purchase Exposition Co., 102 S.W. 6 (Mo. App. 1907),
Burns v. Sullivan, 90 Mo. App. 1 (1901), and Farley Bros. v. Cammann, 43 Mo. App.
168 (1891).


                                            10
Korman v. Lefholz, 890 S.W.2d 771, 773 (Mo. App. 1995), In re Marriage of Ray, 820

S.W.2d 341, 344 (Mo. App. 1991), Newberry v. State, 812 S.W.2d 210, 212 (Mo. App.

1991), and Hassler v. State of Missouri, 789 S.W.2d 132, 134 (Mo. App. 1990). The

plaintiffs argue that this line of cases justifies the trial court’s nunc pro tunc judgment

because it was “merely conforming the judgment to the statute.” In contrast, Synergy

contends that the above line of cases and the lower courts’ holdings contradict this

Court’s precedent that nunc pro tunc judgments may only correct a judgment to reflect

that which was actually done. 7

       Roth and similar cases are contrary to this Court’s recognition that judgments are

presumed to be free from clerical errors, a presumption that can only be overcome if the

clerical error is discernible from the record. 8 The narrow purpose of nunc pro tunc is to

allow a court to make a judgment conform to the record, not, as the plaintiffs would have

it, to conform to the requirements of a statute. Pirtle, 956 S.W.2d at 240. Nunc pro tunc


7
  Synergy also asserts that an omission of post-judgment interest can never be corrected
by a nunc pro tunc judgment. Synergy contends that clerical omissions of statutory
language cannot be corrected by nunc pro tunc judgments but must be raised by a post-
trial motion, pursuant to Rule 78.07(c). Rule 78.07(c) provides: “In all cases, allegations
of error relating to the form or language of the judgment, including the failure to make
statutorily required findings, must be raised in a motion to amend the judgment in order
to be preserved for appellate review.” Rule 78.07(c) is inapplicable to the issues in this
case and does not supersede nunc pro tunc jurisprudence. It relates merely to the
preservation of error on appeal and does not preclude a trial court from correcting an
error or inadvertence in the recording of an action actually taken by the trial court, as
authorized by Rule 74.06(a). To find otherwise would render the provisions in Rule
74.06(a) superfluous and without meaning.
8
  Although not cited by the plaintiffs, dicta in State v. Carrasco, 877 S.W.2d 115, 116
(Mo. banc 1994), is also consistent with the holding in Roth. In Carrasco, this Court
adopted the position of the court of appeals that a failure to “comply with the mandate of
law . . . is deemed to be a clerical error, even though [it is] in fact the fault of the judge.”

                                              11
judgments, therefore, cannot be used to correct a failure to include mandatory statutory

language that should have been included in the original judgment but was omitted in

error. To do otherwise would allow changes that would change a party’s substantive

rights, an action allowed under Rule 75.01, but not nunc pro tunc jurisprudence and Rule

74.06(a). Id. at 242-43. Even if the trial court intended to include the post-judgment

interest in its original judgment, and even if the post-judgment interest is mandated by

statute, an omission of an award of interest cannot be considered a mere clerical error – a

mistake in writing or copying that can be found in the record but was inadvertently

omitted from the judgment.

       Without evidence in the record to indicate that the award of post-judgment interest

was actually made, the omission of the mandatory statutory language in a judgment is

mere error, correctable by either a motion pursuant to Rule 75.01 or Rule 78.07, but not

by nunc pro tunc. Ferguson, 438 S.W.2d at 255 (stating that “the failure of the court to

include a provision for imprisonment in the judgments would be mere error, which is not

corrected by nunc pro tunc proceedings.”).         Moreover, the parties’ post-judgment

stipulation of a federal funds interest rate of 5.09 percent, even with court approval,

cannot be the basis of a correction by nunc pro tunc unless the stipulation is supported by

an entry in the record. Scharlott, 463 S.W.2d at 850. Because there is no evidence in the

record to suggest that the trial court had intended to include the post-judgment interest in

its original judgment but merely omitted the interest as a clerical error, the trial court

erred in issuing the nunc pro tunc judgment to retroactively include the post-judgment

interest in its May 10, 2011, judgment.

                                            12
                                       Conclusion

       This Court finds that the trial court erred in issuing a nunc pro tunc judgment to

retroactively include post-judgment statutory interest in its May 10, 2011, judgment.

Though the trial court should have included the award of post-judgment interest in its

original judgment, it did not; nor is there any evidence in the record showing the court’s

intention to set the interest rate. Without any evidence in the record to show that the nunc

pro tunc judgment merely corrected an omission of something that was actually done, the

use of a nunc pro tunc judgment was improper because the retroactive inclusion of the

post-judgment interest substantively changed the judgment.        Accordingly, this Court

reverses the provisions setting an interest rate and awarding post-judgment interest in the

judgment. The judgment is affirmed in all other respects.


                                                 _________________________________
                                                   PATRICIA BRECKENRIDGE, JUDGE


All concur.




                                            13
