               In the Missouri Court of Appeals
                                 Western District


 TEQUEA FISHER,                    )
                        Appellant, )                 WD82030
 v.                                )
                                   )                 FILED: July 23, 2019
 H&H MOTOR GROUP, LLC.,            )
                     Respondent. )

      APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY
               THE HONORABLE GREGORY B. GILLIS, JUDGE

       BEFORE DIVISION TWO: LISA WHITE HARDWICK, PRESIDING JUDGE,
            THOMAS H. NEWTON AND MARK D. PFEIFFER, JUDGES


      Tequea Fisher appeals the judgment denying her claims that H & H Motor

Group, LLC (“H & H Motors”) violated the Missouri Merchandising Practices Act

(“MMPA”) by selling her a defective motor vehicle without clear title. The court

initially entered a judgment in favor of Fisher before replacing it with a judgment in

favor of H & H Motors. On appeal, Fisher contends the circuit court erred in

replacing its initial judgment without providing her an opportunity to be heard.

Fisher further argues that, if the second judgment was entered correctly, the court

erred in finding that H & H Motors committed no unlawful acts under the MMPA.
For reasons explained herein, we vacate the circuit court’s judgment and remand

for proceedings consistent with this opinion.



                          FACTUAL AND PROCEDURAL HISTORY

      H & H Motors purchased a 2003 Ford Explorer at an automobile auction.

After purchasing the vehicle, H & H Motors received a certificate of title indicating

the vehicle was previously owned by two individuals. The portion of the certificate

assigning ownership rights to H & H Motors, however, contained only a signature

from a single owner. Shortly thereafter, Fisher purchased the vehicle “as is” in a

separate transaction from H & H Motors. The bill of sale stated that H & H Motors

was the true and lawful owner of the vehicle and that title was transferred free of

any liens or encumbrances.

      Almost immediately after purchasing the vehicle, Fisher discovered several

mechanical issues that left the automobile intermittently operational. Fisher also

attempted to register the vehicle with the Missouri Department of Revenue but was

informed that the title was defective because the document was not signed by

both owners listed on the face of the title. Fisher notified H & H Motors about the

mechanical issues and the title deficiencies and requested a refund of the purchase

price, but H & H Motors refused.

      Subsequently, Fisher filed a First Amended Petition alleging that H & H

Motors had violated the MMPA by: (1) failing to provide a valid title as



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contemplated by Section 301.210.4, RSMo Cum. Supp. 2016;1 and (2) concealing,

suppressing, and omitting material vehicle defects. After a one-day bench trial, the

circuit court informed the parties it would take the matter under advisement and

requested that each provide proposed findings of fact and conclusions of law. On

July 12, 2018, the circuit court entered a judgment in favor of Fisher on the MMPA

claims and awarded her $10,728 in actual damages and $32,184 in punitive

damages. The judgment was essentially identical to the proposed findings and

conclusions provided by Fisher. However, on August 6, 2018, the circuit court

deleted the initial judgment from the record and entered a new judgment in favor of

H & H Motors. Fisher appeals.

                                      STANDARD OF REVIEW

       Where there are no factual matters in dispute, we review the circuit court’s

application of the rules of the Supreme Court of Missouri de novo. McGuire v.

Kenoma, LLC, 447 S.W.3d 659, 662 (Mo. banc 2014).

                                            ANALYSIS

       In Point I, Fisher contends that the circuit court erred in entering the second

judgment in favor of H & H Motors because it did so without first giving her an

opportunity to be heard as required by Rule 75.01. In response, H & H Motors

asserts the second judgment was an order nunc pro tunc, as contemplated by Rule




1
 Unless otherwise indicated, all statutory references are to the Revised Statutes of Missouri 2000,
as updated by the 2016 Cumulative Supplement.

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74.06(a), and did not require that the circuit court to hear any further argument

prior to modifying its previous judgment.

         In recognizing the limited control a circuit court may exercise over a

judgment after its entry, the Missouri Supreme Court explained the distinction

between the authority that a court maintains under Rule 75.01 and its power to

enter nunc pro tunc orders. Pirtle v. Cook, 956 S.W.2d 235, 239-43 (Mo. banc

1997). At common law, circuit courts sat in terms and retained plenary power to

amend a judgment until the term in which the judgment was granted came to an

end. Id. at 239. While circuit courts no longer hear cases in terms, a modified

version of the common law power to amend a previous judgment remains and has

been codified in Rule 75.01, Id. at 239-40, which states, in pertinent part, that the

circuit court “retains control over judgments during the thirty-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 judgment within that

time.“

         The authority to enter an order nunc pro tunc, in contrast, “is a common law

power derived from a court's inherent and continuing jurisdiction over its records.”

Dobson v. Riedel Survey & Eng’g Co., 973 S.W.2d 918, 922 (Mo. App. 1998).

“This jurisdiction exists independently from the court's jurisdiction over its cause or

its judgment.” Pirtle, 956 S.W.2d at 240 (emphasis added). “The power to issue

nunc pro tunc orders, however, constitutes no more than the power to make the

record conform to the judgment already rendered; it cannot change the judgment

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itself.” Id. Because a nunc pro tunc order is only entered to cause the judgment to

conform with that which was actually done by the circuit court, it may be entered

at any time and without notice or an opportunity to be heard. Id. at 241.

      When characterizing a court's order, we must determine whether the order

amends the original judgment or merely corrects the record. Dobson, 973 S.W.2d

at 922. This determination, as discussed in Pirtle, “is not made on a level playing

field[,]” and we indulge a presumption that there are no clerical errors contained

within a judgment. 956 S.W.2d at 243. “If the presumption is not rebutted, then

any order that changes the record is presumed to change the judgment as well.”

Id. This presumption embodies the belief that “[i]t simply is not a good idea to

allow a judge unlimited liberty to go around changing the terms of judgments when

the judge concludes that the judgment is erroneous.” Dobson, 973 S.W.2d at 922.

To defeat this presumption, “[t]he party seeking to show that an order is an order

nunc pro tunc must show that the original judgment entry did not accurately reflect

the court's actual judgment and that the subsequent order merely caused the

record to conform to the true judicial determination of the parties' rights.” Pirtle,

956 S.W.2d at 243. Further, evidence of a clerical error must be readily apparent

from a review of the record. Dobson, 973 S.W.2d at 922.

      The record before us is silent concerning the reasoning or necessity for the

second judgment. The first judgment was deleted from the record and neither

party has provided this court with any writing or contemporaneous docket entry

that evidences that the second judgment was merely the correction of a clerical

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error. H & H Motors asserts that the second judgment was issued as an order

nunc pro tunc because the court sent the parties an email, in conjunction with its

act of deleting the first judgment, stating that the first entry was made as the

result of a clerical error. That email, however, is not included in the record. It

therefore cannot assist H & H Motors because “the record must in some way

show, either from the judge's minutes, the clerk's entries, or some paper in the

cause, the facts authorizing such entries, and no such entries can be made from

the memory of the judge, nor on parol proof derived from other sources.” Warren

v. Drake, 570 S.W.2d 803, 806 (Mo. App, 1978) (citation and quotations

omitted).

      Even if the circuit court believed that it had rendered the first judgment in

error, it could not enter the second judgment by way of an order nunc pro tunc

because the act of striking and reentering judgment in favor of H & H Motors did

not force the written judgment to conform to a previously rendered judgment;

instead the court’s second order modified the substantive rights of the parties as

previously declared in the first judgment. See e.g., Pirtle, 956 S.W.2d at 240-43.

An order nunc pro tunc is not the proper vehicle for such a change, and entry of

the second judgment in the absence of Fisher having opportunity to be heard was

improper pursuant to rule 75.01. See id. Thus, Point I is granted.

      Fisher asserts that the proper remedy for the circuit court’s violation of Rule

75.01 is to declare that the August 6 judgment is null and void and for this court to

enter the July 12 judgment that awarded Fisher damages. As the August 6

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judgment was entered within the thirty day period contemplated by Rule 75.01,

but was done so without giving Fisher notice or an opportunity to be heard the

court retained jurisdiction but lacked the authority to modify the judgment. See

State ex rel. Hawley v. Pilot Travel Ctrs., LLC, 558 S.W.3d 22, 29 (Mo. banc

2018). The second judgment is therefore not void but, instead, voidable because:

       [when] the power of the court to act is subject to certain limitations,
       named, then the judgment of the court rendered in violation of the
       things stated, or contrary to the limitations named, then such order or
       judgment of the court is not void for want of jurisdiction, but voidable
       only.

Id. at 29-30 (quoting Smith v. Black, 132 S.W. 1129, 1132-33 (Mo 1910)). “[A]

judgment which is voidable is capable of confirmation or ratification, and until

superseded, reversed, or vacated, it is binding and enforceable.” Id. at 30

(alteration in original) (quoting 46 Am. Jur. 2d Judgments § 24 (2018)). As such,

the circuit court’s August 6 judgment, although entered without authority, was the

judgment of the court until it was challenged by Fisher. See id at 29-30.

       We, therefore, vacate the circuit court’s second entry of judgment and

remand the cause back to the circuit court with instructions that the court reenter

the July 12, 2018, judgment.2 After the court reenters the judgment in compliance

with our instructions, the parties will have the right to file any authorized post-trial

motions and appeal the court’s judgment. In the event that either party decides to



2
  For the sake of clarity, the July 12, 2018, judgment refers to the document entitled “Plaintiff
Tequea Fisher’s Proposed Findings of Fact and Conclusions of Law,” which was signed and filed by
the circuit court.


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file any post-trial motion or appeal, calculations of timeliness will be made from the

date the circuit court reenters the first judgment. Based on our disposition of

Fisher’s first point on appeal, we need not reach her remaining claims of error as

they all concern the merits of the second judgment. Therefore, Points II, III, and IV

are denied as moot.

                                     CONCLUSION

      The judgment of the circuit court is vacated and this cause is remanded for

further proceedings consistent with this opinion.




                                        _____________________________
                                        LISA WHITE HARDWICK, JUDGE
ALL CONCUR.




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