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Fisher v. H&H Motor Group, LLC

Court of Appeals of Missouri, Western District, Second Division

July 23, 2019

H&H MOTOR GROUP, LLC., Respondent.

          APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY The Honorable Gregory B. Gillis, Judge.

          Before Lisa White Hardwick, Presiding Judge, Thomas H. Newton and Mark D. Pfeiffer, Judges.

          Lisa White Hardwick, Judge

         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 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).


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

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