Court of Appeals of Missouri, Western District, Second Division
FROM THE CIRCUIT COURT OF JACKSON COUNTY The Honorable
Gregory B. Gillis, Judge.
Lisa White Hardwick, Presiding Judge, Thomas H. Newton and
Mark D. Pfeiffer, Judges.
White Hardwick, Judge
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.
and Procedural History
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.
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.
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; 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.
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).
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.
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."
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