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Dangerfield v. City of Kansas City6/30/2003
rt intended to do but did not do." Keck v. Keck, 996 S.W.2d 652, 654 (Mo. App. 1999) . The City is arguing that the court erroneously called its judgment an order and that it should be allowed to correct that mistake. The trial court " meant to correct judicial inadvertence in failing to denominate the original order a 'judgment,' and to show what the court intended to do." Baker v. Baker, 90 S.W.3d 488, 490 (Mo. App. 2002) . But " unc pro tunc cannot be used to create a judgment." Id.
The City's argument also proves too much. Merely calling an order a " ;judgment" does not make it one. While designating a trial court decision a "judgment" is essential under City of St. Louis v. Hughes , 950 S.W.2d 850, 853 (Mo. banc 1997) , for there to be a final judgment for purposes of appeal, this does not mean that merely calling a decision a "judgment" makes it one. Cf. In re J.W.P., 986 S.W.2d 198, 199 (Mo. App. 1999) . When a trial court decides a dispute between parties and there is nothing further to decide, but mistakenly denominates its decision an "order," ; merely changing the denomination to "judgment" does not mint a new judgment, but rather fulfills Hughes' bright-line finality requirement. The City has not cited any authority and this Court cannot find any basis for the contrary conclusion.
Rule 74.06(b) is arguably the most apt rule in this case, but the City never invoked it, either in this court or in the trial court. Rule 74.06(b) provides that:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment or order for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (3) the judgment is irregular; (4) the judgment is void; or (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment remain in force.
Had the rule been invoked, and the new judgment been entered under 74.06(b)'s auspices, section one is inapposite because the grant of a new trial had already been denied; the City's first motion for new trial posited the identical jury misconduct as in its second motion for new trial. There was thus no "mistake, inadvertence, surprise, or excusable neglect." Because the fraud or misconduct in section two must be that of an adverse party (not a jury member), it is not applicable, either. Granting a motion for new trial does not make the judgment regular--it vacates it. So section three does not apply. The City never argued that the final judgment was void because of alleged jury misconduct, rather that the jury misconduct caused the verdict to be unsupported by substantial evidence. And section 5 is not applicable, for, applying ejusdem generis , it is clear that the equities referred to in that section deals with the cases where post-judgment actions make it unfair to allow the final judgment to stand. Any jury misconduct occurred during trial, and the City already raised the issue with the trial court in its first motion for new trial.
1. Rule 75.01
2.
If the trial court's re-denomination of the November 29th order had been entered pursuant to Rule 75.01, thus creating an amended judgment, then the City's second motion for new trial would have been timely brought under Rule 81.05. However, Rule 75.01 does not help the City. Under Rule 75.01, a trial court retains control over its judgment for thirty days after entered, and may, "after giving the parties an opportunity to be he
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