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IN RE SHAW, 256 S.W.3d 72 (Mo.

2008)

No. SC89016.
Supreme Court of Missouri

IN RE SHAW
256 S.W.3d 72 (Mo. 2008)

Decided June 24th, 2008

PATRICIA BRECKENRIDGE, Judge. Factual and Procedural


Background
Individuals claiming to be heirs at law of Barbara
Shaw, deceased, appeal the circuit court's denial of Three distribution orders were entered by the court
their motion to set aside the court's nunc pro tunc or- in the Shaw Estate. The parties do not assert that dis-
der and its distribution order III, both entered on Jan- tribution order I is a valid order of distribution, and
uary 25, 2007. Before reaching the merits of the is- it is not. Although signed by the court, under section
sues raised in the appeal, this Court must determine 1
473.590, distribution order I was set aside upon the
its own jurisdiction. The court had entered an earlier filing of timely objections and is of no effect. In re
distribution order (distribution order II) on July 27,
Mills' Estate, 349 Mo. 611, 162 S.W.2d 807, 811 (1942).
2006. As set out below, the court lost jurisdiction of
this case no later than November 6, 2006, when all 1. All statutory references are to RSMo 2000. Sec-
after-trial motions regarding the July 27, 2006 order tion 473.590 states in relevant part:
were deemed overruled as a matter of law. And the
Within twenty days after the filing
copy of the July 27, 2006 order on which the judge's
of the final settlement and petition
signature was crossed out was not effective as it was for distribution . . ., any interested
undated and the record does not reflect it was filed person may file written objections
or served on the parties. The court, therefore, was thereto. . . . The objections must be
without authority to enter the December 5, 2006 judg- in writing and clearly state the
ment, the nunc pro tunc order correcting the Decem- specific grounds of objection and the
ber 5, 2006 judgment, and distribution order III. Ac- modification desired. If no
cordingly, this Court has jurisdiction on appeal only objections are filed, the court may
approve the final settlement and
to confine the court to its jurisdiction by ordering it
order distribution as prayed, without
to reinstate its July 27, 2006 judgment, which is now
hearing if it deems such action
final, *74 and vacate its other orders entered there- proper. If objections are filed, or if
after. The merits of distribution order II not having the court does not deem it proper
been timely appealed, and the December 5, 2006 judg- to approve the final settlement and
ment and the January 25, 2007 nunc pro tunc order order distribution as prayed without
and distribution order III being void, this Court does hearing, a hearing on the matter
not reach the merits of the other issues raised by the shall be had.

parties. Remanded with directions.


It is the third distribution order that the appellants
challenge on appeal, along with a nunc pro tunc order,

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IN RE SHAW, 256 S.W.3d 72 (Mo. 2008)

both entered on January 25, 2007. They also aver that Bennett files affidavit of publication, petition
the court erred because there is clear and convincing for approval of final settlement, and order of
evidence that they are heirs at law of the decedent, distribution I.

Barbara Shaw, and are entitled to a share of the distri-


March 23, 2006
bution of her estate. Personal representative Stephen
Bennett argues that this Court should not consider
Objections to the petition for approval of
the merits of these claims of error since they appeal distribution order I are filed.
the court's order denying their motion to set aside the
nunc pro tunc order and distribution order III, claim- April 19, 2006
ing both that the order is not a final, appealable judg-
ment and the appeal is untimely. *75

While not persuaded by these arguments, this Court Bennett's attorney sends letter to the clerk in
agrees that it is necessary to determine when there the probate division advising her to cancel the
was a final, appealable judgment in the case and scheduled hearing on the objections because he
would be withdrawing distribution order I and
whether a timely appeal was filed. Committee for Ed-
related documents.
ucational Equality v. State, 878 S.W.2d 446, 450 (Mo.
banc 1994) (the Court, sua sponte, must determine its July 6, 2006
own jurisdiction of an appeal). Based on the proce-
dural history of this case, the inquiry should include Bennett files petition for approval of
consideration of whether distribution order II consti- distribution order II and affidavit of
tutes the final judgment governing the parties' rights, publication.
triggering the time for appeal. In considering which
of the court's orders constitutes the final, appealable July 27, 2006

judgment, it is important to examine what events oc-


Court approves and files distribution order II
curred, and when they occurred, during the adminis-
after 20 days have elapsed without objections
tration of the Shaw Estate.
being filed.

The proceedings in the court were rather convoluted


August 7, 2006
and complicated, so the following timeline is given to
illuminate the pertinent history:
Objections to distribution order II filed.

February 18, 2005


November 28, 2006

Barbara Lou Shaw dies intestate.


Hearing on objections to approved distribution
order II and matter taken under advisement.
March 8, 2005

December 5, 2006
Application for letters of administration and
appointment of personal representative
Court overrules objections and enters
Stephen Earl Bennett.
judgment affirming "original" distribution
order "tendered for filing on or about the 6th
March 13, 2006
day of July, 2006." Court directs Bennett's
attorney to file, within 15 days, a revised final

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IN RE SHAW, 256 S.W.3d 72 (Mo. 2008)

settlement and distribution order "to reflect entered in the case record. Another
changes, if any, to the property of the Estate handwritten notation was made on the face
since the initial proposed Final Settlement was of the December 5, 2006 judgment. On that
filed." judgment, the date "July 6th" is crossed out
and a handwritten notation "March 13th/
January 19, 2007
WKC" is written in. Although the
handwritten notation was not dated, the
Bennett files proposed distribution order III.
modification is consistent with the January
25, 2007 docket entry, stating that a nunc
January 25, 2007
pro tunc order was entered to correct the
December 5, 2006 judgment.
Docket entry: "December 5, 2006 Judgment
corrected nunc pro tunc to reflect the correct
2. Because, under section 473.590, the filing of
date of the original final settlement approval,
objections precluded approval of distribution or-
finding and decree of heirship, succession and
der I, it is not necessary to address the court's fail-
distribution, filed on March 13, 2005. . . . Order
ure to date distribution order I or the fact that
Approving Final Settlement." [(distribution
there was no docket entry reflecting the filing of
order III)]
the order.

February 26, 2007


Distribution order II was final
Motion filed to set aside the January 25, 2007 and appealable
orders.
In determining when a final, appealable judgment was
April 9, 2007 entered by the court, the court's distribution orders
are *76 considered in chronological order. As noted
Hearing on motion to set aside. Order
previously, distribution order I was a nullity upon the
overruling motion entered.
filing of timely objections. Distribution order II was
April 17, 2007 then entered on July 27, 2006. No objections were
filed within the 20-day period permitted by section
Notice of appeal filed. 473.590. Therefore, the July 27, 2006 filing became a
judgment. That judgment by law became final and ap-
Other Orders. In the court file, there is a pealable 30 days thereafter, see Rule 81.05, unless an
copy of proposed distribution order I that authorized after-trial motion was filed that delayed its
is signed, but undated. There is no docket finality. The parties do not cite any authority show-
entry reflecting when distribution order I
ing that the objections filed August 7, 2006, constitute
was signed and filed.2 In addition, two of
an authorized after-trial motion; the filing of these
the judgments set out in the timeline were
objections would, thus, not seem to have any effect
later modified by interlineations. On the
on the judgment's finality. Even were the objections
face of the July 27, 2006 judgment
construed as an authorized after-trial motion, howev-
(distribution order II), the signature of the
er (a matter which this Court does not decide), such
judge is crossed out and a handwritten
notation appears, stating, "This Final an authorized motion is automatically overruled if not
Settlement was erroneously signed. WKC ruled on within 90 days. Rule 78.06.
/s/ W. Keith Currie". The notation and
signature are not dated, nor is the notation

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IN RE SHAW, 256 S.W.3d 72 (Mo. 2008)

Here, the court did not purport to overrule the ob- rather than a judicial error that is not subject to
jections until December 5, 2006, well after the 90-day correction by a nunc pro tunc order. Id.
period had expired on November 6, 2006. The court
Once the July 27, 2006 judgment became final, the
had no authority to extend the 90-day limit for ruling. 4
court was not permitted to alter it. Crockett Oil Co. v.
Heinen v. Healthline Management, Inc., 982 S.W.2d 244,
Effie, 374 S.W.2d 154 (Mo.App. 1964). It is the order
246 (Mo. banc 1998). Appellants had ten days from
that governs the rights of the parties, and any later or-
November 6, 2006, to file a notice of appeal. Rule
ders are a nullity. To the extent that appellants raise
81.04. They did not do so.
issues relating to orders entered after the July 27, 2006
While, at some point, the judge crossed out his signa- order, *77 therefore, those orders are invalid and of no
ture on the copy of the July 27, 2006 distribution or- effect.
der II in the court record, that action was not effec-
4. Although the court would have retained juris-
tive to vacate this final judgment. A judge is permit-
diction to enter a valid nunc pro tunc order, the
ted to accept papers to be filed, but the filing date is
nunc pro tunc order it attempted to enter on Jan-
to be noted thereon. Rule 43.02(b). Here, that was not uary 25, 2007, was a correction of the December
done. While the legal file contains both a copy of the 5, 2006 judgment, which was entered after it lost
original judgment filed on July 26, 2006, and the mod- jurisdiction. If the court did not have jurisdiction
ified judgment that is identical in every respect except to enter the judgment it was attempting to cor-
for the striking out of the signature and the handwrit- rect, it did not have jurisdiction to enter the nunc
ten notation, the modified judgment does not have a pro tunc order.

second file stamp and there is no entry on the case


record that would indicate that the modified judgment
This Court has jurisdiction of the
was filed with the clerk of the circuit court, as required appeal
by Rule 43.02(b). Further, the record fails to indicate
service on the parties as required by Rule 74.03. The Although the court did not have jurisdiction to enter
numerous procedural irregularities reflected by the any orders after the July 27, 2006 distribution order II
record preclude consideration of the crossing out of became final, this does not deprive this Court of ju-
the judge's signature as a valid action taken by the risdiction to consider the appeal filed after the denial
3 of appellants' motion to set aside the January 25, 2007
court.
judgment (distribution order III) and the nunc pro
3. Because the defect in the court's attempt to va- tunc order. Indeed, were it not so, an appellate court
cate the July 27, 2006 distribution order is the fail- would not have the ability to adjudicate whether a
ure to properly enter such action in the record
judgment is invalid because entered by a trial court
prior to distribution order II becoming a final, ap-
when it did not have jurisdiction. The effect would be
pealable judgment, the court's action would still
be a valid action if it were a proper nunc pro tunc
to leave the invalid judgment intact. Appellate courts
order. The record does not support that it was, inherently have supervisory authority to confine a tri-
however, because, "for a nunc pro tunc correction al court to its jurisdiction:
to be valid it must be supported by some writing
in the record which establishes that the judgment While the language used in some of the cases
entered is not in fact the judgment rendered" and is to the effect that where the trial court had
was, instead, a clerical error. Wiseman v. Lehmann, no jurisdiction, the appellate court has none[,
464 S.W.2d 539, 542 (Mo.App. 1971). There is t]he better practice is to make clear that the
nothing in the record to support the conclusion appellate court has jurisdiction of the appeal
that the court was correcting a clerical mistake, but can not consider that appeal on its merits.

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IN RE SHAW, 256 S.W.3d 72 (Mo. 2008)

It follows that this court has jurisdiction of this


appeal but that its jurisdiction does not extend
to a determination of the appeal on its merits
unless the trial court had jurisdiction to
determine the issues presented on their merits.

Shepler v. Shepler, 348 S.W.2d 607, 609 (Mo.App. 1961)


(citations omitted).

Moreover, orders and decrees that are void, and not


merely erroneous, will be considered colorable and
subject to being reviewed and reversed on appeal. See
In re Marriage of Southard, 733 S.W.2d 867, 869
(Mo.App. 1987). In this case, the court purported to
enter orders after it had lost the ability to do so. As
such, those orders are invalid.

Conclusion

The July 27, 2006 judgment is the final judgment in


this case, and the cause is remanded with directions
to the circuit court to vacate any orders entered after
the July 27, 2006 judgment. See In re Marriage of Miller,
196 S.W.3d 683, 694 (Mo.App. 2006) (trial court or-
dered to vacate orders in which it did not have subject
matter jurisdiction).

All concur.

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