Supreme Court throws out interest on 2011 verdict

A group of rural neighbors won a $1.95 million jury verdict against a hog farm in 2011, but things have gone downhill since then.

In 2012, an appeals court trimmed away nearly a quarter of the verdict against the Barton County hog operation. As some consolation, the trial judge retroactively awarded post-judgment interest on the remaining amount.

But on Nov. 12, the Missouri Supreme Court threw out the interest as well.

The problem was confusion over the doctrine of “nunc pro tunc” — or, for lawyers who don’t want to dig out their Latin textbooks, “now for then.”

Nunc pro tunc judgments are supposed to be used to correct clerical errors, but over the years some courts have used them to fix more profound mistakes as well. In a unanimous opinion, Judge Patricia Breckenridge said the nunc pro tunc can only be used for errors that are “discernible from the record” — and in the hog farm case, there was no evidence that post-judgment interest was discussed until years too late.

“The narrow purpose of nunc pro tunc is to allow a court to make a judgment conform to the record, not, as the plaintiffs would have it, to conform to the requirements of a statute,” Breckenridge wrote.

The case involved nuisance claims against Kenoma, a Missouri company that kept a large number of hogs for Iowa-based Synergy. The suit claimed waste from the hog operation had ruined the plaintiffs’ quality of life.

A jury in Henry County, where the case was tried, awarded compensatory damages to 12 plaintiffs in amounts ranging from $50,000 to $450,000. The total award was the 48th largest plaintiffs’ victory in 2011, as tracked by Missouri Lawyers Weekly.

But the Missouri Court of Appeals Western District later ruled that some of the plaintiffs had made double recoveries, and that other awards had to be offset by previous settlements.

After the appeals court’s mandate was issued, the plaintiffs asked the trial court in October 2012 to award post-judgment interest on the remaining $1.51 million. The motion requested an amendment nunc pro tunc of the now-final judgment, with interest at a rate of 5.09 percent retroactive to the May 2011 jury verdict. The parties said that amounted to nearly $77,000 in post-judgment interest per year.

“For purposes of finality, there must be a point in time — a song from a certain proverbial singer — when the dispute is finally over,” Jean Paul Bradshaw II of Lathrop & Gage, who argued for the defendants on appeal, wrote in a brief.

The plaintiffs argued that Missouri court rules allow nunc pro tunc to correct “omissions [that] result from oversights,” and they noted that post-judgment interest is required by statute and doesn’t have to be requested by the parties.

The defendants’ “basic argument can be summarized as: ‘Ha ha! Gotcha!’” Anthony DeWitt of Bartimus, Frickleton, Robertson & Goza, who argued the plaintiffs’ appeal, wrote in a brief.

But the Supreme Court said years of common law rulings demonstrate that nunc pro tunc wasn’t meant to make substantive changes in judgments.

The plaintiffs’ trial attorney, Charles Speer of the Speer Law Firm in Kansas City, couldn’t be reached immediately for comment.

The case is Zach McGuire et al v. Kenoma LLC et al., SC93836.