Rule 78 | New Trials – After–Trial Motions – Preservation of Error

First Adopted: April 10, 1984

Most Recently Effective: January 01, 1975

Rule 78 | Rules of Civil Procedure | Rules Governing Civil Procedure in the Circuit Courts | New Trials – After–Trial Motions – Preservation of Error

78.01 | Granting a New Trial

The court may grant a new trial of any issue upon good cause shown. A new trial may be granted to all or any of the parties and on all or part of the issues after trial by jury, court or master. On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact or make new findings, and direct the entry of a new judgment.

Committee Note – 1974

The source is prior Rule 78.01. In revising prior Rule 78.01, there is no intention to eliminate any of the reasons for which new trials heretofore have been granted or to change the law concerning the grounds for granting a new trial. The revision has been made solely to make the Rule more concise.



(Adopted April 10, 1974, effective January 1, 1975.)

First Adopted: April 10, 1974

Most Recently Effective: January 01, 1975

Rule 78 | Rules of Civil Procedure | Rules Governing Civil Procedure in the Circuit Courts | New Trials – After–Trial Motions – Preservation of Error

78.02 | New Trial – Against Weight of Evidence – Limitation

Only one new trial shall be allowed on the ground that the verdict is against the weight of the evidence.

Committee Note – 1974

This is the same as the next to last sentence of prior Rule 78.01.


(Adopted April 10, 1974, effective January 1, 1975.)

First Adopted: March 29, 1974

Most Recently Effective: January 01, 1975

Rule 78 | Rules of Civil Procedure | Rules Governing Civil Procedure in the Circuit Courts | New Trials – After–Trial Motions – Preservation of Error

78.03 | Order Granting New Trial Shall Specify Grounds

Every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted.

Committee Note – 1974

This is the same as the last sentence of prior Rule 78.01.


(Adopted March 29, 1974, effective January 1, 1975.)

First Adopted: April 10, 1974

Most Recently Effective: January 01, 2010

Rule 78 | Rules of Civil Procedure | Rules Governing Civil Procedure in the Circuit Courts | New Trials – After–Trial Motions – Preservation of Error

78.04 | Motion for New Trial – Time for Filing

Any motion for new trial and any motion to amend the judgment or opinion shall be filed not later than thirty days after the entry of judgment. Any motion for judgment notwithstanding the verdict shall be filed within the time provided in Rule 72.01. If the motion is filed prematurely, the motion shall be considered as filed immediately after the time the judgment is finally entered.


(Adopted April 10, 1974, effective January 1, 1975. Amended May 22, 1987, effective January 1, 1988; amended June 1, 1993, effective January 1, 1994; amended February 22, 1994, effective January 1, 1995; amended September 26, 1995, effective July 1, 1996; amended May 27, 1999, effective January 1, 2000; amended June 24, 2009, effective January 1, 2010.)

First Adopted: April 10, 1974

Most Recently Effective: January 01, 1975

Rule 78 | Rules of Civil Procedure | Rules Governing Civil Procedure in the Circuit Courts | New Trials – After–Trial Motions – Preservation of Error

78.05 | After-Trial Motions, including a Motion for a New Trial Based Upon Affidavits

When any after-trial motion, including a motion for new trial, is based on facts not appearing of record, affidavits may be filed which affidavits shall be served with the motion. The opposing party has 10 days after such service within which to serve opposing affidavits, which period may be extended for an additional period not exceeding 20 days either by the court for good cause shown or by the parties by written stipulation. The court may permit reply affidavits. Depositions and oral testimony may be presented in connection with after-trial motions.

Committee Note – 1974

This is substantially the same as prior Rule 78.03.



(Adopted April 10, 1974, effective January 1, 1975.)

First Adopted: April 10, 1974

Most Recently Effective: January 01, 2000

Rule 78 | Rules of Civil Procedure | Rules Governing Civil Procedure in the Circuit Courts | New Trials – After–Trial Motions – Preservation of Error

78.06 | When After-Trial Motion Overruled

Any motion for new trial, motion to amend the judgment or opinion, or motion for judgment notwithstanding the verdict is overruled for all purposes if the trial court does not rule on it within ninety days after the date the last such timely motion is filed.

In computing the ninety days, no day shall be counted during which the court lacks power to act because of an order of a superior state court or because of removal of the action.

Committee Note – 1974

This is substantially the same as prior Rule 78.04.


(Adopted April 10, 1974, effective January 1, 1975. Amended September 26, 1995, effective July 1, 1996; amended May 27, 1999, effective January 1, 2000.)

First Adopted: April 10, 1974

Most Recently Effective: July 01, 2017

Rule 78 | Rules of Civil Procedure | Rules Governing Civil Procedure in the Circuit Courts | New Trials – After–Trial Motions – Preservation of Error

78.07 | After-Trial Motion – Allegations of Error Required

(a) In jury tried cases, except as otherwise provided in this Rule 78.07, allegations of error must be included in a motion for a new trial in order to be preserved for appellate review.

The following matters need not be included in such motion to preserve the allegations of error:

(1) Questions of jurisdiction over the subject matter;

(2) Questions presented in motions for judgment under Rule 72.01(b); and

(3) Questions relating to motions for directed verdict that are granted at trial.

Where definite objections or requests were made during the trial in accordance with Rule 78.09, including specific objections to instructions, a general statement in the motion of any allegations of error based thereon is sufficient.

Allegations of error based on matters occurring or becoming known after final submission to the court or jury shall be stated specifically.

(b) Except as otherwise provided in Rule 78.07(c), in cases tried without a jury or with an advisory jury, neither a motion for a new trial nor a motion to amend the judgment or opinion is necessary to preserve any matter for appellate review if the matter was previously presented to the trial court.

(c) In all cases, allegations of error relating to the form or language of the judgment, including the failure to make statutorily required findings, must be raised in a motion to amend the judgment in order to be preserved for appellate review.

(d) The trial court may amend or modify any judgment in accordance with Rule 75.01 or upon motion by any party. Unless an amended judgment shall otherwise specify, an amended judgment shall be deemed a new judgment for all purposes.


(Adopted April 10, 1974, effective January 1, 1975. Amended June 1, 1993, effective January 1, 1994; amended May 27, 1999, effective January 1, 2000; amended June 25, 2001, effective January 1, 2002; amended June 17, 2004, effective January 1, 2005; amended June 28, 2011, effective January 1, 2012; amended December 27, 2016, effective July 1, 2017.)

First Adopted: April 10, 1974

Most Recently Effective: January 01, 1975

Rule 78 | Rules of Civil Procedure | Rules Governing Civil Procedure in the Circuit Courts | New Trials – After–Trial Motions – Preservation of Error

78.08 | New Trial – Plain Errors May Be Considered

Plain errors affecting substantial rights may be considered at a hearing on motion for a new trial, in the discretion of the court, though not raised in the motion or defectively raised, when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.

Committee Note – 1974

This is substantially the same as prior Rule 79.04 except that the reference to plain error being considered on appeal was deleted and placed in Rule 84.13(c).


(Adopted April 10, 1974, effective January 1, 1975.)

First Adopted: April 10, 1974

Most Recently Effective: January 01, 1994

Rule 78 | Rules of Civil Procedure | Rules Governing Civil Procedure in the Circuit Courts | New Trials – After–Trial Motions – Preservation of Error

78.09 | Exception Unnecessary to Rulings or Orders of the Court

Formal exceptions to rulings or orders of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action that the party desires the court to take or objections to the action of the court and grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice the party.

(Adopted April 10, 1974, effective January 1, 1975. Amended June 1, 1993, effective January 1, 1994.)

First Adopted: June 05, 1980

Most Recently Effective: July 01, 2008

Rule 78 | Rules of Civil Procedure | Rules Governing Civil Procedure in the Circuit Courts | New Trials – After–Trial Motions – Preservation of Error

78.10 | Additur and Remittitur

(a) Any party requesting additur or remittitur shall file a motion for such relief within the time prescribed by Rule 78.04 for filing a motion for new trial.

(b) If the court sustains the motion in whole or in part, the court’s order shall afford each party opposing such relief the option to file an election of a new trial. The election of a new trial shall be filed within 30 days of the date of the order. The order sustaining the motion shall specify whether the new trial will be on damages or on all issues. Absent timely election, each party opposing such relief shall be deemed to have accepted the additur or remittitur. If additur or remittitur is accepted, the trial court shall promptly amend the judgment to conform to the additur or remittitur.

(c) A party that requested additur or remittitur in the trial court and received less than the full relief requested may renew the request in the appellate court. If the appellate court grants additional relief, in whole or in part, it shall afford each party opposing such relief the option to file in the circuit court an election of a new trial. The election shall be filed within 30 days of the date of the mandate.

The decision granting additional relief shall specify whether the new trial will be on damages or on all issues.

Absent timely election, each party opposing such relief shall be deemed to have accepted the additur or remittitur. If additur or remittitur is accepted, the trial court shall promptly amend the judgment to conform to the additur or remittitur.

(d) Consent to any additur or remittitur that the trial court awards in lieu of a new trial does not preclude the consenting party from arguing on appeal that the amount of the verdict was proper or that the amount of the additur or remittitur is excessive. A party consenting to additur or remittitur may not initiate the appeal on that ground but may raise the issue on the other party's appeal.

(e) Neither the trial court nor the appellate court may award additur or remittitur more than once on the ground that the damages are against the weight of the evidence.

Committee Note – 1981

This is new.


(Adopted June 5, 1980, effective January 1, 1981. Amended December 18, 2007, effective July 1, 2008.)