Supreme Court of Missouri
en banc
December 27, 2012
Effective July 1, 2013
Effective July 1, 2013
In re:
(1) Repeal of subdivision 44.01(b), entitled "Enlargement," of Rule 44, entitled "Time," and in lieu thereof adoption of a new subdivision 44.01(b), entitled "Enlargement."
(2) Repeal of subdivision (b), entitled "Appearance and Withdrawal of Counsel;" subdivision (e), entitled "Inapplicability of Discovery;" and subdivision (f), entitled "Sanctions for Conduct in Prior Actions;" of subdivision 55.03, entitled "Signing of Pleadings, Motions, and Other Papers; Appearance and Withdrawal of Counsel; Representations to Court; Sanctions," of Rule 55, entitled "Pleadings and Motions," and in lieu thereof adoption of a new subdivision (b), entitled "Entry of Appearance of Counsel;" a new subdivision (e), entitled "Withdrawal of Counsel;" a new subdivision (f), entitled "Inapplicability to Discovery;" and a new subdivision (g), entitled "Sanctions for Conduct in Prior Action," of subdivision 55.03, entitled "Signing of Pleadings, Motions, and Other Papers; Appearance of Counsel; Representations to Court; Sanctions; Withdrawal of Counsel."
(3) Repeal of subdivision 84.03, entitled "Application for Certiorari to Correct Record on Appeal," of Rule 84, entitled "Procedure in All Appellate Courts."
(4) Correction of subdivision 82.01, entitled "Terms and Duties of Chief Justice and Presiding Judges - Supreme Court," and subdivision 82.02, entitled "Court of Appeals and Districts - Terms and Duties of Chief Judges of the Court of Appeals," of Rule 82, entitled "Terms and Duties of Chief Justice and Judges of this Court and the Court of Appeals - Designation of Court of Appeals and Districts Thereof - Duties and Other Matters Relating to the State Courts Administrator and other Court Personnel."
(5) Correction of subdivision 85.05, entitled "Form of Writ of Attachment," of Rule 85, entitled "Attachments."
ORDER
1. It is ordered that effective July 1, 2013, subdivision 44.01(b) of Rule 44 be and the same is hereby repealed and new subdivision 44.01(b) adopted in lieu thereof to read as follows:
- 44.01 TIME, COMPUTATION OF - EXTENSION - EXPIRATION OF TERM - SERVICE OF MOTIONS
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(b) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon notice and motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 52.13, 72.01, 73.01, 75.01, 78.04, 81.04, 81.07, and 84.035 or for commencing civil action.
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- 55.03 SIGNING OF PLEADINGS, MOTIONS AND OTHER PAPERS; APPEARANCE OF COUNSEL; REPRESENTATIONS TO COURT; SANCTIONS; WITHDRAWAL OF COUNSEL
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(b) Entry of Appearance of Counsel. An attorney who appears in a case shall be considered as representing the parties for whom the attorney appears for all purposes in that case, except as otherwise provided in a written entry of limited appearance. If an entry of limited appearance is filed, service shall be made as provided in Rule 43.01(b).
An attorney appears in a case by:
(1) Participating in any proceeding as counsel for any party unless limited by an entry of limited appearance;
(2) Signing the attorney's name on any pleading, motion, or other filing; however, if an attorney is identified on a pleading, motion, or other filing as having only assisted in the preparation of the pleading, motion, or other filing, the attorney has not entered an appearance in the matter; or
(3) Filing a written entry of appearance. A written entry of appearance may be limited by its terms to a particular proceeding or matter. If so limited, the written entry of appearance shall be titled "Entry of Limited Appearance" and shall state the physical and mailing addresses, telephone number, facsimile number, and electronic mail address, if any, of each person for whom the attorney is making a limited appearance.
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(e) Withdrawal of Counsel. An attorney may withdraw from a case:
(1) When a matter is completed, upon filing a withdrawal memorandum demonstrating that there are no pending claims or issues in the matter;
(2) When a matter is not completed, with leave of court after filing a motion to withdraw showing compliance with Rule 4-1.16; or
(3) Upon the filing of a "Termination of Limited Appearance" by an attorney who had filed an entry of limited appearance. The "Termination of Limited Appearance" shall demonstrate that the attorney has completed the duties set out in the entry of limited appearance.
Withdrawal memoranda, motions to withdraw, and notices of Termination of Limited Appearance shall include the client’s last known address and shall be served on the client in addition to all others required to be served.
(f) Inapplicability to Discovery. This Rule 55.03 does not apply to disclosures and discovery requests, responses, objections, and motions that are subject to the provisions of Rules 56 to 61.
(g) Sanctions for Conduct in Prior Action. If conduct constituting a violation of Rule 55.03(c) occurs but the civil action is dismissed and if a civil action based upon or including the same claim against the same party is thereafter filed, the court, on its own motion or on motion of a party to the first action, may impose an appropriate sanction in the second action for the violation of Rule 55.03(c). The sanction shall be imposed in the manner provided by Rule 55.03(d). In determining the sanction to impose, the court shall consider the costs and expenses incurred in the action previously dismissed, including the reasonable attorney's fees incurred in the first action.
4. The Court hereby corrects subdivisions 82.01 and 82.02 of Rule 82 by making said subdivisions gender neutral. As corrected, effective July 1, 2013, subdivisions 82.01 and 82.02 shall read as follows:
- 82.01 TERMS AND DUTIES OF CHIEF JUSTICE AND PRESIDING JUDGES - SUPREME COURT
(a) Judges of this Court shall elect from their number a chief justice to preside over the Court en banc who shall serve for a term of two years and shall be the administrative officer of the Court.
(b) A presiding judge of each division of this Court shall be elected by the judges thereof, shall serve a term of two years, and shall be the administrative officer of the division.
82.02 COURT OF APPEALS AND DISTRICTS - TERMS AND DUTIES OF CHIEF JUDGES OF THE COURT OF APPEALS
(a) The court of appeals established by article V of the Constitution of Missouri shall be officially known and designated as the Missouri Court of Appeals, and the three districts thereof shall be respectively denominated as the Eastern, Western, and Southern districts.
(b) The judges of each district of the court of appeals shall elect from their number a chief judge, who shall be the administrative officer of the district.
- 85.05 FORM OF WRIT OF ATTACHMENT
A writ of attachment shall be in the following form:
The State of Missouri to any sheriff of any county in the State of Missouri.
Whereas, AB has on the ________ day of ________, 20___, obtained a writ of attachment against CD, you are commanded to execute this writ by attaching the property of CD or as much thereof as will be sufficient to satisfy the sum $________, with interest and costs and on the ________ day of ________, 20___, certify to this court how you executed this writ.
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EF, Clerk
7. It is ordered that this order be published in the South Western Reporter.
Day - to - Day
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RICHARD B. TEITELMAN
Chief Justice