Order dated December 18, 2007, re: Rules 56.02, 57.06, 68.01, 74.04, 78.10, 81.18, 84.05, 84.06,

Supreme Court of Missouri
en banc

December 18, 2007
Effective July 1, 2008

In re:

(1) Repeal of subdivision 57.06, entitled "Commissioner for Deposition," of Rule 57, entitled "Interrogatories and Depositions," and in lieu thereof adoption of a new subdivision 57.06, entitled "Presiding Officer for Deposition."

(2) Adoption of a new subdivision (h) of subdivision 68.01, entitled "Masters in Circuit Courts," of Rule 68, entitled "Masters and Receivers."

(3) Repeal of subdivision 74.04(c), entitled "Motions and Proceedings Thereon," of Rule 74, entitled "Judgments, Orders and Proceedings Thereon," and in lieu thereof adoption of a new subdivision 74.04(c), entitled "Motions and Proceedings Thereon."

(4) Repeal of subdivision 78.10, entitled "Remittitur - Effect of Consenting to Remittitur," of Rule 78, entitled "New Trials - After-trial Motions - Preservation of Error," and in lieu thereof adoption of a new subdivision 78.10, entitled "Additur and Remittitur."

(5) Repeal of subdivision (b) of subdivision 81.18, entitled "Form of Typewritten Transcripts and Other Documents," of Rule 81, entitled “Appeals,” and in lieu thereof adoption of a new subdivision (b) of subdivision 81.18, entitled "Form of Typewritten Transcripts and Other Documents."

(6) Repeal of subdivision 84.05(a), entitled "Service and Filing - Time of;" subdivision 84.05(b), entitled "Service and Filing - Time of - Cross Appeals;" subdivision 84.06(g), entitled "Electronic Copy - Filing;" and subdivision 84.06(h), entitled "Briefs by Electronic Mail in this Court," of Rule 84, entitled "Procedure in All Appellate Courts," and in lieu thereof adoption of a new subdivision 84.05(a), entitled "Filing and Service - Time of;" a new subdivision 84.05(b), entitled "Filing and Service - Time of - Cross Appeals;" a new subdivision 84.06(g), entitled "Electronic Copy - Filing;" and a new subdivision 84.06(h), entitled "Briefs by Electronic Mail in this Court."

(7) Correction of reference to "Rule 84.05(g)" contained in subdivision 84.04(h), entitled "Appendix," of Rule 84, entitled "Procedure in All Appellate Courts."

(8) Correction of word "requires" contained in subdivision 68.01(e), entitled "Powers," of Rule 68, entitled "Masters in Circuit Court."

(9) Vacation of portions of this Court's June 26, 2007, ordering pertaining to subdivision 56.02, entitled "Master of Discovery;" subdivision 57.06, entitled "Commissioner for Depositions;" and subdivision 68.01(h), entitled "Masters in Circuit Courts."

ORDER

1. It is ordered that effective July 1, 2008, subdivision 57.06 of Rule 57 be and the same is hereby repealed and a new subdivision 57.06 adopted in lieu thereof to read as follows:

57.06 PRESIDING OFFICER FOR DEPOSITION
A master may be appointed to preside over the taking of a deposition pursuant to Rule 68.01(h).

2. It is ordered that effective July 1, 2008, subdivision 68.01(h) of Rule 68 be and the same is hereby adopted to read as follows:

68.01 MASTERS IN CIRCUIT COURTS

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(h) Masters for Depositions. The court, upon motion, may appoint a master to preside at the taking of a deposition. The master shall be a member of The Missouri Bar.
The master, in addition to the authority conferred on officers to take depositions, shall have the authority to determine all objections to evidence and to exclude evidence that is not within the scope of discovery as defined in Rule 56.01(b).
Upon request of a party, the master shall report a ruling or rulings on evidence to the court either during or after the completion of the taking of a deposition. Within 30 days after being served with a copy of the master's report, any party may file written objections thereto and serve them on the other parties. If objections are filed, the court shall issue an order sustaining or overruling the objections.

3. It is ordered that effective July 1, 2008, subdivision 74.04(c) of Rule 74 be and the same is hereby repealed and a new subdivision 74.04(c) adopted in lieu thereof to read as follows:

74.04 SUMMARY JUDGMENT

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(c) Motions and Proceedings Thereon.
(1) Motions for Summary Judgment. A motion for summary judgment shall summarily state the legal basis for the motion.
A statement of uncontroverted material facts shall be attached to the motion. The statement shall state with particularity in separately numbered paragraphs each material fact as to which movant claims there is no genuine issue, with specific references to the pleadings, discovery, exhibits or affidavits that demonstrate the lack of a genuine issue as to such facts. An electronic copy of the statement of uncontroverted material facts in a commonly used medium, such as a diskette, CD-ROM or e-mail attachment, in a format that can be read by most commonly used word processing programs, such as Word for Windows or WordPerfect 5.x or higher, shall be served on the party to whom the motion for summary judgment is directed. In addition to the information normally in a certificate of service, the certificate of service shall also state the format of the electronic copy and the medium used to transmit the electronic copy to the responding party.
Attached to the statement shall be a copy of all discovery, exhibits or affidavits on which the motion relies.
Movant shall file a separate legal memorandum explaining why summary judgment should be granted.
(2) Responses to Motions for Summary Judgment. Within 30 days after a motion for summary judgment is served, the adverse party shall serve a response on all parties. The response shall set forth each statement of fact in its original paragraph number and immediately thereunder admit or deny each of movant's factual statements.
A denial may not rest upon the mere allegations or denials of the party's pleading. Rather, the response shall support each denial with specific references to the discovery, exhibits or affidavits that demonstrate specific facts showing that there is a genuine issue for trial.
Attached to the response shall be a copy of all discovery, exhibits or affidavits on which the response relies.
A response that does not comply with this Rule 74.04(c)(2) with respect to any numbered paragraph in movant's statement is an admission of the truth of that numbered paragraph.
The response may also set forth additional material facts that remain in dispute, which shall be presented in consecutively numbered paragraphs and supported in the manner prescribed by Rule 74.04(c)(1).
An electronic copy of the response shall be served as provided in Rule 74.04(c)(1).
The response may include a legal memorandum explaining the legal or factual reasons why summary judgment should not be granted.
(3) Replies in Support of Motions for Summary Judgment. Within 15 days after service of the response, the movant may file a reply memorandum of law explaining why summary judgment should be granted.
Within the same time, if the adverse party's response sets forth additional material facts that remain in dispute, movant shall set forth each additional statement of fact in its original paragraph number and immediately thereunder admit or deny each such factual statement. Denials shall be supported in the manner prescribed by Rule 74.04(c)(2).
Within the same time, the movant may file a statement of additional material facts as to which movant claims there is no genuine issue. The statement shall be presented in consecutively numbered paragraphs and supported in the manner prescribed by Rule 74.04(c)(1).
An electronic copy of the reply shall be served as provided in Rule 74.04(c)(1).
Attached to the supplemental statement shall be a copy of any additional discovery, exhibits or affidavits on which the supplemental statement relies.
(4) Sur-replies in Opposition to Motions for Summary Judgment. Within 15 days of service, if movant files a statement of additional material facts pursuant to Rule 74.04(c)(3), the adverse party shall file a sur-reply. The sur-reply shall set forth each additional statement of fact in its original paragraph number and immediately thereunder admit or deny each such factual statement. The sur-reply shall be in the form and shall be supported in the manner prescribed by Rule 74.04(c)(2).
An electronic copy of the sur-reply shall be served as provided in Rule 74.04(c)(1).
Attached to the sur-reply shall be a copy of any additional discovery, exhibits or affidavits on which the sur-reply relies.
A sur-reply that does not comply with Rule 74.04(c)(2) with respect to any numbered paragraph in movant's statement of additional material facts is an admission of the truth of that numbered paragraph.
If the movant files a statement of additional material facts, the adverse party may file within the same time a sur-reply memorandum of law explaining the legal or factual reasons why summary judgment should not be granted.

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4. It is ordered that effective July 1, 2008, subdivision 78.10 of Rule 78 be and the same is hereby repealed and a new subdivision 78.10 adopted in lieu thereof to read as follows:

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.

5. It is ordered that effective July 1, 2008, subdivision 81.18(b) of Rule 81 be and the same is hereby repealed and a new subdivision 81.18(b) adopted in lieu thereof to read as follows:

81.18 FORM OF TYPEWRITTEN TRANSCRIPTS AND OTHER DOCUMENTS

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(b) Typewritten transcripts shall conform to the provisions of Rule 81.18(a) except that:
(1) There shall be no fewer than nine characters to the typed inch;
(2) They shall be securely bound on the left side with either spiral binding or fasteners that extend a full one inch beyond the depth of the volume;
(3) They shall have a left margin of not less than one and one-fourth nor more than one and three-fourth inches;
(4) They shall have a right margin of not more than three-eighths of an inch; and
(5) There shall be no fewer than 25 typed lines per sheet of paper.

Each question and answer must begin no more than five spaces from the left margin, with no more than five spaces from the “Q” and “A” to the text. Carry-over questions and answers shall begin at the left margin.
A volume of transcript shall not exceed 200 sheets of paper.

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6. It is ordered that effective July 1, 2008, subdivision 84.05(a), subdivision 84.05(b), subdivision 84.06(g), and subdivision 84.06(h) of Rule 84 be and the same are hereby repealed and a new subdivision 84.05(a), a new subdivision 84.05(b), a new subdivision 84.06(g), and a new subdivision 84.06(h) adopted in lieu thereof to read as follows:

84.05. BRIEFS - WHEN AND BY WHOM FILED AND SERVED
(a) Filing and Service - Time of. Within 60 days after the date on which the record on appeal is filed with the clerk of the appellate court, the appellant shall file ten copies of the appellant's brief. Within 30 days after the filing of appellant's brief, respondent shall file ten copies of respondent's brief. Within 15 days after the filing of respondent's brief, the appellant may file ten copies of a reply brief. The party filing a brief shall serve each other party with two copies of the brief unless Rule 84.06(g) or Rule 84.06(h) applies. The appellate court may, by order in specific cases, either shorten or lengthen the periods prescribed above for filing briefs.
(b) Filing and Service - Time of - Cross Appeals. Within 60 days after the date on which the record on appeal is filed with the clerk of the appellate court, the appellant shall file ten copies of appellant's brief. Within 30 days after the filing of the appellant's brief, respondent/cross-appellant shall file ten copies of respondent/cross-appellant's brief. Within 30 days after the filing of respondent/cross-appellant's brief, appellant may file ten copies of appellant's brief in response to the cross appeal and in reply to the respondent's brief. Within 15 days thereafter, the cross-appellant may file ten copies of cross-appellant's reply brief. The party filing a brief shall serve each other party with two copies of the brief unless Rule 84.06(g) or Rule 84.06(h) applies. The appellate court may, by order in specific cases, either shorten or lengthen the time prescribed above for serving and filing briefs.

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7. It is further ordered that effective July 1, 2008, the reference to "Rule 84.05(g)" contained in subdivision 84.04(h) of Rule 84 be changed to refer to "Rule 84.06(g)".

8. It is further ordered that effective July 1, 2008, the word "requires" contained in subdivision 68.01(e) of Rule 68 be changed to the word "require".

9. It is further ordered that the portions of this Court's order of June 26, 2007, relating to subdivision 56.02, entitled "Master of Discovery;" subdivision 57.06, entitled "Commissioner for Depositions;" and subdivision 68.01(h), entitled "Masters in Circuit Courts," are vacated and for naught held.

10. It is further ordered that notice of this order be published in the Journal of The Missouri Bar.

11. It is further ordered that this order be published in the South Western Reporter.

Day – to – Day

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LAURA DENVIR STITH
Chief Justice