Supreme Court of Missouri
en banc

In re:

(1) Repeal of subdivision 43.01, entitled "Service of Pleadings and Other Papers," of Rule 43, entitled "Service and Filing of Pleadings and Papers," and in lieu thereof adoption of a new subdivision 43.01, entitled "Service of Pleadings and Other Papers." 

(2) Repeal of subdivision (a) of subdivision 51.045, entitled "Transfer of Venue When Venue Improper," of Rule 51, entitled "Venue, Including Change of Venue and Change of Judge," and in lieu thereof adoption of a new subdivision (a) of subdivision 51.045, entitled "Transfer of Venue When Venue Improper."  

(3) Adoption of a new subdivision 52.08(f), entitled "Appeals," of Rule 52, entitled "Parties."

(4) Repeal of subdivision 55.32(a), entitled "Compulsory Counterclaims," of Rule 55, entitled "Pleadings and Motions," and in lieu thereof adoption of a new subdivision 55.32(a), entitled "Compulsory Counterclaims."

(5) Repeal of subdivision 57.01, entitled "Interrogatories to Parties," and subdivision 57.09(b), entitled "For Production of Documentary Evidence," of Rule 57, entitled "Interrogatories and Depositions," and in lieu thereof adoption of a new subdivision 57.01, entitled "Interrogatories to Parties," and a new subdivision 57.09(b), entitled "For Production of Documentary Evidence."

(6) Repeal of subdivision 58.01, entitled "Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes," of Rule 58, entitled "Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes," and in lieu thereof adoption of a new subdivision 58.01, entitled " Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes."

(7) Repeal of subdivision 59.01, entitled "Request for and Effect of Admissions," of Rule 59, entitled "Admission of Facts and of Genuineness of Documents," and in lieu thereof adoption of a new subdivision 59.01, entitled " Request for and Effect of Admissions."

(8) Repeal of subdivision 81.04(c), entitled "Docket Fees," of Rule 81, entitled "Appeals," and in lieu thereof adoption of a new subdivision 81.04(c), entitled "Class Action Certification Appeals," and a new subdivision 81.04(d), entitled "Docket Fees."

(9) Repeal of subdivision 84.04(h), entitled "Appendix," and subdivision 84.08, entitled "Involuntary Dismissal of Appeal - Notices," of Rule 84, entitled "Procedure in All Appellate Courts," and in lieu thereof adoption of a new subdivision 84.04(h), entitled "Appendix," and a new subdivision 84.08, entitled "Involuntary Dismissal of Appeal - Notices," and adoption of a new subdivision 84.035, entitled "Appeals from Orders Granting or Denying Class Certification."

(10) Repeal of subdivision 90.02, entitled "Request for Issuance of Writ of Garnishment," of Rule 90, entitled "Garnishments and Sequestration," and in lieu thereof adoption of a new subdivision 90.02, entitled "Request for Issuance of Writ of Garnishment."

(11) Correction of reference to "Rule 81.04(c)" in subdivisions 6.06, 30.01, 83.05, 84.24 and 100.02 of Rules 6, 30, 83, 84 and 100, respectively, to reference to "Rule 81.04(d)".

(12) Correction of reference to "Rule 6.01(e)(3)" in subdivision 15.01(e) of Rule 15 to "Rule 6.01(j)(3)."


1.  It is ordered that effective January 1, 2006, subdivision 43.01 of Rule 43 be and the same is hereby repealed and a new subdivision 43.01 adopted in lieu thereof to read as follows:

43.01  SERVICE OF PLEADINGS AND OTHER PAPERS

(a) Service - When Required.  Each affected party shall be served with:

(1) Every pleading subsequent to the original petition;

(2) Every written motion, other than one that may be heard ex parte; and

(3) Every written notice, appearance, demand, offer of judgment, order, and similar paper that by statute, court rule or order is required to be served. 

No service need be made on parties in default for failure to appear, except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons.

(b) Service - on Attorney.  Whenever under these rules or any of the statutes of this state service is required or permitted to be made upon a party represented by an attorney of record, the service shall be made upon the attorney unless service upon the party is ordered by the court.  When a party is represented by more than one attorney, service may be made upon any such attorney.

(c) Service - How and by Whom Made.  Attorneys and non-represented parties shall state in the signature blocks of their pleadings their current mailing addresses, telephone numbers, facsimile numbers, and electronic addresses.  This information shall be kept current at all times.  Service may be directed to any of these addresses, except service to an electronic mail address.  Service to an electronic mail address can only be made on those filing a consent to such service substantially in the form of Civil Procedure Form No. 17. 

Unless otherwise ordered by the court, service required by Rules 43.01(a) and 43.01(b) may be made in the following manner:

(1) Upon the attorney:

(A) By delivering a copy to the attorney; 

(B) By leaving a copy at the attorney's office with a clerk, receptionist, or secretary or with an attorney employed by or associated with the attorney to be served;

(C) By facsimile transmission;

(D) By electronic mail to a consenting attorney; or

(E) By mailing a copy to the attorney at the attorney's last known address;

(2) Upon a party:

(A) By delivering or mailing a copy to the party;

(B) By facsimile transmission;

(C) By electronic mail to a consenting party; or

(D) By serving a copy in the manner provided for service of summons in Rule 54.13.

(d) Service - When Complete.  Personal service on attorneys and non-represented parties and service by leaving a copy at the attorney's office is complete upon delivery.
Service by mail is complete upon mailing. 

Service by facsimile transmission or electronic mail is complete upon transmission, except that a transmission made on a Saturday, Sunday, or legal holiday, or after 5:00 p.m. shall be complete on the next day that is not a Saturday, Sunday, or legal holiday.

(e) Service - How Shown.   Service may be shown by acknowledgment of receipt, by affidavit or by written certificate of counsel making such service.  Affidavits of service and counsel's certificates of service shall state the:

(1) Name of each person served;

(2) Date of service;

(3) Method of service; and

(4) Address of service, such as mailing address, facsimile number or electronic mail address.

(f) Service - Numerous Defendants.   If there are unusually large numbers of defendants in an action, the court, upon motion or of its own initiative, may order that:

(1) Service of the pleadings of the defendants, and reply thereto, need not be made as between the defendants;

(2) Any cross-claim, counterclaim, or pleading constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties; and

(3) The filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. 

A copy of every such order shall be served upon the parties in such manner and form as the court directs.
(g) Service - Time for - When No Time Specified.   When provision is made for the time of filing papers and none is made for the time of service thereof, copies shall be served on the day of filing or as soon thereafter as can be done.

(h) Service of Orders, Judgments and Other Documents.  Any order, judgment or other document issued by the court may be transmitted to the attorney or party as authorized in Rule 43.01(c), provided service pursuant to Rule 54 is not required.  Such documents may be transmitted to non-parties in the same manner as is authorized for service upon an attorney.

2.  It is ordered that effective January 1, 2006, subdivision 51.045(a) of Rule 51 be and the same is hereby repealed and a new subdivision 51.045(a) adopted in lieu thereof to read as follows:

51.045  TRANSFER OF VENUE WHEN VENUE IMPROPER

(a) An action brought in a court where venue is improper shall be transferred to a court where venue is proper if a motion for such transfer is timely filed.  Any motion to transfer venue shall be filed within sixty days of service on the party seeking transfer.  For good cause shown, the court may extend the time to file a motion to transfer venue or allow the party to amend it.
If a motion to transfer venue is not timely filed, the issue of improper venue is waived.

If a timely motion to transfer venue is filed, the venue issue is not waived by any other action in the case.


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3.  It is ordered that effective January 1, 2006, subdivision 52.08(f) of Rule 52 be and the same is hereby adopted to read as follows:

52.08  CLASS ACTIONS


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(f) Appeals.  An appellate court may permit an appeal from an order of a circuit court granting or denying class action certification under this Rule 52.08 if a petition is timely filed as provided in Rule 84.035.  The filing of a petition shall not stay the proceedings in the trial court unless the trial judge or the appellate court so orders.

4.  It is ordered that effective January 1, 2006, subdivision 55.32(a) of Rule 55 be and the same is hereby repealed and a new subdivision 55.32(a) adopted in lieu thereof to read as follows:

55.32  COUNTERCLAIM AND CROSS-CLAIM

(a) Compulsory Counterclaims.  A pleading shall state as a counterclaim any claim that at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.  But the pleader need not state the claim if:

(1) At the time the action was commenced the claim was the subject of another pending action;

(2) The opposing party brought suit upon the claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule
55.32; or

(3) The opposing party brought suit for the purpose of obtaining court approval of a settlement when such approval is required by statute.


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5.  It is ordered that effective January 1, 2006, subdivision 57.01 and subdivision 57.09(b) of Rule 57 be and the same are hereby repealed and a new subdivision 57.01 and a new subdivision 57.09(b) adopted in lieu thereof to read as follows:

57.01  INTERROGATORIES TO PARTIES

(a) Scope.  Any party may serve upon any other party written interrogatories.  Interrogatories may relate to any matter that can be inquired into under Rule 56.01.  An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time.

(b) Issuance.

(1) Form.  Interrogatories shall be in consecutively numbered paragraphs.  The title shall identify the party to whom they are directed and state the number of the set of interrogatories directed to that party. 

(2) When Interrogatories May be Served.  Without leave of court, interrogatories may be served on:

(A) A plaintiff after commencement of the action, and

(B) Any other party with or after the party was served with process, entered an appearance, or filed a pleading.

(3) Service.  Copies of the interrogatories shall be served on all parties not in default.  The party issuing the interrogatories shall also provide each answering party an electronic copy, in a commonly used medium such as a diskette, CD-ROM or as an 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.  In addition to the information normally in a certificate of service, the
certificate of service shall also state:

(A) The name of each party who is to respond to the interrogatories;

(B) The number of the set of interrogatories,

(C) The format of the electronic copy and the medium used to transmit the electronic copy to the responding party.

At the time of service, a certificate of service, but not the interrogatories, shall be filed with the court as provided in Rule 57.01(d).
(c) Response.  The interrogatories shall be answered by each party to whom they are directed.  If they are directed to a public or private corporation, limited liability company, partnership, association or governmental agency, they shall be answered by an officer or agent.  The party answering the interrogatories shall furnish such information as is available to the party.  
(1) When the Response is Due.  Responses shall be served within 30 days after the service of the interrogatories.  A defendant, however, shall not be required to respond to interrogatories before the expiration of 45 days:

(A) After the first of service of the summons and petition upon that defendant, or

(B) Of an entry of appearance being filed for the defendant. 

The court may allow a shorter or longer time.

(2) Form.  The title of the response shall identify the responding party and the number of the set of interrogatories.  The response to the interrogatories shall quote each interrogatory, including its original paragraph number, and immediately there under state the answer or all reasons for not completely answering the interrogatory, including privileges, the work product doctrine and objections. 

(3) Objections and Privileges.  If information is withheld because of an objection, then each reason for the objection shall be stated.  If a privilege or the work product doctrine is asserted as a reason for withholding information, then without revealing the protected information, the objecting party shall state information that will permit others to assess the applicability of the privilege or work product doctrine.

(4) Option to Produce Business Records.  If the answer to an interrogatory may be derived or ascertained from:

(A) The business records of the party upon whom the interrogatory has been served, or

(B) An examination, audit or inspection of such business records, or

(C) A compilation, abstract or summary based thereon,

and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries.

(5) Signing.  Answers shall be signed under oath by the person making them.  Objections shall be signed by the attorney making them or by the party if the party is not represented by an attorney. 

(6) Service.  The party to whom the interrogatories were directed shall serve a signed original of the answers and objections, if any, on the party that issued the interrogatories and a copy on all parties not in default.  The certificate of service shall state the name of the party who issued the interrogatories and the number of the set of interrogatories.

At the time of service, a certificate of service, but not the response, shall be filed with the court as provided in Rule 57.01(d).

(d) Filing.  Interrogatories and answers under this Rule 57.01 shall not be filed with the court except upon court order or contemporaneously with a motion placing the interrogatories in issue.  However, both when the interrogatories and answers are served, the party serving them shall file with the court a certificate of service. 

The certificate shall show the caption of the case, the name of the party served, the date and manner of service, the designation of the document, e.g., first interrogatories or answers to second interrogatories, and the signature of the serving party or attorney. The answers bearing the original signature of the party answering the interrogatories shall be served on the party submitting the interrogatories, who shall be the custodian thereof until the entire case is finally disposed.  
Copies of interrogatory answers may be used in all court proceedings to the same extent the original answers may be used.

(e) Enforcement.  The party submitting the interrogatory may move for an order under Rule 61.01(b) with respect to any objection to or other failure to answer an interrogatory.

(f) Use at Trial.  Interrogatory answers may be used to the extent permitted by the rules of evidence.

57.09  SUBPOENA FOR TAKING DEPOSITION


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(b) For Production of Documentary Evidence.   In conjunction with a deposition properly noticed under Rule 57.03, a subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein.

The court may:

(1) Quash or modify the subpoena if it is unreasonable or oppressive, or

(2) Require the party seeking discovery to advance the reasonable cost of producing the books, papers, documents, or tangible things.


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6.  It is ordered that effective January 1, 2006, subdivision 58.01 of Rule 58 be and the same is hereby repealed and a new subdivision 58.01 adopted in lieu thereof to read as follows:

58.01  PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY
UPON LAND FOR INSPECTION AND OTHER PURPOSES

(a) Scope.  Any party may serve on any other party a request to:

 (1) Produce and permit the party making the request, or someone acting on the requesting party’s behalf, to inspect and copy any designated documents (including writings, drawings, graphs, charts, photographs, phonograph records, electronic records, and other data compilations from which information can be obtained, translated, if necessary, by the requesting party through detection devices into reasonably usable form) or to inspect and copy, test, or sample any tangible things that constitute or contain matters within the scope of Rule 56.01(b) and that are in the possession, custody or control of the party upon whom the request is served; or

(2) Permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, and photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 56.01(b).
This Rule 58.01 does not preclude an independent action against a person not a party for production of documents and things and permission to enter upon land.

(b) Issuance.

(1) Form.  In consecutively numbered paragraphs the request shall set forth the items to be inspected, either by individual item or by category, and describe each item and category with reasonable particularity.  The request shall specify a reasonable time, place and manner of making the inspection and performing the related acts.  The title shall identify the party to whom the requests are directed and state the number of the set of requests directed to that party.

    (2) When Requests May be Served. Without leave of court, requests may be served on:

(A) A plaintiff after commencement of the action, and

(B) Any other party with or after the party was served with process, entered an appearance, or filed a pleading.

 (3) Service.  Copies of the requests shall be served on all parties not in default.  The party issuing the requests shall also provide each responding party an electronic copy in a commonly used medium, such as a diskette, CD-ROM or as an 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.  In addition to the information normally in a certificate of service, the certificate of service shall also state the:

(A) Name of each party who is to respond to the requests;

(B) Number of the set of requests,

(C) Format of the electronic copy and the medium used to transmit the electronic copy to the responding party.

At the time of service, a certificate of service, but not the requests, shall be filed with the court as provided in Rule 58.01(d).

 (c) Response.  The requests shall be answered by each party to whom they are directed.

(1) When Response is Due.  Responses shall be served within 30 days after the service of the request.  A defendant, however, shall not be required to respond to the request before the expiration of 45 days:

(A) After the first of service of the summons and petition upon that defendant, or

(B) Of an entry of appearance being filed for the defendant. 

The court may allow a shorter or longer time.
(2) Form.  The title of the response shall identify the responding party and the number of the set of the requests.  The response shall quote each request, including its original paragraph number, and immediately there under state that the requested items will be produced or the inspection and related activities will be permitted as requested, unless the request is objected to, in which event each reason for objection shall be stated in detail. 

(3) Objections and Privileges.  If information is withheld because of an objection, then each reason for the objection shall be stated.  If a privilege or the work product doctrine is asserted as a reason for the objection, then without revealing the protected information, the objecting party shall state information that will permit others to assess the applicability of the privilege or work product doctrine.

(4) Method of Production.  A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.

(5) Signing.  The response shall be signed by the attorney or by the party if the party is not represented by an attorney.

(6) Service. The party to whom the requests were directed shall serve a signed original of the response and objections, if any, on the party that issued the requests and a copy upon all parties not in default.  The certificate of service shall state the name of the party who issued the requests and the number of the set of requests.

At the time of service, a certificate of service, but not the response, shall be filed with the court as provided in Rule 58.01(d).

 (d) Filing.  The request and responses thereto shall not be filed with the court except upon court order or contemporaneously with a motion placing the request in issue.  However, both when the request and responses are served, the party serving them shall file with the court a certificate of service.  The certificate shall show the caption of the case, the name of the party served, the date and manner of service, and the signature of the serving party or attorney.  Each party filing a certificate shall maintain a copy of the document that is the subject of the certificate until the case is finally disposed.

(e) Enforcement.  The party submitting the request may move for an order under Rule 61.01 with respect to any objection or other failure to respond to the request or any part thereof or any failure to permit inspection as requested.

7.  It is ordered that effective January 1, 2006, subdivision 59.01 of Rule 59 be and the same is hereby repealed and a new subdivision 59.01 adopted in lieu thereof to read as follows:

59.01  REQUEST FOR AND EFFECT OF ADMISSIONS

 (a) Scope.  After commencement of an action, a party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 56.01(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. 

A failure to timely respond to requests for admissions in compliance with this Rule 59.01 shall result in each matter being admitted.

 (b) Effect of Admission.  Any matter admitted under this Rule 59.01 is conclusively established unless the court on motion permits withdrawal or amendment of the admission.

Subject to the provisions of Rule 62.01 governing amendment of a pre-trial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining the action or defense on the merits. 

Any admission made by a party under this Rule 59.01 is for the purpose of the pending action only and is not an admission by the party for any other purpose nor may it be used against the party in any other proceeding.

 (c) Issuance. 

(1) Form.  In consecutively numbered paragraphs, the request shall set forth each matter for which an admission is requested.  Copies of documents about which admissions are requested shall be served with the request unless copies have already been furnished.  The title shall identify the party to whom the request for admissions are directed and state the number of the set of requests directed to that party.

   (2) When Requests May be Served.  Without leave of court, requests may be served on:

(A) A plaintiff after commencement of the action,

(B) A defendant or respondent upon the expiration of 30 days after the first event of the defendant entering an appearance or being served with process, and

(C) Any other party with or after the party was served with process, entered an appearance, or filed a pleading.

(3) Service.  Copies of the requests shall be served on all parties not in default.  The party issuing the requests shall also provide each responding party an electronic copy in a commonly used medium, such as a diskette, CD-ROM or as an 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.  In addition to the information normally in a certificate of service, the certificate of service shall also state the:

(A) Name of each party who is to respond to the requests;

(B) Number of the set of requests,

(C) Format of the electronic copy and the medium used to transmit the electronic copy to the responding party.

At the time of service, a certificate of service, but not the requests, shall be filed with the court as provided in Rule 59.01(d).
 (d) Response.  The requests shall be answered by each party to whom they are directed.

(1) When Response is Due.  Responses shall be served within 30 days after the service of the requests for admissions.  A defendant or respondent, however, shall not be required to respond to requests for admissions before the expiration of 60 days after the earlier of the defendant:

(A) Entering an appearance, or

(B) Being served with process.
 
The court may allow a shorter or longer time.
(2) Form.  The title of the response shall identify the responding party and the number of the set of the requests for admissions.  The response shall quote each request, including its original paragraph number, and immediately thereunder specifically:

(A) Admit the matter; or

(B) Deny the matter; or

(C) Object to the matter and state each reason for the objection; or

(D) Set forth in detail the reasons why the responding party cannot truthfully admit or deny the matter. 

A denial shall fairly meet the substance of the requested admission.  
When good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as true and qualify or deny the remainder.  
A responding party may give lack of information or knowledge as a reason for failure to admit or deny if such party states that the party has made reasonable inquiry and the information known or readily obtainable by the party is insufficient to enable the party to admit or deny. 

A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; such party may deny the matter, subject to the provisions of Rule 61.01(c), or set forth reasons why the party cannot admit or deny it.

(3) Objections and Privileges.  If an objection is asserted, then each reason for the objection shall be stated.  If a failure to admit or deny a request is based on a privilege or the work product doctrine, then without revealing the protected information, the objecting party shall state information that will permit others to assess the applicability of the privilege or work product doctrine.

(4) Signing.  The response shall be signed by the party or the party’s attorney. 

(5) Service. The party to whom the requests were directed shall serve a signed original of the response and objections, if any, on the party that issued the requests and a copy upon all parties not in default.  The certificate of service shall state the name of the party who issued the requests and the number of the set of requests.
At the time of service, a certificate of service, but not the response, shall be filed with the court as provided in Rule 59.01(d).
(e) Filing Request and Responses.  The request and response thereto shall not be filed with the court except upon court order or contemporaneously with a motion placing the request in issue.  However, both when the request and the response are served the party serving them shall file with the court a certificate of service.  Each party filing a certificate shall maintain a copy of the document that is the subject of the certificate until the case is finally disposed.
(f) Enforcement.  The party who has requested the admissions may move to have determined the sufficiency of the answers or objections.  Unless the court determines that an objection is proper, it shall order that an answer be served.  If the court determines that an answer does not comply with the requirements of this Rule 59.01, it may order either that:

(1) The matter is admitted, or

(2) An amended answer be served. 

The provisions of Rule 61.01(c) apply to the award of expenses incurred in relation to the motion.

8.  It is ordered that effective January 1, 2006, subdivision 81.04(c) of Rule 81 be and the same is hereby repealed and a new subdivision 81.04(c) and a new subdivision 81.04(d) adopted in lieu thereof to read as follows:

81.04  APPEALS, WHEN AND HOW TAKEN - CROSS APPEALS -
DOCKET FEES


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(c) Class Action Certification Appeal.  Petitions to appeal an order granting or denying class action certification shall be filed as provided in Rule 84.035.
(d) Docket Fees.  The appellate court docket fee is $70.  It shall be paid to the trial court clerk when the notice of appeal is filed.
No trial court clerk shall accept or file a notice of appeal unless:

(1) The docket fee is deposited therewith; or

(2) The appellant is not required by law to pay the docket fee; or

(3) An order permitting the appellant to prosecute the appeal in forma pauperis accompanies the notice of appeal.
 

9.  It is ordered that effective January 1, 2006, subdivision 84.04(h) and subdivision 84.08 of Rule 84 be and the same are hereby repealed and a new subdivision 84.04(h) and a new subdivision 84.08 adopted in lieu thereof, as well as a new subdivision 84.035 adopted, to read as follows:

84.035  APPEALS FROM ORDERS GRANTING OR DENYING CLASS
  CERTIFICATION

 (a) A party seeking permission to appeal from an order granting or denying class action certification shall file a petition for permission to appeal with the appropriate court within ten days of the entry of the order of which the party complains.

 (b) The petition shall include the following:

(1) The question presented;

(2) A concise statement of facts necessary to understand the question presented;

(3) The relief sought, if an appeal is granted;

(4) A concise statement of reasons why the appeal should be allowed;

(5) A request for stay, if one is being sought;

(6) A copy of the order complained of and any related opinion or memorandum and any other documents that may be essential to an understanding of the matters set forth in the petition.  The documents shall be attached as exhibits.  The pages of the exhibits shall be numbered consecutively.  An index of all exhibits shall be attached;

(7) Proof of service of a copy of the petition and exhibits on the trial judge and all other parties to the underlying action.

 (c) A party may file a response opposing the petition, along with any other portions of the record, within ten days after the petition is filed.

 (d) An original and such number of copies as the court may require of all filings associated with a petition for appeal by permission shall be filed.

 (e) The petition to appeal will be decided on the basis of the petition and response without further briefing or oral argument unless the court otherwise orders.

 (f) If the petition is granted, the appellant shall file a notice of appeal along with the required docket fee and all necessary attachments with the appropriate circuit clerk within 10 days of entry of the order granting permission to appeal.  
 (g) The appellant shall file a brief within 30 days of the filing of the notice of appeal in the circuit court.  The respondent may file a brief within 20 days of the filing of the appellant’s brief.  The appellant may file a reply brief within 10 days of the filing of the respondent’s brief.

 (h) The petition for permission to appeal, together with the attached exhibits, the response, and any portions of the record filed with the response by the party opposing the petition shall constitute the record, and no separate record need be prepared for the appellate court.  Either party may supplement the appellate record by filing on or before the date the main brief is filed any additional portions of the trial court record and proceedings necessary to the determination of the questions presented on appeal.

 (i) The appeal of any order granting or denying class action certification shall not stay the proceedings in the trial court unless the trial judge or the appellate court so orders.

84.04 BRIEFS - CONTENTS


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(h) Appendix.   A party's brief shall contain or be accompanied by an appendix containing the following materials, unless the material has been included in a previously filed appendix:
(1) The judgment, order, or decision in question, including the relevant findings of fact and conclusions of law filed in a judge-tried case or by an administrative agency;
(2) The complete text of all statutes, ordinances, rules of court, or agency rules claimed to be controlling as to a point on appeal; and
(3) The complete text of any instruction to which a point relied on relates.
An appendix also may set forth matters pertinent to the issues discussed in the brief such as copies of exhibits, excerpts from the written record, and copies of new cases or other pertinent authorities.
The appendix shall have a separate table of contents.  If the appendix contains fewer than 30 pages, it shall be bound into the back of the party's brief.  If the appendix is 30 pages or more, it shall be separately bound and shall have the same color cover as the brief it accompanies.
The pages in the appendix shall be numbered consecutively beginning with page A1.  The pages in the appendix shall not be counted as a part of the brief.  An appendix shall not be subject to Rule 84.05(g) relating to disks.
The inclusion of any matter in an appendix does not satisfy any requirement to set out such matter in a particular section of the brief, except that instructions set out in the appendix need not be included in the brief.


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84.08  INVOLUNTARY DISMISSAL OF APPEAL - NOTICES

After the timely filing of a notice of appeal, if the appellant fails to take the further steps required to secure review of the appeal within the periods of time allowed or as extended pursuant to these Rules, the clerk shall place the case on a dismissal docket.  The clerk shall serve notice on all parties that the appeal will be dismissed unless the appellant remedies the default before a specified date.  The date shall not be less than 15 days from the date of the notice.  If the default is not remedied by that date, an order of dismissal shall be entered.

10.  It is ordered that effective January 1, 2006, subdivision 90.02 of Rule 90 be and the same is hereby repealed and a new subdivision 90.02 adopted in lieu thereof to read as follows:

90.02  REQUEST FOR ISSUANCE OF WRIT OF GARNISHMENT

The clerk of the court that entered the judgment shall issue a writ of garnishment if the garnishor files a written request stating:

(a) That a judgment has been entered against the debtor and remains unsatisfied;

(b) The amount of the judgment and the amount remaining unpaid;

(c) That the garnishor knows or has good reason to believe that the garnishee is indebted to debtor, that the garnishee is obligated to make periodic payments to debtor, or that the garnishee has control or custody of property belonging to debtor; and

(d) The requested return date of the writ, which shall be either 30, 60, 90, 120, 150, or 180 days after the filing of the request for the writ.

If a garnishor so requests, the clerk shall issue a writ of garnishment and summons when an attachment or execution is issued.

11.  It is ordered that effective January 1, 2006, the reference to "Rule 81.04(c)" in subdivisions 6.06, 30.01, 83.05, 84.24, and 100.02 of Rules 6, 30, 83, 84, and 100, respectively, be changed to refer to "Rule 81.04(d)."

12.  It is ordered that effective January 1, 2006, the reference to "Rule 6.01(e)(3)" in subdivision 15.01(e) of Rule 15 be changed to refer to "Rule 6.01(j)(3)."

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

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

Day – to – Day

_____________________________
MICHAEL A. WOLFF
Acting Chief Justice