Supreme Court of Missouri
en banc
June 17, 2004
Effective January 1, 2005
In re:Effective January 1, 2005
(1) Repeal of subdivision 30.01(e), entitled "Notice of Appeal," of Rule 30, entitled "Appellate Procedure in All Criminal Cases," and in lieu thereof adoption of a new subdivision 30.01(e), entitled "Notice of Appeal."
(2) Repeal of subdivision 43.02(c), entitled "Filing with the Court - Facsimile Transmission," and subdivision 43.02(d), entitled "Facsimile Filings in this Court," of Rule 43, entitled "Service and Filing of Pleadings and Papers," and in lieu thereof adoption of a new subdivision 43.02(c), entitled "Filing with the Court - Electronic Transmission," and a new subdivision 43.02(d), entitled "Electronic Filings in this Court."
(3) Repeal of subdivisions (a) and (b) of subdivision 51.05, entitled "Change of Judge Procedure," of Rule 51, entitled "Venue, Including Change of Venue and Change of Judge," and in lieu thereof adoption of new subdivisions (a) and (b) of subdivision 51.05, entitled "Change of Judge Procedure."
(4) Repeal of subdivision (a), entitled "Signature Required," of subdivision 55.03, entitled "Signing of Pleadings, Motions and Other Papers; Representations to Court; Sanctions," of Rule 55, entitled "Pleadings and Motions," and in lieu thereof adoption of a new subdivision (a), entitled "Signature Required," of subdivision 55.03, entitled "Signing of Pleadings, Motions and Other Filings - Representations to Court - Sanctions."
(5) Repeal of subdivision (d) of subdivision 73.01, entitled "Trial Without Jury or with an Advisory Jury - Procedure," of Rule 73, entitled "Trial by Court," and in lieu thereof adoption of a new subdivision (d) of subdivision 73.01, entitled "Trial Without Jury or with an Advisory Jury - Procedure."
(6) Repeal of subdivision 78.07, entitled "After-trial Motion - Allegations of Error Required," of Rule 78, entitled "New Trials - After-trial Motions - Preservation of Error," and in lieu thereof adoption of a new subdivision 78.07, entitled "After-trial Motion - Allegations of Error Required."
(7) Repeal of subdivision 81.04(c), entitled "Docket Fees," subdivision 81.08(a), entitled "Notice of Appeal," and subdivision 81.08(d), entitled "Duty to Notify," of Rule 81, entitled "Appeals," and in lieu thereof adoption of a new subdivision 81.04(c), entitled "Docket Fees," a new subdivision 81.08(a), entitled "Notice of Appeal," and a new subdivision 81.08(d), entitled "Duty to Notify."
(8) Repeal of subdivision 84.17, entitled "Post-opinion Motions," and subdivision 81.18, entitled "Costs of Appeal, When Allowed," of Rule 84, entitled "Procedure in All Appellate Courts," and in lieu thereof adoption of a new subdivision 84.17, "Post-Disposition Motions," and a new subdivision 84.18, entitled "Costs of Appeal, When Allowed."
ORDER
- 30.01 RIGHT TO AND MANNER OF APPEAL
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(e) Notice of Appeal. The notice of appeal shall specify the parties taking the appeal, the judgment or order appealed from, the court to which the appeal is taken, and if the appeal is to this Court, the ground or grounds on which jurisdiction of this Court is based. For this purpose, appellant shall utilize Civil Procedure Form No. 8A.* * *
2. It is ordered that effective January 1, 2005, subdivision 43.02(c) and subdivision 43.02(d) of Rule 43 be and the same are hereby repealed and a new subdivision 43.02(c) and a new subdivision 43.02(d) adopted in lieu thereof to read as follows:
- 43.02 FILING OF PLEADINGS AND OTHER PAPERS
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(c) Filing With the Court - Electronic Transmission. By local court rule, a court, in cooperation with the office of the clerk of the court, may authorize the filing by electronic transmission of such motions, applications, orders, judgments, warrants, pleadings and the like as may be deemed desirable. For purposes of the rule, electronic transmission shall mean facsimile transmission or e-mail.
If filing by electronic transmission is authorized by local rule, any pleading or other filing shall have the same effect as the filing of an original document, even though it may be required to be verified or submitted by affidavit. A facsimile or electronic signature shall have the same effect as an original signature.
The person filing a pleading or other filing by electronic transmission shall retain the signed filing and make it available upon order of the Court.
(d) Electronic Filings in this Court.
(1) Any document, including an original filing, may be filed by electronic transmission in this Court by a master, special commissioner, or referee appointed to hear a case filed in this Court. Any document filed by a master, special commissioner, or referee shall be filed without assessment of any fee.
(2) Correspondence and routine motions, including a motion pursuant to Rule 43.02(d)(3) to permit filing by electronic transmission, requiring only the original for filing shall be accepted for filing by electronic transmission if the document, together with any supporting documentation, does not constitute more than five pages.
(3) Any document not encompassed by Rule 43.02(d)(1) or Rule 43.02(d)(2) may be filed by electronic transmission in this Court only if a motion permitting such filing has been sustained. The motion shall only be sustained upon a showing of good cause as to why electronic transmission is necessary. Except in extraordinary circumstances, the Court shall not sustain any such motion for the electronic filing of a notice of appeal, petition for review, petition for a writ, application for transfer, legal file, transcript, brief, motion for rehearing, motion to recall the mandate, or suggestions in opposition to an application for transfer, petition for a writ, or motion for rehearing.
(4) Electronic filings received at the Court before 4:00 p.m. of a regular workday are deemed filed as of that day. Filings received after 4:00 p.m. are deemed filed on the next regular Court workday. Time of receipt shall be determined by the Court machine or computer. If a document filing is not received by the clerk or if it is illegible, it is deemed not filed. Risk of loss in transmission, receipt or illegibility is upon the party transmitting and filing by electronic transmission.
(5) Other provisions for electronic filings shall be in accordance with Rule 43.01 and Rule 43.02.
3. It is ordered that effective January 1, 2005, subdivision 51.05(a) and subdivision 51.05(b) of Rule 51 be and the same are hereby repealed and a new subdivision 51.05(a) and a new subdivision 51.05(b) adopted in lieu thereof to read as follows:
- 51.05 CHANGE OF JUDGE - PROCEDURE
(a) A change of judge shall be ordered in any civil action upon the timely filing of a written application therefor by a party. For purposes of this Rule 51, motions to modify child custody, child support, or spousal maintenance filed pursuant to chapter 452, RSMo, are not an independent civil action unless the judge designated to rule on the motion is not the same judge that ruled on the previous independent civil action. The application need not allege or prove any cause for such change of judge and need not be verified.
(b) The application must be filed within 60 days from service of process or 30 days from the designation of the trial judge, whichever time is longer. If the designation of the trial judge occurs less than thirty days before trial, the application must be filed prior to any appearance before the trial judge.
In the case of intervenors, the application must be filed within 30 days of intervention or designation of the trial judge, whichever is later, but in no event may any intervening party obtain a change of judge pursuant to this Rule 51 unless the application is filed within 180 days of the designation of the trial judge.
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4. It is ordered that effective January 1, 2005, subdivision 55.03(a) of Rule 55 be and the same is hereby repealed and a new subdivision 55.03(a) adopted in lieu thereof to read as follows:
- 55.03 SIGNING OF PLEADINGS, MOTIONS AND OTHER FILINGS -
REPRESENTATIONS TO COURT - SANCTIONS
(a) Signature Required. Every pleading, motion, and other filing shall be signed by at least one attorney of record in the attorney’s individual name or, if the party is not represented by an attorney, shall be signed by the party. Every filing made electronically must add a certificate verifying that the original was signed by the attorney or party shown as the filer. The original signed filing must be maintained by the filer for a period of not less than the maximum allowable time to complete the appellate process.
Each filing shall state the filer's address, Missouri bar number, telephone number, facsimile number, and electronic mail address, if any.
-An unsigned filing or an electronic filing without the required certification shall be stricken unless the omission is corrected promptly after being called to the attention of the attorney or party filing same.
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- 73.01 TRIAL WITHOUT JURY OR WITH AN ADVISORY JURY -
PROCEDURE
In cases tried without a jury or with an advisory jury:
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(d) Except as provided in Rule 78.07(c), a party may, but need not, file a motion for new trial or a motion to amend the judgment or opinion, or both, as provided by Rule 78.04.6. It is ordered that effective January 1, 2005, subdivision 78.07 of Rule 78 be and the same is hereby repealed and a new subdivision 78.07 adopted in lieu thereof to read as follows:
- 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 as to the sufficiency of the pleadings to state a claim or defense;
(3) Questions presented in motions for judgment under Rule 72.01(b); and
(4) 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.
(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.
- 81.04 APPEALS, WHEN AND HOW TAKEN - CROSS APPEALS -
DOCKET FEES
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(c) 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.
81.08 NOTICE OF APPEAL - CONTENTS - JURISDICTIONAL
STATEMENT REQUIRED - TRIAL COURT CLERK TO
NOTIFY, WHOM
(a) Notice of Appeal. The notice of appeal shall specify the parties taking the appeal, the judgment or order appealed from, the court to which the appeal is taken, and if the appeal is to this Court, the ground or grounds on which jurisdiction of this Court is based. For this purpose, appellant shall use Civil Procedure Form 8-A, 8-B, or 8-C, as the case may be.
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(d) Duty to Notify. Any party filing a notice of appeal in the trial court shall serve a copy of the notice on all other parties to the judgment as prescribed by Rule 43.01. The clerk of the trial court also shall serve the notice of appeal, and any jurisdictional statement filed in the trial court, on all the parties to the judgment other than the party or parties taking the appeal, but the failure to do so does not affect the validity of the appeal.
The clerk shall serve the attorney of record. If an attorney does not represent the party, service shall be directed to the party’s last known address; such notification is sufficient notwithstanding the death of the party or the party’s attorney prior to the giving of such notification.
At the same time as making service, the clerk shall transmit to the appellate court clerk a copy of the notice of appeal and any jurisdictional statement filed in the trial court.
The clerk shall note in a memorandum filed in the cause the names and addresses of the persons served and the date and manner of service.
- 84.17 POST-DISPOSITION MOTIONS
(a) Post-disposition motions. In addition to an application for transfer under Rule 83, any party may file the following post-disposition motions:
(1) A motion for rehearing. The motion shall briefly and distinctly state the grounds upon which rehearing is sought. The purpose of a motion for rehearing is to call attention to material matters of law or fact overlooked or misinterpreted by the court, as shown by its opinion, written order under Rules 84.16(b) or 30.25(b), memorandum decision or order of dismissal. Reargument of issues determined by the court will be disregarded.
(2) A motion to modify. The motion shall briefly and distinctly state the grounds upon which modification is sought. The purpose of a motion to modify is to correct errors of law or fact that do not affect the disposition of the case.
(3) A motion to publish an opinion. The motion shall briefly and distinctly explain why the court's disposition of the appeal has precedential value, in whole or in part.
(b) Procedure for filing. A motion under this Rule 84.17 shall be filed within 15 days after the court files its opinion, written order under Rules 84.16(b) or 30.25(b), memorandum decision or order of dismissal and may be accompanied by suggestions in support containing citation of authority. Within the same time, the filing party shall serve a copy of the motion and any suggestions upon all other parties.
(c) Responses. No suggestions in opposition to a post-disposition motion shall be filed unless requested by the court. Within ten days after the court’s request for the suggestions, any party may file suggestions in opposition to the motion and within the same time shall serve all other parties with a copy of the suggestions.
(d) Repetitive motions. If a motion for rehearing is overruled and the opinion is not materially modified, no further motion by the same party for rehearing or to set aside the order overruling the motion for rehearing may be filed. If the opinion is materially modified, any party may file a motion for rehearing as though the modified opinion is the original opinion.
84.18 COSTS OF APPEAL, WHEN ALLOWED
Except where the court for good cause shown directs otherwise, costs of the appeal shall be assessed as follows:
If the appellant wins in the appellate court, that court shall tax the docket fee and the cost of the record on appeal in appellant’s favor. If the appellant is the losing party, the appellant shall stand the cost of the record on appeal including the cost of any part thereof supplied by the respondent and found necessary. In those cases where the appellant takes an appeal to review only legal questions pertaining to instructions, given or refused, and the evidence is unnecessary to the determination of the cause, but the respondent requests the appellant to include the evidence in the record on appeal, then the cost of supplying such evidence shall be taxed against the respondent.
Counsel preparing the record shall certify the cost of preparing the legal file and any relevant subportions thereof and shall indicate which parties ordered the subportions thereof.
The cost of preparing the transcript shall be certified thereon by the reporter. Transcript costs will be allowed for all copies of transcripts required by these rules.
9. It is ordered that notice of this order be published in the Journal of The Missouri Bar.
10. It is ordered that this order be published in the South Western Reporter.
Day – to – Day
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RONNIE L. WHITE
Chief Justice