Supreme Court of Missouri
en banc

In re:

(1) Repeal of subdivision 24.035(b), entitled "Form of Motion - Cost Deposit Not Required - Time to File - Failure to File, Effect of," of Rule 24, entitled "Misdemeanors or Felonies -- Arraignment and Proceedings Before Trial," and in lieu thereof adoption of a new subdivision 24.035(b), entitled " Form of Motion - Cost Deposit Not Required - Time to File - Failure to File, Effect of."

(2) Repeal of subdivision 29.15(b), entitled "Form of Motion - Cost Deposit Not Required - Time to File - Failure to File, Effect of," of Rule 29, entitled "Misdemeanors or Felonies -- Verdict, Sentence and New Trial," and in lieu thereof adoption of a new subdivision 29.15(b), entitled " Form of Motion - Cost Deposit Not Required - Time to File - Failure to File, Effect of."

(3) Repeal of subdivision (b) of subdivision 41.01, entitled "Rules -- When Applicable," of Rule 41, entitled "General," and in lieu thereof adoption of a new subdivision (b) of subdivision 41.01, entitled "Rules -- When Applicable."

(4) 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."

(5) Repeal of subdivision (4) of subdivision 54.13(b), entitled "Personal Service Within the State," of Rule 54, entitled "Issuance and Service of Summons or Other Process," and in lieu thereof adoption of a new subdivision (4) of subdivision 54.13(b), entitled "Personal Service Within the State."

(6) Repeal of subdivision (1) of subdivision 55.27(g), entitled "Waiver or Preservation of Certain Defenses," of Rule 55, entitled "Pleadings and Motions," and in lieu thereof adoption of a new subdivision (1) of subdivision 55.27(g), entitled "Waiver or Preservation of Certain Defenses."

(7) Repeal of subdivision 56.01(e), entitled "Supplementation of Responses," of Rule 56, entitled "General Provisions Governing Discovery," and in lieu thereof adoption of a new subdivision 56.01(e), entitled "Supplementation of Responses."

(8) Repeal of subdivision 83.02, entitled "Transfer on Order of Court of Appeals," of Rule 83, entitled "Transfers From District Court of Appeals to This Court and Related Matters - Procedure in the Supreme Court," and in lieu thereof adoption of a new subdivision 83.02, entitled "Transfer on Order of Court of Appeals," of Rule 83, entitled "Transfers From Court of Appeals to This Court."

(9) Adoption of subdivision titles for subdivisions of subdivision 84.06, entitled "Form of Briefs - Disk Required, When," of Rule 84, entitled " Procedure in All Appellate Courts." 1.  It is ordered that effective January 1, 2003, subdivision 24.035(b) of Rule 24 be and the same is hereby repealed and a new subdivision 24.035(b) adopted in lieu thereof to read as follows:

24.035  CONVICTION AFTER GUILTY PLEA - CORRECTION


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(b) Form of Motion - Cost Deposit Not Required - Time to File - Failure to File, Effect of.   A person seeking relief pursuant to this Rule 24.035 shall file a motion to vacate, set aside or correct the judgment or sentence substantially in the form of Criminal Procedure Form No. 40.

No cost deposit shall be required.

If an appeal of the judgment or sentence sought to be vacated, set aside or corrected was taken, the motion shall be filed within 90 days after the date the mandate of the appellate court is issued affirming such judgment or sentence.
If no appeal of such judgment was taken, the motion shall be filed within 180 days of the date the person is delivered to the custody of the department of corrections.

If:

(1) An appeal of such judgment or sentence is taken;

(2) The appellate court remands the case resulting in entry of a new judgment or sentence; and

(3) An appeal of the new judgment or sentence is taken,

the motion shall be filed within 90 days after the date the mandate of the appellate court is issued affirming the new judgment or sentence.
If no appeal of such new judgment or sentence is taken, the motion shall be filed within 180 days of the later of:

(1) The date the person is delivered to the custody of the department of corrections; or

(2) The date the new judgment or sentence was final for purposes of appeal.

Failure to file a motion within the time provided by this Rule 24.035 shall constitute a complete waiver of any right to proceed under this Rule 24.035 and a complete waiver of any claim that could be raised in a motion filed pursuant to this Rule 24.035.


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2.  It is ordered that effective January 1, 2003, subdivision 29.15(b) of Rule 29 be and the same is hereby repealed and a new subdivision 29.15(b) adopted in lieu thereof to read as follows:

29.15  CONVICTION AFTER TRIAL - CORRECTION


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(b) Form of Motion - Cost Deposit Not Required - Time to File - Failure to File, Effect of.  A person seeking relief pursuant to this Rule 29.15 shall file a motion to vacate, set aside or correct the judgment or sentence substantially in the form of Criminal Procedure Form No. 40.

No cost deposit shall be required.

If an appeal of the judgment or sentence sought to be vacated, set aside or corrected was taken, the motion shall be filed within 90 days after the date the mandate of the appellate court is issued affirming such judgment or sentence.
If no appeal of such judgment or sentence was taken, the motion shall be filed within 180 days of the date the person is delivered to the custody of the department of corrections.

If:
(1) An appeal of such judgment or sentence is taken;

(2) The appellate court remands the case resulting in
entry of a new judgment or sentence; and

(3) An appeal of the new judgment or sentence is taken,
the motion shall be filed within 90 days after the date the mandate of the appellate court is issued affirming the new judgment or sentence.
If no appeal of such new judgment or sentence is taken, the motion shall be filed within 180 days of the later of:

(1) The date the person is delivered to the custody of the department of corrections; or

(2) The date the new judgment or sentence was final for purposes of appeal.

Failure to file a motion within the time provided by this Rule 29.15 shall constitute a complete waiver of any right to proceed under this Rule 29.15 and a complete waiver of any claim that could be raised in a motion filed pursuant to this Rule 29.15.


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3.  It is ordered that effective January 1, 2003, subdivision 41.01(b) of Rule 41 be and the same is hereby repealed and a new subdivision 41.01(b) adopted in lieu thereof to read as follows:

41.01  RULES - WHEN APPLICABLE


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(b) Rules 41, 54.18, 55.03, 56, 57, 58, 59, 60, 61, 62, and 67.03 apply to proceedings in the probate division of the circuit court.  The judge of the probate division may order that any or all of the other Rules 41 through 101 or specified subdivisions of the rules shall be applicable in a particular matter.  Any such order shall specify the rules or subdivisions to be applied and a time for compliance with the order.  The order shall be served upon all of the parties.


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4.  It is ordered that effective January 1, 2003, subdivision 51.045(a) of Rule 54 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:

(1) Within the time allowed for responding to an adverse party’s pleading, or

(2) If no responsive pleading is permitted, within thirty days after service of the last pleading. 

If a motion to transfer venue is not timely filed, the issue of improper venue is waived.

5.  It is ordered that effective January 1, 2003, subdivision 54.13(b)(4) of Rule 54 be and the same is hereby repealed and a new subdivision 54.13(b)(4) adopted in lieu thereof to read as follows:

54.13  PERSONAL SERVICE WITHIN THE STATE


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(b) How and on Whom Made.   Personal service within the state shall be made as follows:


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(4) On Public or Quasi-Public Corporation or Body.  Upon a public, municipal, governmental or quasi-public corporation or body, by delivering a copy of the summons and petition to the clerk of the county commission in the case of a county, to the mayor or city clerk or city attorney in the case of a city, to the chief executive officer in the case of any public, municipal, governmental or quasi-public corporation or body or to any person otherwise lawfully so designated.  If no person above specified is available for service, the court out of which the process issued may designate an appropriate person to whom copies of the summons and petition may be delivered in order to effect service.


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6.  It is ordered that effective January 1, 2003, subdivision 55.27(g)(1) of Rule 55 be and the same is hereby repealed and a new subdivision 55.27(g)(1) adopted in lieu thereof to read as follows:

55.27  DEFENSES AND OBJECTIONS - HOW PRESENTED - BY
           PLEADING OR MOTION - MOTION FOR JUDGMENT ON THE
           PLEADINGS



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(g) Waiver or Preservation of Certain Defenses.

(1) A defense of:
(A) Lack of jurisdiction over the person,
(B) Insufficiency of process,
(C) Insufficiency of service of process,
(D) That plaintiff should furnish security for costs,
(E) That plaintiff does not have legal capacity to sue,
(F) That there is another action pending between the same parties for the same cause in this state,
(G) That several claims have been improperly united, or
(H) That the counterclaim or cross-claim is one which cannot be properly interposed in this action,

is waived if it is:

(A) Omitted from a motion in the circumstances described in Rule 55.27(f), or
(B) Neither made by motion under this Rule 55.27 nor included in a responsive pleading.

7.  It is ordered that effective January 1, 2003, subdivision 56.01(e) of Rule 56 be and the same is hereby repealed and a new subdivision 56.01(e) adopted in lieu thereof to read as follows:

56.01(e)  Supplementation of Responses.

A party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.



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8.  It is ordered that effective January 1, 2003, subdivision 83.02 of Rule 83 be and the same is hereby repealed and a new subdivision 83.02 adopted in lieu thereof to read as follows:

83.02  TRANSFER ON ORDER OF COURT OF APPEALS

A case disposed of by an opinion, memorandum decision, written order, or order of dismissal in the court of appeals may be transferred to this Court by order of a majority of the participating judges, regular and special, on their own motion or on application of a party. Transfer may be ordered because of the general interest or importance of a question involved in the case or for the purpose of reexamining existing law.
Application by a party for such transfer shall be filed within fifteen days of the date on which the opinion, memorandum decision, written order, or order of dismissal is filed.
No response to an application for transfer shall be filed unless requested by the court, and an order for transfer shall not be granted in the absence of such a request.
Motions for reconsideration of the court's action in refusing an application for transfer shall not be accepted or filed.

9.  It is ordered that effective January 1, 2003, the subdivision titles for subdivision 84.06 of Rule 84 shall read as follows:

(a) Size - Type - Form
(b) Length
(c) Certification
(d) Printed Brief
(e) Typewritten Brief
(f) Color Coding of Filings
(g) Floppy Disk - Filing
(h) Briefs by Electronic Mail in this Court
10.  It is ordered that notice of this order be published in the Journal of The Missouri Bar.
11.  It is ordered that this order be published in the South Western Reporter.

Day - to - Day

___________________________
STEPHEN N. LIMBAUGH, JR.
Chief Justice