Supreme Court of Missouri
en banc

In re:

(1) Repeal of subdivision 54.01, entitled “Clerk to Issue Process - Separate or Additional Summons,” of Supreme Court Rule 54, entitled “Issuance and Service of Summons or Other Process,” and in lieu thereof adoption of a new subdivision 54.01, entitled “Clerk to Issue Process – Separate or Additional Summons.”

(2) Repeal of subdivision 57.07, entitled “Use of Depositions in Court Proceedings,” of Supreme Court Rule 57, entitled “Interrogatories and Depositions,” and in lieu thereof adoption of a new subdivision 57.07, entitled “Use of Depositions in Court Proceedings.”

(3) Repeal of subdivision 84.04(f), entitled “Respondent’s Brief,” subdivision 84.04(k), entitled “Cross Appeals,” subdivision 84.05(h), entitled “Briefs by Electronic Mail in this Court,” and subdivision 84.14, entitled “Disposition on Appeal,” of Supreme Court Rule 84, entitled “Procedure in All Appellate Courts,” and in lieu thereof adoption of a new subdivision 84.04(f), entitled “Respondent’s Brief,” a new subdivision 84.04(j), entitled “Cross Appeals,” a new subdivision 84.06(h), relating to briefs by electronic mail, and a new subdivision 84.14, entitled “Deposition on Appeal.”


1.  It is ordered that effective January 1, 2002, subdivision 54.01 of Supreme Court Rule 54 be and the same is hereby repealed and a new subdivision 54.01 adopted in lieu thereof to read as follows:

54.01 CLERK TO ISSUE PROCESS - SEPARATE OR
ADDITIONAL SUMMONS
(a) Upon the filing of a pleading requiring service of process, the clerk shall forthwith issue the required summons or other process.
(b) The clerk shall deliver the summons or other process for service to:
(1) The sheriff or other person specially appointed to serve it; or
(2) The party if the party files a request that the clerk deliver it to the party.
(c) The person to whom the clerk delivers the summons or other process shall be responsible for promptly serving it with a copy of the pleading and any other paper requiring service.
(d) If a party files a request for separate or additional summons or other process, the clerk shall issue the requested process.

2.  It is ordered that effective January 1, 2002, subdivision 57.07 of Supreme Court Rule 57 be and the same is hereby repealed and a new subdivision 57.07 adopted in lieu thereof to read as follows:

57.07 USE OF DEPOSITIONS IN COURT PROCEEDINGS
(a) Use of Depositions.  Any part of a deposition that is admissible under the rules of evidence applied as though the deponent were testifying in court may be used against any party who was present or represented at the taking of the deposition or who had proper notice thereof.  Depositions may be used in court for any purpose.
(b) Objections - Effect of Errors and Irregularities in Depositions.
(1) Regarding the Notice.  An objection to an irregularity in a deposition notice shall be made promptly by written notice served on all parties before the deposition starts; otherwise, the objection is waived.
(2) Regarding the Officer.  An objection to a deposition because the officer before whom it is to be taken is not qualified shall be made before the deposition begins or as soon thereafter as the officer’s lack of qualification becomes known or could have been discovered with reasonable diligence; otherwise, the objection is waived.
(3) Regarding the Competency of the Deponent.  An objection to a deponent’s competency is not waived by failing to make an objection before or during the deposition unless the basis for the objection could have been removed if the objection had been presented before or during the deposition.
(4) Regarding Conduct During the Deposition.  An objection to the competency, relevancy, or materiality of testimony is not waived by failure to object before or during the deposition.  Errors and irregularities in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind that might be cured if promptly presented are waived unless seasonable objection thereto is made during the deposition.  Objections as to the form of written questions submitted under Rule 57.04 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within ten days after service of the last questions authorized.
(5) Regarding Irregularities in Transcription.  Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, endorsed, transmitted, filed, or otherwise dealt with by the officer under Rule 57.03 and Rule 57.04 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, discovered.

3.  It is ordered that effective January 1, 2002, subdivision 84.04(f), subdivision 84.04(k), subdivision 84.05(h), and subdivision 84.14 of Supreme Court Rule 84 be and the same are hereby repealed and a new subdivision 84.04(f), a new subdivision 84.04(j), a new subdivision 84.06(h) and a new subdivision 84.14 adopted in lieu thereof to read as follows:

84.04(f) Respondent's Brief.  The respondent’s brief shall include a detailed table of contents and table of authorities as provided by Rule 84.04(a)(1) and an argument in conformity with Rule 84.04(e).  If the respondent is dissatisfied with the accuracy or completeness of the jurisdictional statement or statement of facts in the appellant’s brief, the respondent’s brief may include a jurisdictional statement or statement of facts.
The argument portion of the respondent’s brief shall contain headings identifying the points relied on contained in the appellant’s brief to which each such argument responds.  The respondent’s brief may also include additional arguments in support of the judgment that are not raised by the points relied on in the appellant’s brief.


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(j) Cross Appeals.  If a cross appeal is filed, the plaintiff in the court below shall be deemed the appellant for purposes of this Rule 84.04, unless the parties otherwise agree or the court otherwise orders.  The appellant's initial brief shall be filed as otherwise provided in this Rule 84.04 and Rule 84.05.  The respondent's initial brief shall contain the issues and argument involved in the respondent's appeal and the response to the brief of the appellant.  The appellant may file a second brief in response to the respondent's brief setting forth respondent's appeal and in reply to the respondent's brief opposing appellant's appeal.  The respondent may file a reply brief in reply to appellant's response to the issues presented by respondent's appeal.  The briefs otherwise shall comply with Rule 84.06.  No further briefs shall be filed without leave of the court.

84.06(h) In addition to filing briefs in this Court as required by Rule 84.05(a), an electronic mail file containing the brief may be filed.  
The electronic mail message shall include the caption of the case, the party or amicus curiae filing the brief, and the word processing format (e.g., Microsoft Word for Windows).  
Word format shall be used if available.  If Word is unavailable, the material shall be formatted in WordPerfect 5.x or higher.
The filing party shall certify that the file has been scanned for viruses and that it is virus-free.
If an electronic mail message containing the brief is filed, service of the brief shall consist of serving one copy of the brief in both the standard printed or typewritten form specified by Rule 84.06(b) and one copy of the electronic mail file permitted by this Rule 84.05(h).  
The person on whom a brief on disk is served may waive receiving the brief in the standard printed or typewritten form.

84.14  DISPOSITION ON APPEAL
The appellate court shall award a new trial or partial new trial, reverse or affirm the judgment or order of the trial court, in whole or in part, or give such judgment as the court ought to give.  Unless justice otherwise requires, the court shall dispose finally of the case.

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

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

Day – to – Day

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WILLIAM RAY PRICE, JR.
Chief Justice