Supreme Court of Missouri
en banc

In re:

(1) Repeal of subdivision 51.10, entitled “Clerk to File and Docket Civil Action When Transferred,” of Supreme Court Rule 51, entitled “Venue, Including Change of Venue and Change of Judge,” and in lieu thereof adoption of a new subdivision 51.10, entitled “Clerk to File and Docket Civil Action When Transferred,” and adoption of a new subdivision 51.045, entitled “Transfer of Venue When Venue Improper.”

(2) Repeal of subdivision 55.27(a), entitled “How Presented,” of Supreme Court Rule 55, entitled “Pleadings and Motions,” and in lieu thereof adoption of a new subdivision 55.27(a), entitled “How Presented.”

(3) Repeal of subdivision 61.01(h), entitled “Objections to Approved Discovery,” of Supreme Court Rule 61, entitled “Enforcement of Discovery: Sanctions,” and in lieu thereof adoption of a new subdivision 61.01(h), entitled “Objections to Approved Discovery.”

(4) Repeal of subdivision 74.01(a), entitled “Included Matters,” of Supreme Court Rule 74, entitled “Judgments, Orders and Proceedings Thereon,” and in lieu thereof adoption of a new subdivision 74.01(a), entitled “Included Matters.”

(5) Repeal of subdivision 81.04(c), entitled “Docket Fees,” and subdivision 81.08(d), entitled “Duty to Notify,” of Supreme Court Rule 81, entitled “Appeals,” and in lieu thereof adoption of a new subdivision 81.04(c), entitled “Docket Fees,” and a new subdivision 81.08(d), entitled “Duty to Notify.”

(6) Repeal of subdivision (5) of subdivision 84.04(d), entitled “Points Relied On,” and subdivision (1) of subdivision 84.16(b), entitled “Memorandum Decisions and Written Orders,” of Supreme Court Rule 84, entitled “Procedure in All Appellate Courts,” and in lieu thereof adoption of a new subdivision 5 of subdivision 84.04(d), entitled “Points Relied On,” and a new subdivision (1) of subdivision 84.16(b), entitled “Memorandum Decisions and Written Orders.”


1.  It is hereby ordered that effective January 1, 2001, subdivision 51.10 of Supreme Court Rule 51 be and the same is hereby repealed and a new subdivision 51.10 adopted in lieu thereof and a new subdivision 51.045 adopted to read as follows:

51.10 CLERK TO FILE AND DOCKET CIVIL ACTION
WHEN TRANSFERRED

The clerk of the court to which the civil action is transferred shall file and docket the action.  The clerk also shall mail a notice to all counsel of record acknowledging the receipt of the action, any new cause number, and the division to which it has been assigned.  The action shall be treated and determined as if it had originated in the receiving court.

51.045 TRANSFER OF VENUE WHEN VENUE
   IMPROPER

(a) An action filed in the 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.

(b) Within ten days after the filing of a motion to transfer for improper venue, an opposing party may file a reply denying the allegations in the motion to transfer.  If a reply is filed, the court shall determine the issue.  

If the issue is determined in favor of the movant or if no reply is filed, a transfer of venue shall be ordered to a court where venue is proper.  When a transfer of venue is ordered, the entire civil action shall be transferred unless a separate trial has been ordered.

If a separate trial is ordered, only that part of the civil action in which the movant is involved shall be transferred.

(c) A request for transfer of venue under this Rule 51.045 shall not deprive a party of the right to a change of venue under Rule 51.03 if the civil action is transferred to a county having seventy-five thousand or fewer inhabitants.  A party seeking a change of venue under Rule 51.03, after transfer of venue pursuant to this Rule 51.045, shall make application therefor within the later of:

(1) The time allowed by Rule 51.03, or
(2) Ten days of being served with notice of the docketing of the civil action in the transferee court as provided by Rule 51.10.

2.  It is hereby ordered that effective January 1, 2001, subdivision 55.27(a) of Supreme Court Rule 55 be and the same is hereby repealed and a new subdivision 55.27(a) 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

(a) How Presented.  Every defense, in law or fact, to a claim in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

(1) Lack of jurisdiction over the subject matter,
(2) Lack of jurisdiction over the person,
(3) That plaintiff does not have legal capacity to sue,
(4) Insufficiency of process,
(5) Insufficiency of service of process,
(6) Failure to state a claim upon which relief can be granted,
(7) Failure to join a party under Rule 52.04,
(8) That plaintiff should furnish security for costs,
(9) That there is another action pending between the same parties for the same cause in this state,
(10) That several claims have been improperly united,
(11) That the counterclaim or cross-claim is one which cannot be properly interposed in this action.

A motion making any of these defenses shall be made:
(A) Within the time allowed for responding to the opposing party's pleading, or
(B) If no responsive pleading is permitted, within thirty days after the service of the last pleading.  

Motions and pleadings may be filed simultaneously without waiver of the matters contained in either.  

No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.  

If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to the claim for relief.  

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 74.04.  All parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 74.04.

3.  It is hereby ordered that effective January 1, 2001, subdivision 61.01(h) of Supreme Court Rule 61 be and the same is hereby repealed and a new subdivision 61.01(h) adopted in lieu thereof to read as follows:

61.01(h) Objections to Approved Discovery.  If objections to Rule 56.01(b)(6) approved interrogatories or requests for production are overruled, the court may assess against such objecting party, attorney, or attorney's law firm, or all of them, the attorney's fees reasonably incurred in having such objection overruled.  If such fees are not paid within sixty days, the court may enter such other appropriate orders against the disobedient party, including an order striking pleadings, dismissing the action, or entering a judgment by default.

4.  It is hereby ordered that effective January 1, 2001, subdivision 74.01(a) of Supreme Court Rule 74 be and the same is hereby repealed and a new subdivision 74.01(a) adopted in lieu thereof to read as follows:

74.01(a) Included Matters.  “Judgment” as used in these rules includes a decree and any order from which an appeal lies.  A judgment is rendered when entered.  A judgment is entered when a writing signed by the judge and denominated “judgment” or “decree” is filed.  The judgment may be a separate document or entry on the docket sheet of the case.  A docket sheet entry complying with these requirements is a judgment unless the docket sheet entry indicates that the court will enter the judgment in a separate document.  The separate document shall be the judgment when entered.

5.  It is hereby ordered that effective January 1, 2001, subdivision 81.04(c) and subdivision 81.08(d) of Supreme Court Rule 81 be and the same are hereby repealed and a new subdivision 81.04(c) and a new subdivision 81.08(d) adopted in lieu thereof to read as follows:

81.04(c) Docket Fees.  The appellate court docket fee is fifty dollars.  It shall be paid to the trial court clerk when the notice of appeal is filed.  The trial court clerk shall remit the docket fee to the appellate court clerk or as otherwise provided by law.  

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(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.  Unless otherwise provided by law, the trial court clerk shall remit the docket fee to the appellate court clerk at the same time.  
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.

6.  It is hereby ordered that effective January 1, 2001, subdivision 84.04(d)(5) and subdivision 84.16(b)(1) be and the same are hereby repealed and a new subdivision 84.04(d)(5) and a new subdivision 84.16(b)(1) adopted in lieu thereof to read as follows:

84.04(d)(5) Immediately following each "Point Relied On," the appellant, relator, or petitioner shall  include a list of cases, not to exceed four, and the constitutional, statutory, and regulatory provisions or other authority upon which that party principally relies.

84.16(b) Memorandum Decisions and Written Orders.


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(1) That a judgment of the trial court reviewable under Rule 84.13(d) is supported by substantial evidence and is not against the weight of the evidence (Note: see Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976)); 

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

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

Day - to - Day

_____________________________
WILLIAM RAY PRICE, JR.
Chief Justice