Supreme Court of Missouri
en banc

In re:

(1) Repeal of subdivision (c) of subdivision 4-1.15, entitled "Safekeeping Property,” of Supreme Court Rule 4, entitled “Rules of Professional Conduct,” and in lieu thereof adoption of a new subdivision (c) of subdivision 4-1.15, entitled “Safekeeping Property.”

(2) Repeal of subdivision 30.01(h), entitled “Trial Court Clerk’s Duty to Notify;” subdivision 30.01(i), entitled “Trial Court Clerk’s Duty to Notify Attorney General and Director of Corrections;” subdivision 30.06, entitled "Briefs – Contents – Time for Service and Filing;” and subdivision 30.08, entitled “Letters to Court,” of Supreme Court Rule 30, entitled “Appellate Procedure in All Criminal Cases,” and in lieu thereof adoption of a new subdivision 30.01(h), entitled “Trial Court Clerk’s Duty to Notify;” a new subdivision 30.01(i), entitled “Trial Court Clerk’s Duty to Notify Attorney General and Director of Corrections;” a new subdivision 30.06, entitled “Briefs – Contents – Time for Service and Filing;” and a new subdivision 30.08, entitled “Communications to Court.”

(3) Repeal of subdivision 54.08, entitled “Service on Nonresident Motorists or Nonresident Watercraft Owners or Operators,” of Supreme Court Rule 54, entitled “Issuance and Service of Summons or Other Process,” and in lieu thereof adoption of a new subdivision 54.08, entitled “Service on Nonresident Motorists or Nonresident Watercraft Owners or Operators.”

(4) Repeal of subdivision 73.01, entitled “Trial Without Jury or with an Advisory Jury – Procedure,” of Supreme Court Rule 73, entitled “Trial by Court,” and in lieu thereof adoption of a new subdivision 73.01, entitled “Trial Without Jury or with an Advisory Jury – Procedure.”

(5) Repeal of subdivision 78.04, entitled “Motion for New Trial – Time for Filing;” subdivision 78.06, entitled “When Motion for New Trial Overruled;” and subdivision 78.07, entitled “Motion for New Trial in Jury Tried Cases Other than Cases Tried with an Advisory Jury – Allegations of Error Required,” of Supreme Court Rule 78, entitled “New Trials – After-trial Motions – Preservation of Error,” and in lieu thereof adoption of a new subdivision 78.04, entitled “After-trial Motions – Time for Filing;” a new subdivision 78.06, entitled “When After-trial Motion Overruled;” and a new subdivision 78.07, entitled “After-trial Motion – Allegations of Error Required.”

(6) Repeal of subdivision 81.05(a), entitled “Finality as Affected by After-trial Motions;” subdivision 81.08(a), entitled “Notice of Appeal;” subdivision 81.08(d), entitled “Duty to Notify;” and subdivision 81.19, entitled "Time for Filing of Record on Appeal,” of Supreme Court Rule 81, entitled "Appeals,” and in lieu thereof adoption of a new subdivision 81.05(a), entitled “Finality as Affected by After-trial Motions;” a new subdivision 81.08(a), entitled “Notice of Appeal;” a new subdivision 81.08(d), entitled “Duty to Notify;” and a new subdivision 81.19, entitled “Time for Filing of Record on Appeal.”

(7) Adoption of a new subdivision (6) of subdivision 84.04(d), entitled "Points Relied On,” and a new subdivision 84.13(d), entitled “Allegations of Error Considered – Reversible Error – Review in Cases Tried Without a Jury or with an Advisory Jury,” of Supreme Court Rule 84, entitled “Procedure in All Appellate Courts.”

(8) Repeal of subdivision 84.06(c), entitled “Color Coding of Filings,” of Supreme Court Rule 84, entitled “Procedure in All Appellate Courts,” and in lieu thereof adoption of a new subdivision 84.06(c), entitled “Color Coding of Filings.”

(9) Repeal of subdivision 100.02(b), entitled “Docket Fee,” and subdivision 100.02(d), entitled “Petition for Review and Notice of Appeal – Service and Return,” of Supreme Court Rule 100, entitled “Judicial Review of Administrative Decisions,” and in lieu thereof adoption of a new subdivision 100.02(b), entitled “Docket Fee,” and a new subdivision 100.02(d), entitled "Petition for Review and Notice of Appeal – Service and Return.”

(10) Repeal of Supreme Court Rule 152, entitled “Forms for Small Claims Division,” and the “Handbook – How to Use the Small Claims Courts,” and in lieu thereof adoption of a new Supreme Court Rule 152, entitled “Forms for Small Claims Division.” 


1.  It is ordered that effective January 1, 2000, subdivision 4-1.15(c) of Supreme Court Rule 4 be and the same is hereby repealed and a new subdivision 4.1-15(c) adopted in lieu thereof to read as follows:

4-1.15  SAFEKEEPING PROPERTY


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(c) When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the lawyer shall keep the property separate until there is an accounting and severance of their interests.  If a dispute arises concerning their respective interests, the lawyer shall keep the portion in dispute separate until the dispute is resolved.

2.  It is ordered that effective January 1, 2000, subdivision 30.01(h), subdivision 30.01(i), subdivision 30.06, and subdivision 30.08 be and the same are hereby repealed and a new subdivision 30.01(h), a new subdivision 30.01(i), a new subdivision 30.06, and a new subdivision 30.08 adopted in lieu thereof to read as follows:

30.01  RIGHT TO AND MANNER OF APPEAL


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(h) Trial Court Clerk's Duty to Notify.   The clerk shall give notice of the filing of the notice of appeal and shall mail the notice of appeal and any jurisdictional statement to the appellate court as provided in Rule 81.08.
(i) Trial Court Clerk's Duty to Notify Attorney General and Director of Corrections.  If a defendant appeals from a felony conviction or a petitioner or the state appeals from an order in a post-conviction proceeding involving a prior felony conviction, the clerk of the trial court, in addition to giving the notice required by Rule 30.01(h), shall serve the notice of appeal on the Attorney General of Missouri, Supreme Court Building, Jefferson City, Missouri 65101 as prescribed by Rule 43.01.  In any case where the death penalty has been imposed, notification of the filing of the notice of appeal shall also be mailed to the director of the department of corrections, unless lack of time requires a more expeditious notice.

30.06  BRIEFS - CONTENTS - TIME FOR SERVICE
AND FILING      

(a) Contents.  The brief for appellant shall contain the material prescribed by Rule 84.04(a).
(b) Examples of Jurisdictional Statements.  Bare recitals such as "This is a case wherein defendant received a life sentence" or other similar general statements or conclusions are insufficient and will not be accepted.

The following are examples of a sufficient statement:

"Appellant was convicted of first degree murder, section 565.020, RSMo, and was sentenced to imprisonment for life without eligibility for probation or parole" or "Appellant was convicted of murder in the second degree, section 365.021, RSMo, and was sentenced to imprisonment for life."

(c) Statement of Facts, Points Relied On, Argument, and Appendix.  The statement of facts, points relied on, argument, and appendix shall be prepared as provided in Rule 84.04.
(d) Respondent's Brief and Reply Brief.  The respondent's brief and any reply brief shall be prepared as provided in Rule 84.04.
(e) Page References in Briefs.  All statements of fact and argument contained in any brief shall have specific page references to the legal file or the transcript.
(f) Page Limitations.  The page limitations in Rule 84.04(j) apply.
(g) Service and Filing.  Briefs in felony cases shall be served on the attorney general.  In all cross-appeals, the state of Missouri shall be the respondent.  Otherwise, the service and filing of briefs shall be as provided in Rule 84.05(a) and Rule 84.05(b).
(h) Form of Printed or Duplicated Briefs, Petitions, Motions, Transcripts, and Legal Files.  Printed or duplicated briefs, petitions, motions, transcripts and legal files shall comply with Rule 84.06.

RULE 30.08  COMMUNICATIONS TO COURT
All motions, briefs, letters, or communications by any party or amicus curiae relating to a matter pending in the court must be addressed to the clerk, who will lay them before the court in due course.  Any other letter or communication relating directly or indirectly to any pending matter, addressed to the court or any judge of the court, will not be considered by the court.  The clerk may return any such letter or communication to the sender or may refer such letter or communication to the appropriate entity or person.

3.  It is ordered that effective January 1, 2000, subdivision 54.08 of Supreme Court Rule 54 be and the same is hereby repealed and a new subdivision 54.08 adopted in lieu thereof to read as follows:

54.08  SERVICE ON NONRESIDENT MOTORISTS OR
NONRESIDENT WATERCRAFT OWNERS OR
OPERATORS

In civil actions in which service of process may be obtained under the provision of sections 506.200 to 506.310, 506.330, or 506.340, RSMo, service of process may be made as provided in Rule 54.14 or Rule 54.15 or Rule 54.16.

4.  It is ordered that effective January 1, 2000, subdivision 73.01 of Supreme Court Rule 73 be and the same is hereby repealed and a new subdivision 73.01 adopted in lieu thereof to read as follows:

73.01  TRIAL WITHOUT JURY OR WITH AN
ADVISORY JURY – PROCEDURE

In cases tried without a jury or with an advisory jury:

(a) The court shall rule upon all objections to evidence as in jury cases.  Where the evidence is ruled inadmissible, the court upon request shall take and record the evidence in full, unless it clearly appears that the evidence is not admissible on any ground or that the evidence is privileged.
(b) After the plaintiff has completed presentation of plaintiff's evidence, the defendant may move by motion for a judgment on the grounds that upon the facts and the law the plaintiff is not entitled to relief.  The filing of such motion does not constitute a waiver of defendant's right to offer evidence.
(c) The court shall render the judgment it thinks proper under the law and the evidence.  

If a party so requests, the court shall dictate to the court reporter or prepare and file a brief opinion containing a statement of the grounds for its decision and the method of deciding any damages awarded.  

The court may, or if requested by a party shall, include in the opinion findings on the controverted fact issues specified by the party.  Any request for an opinion or findings of fact shall be made on the record before the introduction of evidence at trial or at such later time as the court may allow.  

All fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached.

(d) 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.

5.  It is ordered that effective January 1, 2000, subdivision 78.04, subdivision 78.06, and subdivision 78.07 of Supreme Court Rule 78 be and the same are hereby repealed and a new subdivision 78.04, a new subdivision 78.06, and a new subdivision 78.07 adopted in lieu thereof to read as follows:

78.04  AFTER-TRIAL MOTIONS - TIME FOR FILING
Any motion for new trial and any motion to amend the judgment or opinion shall be filed not later than thirty days after the entry of judgment.  Any motion for judgment notwithstanding the verdict shall be filed within the time provided in Rule 72.01.

78.06.  WHEN AFTER-TRIAL MOTION OVERRULED

Any motion for new trial, motion to amend the judgment or opinion, or motion for judgment notwithstanding the verdict is overruled for all purposes if the trial court does not rule on it within ninety days after the date the last such timely motion is filed.  
In computing the ninety days, no day shall be counted during which the court lacks power to act because of an order of a superior state court or because of removal of the action.

78.07  AFTER-TRIAL MOTION – ALLEGATIONS OF
ERROR REQUIRED

(a) In jury tried cases, other than cases tried with an advisory jury:

(1) Allegations of error, other than error relating to the form or language of the judgment, must be included in a motion for a new trial in order to be preserved for appellate review.  Questions of jurisdiction over the subject matter, questions as to the sufficiency of the pleadings to state a claim or defense, and questions presented in motions for judgment under Rule 72.01 need not be included in a motion for new 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.
(2) Allegations of error relating to the form or language of the judgment must be raised in a motion to amend the judgment in order to be preserved for appellate review.

(b) 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) 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.

6.  It is ordered that effective January 1, 2000, subdivision 81.05(a), subdivision 81.08(a), subdivision 81.08(d), and subdivision 81.19 of Supreme Court Rule 81 be and the same are hereby repealed and a new subdivision 81.05(a), a new subdivision 81.08(a), a new subdivision 81.08(d), and a new subdivision 81.19 adopted in lieu thereof to read as follows:

81.05  JUDGMENTS - WHEN FINAL -  
PREMATURE FILING OF NOTICE OF
APPEAL - COMPUTATION OF TIME

(a) Finality as Affected by After-trial Motions. For the purpose of ascertaining the time within which an appeal may be taken:


(1) A judgment becomes final at the expiration of thirty days after its entry if no timely authorized after-trial motion is filed.
(2) If a party timely files an authorized after-trial motion, the judgment becomes final at the earlier of the following:


(A) Ninety days from the date the last timely motion was filed, on which date all motions not ruled shall be deemed overruled; or
(B) If all motions have been ruled, then the date of ruling of the last motion to be ruled or thirty days after entry of judgment, whichever is later.



(3) The filing and disposition of such motions has the same effect on time for appeal in all cases whether or not the motion has any function other than to seek relief in the trial court.


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 utilize Civil Procedure Form No. 8-A on appeals to this Court and Civil Procedure Form No. 8-B, 8-C, or 8-D on appeals to the court of appeals.


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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 mail a copy of the notice of appeal, and any jurisdictional statement filed in the trial court, to the clerk of the appellate court together with the docket fee deposited by appellant.  
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.

81.19  TIME FOR FILING OF RECORD ON APPEAL
The record on appeal shall be filed with the appellate court:

(a) If the record on appeal consists only of a legal file, within thirty days from the date of the filing of the notice of appeal in the trial court;
(b) In all other cases, within ninety days from the date of the filing of the notice of appeal in the trial court.
If more than one appeal is taken from the same judgment to the same appellate court, the time for filing shall date from the filing of the last notice of appeal in the trial court.

7.  It is ordered that effective January 1, 2000, subdivision 84.04(d)(6) and subdivision 84.13(d) be and the same are hereby adopted to read as follows:

84.04  BRIEFS - CONTENTS


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(d) Points Relied On.
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(6) If a party asserts error relating to damages, the party may assert its material effect on the judgment, including that the judgment is inadequate or excessive, in the same “Point Relied On.”

84.13  ALLEGATIONS OF ERROR CONSIDERED –
REVERSIBLE ERROR - REVIEW IN CASES
TRIED WITHOUT A JURY OR WITH AN
ADVISORY JURY


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(d) Appellate review in cases tried without a jury or with an advisory jury.

(1) The court shall review the case upon both the law and the evidence as in suits of an equitable nature;
(2) The court shall give due regard to the opportunity of the trial court to have judged the credibility of witnesses;
(3) The court shall consider admissible evidence that was rejected by the trial court and preserved. The court may order that proffered evidence that was rejected by the trial court and not preserved be taken by deposition or by reference to a master under Rule 68.03 and returned to the appellate court.

8.  It is ordered that effective January 1, 2000, subdivision 84.06(c) of Supreme Court Rule 84 be and the same is hereby repealed and a new subdivision 84.06(c) adopted in lieu thereof to read as follows:

84.06  FORM OF PRINTED OR DUPLICATED BRIEFS,
PETITIONS, MOTIONS, TRANSCRIPTS, AND
LEGAL FILES

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(c) Color Coding of Filings.  The following documents shall have a suitable cover in the color indicated:


(1) In the Court of Appeals:  

(A) Briefs on the merits for appellants or petitioners, white;  
(B) Briefs on the merits for respondents, gray;  
(C) Second briefs of appellants in cross appeals, light brown;
(D) Reply briefs, light orange; and
(E) Briefs of amicus curiae or intervenors, light red.

(2) In This Court: 

(A) Briefs on the merits for appellants or petitioners, light blue;
(B) Briefs on the merits for respondents, cream or buff;  
(C) Second briefs of appellants in cross appeals, light purple;
(D) Reply briefs, yellow; and
(E) Briefs of amicus curiae or intervenors, green.

(3) All other documents shall have a tan cover. 


Counsel shall be certain that there is adequate contrast between the printing and the color of the cover.

9.  It is ordered that effective January 1, 2000, subdivision 100.02(b) and subdivision 100.02(d) of Supreme Court Rule 100 be and the same are hereby repealed and a new subdivision 100.02(b) and a new subdivision 100.02(d) adopted in lieu thereof to read as follows:

100.02  REVIEW IN APPELLATE COURTS


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(b) Docket Fee.  A docket fee in the amount specified in Rule 81.04(c) is required.  It shall be deposited with the clerk of the appellate court at the time of filing a petition for review under section 621.189, RSMo, and with the commission at the time of filing a notice of appeal under section 287.495 or 288.210, RSMo.  
No petition for review shall be accepted and filed by the clerk of the appellate court and no notice of appeal shall be accepted and filed by the commission unless the docket fee is deposited therewith.  
If a petition for review or notice of appeal is accepted without timely payment, the petition may be dismissed.


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(d) Petition for Review and Notice of Appeal - Service and Return.  At the time of filing the petition for review or notice of appeal, the appellant shall serve a copy thereof on each party of record and the agency, when it is a petition for review under section 621.189, RSMo.  Proof of service shall be filed in the appellate court in cases instituted by petition for review and with the agency in cases instituted by notice of appeal.

10.  It is ordered that effective January 1, 2000, Rule 152 be and the same is hereby repealed and a new Rule 152 adopted in lieu thereof to read as follows:

152  FORMS FOR SMALL CLAIMS DIVISION

The small claims division shall make available without charge to any person requesting them the following forms, which are hereby approved:

Petition,

Petition for a Minor,

Application for Appointment of Next Friend for

Minor Plaintiff,

Summons with instructions on reverse side,

Application for Appointment of Guardian Ad Litem

for Minor Defendant,

Counterclaim Arising Out of Same Transaction

with instructions on reverse side,

Counterclaim Not Arising Out of Same

Transaction with instructions on reverse side,

Request for Execution,

Satisfaction of Judgment,

Dismissal,

Judgment.

It is further ordered that the “Handbook – How to Use the Small Claims Courts” is hereby repealed.

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

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

Day - to - Day

______________________________
DUANE BENTON, Chief Justice