[Missouri Rules of Civil Procedure, effective and accurate as of May 25, 2011, not containing approved forms] 

41.01. Rules--When Applicable

 

 

(a) Rules 41 through 101 shall govern the following:

 

(1) Civil actions pending in this Court and court of appeals;

 

(2) Civil actions pending before a circuit judge except those actions governed by the probate code;

 

(3) Civil actions pending before an associate circuit judge sitting as a circuit judge.

 

(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.

 

(c) The transfer of an action from the probate division to the circuit division shall not make subdivisions of Rule 55, except Rule 55.03, applicable unless ordered by the circuit division. Any such order shall specify the subdivisions of Rule 55 to be applied and a time for compliance with the order. The order shall be served upon all of the parties.

 

(d) Civil actions pending in the associate circuit division shall be governed by Rules 41 through 101 except where otherwise provided by law. No such law shall affect the application of Rule 55.03. When portions of Rule 55 do not apply to an action originally filed in the associate circuit division, the subsequent transfer of the action to the circuit division shall not make those portions of Rule 55 applicable unless ordered by the circuit division. Any such order shall specify the subdivisions of Rule 55 to be applied and a time for compliance with the order. The order shall be served upon all of the parties.

 

<Text of (e) effective September 1, 2011.>

 

(e) Rule 103 and Court Operating Rule 27 shall apply to all matters subject to electronic filing. To the extent there is a conflict between Rule 103 and Rules 41 to 101, Rule 103 shall apply.

 

41.02. Rules--Authority for--Statutes Superseded

 

 

Rules 41 to 101, inclusive, are promulgated pursuant to authority granted this Court by Section 5 of Article V of the Constitution of Missouri and supersede all statutes and existing court rules inconsistent therewith.

 

41.03. Rules--Construction

 

 

Rules 41 to 101, inclusive, shall be construed to secure the just, speedy and inexpensive determination of every action.

 

41.04. Rules--When not Applicable--Procedure

 

 

If no procedure is specially provided by rule, the court having jurisdiction shall proceed in a manner consistent with the applicable statute, or statutes, if any, and precedent but not inconsistent with Rules 41 to 101, inclusive.

 

41.05. Rules--Definitions

 

 

As used in these Rules the word “law” includes rules, statutes and judicial decisions; the word “oath” includes affirmations; “county” includes the City of St. Louis; and the word “sheriff” includes other officers performing the duties thereof under law, rule or charter.

 

41.06. Rules--Application to Pending Actions

 

 

Rules 41 to 101, inclusive, shall govern all proceedings in actions brought after their effective date, and also all further proceedings in actions then pending, except to the extent that in the opinion of the court their application in a particular action pending when the Rules take effect would not be feasible or would work injustice, in which event the former procedure applies.

 

41.07. Pleadings and Papers--Size--Form--Recycled Paper

 

 

Appellate court briefs shall be prepared as provided in Rule 84.06.

 

Petitions, motions, transcripts and legal files shall comply with Rule 81.18.

 

All pleadings and other papers, except exhibits, offered for filing in any court and all forms used in any court, including opinions, shall be on paper of a size not larger than 8 1/2 X 11 inches.

 

An exhibit may be on paper larger than size 8 1/2 X 11 inches.

 

The use of recycled paper is acceptable and encouraged.

 

41.08. Signatures of Judicial Officers and Court Officials

 

 

<Text of rule effective September 1, 2011.>

 

Part I. Rules Governing Civil Procedure in the Circuit Courts

 

 

Rule 42. Form of Civil Action

 

 

42.01. One Form of Action

 

 

There shall be one form of action to be known as “civil action”.

 

Rule 43. Service and Filing of Pleadings and Papers (Refs & Annos)

 

 

43.01. Service of Pleadings and Other Papers

 

 

<Text of rule effective until July 1, 2010. See, also, rule effective July 1, 2010.>

 

(a) Service--When Required. Each affected party shall be served with:

 

(1) Every pleading subsequent to the original petition;

 

(2) Every written motion, other than one that may be heard ex parte; and

 

(3) Every written notice, appearance, demand, offer of judgment, order, and similar paper that by statute, court rule or order is required to be served.

 

No service need be made on parties in default for failure to appear, except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons.

 

(b) Service on Attorney. Whenever under these rules or any of the statutes of this state service is required or permitted to be made upon a party represented by an attorney of record, the service shall be made upon the attorney unless service upon the party is ordered by the court. When a party is represented by more than one attorney, service may be made upon any such attorney. If an attorney has filed a notice of limited appearance for an otherwise self-represented person, service shall be made on the self-represented person and not on the attorney unless the attorney acting within the scope of limited representation serves the other party or the other party's attorney with a copy of the notice of limited appearance setting forth a time period within which service shall be upon the attorney.

 

(c) Service--How and by Whom Made. Attorneys and non-represented parties shall state in the signature blocks of their pleadings their current mailing addresses, telephone numbers, facsimile numbers, and electronic addresses. This information shall be kept current at all times. Service may be directed to any of these addresses, except service to an electronic mail address. Service to an electronic mail address can only be made on those filing a consent to such service substantially in the form of Civil Procedure Form No. 17.

 

Unless otherwise ordered by the court, service required by Rules 43.01(a) and 43.01(b) may be made in the following manner:

 

(1) Upon the attorney:

 

(A) By delivering a copy to the attorney;

 

(B) By leaving a copy at the attorney's office with a clerk, receptionist, or secretary or with an attorney employed by or associated with the attorney to be served;

 

(C) By facsimile transmission;

 

(D) By electronic mail to a consenting attorney; or

 

(E) By mailing a copy to the attorney at the attorney's last known address;

 

(2) Upon a party:

 

(A) By delivering or mailing a copy to the party;

 

(B) By facsimile transmission;

 

(C) By electronic mail to a consenting party; or

 

(D) By serving a copy in the manner provided for service of summons in Rule 54.13.

 

(d) Service--When Complete. Personal service on attorneys and non-represented parties and service by leaving a copy at the attorney's office is complete upon delivery.

 

Service by mail is complete upon mailing.

 

Service by facsimile transmission or electronic mail is complete upon transmission, except that a transmission made on a Saturday, Sunday, or legal holiday, or after 5:00 p.m. shall be complete on the next day that is not a Saturday, Sunday, or legal holiday.

 

(e) Service--How Shown. Service may be shown by acknowledgment of receipt, by affidavit or by written certificate of counsel making such service. Affidavits of service and counsel's certificates of service shall state the:

 

(1) Name of each person served;

 

(2) Date of service;

 

(3) Method of service; and

 

(4) Address of service, such as mailing address, facsimile number or electronic mail address.

 

(f) Service--Numerous Defendants. If there are unusually large numbers of defendants in an action, the court, upon motion or of its own initiative, may order that:

 

(1) Service of the pleadings of the defendants, and reply thereto, need not be made as between the defendants;

 

(2) Any cross-claim, counterclaim, or pleading constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties; and

 

(3) The filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties.

 

A copy of every such order shall be served upon the parties in such manner and form as the court directs.

 

(g) Service--Time for--When No Time Specified. When provision is made for the time of filing papers and none is made for the time of service thereof, copies shall be served on the day of filing or as soon thereafter as can be done.

 

(h) Service of Orders, Judgments and Other Documents. Any order, judgment or other document issued by the court may be transmitted to the attorney or party as authorized in Rule 43.01(c), provided service pursuant to Rule 54 is not required. Such documents may be transmitted to non-parties in the same manner as is authorized for service upon an attorney.

 

43.01. Service of Pleadings and Other Papers

 

 

<Text of rule effective July 1, 2010. See, also, rule effective until July 1, 2010.>

 

(a) Service--When Required. Each party shall be served with:

 

(1) Every pleading subsequent to the original petition;

 

(2) Every written motion, other than one that may be heard ex parte; and

 

(3) Every written notice, appearance, demand, offer of judgment, order, and similar paper that by statute, court rule, or order is required to be served.

 

No service need be made on parties in default for failure to appear, except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons.

 

(b) Service--On Whom. Whenever under these rules or any of the statutes of this state service is required or permitted to be made upon a party represented by an attorney of record, the service shall be made upon the attorney, unless the court orders service upon the party. When more than one attorney represents a party, service may be made upon any such attorney. If an attorney has filed an entry of limited appearance for an otherwise self-represented person, service shall be made on:

 

(1) The self-represented person, and

 

(2) Until the attorney files a termination of limited appearance, the attorney.

 

(c) Service--How and by Whom Made. Attorneys and self-represented parties shall state in the signature blocks of their pleadings their current mailing addresses, telephone numbers, facsimile numbers, electronic addresses, and Missouri bar numbers, if any. This information shall be kept current at all times. Service may be directed to any of these addresses, except service to an electronic mail address. Service to an electronic mail address can only be made on those who have filed a consent to such service substantially in the form of Civil Procedure Form No. 17.

 

Unless otherwise ordered by the court, service required by Rules 43.01(a) and 43.01(b) may be made in the following manner:

 

(1) Upon the attorney:

 

(A) By delivering a copy to the attorney;

 

(B) By leaving a copy at the attorney's office with a clerk, receptionist, or secretary or with an attorney employed by or associated with the attorney to be served;

 

(C) By facsimile transmission;

 

(D) By electronic mail to a consenting attorney; or

 

(E) By mailing a copy to the attorney at the attorney's last known address;

 

(2) Upon a party:

 

(A) By delivering or mailing a copy to the party;

 

(B) By facsimile transmission;

 

(C) By electronic mail to a consenting party; or

 

(D) By serving a copy in the manner provided for service of summons in Rule 54.13.

 

(d) Service--When Complete. Personal service on attorneys and self-represented parties and service by leaving a copy at the attorney's office is complete upon delivery.

 

Service by mail is complete upon mailing.

 

Service by facsimile transmission or electronic mail is complete upon transmission, except that a transmission made on a Saturday, Sunday, or legal holiday, or after 5:00 p.m. shall be complete on the next day that is not a Saturday, Sunday, or legal holiday.

 

(e) Service--How Shown. Service may be shown by acknowledgment of receipt or by written certificate of the person making such service. Certificates of service shall state the:

 

(1) Name of each person served;

 

(2) Date of service;

 

(3) Method of service; and

 

(4) Address of service, such as mailing address, facsimile number or electronic mail address.

 

(f) Service--Numerous Defendants. If there are unusually large numbers of defendants in an action, the court, upon motion or of its own initiative, may order that:

 

(1) Service of the pleadings of the defendants, and reply thereto, need not be made as between the defendants;

 

(2) Any cross-claim, counterclaim, or pleading constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties; and

 

(3) The filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties.

 

A copy of every such order shall be served upon the parties in such manner and form as the court directs.

 

(g) Service--Time for--When No Time Specified. When provision is made for the time of filing papers and none is made for the time of service thereof, copies shall be served on the day of filing or as soon thereafter as can be done.

 

(h) Service of Orders, Judgments and Other Documents. Any order, judgment or other document issued by the court may be transmitted to the attorney or party as authorized in Rule 43.01(c), provided service pursuant to Rule 54 is not required. Such documents may be transmitted to non-parties in the same manner as is authorized for service upon an attorney.

 

43.02. Filing of Pleadings and Other Papers

 

 

(a) Filing--When Required. All papers after the petition required to be served upon a party and filed with the court shall be filed either before service or within five days thereafter.

 

(b) Filing With the Court--Defined. The filing of pleadings and other papers with the court as required by Rules 41 through 101 shall be made by filing them with the clerk of the court, except that a judge may permit the papers to be filed with the judge, who shall note thereon the filing date and forthwith transmit them to the office of the clerk.

 

(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.

 

Rule 44. Time (Refs & Annos)

 

 

44.01. Time, Computation of--Extension--Expiration of Turn--Service of Motions [FN1]

 

 

(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor a legal holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation.

 

(b) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon notice and motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under rules 52.13, 72.01, 73.01, 75.01, 78.04, 81.04 and 81.07 or for commencing civil action.

 

(c) Unaffected By Expiration of Term. The period of time provided for the doing of any act or the taking of any proceeding is not affected or limited by the continued existence or expiration of a term of court. The continued existence or expiration of a term of court in no way affects the power of a court to do any act or take any proceeding in any civil action pending before it, which it is otherwise by law authorized to do or take.

 

(d) Motions--Notice Required--Affidavits. A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than five days before the time specified for the hearing, unless a different period is fixed by law or court rule or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by an affidavit, the affidavit shall be served with the motion; and, except as otherwise provided by law or rule in connection with a motion for a new trial, opposing affidavits may be served not later than one day before the hearing, unless the court permits them to be served at some other time.

 

(e) Additional Time After Service by Mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served by mail, three days shall be added to the prescribed period.

 

[FN1] Effective July 1, 2010, the title will read “Time, Computation of--Extension--Expiration of Term--Service of Motions”.

Rule 45. Courts Always Open

 

 

45.01. Courts Always Open for Certain Purposes

 

 

The courts shall be deemed always open for the purpose of filing any pleading or other proper paper, of issuing and returning mesne and final process, and of making and directing all interlocutory motions, orders and rules.

 

Rule 46. Clerk's Duties and Powers

 

 

46.01. Clerk's Office, Open When--Motions and Proceedings Grantable by Clerk

 

 

The clerk's office with the clerk or a deputy in attendance shall be open during business hours on all days except Sundays and legal holidays. All motions and applications in the clerk's office for issuing mesne process, for issuing final process to enforce and execute judgments, and for other proceedings which do not require allowance or order of the court are grantable as of course by the clerk; but this action may be suspended or altered or rescinded by the court upon cause shown.

 

Rule 47. Terms of Court (Refs & Annos)

 

 

47.01. Term of Court Shall Convene and Expire--How and When

 

 

Every term of court shall commence and convene by operation of law at the time fixed by statute or local court rule without any act, order or formal opening by a judge, the judges or other officials, and shall continue to be open at all times until and including the day preceding the next regular term, on which day it shall expire by operation of law.

 

Rule 48. Vacation and Judicial Sales

 

 

48.01. Vacation--Construction--Judicial Sales, When Held

 

 

The words “in vacation” in any statute or rule, and any requirement concerning the right, duty or authority of the judge, clerk, sheriff or other officers in vacation or upon adjournment, shall be construed to apply to all days on which the judge does not actually convene court. Unless otherwise required by statute a judicial sale may be held whether or not the judge actually convenes court on the day thereof.

 

Rule 49. Forms of Writs and Other Process (Refs & Annos)

 

 

49.01. Forms Promulgated by this Court

 

 

Any writ or other process substantially following a form promulgated by this Court shall be deemed sufficient.

 

Rule 50. Rules of Missouri Court of Appeals and Trial Courts (Refs & Annos)

 

 

50.01. Rules of Court of Appeals and Trial Courts--Copy to Clerk of This Court--Distribution

 

 

The Missouri Court of Appeals, districts thereof, and trial courts may make rules governing the administration of judicial business if the rules are not inconsistent with the rules of this Court, the Constitution or statutory law in force.

 

Upon their promulgation, copies of any such rules shall be furnished to the Clerk of this Court. The clerk of each court shall from time to time compile all of the current rules and maintain copies thereof for distribution among members of the bar and litigants.

 

Rule 51. Venue, Including Change of Venue and Change of Judge (Refs & Annos)

 

 

51.01. Jurisdiction and Venue not Affected

 

 

These Rules shall not be construed to extend or limit the jurisdiction of the courts of Missouri, or the venue of civil actions therein.

 

51.02. Change of Venue By Agreement

 

 

If at least thirty days before the trial date of a civil action triable by jury the parties shall file a stipulation agreeing upon removal of the civil action to a designated court of competent jurisdiction, the court shall order it removed to such other court. Thereafter, no change of venue or change of judge shall be granted to any party stipulating to the change except where denial of the change of venue would deprive the moving party of a fair hearing or except where there is cause for a change of judge.

 

51.03. Change of Venue from Inhabitants as Matter of Right in Counties of Seventy-five Thousand or Less Inhabitants--Procedure

 

 

(a) A change of venue shall be ordered in a civil action triable by jury that is pending in a county having seventy-five thousand or less inhabitants upon the filing of a written application therefor not later than ten days after answer is due to be filed; except (1) in condemnation cases the application shall be filed not later than ten days after exceptions to the commissioner's report are filed and (2) in any civil action in which an answer is not required to be filed the application must be filed within ten days after the return date of the summons or order to show cause. The applicant need not allege or prove any cause for such change. The application need not be verified and may be signed by any party.

 

(b) A copy of the application and notice of the time when it will be presented to the court shall be served on all parties.

 

(c) If a timely application is filed, the court immediately shall order the case transferred to some other county convenient to the parties, first giving all parties the opportunity to make suggestions as to where the case should be sent.

 

51.04. Change of Venue From Inhabitants for Cause--Procedure

 

 

(a) A change of venue may be ordered in any civil action triable by jury for the following causes:

 

(1) That the inhabitants of the county are prejudiced against the applicant; or

 

(2) That the opposite party has an undue influence over the inhabitants of the county.

 

(b) The application for change of venue must be filed at least thirty days before the trial date or within ten days after a trial date is fixed, whichever date is later.

 

(c) A copy of the application and a notice of the time when it will be presented to the court must be served on all parties.

 

(d) The application shall set forth the cause or causes for the change of venue. It need not be verified and may be signed by the party or by an agent or attorney.

 

(e) The adverse party, within ten days after the filing of the application for change of venue, may file a denial of the cause or causes alleged in the application. Such denial may be signed by the party, an agent or attorney, and need not be verified. If a denial is filed, the court shall hear evidence and determine the issues. If they are determined in favor of applicant, or if no denial is filed, a change of venue shall be ordered to some other county convenient to the parties and where the cause or causes do not exist. The court may enlarge the time for filing a denial as provided in Rule 44.01(b).

 

(f) Application for change of venue may be made by one or more parties in any of the following classes: (1) plaintiffs; (2) defendants; (3) third-party plaintiffs (where a separate trial has been ordered); (4) third-party defendants; (5) intervenors.

 

Each of the foregoing classes is limited to one change of venue and any such change granted any one or more members of a class, including changes granted under Rules 51.02, 51.03 or 51.04, exhausts the right of all members of the class to a change of venue, with this exception: in condemnation cases involving multiple defendants, as to which separate trials are to be held, each such separate trial to determine damages shall be treated as a separate case for purposes of change of venue.

 

(g) When a change of venue is ordered, the entire civil action shall be removed, unless a separate trial has been ordered, in which event the court shall order removed only that part of the civil action in which applicant is involved.

 

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 within sixty days of service on the party seeking transfer. For good cause shown, the court may extend the time to file a motion to transfer venue or allow the party to amend it.

 

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

 

If a timely motion to transfer venue is filed, the venue issue is not waived by any other action in the case.

 

(b) Within thirty days after the filing of a motion to transfer for improper venue, an opposing party may file a reply. For good cause shown, the court may extend the time to file the reply or allow the party to amend it.

 

The reply shall set forth the basis for venue in the forum. The court shall not consider any basis not set forth in the reply, nor shall the court consider allegations relating to fictitious defendants. If a reply is filed, the court may allow discovery on the issue of venue and shall determine the issue.

 

(c) If the issue is determined in favor of the movant or if no reply is filed, the court shall order a transfer of venue 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.

 

(d) 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.

 

51.05. Change of Judge--Procedure

 

 

<Text of subd. (a) effective until January 1, 2011. See also text of subd. (a) effective January 1, 2011, post.>

 

(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.

 

<Text of subd. (a) effective January 1, 2011. See also text of subd. (a) effective until January 1, 2011, ante.>

 

(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, proceedings to revoke probation or judicial parole and motions to modify child custody, child support, or spousal maintenance filed pursuant to chapter 452, RSMo, are not independent civil actions unless the judge designated to rule on the motion is not the same judge that ruled on the previous independent 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.

 

(c) A copy of the application and notice of the time when it will be presented to the court shall be served on all parties.

 

(d) Application for change of judge may be made by one or more parties in any of the following classes: (1) plaintiffs; (2) defendants; (3) third-party plaintiffs (where a separate trial has been ordered); (4) third-party defendants; or (5) intervenors. Each of the foregoing classes is limited to one change of judge, and any such change granted any one or more members of a class exhausts the right of all members of the class to a change of judge. However, no party shall be precluded from later requesting any change of judge for cause. Further, in condemnation cases involving multiple defendants, as to which separate trials are to be held, each separate trial to determine damages shall be treated as a separate case for purposes of change of judge.

 

(e) The judge promptly shall sustain a timely application for change of judge upon its presentation. The disqualified judge shall transfer the case to a judge stipulated to by the parties if the new judge agrees to take the case. If the case is not so transferred, the disqualified judge shall notify the presiding judge:

 

(1) If the presiding judge is not disqualified in the case, the presiding judge shall assign a judge of the circuit who is not disqualified or request this Court to transfer a judge; or

 

(2) If the presiding judge is disqualified in the case, a judge of the circuit shall be assigned in accordance with local court rules, so long as the local court rules do not permit the disqualified judge to make the assignment, or the presiding judge shall request this Court to transfer a judge.

 

(f) If after a change of judge has been granted the action shall be removed on application of another party to some other county in the same circuit, the transferred judge shall continue as the judge therein.

 

51.06. Joint Application for Change of Venue and Change of Judge--When Required--Procedure

 

 

(a) If a party requests and obtains either a change of venue or a change of judge, that party shall not be granted any additional change thereafter except for cause or under Rule 51.07. A party who desires both a change of venue and a change of judge must join and present both in a single application.

 

(b) Upon the timely presentation of an application requesting a change of venue and a change of judge and if no such application has previously been made by the requesting party or a party of the same class, the judge promptly shall sustain the application for change of judge and transfer the case in accordance with the procedures of Rule 51.05(e).

 

(c) The newly assigned judge shall determine the request for change of venue. If the change of venue is denied or if the change of venue is to another county in the same circuit, the newly assigned judge shall continue to be the judge in the civil action.

 

51.07. When Judge Disqualified Without Application

 

 

If the judge is interested or related to any party or shall have been counsel in the civil action, or is recused for any reason, the judge promptly shall transfer the case to the presiding judge of the circuit for reassignment in accordance with the procedures of Rule 51.05(e).

 

51.08. Pleadings Need Not Be Completed Before Change of Venue is Ordered

 

 

It is not necessary that all pleadings be filed or the issues joined before an order awarding a change of venue is entered.

 

51.09. Clerk to Transmit File After Change of Venue

 

 

When any order of change of venue is made, the clerk shall forthwith transmit the original papers, together with a transcript of all docket entries, duly certified, to the clerk of the court to which the removal is ordered or the court may order the clerk to forthwith prepare a full transcript of the record and proceedings in the civil action, and transmit the same, duly certified, together with all the original papers in the civil action but not forming a part of the record, to the clerk of the court to which the removal is ordered.

 

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.

 

51.11. Change of Venue and Change of Judge--Costs--How Taxed

All costs of any change of venue or change of judge shall be taxed in the discretion of the court at the time other costs in the civil action are taxed.

 

51.12. Failure of Clerk to Transmit, or Loss of, Record--Proceedings

 

 

Failure of the clerk to transmit the papers or transcript, or the loss of the same, shall not operate as a discontinuance of the civil action but copies may be furnished and filed.

 

51.13. Order of Change of Venue May Be Annulled, When

 

 

A court which has granted a change of venue shall have the power to annul the order, with consent of the parties, at any time before the papers or transcript are filed in the court to which the venue was changed.

 

51.14. Jurisdiction of Judge and Court in Civil Actions Removed

 

 

(a) Following a change of venue, for any reason, to a county outside the circuit from which venue was changed, the case shall be handled by a judge regularly appointed to hear cases in the new circuit, unless a judge is otherwise assigned to hear the case as authorized by article V, §§ 6 or 15 of the constitution.

 

(b) The court to which any civil actions shall be transferred by change of venue shall have jurisdiction to hear and determine the same, and shall proceed to final judgment and execution therein, although such civil action would not otherwise be cognizable in such court.

 

51.15. Disqualification of Family Court Commissioner

 

 

Rules 51.05, 51.06, and 51.07 shall apply to family court division commissioners, except as provided in Rule 121.

 

Rule 52. Parties (Refs & Annos)

 

 

52.01. Civil Actions--In Whose Name Prosecuted--Suits in Representative Capacity--Civil Actions in Name of State--Real Party in Interest to Bring Civil Action

 

 

Every civil action shall be prosecuted in the name of the real party in interest, but an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another and a party authorized by statute may sue in their own names in such representative capacity without joining the party for whose benefit the action is brought. When a statute so provides, a civil action for the use or benefit of another shall be brought in the name of the State of Missouri.

 

52.02. Civil Actions By and Against Minors and Mentally or Physically Infirm

 

 

(a) Civil Actions by Minors, Prosecuted by Whom. Civil actions by minors may be commenced and prosecuted only by a duly appointed guardian of such minor or, if there is no such guardian, by a next friend appointed in such civil action; if asserted by counterclaim, cross-claim or third party pleadings, such civil action may only be prosecuted by a duly appointed guardian of such minor or, if there is no such guardian, by a guardian ad litem appointed for such civil action.

 

(b) Next Friend, by Whom Appointed. The appointment of a next friend for a minor shall be made by the judge of the court in which the civil action is intended to be brought, or by the clerk thereof.

 

(c) How Appointed. Such appointment shall be made on the petition in writing of such minor if of the age of fourteen years and the written consent of the person proposed to be next friend. If such minor be under the age of fourteen years, the appointment of a next friend may be made upon the written application of a relative or friend of the minor, in which case a notice thereof must be given to the person with whom such minor resides.

 

(d) Petition and Appointment to be Filed Before Further Proceedings. The petition for the appointment of a next friend, the written consent of the person proposed to be next friend, and the order of appointment, shall be filed in the office of the clerk of the court where the civil action is proposed to be brought before any proceedings shall be had in the cause.

 

(e) Civil Actions Against Minors Not to Proceed Without Guardian. After the commencement of a civil action against a minor defendant, and the service of process upon him, the civil action shall not be prosecuted any further until a guardian or guardian ad litem for such minor defendant be appointed, except for such discovery proceedings as may be necessary to determine whether a defendant is a minor or has a duly appointed guardian.

 

(f) Appointment of Guardian Ad Litem. The appointment of a guardian ad litem shall be made by the court in which the civil action is pending upon the written request of the minor defendant, if of the age of fourteen years or more, or, if such minor be under said age, on the written request of a relative or friend of the minor, and on the written consent of any competent person proposed as guardian ad litem. Such request shall be filed in the office of the clerk of the court before any answer by such minor shall be filed.

 

(g) Guardian Ad Litem, When Appointed. If such minor defendant neglect, for one day after the expiration of the time within which the minor defendant is summoned to appear to the suit to procure the appointment of a guardian ad litem to defend the civil action, the court shall appoint some competent person to be guardian ad litem for such minor in the defense of such civil action.

 

(h) Next Friend or Guardian Ad Litem to Give Bond.

 

1. Before a next friend or guardian ad litem can receive a receipt for any money or property, personal or real, and before the next friend or guardian ad litem can acknowledge satisfaction or discharge of any judgment, the next friend or guardian ad litem must execute a bond to such minor; except that no bond shall be required if: (i) the total value of the property or money, exclusive of expenses and fees approved by the court, is not in excess of ten thousand dollars and all of the money or property is to be turned over to the minor or the minor's parent or (ii) a sufficiently bonded guardian files a receipt approved by the court for such money or property. The bond must be approved by the court and shall be conditioned that the next friend or guardian ad litem shall account to such minor for all money or property of such minor that has or does come into the next friend or guardian ad litem's hands, less only those expenses and attorney fees the payment of which has been approved by order of the court. The bond shall be in an amount equal to the value of said money or property if the surety is a corporate bonding, surety or insurance company and in an amount double the value of said money or property if the surety is not a corporate bonding, surety or insurance company, in which event there shall be two sureties. In either event, the surety or sureties shall be approved by the court before the bond can be approved.

 

2. Failure to execute such approved bond with approved surety or sureties when required under the provisions of subsection 1 shall, upon receipt by a next friend or guardian ad litem of any money or property for or on behalf of such minor, immediately render such next friend or guardian ad litem personally liable to such minor for a penal sum in an amount double the value of such money or property and also shall render absolutely void and of no effect any release, receipt or acknowledgment of satisfaction or discharge of any judgment which has been or is in the future made or executed by the next friend or guardian ad litem.

 

3. The duties of the next friend or guardian ad litem and the obligations under such bond shall continue until discharged by order of the court.

 

(i) Guardian and Next Friend Liable for Costs. The guardian or next friend of any minor who commences or prosecutes a civil action shall be responsible for the costs thereof, unless such minor be permitted by the court to sue as a poor person, as provided by law.

 

(j) Guardian Ad Litem Liable for Costs in Case of Misconduct. No person appointed guardian ad litem for a minor, for the purpose of defending a civil action against such minor, shall be personally liable for the costs of such civil action, unless specially charged by the order of the court for some personal misconduct in said cause.

 

(k) Next Friend or Guardian Ad Litem for Mentally or Physically Infirm. Whenever it shall be suggested or affirmatively appear to the court that any person not having a duly appointed guardian is incapable by reason of mental or physical infirmity of instituting suit or of properly caring for the person's own interests in any litigation brought by or against such person, the court shall inquire into the person's mental or physical condition for the purpose of the particular litigation and shall hear and determine such issue. If it is found to be proper for the protection of the person, the court may appoint a next friend or guardian ad litem for said person for the purpose of the particular litigation.

 

(l) Next Friend to Defend Counterclaim. A next friend shall also defend any counterclaim asserted against such minor or mentally or physically infirm person, except, upon application, the court shall appoint a guardian ad litem to defend such counterclaim.

 

(m) Failure to Appoint Next Friend or Guardian Ad Litem. Failure to appoint a next friend or guardian ad litem for a minor or a mentally or physically infirm person shall not invalidate the proceedings if the court finds that the interests of the minor or the mentally or physically infirm person were adequately protected.

 

(n) Statutes Governing Powers and Duties. The powers and duties of the next friend, guardian and guardian ad litem, and of the courts in respect to minors and incompetents shall be exercised in accordance with the provisions of the Revised Statutes of Missouri including, but not limited to, Sections 507.182, 507.184, 507.186 and 507.188.

 

52.03. Parties to Civil Action When Claim for Relief Accrues Under Law of Another State--Proceeds, How Distributed

 

 

(a) Civil Action--By Whom Brought. Whenever a claim exists under the law of another state, a civil action thereon may be brought in this state by:

 

(1) the persons entitled to the proceeds of such claim if they are authorized to bring such action by the laws of said other state;

 

(2) the executor, administrator, guardian, guardian ad litem or other person empowered by the law of said other state to sue in a representative capacity if the persons entitled to the proceeds of such claim are not authorized to sue in such cases under the law of said other state.

 

(b) Proceeds--How Distributed. In the cases mentioned in subsection (a) (2) above, the proceeds of the civil action, resulting either from judgment or settlement, shall be paid to the person bringing such civil action and such person is authorized to satisfy the judgment and execute a release. Such person to whom the proceeds are paid shall have authority to distribute and pay the same to the person or persons entitled thereto, according to their respective interests therein, under the laws of said other state.

 

52.04. Joinder of Persons Needed for Just Adjudication

 

 

(a) Persons to Be Joined if Feasible. A person shall be joined in the action if: (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may: (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant.

 

(b) Determination by Court Whenever Joinder Not Feasible. If a person as described in Rule 52.04(a)(1) or Rule 52.04(a)(2) cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it or should be dismissed, the absent party being thus regarded as indispensable. The factors to be considered by the court include: (i) to what extent a judgment rendered in the person's absence might be prejudicial to that person or those already parties; (ii) the extent to which by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (iii) whether a judgment rendered in the person's absence will be adequate; and (iv) whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

 

(c) Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subdivisions (a) (1)-(2) hereof who are not joined, and the reasons why they are not joined.

 

(d) Exception of Class Actions. This rule is subject to the provisions of Rule 52.08.

 

52.05. Who may Join as Plaintiff and Defendant--Protective Orders, When

 

 

(a) Permissive Joinder. All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrences or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.

 

(b) Separate Trials--Protective Orders. The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a person as a party against whom the party asserts no claim and the person asserts no claim against the party and may order separate trials or make other orders to prevent delay or prejudice.

 

52.06. Misjoinder and Nonjoinder of Parties

 

 

Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.

 

52.07. Interpleader

 

 

Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers no liability in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of cross-claim or counterclaim. The provisions of this Rule 52.07 supplement and do not in any way limit the joinder of parties permitted in Rule 52.05.

 

52.08. Class Actions

 

 

(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

 

(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:

 

(1) the prosecution of separate actions by or against individual members of the class would create a risk of

 

(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or

 

(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or

 

(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

 

(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:

 

(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions;

 

(B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;

 

(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum;

 

(D) the difficulties likely to be encountered in the management of a class action.

 

(c) Determination by Order Whether Class Action to Be Maintained--Notice--Judgment--Actions Conducted Partially as Class Actions.

 

(1) As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this Rule 52.08(c)(1) may be conditional and may be altered or amended before the decision on the merits.

 

(2) In any class action maintained under Rule 52.08(b)(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that: (A) the court will exclude the member from the class if requested by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if desired, enter an appearance through counsel.

 

(3) The judgment in an action maintained as a class action under Rule 52.08(b)(1) or Rule 52.08(b)(2), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under Rule 52.08(b)(3), whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in Rule 52.08(c)(2) was directed, and who have not requested exclusion, and whom the court finds to be members of the class.

 

(4) When appropriate an action may be brought or maintained as a class action with respect to particular issues or a class may be divided into subclasses and each subclass treated as a class, and the provisions of this Rule 52.08 shall then be construed and applied accordingly.

 

(d) Orders in Conduct of Actions. In the conduct of actions to which this Rule applies, the court may make appropriate orders:

 

(1) determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument;

 

(2) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action;

 

(3) imposing conditions on the representative parties or on intervenors;

 

(4) requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly;

 

(5) dealing with similar procedural matters.

 

The orders may be combined with an order under Rule 62, and may be altered or amended as may be desirable from time to time.

 

(e) Dismissal or Compromise. A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.

 

(f) Appeals. An appellate court may permit an appeal from an order of a circuit court granting or denying class action certification under this Rule 52.08 if a petition is timely filed as provided in Rule 84.035. The filing of a petition shall not stay the proceedings in the trial court unless the trial judge or the appellate court so orders.

 

52.09. Derivative Actions by Shareholders

 

 

In a derivative action brought by one or more shareholders or members to enforce a right of a corporation or of an unincorporated association, the corporation or association having failed to enforce a right that may properly be asserted by it, the petition shall be verified and shall allege that the plaintiff was a shareholder or member at the time of the transaction of which there is a complaint or that the plaintiff's share or membership thereafter devolved on the plaintiff by operation of law. The petition shall also allege with particularity the efforts, if any, made by the plaintiff to obtain the action desired from the directors or comparable authority and, if necessary, from the shareholders or members and the reasons for the failure to obtain the action or for not making the effort. The derivative action may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interests of the shareholders or members similarly situated in enforcing the right of the corporation or association. The action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to shareholders or members is such manner as the court directs.

 

52.10. Actions Relating to Unincorporated Associations

 

 

An action brought by or against the members of an unincorporated association as a class by naming certain members as representative parties may be maintained only if it appears that the representative parties will fairly and adequately protect the interests of the association and its members. In the conduct of the action the court may make appropriate orders corresponding with those described in Rule 52.08(d), and the procedure for dismissal or compromise of the action shall correspond with that provided in Rule 52.08(e).

 

Nothing in this Rule shall be construed to affect the rights or liabilities of labor unions to sue or be sued.

 

52.11. Third-Party Practice

 

 

(a) When Defendant May Bring in Third Party. At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and petition to be served upon a person not a party to the action who is or may be liable to the defending party for all or part of the plaintiff's claim against the defending party.

 

The third-party plaintiff need not obtain leave to make the service if the third-party petition is filed not later than ten days after the defending party serves the original answer. Otherwise, the defending party shall obtain leave on motion upon notice to all parties to the action. The person served with the summons and third-party petition, hereinafter called the third-party defendant, shall make defenses to the third-party plaintiff's claim as provided in Rule 55 and counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in Rule 55. The third-party defendant may assert against the plaintiff any defenses that the third-party plaintiff has to the plaintiff's claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff, and the third-party defendant thereupon shall assert defenses as provided in Rule 55 and counterclaims and cross-claims as provided in Rule 55. Any party may move to strike the third-party claim or for its severance or separate trial. A third-party defendant may proceed under this Rule 52.11 against any person not a party to the action who is or may be liable to the third-party defendant for all or part of the claim made in the action against the third-party defendant.

 

(b) When Plaintiff May Bring in Third Party. When a counterclaim is asserted against a plaintiff, the plaintiff may cause a third-party to be brought in under circumstances that under this Rule 52.11 would entitle a defendant to do so.

 

(c) Execution by Third-Party Plaintiff--Limitation. Where a third-party defendant is liable to the plaintiff, or to any one holding a similar position under Rule 52.11(a) or Rule 52.11(b), on the claim on which a third-party plaintiff has been sued, execution by the third-party plaintiff on a judgment against the third-party defendant shall be permitted only to the extent that the third-party plaintiff has paid any judgment obtained against the third-party plaintiff by the obligee.

 

52.12. Intervention

 

 

(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene or (2) when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

 

(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of this state confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common; or (3) when the validity of a statute, regulation or constitutional provision of this state, or an ordinance or regulation of a governmental subdivision thereof, affecting the public interest, is drawn in question in any action to which the state or governmental subdivision or an officer, agency or employee thereof is not a party, the court may in its discretion notify the chief legal officer of the state or governmental subdivision thereof, and the state or governmental subdivision may in the discretion of the court be permitted to intervene, upon proper application.

 

(c) Procedure. A person desiring to intervene shall serve a motion upon all parties affected thereby. The motion shall state the grounds therefor, and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute of this state gives a right to intervene.

 

52.13. Substitution of Parties--Dismissal

 

 

(a) Upon Death.

 

(1) If a party dies and the claim is not thereby extinguished, the court may, upon motion, order substitution of the proper parties. Suggestion of death may be made by any party or person in interest by the service of a statement of the fact of the death as provided herein for the service of a motion. A motion for substitution may be made by any party or by the successor or representative of the deceased party. Such motion, together with notice of hearing shall be served upon the parties as provided in Rule 43.01, and upon persons not parties in the manner provided for the service of a summons. Unless a motion for substitution is served within 90 days after a suggestion of death is filed, the action shall be dismissed as to the deceased party without prejudice.

 

(2) In the event of the death of one or more of the plaintiffs or one or more of the defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the death shall be suggested on the record and the action shall proceed in favor of or against the surviving parties.

 

(b) Incompetency. If a party becomes incompetent, upon motion for substitution served as provided in Rule 52.13(a), the court may allow the action to be continued by or against the party's representative.

 

(c) Transfer of Interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subsection (a) of this Rule.

 

(d) Public Officers--Death or Separation From Office. When a public officer is a party to an action in an official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution. When a public officer sues or is sued in an official capacity, the officer may be described as a party by official title rather than by name, but the court may require the name to be added.

 

(e) Dissolution of Corporation. When a corporation has been sued and served with a process or has appeared while in being, and is thereafter dissolved or its charter forfeited, the action shall not be affected thereby and any judgment obtained shall have the effect of a judgment against the directors and officers in office when any such dissolution or forfeiture occurs, in their representative capacity, although they were not joined in the action.

 

(f) Motion for Substitution--Notice. When service of motion for substitution and notice of hearing is required to be served in the manner for the service of summons, the hearing on said motion shall not be held prior to the time the person served would be required to appear if served with an original process.

 

(g) Substitution--Effect on Time for After-Judgment Motions. In all cases where the event which gives a right to substitute parties under this Rule occurs after judgment has been rendered in a trial court, the time for filing after-judgment motions, giving after-judgment notices and all other after-judgment proceedings shall not begin to run until an order of substitution is made in accordance with this Rule.

 

Rule 53. Commencement of Civil Action (Refs & Annos)

 

 

53.01. Commencement of Civil Action

 

 

A civil action is commenced by filing a petition with the court.

 

Rule 54. Issuance and Service of Summons or Other Process (Refs & Annos)

 

 

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.

 

54.02. Summons Shall Be Signed By Clerk

 

 

The summons shall be signed by the clerk, dated the day it is issued, be under the seal of the court, contain the name of the court and the names of the parties, and be directed to the defendant, stating the name and address of the plaintiff's attorney, if any; otherwise the plaintiff's address. It also shall state the time within which and the place where the defendant is required to appear and defend as provided by law and shall notify the defendant that in case of failure to do so judgment by default will be entered against the defendant for the relief demanded in the petition.

 

54.03. Repealed by order dated June 1, 1993, eff. Jan. 1, 1994

 

 

54.04. Summons--Service

 

 

A copy of the summons and petition shall be served together except when service is by publication.

 

54.05. Deputies Acting for Clerk or Sheriff

 

 

A deputy clerk or deputy sheriff shall have the same authority as the clerk or sheriff, respectively, to do any act which this Rule 54 authorizes the clerk or sheriff to do.

 

54.06. Service Outside the State on Persons, Firms or Corporations Who do Certain Acts in This State

 

 

(a) Service outside the state sufficient to authorize a general judgment in personam may be obtained upon any person, executor, administrator or other legal representative, firm or corporation, whether or not a citizen or resident of this state, who in person or through an agent does any of the acts enumerated in this Rule 54.06:

 

(1) Transacts any business within this state;

 

(2) Makes any contract within this state;

 

(3) Commits a tortious act within this state;

 

(4) Owns, uses or possesses any real estate situated in this state;

 

(5) Contracts to insure any person, property or risk located within this state at the time of contracting;

 

(6) Engages in an act of sexual intercourse within this state with the mother of a child within or near the probable period of conception of that child.

 

(b) Service sufficient to authorize a general judgment in personam may be obtained on any person, any person's personal representative, or other legal representative, whether or not a citizen or resident of the state, who has lived in lawful marriage within this state, as to all civil actions for dissolution of marriage or for legal separation and all obligations arising for maintenance of a spouse, support of any child of the marriage, attorney fees, suit money or disposition of marital property, if the other party to the lawful marriage lives in this state or if a third party has provided support to the spouse or to the children of the marriage and is a resident of this state.

 

(c) Only causes of action arising from acts or conduct enumerated in Rule 54.06(a) or Rule 54.06(b) may be asserted against a defendant in an action in which jurisdiction is based on this Rule 54.06.

 

(d) Service of process may be made as provided in Rule 54.14 or Rule 54.16.

 

54.07. Service Outside the State on Persons Domiciled in or Residents of This State

 

 

(a) Service outside the state sufficient to authorize a general judgment in personam may be obtained upon any person, executor, administrator or other legal representative, who was domiciled in or a resident of this state:

 

(1) At the time the claim for relief or cause of action accrued in this state; or

 

(2) At the time of the commencement of the civil action; or

 

(3) At the time of the service of process.

 

(b) Service of process may be made as provided in Rule 54.14 or Rule 54.16.

 

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.

 

54.09. Service of Foreign Corporations

 

 

In civil actions in which the service of process may be obtained under the provisions of section 351.380, RSMo, service of process may be made as provided in Rule 54.14 or Rule 54.16.

 

54.10. Service on Insurance Companies Not Authorized To Do Business in This State

 

 

In civil actions in which service of process may be obtained under the provisions of section 375.256, RSMo, service of process may be made as provided in Rule 54.14 or Rule 54.15 or Rule 54.16.

 

54.11. Repealed by order dated Dec. 20, 2005, eff. July 1, 2006

 

54.12. Service--In Rem or Quasi In Rem Civil Actions

(a) Service, Generally. In civil actions affecting a fund, will, trust, estate, specific property, or any interest therein, or any res or status within the jurisdiction of the court, service of process may be made as provided in Rule 54.13 or Rule 54.14, or as otherwise provided in this Rule 54.12.

 

(b) Service by Mail. A party requesting service by registered or certified mail shall file an affidavit made by the party or by someone on behalf of the party, stating:

 

(1) Why personal service cannot be had in this state on the party to be served by mail, and

 

(2) The name and address of the party to be served by mail.

 

The clerk shall thereupon mail to the party to be served a summons and copy of the pleading by registered or certified mail, requesting a return receipt signed by addressee only.

 

(c) Service by Publication.

 

(1) Service by publication shall be by notice published by order of the court or clerk thereof.

 

(2) Such order shall issue when the party desiring service by publication files a statement verified by the party or by a person on behalf of the party stating: (A) that one or more of the persons to be served are unborn or their names are unknown to the party desiring service by publication or facts showing why service cannot be obtained under Rule 54.12(b), Rule 54.13, Rule 54.14 or Rule 54.16, and (B) the last known address of the party to be served or in lieu thereof a statement that said address is unknown. It shall be sufficient to name or describe unborn or unknown parties as the heirs, grantees or successors of the person to whom the property to be affected was last known to have been transferred.

 

(3) The notice shall state: (A) that an action has been commenced; (B) briefly the object and general nature thereof; (C) a description of any property to be affected; (D) the name of the court and the names of the parties to the civil action; (E) the name and address of the attorney, if any, for plaintiff, otherwise the plaintiff's address; (F) that judgment by default will be entered against defendant unless the defendant files an answer or other pleading or otherwise appears and defends within forty-five days after the date of the first publication, or such longer time as the court may fix by order; and (G) the date of the first publication.

 

(4) The notice shall be published at least once each week for four consecutive weeks in a newspaper of general circulation published in the county where the civil action is commenced designated by the party requesting publication. If there is no such newspaper, then the publication shall be in a newspaper designated by the court.

 

(5) If the address of any of the parties to be served by publication is given in the verified statement, the clerk shall: (A) within ten days after such order of publication mail a copy of the order of publication of notice and a copy of the petition to each such defendant and (B) file a certificate that such copies have been mailed.

 

(6) Repealed by Supreme Court order of Apr. 23, 1996, eff. Jan. 1, 1997

 

54.13. Personal Service Within the State

 

 

(a) By Whom Made. Service of process within the state, except as otherwise provided by law, shall be made by the sheriff or a person over the age of 18 years who is not a party to the action.

 

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

 

(1) On Individual. Upon an individual, including an infant or incompetent person not having a legally appointed guardian, by delivering a copy of the summons and petition personally to the individual or by leaving a copy of the summons and petition at the individual's dwelling house or usual place of abode with some person of the individual's family over the age of fifteen years, or by delivering a copy of the summons and petition to an agent authorized by appointment or required by law to receive service of process.

 

(2) On Conservator. Upon an infant or disabled or incapacitated person who has a legally appointed conservator, by delivering a copy of the summons and petition to the conservator as provided in Rule 54.13(b)(1).

 

(3) On Corporation, Partnership or Other Unincorporated Association. Upon a domestic or foreign corporation or upon a partnership or other unincorporated association, when it may be sued as such, by delivering a copy of the summons and petition to an officer, partner, or managing or general agent, or by leaving the copies at any business office of the defendant with the person having charge thereof or by delivering copies to its registered agent or to any other agent authorized by appointment or required by law to receive service of process.

 

(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.

 

(c) Acknowledgment of Service. When a defendant shall acknowledge in writing, endorsed on the process, signed by the defendant's own proper signature, the service of such process, and waive the necessity of the service thereof by an officer, such acknowledgment shall be deemed as valid as service in the manner provided by law. Acknowledgment of service by mail may also be made as provided in Rule 54.16.

 

(d) Where Process May Be Served in This State. All process issued for service within this state may be served anywhere within the state and may be forwarded to the sheriff of any county for the purpose of service.

 

54.14. Personal Service Outside the State

 

 

(a) By Whom Made. Personal service outside the state shall be made:

 

(1) By a person authorized by law to serve process in civil actions within the state or territory where such service is made, or by the deputy of a person so authorized;

 

(2) By a person appointed by the court in which the action is pending.

 

(b) Upon Whom. The service of process shall be made as provided in Rule 54.13(b).

 

(c) Acknowledgment. Acknowledgment of service by mail may be made as provided in Rule 54.16.

 

54.15. Service on Secretary of State, Secretary of Public Service Commission and Director of Insurance

 

 

(a) Service of Process. Service of process on the secretary of state, secretary of the public service commission or director of insurance shall be made by serving a copy of the summons and petition, together with any remittance fixed by statute, on the respective official. The service of process shall be made as provided in Rule 54.13 or Rule 54.16.

 

(b) Notice to Defendant. The secretary of state, secretary of the public service commission or director of the department of insurance shall forthwith mail to the defendant at the defendant's last known address a copy of such service and a copy of the summons and petition. The mailing shall be by registered or certified mail requesting a return receipt signed by addressee only.

 

(c) Form of Notice. The notice provided for in Rule 54.15(b) shall be in substantially the following form:

 

To (here insert the name of the defendant and defendant's last known address.) You will take notice that original process in the suit against you, a copy of which is attached hereto, was duly served upon you at Jefferson City, Missouri, by serving the same on (here insert the name of the public official.) Dated at __________, Missouri, this _____ day of _____, 19____

 

_______________________________________________________________

(appropriate official)

 

54.16. Acknowledgment of Service By Mail

 

 

Service of the summons and petition upon a resident or nonresident defendant of any class referred to in Rule 54.13(b)(1)(2) or (3) may be made by mailing a copy of the summons and petition by first class mail, postage prepaid, to the person to be served, together with two copies of a notice and acknowledgment conforming substantially to Civil Procedure Form 4B or Civil Procedure Form 4C and a return envelope, postage prepaid addressed to the sender. If no acknowledgment of service under this Rule 54.16 is completed and returned to the sender, service of the summons and petition shall be made as otherwise provided by statute or rule. Unless good cause is shown for not doing so, the court shall order the payment of costs of service on the person served if such person does not complete and return within thirty days after mailing, the notice and acknowledgment of receipt of summons.

 

54.17. Repealed by order dated June 1, 1993, eff. Jan. 1, 1994

 

 

54.18. Service Authorized by Statute

 

 

Where a statute contains provisions for a method of service, service may be made pursuant to the provisions of the statute or as provided by these Rules.

 

54.19. Provisions No Bar to Personal Service in State

 

 

The foregoing provisions relative to service of process in suits against non-residents do not prevent personal service in the state upon a non-resident.

 

54.20. Proof of Service

 

 

(a) Within the State--Officer's Returns--Affidavits of Service.

 

(1) Every officer to whom summons or other process shall be delivered for service within the state shall make return thereof in writing as to the time, place and manner of service of such writ and shall sign such return.

 

(2) If service of such process is made by a person other than an officer such person shall make affidavit as to the time, place and manner of service thereof.

 

(3) If service of process is made pursuant to Rule 54.16, the defendant's acknowledgment, executed pursuant to Rule 54.16, shall constitute proof of service.

 

(b) Outside the State--Officer's Returns--Affidavits of Service.

 

(1) Every officer to whom summons or other process shall be delivered for service outside the state shall make an affidavit before the clerk or judge of the court of which affiant is an officer or other person authorized to administer oaths in such state stating the time, place and manner of such service, the official character of the affiant, and the affiant's authority to serve process in civil actions within the state or territory where such service was made. The court may consider the affidavit or any other evidence in determining whether service has been properly made.

 

(2) If service of such process is made by a person appointed by the court in which the action is pending such person shall file an affidavit stating the time, place and manner of such service. The court may consider the affidavit or any other evidence in determining whether service has been properly made.

 

(3) If service of process is made outside the state pursuant to Rule 54.16, the defendant's acknowledgment, executed pursuant to Rule 54.16, shall constitute proof of service of process.

 

(c) Certificate of Secretary of State, Secretary of Public Service Commission and Director of Insurance--Mailing of Notice. The notice specified in Rule 54.15 shall be proved by the affidavit of the official mailing such notice. The affidavit shall be endorsed upon or attached to the original papers to which it relates and it, together with the return registered or certified mail receipt, shall be forthwith filed in the court in which the action is pending.

 

(d) Clerk's Certificate--Service by Mail. Service by mail pursuant to Rule 54.12 shall be proved by the certificate of the clerk that a copy of the summons and petition has been mailed and by the filing of the return registered or certified receipt.

 

(e) Affidavit--Certificate--Service by Publication. Service by publication shall be proved by an affidavit showing the dates upon which and the newspaper in which the notice was published. A copy of the notice shall be attached to the affidavit which shall be filed. The clerk's certificate that a copy of the notice upon order for service by publication and a copy of the petition were mailed to defendant at the address stated in the plaintiff's petition or in the affidavit for order of publication and the date of the mailing shall likewise be filed.

 

(f) Refusal to Receive Service. When the person to be served or an agent authorized to accept service of process for the person to be served, either within or outside the state, shall refuse to receive copies thereof, the offer of the server to deliver copies thereof, and such refusal, when these facts are shown on the server's return, shall constitute proof of service. When service is made by mail pursuant to Rule 54.12, a notation made pursuant to applicable United States Postal Service regulation that the certified or registered mail has been refused shall constitute proof of service.

 

54.21. Time for Service and Return

 

 

The officer or other person receiving a summons or other process shall serve the same and make return of service promptly. If the process cannot be served it shall be returned to the court within thirty days after the date of issue with a statement of the reason for the failure to serve the same; provided, however, that the time for service thereof may be extended up to ninety days from the date of issue by order of the court.

 

54.22. Court May Allow Process, Return or Proof of Service to be Amended, When

 

 

(a) The court may in its discretion allow any process, return or proof of service thereof to be filed or amended at any time unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued. The return of service shall be considered prima facie evidence of the facts recited therein.

 

(b) The party served, or the sheriff, sheriff's deputies and sureties or any other person making the service shall be permitted to show the true facts of service and impeach the return when the return does not comport with the facts as found by the court. If the court finds that the facts recited in the return are not true, the court may set aside a judgment if one has been entered or may modify the same in whole or in part as justice may require or take such further action it deems proper.

 

Rule 55. Pleadings and Motions (Refs & Annos)

 

 

55.01. Pleading Required

 

 

There shall be a petition and an answer; and there shall be a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party petition, if a person who was not an original party is summoned under the provisions of Rule 52.11; and there shall be a third-party answer, if a third-party petition is served. A defense consisting of an affirmative avoidance to any matter alleged in a preceding pleading must be pleaded. No other pleading shall be required except as ordered by the court.

 

55.02. Caption of Pleading--What Set Forth

 

 

Every pleading shall contain a caption setting forth the name of the court, the title of the civil action, the file number and a designation as in Rule 55.01. In the petition, the title of the civil action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties.

 

55.03. Signing of Pleadings, Motions and Other Papers; Appearance and Withdrawal of Counsel; 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 by the self-represented party. An attorney who assists in the preparation of a pleading, motion, or other filing for an otherwise self-represented person is not required to sign the document. Every filing made electronically must add a certificate verifying that the attorney or party signed the original. 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.

 

Below the signature shall be printed the signer's name, Missouri bar number (if applicable), address, 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.

 

(b) Appearance and Withdrawal of Counsel. An attorney who appears in a case shall be considered as representing the parties for whom the attorney appears for all purposes in that case, except as otherwise provided in a written entry of limited appearance. If an entry of limited appearance is filed, service shall be made as provided in Rule 43.01(b).

 

An attorney appears in a case by:

 

(1) Participating in any proceeding as counsel for any party unless limited by an entry of limited appearance;

 

(2) Signing the attorney's name on any pleading, motion, or other filing; however, if an attorney is identified on a pleading, motion, or other filing as having only assisted in the preparation of the pleading, motion, or other filing, the attorney has not entered an appearance in the matter; or

 

(3) Filing a written entry of appearance. A written entry of appearance may be limited by its terms to a particular proceeding or matter. If so limited, the written entry of appearance shall be titled “Entry of Limited Appearance” and shall state the physical and mailing addresses, telephone number, facsimile number, and electronic mail address, if any, of each person for whom the attorney is making a limited appearance.

 

An attorney may withdraw when the matter is completed or with leave of court. An attorney who has filed an entry of limited appearance withdraws when the attorney has fulfilled the duties set forth in the entry of limited appearance and has filed a withdrawal memorandum titled “Termination of Limited Appearance” that states that the attorney has fulfilled such duties.

 

(c) Representation to the Court. By presenting and maintaining a claim, defense, request, demand, objection, contention, or argument in a pleading, motion, or other paper filed with or submitted to the court, an attorney or party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that:

 

(1) The claim, defense, request, demand, objection, contention, or argument is not presented or maintained for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

 

(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

 

(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. An attorney providing drafting assistance may rely on the otherwise self-represented person's representation of facts, unless the attorney knows that such representations are false; and

 

(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

 

(d) Sanctions. If after notice and a reasonable opportunity to respond the court finds that Rule 55.03(c) has been violated, the court, subject to the conditions below, may impose an appropriate sanction upon the lawyers, law firms, or parties that have committed or are responsible for the violation.

 

(1) How Initiated.

 

(A) By Motion. A motion for sanctions under this Rule 55.03 shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate Rule 55.03(c). The motion shall be served as provided in Rule 43.01. The motion shall not be filed with or presented to the court unless, within 30 days after service of the motion, the challenged claim, defense, request, demand, objection, contention, or argument is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in representing or opposing the motion. Absent exceptional circumstances a law firm shall be held jointly responsible for violations committed by its partners, associates, or employees.

 

(B) On Court's Initiative. On its own initiative the court may enter an order describing the specific conduct that appears to violate Rule 55.03(c) and directing a lawyer, law firm or party to withdraw or correct the questioned claim, defense, request, demand, objection, contention or argument or to show cause why it has not violated the rule with respect thereto.

 

(2) Nature of Sanction--Limitations. A sanction imposed for violation of this Rule 55.03 shall be limited to that which is sufficient to deter repetition of the conduct or comparable conduct by others similarly situated. Subject to the limitations in Rule 55.03(d)(1), the sanction may consist of or include directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorney's fees and other expenses incurred as a direct result of the violation.

 

(A) Monetary sanctions shall not be awarded against a represented party for a violation of Rule 55.03(c)(2).

 

(B) Monetary sanctions shall not be awarded on the court's initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party that is, or whose lawyers are, to be sanctioned.

 

(3) Order. When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this Rule 55.03 and explain the basis for the sanction imposed.

 

(e) Inapplicability to Discovery. This Rule 55.03 does not apply to disclosures and discovery requests, responses, objections, and motions that are subject to the provisions of Rules 56 to 61.

 

(f) Sanctions for Conduct in Prior Action. If conduct constituting a violation of Rule 55.03(c) occurs but the civil action is dismissed and if a civil action based upon or including the same claim against the same party is thereafter filed, the court on its own motion or on motion of a party to the first action may impose an appropriate sanction in the second action for the violation of Rule 55.03(c). The sanction shall be imposed in the manner provided by Rule 55.03(d). In determining the sanction to impose, the court shall consider the costs and expenses incurred in the action previously dismissed, including the reasonable attorney's fees incurred in the first action.

 

55.04. Technical Forms Not Required in Pleading

 

 

Each averment of a pleading shall be simple, concise and direct. No technical forms of pleading or motions are required.

 

55.05. Pleading Setting Forth Claims for Relief Shall Contain What

 

 

A pleading that sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim shall contain (1) a short and plain statement of the facts showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which the pleader claims to be entitled. An initial pleading filed in the family court division of the circuit court shall have attached thereto a certificate stating whether any other case involving any party to the action or any child of such party has been filed in the family court division and, if so, the certificate shall identify to the extent known by style and case number every other case in the family court division, whether pending or previously adjudicated, involving any such party or child. If a recovery of money be demanded, the amount shall be stated, except that in actions for damages based upon an alleged tort, no dollar amount shall be included in the demand except to determine the proper jurisdictional authority, but the prayer shall be for such damages as are fair and reasonable. A party may argue at trial that a specific amount of damages should be awarded even though the prayer is for a fair and reasonable amount. Relief in the alternative or of several different types may be demanded.

 

55.06. Joinder of Claims and Remedies

 

 

(a) Joinder of Claims. A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim may join, either as independent or as alternate claims, as many claims, legal or equitable, as the party has against an opposing party.

 

(b) Joinder of Remedies; Fraudulent Conveyances. Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action; but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties. For example, a plaintiff may state a claim for money and a claim to have set aside a conveyance fraudulent as to him, without first having obtained a judgment establishing the claim for money.

 

55.07. Defenses--Form of Denials

 

 

If a responding party has knowledge or information sufficient to form a belief as to the truth of an averment, the party shall admit or deny the specific averment. If the responding party is without knowledge or information sufficient to form a belief as to the truth of a specific averment, the party shall so state, and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a party intends in good faith to deny only a part or a qualification of an averment, the party shall specify so much of it as is true and shall deny only the remainder. A party shall respond to all specific averments as provided in this Rule 55.07 and shall not generally deny all the specific averments.

 

55.08. Affirmative Defenses

 

 

In pleading to a preceding pleading, a party shall set forth all applicable affirmative defenses and avoidances, including but not limited to accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, comparative fault, state of the art as provided by statute, seller in the stream of commerce as provided by statute, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, truth in defamation, waiver, and any other matter constituting an avoidance or affirmative defense. A pleading that sets forth an affirmative defense or avoidance shall contain a short and plain statement of the facts showing that the pleader is entitled to the defense or avoidance. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court may treat the pleadings as if there had been a proper designation.

 

55.09. Failure to Deny, Effect

 

 

Specific averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleadings. Specific averments in a pleading to which no responsive pleading is required shall be taken as denied.

 

55.10. Pleading in Alternative--Consistency

 

 

A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal or equitable grounds.

 

55.11. Averments, How Made

 

 

All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.

 

55.12. Adoption of Statements By Reference--Exhibits

 

 

Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. An exhibit to a pleading is a part thereof for all purposes.

 

55.13. Averments as to Capacity or Authority of Parties to Sue or be Sued

 

 

It shall be sufficient to aver the ultimate fact of the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of a corporation or of an organized association of persons that is made a party. When a person desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, the person shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge. When a party so raises such issue, the burden of proof thereon shall be placed upon the opposite party.

 

55.14. Partnership Deemed Confessed, Unless Denied

 

 

When parties sue or are sued as a partnership, and the names of the partners are set forth in the petition or counterclaim, the existence of the partnership shall be deemed confessed unless it be denied by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge.

 

55.15. Particularity Required in All Averments of Fraud or Mistake

 

 

In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge and any other condition of mind of a person may be averred generally.

 

55.16. Averments and Denial of Conditions Precedent

 

 

In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.

 

55.17. Official Documents or Acts--Form of Pleading

 

 

In pleading an official document or official act it is sufficient to aver that the document was issued or that the act was done in compliance with law.

 

55.18. Judgments and Decisions--Form of Pleading

 

 

In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it.

 

55.19. Special and Punitive Damages

 

 

When items of special damage are claimed, they shall be specifically stated. In actions where exemplary or punitive damages are recoverable, the petition shall state separately the amount of such damages sought to be recovered. In actions for such damages based upon an alleged tort, no dollar amount or figure shall be included in the demand, but the prayer shall be for such damages as are fair and reasonable.

 

55.20. Libel and Slander Averments--Defenses

In an action for libel and slander, it shall not be necessary to state in the petition any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matter out of which the claim arose, but it shall be sufficient to state, generally, that the same was published or spoken concerning the plaintiff; and if such allegation be not controverted in the answer, it shall not be necessary to prove it on the trial; in other cases it shall be necessary. The defendant may, in the answer, allege both the truth of the matter charged as defamatory and any mitigating circumstances admissible in evidence to reduce the amount of damages; and whether the defendant proves the justification or not, the defendant may give in evidence any mitigating circumstances.

 

55.21. Pleading a Private Statute or Right Derived Therefrom, and Judicial Notice of Law of Other States

 

 

(a) Pleading Private Statute or Right--Judicial Notice. In pleading a private statute or a right derived therefrom, it shall be sufficient to refer to such statute by its title and the place where found in the session acts or in the Revised Statutes, and the court shall thereupon take judicial notice thereof.

 

(b) Judicial Notice--Law of Other States. In every action or proceeding wherein the pleading states that the law of another state is relied upon or contains allegations which show that the law of another state must be applied, the courts of this state shall take judicial notice of the public statutes and judicial decisions of said state. The court may inform itself of such laws in such manner as it may deem proper, and may call upon counsel to aid it in obtaining such information.

 

55.22. Pleading Written Instrument

 

 

When a claim or defense is founded upon a written instrument, the same may be pleaded according to legal effect, or may be recited at length in the pleading, or a copy may be attached to the pleading as an exhibit.

 

55.23. Execution of Written Instrument Deemed Confessed--When

 

 

When any claim or defense is founded upon a written instrument and the same shall be set up at length in the pleading or a copy attached thereto as an exhibit, the execution of such instrument shall be deemed confessed unless the party charged to have executed the same shall specifically deny the execution thereof.

 

55.24. Pleadings, How Construed

 

 

All pleadings shall be so construed as to do substantial justice.

 

55.25. Time of Pleading

 

 

(a) Answer--When Filed. A defendant shall file an answer within thirty days after the service of the summons and petition, except where service by mail is had, in which event a defendant shall file an answer within thirty days after the acknowledgment of receipt of summons and petition or return registered or certified mail receipt is filed in the case or within forty-five days after the first publication of notice if neither personal service nor service by mail is had.

 

(b) Answer to Cross-Claim and Reply to Counterclaim and Other Replies--When Filed. If a cross-claim is filed against a party, the party shall file answer thereto within thirty days after the same is filed. A reply shall be filed within thirty days after the filing of the pleading to which it is directed. If a reply is ordered by the court, it shall be filed within twenty days after the entry of the order unless the order otherwise directs.

 

(c) Effect of Filing Motions on Time to Plead. The filing of any motion provided for in Rule 55.27 alters the time fixed for filing any required responsive pleadings as follows, unless a different time is fixed by order of the court: If the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be filed within ten days after notice of the court's action; if the court grants a motion for a more definite statement the responsive pleading shall be filed within ten days after the filing of the more definite statement. In either case the time for filing of the responsive pleading shall be no less than remains of the time which would have been allowed under this Rule if the motion had not been made.

 

(d) Amendments Affecting Parties in Default. When Rule 43.01(a) requires the service of new or amended pleadings upon a party in default, the party in default shall appear and defend within the same time as is required after the original service of process of like character.

 

55.26. Motions, Form of

 

 

(a) Written Motion--When Required. An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.

 

(b) Other Provisions Applicable. The provisions applicable to captions, signing and other matters of form of pleading apply to all motions and other papers provided for by these Rules.

 

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.

 

(b) Motion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, 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, and all parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 74.04.

 

(c) Preliminary Hearings. The defenses specifically enumerated (1)-(11) in subdivision (a) of this Rule, whether made in a pleading or by motion, and the motion for judgment mentioned in subdivision (b) of this Rule shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial.

 

(d) Motion for More Definite Statement. A party may move for a more definite statement of any matter contained in a pleading that is not averred with sufficient definiteness or particularity to enable the party properly to prepare responsive pleadings or to prepare generally for trial when a responsive pleading is not required. If the motion is granted and the order of the court is not obeyed within ten days after notice of the order, or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.

 

(e) Motion to Strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within thirty days after the service of the pleading upon any party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

 

(f) Consolidation of Defenses in Motion. A party who makes a motion under this Rule 55.27 may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this Rule 55.27 but omits therefrom any defense or objection then available that this Rule 55.27 permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in Rule 55.27(g)(2) on any of the grounds there stated.

 

(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.

 

(2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 52.04, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 55.01, or by motion for judgment on the pleadings, or at the trial on the merits, or on appeal.

 

(3) Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.

 

55.28. Evidence on Motions

 

 

When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

 

55.29. Place of Hearing and Acts in Chambers

 

 

All trials upon the merits shall be conducted in open court and so far as convenient in a regular courtroom. All other acts or proceedings may be done or conducted by a judge in chambers, without the attendance of the clerk or other court officials, and at any place either within or without the county where the action is pending, but no trial or evidentiary hearing, other than an authorized ex parte hearing, shall be conducted outside the county where the case is pending without the consent of all parties affected thereby.

 

55.30. Times and Places for Hearing Motions to be Established--Submission on Written Statements Without Oral Hearing

 

 

(a) Times and Places. Unless local conditions make it impracticable, each trial court shall establish regular times and places, at intervals sufficiently frequent for the prompt dispatch of business, at which motions requiring notice and hearing may be heard and disposed of; but the court at any time or place and on such notice, if any, as it considers reasonable may make orders for the advancement, conduct and hearing of motions.

 

(b) Use of Telephone Conference Call--Oral Hearing. The court may hear oral argument on any motion by telephone conference call. The court may direct which party or parties shall pay the cost of the conference call.

 

(c) Submission Without Oral Argument. To expedite its business, the court may make provision by rule or order for the submission and determination of motions without oral hearing upon brief written statements of reasons in support and in opposition.

 

55.31. Objection That No Demand Has Been Made Not Available, When

 

 

A party cannot object that no demand for the subject matter of a civil action was made prior to its institution unless it is expressly set up by way of defense in the answer or reply and is also accompanied with a tender of the amount or thing that is due; in which case, if the plaintiff will further prosecute the civil action and shall not recover a greater sum or more than is tendered, the plaintiff shall pay all costs. This provision is applicable as well to actions for property as for money; when property is tendered the damages for its detention, if any, shall also be tendered.

 

55.32. Counterclaim and Cross-Claim

 

 

(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim that at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if:

 

(1) At the time the action was commenced the claim was the subject of another pending action;

 

(2) The opposing party brought suit upon the claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 55.32; or

 

(3) The opposing party brought suit for the purpose of obtaining court approval of a settlement when such approval is required by statute.

 

(b) Permissive Counterclaims. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim.

 

(c) Counterclaim Exceeding Opposing Claim. A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party.

 

(d) Counterclaim Maturing or Acquired After Pleading. A claim that either matured or was acquired by the pleader after serving the pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading.

 

(e) Omitted Counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect or when justice requires, the counterclaim may be set up by amendment by leave of court.

 

(f) Cross-Claim Against Co-Party. A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.

 

(g) Joinder of Additional Parties. Parties other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rules 52.04 and 52.05.

 

(h) Separate Trials; Separate Judgments. If the court orders separate trials as provided in Rule 66.02 judgment on a counter-claim or cross-claim may be rendered even if the claims of the opposing party have been dismissed or otherwise disposed of.

 

55.33. Amended and Supplemental Pleadings

 

 

(a) Amendments. A pleading may be amended once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the pleading may be amended at any time within thirty days after it is served. Otherwise, the pleading may be amended only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within ten days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

 

(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would cause prejudice in maintaining the action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

 

(c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and within the period provided by law for commencing the action against the party and serving notice of the action, the party to be brought in by amendment: (1) has received such notice of the institution of the action as will not prejudice the party in maintaining the party's defense on the merits and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

 

(d) Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit service of a supplemental pleading setting forth transactions or occurrences or events that have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.

 

55.34. Remand of Case Removed to Federal Court

 

 

(a) If a case removed to federal court is remanded to a court of this state, the date of the remand order is deemed the date of service for determining when a pleading shall be filed or an action taken.

 

(b) Within thirty days after the date of the order of remand, the plaintiff shall file a list of all documents filed in the federal court that are to be made a part of the state court file and shall provide a copy of each such document to the court. Within forty days after the date of the order of remand, any other party shall file a list of any other documents filed in the federal court that are to be made a part of the state court file and shall provide a copy of each such document to the court.

 

(c) Any discovery that occurred in the federal court action is deemed to have occurred in the state court action.

 

Rule 56. General Provisions Governing Discovery (Refs & Annos)

 

 

56.01. General Provisions Governing Discovery

 

 

(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission.

 

(b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

 

(1) In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter.

 

It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

 

The party seeking discovery shall bear the burden of establishing relevance.

 

(2) Insurance Agreements. A party may obtain discovery of the existence and contents, including production of the policy and declaration page, of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment that may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this Rule 56.01(b)(2), an application for insurance shall not be treated as part of an insurance agreement.

 

(3) Trial Preparation: Materials. Subject to the provisions of Rule 56.01(b)(4), a party may obtain discovery of documents and tangible things otherwise discoverable under Rule 56.01(b)(1) and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative, including an attorney, consultant, surety, indemnitor, insurer, or agent, only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and that the adverse party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

 

A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. For purposes of this paragraph, a statement previously made is: (a) a written statement signed or otherwise adopted or approved by the person making it, or (b) a stenographic, mechanical, electrical, audio, video, motion picture or other recording, or a transcription thereof, of the party or of a statement made by the party and contemporaneously recorded.

 

(4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of Rule 56.01(b)(1) and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

 

(a) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial by providing such expert's name, address, occupation, place of employment and qualifications to give an opinion, or if such information is available on the expert's curriculum vitae, such curriculum vitae may be attached to the interrogatory answers as a full response to such interrogatory, and to state the general nature of the subject matter on which the expert is expected to testify, and the expert's hourly deposition fee.

 

(b) A party may discover by deposition the facts and opinions to which the expert is expected to testify. Unless manifest injustice would result, the court shall require that the party seeking discovery from an expert pay the expert a reasonable hourly fee for the time such expert is deposed.

 

(5) Trial Preparations: Non-retained Experts. A party, through interrogatories, may require any other party to identify each non-retained expert witness, including a party, whom the other party expects to call at trial who may provide expert witness opinion testimony by providing the expert's name, address, and field of expertise. For the purpose of this Rule 56.01(b)(5), an expert witness is a witness qualified as an expert by knowledge, experience, training, or education giving testimony relative to scientific, technical or other specialized knowledge that will assist the trier of fact to understand the evidence. Discovery of the facts known and opinions held by such an expert shall be discoverable in the same manner as for lay witnesses.

 

(6) Approved Interrogatories and Request for Production. A circuit court by local court rule may promulgate “approved” interrogatories and requests for production for use in specified types of litigation. Each such approved interrogatory and request for production submitted to a party shall be denominated as having been approved by reference to the local court rule and paragraph number containing the interrogatory or request for production.

 

(c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

 

(1) that the discovery not be had;

 

(2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place;

 

(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

 

(4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;

 

(5) that discovery be conducted with no one present except persons designated by the court;

 

(6) that a deposition after being sealed be opened only by order of the court;

 

(7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;

 

(8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

 

If a motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Rule 61.01 apply to the award of expenses incurred in relation to the motion.

 

(d) Sequence and Timing of Discovery. Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery.

 

(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.

 

(f) Stipulations Regarding Discovery Procedure. Unless the court orders otherwise, the parties may by written stipulation (1) provide that depositions may be taken before any person at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions, and (2) modify the procedures provided by these Rules for other methods of discovery. Any stipulation under subdivision (2) shall be filed.

 

Rule 57. Interrogatories and Depositions (Refs & Annos)

 

 

57.01. Interrogatories to Parties

 

 

(a) Scope. Any party may serve upon any other party written interrogatories. Interrogatories may relate to any matter that can be inquired into under Rule 56.01. An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time.

 

(b) Issuance.

 

(1) Form. Interrogatories shall be in consecutively numbered paragraphs. The title shall identify the party to whom they are directed and state the number of the set of interrogatories directed to that party.

 

(2) When Interrogatories May be Served. Without leave of court, interrogatories may be served on:

 

(A) A plaintiff after commencement of the action, and

 

(B) Any other party with or after the party was served with process, entered an appearance, or filed a pleading.

 

(3) Service. Copies of the interrogatories shall be served on all parties not in default. The party issuing the interrogatories shall also provide each answering party an electronic copy, in a commonly used medium such as a diskette, CD-ROM or as an e-mail attachment, in a format that can be read by most commonly used word processing programs, such as Word for Windows or WordPerfect 5.x or higher. In addition to the information normally in a certificate of service, the certificate of service shall also state:

 

(A) The name of each party who is to respond to the interrogatories;

 

(B) The number of the set of interrogatories,

 

(C) The format of the electronic copy and the medium used to transmit the electronic copy to the responding party.

 

At the time of service, a certificate of service, but not the interrogatories, shall be filed with the court as provided in Rule 57.01(d).

 

(c) Response. The interrogatories shall be answered by each party to whom they are directed. If they are directed to a public or private corporation, limited liability company, partnership, association or governmental agency, they shall be answered by an officer or agent. The party answering the interrogatories shall furnish such information as is available to the party.

 

(1) When the Response is Due. Responses shall be served within 30 days after the service of the interrogatories. A defendant, however, shall not be required to respond to interrogatories before the expiration of 45 days after the earlier of:

 

(A) The date the defendant enters an appearance, or

 

(B) The date the defendant is served with process.

 

The court may allow a shorter or longer time.

 

(2) Form. The title of the response shall identify the responding party and the number of the set of interrogatories. The response to the interrogatories shall quote each interrogatory, including its original paragraph number, and immediately thereunder state the answer or all reasons for not completely answering the interrogatory, including privileges, the work product doctrine and objections.

 

(3) Objections and Privileges. If information is withheld because of an objection, then each reason for the objection shall be stated. If a privilege or the work product doctrine is asserted as a reason for withholding information, then without revealing the protected information, the objecting party shall state information that will permit others to assess the applicability of the privilege or work product doctrine.

 

(4) Option to Produce Business Records. If the answer to an interrogatory may be derived or ascertained from:

 

(A) The business records of the party upon whom the interrogatory has been served, or

 

(B) An examination, audit or inspection of such business records, or

 

(C) A compilation, abstract or summary based thereon, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries.

 

(5) Signing. Answers shall be signed under oath by the person making them. Objections shall be signed by the attorney making them or by the self-represented party.

 

(6) Service. The party to whom the interrogatories were directed shall serve a signed original of the answers and objections, if any, on the party that issued the interrogatories and a copy on all parties not in default. The certificate of service shall state the name of the party who issued the interrogatories and the number of the set of interrogatories.

 

At the time of service, a certificate of service, but not the response, shall be filed with the court as provided in Rule 57.01(d).

 

(d) Filing. Interrogatories and answers under this Rule 57.01 shall not be filed with the court except upon court order or contemporaneously with a motion placing the interrogatories in issue. However, both when the interrogatories and answers are served, the party serving them shall file with the court a certificate of service.

 

The certificate shall show the caption of the case, the name of the party served, the date and manner of service, the designation of the document, e.g. , first interrogatories or answers to second interrogatories, and the signature of the serving party or attorney. The answers bearing the original signature of the party answering the interrogatories shall be served on the party submitting the interrogatories, who shall be the custodian thereof until the entire case is finally disposed.

 

Copies of interrogatory answers may be used in all court proceedings to the same extent the original answers may be used.

 

(e) Enforcement. The party submitting the interrogatory may move for an order under Rule 61.01(b) with respect to any objection to or other failure to answer an interrogatory.

 

(f) Use at Trial. Interrogatory answers may be used to the extent permitted by the rules of evidence.

 

57.02. Depositions Before Action or Pending Appeal

 

 

(a) Before Action.

 

(1) Petition. A person who desires to perpetuate testimony of any person regarding any matter that may be cognizable in any court of Missouri may file a verified petition in the circuit court in the county of the residence of any expected adverse party. The petition shall be captioned in the name of the petitioner and shall show: (1) that the petitioner expects to be a party to an action cognizable in a court of Missouri but is presently unable to bring it or cause it to be brought, (2) the subject matter of the expected action and the petitioner's interest therein, (3) the facts desired to be established by the proposed testimony and the reasons for desiring to perpetuate it, (4) the names or a description of the persons expected to be adverse parties and their addresses so far as known, and (5) the names and addresses of the persons to be examined and the substance of the testimony that is expected to be elicited from each.

 

The petitioner shall ask for an order authorizing the taking of the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.

 

(2) Notice and Service. The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least thirty days before the date of hearing, the notice shall be served either within or without the state in the manner provided for service of summons; but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court may make such order as is just for service by publication or otherwise and shall appoint, for persons not personally served with a summons in this state, an attorney who shall represent them and, in case they are not otherwise represented, shall cross-examine the deponent. If any expected adverse party is a minor or incompetent the provisions of Rule 52.02 apply.

 

(3) Order and Examination. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written questions. The depositions may then be taken in accordance with these Rules; and the court may make orders of the kind provided for by Rules 58.01 and 60.01. For the purpose of applying these Rules to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be considered as referring to the court in which the petition for such deposition was filed.

 

(4) Use of Deposition. If a deposition to perpetuate testimony is taken under these Rules, it may be used in any action involving the same subject matter subsequently brought in a court of Missouri, in accordance with the provisions of Rule 57.07.

 

(b) Pending Appeal. If an appeal has been taken from a judgment of a circuit court or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the circuit court. In such case, the party who desires to perpetuate the testimony may make a motion in the circuit court for leave to take the depositions, upon the same notice and service thereof as if the action were pending in that court. The motion shall show (1) the names and addresses of persons to be examined and the substance of the testimony expected to be elicited from each and (2) the reasons for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the deposition to be taken and may make orders of the character provided for in Rule 58.01 and Rule 60.01, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these rules for depositions taken in actions pending in that court.

 

(c) Perpetuation by Action. This Rule does not limit the power of a court to entertain an action to perpetuate testimony.

 

57.03. Depositions Upon Oral Examination

 

 

(a) When Depositions may be Taken. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of 30 days after service of the summons and petition upon any defendant, except that leave is not required if a defendant has served a notice of taking deposition or otherwise sought discovery. The attendance of witnesses may be compelled by subpoena as provided in Rule 57.09. The attendance of a party is compelled by notice as provided in subdivision (b) of this Rule. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court describes.

 

(b) Notice of Examination: General Requirements; Special Notice; Production of Documents and Things; Deposition of Organization.

 

(1) A party desiring to take the deposition of any person upon oral examination shall give not less than seven days notice in writing to every other party to the action and to a non-party deponent.

 

The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known. If the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs shall be stated.

 

If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice.

 

A party may attend a deposition by telephone.

 

(2) The court may for cause shown enlarge or shorten the time for taking the deposition.

 

(3) The notice to a party deponent may be accompanied by a request made in compliance with Rule 58.01 for the production of documents and tangible things at the taking of the deposition. The procedure of Rule 58.01 shall apply to the request.

 

(4) A party may in the notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a nonparty organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This Rule 57.03(b)(4) does not preclude taking a deposition by any other procedure authorized in these rules.

 

(5) Repealed effective Jan. 1, 2007.

 

(c) Non-stenographic Recording--Video Tape. Depositions may be recorded by the use of video tape or similar methods. The recording of the deposition by video tape shall be in addition to a usual recording and transcription method unless the parties otherwise agree.

 

(1) If the deposition is to be recorded by video tape, every notice or subpoena for the taking of the deposition shall state that it is to be video taped and shall state the name, address and employer of the recording technician. If a party upon whom notice for the taking of a deposition has been served desires to have the testimony additionally recorded by other than stenographic means, that party shall serve notice on the opposing party and the witness that the proceedings are to be video taped. Such notice must be served not less than three days prior to the date designated in the original notice for the taking of the depositions and shall state the name, address and employer of the recording technician.

 

(2) Where the deposition has been recorded only by video tape and if the witness and parties do not waive signature, a written transcription of the audio shall be prepared to be submitted to the witness for signature as provided in Rule 57.03(f).

 

(3) The witness being deposed shall be sworn as a witness on camera by an authorized person.

 

(4) More than one camera may be used, either in sequence or simultaneously.

 

(5) The attorney for the party requesting the video taping of the deposition shall take custody of and be responsible for the safeguarding of the video tape and shall, upon request, permit the viewing thereof by the opposing party and if requested, shall provide a copy of the video tape at the cost of the requesting party.

 

(6) Unless otherwise stipulated to by the parties, the expense of video taping is to be borne by the party utilizing it and shall not be taxed as costs.

 

(d) Record of Examination; Oath; Objections. The officer before whom the deposition is to be taken shall put the witness on oath or affirmation and shall personally, or by someone acting under the officer's direction and in the officer's presence, record the testimony of the witness. The testimony shall be taken stenographically or recorded by any other means ordered in accordance with Rule 57.03(c). If requested by one of the parties, the testimony shall be transcribed.

 

All objections made at the time of the examination to the qualifications of the officer taking the deposition, to the manner of taking it, to the evidence presented, to the conduct of any party, or any other objection to the proceedings shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition, and that party shall transmit them to the officer before whom the deposition is to be taken, who shall propound them to the witness, and the questions and answers thereto shall be recorded.

 

(e) Motion to Terminate or Limit Examination. At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or a court having general jurisdiction in the place where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 56.01(c). If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order. The provisions of Rule 61.01(g) apply to the award of expenses incurred in relation to the motion.

 

(f) Submission to Witness; Changes; Signing. When the testimony is fully transcribed, the deposition shall be submitted by the officer to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them; provided, however, that the answers or responses as originally given, together with the changes made and reasons given therefor, shall be considered as a part of the deposition. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found, or is dead or refuses to sign. If the deposition is not signed by the witness, the officer shall sign it and state on the record the fact of the waiver or of the illness, or death or absence of the witness or the fact of the refusal to sign together with the reasons, if any, given therefor; and the deposition may then be used as fully as though signed, unless, on a motion to suppress, the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.

 

(g) Certification, Delivery, and Filing; Exhibits; Copies.

 

(1) Certification and Delivery. The officer shall certify on the deposition that the witness was duly sworn by the officer and that the deposition is a true record of the testimony given by the witness. Upon payment of reasonable charges therefor, the officer shall deliver the deposition to the party who requested that the testimony be transcribed.

 

(2) Filing.

 

(a) By the Officer. Upon delivery of a deposition, the officer shall file with the court a certificate showing the caption of the case, the name of the deponent, the date the deposition was taken, the name and address of the person having custody of the original deposition, and whether the charges have been paid. The officer shall not file a copy of the deposition with the court except upon court order.

 

(b) By a Party. A party shall not file a deposition with the court except upon specific court order or contemporaneously with a motion placing the deposition or a part thereof in issue. The court may enact local court rules requiring a party who intends to use a deposition at a hearing or trial to file that deposition with the court on or prior to the date of the hearing or trial.

 

(c) Return of Deposition. At the conclusion of the hearing or trial the deposition that has been filed or delivered to the court shall be returned to the party that filed or delivered the deposition.

 

(d) Retention of Deposition. The original deposition shall be maintained until the case is finally disposed.

 

(3) Exhibits. Documents and things produced for inspection during the examination of the witness shall, upon the request of a party, be marked for identification and annexed to and returned with the deposition and may be inspected and copied by any party, except that (A) the person producing the materials may substitute copies to be marked for identification if the person affords to all parties fair opportunity to verify the copies by comparison with the originals and (B) if the person producing the materials requests their return, the officer shall mark them, give each party an opportunity to inspect and copy them, and return them to the person producing them, and the materials may then be used in the same manner as if annexed to and returned with the deposition. Any party may move for an order that the original be annexed to and returned with the deposition to the court pending final disposition of the civil action.

 

(4) Copies. Upon request and payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to the deponent.

 

(h) Failure to Attend or to Serve Subpoena; Expenses.

 

(1) If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving notice to pay to such other party the reasonable expenses incurred by that other party and that other party's attorney in attending, including reasonable attorney's fees.

 

(2) If a witness fails to appear for a deposition and the party giving the notice of the taking of the deposition has not complied with these rules to compel the attendance of the witness, the court may order the party giving the notice to pay to any party attending in person or by attorney the reasonable expenses incurred by that other party and that other party's attorney in attending, including reasonable attorney's fees.

 

57.04. Depositions Upon Written Questions

 

 

(a) Serving Questions; Notice. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by the use of subpoena as provided in Rule 57.09. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.

 

A party desiring to take a deposition upon written questions shall serve them upon every other party with a notice stating: (1) the name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs and (2) the name or descriptive title and address of the officer before whom the deposition is to be taken. A deposition upon written questions may be taken of a public or private corporation or a partnership or association or governmental agency in accordance with the provisions of Rule 57.03(b)(4).

 

Within thirty days after the notice and written questions are served, a party may serve cross questions upon all other parties. Within ten days after being served with cross questions, a party may serve redirect questions upon all other parties. Within ten days after being served with redirect questions, a party may serve recross questions upon all other parties. The court may for cause shown enlarge or shorten the time.

 

(b) Officer to Take Responses and Prepare Record. A copy of the notice and copies of all questions served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by Rule 57.03(d), (f), and (g), to take the testimony of the witness in response to the questions and to prepare, certify, and deliver the deposition, attaching thereto the copy of the notice and the questions.

 

(c) Notice of Delivery. When the deposition is delivered, the party taking it promptly shall give notice thereof to all other parties.

 

57.05. Persons Before Whom Depositions May Be Taken

 

 

(a) In Missouri. Within the State of Missouri, depositions shall be taken before an officer authorized by the laws of this State to administer oaths, or before a person appointed by the court in which the action is pending. A person so appointed has power to administer oaths and take testimony.

 

(b) Elsewhere in the United States. Within other States of the United States or within a territory or insular possession subject to the dominion of the United States, depositions shall be taken before a person authorized to administer oaths by the laws of the United States or of the place where the examination is held, or before a person appointed by the court in which the action is pending. A person so appointed has power to administer oaths and take testimony.

 

(c) In Foreign Countries. In a foreign country, a deposition may be taken:

 

(1) On notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of the United States, or

 

(2) Before a person commissioned by the court, and a person so commissioned has the power by virtue of his commission to administer any necessary oath and take testimony, or

 

(3) Pursuant to a Letter Rogatory. A commission or a letter rogatory shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter rogatory that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter rogatory may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter rogatory may be addressed “To the Appropriate Authority in [here name the country]”. Evidence obtained in response to a letter rogatory need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions taken within the United States under these Rules.

 

(d) Disqualification for Interest. No deposition shall be taken before a person who is a relative or employee or attorney or counsel of any of the parties, or is a relative or employee of such attorney or counsel, or is financially interested in the action.

 

57.06. Presiding Officer for Deposition

 

 

A master may be appointed to preside over the taking of a deposition pursuant to Rule 68.01(h).

 

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 party thereof is made with reasonable promptness after such defect is, or with due diligence might have been, discovered.

 

57.08. Depositions for Use in Foreign Jurisdictions

 

 

Whenever the deposition of any person is to be taken in this state pursuant to the laws of another state or of the United States or of another country for use in proceedings there, the circuit court in the county where the deponent is found may, upon ex parte application, make an order directing issuance of a subpoena as provided in Rule 57.09, in aid of the taking of the deposition, and having due regard for the laws and rules of such foreign jurisdiction, may make such orders as could be made if the deposition were intended for use in this jurisdiction.

 

57.09. Subpoena for Taking Deposition

 

 

(a) For Attendance of Witnesses; Form; Issuance. Every subpoena shall:

 

(1) Be issued by the officer or person before whom depositions may be taken as designated in Rule 57.05 or 57.06 or by the clerk of the court in which the civil action is pending;

 

(2) State the name of the court and the title of the civil action; and

 

(3) Command each person to whom it is directed to attend and give testimony at a time and place therein specified.

 

(b) For Production of Documentary Evidence. In conjunction with a deposition properly noticed under Rule 57.03, a subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein.

 

The court may:

 

(1) Quash or modify the subpoena if it is unreasonable or oppressive, or

 

(2) Require the party seeking discovery to advance the reasonable cost of producing the books, papers, documents, or tangible things.

 

(c) Protection of Persons Subject to Subpoenas. A party shall serve a subpoena for the production of documentary evidence on a non-party not less than seven days before the time specified for compliance.

 

A party or attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a non-party subject to the subpoena.

 

A non-party commanded to produce and permit inspection and copying may serve the party seeking discovery with a written objection to inspection and copying of any or all of the designated materials. The objection shall state specific reasons why the subpoena should be quashed or modified.

 

The objection shall be served on all parties to the action within ten days after service of the subpoena or before the time specified for compliance, whichever is earlier.

 

If a timely and specific objection is made, the party seeking discovery shall not be entitled to inspect and copy the materials except pursuant to an order of the court.

 

Upon notice to the non-party commanded to produce, the party seeking discovery may move at any time for an order to compel production.

 

(d) Service. A subpoena may be served by:

 

(1) The sheriff or a sheriff's deputy, or

 

(2) Any other person who is not a party and is not less than eighteen years of age.

 

Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and by tendering to that person the fees and mileage the witness would have been entitled to receive for attending court pursuant to subpoena.

 

(e) Authorization to Issue Subpoena. Proof of service of a notice to take a deposition as provided in Rules 57.03 and 57.04 is sufficient to authorize the issuance of a subpoena for taking a deposition.

 

(f) Contempt. Any person who without adequate excuse fails to obey a subpoena served upon the person may be held in contempt of the court in which the civil action is pending.

 

57.10. Taxing and Certifying Costs

 

 

(a) Costs--How Taxed. The costs of taking depositions shall be taxed in favor of the party paying the same and taxed as other costs in the civil action.

 

(b) Costs--How Certified and Taxed. The costs shall be certified by the person before whom the deposition is taken in the amount provided by law.

 

Rule 58. Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes

 

 

58.01. Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes

 

 

(a) Scope. Any party may serve on any other party a request to:

 

(1) Produce and permit the party making the request, or someone acting on the requesting party's behalf, to inspect and copy any designated documents (including writings, drawings, graphs, charts, photographs, phonograph records, electronic records, and other data compilations from which information can be obtained, translated, if necessary, by the requesting party through detection devices into reasonably usable form) or to inspect and copy, test, or sample any tangible things that constitute or contain matters within the scope of Rule 56.01(b) and that are in the possession, custody or control of the party upon whom the request is served; or

 

(2) Permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, and photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 56.01(b).

 

This Rule 58.01 does not preclude an independent action against a person not a party for production of documents and things and permission to enter upon land.

 

(b) Issuance.

 

(1) Form. In consecutively numbered paragraphs the request shall set forth the items to be inspected, either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place and manner of making the inspection and performing the related acts. The title shall identify the party to whom the requests are directed and state the number of the set of requests directed to that party.

 

(2) When Requests May be Served. Without leave of court, requests may be served on:

 

(A) A plaintiff after commencement of the action, and

 

(B) Any other party with or after the party was served with process, entered an appearance, or filed a pleading.

 

(3) Service. Copies of the requests shall be served on all parties not in default. The party issuing the requests shall also provide each responding party an electronic copy in a commonly used medium, such as a diskette, CD-ROM or as an e-mail attachment, in a format that can be read by most commonly used word processing programs, such as Word for Windows or WordPerfect 5.x or higher. In addition to the information normally in a certificate of service, the certificate of service shall also state the:

 

(A) Name of each party who is to respond to the requests;

 

(B) Number of the set of requests,

 

(C) Format of the electronic copy and the medium used to transmit the electronic copy to the responding party.

 

At the time of service, a certificate of service, but not the requests, shall be filed with the court as provided in Rule 58.01(d).

 

(c) Response. The requests shall be answered by each party to whom they are directed.

 

(1) When Response is Due. Responses shall be served within 30 days after the service of the request. A defendant, however, shall not be required to respond to the request before the expiration of 45 days after the earlier of:

 

(A) The date the defendant enters an appearance, or

 

(B) The date the defendant is served with process.

 

The court may allow a shorter or longer time.

 

(2) Form. The title of the response shall identify the responding party and the number of the set of the requests. The response shall quote each request, including its original paragraph number, and immediately thereunder state that the requested items will be produced or the inspection and related activities will be permitted as requested, unless the request is objected to, in which event each reason for objection shall be stated in detail.

 

(3) Objections and Privileges. If information is withheld because of an objection, then each reason for the objection shall be stated. If a privilege or the work product doctrine is asserted as a reason for the objection, then without revealing the protected information, the objecting party shall state information that will permit others to assess the applicability of the privilege or work product doctrine.

 

(4) Method of Production. A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.

 

(5) Signing. The response shall be signed by the attorney or by the party if the party is not represented by an attorney.

 

(6) Service. The party to whom the requests were directed shall serve a signed original of the response and objections, if any, on the party that issued the requests and a copy upon all parties not in default. The certificate of service shall state the name of the party who issued the requests and the number of the set of requests.

 

At the time of service, a certificate of service, but not the response, shall be filed with the court as provided in Rule 58.01(d).

 

(d) Filing. The request and responses thereto shall not be filed with the court except upon court order or contemporaneously with a motion placing the request in issue. However, both when the request and responses are served, the party serving them shall file with the court a certificate of service. The certificate shall show the caption of the case, the name of the party served, the date and manner of service, and the signature of the serving party or attorney. Each party filing a certificate shall maintain a copy of the document that is the subject of the certificate until the case is finally disposed.

 

(e) Enforcement. The party submitting the request may move for an order under Rule 61.01(b) with respect to any objection or other failure to respond to the request or any part thereof or any failure to permit inspection as requested.

 

Rule 59. Admission of Facts and of Genuineness of Documents

 

 

59.01. Request for and Effect of Admissions

 

 

(a) Scope. After commencement of an action, a party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 56. 01(b) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request.

 

A failure to timely respond to requests for admissions in compliance with this Rule 59.01 shall result in each matter being admitted.

 

The request for admissions shall have included at the beginning of said request the following language in all capital letters, boldface type, and a character size that is as large as the largest character size of any other material in the request:

 

A FAILURE TO TIMELY RESPOND TO REQUESTS FOR ADMISSIONS IN COMPLIANCE WITH RULE 59.01 SHALL RESULT IN EACH MATTER BEING ADMITTED BY YOU AND NOT SUBJECT TO FURTHER DISPUTE.”

 

(b) Effect of Admission. Any matter admitted under this Rule 59.01 is conclusively established unless the court on motion permits withdrawal or amendment of the admission.

 

Subject to the provisions of Rule 62.01 governing amendment of a pre-trial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining the action or defense on the merits.

 

Any admission made by a party under this Rule 59.01 is for the purpose of the pending action only and is not an admission by the party for any other purpose nor may it be used against the party in any other proceeding.

 

(c) Issuance.

 

(1) Form. In consecutively numbered paragraphs, the request shall set forth each matter for which an admission is requested. Copies of documents about which admissions are requested shall be served with the request unless copies have already been furnished. The title shall identify the party to whom the request for admissions are directed and state the number of the set of requests directed to that party.

 

(2) When Requests May be Served. Without leave of court, requests may be served on:

 

(A) A plaintiff after commencement of the action,

 

(B) A defendant or respondent upon the expiration of 30 days after the first event of the defendant entering an appearance or being served with process, and

 

(C) Any other party with or after the party was served with process, entered an appearance, or filed a pleading.

 

(3) Service. Copies of the requests shall be served on all parties not in default. The party issuing the requests shall also provide each responding party an electronic copy in a commonly used medium, such as a diskette, CD-ROM or as an e-mail attachment, in a format that can be read by most commonly used word processing programs, such as Word for Windows or WordPerfect 5.x or higher. In addition to the information normally in a certificate of service, the certificate of service shall also state the:

 

(A) Name of each party who is to respond to the requests;

 

(B) Number of the set of requests,

 

(C) Format of the electronic copy and the medium used to transmit the electronic copy to the responding party.

 

At the time of service, a certificate of service, but not the requests, shall be filed with the court as provided in Rule 59.01(d).

 

(d) Response. The requests shall be answered by each party to whom they are directed.

 

(1) When Response is Due. Responses shall be served within 30 days after the service of the requests for admissions. A defendant or respondent, however, shall not be required to respond to requests for admissions before the expiration of 60 days after the earlier of the defendant:

 

(A) Entering an appearance, or

 

(B) Being served with process.

 

The court may allow a shorter or longer time.

 

(2) Form. The title of the response shall identify the responding party and the number of the set of the requests for admissions. The response shall quote each request, including its original paragraph number, and immediately thereunder specifically:

 

(A) Admit the matter; or

 

(B) Deny the matter; or

 

(C) Object to the matter and state each reason for the objection; or

 

(D) Set forth in detail the reasons why the responding party cannot truthfully admit or deny the matter.

 

A denial shall fairly meet the substance of the requested admission.

 

When good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as true and qualify or deny the remainder.

 

A responding party may give lack of information or knowledge as a reason for failure to admit or deny if such party states that the party has made reasonable inquiry and the information known or readily obtainable by the party is insufficient to enable the party to admit or deny.

 

A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; such party may deny the matter, subject to the provisions of Rule 61.01(c), or set forth reasons why the party cannot admit or deny it.

 

(3) Objections and Privileges. If an objection is asserted, then each reason for the objection shall be stated. If a failure to admit or deny a request is based on a privilege or the work product doctrine, then without revealing the protected information, the objecting party shall state information that will permit others to assess the applicability of the privilege or work product doctrine.

 

(4) Signing. The response shall be signed by the party or the party's attorney.

 

(5) Service. The party to whom the requests were directed shall serve a signed original of the response and objections, if any, on the party that issued the requests and a copy upon all parties not in default. The certificate of service shall state the name of the party who issued the requests and the number of the set of requests.

 

At the time of service, a certificate of service, but not the response, shall be filed with the court as provided in Rule 59.01(d).

 

(e) Filing Request and Responses. The request and response thereto shall not be filed with the court except upon court order or contemporaneously with a motion placing the request in issue. However, both when the request and the response are served the party serving them shall file with the court a certificate of service. Each party filing a certificate shall maintain a copy of the document that is the subject of the certificate until the case is finally disposed.

 

(f) Enforcement. The party who has requested the admissions may move to have determined the sufficiency of the answers or objections. Unless the court determines that an objection is proper, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this Rule 59.01, it may order either that:

 

(1) The matter is admitted, or

 

(2) An amended answer be served.

 

The provisions of Rule 61.01(c) apply to the award of expenses incurred in relation to the motion.

 

Rule 60. Physical and Mental Examination of Persons

 

 

60.01. Examination and Report

 

 

(a) Order for Examination.

 

(1) In an action in which the mental condition, physical condition, or blood relationship of a party, or of an agent or a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party (i) to submit to physical, mental, or blood examinations by physicians or other appropriate licensed health care providers or (ii) to produce for such examinations such party's agent or the person in such party's custody or legal control.

 

(2) In any action in which the vocational ability of a party, or of an agent or a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party (i) to submit to evaluation by vocational rehabilitation professionals or (ii) to produce for such evaluation such party's agent or the person in such party's custody or legal control.

 

(3) Any order under this Rule 60.01(a) may be made only on motion for good cause shown, upon notice to the person against whom the order is sought and to all other parties. Such order shall specify the time, place, manner, conditions, scope of, and identity of each person conducting the examination or evaluation. The court may, as a condition of its order, require the party requesting the order to reimburse the person who is the subject of the order for that person's reasonable round trip expenses in traveling more than sixty miles from the place of residence to the place of examination or evaluation.

 

(b) Report of Findings.

 

(1) If requested by the party against whom an order is made under Rule 60.01(a) or the person who is the subject of the order, the party obtaining the order shall deliver to the requesting person or party a copy of a detailed written report of the examiner or evaluator setting out the findings, including results of all tests made, diagnosis, and conclusions, together with like reports of all earlier examinations or evaluations of the same condition. After delivery, the party obtaining the order shall be entitled upon request to receive from the party against whom the order is made a like report of any examination or evaluation, previously or thereafter made, of the same condition, unless, in the case of a report of examination or evaluation of a person not a party, the party shows an inability to obtain it. The court on motion shall make an order against a party requiring delivery of a report on such terms as are just; if an examiner or evaluator fails or refuses to make a report, the court may exclude the examiner's or evaluator's testimony if offered at the trial.

 

(2) By requesting and obtaining a report of the examination or evaluation so ordered or by taking the deposition of the examiner or evaluator, the person examined or evaluated waives any privilege the person may have in that action, or any other involving the same controversy, regarding the testimony of every other person who has examined or evaluated or may thereafter examine or evaluate the person in respect of the same mental condition, physical condition, vocational ability, or blood relationship.

 

(3) This Rule 60.01(b) applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise, and does not preclude discovery of a report of or the taking of a deposition of the examiner or evaluator in accordance with the provisions of any other rule.

 

Rule 61. Enforcement of Discovery: Sanctions

 

 

61.01. Failure to Make Discovery: Sanctions

 

 

(a) Failure to Act--Evasive or Incomplete Answers. Any failure to act described in this Rule may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has filed timely objections to the discovery request or has applied for a protective order as provided by Rule 56.01(c).

 

For the purpose of this Rule, an evasive or incomplete answer is to be treated as a failure to answer.

 

(b) Failure to Answer Interrogatories. If a party fails to answer interrogatories or file objections thereto within the time provided by law, or if objections are filed thereto which are thereafter overruled and the interrogatories are not timely answered, the court may, upon motion and reasonable notice to other parties, make such orders in regard to the failure as are just and among others the following:

 

(1) An order striking pleadings or parts thereof, or dismissing the action or proceeding or any part thereof, or render a judgment by default against the disobedient party.

 

(2) Upon the showing of reasonable excuse, the court may grant the party failing to answer the interrogatories additional time to file answers but such order shall provide that if the party fails to answer the interrogatories within the additional time allowed, the pleadings of such party shall be stricken or the action be dismissed or that a default judgment shall be rendered against the disobedient party.

 

(c) Failure to Answer Request for Admissions. If a party, after being served with a request to admit the genuineness of any relevant documents or the truth of any relevant and material matters of fact, fails to file answers or objections thereto, as required by Rule 59.01, the genuineness of any relevant documents or the truth of any relevant and material matters of fact contained in the request for admissions shall be taken as admitted. If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 59.01, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the party requesting the admissions may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make the order unless it finds that: (1) the request was held objectionable pursuant to Rule 59.01, (2) the admission sought was of no substantial importance, (3) the party failing to admit had reasonable grounds to believe that such party might prevail on the matter, or (4) there was other good reason for the failure to admit.

 

(d) Failure to Produce Documents, and Things or to Permit Inspection. If a party fails to respond that inspection will be permitted as requested, fails to permit inspection, or fails to produce documents and tangible things as requested under Rule 58.01, or timely files objections thereto that are thereafter overruled and the documents and things are not timely produced or inspection thereafter is not timely permitted, the court may, upon motion and reasonable notice to other parties, make such orders in regard to the failure as are just and among others the following:

 

(1) An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibit the disobedient party from introducing designated matters in evidence.

 

(2) An order striking pleadings or parts thereof or staying further proceedings until the order is obeyed or dismissing the action or proceeding or any part thereof or, rendering a judgment by default against the disobedient party.

 

(3) An order treating as a contempt of court the failure to obey.

 

(4) An order requiring the party failing to obey the order or the attorney advising the party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

 

(e) Failure to Appear for Physical Examination. If a party fails to obey an order directing a physical or mental or blood examination under Rule 60.01, the court may, upon motion and reasonable notice to the other parties and all persons affected thereby, make such orders in regard to the failure as are just, and among others, it may take any action authorized under Rules 61.01(d)(1), (2), and (4). Where a party has failed to comply with an order requiring the production of another for examination, the court may enter such orders as are authorized by this Rule 61.01, unless the party failing to comply shows an inability to produce such person for examination.

 

(f) Failure to Attend Own Deposition. If a party or an officer, director or managing agent of a party or a person designated under Rules 57.03(b)(4) and 57.04(a), to testify on behalf of a party, fails to appear before the officer who is to take his deposition, after being served with notice, the court may, upon motion and reasonable notice to the other parties and all persons affected thereby, make such orders in regard to the failure as are just and among others, it may take any action authorized under paragraphs (1), (2), (3) and (4) of subdivision (d) of this Rule.

 

(g) Failure to Answer Questions on Deposition. If a witness fails or refuses to testify in response to questions propounded on deposition, the proponent of the question may move for an order compelling an answer. The proponent of the question may complete or adjourn the deposition examination before applying for an order. In ruling upon the motion, the court may make such protective order as it would have been empowered to make on a motion pursuant to Rule 56.01(c).

 

If the motion is granted, the court, after opportunity for hearing, shall require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.

 

If the motion is denied, the court, after opportunity for hearing, shall require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.

 

If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

 

If the motion is granted and if the persons ordered to respond fail to comply with the court's order, the court, upon motion and reasonable notice to the other parties and all persons affected thereby, may make such orders in regard to the failure as are just, and among others, it may take any action authorized under Rule 61.01(d).

 

(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.

 

62.01. Pre-Trial Procedure; Formulating Issues

In any civil action, the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider:

 

(1) The simplification of the issues;

 

(2) The necessity or desirability of amendments to the pleadings;

 

(3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;

 

(4) The limitation of the number of expert witnesses;

 

(5) The advisability of a preliminary reference of issues to a master for findings to be used as evidence when the trial is to be by jury;

 

(6) Such other matters as may aid in the disposition of the action.

 

The court shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the civil action, unless modified at the trial to prevent manifest injustice. The court in its discretion may establish by rule a pre-trial calendar on which civil actions may be placed for consideration as above provided and may either confine the calendar to jury actions or to non-jury actions or extend it to all civil actions.

 

Rule 63. Trial Settings

 

 

63.01. Trial Settings--Single-Judge Circuits

 

 

In all single-judge circuits, orders setting civil actions for trial shall be made:

 

(1) Upon the court's own motion, on the first day of any term of court; or

 

(2) Upon the court's own motion on any regularly scheduled law day, if five days' written notice (stating the date upon which such order setting the case for trial is to be entered) has been given by the court to all parties; or

 

(3) At any time when there is agreement of all parties; or

 

(4) Upon request of any party, when the issues have been joined and a reasonable time has elapsed for discovery, if five days' written notice (stating the date upon which such order setting the civil action for trial shall be requested) has been given by the requesting party to all other parties.

 

63.02. Trial Settings--Multiple-Judge Circuits

 

 

In multiple-judge circuits, civil actions shall be set for trial in accordance with the rules of the court.

 

Rule 64. Trial, Where Conducted

 

 

64.01. Repealed by order dated June 1, 1993, eff. Jan. 1, 1994

 

 

Rule 65. Continuances

 

 

65.01. Court May Continue a Civil Action to a Fixed Day

 

 

For good cause shown, the court may continue a civil action to a fixed day, or to a date for trial to be set thereafter. Every continuance granted on the application of a party may be at the cost of such party, if so ordered by the court.

 

65.02. Continuance in Civil Actions Against Nonresidents

 

 

The court shall grant such continuance to a nonresident defendant as may be proper to afford a reasonable opportunity to defend.

 

65.03. Application for Continuance, How Made

 

 

An application for a continuance shall be made by a written motion accompanied by the affidavit of the applicant or some other credible person setting forth the facts upon which the application is based, unless the adverse party consents that the application for continuance may be made orally. In any application for continuance made within thirty days of the date the matter is scheduled to be heard, the lawyer shall certify that the party for whose benefit the motion is filed has been consulted, that the party is aware of the contents of the motion, and the party's position with respect to the motion.

 

65.04. Application for a Continuance on Account of Absence of Witnesses Shall Show What

 

 

An application for a continuance on account of the absence of witnesses or their evidence shall show:

 

(1) The facts showing the materiality of the evidence sought to be obtained and due diligence upon the part of the applicant to obtain such witness or testimony;

 

(2) The name and residence of such witness, if known, or, if not known, the use of diligence to obtain the same and also facts showing reasonable grounds for belief that the attendance or testimony of such witness will be procured within a reasonable time;

 

(3) What particular facts the applicant believes the witness will prove, and that the applicant knows of no other person whose evidence or attendance the applicant could have procured at the trial by whom the applicant can prove or so fully prove the same facts;

 

(4) That such witness is not absent by the connivance, consent or procurement of the applicant, and such application is not made for vexation or delay but in good faith for the purpose of obtaining a fair and impartial trial.

 

65.05. Affidavit for Continuance--Amendment--Admission of Facts Set Forth

 

 

If the court shall be of the opinion that the affidavit is insufficient, it shall permit it to be amended. If, after such amendment, the affidavit does not contain a sufficient statement of facts, the court shall overrule it. If the court finds the affidavit sufficient, the civil action shall be continued unless the opposing party will admit that the witness, if present, would swear to the facts set out in the affidavit, in which event the civil action shall not be continued. The party moving for the continuance may read as the evidence of such witness the facts stated in the affidavit. The opposing party may disprove the facts disclosed, or prove any contradictory statements made by the absent witness, or otherwise impeach the credibility of the absent witness.

 

65.06. Repealed by order dated Dec. 18, 1990, eff. July 1, 1991

 

 

Rule 66. Consolidation of Civil Actions and Separate Trials

 

 

66.01. Consolidation

 

 

(a) Consolidation--Same Parties. Whenever several civil actions founded alone upon liquidated demands shall be pending in the same court by the same plaintiff against the same defendant, or whenever several such civil actions are pending in the same court by the same plaintiff against several defendants, the court in which the same shall be prosecuted may, in its discretion, if it appear expedient, order such civil actions to be consolidated into one civil action.

 

(b) Consolidation--Common Question of Law or Fact. When civil actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the civil actions; it may order all the civil actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

 

(c) Consolidation--Family Court Matters. When more than one civil action pending in the family court division of the circuit court involves the same or different members of the same family, the administrative judge of the division may assign all such actions to any judge within the division. The judge to whom the actions are assigned may consolidate any or all of such actions as may be appropriate.

 

(d) Consolidation--Injury to Spouse. If an injury not resulting in death is inflicted upon the person of one spouse, and causes of action therefor accrue to the injured spouse and also to the other spouse for loss of consortium or services or medical expenses, they shall be enforced in one action by both spouses if they have ever been coparties in such action or if notice is given.

 

If any party against whom a claim is asserted gives written notice of the pendency of the action and of the necessity to join therein to the spouse whose claim was not joined and to the attorney for the spouse upon whose behalf the lawsuit was filed, the claim of such spouse who has not been joined shall be barred unless the spouse makes application to be added as a party therein within thirty days after such notice. The spouse so required to join shall have an unconditional right to be added as a party pursuant to Rule 52.06.

 

(e) Notice--How Given. The notice shall be given to the attorney by first class mail, postage prepaid. The notice shall be given to the party:

 

1. By personal service within or without this state with proof thereof by the return of the officer or by affidavit; or

 

2. By registered or certified mail, requesting a receipt signed by addressee only, with proof thereof by the filing of the United States Postal Service receipt signed by such person.

 

66.02. Separate Trial

 

 

The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.

 

Rule 67. Dismissal of Civil Actions

 

 

67.01. Dismissal without Prejudice and with Prejudice

 

 

A dismissal without prejudice permits the party to bring another civil action for the same cause, unless the civil action is otherwise barred. A dismissal with prejudice bars the assertion of the same cause of action or claim against the same party.

 

67.02. Voluntary Dismissal--Effect of

 

 

(a) Except as provided in Rule 52, a civil action may be dismissed by the plaintiff without order of the court anytime:

 

(1) Prior to the swearing of the jury panel for the voir dire examination, or

 

(2) In cases tried without a jury, prior to the introduction of evidence at the trial.

 

A party who once so dismisses a civil action and thereafter files another civil action upon the same claim shall be allowed to dismiss the same without prejudice only:

 

(1) Upon filing a stipulation to that effect signed by the opposing party, or

 

(2) On order of the court made on motion in which the ground for dismissal shall be set forth.

 

(b) Except as provided in Rule 67.02(a), an action shall not be dismissed at the plaintiff's instance except upon order of the court upon such terms and conditions as the court deems proper.

 

(c) A voluntary dismissal under Rule 67.02(a) shall be without prejudice unless otherwise specified by the plaintiff. Any other voluntary dismissal shall be without prejudice unless otherwise specified by the court or the parties to the dismissal.

 

(d) If a plaintiff who has once dismissed a civil action in any court commences a civil action based upon or including the same claim against the same defendant, the court may make an order for the payment of any unpaid costs of the civil action previously dismissed. In addition, if the plaintiff dismissed the previous civil action without prejudice within ten days of the date set for trial, the court may make an order for the payment of witness and other expenses, not including attorney fees, incurred by any other party that are caused to be incurred for the second trial because of the dismissal without prejudice of the previous civil action. The court may stay the proceedings in the civil action until the plaintiff has complied with any such order.

 

67.03. Involuntary Dismissal--Effect Thereof

 

 

A defendant may move for an involuntary dismissal of the civil action for lack of jurisdiction, for prematurity of action, for failure to substitute a party for a decedent and for such other dismissals as are allowed by these Rules 41 through 101. Defendant may also move for an involuntary dismissal of the civil action for failure of the plaintiff to prosecute or to comply with these Rules 41 through 101 or any order of the court. Any involuntary dismissal shall be without prejudice unless the court in its order for dismissal shall otherwise specify.

 

67.04. Dismissal of Counterclaim, Cross-Claim or Third-Party Claim--Rules Applicable

 

 

The provisions of Rules 67.01, 67.02, 67.03 and 67.05 apply to the dismissal of any counterclaim, cross-claim or third-party claim.

 

67.05. Dismissal of Plaintiff's Civil Action--Effect on Counterclaim, Cross-Claim, and Ancillary Matters

 

 

No dismissal, voluntary or involuntary, of a plaintiff's civil action shall operate to dismiss a previously filed counterclaim or cross-claim. No dismissal, voluntary or involuntary, of a plaintiff's civil action shall operate to discontinue any ancillary matter pending before the court. If an ancillary matter is not ruled on within ninety days after the dismissal, it is denied.

 

67.06. Final Dismissal on Failure to Amend

 

 

On sustaining a motion to dismiss a claim, counterclaim or cross-claim the court shall freely grant leave to amend and shall specify the time within which the amendment shall be made or amended pleading filed. If the amended pleading is not filed within the time allowed, final judgment of dismissal with prejudice shall be entered on motion except in cases of excusable neglect; in which cases amendment shall be made promptly by the party in default.

 

67.07. Repealed by order dated June 1, 1993, eff. Jan. 1, 1994

 

 

Rule 68. Masters and Receivers

 

 

68.01. Masters in Circuit Courts

 

 

(a) Appointment and Compensation. Each circuit court in which any action is pending may appoint a master therein. The compensation to be allowed a master shall be charged upon such of the parties, or paid out of any fund or subject matter of the action which is in the custody or control of the court, as the court may direct.

 

(b) Reference. A reference to a master shall be the exception and not the rule. In actions to be tried by a jury, a reference shall be made only when the issues are complicated; in actions to be tried without a jury, save in matters of account and of difficult computation of damages, a reference shall be made only upon a showing that some exceptional condition requires it.

 

(c) Qualifications of Master. No person shall be appointed a master who is of kin to either party or is interested in the outcome of the action.

 

(d) Oath of Master. Before proceeding to hear any testimony in the action, a master shall take and subscribe an oath, before some officer duly authorized to administer an oath, faithfully to hear and examine the matters at issue and to make a just, impartial and true report.

 

(e) Powers. The order of reference to the master may specify or limit the master's powers and may direct the master to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the master's report. Subject to the specifications and limitations stated in the order, the master has and shall exercise the power to regulate all proceedings in every hearing before the master and to do all acts and take all measures necessary or proper for the efficient performance of the duties under the order. The master may require the production of evidence upon all matters embraced in the reference. The master may rule upon the admissibility of evidence unless otherwise directed by the order of reference and has the authority to put witnesses on oath and may examine them and may call the parties to the action and examine them upon oath. When a party so requests, the master shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as provided in Rule 73.01(a) for a court sitting without a jury.

 

(f) Proceedings.

 

(1) Meetings. When a reference is made, the clerk shall forthwith furnish the master with a copy of the order of reference. Upon receipt thereof, unless the order of reference otherwise provides, the master shall forthwith set a time and place for the first meeting of the parties, or their attorneys, to be held within thirty days after the date of the order of reference and shall notify the parties, or their attorneys. It is the duty of the master to proceed with all reasonable diligence. Any party, on notice to the parties and master, may apply to the court for an order requiring the master to speed the proceedings and to make a report. If a party fails to appear at the time and place appointed, the master may proceed or, in the master's discretion, adjourn the proceedings to a future day, giving notice thereof to the absent party.

 

(2) Witnesses. The parties may procure the attendance of witnesses before the master by the issuance and service of subpoenas issued by the clerk of the appointing court. The failure of any person to comply with the requirements of any subpoena issued as herein provided shall be reported promptly to the court issuing the subpoena. Witnesses shall receive the same fees as would be allowed them as witnesses in a civil case in circuit court. Sheriff and all other officers shall be entitled to the same fees for services performed in references to a master, as would be allowed them in their respective courts for similar services. All costs incurred in a reference shall be taxed in the pending case in circuit court.

 

(3) Statement of Accounts. When matters of accounting are in issue before the master, the master may prescribe the form in which the accounts shall be submitted and in any proper case may require or receive in evidence a statement by a certified public accountant who is called as a witness. Upon objection of a party to any of the items thus submitted or upon a showing that the form of statement is insufficient, the master may require a different form of statement to be furnished, or the accounts or specific items thereof to be proved by oral examination of the accounting parties or upon written interrogatories or in such other manner as the master directs.

 

(4) Depositions. Depositions of witnesses or parties taken in the action may be read in evidence before the master as in cases of trials before the court.

 

(g) Report.

 

(1) Contents and Filing. The master shall prepare a report upon the matters submitted by the order of reference and if required to make findings of fact and conclusions of law shall set them forth in the report. The master shall file the report with the clerk of the court together with a transcript of the proceedings including the evidence and exhibits, if any. The clerk shall forthwith mail to all parties notice of the filing and a copy of the master's report.

 

(2) Objections. Any party within thirty days after being served with notice of the filing of the master's report may file written objections thereto and serve them upon the other parties.

 

(3) Action on Report and Use in Jury Trials. If no objections are filed, the court may adopt the report. If objections are filed, or the court proposes action other than adoption of the report, the court, after hearing, may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions. If issues are to be tried by a jury, the master's findings on the issues submitted to the master may be reported to the jury as having been determined and only fact issues other than those determined by the master shall be submitted to or determined by the jury.

 

(4) Stipulation as to Findings. If the parties stipulate that a master's findings of fact shall be final and binding upon them, only questions of law arising upon the master's report shall thereafter be considered.

 

(5) Draft Report. Before filing the report a master may submit a draft thereof to counsel for all parties for the purpose of receiving their suggestions.

 

(h) Masters for Depositions. The court, upon motion, may appoint a master to preside at the taking of a deposition. The master shall be a member of The Missouri Bar.

 

The master, in addition to the authority conferred on officers to take depositions, shall have the authority to determine all objections to evidence and to exclude evidence that is not within the scope of discovery as defined in Rule 56.01(b).

 

Upon request of a party, the master shall report a ruling or rulings on evidence to the court either during or after the completion of the taking of a deposition. Within 30 days after being served with a copy of the master's report, any party may file written objections thereto and serve them on the other parties. If objections are filed, the court shall issue an order sustaining or overruling the objections.

 

68.02. Receivers in Circuit Courts

 

 

(a) Appointment of Receiver. Whenever in a pending legal or equitable proceeding it appears to the court that a receiver is necessary to keep, preserve and protect any business, business interest or property, including money or other thing deposited in court or the subject of a tender, the court, or any judge thereof in vacation, may appoint a receiver whose duty it shall be to keep, preserve and protect, to the extent and in the manner that the court may direct, that which the receiver is ordered to take into the receiver's charge.

 

(b) Bond of Receiver. Such receiver shall give bond, and have the same powers and be subject to all the provisions, as far as they may be applicable, enjoined upon a receiver appointed by virtue of the law providing for suits by attachment.

 

(c) Compensation of Receiver. The court shall allow the receiver reasonable compensation for his services to be charged upon such of the parties, or paid out of any fund or subject matter of the action which is in the custody or control of the court, as the court may direct.

 

68.03. Masters in Appellate Courts

 

 

(a) Appointment and Compensation. Each appellate court in which any action is pending may appoint a master therein. The compensation to be allowed to a master shall be charged upon such of the parties, or paid out of any fund or subject matter of the action which is in the custody and control of the court, as the court may direct.

 

(b) Qualifications of Master. No person shall be appointed a master who is of kin to either party or is interested in the outcome of the action.

 

(c) Oath of Master. Before proceeding to hear any testimony in the action, a master shall take and subscribe an oath, before some officer duly authorized to administer an oath, faithfully to hear and examine the matters at issue and to make a just, impartial and true report.

 

(d) Powers. The order of reference to the master may specify or limit the master's powers and may direct the master to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the master's report. Subject to the specifications and limitations stated in the order, the master has and shall exercise the power to regulate all proceedings in every hearing before the master and to do all acts and take all measures necessary or proper for the efficient performance of the duties under the order. The master may require the production of evidence upon all matters embraced in the reference. The master may rule upon the admissibility of evidence unless otherwise directed by the order of reference and has the authority to put witnesses on oath and may examine them and may call the parties to the action and examine them upon oath. When a party so requests, the master shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as provided in Rule 73.01(a) for a court sitting without a jury.

 

(e) Proceedings.

 

(1) Meetings. When a reference is made, the clerk shall forthwith furnish the master with a copy of the order of reference. Upon receipt thereof, unless the order of reference otherwise provides, the master shall forthwith set a time and place for the first meeting of the parties, or their attorneys, to be held within thirty days after the date of the order of reference and shall notify the parties, or their attorneys. It is the duty of the master to proceed with all reasonable diligence. Any party, on notice to the parties and master, may apply to the court for an order requiring the master to speed the proceedings and to make the report. If a party fails to appear at the time and place appointed, the master may proceed or, in the master's discretion, adjourn the proceedings to a future day, giving notice thereof to the absent party.

 

(2) Witnesses. The parties may procure the attendance of witnesses before the master by the issuance and service of subpoenas issued by the clerk of the appointing court. The failure of any person to comply with the requirements of any subpoena issued as herein provided shall be reported promptly to the court issuing the subpoena.

 

(f) Report. The master shall prepare a report upon the matters submitted by the order of reference and, if required to make findings of fact and conclusions of law, they shall be set forth in the report. The master shall file the report with the clerk of the court together with a transcript of the proceedings including the evidence and exhibits, if any. The clerk shall forthwith mail to all parties notice of the filing and a copy of the master's report.

 

(g) Exceptions. Any party may, but is not required to, file exceptions to the report to be ruled upon by the master. The master may amend findings of fact or make new findings of fact and conclusions of law. Exceptions shall not be permitted to any revised report by the master. The exceptions shall be filed not later than thirty days after the filing of the report by the master. If the exceptions are not passed on by the master within thirty days after filing, they are deemed denied for all purposes. The filing of exceptions with the master shall not preclude any party from alleging or asserting any point in the appellate court.

 

(h) Docketing. After there has been a ruling on exceptions to the report of the master, or if no exceptions are filed after the expiration of thirty days from the time the master's report was filed, the case shall be docketed for hearing in the appellate court.

 

Rule 69. Trial by Jury (Refs & Annos)

 

 

69.01. Right of Trial by Jury--Waiver--Agreement for

 

 

(a) Right of Trial by Jury Inviolate. The right of trial by jury as declared by the Constitution or as given by a statute shall be preserved to the parties inviolate. In particular, any issue as to whether a release, composition or discharge of the plaintiff's original claim was fraudulently or otherwise wrongfully procured shall be tried by jury unless waived.

 

(b) Jury Trial--How Waived. Parties shall be deemed to have waived trial by jury:

 

(1) by failing to appear at the trial;

 

(2) by filing with the clerk written consent in person or by attorney;

 

(3) by oral consent in court, entered on the minutes;

 

(4) by entering into trial before the court without objection.

 

(c) Jury Trial by Consent in Actions Against State. In actions against the state, a state agency or a political subdivision of the state, when a statute provides for trial without jury, the court, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.

 

(d) Waiver of Jury Trial by Infants and Incompetents. In actions where an infant or an incompetent person is a party and where an infant or incompetent person is represented by a next friend, guardian ad litem, or guardian appointed by a court of competent jurisdiction, trial by jury shall be deemed to be waived under the circumstances set forth in subdivision (b) of this Rule.

 

69.02. Handbook of Information for Jurors

 

 

The Missouri Bar may distribute its handbook entitled “Trial Jurors Information” to those summoned as jurors.

 

Rule 69.025. Juror Nondisclosure

 

 

(a) Proposed Questions. A party seeking to inquire as to the litigation history of potential jurors shall make a record of the proposed initial questions before voir dire. Failure to follow this procedure shall result in waiver of the right to inquire as to litigation history.

 

(b) Reasonable Investigation. For purposes of this Rule 69.025, a “reasonable investigation” means review of Case.net before the jury is sworn.

 

(c) Opportunity to Investigate. The court shall give all parties an opportunity to conduct a reasonable investigation as to whether a prospective juror has been a party to litigation.

 

(d) Procedure When Nondisclosure Is Suspected. A party who has reasonable grounds to believe that a prospective juror has failed to disclose that he or she has been a party to litigation must so inform the court before the jury is sworn. The court shall then question the prospective juror or jurors outside the presence of the other prospective jurors.

 

(e) Waiver. A party waives the right to seek relief based on juror nondisclosure if the party fails to do either of the following before the jury is sworn:

 

(1) Conduct a reasonable investigation; or

 

(2) If the party has reasonable grounds to believe a prospective juror has failed to disclose that he or she has been a party to litigation, inform the court of the basis for the reasonable grounds.

 

(f) Post-Trial Proceedings. A party seeking post-trial relief based on juror nondisclosure has the burden of demonstrating compliance with Rule 69.025(d) and Rule 69.025(e) and may satisfy that burden by affidavit. The court shall then conduct an evidentiary hearing to determine if relief should be granted.

 

69.03. Juror Note-Taking

 

 

Upon the court's own motion or upon the request of any party, the court shall permit jurors to take notes. If jurors are permitted to take notes, the court shall supply each juror with suitable materials.

 

Jurors shall not take their notes out of the courtroom except to use their notes during deliberations.

 

The court shall collect all juror notes immediately before discharge of the jury.

 

After the jury is discharged, the court shall destroy the notes promptly without permitting their review by the court or any other person.

 

Juror notes shall not be used to impeach a verdict.

 

69.04. Juror Questions

 

 

(a) Upon the court's own motion or upon motion of any party, the court may permit jurors to submit questions to witnesses. The court shall resolve any such motion before the jury is impanelled.

 

(b) If the court permits jurors to submit questions:

 

(1) The court shall instruct the jurors:

 

(A) On the procedure to be followed for asking such questions; and

 

(B) That no adverse inference is to be drawn against any party if any juror question is not allowed;

 

(2) After all parties have completed examination of each witness, any juror may submit written, anonymous questions;

 

(3) All parties shall be given an opportunity outside the hearing of the jurors to object to the substance or the form of any question;

 

(4) The court may limit the number of questions;

 

(5) The court may revise any question's form and shall read the question to the witness or the parties may stipulate to the answer; and

 

(6) The court may allow any party to ask follow-up questions after consideration of the juror questions.

 

Rule 70. Instructions

 

 

70.01. Approval of Instructions--Effective Date--Publication Procedure

 

 

Approval of instructions in civil actions will be made by order of this court. The caption of the approved instructions shall state the effective date. The Missouri Bar is directed to publish such approved instructions and notes on use or committee notes as this court authorizes, together with the date upon which the use thereof shall be required.

 

70.02. Instructions to Juries

 

 

(a) Requests for Instructions. Any party may, and a party with the burden of proof on an issue shall, submit written requests for instructions on the law applicable to the issues. Requests shall be submitted prior to an instruction conference or at such time as the court directs. A party need not request a converse instruction until the court has indicated the verdict directing instruction expected to be given. The court may give instructions without requests of counsel. All instructions shall be submitted in writing and shall be given or refused by the court according to the law and the evidence in the case. Each instruction shall be submitted with an original and one copy for the court and one copy for each party. Each copy shall indicate whether it was prepared at the court's direction or by which party it was tendered and shall contain a notation as follows:

 

“MAI No. ___” or “MAI No. ___ modified” or “Not in MAI” as the case may be.

 

(b) Form of Instructions. Whenever Missouri Approved Instructions contains an instruction applicable in a particular case that the appropriate party requests or the court decides to submit, such instruction shall be given to the exclusion of any other instructions on the same subject. Where an MAI must be modified to fairly submit the issues in a particular case, or where there is no applicable MAI so that an instruction not in MAI must be given, then such modifications or such instructions shall be simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts.

 

(c) Violation of Rule--Effect. The giving of an instruction in violation of the provisions of this Rule 70.02 shall constitute error, its prejudicial effect to be judicially determined, provided that objection has been timely made pursuant to Rule 70.03.

 

(d) Converse Instruction--Effect of Requesting. The request of a converse instruction shall not be deemed to waive any objection to the instruction conversed.

 

(e) Instructions Conference and Record. The court shall hold an instructions conference with counsel to determine the instructions to be given. The court shall inform counsel as to the instructions that are to be given prior to the time they are delivered to the jury. All instructions refused and all instructions given, including a record of who tendered them, shall be kept as a part of a record in the case. An opportunity shall be given for counsel to make objections on the record, out of the hearing of the jury, before the jury retires to deliberate.

 

(f) Instructions--How and When Given. After a jury has been sworn to try a case but before opening statements, the court shall read to the jury Missouri Approved Instructions 2.01, which shall be marked and given to the jury along with the other instructions at the close of the case but shall not be reread by the court. With agreement of all parties, the court may give such other preliminary instructions during the trial as will assist the jury in understanding its role or the issues in the case. Agreement is not required for cautionary or withdrawal instructions during the trial. Final instructions in the case, submitting the law applicable to the case, ordinarily should be given prior to final arguments. Instructions that are to be given shall be consecutively numbered and all shall be given as instructions of the court. Except where otherwise provided in Missouri Approved Instructions, they shall be given in such order as the court shall deem advisable. The final instructions on the law governing the case shall be read to the jury by the court and provided to the jury in writing.

 

70.021. Repealed by order dated Jan. 19, 1973, eff. Sept. 1, 1973

 

70.03. Objections to Instructions

Counsel shall make specific objections to instructions considered erroneous. No party may assign as error the giving or failure to give instructions unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection. Counsel need not repeat objections already made on the record prior to delivery of the instructions. The objections must also be raised in the motion for new trial in accordance with Rule 78.07.

 

Rule 71. Verdicts

 

 

71.01. Verdict of Jury--General or Special

 

 

The verdict of a jury is either general or special. A general verdict is one by which the jury pronounces generally upon all or any of the issues, either in favor of the plaintiff or defendant, and includes a verdict wherein the jury returns a finding of the plaintiff's total damages and assesses percentages of fault. A special verdict is one by which the jury finds the facts only, leaving the judgment to the court.

 

71.02. Jury Shall Render General Verdict--When

 

 

In every issue for the recovery of money only, or specific real or personal property, the jury shall render a general verdict.

 

71.03. Court May Direct Issues to be Made, When

 

 

In all other cases, if at any time during the progress of any cause, it shall, in the opinion of the court, become necessary to determine any fact in controversy by the verdict of a jury, the court may direct an issue or issues to be made.

 

71.04. Issues to be Made Only as Directed by Court

 

 

No issue shall be made, except such as shall be directed by the court.

 

71.05. Issues, How Tried and Disposed of

 

 

The trial of such cases shall be by jury, and the issues shall be disposed of by a general or special verdict before a final judgment shall be made therein.

 

71.06. Jury Shall Assess Amount of Recovery, When

 

 

When a verdict shall be found for the plaintiff in an action for the recovery of money only, the jury shall also assess the amount of recovery; so, also, if they find for the defendant in case of a counterclaim, crossclaim or other demand for money. A verdict shall meet the requirements of this rule if the jury returns a finding of the total amount of the damages and assesses percentages of fault. When exemplary or punitive damages are allowed by the jury, the amount thereof shall be separately stated in the verdict. When both damages for personal injuries and damages to property are allowed by the jury, the verdict shall state separately the amount allowed for the aggregate of the items of damage connected with the personal injury and the amount allowed for the aggregate of the items of damage connected with the injury to the property.

 

Rule 72. Motion for a Directed Verdict and for Judgment Notwithstanding the Verdict

 

 

72.01. Motion for a Directed Verdict and for Judgment Notwithstanding the Verdict

 

 

(a) Motion for Directed Verdict: When Made: Effect. A party may move for a directed verdict at the close of the evidence offered by an opponent. The filing of such motion does not constitute a waiver of movant's right to offer evidence to the same extent as if the motion had not been made. A motion which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.

 

(b) Motion for Judgment Notwithstanding the Verdict. A party may move for a directed verdict at the close of all the evidence. Whenever such motion is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Not later than thirty days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with the motion for a directed verdict; or if a verdict was not returned, such party, within thirty days after the jury has been discharged, may move for judgment in accordance with the motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.

 

(c) Same: Conditional Rulings on Grant of Motion.

 

(1) If the motion for judgment notwithstanding the verdict provided for in subdivision (b) of this Rule, is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment. In case the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered. In case the motion for new trial has been conditionally denied, the respondent on appeal may assert error in that denial; and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court.

 

(2) The party whose judgment has been set aside on the motion for judgment notwithstanding verdict, may upon appeal from the resulting adverse judgment, in addition to urging that the trial court erred in sustaining the motion for judgment notwithstanding the verdict, also brief and argue and the appellate court may determine, whether the appellant is, in any event, entitled to a new trial.

 

(d) Same: Denial of Motion. If the motion for judgment notwithstanding the verdict is denied, the party who prevailed on that motion, as respondent, may assert grounds entitling the party to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for judgment notwithstanding the verdict. If the appellate court reverses the judgment, nothing in this Rule 72.01 precludes it from determining that the respondent is entitled to a new trial or from directing the court to determine whether a new trial shall be granted.

 

Rule 73. Trial by Court (Refs & Annos)

 

 

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) 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.

 

Rule 74. Judgments, Orders and Proceedings Thereon (Refs & Annos)

 

 

74.01. Judgment

 

 

(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.

 

(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may enter a judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay. In the absence of such determination, any order or other form of decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

 

74.02. Order

 

 

Every direction of a court made or entered in writing and not included in a judgment is an order.

 

74.03. Notice of Entry of Orders and Judgments

 

 

Immediately upon the entry of an order or judgment, the clerk shall serve a notice of the entry by mail in the manner provided for in Rule 43.01 upon each party who is not in default for failure to appear and who was not present in court in person or by attorney at the time of the entry of such order or judgment. If such notice is not given, the order or judgment shall be set aside for good cause shown upon written motion filed within six months from the entry of the order or judgment. This Rule 74.03 shall not preclude relief under Rule 74.06.

 

74.04. Summary Judgment

 

 

(a) For Claimant. At any time after the expiration of thirty days from the commencement of the action or after service of a motion for summary judgment by the adverse party, a party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may move with or without supporting affidavits for a summary judgment upon all or any part of the pending issues.

 

(b) For Defending Party. At any time, a party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may move with or without supporting affidavits for a summary judgment as to all or any part of the pending issues.

 

(c) Motions and Proceedings Thereon.

 

(1) Motions for Summary Judgment. A motion for summary judgment shall summarily state the legal basis for the motion.

 

A statement of uncontroverted material facts shall be attached to the motion. The statement shall state with particularity in separately numbered paragraphs each material fact as to which movant claims there is no genuine issue, with specific references to the pleadings, discovery, exhibits or affidavits that demonstrate the lack of a genuine issue as to such facts. An electronic copy of the statement of uncontroverted material facts in a commonly used medium, such as a diskette, CD-ROM or e-mail attachment, in a format that can be read by most commonly used word processing programs, such as Word for Windows or WordPerfect 5.x or higher, shall be served on the party to whom the motion for summary judgment is directed. In addition to the information normally in a certificate of service, the certificate of service shall also state the format of the electronic copy and the medium used to transmit the electronic copy to the responding party.

 

Attached to the statement shall be a copy of all discovery, exhibits or affidavits on which the motion relies.

 

Movant shall file a separate legal memorandum explaining why summary judgment should be granted.

 

(2) Responses to Motions for Summary Judgment. Within 30 days after a motion for summary judgment is served, the adverse party shall serve a response on all parties. The response shall set forth each statement of fact in its original paragraph number and immediately thereunder admit or deny each of movant's factual statements.

 

A denial may not rest upon the mere allegations or denials of the party's pleading. Rather, the response shall support each denial with specific references to the discovery, exhibits or affidavits that demonstrate specific facts showing that there is a genuine issue for trial.

 

Attached to the response shall be a copy of all discovery, exhibits or affidavits on which the response relies.

 

A response that does not comply with this Rule 74.04(c)(2) with respect to any numbered paragraph in movant's statement is an admission of the truth of that numbered paragraph.

 

The response may also set forth additional material facts that remain in dispute, which shall be presented in consecutively numbered paragraphs and supported in the manner prescribed by Rule 74.04(c)(1).

 

An electronic copy of the response shall be served as provided in Rule 74. 04(c)(1).

 

The response may include a legal memorandum explaining the legal or factual reasons why summary judgment should not be granted.

 

(3) Replies in Support of Motions for Summary Judgment. Within 15 days after service of the response, the movant may file a reply memorandum of law explaining why summary judgment should be granted.

 

Within the same time, if the adverse party's response sets forth additional material facts that remain in dispute, movant shall set forth each additional statement of fact in its original paragraph number and immediately thereunder admit or deny each such factual statement. Denials shall be supported in the manner prescribed by Rule 74.04(c)(2).

 

Within the same time, the movant may file a statement of additional material facts as to which movant claims there is no genuine issue. The statement shall be presented in consecutively numbered paragraphs and supported in the manner prescribed by Rule 74.04(c)(1).

 

An electronic copy of the reply shall be served as provided in Rule 74.04(c)(1).

 

Attached to the supplemental statement shall be a copy of any additional discovery, exhibits or affidavits on which the supplemental statement relies.

 

(4) Sur-replies in Opposition to Motions for Summary Judgment. Within 15 days of service, if movant files a statement of additional material facts pursuant to Rule 74.04(c)(3), the adverse party shall file a sur-reply. The sur-reply shall set forth each additional statement of fact in its original paragraph number and immediately thereunder admit or deny each such factual statement. The sur-reply shall be in the form and shall be supported in the manner prescribed by Rule 74.04(c)(2).

 

An electronic copy of the sur-reply shall be served as provided in Rule 74.04(c)(1).

 

Attached to the sur-reply shall be a copy of any additional discovery, exhibits or affidavits on which the sur-reply relies.

 

A sur-reply that does not comply with Rule 74.04(c)(2) with respect to any numbered paragraph in movant's statement of additional material facts is an admission of the truth of that numbered paragraph.

 

If the movant files a statement of additional material facts, the adverse party may file within the same time a sur-reply memorandum of law explaining the legal or factual reasons why summary judgment should not be granted.

 

(5) Additional papers. No other papers with respect to the motion for summary judgment shall be filed without leave of court.

 

(6) Rulings on Motions for Summary Judgment. After the response, reply and any sur-reply have been filed or the deadlines therefor have expired, the court shall decide the motion.

 

If the motion, the response, the reply and the sur-reply show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, the court shall enter summary judgment forthwith.

 

A summary judgment, interlocutory in character, may be entered on any issue, including the issue of liability alone, although there is a genuine issue as to the amount of the damages.

 

(d) Case Not Fully Adjudicated on Motion. If on motion under this Rule 74.04 judgment is not entered upon the whole case or for all the relief asked and a trial is necessary, the court by examining the pleadings and the evidence before it, by interrogating counsel, and by conducting a hearing, if necessary, shall ascertain, if practicable, what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. The court shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

 

(e) Form of Affidavit. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

 

(f) When Affidavits Are Unavailable. Should it appear from the affidavits of a party opposing the motion that for reasons stated in the affidavits facts essential to justify opposition to the motion cannot be presented in the affidavits, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

 

(g) Affidavit Made in Bad Faith. Should it appear to the satisfaction of the court at any time that any affidavit presented pursuant to this Rule 74.04 is presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party presenting it to pay to the other party the amount of the reasonable expenses that the filing of the affidavit caused the other party to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.

 

74.05. Entry of Default Judgment

 

 

(a) Entry of Default Judgment. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, upon proof of damages or entitlement to other relief, a judgment may be entered against the defaulting party. The entry of an interlocutory order of default is not a condition precedent to the entry of a default judgment.

 

(b) Entry of Interlocutory Order of Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, an interlocutory order of default may be entered against that party. After entry of an interlocutory order of default, a default judgment may be entered. Any party may demand a jury to assess damages. If a jury is not demanded, the court shall assess any damages.

 

(c) Default Judgment May Include. A default judgment may include an award of damages, other relief, or both.

 

(d) When Set Aside. Upon motion stating facts constituting a meritorious defense and for good cause shown, an interlocutory order of default or a default judgment may be set aside.

 

The motion shall be made within a reasonable time not to exceed one year after the entry of the default judgment.

 

“Good cause” includes a mistake or conduct that is not intentionally or recklessly designed to impede the judicial process.

 

An order setting aside an interlocutory order of default or a default judgment may be conditioned on such terms as are just, including a requirement that the party in default pay reasonable attorney's fees and expenses incurred as a result of the default by the party who requested the default.

 

A motion filed under this Rule 74.05(d), even if filed within 30 days after judgment, is an independent action and not an authorized after-trial motion subject to Rule 78.04 or Rule 78.06.

 

74.06. Relief From Judgment or Order

 

 

(a) Clerical Mistakes--Procedure. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected with leave of the appellate court.

 

(b) Excusable Neglect--Fraud--Irregular, Void, or Satisfied Judgment. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment or order for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (3) the judgment is irregular; (4) the judgment is void; or (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment remain in force.

 

(c) Motion Under Subdivision (b)--Affect on Judgment--Time for Filing--Notice of Hearing--Service. A motion under subdivision (b) does not affect the finality of a judgment or suspend its operation. The motion shall be made within a reasonable time and for reasons (1) and (2) and (3) of subdivision (b) not more than one year after the judgment or order was entered. The motion and a notice of a time and place for hearing on the motion shall be served upon the parties to the judgment pursuant to Rule 54.

 

(d) Power of Court to Entertain Independent Action--Certain Writs Abolished. This Rule 74.06 does not limit the power of the court to entertain an independent action to relieve a party from a judgment or order or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these Rules or by an independent action.

 

74.07. Judgment for Specific Acts--Vesting Title--Delivery of Possession

 

 

If a judgment directs a party to execute or deliver a deed or other document or to perform any other specific act and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court, and the act when so done has like effect as if done by the party. On application of the party entitled to performance, a writ of attachment or sequestration shall issue against the property of the disobedient party to compel obedience to the judgment. The court may also adjudge the party in contempt. If real or personal property is within the state, the court may enter a judgment divesting the title of any party and vesting it in others in lieu of directing a conveyance thereof, and such judgment has the effect of a conveyance executed in due form of law. When any order or judgment is for the delivery of possession, a writ of possession may issue to put the party entitled into possession, or attachment or sequestration may issue.

 

74.08. Judgment Lien

 

 

Except as provided in chapter 454, RSMo, or chapter 517, RSMo, the lien of a judgment commences upon entry of the judgment, continues for a period of ten years, and is revived by a revival of the judgment.

 

74.09. Revival of Judgment

 

 

(a) When and by Whom. A judgment may be revived by order of the court that entered it pursuant to a motion for revival filed by a judgment creditor within ten years after entry of the judgment or the last prior revival of the judgment.

 

(b) Order to Show Cause. Upon the filing of a motion of revival of a judgment, an order shall issue to the judgment debtor to show cause on a day certain why such judgment should not be revived. The order to show cause shall be served pursuant to Rule 54 on the judgment debtor, his successors in interest, or his legal representatives.

 

(c) Judgment of Revival. If the judgment debtor, his successors in interest, or legal representatives fail to appear and show cause why the judgment should not be revived, the court shall enter an order reviving the judgment.

 

74.10. Revival of Lien of Judgment--Intermediate Encumbrances

 

 

If the order to show cause is issued before the lien expires but the judgment of revival is entered after the lien has expired, the revived lien prevails over intermediate encumbrances. If the order is issued after the expiration of the lien and a judgment of revival is afterward entered, such revival shall take effect from the entry thereof and shall not prevail over intermediate encumbrances.

 

74.11. Satisfaction of Judgment

 

 

(a) Acknowledgment of Satisfaction. When any judgment or decree is satisfied otherwise than by execution, the judgment creditor shall immediately file an acknowledgment of satisfaction.

 

(b) Who May Enter Satisfaction. Satisfaction may be entered by the judgment creditor, his attorney of record, or an agent; if entered by an agent who is not the attorney of record, his authority shall be filed.

 

(c) Satisfaction of Judgment Entered by the Court. If a judgment creditor who has received satisfaction of a judgment fails to acknowledge such satisfaction immediately, any interested person may apply to the court where the judgment was entered for an order showing satisfaction.

 

74.12. Assignment of Judgment

 

 

(a) Assignment--Form--Filing. An assignment of a judgment may be made by a writing executed and acknowledged by the assignor. Such assignment shall be filed with the clerk of the court in which the judgment was entered, and a copy of the assignment shall be filed with the clerk of each court in which a transcript of the judgment has been filed.

 

(b) Form of Execution. An execution on an assigned judgment shall issue in the name of the original assignor but shall be endorsed by the judge or clerk to be for the use of the assignee.

 

74.13. Transcript of Judgment--When Lien in Another County

 

 

(a) Filing--Lien. A judgment entered or registered in any United States court in this state or in any court of record of this state, upon the filing of a transcript thereof in the office of the clerk of the circuit court of any county other than the one in which the judgment was obtained, shall be a lien on the real estate that belongs to the person against whom such judgment is entered and that is situated in the county in which such transcript is filed.

 

(b) Entry of Time of Filing. The clerk shall enter on the judgment records the time of the filing of the transcript.

 

(c) Extent and Duration of Lien. The lien created by the filing of a transcript shall exist to the same extent and for the same time only as the lien of the judgment in the county where the same was entered. A transcript of a judgment reviving a judgment may be filed in the same manner as a transcript of an original judgment.

 

(d) Execution and Revival. Executions may be issued and judgments or liens may be revived only by the circuit court where the judgment was entered.

 

74.14. Uniform Enforcement of Foreign Judgments

 

 

(a) Definition. In this Rule 74.14 “foreign judgment” means any judgment, decree or order of a court of the United States or of any other court that is entitled to full faith and credit in this state.

 

(b) Filing and Status of Foreign Judgments. A copy of any foreign judgment authenticated in accordance with the act of Congress or the statutes of this state may be filed in the office of the clerk of any circuit court of this state. The clerk shall treat the foreign judgment in the same manner as a judgment of the circuit court of this state. A judgment so filed has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of a circuit court of this state and may be enforced or satisfied in like manner.

 

(c) Notice of Filing.

 

(1) At the time of the filing of the foreign judgment, the judgment creditor or his lawyer shall make and file with the clerk an affidavit setting forth the name and last known post office address of the judgment debtor and the judgment creditor.

 

(2) Promptly upon the filing of the foreign judgment and the affidavit, the clerk shall mail notice of the filing of the foreign judgment to the judgment debtor at the address given and shall make a note of the mailing in the docket. The notice shall include the name and post office address of the judgment creditor and the judgment creditor's lawyer, if any, in this state. In addition, the judgment creditor may mail a notice of the filing of the judgment to the judgment debtor and may file proof of mailing with the clerk. Lack of mailing notice of filing by the clerk shall not affect the enforcement proceedings if proof of mailing by the judgment creditor has been filed.

 

(d) Stay.

 

(1) If the judgment debtor shows the circuit court that an appeal from the foreign judgment is pending or will be taken or that a stay of execution has been granted, the court shall stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated upon proof that the judgment debtor has furnished the security for the satisfaction of the judgment required by the state in which it was entered.

 

(2) If the judgment debtor shows the circuit court any ground upon which enforcement of a judgment of any circuit court of this state would be stayed, the court shall stay enforcement of the foreign judgment for an appropriate period upon requiring the same security for satisfaction of the judgment that is required in this state.

 

(e) Optional Procedure. The right of a judgment creditor to bring an action to enforce his judgment instead of proceeding under this Rule 74.14 remains unimpaired.

 

(f) Uniformity of Interpretation. This Rule 74.14 shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states that adopt the “Uniform Enforcement of Foreign Judgments Law.”

 

74.15 to 74.79. Repealed by order dated May 22, 1987, effective January 1, 1988

 

 

74.15 to 74.79. Repealed by order dated May 22, 1987, effective January 1, 1988

 

 

Rule 75. Control of Judgments

 

 

75.01. Judgments, Control by Trial Court

 

 

The trial court retains control over judgments during the thirty-day period after entry of judgment and may, after giving the parties an opportunity to be heard and for good cause, vacate, reopen, correct, amend, or modify its judgment within that time. Not later than thirty days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party, and every order granting a new trial shall specify the grounds therefor. After the filing of notice of appeal and before the filing of the record on appeal in the appellate court, the trial court, after the expiration of such thirty-day period, may still vacate, amend or modify its judgment upon stipulation of the parties accompanied by a withdrawal of the appeal.

 

The thirty-day period after entry of judgment for granting a new trial of the court's own initiative is not shortened by the filing of a notice of appeal but is terminated when the record on appeal is filed in the appellate court.

 

Rule 76. Executions (Refs & Annos)

 

 

76.01. Application for Execution

 

 

An execution may be issued on application signed by the party or his attorney and stating the address of the person making the application.

 

76.02. Repealed by order dated Dec. 20, 2005, eff. July 1, 2006

 

 

76.03. Execution Against Heirs

 

 

If there is a judgment against a deceased person whose estate has not been administered, an execution may be issued against his heirs to seize any property which belonged to the decedent at the time of his death.

 

76.04. Execution--When Returnable

 

 

An execution shall be returned at a date designated by the applicant, which shall not be less than thirty days nor more than ninety days after it is issued.

 

When an execution is levied upon property and a sale is not made before the return date of the execution, the execution and any lien created thereby shall remain in force for one hundred eighty days after the issuance of the execution or until the property is sold, whichever period is shorter.

 

76.05. How Directed and Executed

Executions shall be directed to “any sheriff in the State of Missouri” and may be executed in any county by the sheriff of that county. More than one execution may be outstanding at the same time.

 

76.06. Levy--How Made

 

 

(a) Real Estate. A levy upon real estate shall be made by the sheriff endorsing the description of the real estate upon the execution.

 

(b) Tangible Personal Property Which Can Be Seized. A levy upon tangible personal property shall be made by the sheriff taking possession of the property unless such seizure is impracticable.

 

(c) Tangible Personal Property Where Seizure is Impracticable. A levy upon tangible personal property where seizure is impracticable shall be made by the sheriff posting a notice of the levy upon the property or as near as practicable thereto.

 

(d) Property Subject to Garnishment. A levy upon property subject to garnishment, as defined in Rule 90.01, shall be made as provided in Rule 90.

 

(e) Partnership Interest. A levy upon an interest in a partner-ship shall be made as provided in Section 358.280, RSMo.

 

(f) Security or Share. A levy upon a security or any share or other interest evidenced thereby shall be made by actual seizure thereof by the sheriff but if the security is in the possession of the issuer a levy may be made by serving a written notice of the levy upon the issuer.

 

76.07. When Levy Creates Lien

 

 

A levy creates a lien upon personal property. A levy upon real estate not already subject to a lien of the judgment shall create a lien upon the filing of a notice of the levy with the recorder of deeds in the county in which the land is located. The notice of the levy shall contain a description of the real estate.

 

76.075. Exemptions

 

 

(a) Within three days after an officer has levied an execution, the officer shall notify the person against whom the execution has issued that an execution has been levied, that certain property, if any, is exempt under sections 513.430 and 513.440, RSMo, and that the person has the right to hold the property as exempt from attachment and execution. The officer shall also generally state that there are certain exemptions under state and federal law that the judgment debtor may be able to claim with respect to the property levied upon and describe the procedure for claiming the property as exempt. The notice shall also inform the person against whom the execution issues of the manner in which the person may obtain a specific description of the property upon which the levy was made. The notice may be served in the same manner as a summons or by mailing the notice to the judgment debtor at the debtor's last known address by regular mail. Service by mail shall be complete upon mailing.

 

(b) The judgment debtor may claim any exemption by filing a verified request with the levying officer within twenty days after notice of the levy. Any exemption allowed by federal law may be claimed at any time prior to the sale of property or disbursement of funds. Upon receipt of a verified request, the levying officer shall notify the party requesting the execution forthwith that a claim of exemption has been filed. If the levy is in the form of a garnishment upon the judgment debtor's wages, no such notification is required. The party requesting the execution may object to any claim for exemption within ten days of the filing of the verified request by filing a request for court review.

 

(c) If a request for court review is not timely filed, the levying officer shall release from execution the items claimed as exempt by the judgment debtor. Regardless of whether a request for court review is timely filed and where the property involves a garnishment upon the judgment debtor's wages, the levying officer shall release from execution the items claimed as exempt by the judgment debtor to the extent required by law at the time the claim for exemption is filed. If a request for court review is timely filed and the property does not involve a garnishment upon the judgment debtor's wages, the exemption claim shall first be reviewed and determined by the court before the levying officer shall release the items claimed as exempt. Any hearing required by the court shall be expedited, shall be held not later than thirty days after the filing of the request for court review, and shall be held upon not less than three days' notice of the hearing to all parties in interest.

 

76.08. Receiver--When Appointed

 

 

When property is seized on execution the court may appoint a receiver pursuant to Rule 68.02, who may be the sheriff holding the execution or some other person or corporation.

 

76.09. Election of Property to be Levied Upon

 

 

The person whose property is levied upon may elect the property, real or personal, to be levied upon. The election shall be made by delivering to the sheriff a list of property selected which is sufficient to satisfy the execution. The sheriff shall levy only upon the property selected unless the sheriff believes the property selected is not sufficient to satisfy the execution.

 

76.10. Who May Intervene

 

 

Any person, except the judgment debtor, claiming an interest in property which has been levied upon may intervene in the execution proceedings pursuant to Rule 52.12.

 

76.11. Execution on Real Estate--Amount to be Sold

 

 

When an execution is levied upon real estate, the sheriff levying the same shall divide such property, if susceptible of division, and sell so much thereof, as will be sufficient to satisfy such execution, unless the person whose property is levied upon desires the whole of any tract or lot of land to be sold together.

 

76.12. Election of Order of Sale

 

 

The person whose property is levied upon may elect the order of sale by delivering to the sheriff a statement, in writing, of such election at least three days before the day of the sale, stating specifically the order of sale desired. The sheriff shall proceed according to such election.

 

76.13. Notice of Sale of Personal Property

 

 

Before selling personal property under an execution, the sheriff, at least ten days before the sale, shall post three notices in public places in the township in which the sale is to be held. The notices shall describe the property to be sold, shall state the time and place of sale, and shall state the methods of payment approved by the judgment creditor.

 

If the court finds that the personal property is likely to perish or is likely to depreciate in value to a considerable extent, the period of notice may be shortened or eliminated.

 

76.14. Retention of Personal Property Pending Sale

 

 

The person whose personal property has been levied upon may retain or regain possession of the property until the time of sale, by giving bond, in favor of the judgment creditor executed by such person as principal and one or more sufficient sureties, approved by the sheriff, in double the value of such property, conditioned upon the delivery of the property at the time and place of sale.

 

76.15. Execution Sales of Land--Where Held

 

 

Execution sales of land shall be held at the courthouse door designated in the notice of sale. If the land is located in only one county the sale of the land shall be held in that county. If the lands are located in more than one county but are contiguous the sale of the land shall be held in any county where any part of the land is located. If the land is located in more than one county but in separate tracts, the sale or sales shall be held in the county or counties in which any of the land is located which the court designates.

 

76.16. Notice of Sale

 

 

Notice of a sale of land under execution shall be published in each county in which any of the land to be sold is located.

 

The notice shall state the time and place of sale, what land is to be sold and where situated, and the methods of payment approved by the judgment creditor.

 

The notice shall be published at least once a week for four successive weeks and shall appear on the same day of each week. The last insertion shall not be more than one week prior to the day of sale.

 

The notice shall be published by advertisement in some newspaper printed in the county, if there be one regularly published, weekly or daily. If there is no such newspaper, then the publication shall be in a newspaper designated by the court.

 

76.17. Notice to Person Whose Land is Levied Upon

 

 

At least thirty days before the sale of land the judgment creditor shall serve a notice of sale on the person whose land is levied upon by personal service or by mailing a copy thereof to the person's last known address.

 

Service may be shown by acknowledgment of receipt, written return of service, or by affidavit or by written certificate of counsel making such mailing.

 

Proof of service shall be filed in the court.

 

76.18. Sale--How Conducted

 

 

All property taken in execution by any officer shall be exposed to sale on the day for which it is advertised, between the hours of nine in the forenoon and five in the afternoon, publicly, by auction, for ready money, and the highest bidder shall be the purchaser. If approved by the judgment creditor and included in the notice of sale, the sheriff may accept payment by cashier's check, money order, or other method.

 

If there is insufficient time to sell all of the property during any one day, the sheriff shall continue such sale from day to day at the same place, shall announce that the sale is being adjourned, and shall announce the date and time the sale will recommence.

 

76.19. Resale When Purchaser Fails to Pay Purchase Price

 

 

If the purchaser at an execution sale fails to pay the purchase price under the terms of the sale, the sheriff making the sale shall resell the property. Upon motion by the sheriff to the court out of which the execution was issued or the circuit court of the county in which the sale was held, the court may enter a judgment against such purchaser for any loss occasioned by his failure to pay, and for costs. The sheriff may refuse bids of a purchaser who has so failed to pay. The sheriff shall not be liable for the amount of a bid which the purchaser fails to pay.

 

76.20. Sheriff Not to Purchase Property

 

 

Neither the sheriff conducting an execution sale nor his deputies, nor any person for them, shall purchase at such sale and all purchases so made shall be void.

 

76.21. Personal Property to be Delivered--Bill of Sale Given, When

 

 

A sheriff conducting an execution sale of personal property shall, upon payment of the purchase price, deliver the personal property to the purchaser and, upon request, execute and deliver a bill of sale to the purchaser.

 

76.22. Assignment of Security or Share

 

 

When any security or any share or other interest evidenced thereby is sold under execution, the sheriff making such sale shall execute and deliver to the purchaser an instrument in writing, reciting the sale and payment of the consideration and assigning to the purchaser such security, or any share or other interest evidenced thereby.

 

76.23. Deed for Real Estate Sold Under Execution

 

 

(a) Contents of Deed. The deed of the sheriff who has sold real estate or a lease for more than three years shall contain the names of the parties to the execution, the description of the property and the time, place, and manner of sale. The deed shall be prepared at the cost of the purchaser at the sale.

 

(b) Acknowledgment. The officer shall acknowledge his signature to the deed before the circuit court of the county in which the sale is held. If the sheriff who has sold real estate under an execution fails to acknowledge his signature in open court, such deed may be proved in court as other deeds.

 

(c) Certification by Clerk. The clerk of the court shall endorse upon the deed a certificate of the acknowledgment or proof, under the seal of the court, and shall make an entry of the acknowledgment or proof, with the names of the parties to the suit, and a description of the property conveyed.

 

76.24. Duties of Sheriff to be Performed by Successor

 

 

When the authority of a sheriff to whom a writ of execution has been delivered has been terminated before the sheriff has performed all of the duties in executing the writ, other than acknowledgment of a deed executed by the sheriff, such other duties as have not been performed shall be performed by the sheriff's successor or other person authorized by law to perform the duties of the sheriff.

 

76.25. Stay or Quashing of Execution--Bond

 

 

The person whose property has been levied upon may apply to the judge of the division of the court out of which the same was issued for a stay of execution or to quash the execution. Reasonable notice of the time of the hearing on the application shall be given to opposing parties. The application shall be by petition setting forth good cause why the execution should be stayed or quashed. The court may require the petitioner to provide a sufficient bond with adequate security approved by the court, conditioned upon the delivery of the property.

 

76.26. Breach of Bond--Judgment

 

 

Upon breach of the condition of a bond given under this Rule 76, the obligee may file a motion in the court in which the action is pending for judgment on the bond against obligor and his sureties, or any of them. A copy of the motion, and a notice of the time and place for hearing shall be served pursuant to Rule 54 upon each person against whom a judgment on the bond is sought. Any judgment on the bond shall be for the amount of the actual damages resulting from the breach of its conditions, not to exceed the amount of the bond, together with obligee's reasonable attorneys' fees and costs.

 

76.27. Examination of Judgment Debtor

 

 

When an execution is returned unsatisfied the judgment creditor may petition the court which rendered the judgment to enter an order requiring the judgment debtor to appear and be examined under oath concerning his means of satisfying the judgment.

 

76.28. Discovery in Aid of Execution

 

 

In aid of the judgment or execution, the judgment creditor, or a successor in interest when that interest appears of record, may obtain discovery as provided by Rules 57.01, 57.03, 57.04, 57.05, 57.06, 57.07, 57.09, 57.10, and 58.01 and may enforce discovery as authorized by Rule 61.01 or by an order treating as a contempt of court the failure to comply with the discovery request. However, the scope of post-judgment discovery shall be limited to matters, not privileged, that are relevant to the discovery of assets, including insurance, or income subject to execution or garnishment for the satisfaction of judgments.

 

Rule 77. Costs (Refs & Annos)

 

 

77.01. Costs--Recovery in Civil Actions

 

 

In civil actions, the party prevailing shall recover his costs against the other party, unless otherwise provided in these rules or by law.

 

77.02. Security for Costs

 

 

The court may require a party to furnish adequate security for anticipated costs. If the security for costs is not furnished as ordered, the court may dismiss the civil action or order other appropriate relief.

 

77.03. Plaintiff may Sue as a Poor Person--When

 

 

If the plaintiff is a poor person, the court may permit the plaintiff to commence and prosecute the civil action without making a cost deposit or furnishing security for costs.

 

77.04. Offer of Judgment--Recovery of Costs

 

 

At any time more than thirty days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within ten days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon judgment shall be entered. If the offer is not accepted within ten days it shall be deemed withdrawn and evidence thereof is not admissible. If the adverse party fails to obtain a judgment more favorable than that offered, that party shall not recover costs in the circuit court from the time of the offer but shall pay costs from that time.

 

77.05. Costs--Review by Court

 

 

Any party, on motion, may have a bill of costs reviewed by the court in which the civil action was heard.

 

77.06. Execution for Costs

An execution may issue for costs either before or after final judgment.

 

Rule 78. New Trials--After-Trial Motions--Preservation of Error (Refs & Annos)

 

 

78.01. Granting a New Trial

 

 

The court may grant a new trial of any issue upon good cause shown. A new trial may be granted to all or any of the parties and on all or part of the issues after trial by jury, court or master. On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact or make new findings, and direct the entry of a new judgment.

 

78.02. New Trial--Against Weight of Evidence--Limitation

 

 

Only one new trial shall be allowed on the ground that the verdict is against the weight of the evidence.

 

78.03. Order Granting New Trial Shall Specify Grounds

 

 

Every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted.

 

78.04. Motion for New Trial--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. If the motion is filed prematurely, the motion shall be considered as filed immediately after the time the judgment is finally entered.

 

78.05. After-Trial Motions, Including a Motion for a New Trial Based Upon Affidavits

 

 

When any after-trial motion, including a motion for new trial, is based on facts not appearing of record, affidavits may be filed which affidavits shall be served with the motion. The opposing party has 10 days after such service within which to serve opposing affidavits, which period may be extended for an additional period not exceeding 20 days either by the court for good cause shown or by the parties by written stipulation. The court may permit reply affidavits. Depositions and oral testimony may be presented in connection with after-trial motions.

 

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, 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.

 

78.08. New Trial--Plain Errors May Be Considered

 

 

Plain errors affecting substantial rights may be considered at a hearing on motion for a new trial, in the discretion of the court, though not raised in the motion or defectively raised, when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.

 

78.09. Exception Unnecessary to Rulings or Orders of the Court

 

 

Formal exceptions to rulings or orders of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action that the party desires the court to take or objections to the action of the court and grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice the party.

 

78.10. Additur and Remittitur

 

 

(a) Any party requesting additur or remittitur shall file a motion for such relief within the time prescribed by Rule 78.04 for filing a motion for new trial.

 

(b) If the court sustains the motion in whole or in part, the court's order shall afford each party opposing such relief the option to file an election of a new trial. The election of a new trial shall be filed within 30 days of the date of the order. The order sustaining the motion shall specify whether the new trial will be on damages or on all issues. Absent timely election, each party opposing such relief shall be deemed to have accepted the additur or remittitur. If additur or remittitur is accepted, the trial court shall promptly amend the judgment to conform to the additur or remittitur.

 

(c) A party that requested additur or remittitur in the trial court and received less than the full relief requested may renew the request in the appellate court. If the appellate court grants additional relief, in whole or in part, it shall afford each party opposing such relief the option to file in the circuit court an election of a new trial. The election shall be filed within 30 days of the date of the mandate.

 

The decision granting additional relief shall specify whether the new trial will be on damages or on all issues.

 

Absent timely election, each party opposing such relief shall be deemed to have accepted the additur or remittitur. If additur or remittitur is accepted, the trial court shall promptly amend the judgment to conform to the additur or remittitur.

 

(d) Consent to any additur or remittitur that the trial court awards in lieu of a new trial does not preclude the consenting party from arguing on appeal that the amount of the verdict was proper or that the amount of the additur or remittitur is excessive. A party consenting to additur or remittitur may not initiate the appeal on that ground but may raise the issue on the other party's appeal.

 

(e) Neither the trial court nor the appellate court may award additur or remittitur more than once on the ground that the damages are against the weight of the evidence.

 

Rule 79. Assignment of Judges in Case of Disability

 

 

79.01. Other Judge Sitting in or Assigned to Court May Perform Judge's Duties--When

 

 

If by reason of going out of office, death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact are filed, then any other judge sitting in or assigned to the court in which the action was tried may perform those duties; but if such other judge is satisfied that those duties cannot be performed because such judge did not preside at the trial or for any other reason, such judge may grant a new trial.

 

Rule 80. Assignment of Judges in Case of Disability

 

 

80.01. Repealed by order dated March 29, 1974, eff. Jan. 1, 1975

 

 

Rule 81. Appeals (Refs & Annos)

 

 

81.01. Right of Appeal

 

 

The right of appeal shall be as provided by law.

 

81.02. Appeals Jointly or Separately

 

 

Parties may join in an appeal or any one or more of them may appeal separately.

 

81.03. Designation of Parties on Appeal

 

 

The party appealing shall be known as the appellant and the adverse party as the respondent, but the title of the action shall not be changed in consequence of the appeal. Whenever the words “appellant” and “respondent” appear in these Rules, they shall be taken to mean and include other parties occupying like positions in a case.

 

81.04. Appeals, When and How Taken--Cross Appeals--Docket Fees

 

 

(a) Filing The Notice of Appeal. When an appeal is permitted by law from a trial court, a party may appeal from a judgment or order by filing with the clerk of the trial court a notice of appeal. No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final.

 

(b) Cross Appeals. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within ten days of the date the first notice of appeal was filed.

 

(c) Class Action Certification Appeal. Petitions to appeal an order granting or denying class action certification shall be filed as provided in Rule 84.035.

 

(d) Docket Fees. The appellate court docket fee, including all surcharges, 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.

 

81.05. 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.

 

(b) Premature Filing of Appeal. In any case in which a notice of appeal has been filed prematurely, such notice shall be considered as filed immediately after the time the judgment becomes final for the purpose of appeal.

 

(c) Computation of Time. The ninety-day period shall be computed as in Rule 78.06.

 

81.06. Repealed by order dated May 22, 1987, eff. Jan. 1, 1988

 

 

81.07. When Party May Appeal After Time for Filing of Notice Has Expired

 

 

(a) Appeal by Special Order--Motion--Notice. When an appeal is permitted by law from a judgment in the trial court, but the time prescribed for filing an ordinary notice of appeal with the clerk of the trial court as set forth in Rule 81.04 has expired, a party may seek a special order of the appropriate appellate court permitting a late filing of the notice of appeal. The special order may be allowed by the appellate court only upon motion with notice to the adverse parties filed within six months from the date the judgment appealed from became final for purposes of appeal and only upon a showing by affidavit, or otherwise, that the delay was not due to appellant's culpable negligence. A copy of the judgment from which the appeal is sought shall be attached to any such motion. When notified of the issuance of a special order by the appellate court, the clerk of the trial court in which the judgment was entered shall permit the appellant to file a notice of appeal within ten days after such notification, or such other time as specified in the order, and the appellant shall then proceed to prepare the record on appeal as if the appeal had been allowed without a special order.

 

(b) Power to Issue Stay--Supersedeas in Special Appeals. When an appeal is taken after a special order, the power to issue a stay is lodged exclusively in the appellate court, which may in its discretion decline to issue a stay, issue a stay upon such terms with respect to a supersedeas bond as may be appropriate, or remand to the trial court for a determination as to whether a stay should be issued and to the amount of the bond. The supersedeas shall be filed in the trial court and the sureties therein shall be subject to the jurisdiction of the trial court and appellate court. If a final judgment in the trial court is reversed or modified by the appellate court such reversal or modification shall not affect the rights of any person, not a party to such suit, acquired in good faith after expiration of the time prescribed for taking an appeal without a special order, but before the filing of notice of appeal by special order.

 

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.

 

(b) Jurisdictional Statement. If the appeal is to the Supreme Court the appellant shall file with the clerk of the trial court as part of or with appellant's notice of appeal a concise explanation, together with suggestions not to exceed six pages, if desired, detailing the judgment or order appealed from and sufficient other facts about the case to show that jurisdiction of the appeal is in the Supreme Court. When the jurisdictional statement is filed as part of or with the notice of appeal, the clerk of the trial court shall serve copies of the same on all parties to the judgment other than the party or parties taking the appeal in accordance with subparagraph (d) of this Rule. Sufficient copies shall be supplied by appellant. As an alternative to filing a jurisdictional statement at the time of the filing of the notice of appeal, an appellant may, within ten days of the filing of the notice of appeal, file such jurisdictional statement with the clerk of the Supreme Court and shall serve a copy of such jurisdictional statement on all other parties to the judgment. Any other party may, within ten days after being served with a copy of appellant's jurisdictional statement, file in the Supreme Court suggestions in opposition not to exceed six pages and shall serve a copy thereof on appellant and all other parties.

 

If the appeal involves a post-conviction case, the appellant's jurisdictional statement shall also give the nature of the offense and the section of the statute under which defendant was convicted.

 

The jurisdictional statement required by this Rule is for the purpose of facilitating appeals and preventing delays and is not a substitute for the jurisdictional statement required by these Rules to be set forth in appellant's brief.

 

(c) Examples of Jurisdictional Statements. Bare recitals such as “This case involves construction of the Constitution of the United States or of this state,” “This case involves construction of the revenue laws of the State of Missouri” or other similar general statements or conclusions are insufficient and will not be accepted.

 

The following is an example of a sufficient explanation in a case involving construction of the revenue laws: “This action is one involving the question of whether the respondent's machinery and equipment used in its operations in removing rock from the ground were exempt from the state sales tax law as being machinery and equipment falling within the exemption provided by Section 144.040.3(4) and hence involves the construction of a revenue law of this state.”

 

(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.

 

81.09. Appeals Shall Stay Execution, in What Cases--Bond

 

 

(a) Stay of Execution--Supersedeas Bond. Appeals shall stay the execution in the following cases: (1) when the appellant shall be an executor or administrator, personal representative, conservator, guardian, or curator, and the action shall be by or against the appellant as such, or when the appellant shall be a county, city, town, township, school district, or other municipality; (2) when the appellant, at or prior to the time of filing notice of appeal, presents to the court for its approval a supersedeas bond which shall have such surety or sureties as the court requires. The court may also at or prior to the time of filing notice of appeal, by order of record, fix the amount of the supersedeas bond and allow appellant reasonable time, not exceeding thirty days, from the date of the order to file the same subject to the approval of the court or clerk, and such appeal bond, approved by the court or clerk and filed within the time specified in such order, shall have the effect of staying the execution thereafter. If any execution shall have been taken prior to the filing of the bond as so approved by the court or clerk, the same shall be released. Appellant shall file a copy of a proper appeal bond, including complete current addresses, with the clerk of the appellate court within ten days after filing the appeal bond.

 

(b) Form of Bond--Amount. The bond shall be conditioned for the satisfaction of the judgment in full together with costs, interest, and damages for delay, if for any reason the appeal is dismissed or if the judgment is affirmed, and to satisfy in full such modification of the judgment and such costs, interest, and damages as the appellate court may adjudge and award. When the judgment is for the recovery of money not otherwise secured, the amount of the bond shall be fixed at such sum as will cover the whole amount of the judgment remaining unsatisfied, costs on the appeal, interest, and damages for delay, unless the court after notice and hearing and for good cause shown fixes a different amount or orders security other than the bond. When the judgment determines the disposition of the property in controversy as in real actions, replevin, and actions to foreclose mortgages, or when such property is in the custody of the sheriff, or when the proceeds of such property or a bond for its value is in the custody or control of the court, the amount of the supersedeas bond shall be fixed at such sum only as will secure the amount recovered for the use and detention of the property, the costs of the action, costs on appeal, interest, and damages for delay. The bond will indicate the addresses of the sureties.

 

(c) Application to the Appellate Court. Any party who believes that the bond or the security is inadequate or excessive may file an application in the court in which the appeal is pending stating the grounds for the application and the relief sought. If the court finds that the bond or the security is inadequate or excessive, the court shall make an order modifying the conditions of the stay of execution.

 

81.10. When and Where Bond May Be Filed

 

 

If the notice of appeal has not been filed, a bond may be filed with the permission of the trial court. After the notice of appeal is filed, the application to file a bond may be made only in the appellate court. The appellate court may in its discretion decline to grant the application, issue a stay upon such terms with respect to a supersedeas bond as may be appropriate, or remand to the trial court for a determination in accordance with Rule 81.09. The bond or other security shall be filed in the trial court and the sureties therein shall be subject to the jurisdiction of the trial and appellate court.

 

81.11. Supersedeas Bond--Enforcement of

 

 

By entering into a supersedeas bond, the surety submits to the jurisdiction of the trial court, and the liability may be enforced on motion for judgment thereon, without the necessity of an independent action. A copy of the motion, and such additional notice of the motion as the court requires, shall be served like a summons upon a surety who resides and can be found in the county where the judgment was entered or who maintains an office and agent in said county where and upon whom such service may be made. If the surety is not a resident who can be found in said county or if the surety maintains no office and agent for service there, at the time such motion is filed, by entering into such bond the surety shall be deemed to have irrevocably appointed the clerk of the trial court as agent upon whom any papers affecting the surety's liability on the bond may be served; and the clerk shall forthwith mail copies of any such papers to such surety at the surety's last known address, by registered or certified mail.

 

81.12. Contents of the Record on Appeal--Designation of the Record on Appeal--Compiling, Ordering, Filing and Service of Record on Appeal--Errors, Omissions and Supplemental Record on Appeal

 

 

(a) Contents of Record on Appeal. The record on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented, by either appellant or respondent, to the appellate court for decision. In order to reduce expense and expedite the preparation of the record on appeal, it is divided into two components, i. e. the “legal file” and the “transcript.”

 

The legal file shall be so labeled with a cover page and contain clearly reproduced exact copies of the pleadings and other portions of the trial record previously reduced to written form. The documents in the legal file shall be arranged with a docket sheet or case record on top numbered as page 1. The oldest document shall follow the docket sheet, with the remaining documents arranged in chronological order, ending with the notice of appeal at the bottom.

 

The transcript shall contain the portions of the proceedings and evidence not previously reduced to written form.

 

The legal file shall always include: the docket sheet or case record, which contains a complete summary of all events in the case; the pleadings upon which the action was tried, the verdict, the findings of the court or jury, the judgment or order appealed from, motions and orders after judgment, and the notice of appeal, together with their respective dates of filing or entry of record; except the parties may agree in writing upon an abbreviated or partial record on appeal or upon a statement of the case as provided in Rule 81.13.

 

(b) Matters Omitted. The record on appeal shall not include or set forth the original or any subsequent writ or the return thereto unless a question is raised as to the regularity of the process or its execution or as to the jurisdiction of the court. If any pleading be amended the record on appeal shall include the last amended pleading and shall not set forth any abandoned pleadings or abandoned part of the record not introduced in evidence. No matter touching on the organization of the court, or any continuance, motion, or affidavit, not material to the questions presented for determination, shall be inserted in the record on appeal. Documentary evidence, where there is no dispute as to its admissibility or legal effect, may be stated according to its legal effect. Formal parts not in dispute shall be omitted. No part of the record when once set forth in the record on appeal should be repeated in any other part of the record on appeal.

 

The following items shall not be included in the record on appeal unless specifically requested and necessary to determination of issues on appeal: voir dire, opening statements, closing arguments, MAI 2.01, evidence regarding damages, briefs and memoranda, notices of filing, subpoenas, summonses, motions to extend time, affidavits and admissions of service and mailing, notices of settings, depositions and notices, and jury lists.

 

(c) Duty of Appellant to Order the Transcript and Compile the Record on Appeal. Within ten days after the notice of appeal is filed, appellant shall order the transcript, in writing, from the reporter or from the clerk of the trial court if the proceedings were recorded by means of an electronic sound recording. Charges due for preparation of the transcript shall be paid as directed in § 512.050, RSMo. The written order shall designate the portions of the proceedings and evidence not previously reduced to written form that are to be included in the transcript. Appellant's certificate stating the date on which the transcript was ordered and the date on which the transcript charges were paid shall be filed in the appellate court within ten days after the payment of the charges. A copy of appellant's certificate shall be served on all other parties.

 

Appellant also shall prepare the legal file, including the index thereto, and serve a copy upon all other parties. Unless the parties file a written agreement regarding the legal file as provided in Rule 81.15(c), appellant shall order any documents that are needed for the legal file from the clerk of the trial court within thirty days after the notice of appeal is filed. Unless the parties file a written agreement regarding the legal file as provided in Rule 81.15(c), the clerk of the trial court shall certify copies of the documents needed for the legal file as provided in Rule 81.15(a). Appellant shall be responsible for preparing the legal file, including the index thereto, from the certified copies of such documents.

 

If a respondent is dissatisfied with appellant's record on appeal, that respondent may file within the time allowed for filing respondent's brief such additional parts of the record on appeal as respondent considers necessary. Respondent shall contemporaneously serve a copy of such supplemental record on all other parties.

 

(d) Record on Appeal--When and Where Filed and Served. Within the time prescribed by Rule 81.19, the appellant shall cause the record on appeal to be prepared in accordance with the provisions of this Rule 81 and to be filed with the clerk of the proper appellate court and shall serve a copy thereof on the respondent or, in the case of multiple respondents, in the manner provided in Rule 81.14(d). If a floppy disk is filed with the transcript, a copy of the disk also shall be served. Proof of such service shall be filed with the appellate court. A copy of both the index of the transcript and the index of the legal file, with the caption of the case noted thereon, shall be filed with the clerk of the trial court. A copy of the complete transcript and legal file shall not be filed with the trial court except upon court order. In the event of the filing of any additional or supplemental record pursuant to Rule 81.12(c) or Rule 81.12(e), such additional or supplemental record shall be served, and copies of the indexes thereto shall be filed with the clerk of the trial court as provided herein.

 

(e) Exhibits--Appellant Shall Deposit. Appellant is responsible for depositing all exhibits that are necessary for the determination of any point relied on. If a party other than appellant has custody of exhibits, appellant may request that party to either deposit the exhibits with the appellate court or deliver them to appellant for deposit with the court. The party having custody shall either promptly deliver them to appellant or deposit them with the court. Respondent may deposit such additional exhibits as respondent considers necessary.

 

All exhibits shall be deposited pursuant to Rule 81.16.

 

A party depositing exhibits with the appellate court shall serve on all other parties on the day of deposit a listing and description of the exhibits deposited.

 

(f) Errors--Omissions--Supplemental Record on Appeal. If anything material is omitted from the record on appeal, the parties, by stipulation, or the appellate court, on a proper suggestion or of its own initiative, shall direct that the omission or misstatement be corrected. The appellate court may, if it deems necessary, order that a supplemental record on appeal be prepared and filed by either party or by the clerk of the trial court including any additional part of the trial record, proceedings, and evidence, or the clerk may be directed to send up any original documents or exhibits.

 

81.13. Agreed Statement as the Record on Appeal

 

 

When the questions presented by an appeal can be determined without an examination of all the pleadings, evidence and proceedings in the court below, the parties may prepare and sign a statement of the case showing how the questions arose and were decided in the trial court and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the questions by the appellate court. The statement shall include a copy of the judgment or order appealed from, a copy of the notice of appeal with its filing date and a concise statement of the points to be relied on by the appellant. If the statement conforms to the truth, it, together with such additions as the Court may consider necessary fully to present the questions raised by the appeal, shall be approved by the trial court and shall then be certified to the appellate court as the record on appeal.

 

81.14. The Record on Appeal, Multiple Appeals--Form of Record on Appeal

 

 

(a) Multiple Appeals--The Record on Appeal. If more than one appeal is taken from the same judgment, a single record on appeal may be prepared with each appellant sharing the cost.

 

(b) Form--Index and Page Numbers. The pages of both the legal file and the transcript shall be numbered consecutively and each shall contain a complete index at the front thereof designating the specific volumes and pages where the particular records, pleadings, motions, verdicts, judgment, orders, instructions, evidence, exhibits, and documentary evidence may be found. If portions of the trial record, proceedings, and evidence are omitted from the transcript, the indices shall so indicate. If the transcript includes the testimony of witnesses, the index shall refer to the transcript pages where the several examinations (direct, cross, re-direct, etc.) of each witness may be found. Exhibits shall be identified in the index by number or letter and page and, in addition, shall be described so that the court can distinguish the exhibits.

 

(c) Form of Record on Appeal. The legal file shall be duplicated by any clear dry duplicating process but may be typewritten or printed if the duplicating process is inadequate.

 

The transcript shall be typewritten or printed or prepared by any other clear dry duplicating process. If typewritten, the legal file or transcript shall comply with the requirements of Rule 81.18. If duplicated, the legal file shall be a true copy of the original documents.

 

(d) Multiple Respondents. In every case where there is more than one party respondent, and all of such parties respondent are not represented by the same counsel, the appellant shall serve a copy of the legal file on each respondent. The appellate court, on application therefor, may make such order respecting delivery of a copy of the transcript as may be just and equitable.

 

81.15. Certification of Record on Appeal

 

 

(a) Except as provided in Rule 81.15(c), the legal file shall be certified by the clerk of the trial court to consist of true copies of portions of the trial record, proceedings, and evidence previously reduced to writing and filed in the trial court.

 

(b) If the trial proceedings are recorded by a court reporter present at the time of such proceedings, the transcript thereof shall be certified by the court reporter as a true and accurate reproduction of the proceedings transcribed. If the trial proceedings are recorded by means of a electronic sound recording, the transcript thereof shall be certified by the transcriber as a true and accurate reproduction of the sound recording.

 

(c) The legal file certified as provided in Rule 81.15(a) and the transcript certified as provided in Rule 81.15(b) shall be filed by the clerk of the appellate court without need for the parties to approve them. The filing of the legal file or the transcript shall not operate as a waiver by the filing party of the right to dispute the correctness thereof as provided in Rule 81.15(d). If the parties agree in a writing filed with the appellate court that either the legal file or the transcript is, or that both the legal file and the transcript are, true and accurate, certification shall not be required of that part of the record on appeal on which such agreement is reached, and that part of the record on appeal shall be filed by the clerk of the appellate court.

 

<Text of subd. (d) effective until July 1, 2010.>

 

(d) If there is any dispute concerning the completeness of the record on appeal, additional parts of the record on appeal may be filed pursuant to Rule 81.12(c), or the record on appeal may be supplemented pursuant to Rule 81.12(e). If there is any dispute concerning the correctness of any legal file or transcript, the party disputing the correctness thereof shall designate in writing to the appellate court those portions of the legal file or transcript that are disputed. Such designation shall be filed with the appellate court within fifteen days after the legal file or the transcript, whichever is in dispute, is filed. The appellate court, either on application or on its own motion, may enlarge the time within which any such designation shall be filed. The appellate court shall direct the trial court to settle the dispute and to certify the correct contents of such portion to the appellate court, and such certification by the trial court shall become a part of the record on appeal.

 

<Text of subd. (d) effective July 1, 2010.>

 

(d) If there is any dispute concerning the completeness of the record on appeal, additional parts of the record on appeal may be filed pursuant to Rule 81.12(c), or the record on appeal may be supplemented pursuant to Rule 81.12(f). If there is any dispute concerning the correctness of any legal file or transcript, the party disputing the correctness thereof shall designate in writing to the appellate court those portions of the legal file or transcript that are disputed. Such designation shall be filed with the appellate court within fifteen days after the legal file or the transcript, whichever is in dispute, is filed. The appellate court, either on application or on its own motion, may enlarge the time within which any such designation shall be filed. The appellate court shall direct the trial court to settle the dispute and to certify the correct contents of such portion to the appellate court, and such certification by the trial court shall become a part of the record on appeal.

 

<Text of subd. (e) effective until July 1, 2010.>

 

(e) The provisions of this Rule 81.15 relating to certification and correctness of the record on appeal shall apply also to any additional parts of the record filed pursuant to Rule 81.12(c) and to any supplemental record filed pursuant to Rule 81.12(e).

 

<Text of subd. (e) effective July 1, 2010.>

 

(e) The provisions of this Rule 81.15 relating to certification and correctness of the record on appeal shall apply also to any additional parts of the record filed pursuant to Rule 81.12(c) and to any supplemental record filed pursuant to Rule 81.12(f).

 

81.16. Exhibits--Records on Appeal--Transcript, Exhibits Need Not Be Incorporated

 

 

(a) If original exhibits are necessary to the determination of any point relied on, they shall be deposited in the appellate court.

 

(b) If it is impracticable to deposit any exhibit, it may be represented by photograph, mechanical drawing, or other means that fairly depict the exhibit.

 

(c) Original exhibits shall be deposited with the appellate court on or before the day the reply brief is due or when the court so directs, whichever is earlier. Any exhibits not timely deposited may be considered by the court as immaterial to the issues on appeal.

 

(d) Unless deposited exhibits are removed from the custody of the clerk within 30 days after the case is finally decided, upon prior notice to the parties, they may be destroyed or disposed of by the clerk. Exhibits shall not be destroyed or disposed of in post-conviction proceedings.

 

81.17. Record on Appeal--Reviewing Legal Effect of Instructions, Evidence Not Necessary, When

 

 

When an appellant desires only to have reviewed legal questions with respect to instructions given or refused and a review of the evidence is unnecessary to pass on those legal questions it is not necessary for the appellant to include the evidence in the record on appeal. In such case the appellant shall serve upon the respondent and file in the appellate court, within thirty days after the filing of the last notice of appeal, a designation of the parts of the trial record, proceedings, and evidence which the appellant intends to include in the record on appeal and a statement of the issues the appellant intends to present on appeal. The statement shall show what material fact or facts the evidence tended to prove. If the respondent considers other parts of the trial record, proceedings, and evidence to be necessary, the respondent shall, within ten days after the service of the statement of appellant, serve upon the appellant and file in the appellate court a designation of additional parts which the respondent intends to include in the record on appeal and any additional issues the respondent intends to present on appeal. Failure of the respondent to serve and file such indication shall constitute an admission and agreement that the respondent agrees that the statement is correct and that a transcript of the evidence need not be included in the record on appeal.

 

81.18. Form of Typewritten Transcripts and Other Documents

(a) Typewritten documents shall be legible, on paper of size 8 1/2 x 11 inches, securely bound and paged at the bottom.

 

Documents shall be on bond paper weighing not less than nine pounds to the ream, shall be typed on one side of the paper, shall be double-spaced, and shall have a left margin of not less than one inch.

 

If a cover is required, the documents shall have a tan cover.

 

The type used shall be not less than a ten pitch and ten characters to the inch in a fixed space type. If a proportionally spaced type is used, it shall be not smaller than 13 point, Times New Roman font on Microsoft Word.

 

(b) Typewritten transcripts shall conform to the provisions of Rule 81.18(a) except that:

 

(1) There shall be no fewer than nine characters to the typed inch;

 

(2) They shall be securely bound on the left side with either spiral binding or fasteners that extend a full one inch beyond the depth of the volume;

 

(3) They shall have a left margin of not less than one and one-fourth nor more than one and three-fourth inches;

 

(4) They shall have a right margin of not more than three-eighths of an inch; and

 

(5) There shall be no fewer than 25 typed lines per sheet of paper.

 

Each question and answer must begin no more than five spaces from the left margin, with no more than five spaces from the “Q” and “A” to the text. Carry-over questions and answers shall begin at the left margin.

 

A volume of transcript shall not exceed 200 sheets of paper.

 

(c) In lieu of filing a transcript as provided in Rule 81.18(b), a party may file a transcript in page reduction format. Page reduction transcripts shall conform with the provisions of Rule 81.18(b), except that not more than four pages of transcript may appear on each side of each sheet of paper in the page reduction format. The party filing a transcript in page reduction format shall file the full-page transcript with the court if ordered by the court to do so. Further, if a page reduction format transcript is filed, it shall be accompanied by floppy disks containing the transcript. The floppy disk shall be double sided, high density 1.44 MB, 3 1/2 inch size. An adhesive label shall be affixed to each disk legibly identifying the caption of the case, the disk number (e.g., “Disk 1 of 2”), and the word processing format (e.g., Microsoft Word). Word format shall be used if available. If Word is unavailable, the material shall be formatted in WordPerfect 5.x or higher.

 

(d) Legal files shall conform to the provisions of Rule 81.18(a) except that they shall be securely bound on the top or left side. If fasteners are used to bind the legal file, they shall extend a full one inch beyond the depth of the volume. A volume of the legal file shall not exceed two hundred pages.

 

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.

 

81.20. Record on Appeal--Extension or Reduction of Time for Filing

 

 

The appellate court, either on application or on its own motion, may enlarge or shorten the time for filing the record on appeal.

 

Part II. Rules Relating to All Appellate Courts

 

 

Rule 82. Terms and Duties of Chief Justice and Judges of This Court and the Court of Appeals--Designation of Court of Appeals and Districts Thereof--Duties and Other Matters Relating to the State Courts Administrator and Other Court Personnel (Refs & Annos)

 

 

82.01. Terms and Duties of Chief Justice and Presiding Judges--Supreme Court

 

 

Judges of this Court shall elect from their number a chief justice to preside over the Court en Banc who shall serve for a term of two years and shall be the administrative officer of the Court.

 

A presiding judge of each division of this Court shall be elected by the judges thereof and shall serve a term of two years. He shall be the administrative officer of the division.

 

82.02. Court of Appeals and Districts--Terms and Duties of Chief Judges of the Court of Appeals

 

 

1. The court of appeals established by Article V of the Constitution of Missouri, as amended effective January 1, 1972, shall be officially known and designated as the Missouri Court of Appeals and the three districts thereof shall be respectively denominated as the Eastern, Western, and Southern districts.

 

2. The judges of each district of the court of appeals shall elect from their number a chief judge. He shall be the administrative officer of the district.

 

82.03. State Courts Administrator

 

 

(a) Duties. Under the authority and supervision of this Court, the state courts administrator shall have the following duties:

 

(1) Promulgate and administer the administrative methods and systems adopted by this Court for use in the office of the clerks of the various state and municipal courts.

 

(2) Make recommendations from time to time concerning the administrative methods and systems used in the office of the clerks of the various state and municipal courts.

 

(3) Assemble information concerning the current state of dockets, determine where assistance is needed and recommend assignment of judges.

 

(4) Collect and publish reports of business transacted by the courts, the state of dockets and court facilities.

 

(5) Prepare and submit budget estimates of the state appropriations necessary for the maintenance and operation of the judicial system.

 

(6) Administer the payment of state monies appropriated for the maintenance and operation of the judicial system.

 

(7) Develop and administer programs of judicial education.

 

(8) Process requests for transfer of judges.

 

(9) Perform duties required under administrative rule of the Court.

 

(10) Repealed by order dated Dec. 19, 1997, effective July 1, 1998.

 

(b) Prohibition Against Practice of Law. The state courts administrator and employees of the office shall not engage in the practice of law or do any law business.

 

(c) Prohibition Against Political Activity. The state courts administrator and employees of the office shall not directly or indirectly make any contributions to or hold any office in a political party or organization or take part in any political campaign, nor shall any employee be hired or discharged on a political or party basis.

 

(d) Oath. Before assuming the duties of the office, the state courts administrator shall take and subscribe to an oath to support the Constitution of the United States and the State of Missouri, and faithfully to demean himself or herself while in the office, and that the person will not disclose or reveal any fact or information obtained relating to any case, matter, opinion or proceeding pending in court before the same has been made public by this Court.

 

82.04. Compliance with Requests of State Courts Administrator for Information

 

 

The judges and clerks of all courts and all other officers shall comply with the requests made by the state court administrator for information, statistical data and reports bearing on the state of the dockets and business transacted by the courts and other matters pertinent to the efficient operation of the judicial system and to carrying out the provisions of Article V of the Constitution.

 

82.05. Restrictions on Legal Personnel After Employment by a Court

 

 

(a) Supreme Court. In addition to any restrictions on practice imposed by Rule 4, a person who has been employed as a lawyer, law clerk, research attorney, or legal assistant by this Court shall not appear at counsel table or sign any filing in any case before this Court for a period of six months after leaving this Court's employment.

 

(b) Court of Appeals. In addition to any restrictions on practice imposed by Rule 4, a person who has been employed as a lawyer, law clerk, research attorney, or legal assistant by a district of the court of appeals shall not appear at counsel table or sign any filing in any case before that district for a period of six months after leaving that district's employment.

 

Rule 83. Transfers from Court of Appeals to This Court (Refs & Annos)

 

 

83.01. Transfer Upon Application Prior to Disposition by Court of Appeals

 

 

This Court on its own motion or on application of a party may transfer to this Court from the court of appeals a case in which there has been no disposition. The transfer shall be for any of the reasons stated in Rule 83.02 or for the purpose of equalizing the workload of the appellate courts.

 

Any party requesting such transfer shall file an application in this Court within ten days after the filing of the record on appeal in the court of appeals. In connection with the consideration of an application for transfer under this Rule 83.01, this Court may order the record on appeal forwarded to it.

 

Applications for transfer filed pursuant to this Rule 83.01 shall not affect the time for filing briefs unless this Court so orders. In the event of transfer under this Rule 83.01, briefs already filed in the court of appeals shall be considered as having been filed in this Court, and briefs not yet filed in the court of appeals on the date of the order of transfer shall be filed directly in this Court within the time prescribed for filing briefs when no transfer is ordered.

 

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.

 

83.03. Transfer on Dissent of Participating Judge

 

 

If a participating judge dissents from a majority opinion filed in the court of appeals and certifies that the judge deems the opinion to be contrary to any previous decision of an appellate court of this state, the case shall be transferred to this Court.

 

83.04. Transfer by This Court After Opinion by Court of Appeals

 

 

Transfer by this Court is an extraordinary remedy that is not part of the standard review process for purposes of federal habeas corpus review.

 

If an application for transfer under Rule 83.02 has been denied, the case may be transferred by order of this Court on application of a party for any of the reasons specified in Rule 83.02 or for the reason that the opinion filed is contrary to a previous decision of an appellate court of this state.

 

Application for such transfer shall be filed in this Court within fifteen days of the date on which transfer was denied by the court of appeals.

 

No response to an application for transfer shall be filed unless requested by the Court.

 

Motions for reconsideration of the Court's action in refusing an application for transfer shall not be accepted or filed.

 

83.05. Application--Form--Contents

 

 

(a) The application for transfer mentioned in Rules 83.02, 83.03, and 83.04 may be printed or typewritten and shall not exceed twelve pages.

 

(b) The applicant shall concisely set out on the first page of the application the questions of general interest and importance, the existing law that requires reexamination, and the opinions of the appellate courts of this state that are contrary to the opinion of the court of appeals sought to be reviewed. The application may allege more than one ground, concurrently or in the alternative.

 

The applicant shall express the ground or grounds for transfer in the terms and circumstances of the case but without unnecessary detail. The matters shall be set out in short and concise terms that are not argumentative or repetitious. No other information shall appear on the page setting out the reasons for seeking transfer.

 

The failure to set out necessary matters with accuracy, brevity and clearness shall be a sufficient reason for denying the application.

 

(c) The remainder of the application shall contain a statement of the facts pertinent to the application and a discussion of the legal basis upon which the applicant seeks transfer.

 

(d) Exhibits consisting of written documents that are included in or attached to the application shall be counted as part of the application for purposes of the page limitation contained in Rule 83.05(a). No other exhibits shall be included in or attached to the application or shall otherwise be filed.

 

(e) The original application for transfer filed in this Court and each copy of the application required by Rule 84.25(b) shall be accompanied by a cover page substantially in conformity with Civil Procedure Form No. 15 and by the following:

 

(1) The opinion or order of disposition of the court of appeals, and

 

(2) The motion for rehearing, if any, and application for transfer filed in the court of appeals.

 

(f) The original application for transfer filed in this Court shall be accompanied by the following:

 

(1) The docket fee in the amount specified by Rule 81.04(d);

 

(2) Proof of notice to the clerk of the court of appeals and each opposing party to the application for transfer; and

 

(3) A copy of the notice from the court of appeals denying the motion for rehearing, if any, and application for transfer to this Court filed in the court of appeals.

 

(g) When a memorandum decision or written order has been issued by the court of appeals as provided by Rule 30.25 or Rule 84.16, the application filed in this Court shall be accompanied by one copy of each brief filed in the court of appeals.

 

83.06. Notice to Parties-Counter-Suggestions

 

 

A copy of any application for transfer shall be served on all parties and the clerk of the court of appeals on or prior to the date of filing.

 

If a court requests a response to an application for transfer made under Rule 83.02 or Rule 83.04, within ten days after such request, any other party may file and serve suggestions in opposition to the application, not to exceed six pages.

 

Exhibits consisting of written documents that are included in or attached to the suggestions shall be counted as part of the suggestions for purposes of the page limitation. No other exhibits shall be included in or attached to the suggestions or shall otherwise be filed.

 

83.07. Repealed by order dated April 27, 1999, eff. Jan. 1, 2000

 

 

83.08. Record on Appeal and Briefs in Cases Transferred After Opinion

 

 

(a) In General. When a case is transferred to this Court after opinion, the parties shall retain the same position as appellant and respondent as in the court of appeals. The record on appeal filed in the court of appeals is the record in this Court.

 

(b) Substitute Briefs. A party may file a substitute brief in this Court. The substitute brief shall conform with Rule 84.04, shall include all claims the party desires this Court to review, shall not alter the basis of any claim that was raised in the court of appeals brief, and shall not incorporate by reference any material from the court of appeals brief. Any material included in the court of appeals brief that is not included in the substitute brief is abandoned.

 

(c) Timing. Substitute briefs shall be filed within the following times:

 

(1) appellant's brief--twenty days after the date of the order of transfer;

 

(2) respondent's brief--forty days after the date of the order of transfer;

 

(3) appellant's reply brief--fifty days after the date of the order of transfer.

 

In the case of cross-appeals, substitute briefs shall be filed within the following times:

 

(1) appellant's brief--twenty days after the date of the order of transfer;

 

(2) respondent/cross-appellant's brief--forty days after the date of the order of transfer;

 

(3) cross-respondent/appellant's reply brief--sixty days after the date of the order of transfer;

 

(4) cross-appellant's reply brief--seventy days after the date of the order of transfer.

 

(d) Extensions of Time. An order extending any party's time to file a brief automatically extends the filing deadline for any subsequent brief by the same amount of time.

 

83.09. Determination of Cases Following Transfer

 

 

Any case coming to this Court from a district of the Court of Appeals, whether by certification, transfer or certiorari, may be finally determined the same as on original appeal. If, however, in cases transferred on order of this Court, the Court concludes that the transfer was improvidently granted, the case may be retransferred to the Court of Appeals.

 

83.10. Transfer to Supreme Court en Banc

 

 

Any motion to transfer a civil action under the provisions of the Constitution from either division to this Court en Banc shall be filed within fifteen days after the opinion of this Court is filed. A motion to transfer to the Court en Banc may be joined with a motion for rehearing.

 

Rule 84. Procedure in All Appellate Courts (Refs & Annos)

 

 

84.01. Motions, Pleadings and Other Papers--Signatures, Notice and Service

 

 

(a) All motions, suggestions, and pleadings shall be:

 

(1) Signed by at least one attorney of record in the attorney's individual name or by the self-represented party; and

 

(2) Filed as provided in Rule 43.02.

 

Unless otherwise ordered by the court, suggestions in opposition thereto may be filed within five days after the date of service. No motion shall be argued unless by direction of the court.

 

(b) Service of motions, suggestions, and pleadings may be made in any manner permitted by Rule 43.01. Service shall be as provided in Rule 43.01 upon an attorney of record or upon a self-represented party if there is no attorney of record. Proof of service shall be made at the time of filing in the manner provided in Rule 43.01.

 

(c) Service of the record on appeal shall be made as provided in Rule 81.12.

 

(d) Service of a brief shall be made as provided in Rule 84.05 and, if service is made by electronic mail, shall comply with Rule 84.06.

 

84.02. Docketing Cases

 

 

After the notice of appeal has been filed, a docketing conference may be set by the court for the purpose of preparing a schedule for the filing of the record on appeal, including the transcript, and the briefs and considering the consolidation of related appeals. At a conference in a civil appeal the court may, inter alia, examine its jurisdiction and explore with the parties the possibility of settlement.

 

When the record on appeal is filed in the appellate court the case shall be docketed. Cases may be set for argument and submission in such order as the court deems advisable.

 

Appellate review of cases appealed under section 188.028.2(5), RSMo, shall be expedited.

 

84.03. Application for Certiorari to Correct Record on Appeal

 

 

Whenever certiorari is applied for to correct a record on appeal, an affidavit shall be made thereto of the defect in the record on appeal sought to be supplied, and at least twenty-four hours' notice of such application shall be give to the adverse party. The court may of its own motion, at any time, require the clerk of the trial court to send up a complete record on appeal or any portion thereof or any original documents or exhibits.

 

84.035. Appeals From Orders Granting or Denying Class Certification

 

 

(a) A party seeking permission to appeal from an order granting or denying class action certification shall file a petition for permission to appeal with the court of appeals within ten days of the entry of the order of which the party complains.

 

(b) The petition shall include the following:

 

(1) The question presented;

 

(2) A concise statement of facts necessary to understand the question presented;

 

(3) The relief sought, if an appeal is granted;

 

(4) A concise statement of reasons why the appeal should be allowed;

 

(5) A request for stay, if one is being sought;

 

(6) A copy of the order complained of and any related opinion or memorandum and any other documents that may be essential to an understanding of the matters set forth in the petition. The documents shall be attached as exhibits. The pages of the exhibits shall be numbered consecutively. An index of all exhibits shall be attached;

 

(7) Proof of service of a copy of the petition and exhibits on the trial judge and all other parties to the underlying action.

 

(c) A party may file a response opposing the petition, along with any other portions of the record, within ten days after the petition is filed.

 

(d) An original and such number of copies as the court may require of all filings associated with a petition for appeal by permission shall be filed.

 

(e) The petition to appeal will be decided on the basis of the petition and response without further briefing or oral argument unless the court otherwise orders.

 

(f) If the petition is granted, the appellant shall file a notice of appeal along with the required docket fee and all necessary attachments with the appropriate circuit clerk within 10 days of entry of the order granting permission to appeal.

 

(g) The appellant shall file a brief within 30 days of the filing of the notice of appeal in the circuit court. The respondent may file a brief within 20 days of the filing of the appellant's brief. The appellant may file a reply brief within 10 days of the filing of the respondent's brief.

 

(h) The petition for permission to appeal, together with the attached exhibits, the response, and any portions of the record filed with the response by the party opposing the petition shall constitute the record, and no separate record need be prepared for the appellate court. Either party may supplement the appellate record by filing on or before the date the main brief is filed any additional portions of the trial court record and proceedings necessary to the determination of the questions presented on appeal.

 

(i) The appeal of any order granting or denying class action certification shall not stay the proceedings in the trial court unless the trial judge or the appellate court so orders.

 

(j) If the petition to appeal is denied, further review, if any, of the trial court's order granting or denying class action certification shall be by petition for original remedial writ filed directly in this Court.

 

84.04. Briefs--Contents

 

 

(a) Contents. The brief for appellant shall contain:

 

(1) A detailed table of contents, with page references, and a table of cases (alphabetically arranged), statutes, and other authorities cited, with reference to the pages of the brief where they are cited;

 

(2) A concise statement of the grounds on which jurisdiction of the review court is invoked;

 

(3) A statement of facts;

 

(4) The points relied on;

 

(5) An argument, which shall substantially follow the order of the points relied on; and

 

(6) A short conclusion stating the precise relief sought.

 

(b) Jurisdictional Statement. Bare recitals that jurisdiction is invoked “on the ground that the construction of the Constitution of the United States or of this state is involved” or similar statements or conclusions are insufficient as jurisdictional statements. The jurisdictional statement shall set forth sufficient factual data to demonstrate the applicability of the particular provision or provisions of Article V, section 3, of the Constitution whereon jurisdiction is sought to be predicated. For example: “The action is one involving the question of whether the respondent's machinery and equipment used in its operations in removing rock from the ground are exempt from the state sales tax law as being machinery and equipment falling within the exemption provided by Section 144.030.3(4), and hence involves the construction of a revenue law of this state.”

 

(c) Statement of Facts. The statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument. Such statement of facts may be followed by a resume of the testimony of each witness relevant to the points presented.

 

(d) Points Relied On.

 

(1) Where the appellate court reviews the decision of a trial court, each point shall:

 

(A) identify the trial court ruling or action that the appellant challenges;

 

(B) state concisely the legal reasons for the appellant's claim of reversible error; and

 

(C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.

 

The point shall be in substantially the following form: “The trial court erred in [identify the challenged ruling or action ], because [state the legal reasons for the claim of reversible error ], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error ].”

 

(2) Where the appellate court reviews the decision of an administrative agency, rather than a trial court, each point shall:

 

(A) identify the administrative ruling or action the appellant challenges;

 

(B) state concisely the legal reasons for the appellant's claim of reversible error; and

 

(C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.

 

The point shall be in substantially the following form: “The [name of agency ] erred in [identify the challenged ruling or action ], because [state the legal reasons for the claim of reversible error, including the reference to the applicable statute authorizing review ], in that [explain why, in the context of the case, the legal reasons support the claim of reversible error ].”

 

(3) In an original writ proceeding, each point shall:

 

(A) state what relief the petitioner or relator seeks from the appellate court;

 

(B) identify the action that the petitioner or relator challenges;

 

(C) state concisely the legal reasons for the challenge to respondent's action; and

 

(D) explain in summary fashion why, in the context of the case, those legal reasons support the challenge.

 

For an action in prohibition, the point shall be in substantially the following form: “Relator is entitled to an order prohibiting Respondent from [describe challenged action ], because [state the legal reasons for the challenge ], in that [explain why, in the context of the case, the legal reasons support the challenge ].” For other remedial writs, the introductory language should be altered appropriately.

 

(4) Abstract statements of law, standing alone, do not comply with this rule. Any reference to the record shall be limited to the ultimate facts necessary to inform the appellate court and the other parties of the issues. Detailed evidentiary facts shall not be included.

 

(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.

 

(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.”

 

(e) Argument. The argument shall substantially follow the order of “Points Relied On.” The point relied on shall be restated at the beginning of the section of the argument discussing that point. The argument shall be limited to those errors included in the “Points Relied On.” The argument shall also include a concise statement of the applicable standard of review for each claim of error. If a point relates to the giving, refusal or modification of an instruction, such instruction shall be set forth in full in the argument portion of the brief. Long quotations from cases and long lists of citations should not be included.

 

(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.

 

(g) Reply Briefs. The appellant may file a reply brief but shall not reargue points covered in the appellant's initial brief.

 

(h) Appendix. A party's brief shall contain or be accompanied by an appendix containing the following materials, unless the material has been included in a previously filed appendix:

 

(1) The judgment, order, or decision in question, including the relevant findings of fact and conclusions of law filed in a judge-tried case or by an administrative agency;

 

(2) The complete text of all statutes, ordinances, rules of court, or agency rules claimed to be controlling as to a point on appeal; and

 

(3) The complete text of any instruction to which a point relied on relates.

 

An appendix also may set forth matters pertinent to the issues discussed in the brief such as copies of exhibits, excerpts from the written record, and copies of new cases or other pertinent authorities.

 

The appendix shall have a separate table of contents. If the appendix contains fewer than 30 pages, it shall be bound into the back of the party's brief. If the appendix is 30 pages or more, it shall be separately bound and shall have the same color cover as the brief it accompanies.

 

The pages in the appendix shall be numbered consecutively beginning with page A1. The pages in the appendix shall not be counted as a part of the brief. An appendix shall not be subject to Rule 84.06(g) relating to disks.

 

The inclusion of any matter in an appendix does not satisfy any requirement to set out such matter in a particular section of the brief, except that instructions set out in the appendix need not be included in the brief.

 

(i) Page References in Briefs. All statements of fact and argument shall have specific page references to the legal file or the transcript.

 

(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.

 

84.05. Briefs--When and By Whom Served and Filed

 

 

(a) Filing and Service--Time of. Within 60 days after the date on which the record on appeal is filed with the clerk of the appellate court, the appellant shall file ten copies of the appellant's brief. Within 30 days after the filing of appellant's brief, respondent shall file ten copies of respondent's brief. Within 15 days after the filing of respondent's brief, the appellant may file ten copies of a reply brief.

 

The party filing a brief shall serve each other party with two copies of the brief unless Rule 84.06(g) or Rule 84.06(h) applies. The appellate court may, by order in specific cases, either shorten or lengthen the periods prescribed above for filing briefs.

 

Service of a brief shall be made by mail or in person, except that a brief may be served by facsimile transmission or electronic mail if the served party consents in writing to service by such method. Proof of service shall be made at the time of filing in the manner provided in Rule 43.01.

 

(b) Filing and Service--Time of--Cross Appeals. Within 60 days after the date on which the record on appeal is filed with the clerk of the appellate court, the appellant shall file ten copies of appellant's brief. Within 30 days after the filing of the appellant's brief, respondent/cross-appellant shall file ten copies of respondent/cross-appellant's brief. Within 30 days after the filing of respondent/cross-appellant's brief, appellant may file ten copies of appellant's brief in response to the cross appeal and in reply to the respondent's brief. Within 15 days thereafter, the cross-appellant may file ten copies of cross-appellant's reply brief.

 

The party filing a brief shall serve each other party with two copies of the brief unless Rule 84.06(g) or Rule 84.06(h) applies. The appellate court may, by order in specific cases, either shorten or lengthen the time prescribed above for serving and filing briefs.

 

Proof of service shall be made at the time of filing in the manner provided in Rule 43.01.

 

(c) Where Trial Court Fails to Specify Grounds for the Granting of a New Trial. When a trial court grants a new trial without specifying of record the ground or grounds on which the new trial is granted, the presumption shall be that the trial court erroneously granted the motion for new trial and the burden of supporting such action is placed on the respondent. In such event if the appellant serves on the respondent a statement requesting that respondent prepare the original brief on or before the time when the record on appeal is filed, the respondent shall file the original brief and reply brief, if any, and serve them within the time otherwise required for the appellant to serve briefs. The appellant shall prepare the answer brief and serve it in the time otherwise required for the respondent to serve the respondent's brief.

 

(d) Where New Trial Is Granted by Trial Court Without Specifying Discretionary Grounds. If the trial court grants a new trial without specifying discretionary grounds, it shall never be presumed that the new trial was granted on any discretionary grounds.

 

(e) Where Circuit Court Reverses a Decision of an Administrative Agency. If the circuit court reverses a decision of an administrative agency and the appellate court reviews the decision of the agency rather than of the circuit court, a party aggrieved by the circuit court decision shall file a notice of appeal and the record on appeal and shall file with the record on appeal a notice designating the party that is aggrieved by the agency decision. The party aggrieved by the agency decision shall file the appellant's brief and reply brief, if any, and serve them within the time otherwise required for the appellant to serve briefs.

 

If a party who is aggrieved by an agency decision fails to file the first brief, that party shall be given notice of dismissal as required in Rule 84.08(b).

 

(f) Briefs and Suggestions of Amicus Curiae in This Court. (1) Suggestions may be filed in this Court by amicus curiae in support or in opposition to the granting of applications for transfer. Such suggestions are not favored. The suggestions shall only be filed with the consent of all parties or upon order of this Court. The suggestions shall not exceed five pages and shall be filed only if submitted a reasonable time prior to consideration by this Court of the application. Consideration of the application by this Court shall not be delayed pending receipt of the suggestions.

 

(2) A brief may be filed by amicus curiae in cases before this Court on the merits. The brief shall only be filed with the consent of all parties or upon order of this Court. The brief shall only be filed if presented for filing within the time allowed for the filing of the brief of the party supported.

 

(3) If consent to the filing of suggestions or a brief by amicus curiae is refused by a party to the case, a motion for leave to file may be filed with this Court. The motion for leave to file shall identify the parties refusing consent, concisely state the nature of the applicant's interest, and set forth facts or questions of law that have not been, or reasons for believing that they will not adequately be, presented by the parties and their relevancy to the disposition of the case. The motion shall not exceed five pages. The brief shall be conditionally filed with the motion for leave. A party may file an objection to the filing of a brief of an amicus curiae concisely stating the reasons for withholding consent.

 

(4) Consent to the filing of suggestions or a brief of an amicus curiae need not be had when the suggestions or brief are presented by the attorney general or by a state entity authorized by law to appear on its own behalf.

 

(5) All suggestions and briefs filed by amicus curiae shall conform with Rule 81.18 and Rule 84.06, respectively, and shall be accompanied by proof of service.

 

(g) Briefs on Disk in This Court. [Repealed May 16, 2001, eff. July 1, 2001].

 

(h) Briefs by Electronic Mail in this Court. [Repealed May 23, 2001, eff. Jan. 1, 2002].

 

84.06. Form of Briefs--Disk Required, When

 

 

(a) Size--Type--Form. A brief should be prepared using computer software. Such brief shall:

 

(1) Be on paper of size 8 1/2 X 11 inches;

 

(2) Be on paper weighing not less than nine pounds to the ream;

 

(3) Be typed on one side of the paper;

 

(4) Have a left, right, top and bottom margin of not less than one inch. Page numbers may appear in the bottom margin, but no other text may appear in the margins;

 

(5) Have all pages paginated after the cover page using Arabic numbers, except that the table of contents and the table of authorities may be paginated with small Roman numerals. Pagination shall be consecutive, except that if the table of contents and the table of authorities are paginated with small Roman numerals, the first page of the remainder of the brief shall be numbered 1;

 

(6) Use characters throughout the brief, including footnotes, that are not smaller than 13 point, Times New Roman font on Microsoft Word;

 

(7) Be double-spaced, except that the cover, certificate of service, certificate required by Rule 84.06(c), and signature block may be single-spaced; and

 

(8) Be securely bound on the left.

 

(b) Length. Appellant's initial brief and all briefs in a cross appeal except the reply brief shall not exceed:

 

(1) 31,000 words, or

 

(2) 2,200 lines of text if the brief uses a monospaced face.

 

Respondent's brief and a reply brief shall not exceed ninety and twenty-five percent, respectively, of the limits prescribed by this Rule 84.06(b).

 

All material contained in the brief except the cover, certificate of service, certificate required by Rule 84.06(c), signature block and appendix count toward the word and line limitations.

 

(c) Certification. A brief submitted under Rule 84.06(b) shall contain a certificate by the lawyer or person acting pro se that:

 

(1) Includes the information required by Rule 55.03; and

 

(2) States that the brief complies with the limitations contained in Rule 84.06(b); and

 

(3) States the number of words in the brief; or

 

(4) States the number of lines of monospaced type in the brief.

 

The person preparing the certificate may rely on the word or line count of the word-processing system used to prepare the brief.

 

(d) Printed brief. A person unable to produce a brief by computer software may file a commercially printed brief. Such brief shall:

 

(1) Have pages measuring 6 1/8 inches by 9 1/4 inches;

 

(2) Be printed on opaque and unglazed paper;

 

(3) Use type matter set in large 11 point type face on 14-point body, 25 picas wide (4 1/6 inches), not to exceed thirty-seven lines per page, including folio or page number;

 

(4) Have all pages consecutively numbered after the cover page;

 

(5) Have “Points Relied On” in bold face type;

 

(6) Have authorities cited thereunder be indented 2 ems on left side only, with run-over lines indented 4 ems;

 

(7) Have footnotes, if any, be of same type as the body of brief;

 

(8) Have quoted matter be indented 2 ems on left side only; and

 

(9) Comply with the provisions of Rule 84.06(b) and Rule 84.06(c).

 

(e) Typewritten brief. A person allowed to appeal as a poor person unable to produce a brief as provided by Rule 84.06(a) or Rule 84.06(d) may file a typewritten brief. Any other person unable to produce a brief as provided by Rule 84.06(a) or Rule 84.06(d) may file, with leave of court, a typewritten brief. Such brief shall:

 

(1) Be on paper of size 8 1/2 X 11 inches:

 

(2) Be on paper weighing not less than nine pounds to the ream;

 

(3) Be typed on one side of the paper;

 

(4) Have a left, right, top and bottom margin of not less than one inch. Page numbers may appear in the bottom margin, but no other text may appear in the margins;

 

(5) Have all pages paginated after the cover page using Arabic numbers, except that the table of contents and the table of authorities may be paginated with small Roman numerals. Pagination shall be consecutive, except that if the table of contents and the table of authorities are paginated with small Roman numerals, the first page of the remainder of the brief shall be numbered 1;

 

(6) Use fixed space type not less than a ten pitch and ten characters to the inch;

 

(7) Be double-spaced, except that the cover, certificate of service, and signature block may be single-spaced; and

 

(8) Be securely bound on the left. A brief prepared pursuant to this Rule 84.06(e) shall not exceed the following page limitations:

 

(A) Appellant's brief and all briefs in a cross appeal except the reply brief, 100 pages;

 

(B) Respondent's brief, 90 pages;

 

(C) Reply brief, 25 pages.

 

(f) Color Coding of Filings. Briefs shall have a suitable cover in the color indicated:

 

(1) In the Court of Appeals:

 

(A) Briefs on the merits for appellants, relators, 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, relators, 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) Counsel or a person acting pro se shall be certain that there is adequate contrast between the printing and the color of the cover.

 

(g) Electronic Copy--Filing. If a brief is prepared as required by Rule 84.06(a), in addition to filing briefs as required by Rule 84.05(a), an electronic copy, in a commonly used medium, such as a diskette or CD-ROM, in a format that can be read by most commonly used word processing programs, such as Word for Windows or WordPerfect 5.x or higher, shall be filed.

 

An adhesive label shall be affixed to each disk legibly identifying:

 

(1) The caption of the case,

 

(2) The party or amicus curiae filing the disk,

 

(3) The disk number (e.g., “Disk 1 of 2”,) and

 

(4) The word processing format (e.g., Microsoft Word for Windows).

 

The filing party shall certify that the electronic copy has been scanned for viruses and that it is virus-free.

 

If a brief on electronic copy is filed, service of the brief shall consist of serving one copy of the brief in the standard, printed, or typewritten form specified by Rule 84.06(a),(d), or (e), respectively, and one copy of the electronic copy required by this Rule 84.06(g).

 

The person on whom an electronic copy of the brief is served may waive receiving the brief in the standard printed or typewritten form.

 

(h) Briefs by Electronic Mail in this Court. 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:

 

(1) The caption of the case,

 

(2) The party or amicus curiae filing the brief, and

 

(3) 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 the standard, printed, or typewritten form specified by Rule 84.06(a),(d), or (e), respectively, and one copy of the electronic mail file permitted by this Rule 84.06(h).

 

The person on whom an electronic mail message containing the brief is served may waive receiving the brief in the standard, printed, or typewritten form.

 

84.07. Service of Motions, Briefs, and Records on Appeal

 

 

(a) Service of a motion, suggestions, brief, or record on appeal on the attorney of record of the adverse party shall be deemed service on such party and shall be made by mail or in person, to be received within the times set out herein. Evidence of service, which shall be filed with the motion, suggestions, brief, or record on appeal, may be shown by acknowledgment of receipt or by affidavit or by written certificate of counsel making such service.

 

(b) Service on the attorney may be made by facsimile transmission if agreed to by the parties. Evidence of such service, which shall be filed with the motion, suggestions, brief or record on appeal, may be shown in the same manner as provided in Rule 43.01(d).

 

84.08. Involuntary Dismissal of Appeal--Notices

 

 

<Text of rule effective until January 1, 2011.>

 

After the timely filing of a notice of appeal, if the appellant fails to take the further steps required to secure review of the appeal within the periods of time allowed or as extended pursuant to these Rules, the clerk shall place the case on a dismissal docket. The clerk shall serve notice on all parties that the appeal will be dismissed unless the appellant remedies the default before a specified date. The date shall not be less than 15 days from the date of the notice. If the default is not remedied by that date, an order of dismissal shall be entered.

 

<Text of rule effective January 1, 2011.>

 

(a) After the timely filing of a notice of appeal, if the appellant fails to take the further steps required to secure review of the appeal within the periods of time allowed or as extended, the clerk shall place the case on a dismissal docket. The clerk shall serve notice on all parties that the appeal will be dismissed unless the appellant remedies the default before a specified date. The date shall not be less than 15 days from the date of the notice. If the default is not remedied by that date, an order of dismissal shall be entered.

 

(b) If the party who is aggrieved by an agency decision fails to file the first brief as required under Rule 84.05, that party shall be given notice as required in Rule 84.08(a). If the party fails to remedy the default, any party aggrieved by the circuit court decision may file a motion in the appellate court requesting that the judgment of the circuit court be vacated.

 

84.09. Appeal--Dismissal in Appellate Court

 

 

An appellant may file a dismissal of the appellant's appeal in the appellate court at any time prior to the submission of the cause in the appellate court.

 

84.10. Repealed by order dated June 1, 1993, eff. Jan. 1, 1994

 

 

84.11. Notice, Service of

 

 

Except where otherwise expressly provided, service of notice upon the adverse party shall be by written or electronic notice served as provided in Rule 43.01.

 

84.12. Oral Argument

The time for oral argument in this Court and in each district of the court of appeals shall be as ordered by the court in which the appeal is pending. Time may be extended by the presiding judge to the extent of time taken by questions from the bench and answers thereto. The appellant may divide the allotted time between the original and reply argument, but no more than one-fourth of the time shall be consumed by reply argument. Cross-appeals shall be treated as one cause, and in such case the plaintiff in the trial court shall be entitled to the time allotted to the appellant and the defendant in the trial court to the time allotted to the respondent.

 

84.13. Allegations of Error Considered--Reversible Error--Review in Cases Tried Without a Jury or With an Advisory Jury

 

 

(a) Preservation of Error in Civil Cases. Apart from questions of jurisdiction of the trial court over the subject matter and questions as to the sufficiency of pleadings to state a claim upon which relief can be granted or a legal defense to a claim, allegations of error not briefed or not properly briefed shall not be considered in any civil appeal and allegations of error not presented to or expressly decided by the trial court shall not be considered in any civil appeal from a jury tried case.

 

(b) Materiality of Error. No appellate court shall reverse any judgment unless it finds that error was committed by the trial court against the appellant materially affecting the merits of the action.

 

(c) Plain Error may be Considered. Plain errors affecting substantial rights may be considered on appeal, in the discretion of the court, though not raised or preserved, when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.

 

(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 the deposition or by reference to a master under Rule 68.03 and returned to the appellate court.

 

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.

 

84.15. Decision of Majority of Judges Shall Be Decision of Court

 

 

The decision of the majority of the judges of this Court sitting en banc or of any district of the Court of Appeals sitting en banc shall be the decision of the court, but if in any case the judges shall be equally divided in opinion then an additional judge shall be temporarily transferred to the court or district pursuant to Section 6, Article V, of the Constitution and the case shall be reheard. The decision of the majority of the judges of a division of this Court shall be the decision of the court unless the case is transferred to the court en banc. Unless pursuant to its own rules a district of the Court of Appeals determines to hear a case en banc, the decision of a majority of a division of that district shall be the decision of the district.

 

84.16. Opinion in Writing--Memorandum Decisions and Written Orders--When Filed--How Endorsed and Transmitted

 

 

(a) Written Decision Required. In each case determined by this Court or by any district of the Court of Appeals, the judicial decision shall be reduced to writing and filed in the cause. If the decision is not unanimous, the writing shall show which judges concurred therein or dissented therefrom.

 

(b) Memorandum Decisions and Written Orders. In a case where all judges agree to affirm and further believe that an opinion would have no precedential value, disposition may be by a memorandum decision or written order. A memorandum decision or written order may be entered only when the appellate court unanimously determines that any one or more of the following circumstances exists and is dispositive of a matter submitted for decision:

 

(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));

 

(2) That a judgment of the trial court in a proceeding under Rule 24.035 or Rule 29.15 is based on findings of fact that are not clearly erroneous;

 

(3) That the evidence in support of a jury verdict is not insufficient;

 

(4) That the order of an administrative agency is supported by competent and substantial evidence on the whole record;

 

(5) That no error of law appears.

 

If a memorandum decision is issued, it shall state at least the following:

 

(1) The court from which the appeal comes;

 

(2) The nature of the proceedings below, e.g., trial by court, jury trial, administrative review, etc.;

 

(3) The nature of the case, e.g., personal injury or contract suit;

 

(4) Such other matters as in the opinion of the court are necessary for an understanding of the case; and

 

(5) A statement that the affirmance is in compliance with this Rule 84.16(b).

 

A written order may state only the action of the court.

 

A written statement may be attached to the memorandum decision or written order setting out the basis for the court's decision. The statement shall be unanimous, shall not constitute a formal opinion of the court, shall not be reported, and shall not be cited or otherwise used in any case before any court.

 

(c) Endorsement and Transmittal to Court. The clerk of an appellate court, when the opinion of the court is filed, shall endorse thereon the day on which it is filed and enter the same on the minutes.

 

(d) Opinion Furnished Free of Charge. The clerk of each appellate court shall furnish promptly free of charge a copy of the decision, written order or opinion of the court to counsel for each party on appeal.

 

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 Record on 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.

 

84.19. Damages for Frivolous Appeals

 

 

If an appellate court shall determine that an appeal is frivolous it may award damages to the respondent as the court shall deem just and proper.

 

84.20. 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.

 

84.21. Allowances to Garnishees

 

 

Garnishees claiming any allowance in an appellate court must do so on or before a final submission of the cause on briefs. They shall accompany the claim for allowance with a sworn statement of expenditures paid or incurred upon the appeal. A copy of the claim shall be served on the opposing party who shall have ten days thereafter in which to file objections thereto.

 

84.22. Granting Original Writs

 

 

(a) No original remedial writ shall be issued by an appellate court in any case wherein adequate relief can be afforded by an appeal or by application for such writ to a lower court.

 

(b) If a judgment has been entered and an appeal of the judgment is pending or the time for filing an appeal has not expired, no original remedial writ shall be issued by an appellate court, or any district thereof, with respect to any matter collateral to the appeal unless the appeal is pending in the court and district, if the appeal has been filed, or the court and district would have jurisdiction of the appeal if one is timely filed. For purposes of this Rule 84.22(b), a motion filed pursuant to Rule 24.035 or Rule 29.15 is a matter collateral to the appeal.

 

84.23. Return of Original Writs

 

 

Original writs or other process may be issued by this Court en banc, or by either division thereof, or by any judge in vacation. Such writ or other process may be made returnable to and disposed of by the court en banc or by any division.

 

Original writs or other process may be issued by any district of the Court of Appeals en banc, or by any division thereof, or by any judge in vacation. Such writ or other process may be made returnable to and disposed of by the district of the Court of Appeals en banc or by any division.

 

84.24. Procedure as to Original Writs

 

 

<Text of subd. (a) effective until July 1, 2010.>

 

(a) Petitions for original remedial writs shall be accompanied by a docket fee in the amount specified by Rule 81.04(d). The petition shall be filed by the clerk of the court to which it is presented upon presentation of:

 

(1) The appropriate number of copies of the petition and the writ summary, which shall not exceed one page exclusive of the caption and identity of the parties and their attorneys in the underlying action, substantially in conformity with Civil Procedure Form No. 16;

 

(2) suggestions in support of the petition;

 

(3) the docket fee; and

 

(4) proof of service, prior to or on the day of presentation of the petition for filing, of a copy of the petition, the writ summary, and the suggestions in support of the petition upon the respondent and, if applicable, all parties in the underlying action. Such proof of service shall state the name, address, and telephone number of:

 

(A) each attorney served and the name of the party such attorney represents, and

 

(B) each party served who is not represented by an attorney.

 

<Text of subd. (a) effective July 1, 2010.>

 

(a) Petitions for original remedial writs shall be accompanied by a docket fee in the amount specified by Rule 81.04(d). The petition shall be filed by the clerk of the court to which it is presented upon presentation of:

 

(1) The appropriate number of copies of the petition and the writ summary, which shall not exceed one page exclusive of the caption and identity of the parties and their attorneys in the underlying action, substantially in conformity with Civil Procedure Form No. 16;

 

(2) Suggestions in support of the petition;

 

(3) The docket fee; and

 

(4) Proof of service, prior to or on the day of presentation of the petition for filing, of a copy of the petition, the writ summary, and the suggestions in support of the petition upon the respondent and, if applicable, all parties in the underlying action. Such proof of service shall state the name, address, and telephone number of:

 

(A) Each attorney served and the name of the party such attorney represents, and

 

(B) Each self-represented party served.

 

(b) The filing of a petition for an original remedial writ does not affect the authority of the respondent to act or the validity of the respondent's action.

 

(c) Within ten days after the filing of the petition for an original writ, the respondent may file suggestions in opposition to the issuance of the writ. A copy of such suggestions shall be served on the petitioner or relator prior to or on the day of filing of such suggestions. Proof of such service shall be filed with the clerk.

 

(d) Except as provided in Rule 84.24(e), the writ shall not issue before the expiration of the time for the respondent to file suggestions in opposition to the issuance of the writ. A denial of the petition for the writ may be made at any time after filing of the petition.

 

(e) Whenever in the judgment of the court the purpose of the writ would be defeated if the time limits set forth in Rule 84.24(c) or Rule 84.24(d) are enforced, the court, on motion of the petitioner or relator or on its own motion, may shorten the time for filing suggestions in opposition to the petition or dispense with such time limits altogether, and it may issue the writ upon the expiration of the time as so shortened or, if the court dispenses with such time, immediately.

 

(f) Oral argument will not be granted on petitions for original remedial writs.

 

(g) The petition for the writ, together with the suggestions in support thereof, any exhibits accompanying the petition, the writ and return of service thereon, the answer made to the petition for the writ, and all other papers, documents, orders, and records filed in the appellate court constitute the record, and no record need be prepared in the appellate court.

 

(h) The transcript of the evidence heard by a master, and the report of such master, may be in typewritten form.

 

(i) If the writ is issued, briefs shall be filed as is required on appeals, except that the time for filing the briefs shall be as follows: The brief of the petitioner or relator shall be filed within thirty days from the answer date in the preliminary order, respondent's brief shall be filed within twenty days thereafter; and if petitioner or relator desires to file a reply brief, it shall be filed within ten days thereafter. When a master is appointed, the time for filing briefs shall date from the filing of the report or, if exceptions are filed, from the time of disposition of the exceptions.

 

(j) Whenever in the judgment of the court the procedure heretofore required would defeat the purpose of the writ, the court may dispense with such portions of the procedure as is necessary in the interest of justice.

 

(k) No petition for a writ of habeas corpus for the purpose of having the petitioner admitted to bail in any criminal case, either before trial or while such is pending in the appellate court upon appeal, shall be considered unless service of the petition and suggestions in support thereof, as required by Rule 84.24(a), be made upon the attorney general in cases pending upon appeal or otherwise on the prosecuting officer of the jurisdiction in which such criminal case originated.

 

(l) If a peremptory writ in mandamus or prohibition is ordered to issue, the court shall issue an opinion setting out its reasons for issuing the writ. The opinion shall be filed contemporaneously with the order to issue the writ or, if exigent circumstances require, within a reasonable time after the issuance of the writ.

 

(m) If a peremptory writ is denied without an opinion issuing, a motion for reconsideration of the court's action, however denominated, shall not be filed.

 

(n) If the court disposes of a petition for a writ by the issuance of an opinion, further review of the action shall be allowed only as provided in Rule 83 and Rule 84.17.

 

84.25. Number of Copies to be Filed in This Court

 

 

(a) Original Writs. On petitions for original writs, except habeas corpus, there shall be filed in addition to the original, seven clearly legible copies of the petition and suggestions in support thereof. If suggestions in opposition to a petition for original writ are filed the same number shall be filed. Copies not clearly legible will not be filed.

 

(b) Applications for Transfer. In addition to the original, seven clearly legible copies of an application for transfer or suggestions in opposition to the application as provided for in Rule 83 shall be filed. When a memorandum decision or written order has been issued pursuant to Rule 30.25 or Rule 84.16, the application shall be accompanied by one copy of each brief filed in the court of appeals. Otherwise briefs shall not be submitted with the application.

 

(c) Motions for Rehearing. On motions for rehearing there shall be filed in addition to the original, seven copies of the motion and suggestions in support thereof. If suggestions in opposition to motions for rehearing are filed the same number shall be filed.

 

(d) Other Pleadings and Papers. Except as otherwise expressly provided by law or by these Rules, only the original transcript, application, petition, motion, suggestions, stipulation, or other paper need be filed.

 

(e) Filing of Disk in Lieu of Copies. A person filing an application for transfer or a motion for rehearing in this Court may file a floppy disk containing a copy of the application for transfer, and all required attachments thereto, or the motion for rehearing in lieu of filing copies otherwise required by this Rule 84.25. The floppy disk shall be double sided, high density 1.44 MB, 3 1/2 inch size. An adhesive label shall be affixed to each disk legibly identifying the caption of the case, the disk number (e.g., “Disk 1 of 2”), and the word processing format (e.g., Microsoft Word). Word format shall be used if available. If Word is unavailable, the material shall be formatted in WordPerfect 5.x or higher.

 

84.26. Number of Copies to be Filed in Court of Appeals

 

 

The number of copies of petitions, pleadings, briefs, suggestions, or other papers to be filed in any district of the Court of Appeals shall be as specified in the rules of that district.

 

84.27. Repealed by order dated June 23, 1987, eff. Jan. 1, 1988

 

 

84.28. Execution or Remand by Appellate Court--Costs

 

 

The court, upon the determination of any cause on appeal, may award execution to carry the same into effect, or may remand the cause with its decision therein, including any judgment or order as to costs made by the appellate court, to the court from which the cause was appealed, and such determination shall be carried into execution by that court.

 

Part III. Rules Relating to Special Actions

 

 

Rule 85. Attachments

 

 

85.01. Definitions

 

 

As used in this Rule 85 “claimant” means the party seeking the attachment, “owner” means the party against whose property the attachment is sought, and “nonowner” means a nonowner from whose possession the property is taken.

 

85.02. Availability of Attachment

 

 

After the commencement of a civil action a party who presents therein a claim by petition, counterclaim, cross-claim or third-party petition may obtain a writ of attachment upon compliance with this Rule 85.

 

85.03. Affidavit to Obtain Writ of Attachment

 

 

When a party requests a writ of attachment an affidavit shall be filed stating:

 

(a) The nature and amount of the claim; and

 

(b) Facts showing the existence of one or more of the grounds for attachment set forth in Section 521.010, RSMo.

 

85.04. Issuance of Writ of Attachment

 

 

If the court finds that the facts stated in the affidavit show that the writ of attachment should issue, the writ shall be issued upon compliance with Rule 85.08.

 

85.05. Form of Writ of Attachment

 

 

A writ of attachment shall be in the following form:

 

The State of Missouri to any sheriff of any county in the State of Missouri.

 

Whereas, AB has on the ________ day of ________, 19___, obtained a writ of attachment against CD, you are commanded to execute this writ by attaching the property of CD or as much thereof as will be sufficient to satisfy the sum $________, with interest and costs and on the ________ day of ________, 20___, certify to this court how you executed this writ.

 

_______________________________________________________________

EF, Clerk

 

85.06. How Directed and Executed

 

 

Writs of attachment shall be directed to “any sheriff in the State of Missouri” and may be executed in any county by the sheriff of that county. More than one writ of attachment may be outstanding at the same time.

 

85.07. Service of Writ and Notice

 

 

When a writ of attachment is issued the writ of attachment, together with a written notice, shall be served on the owner of the property and a written notice, with a copy of the writ of attachment, shall be served on a nonowner in possession at the time of levy. The written notice shall advise them of the right to file a bond pursuant to Rules 85.09 and 85.10, and of the owner's right to request a hearing to determine the propriety of the issuance of the writ. Service of the writ and notice may be made as provided in Rule 54.

 

85.08. Claimant to Furnish Bond--Exception--Conditions of Bond

 

 

(a) Claimant to Furnish Bond. The claimant shall file a sufficient bond, approved by the court, executed by the claimant as principal and one or more sufficient sureties to the effect that they are bound to the State of Missouri in an amount set by the court but not exceeding double the amount claimed.

 

(b) Conditions of Bond. The conditions of the bond shall be that the claimant shall:

 

(1) Prosecute all claims without delay and with effect;

 

(2) Refund all sums of money that may be adjudged to be refunded to the owner of the property or found to have been received by the claimant and not justly due;

 

(3) Pay all damages and costs that may accrue to the owner of the property, any garnishee or interpleader by reason of the attachment, or any process or proceeding in the action, or by reason of any judgment or process thereon; and

 

(4) Pay all damages and costs that may accrue to any sheriff or other officer by reason of acting under the writ of attachment, following the instructions of the claimant.

 

(c) When No Bond Required. If the State or a county is a claimant in its own behalf no bond shall be required.

 

85.09. Owner of Property may Post Bond--Condition of Bond

 

 

The owner of the property attached may retain or regain possession of the property by filing a sufficient bond approved by the court, executed by the owner of the property as principal and one or more sufficient sureties, to the claimant in an amount equal to the value of the property, or the amount of the claim and costs, whichever is less. The condition of the bond shall be that the principal shall pay to the claimant the amount which shall be adjudged in favor of the claimant or the amount of the bond, whichever is less.

 

85.10. Nonowner of Property may Post Bond--When--Condition of Bond

 

 

When the property attached is in the possession of a person who is not the owner that person may retain or regain possession thereof at any time by giving a sufficient bond, approved by the court, executed by such person as principal and one or more sufficient sureties to the effect that they are bound to the State of Missouri in an amount equal to the value of the property, or the amount of the claim and costs, whichever is less. The condition of the bond shall be that the property shall be forthcoming as the court shall direct.

 

85.11. Inadequate Bond

 

 

If a court finds that any bond is not sufficient, it may order that a new bond be furnished.

 

85.12. Qualification of Sureties

 

 

Each surety on a bond must be either a corporation licensed to do a surety business in Missouri or an owner of property within the state which the court finds to be a sufficient surety for the amount for which the bond is given.

 

85.13. Hearing on Propriety of Attachment

 

 

The owner of the property attached may file a written request for a hearing to determine whether the attachment should be dissolved. The hearing shall be held within ten days after the filing of the request.

 

85.14. Dissolution of Attachment

(a) Motion. Attachments may be dissolved on motion made by the owner of the property at any time before final judgment.

 

(b) Burden of Proof. The claimant shall have the burden of proving that the attachment was properly granted.

 

(c) When Attachment Dissolved. An attachment shall be dissolved at any time before final judgment when the court finds:

 

(1) The bond provided for in Rule 85.08 is inadequate and the claimant fails to file a sufficient bond, approved by the court, within such time as the court directs;

 

(2) The affidavit is insufficient and the claimant fails to file a sufficient affidavit, approved by the court, within such time as the court directs;

 

(3) The owner of the property has entered his appearance in the action and bond provided for in Rule 85.09 has been filed and approved; or

 

(4) For any other reason the writ of attachment should not have been issued.

 

85.15. Contents of Judgment

 

 

The final judgment shall include any findings which the court has made on any motion to dissolve the attachment.

 

85.16. Post-Trial Procedure--Appeal

 

 

Post-trial procedure and the procedure on appeal shall be the same in actions in which an attachment has been issued as in other civil actions.

 

85.17. Bonds Continue--When

 

 

Any bond in force in the attachment proceedings shall continue in force until the judgment is final in the trial court. If there is an appeal, any bond in force in the attachment proceedings shall continue in force until determination of the civil action.

 

85.18. Multiple Attachments--Priorities--How and Where Resolved

 

 

When the same property is attached in several actions by different claimants, the court shall determine the priority, validity, good faith, and force and effect of the different attachments, and may dissolve any attachment, wholly or partially, or make such other order as may be required. If the writs have issued from different courts, all matters relating to the attachments shall be determined by the court out of which the first writ of attachment was issued. Issues other than matters relating to the attachments shall remain in the court in which each case is pending.

 

85.19. Multiple Attachments--Issues--Who may Raise

 

 

When the same property is attached by different claimants, the claimants may challenge any other attachment or make any defense to the underlying claim which the owner of the property could make.

 

85.20. Who may Intervene

 

 

A person claiming an interest in property which has been attached may intervene in the attachment proceedings.

 

85.21. Manner of Attaching Property

 

 

Property may be seized by attachment in the same manner as it may be levied upon pursuant to Rule 76.

 

85.22. Receiver--When Appointed

 

 

When property is seized on attachment the court may appoint a receiver pursuant to Rule 68.02, who may be the sheriff, or some other person or corporation.

 

85.23. Prejudgment Sale of Personal Property

 

 

The court may order the sale of attached personal property if it finds:

 

(a) The property is likely to perish;

 

(b) The property is likely to depreciate in value to a considerable extent; or

 

(c) Keeping the property will cause undue expense. The order may be made only after reasonable notice if the giving of notice is practicable. A sale of personal property shall be made as provided in Rule 76.13.

 

85.24. Who may Sue on Bond

 

 

When there is a breach of the conditions of a bond given under this Rule 85 which is payable to the State of Missouri, an action may be brought on the bond in the name of the State of Missouri at the instance of any person injured.

 

Rule 86. Condemnation Proceedings (Refs & Annos)

 

 

86.01. Scope

 

 

In all condemnation proceedings, except those in instances where special provisions to the contrary are, or may hereafter be, provided for by charters or ordinances of those cities having constitutional charters, the procedure to be followed shall be that provided for by these rules.

 

86.02. Venue

 

 

All proceedings for condemnation must be brought in the circuit court of the county and city of this state as provided by statute.

 

86.03. Parties

 

 

The individual or individuals, village trustees, corporation or organization, private or municipal, that has authority to bring a condemnation proceeding shall be the plaintiff or plaintiffs in such condemnation proceedings; the owners of any or all of the property that is to be condemned, or the use of which is to be condemned, or which will be benefited by an improvement involved in a condemnation proceeding, or who may have an interest therein may be made parties defendant. If the proceedings seek to affect the properties of persons under guardianship, the guardians must be made parties defendant. If the present owner of any land to be affected has a less estate than a fee, the person or persons having the next vested estate in reversion or in remainder and having future interest may, at the option of the petitioners, be made a party defendant; but, if any one having an interest in such property is not made a party, that person's interest shall not be bound by the proceedings. It shall not be necessary to make any persons parties defendants in respect to their ownership unless they are either (1) in actual possession of the property to be affected, claiming title or (2) have a title to the premises appearing of record upon the proper records of the county in which they lie. When legislation must be passed by a municipality before it is permitted to condemn property, it shall not be required in any case to bring any persons into the condemnation proceedings other than the owners of the property, or those interested therein, who were such at the time of the taking of effect of said legislation, and the parties claiming or holding through, or under, such owners, or parties interested, or any of them shall be bound by the proceedings as fully as if they were brought in.

 

86.04. Petition--Contents

 

 

The petition shall contain a description of the property or right which the plaintiff desires to acquire, use, or extinguish; if a dam is to be constructed across any watercourse, the petition shall contain the name of the watercourse, a description of the point at which it is desired to erect such dam and a description of any installations which it is proposed to erect in connection with the dam; the names of the owners of the property to be condemned, if known, or, if unknown, a statement that they are unknown; a statement of the foundation of the plaintiff's right to condemn the property involved in the condemnation proceedings; a general statement of the nature of the business, improvement or use for which the property is to be taken; a statement either that the condemner or owner can not agree on the proper compensation to be paid or that an owner is incapable of contracting, is unknown, can not be found or is a non-resident of the state; if any right of way be sought, the location and general route thereof shall be described and a copy of the construction plans required by Section 227.050 of the Revised Statutes of Missouri, 1949, shall be filed in the circuit clerk's office and made a part of each condemnation petition by reference; when property will be benefited by an improvement in connection with which condemnation proceedings are brought, a map of the benefit district involved, and a copy of any local legislation establishing the district shall be filed with the petition and made a part thereof; a prayer for the appointment of three disinterested freeholders, as commissioners, to assess the damages which such owners may severally sustain because of the condemnation of the property, and the use to which it is to be put and to assess benefits in those instances in which it is proper to make such assessments.

 

86.05. Summons, When to Issue, How Served--Publication, When

 

 

Upon the filing of the petition, a summons shall be issued giving the owners of the property involved at least ten days' notice of the time and place when said petition shall be heard, which summons shall be served in the manner provided for by these rules in ordinary civil cases. If the name, residence, or whereabouts of any of the owners be unknown, or if any of the owners do not reside within the state or for any other reason personal service cannot be had on them within the state, notice of the time and place of hearing of the petition shall be given by publication for three weeks consecutively, prior to the time of the hearing of the petition, in a newspaper published in the county in which the proceedings are pending, if one is published in said county, or, if no newspaper is published in the county, or the publishers shall refuse to publish the same, then by posting said notice for three consecutive weeks at the door of the courthouse of the county wherein the lands or any portion of them lie.

 

86.051. Publication of Notice--How Often

 

 

The notice by publication referred to in Rule 86.05 shall be required to be published only once each week, but shall be published on the same day of each week.

 

86.06. Appointment of Commissioners--Duties of--Standard for Damages

 

 

The court, or judge thereof in vacation, on being satisfied that due notice of the pendency of the petition has been given, shall appoint three disinterested commissioners, who shall be freeholders, resident of the county in which the real estate or a part thereof is situated, to assess the damages that the owners may severally sustain by reason of such appropriation. The value of the property being condemned and all benefits and damages shall be assessed by said commissioners as of the date the assessment is made, and, if the award of said commissioners has not been paid to the defendants, or to the clerk of the court for said defendants, within one year after said commissioners' award is filed, any subsequent assessment of values, benefits and damages shall be as of the date of such subsequent assessment. The commissioners, after having viewed the property, shall forthwith return, under oath, to the clerk of the court their report in duplicate setting forth, and stating separately as to all property held under the same ownership (1) the amount of net damages, if any, together with (2) a separate description of the property for which the damages are assessed. The clerk shall file one of said copies in the clerk's office and cause the other to be delivered to the recorder for the county where the property lies, who shall record the same in the recorder's office and shall enter in the abstract and index of deeds at the proper place in the grantor's column the respective names of the first persons alleged to claim, or through whom is claimed some title to each of such respective separately described properties, and the fee for said recording shall be taxed by the clerk as costs of the proceedings. When condemnation proceedings are brought in connection with a project to supply water to any city, town or village, the commissioners or jury shall inquire, and make report as to the value of the use of the stream, or the diversion of the waters thereof, to the extent to which the plaintiff proposes to use it, or to divert them, or what damage will be done by the erection and maintenance of any dam or buildings that it is proposed to erect and maintain in connection with aforesaid supplying of water, specifically stating to whom and upon what account damages are awarded. When private property is appropriated by a municipality for any public place or use, resulting benefits shall be assessed against the municipality for the amount of the benefit to the public generally, and the balance of the benefits shall be assessed against the owner or owners having land within the benefit limits set by the municipality, which land shall be especially benefited by the proposed improvement, to the proportion that each lot of said owners shall be benefited. Upon making payment to the clerk of the amount assessed, for the party or parties in whose favor such damages have been assessed, it shall be lawful for the condemner to take possession and hold the interest in the property so appropriated for the uses aforesaid; and, upon failure to pay the assessment aforesaid within ten days after it becomes final or, in the case of a municipality, within thirty days thereafter, the court may, upon motion and notice by the party entitled to such damages, enforce the payment of the same by execution, unless the condemner shall, within said ten or thirty day period, elect to abandon the proposed appropriation of any property, by an instrument in writing to that effect, to be filed with the clerk of such court and entered on the minutes of the court, and to so much as is thus abandoned the assessment of damages shall be void. If such appropriation be so abandoned as to any property, proceedings for the condemnation of the same property shall not be instituted again within two years after such abandonment. The report of the commissioners, when signed by two of said commissioners, shall be taken and considered as the report of all.

 

86.07. Different Owners May be Joined in One Petition

 

 

The owners of any numbers of tracts may be joined in one petition.

 

86.08. Clerk to Give Notice of Filing Report--Exceptions to Report, When Filed, Effect

 

 

Immediately after the filing of the report of the commissioners, the clerk of the court wherein it is filed shall notify the parties of such filing. The notice shall be given, if possible, in the manner provided by Rule 43.01, or, if this is not possible, by posting the notice in the office of the clerk of the court. The clerk shall file in the cause a certificate and any other lawful evidence necessary to prove the time and manner of serving all such notices. Any party may file written exceptions to the report of the commissioners within thirty days after the service or posting of the notice. Upon the filing of the exceptions, the issue of the amount of damages sustained by, and benefits accruing to, the defendant's property, if any, as a result of the appropriation shall be submitted to a jury or, if a jury be waived, to the court, to be tried as in ordinary cases of inquiry of damages. On such trial, the court or jury, within the direction of the court, may view the property involved. Notwithstanding the exceptions, the condemner may, after paying the amount of the commissioners' award to the clerk of the court for the owner or owners of any property involved, take possession of the property or subject it to the public use set out in the condemnation petition, and any subsequent proceedings shall only affect the amount or division of the compensation allowed.

 

86.09. Costs, by Whom Paid

 

 

The cost of the condemnation proceeding shall be paid by the condemner, up to and including the filing and copying of the report of the commissioners; and the court, as to any costs made by subsequent litigation, may make such order as in its discretion may be deemed just. The court shall allow the commissioners a reasonable compensation for their services, which shall be taxed as costs in the proceedings.

 

86.10. Interest--How Recovered

 

 

In condemnation proceedings under Rule 86 interest shall be recovered in the manner and the amounts as now or hereafter provided by Statutes including Section 523.045 RSMo 1949. The reference in Section 523.045 to Section 523.040 shall be construed to refer to this Rule 86, and particularly to Rule 86.06.

 

Rule 87. Declaratory Judgments (Refs & Annos)

 

 

87.01. Courts May Grant Declaratory Judgments

 

 

No action or proceeding is open to objection on the ground that a declaratory judgment or decree is prayed for.

 

87.02. Who May Obtain Declaration of Rights or Other Legal Relations

 

 

(a) Persons Interested Under Deeds--Wills--Contracts--Statutes and the Like. Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.

 

(b) Trusts, Infants, Lunatics, Incompetents. Any person interested as or through an executor, administrator, trustee, guardian or other fiduciary, creditor, devisee, legatee, heir, next of kin or cestui que trust, in the administration of a trust, or of the estate of a decedent, an infant, lunatic or insolvent, may have a declaration of rights or legal relations in respect thereto:

 

(1) To ascertain any class of creditors, devisees, legatees, heirs, next of kin or others; or

 

(2) To direct the executors, administrators, or trustees to do or abstain from doing any particular act in their fiduciary capacity; or

 

(3) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.

 

(c) Declaratory Judgment in Respect to Agency Rules. The power of the courts of this state to render declaratory judgments shall extend to declaratory judgments respecting the validity of agency rules, or of threatened applications thereof, and such suits may be maintained against agencies whether or not the plaintiff has first requested the agency to pass upon the question presented.

 

(d) Enumeration Not Exclusive. The foregoing enumeration of instances in which persons may obtain relief by declaratory judgments is illustrative, and anyone may obtain such relief in any instance in which it will terminate a controversy or remove an uncertainty.

 

87.03. Contract May Be Construed--When

 

 

A contract may be construed either before or after there has been a breach thereof.

 

87.04. Joinder of Parties--Municipalities--Attorney General

 

 

When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceedings. In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard, and, if the statute, ordinance or franchise is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the proceeding and be entitled to be heard.

 

87.05. “Person” Defined

 

 

The word “person”, wherever used in Rule 87, shall be construed to mean any person (including a minor represented by a next friend or guardian ad litem, and any other person under disability lawfully represented), partnership, joint stock company, corporation, unincorporated association or society or municipal or other corporation of any character whatsoever.

 

87.06. Issue of Fact--How Tried

 

 

When a proceeding under Rule 87 involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.

 

87.07. Judgment Discretionary

 

 

The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.

 

87.08. Form and Effect of Declaratory Judgment

 

 

A declaratory judgment may be either affirmative or negative in form and effect; and shall have the force and effect of a final judgment or decree.

 

Rule 87. Declaratory Judgments (Refs & Annos) 87.09. Award of Costs

In any proceeding under Rule 87 the court may make such award of costs as may be equitable and just.

 

87.10. Further Relief May be Granted, When--Procedure

 

 

Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. If the application be deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree to show cause why further relief should not be granted forthwith.

 

87.11. Review of Judgments and Decrees Under This Rule

 

 

All orders, judgments and decrees under Rule 87 may be reviewed as other orders, judgments and decrees.

 

Rule 88. Dissolution, Legal Separation and Child Support

 

 

88.01. Presumed Child Support Amount

 

 

(a) When determining the correct amount of child support, a court or administrative agency shall consider all relevant factors, including all relevant statutory factors.

 

(b) There is a rebuttable presumption that the amount of child support calculated pursuant to Civil Procedure Form No. 14 is the correct amount of child support to be awarded in any judicial or administrative proceeding. Unless a request is filed pursuant to Rule 73.01(c), a written finding or a specific finding on the record by the court or administrative agency that the child support amount under a correctly calculated Form No. 14, after consideration of all relevant factors, is unjust or inappropriate shall be sufficient in a particular case to rebut the presumption that the amount of child support so calculated is correct.

 

Source: Section 452.340, RSMo.

 

88.02. Mediation Authorized

 

 

Any judicial circuit may elect to establish a mediation program for child custody and visitation disputes as provided in this Rule 88.

 

88.03. Mediation of Child Custody and Visitation--Mediation Defined

 

 

Mediation under this Rule 88 is the process by which a neutral mediator appointed by the court assists the parties in reaching a mutually acceptable agreement as to issues of child custody and visitation. The role of the mediator is to assist the parties in identifying the issues, reducing misunderstanding, clarifying priorities, exploring areas of compromise, and finding points of agreement. An agreement reached by the parties is to be based on the decisions of the parties and not the decisions of the mediator. The agreement reached can resolve all or only some of the disputed issues.

 

88.04. Mediation--When Ordered--Appointment of Mediator

 

 

(a) The court may order mediation of any contested issue of child custody or visitation, at any time, upon the motion of a party or the court's own motion.

 

(b) No investigation and report will be ordered by the court during the pendency of the mediation.

 

(c) If the court orders mediation under Rule 88.04(a), then the mediator shall meet the minimum qualifications required under Rule 88.05.

 

(d) The court may appoint a mediator agreed upon by the parties. If the parties cannot agree or if the court does not approve the agreed-upon mediator, the court may select the mediator.

 

88.05. Mediation--Qualifications of the Mediator

 

 

(a) A mediator who performs mediation in a contested child custody matter pursuant to this Rule 88 shall be a person who has stated by affidavit that he or she:

 

(1) Is an attorney or a person who possesses a graduate degree in a field that includes the study of psychiatry, psychology, social work, counseling or other behavioral science substantially related to marriage and family interpersonal relationships; and

 

(2) Has received a minimum of twenty hours of child custody mediation training in a program approved by the court.

 

(b) The court may maintain a list of mediators meeting the requirement of Rule 88.05(a) or rely on such list maintained by a bar organization.

 

(c) In appointing a mediator, the court shall consider:

 

(1) The nature and extent of any relationship the mediator may have with the parties and any personal, financial, or other interests the mediator may have that could result in bias or conflict of interest; and

 

(2) The mediator's knowledge of: (A) the Missouri judicial system and the procedures used in domestic relations cases, (B) other resources in the community to which parties can be referred for assistance, (C) child development, (D) clinical issues relating to children, (E) the effects of the dissolution of marriage on children, (F) family systems theory, and (G) mediation and conflict resolution.

 

88.06. Mediation--Duties of the Mediator

 

 

(a) The mediator in writing shall:

 

(1) Inform the parties of the costs of mediation;

 

(2) Advise the parties that the mediator does not represent either or both of the parties;

 

(3) Define and describe the process of mediation to the parties;

 

(4) Disclose the nature and extent of any relationships with the parties and any personal, financial, or other interests that could result in a bias or a conflict of interest;

 

(5) Advise each of the parties to obtain independent legal advice;

 

(6) Disclose to the parties' attorneys any factual documentation revealed during the mediation if at the end of the mediation process the disclosure is agreed to by the parties;

 

(7) Ensure that the parties consider fully the best interests of the children and that the parties understand the consequences of any decision they reach concerning the children.

 

(b) The mediator may meet with the children of any party and, with the consent of the parties, may meet with other persons.

 

(c) The mediator shall make a written summary of any understanding reached by the parties. A copy of the summary shall be provided to the parties and their attorneys, if any. The mediator shall advise each party in writing to obtain legal assistance in drafting any agreement or for reviewing any agreement drafted by the other party. Any understanding reached by the parties as a result of mediation shall not be binding upon the parties until it is reduced to writing, signed by the parties and their attorneys, if any, and approved by the court. If any party is not represented, the mediator shall provide to the court the written summary of any understanding reached by the parties.

 

(d) The mediator may act as a mediator in subsequent disputes between the parties. However, the mediator shall decline to act as attorney, counselor or psychotherapist for either party during or after the mediation or divorce proceedings unless the subsequent representation, counseling, or treatment is clearly distinct from the mediation issues. The mediator may not subsequently act as an investigator for any court-ordered report nor make any recommendations to the court regarding the child care issues.

 

88.07. Termination of Mediation

 

 

(a) At any time after two hours of mediation either party may terminate mediation ordered under Rule 88.04.

 

(b) The mediator shall terminate mediation whenever the mediator believes (1) that continuation of the process would harm or prejudice one or more of the parties or the children or (2) that the ability or willingness of any party to participate meaningfully in mediation is so lacking that a reasonable agreement is unlikely.

 

(c) The mediator shall report the termination of mediation to the court. The mediator shall not state the reason for termination except when the termination is due to a conflict of interest or bias on the part of the mediator, in which case another mediator may be appointed.

 

88.08. Confidentiality

 

 

(a) Mediation proceedings shall be regarded as settlement proceedings. With the exception of information released pursuant to subdivision 88.06(a)(6), any communication relating to the subject matter of such disputes made during the mediation by any participant, mediator, or any other person present at the mediation shall be a confidential communication. No admission, representation, statement or other confidential communication made in setting up or conducting such proceedings not otherwise discoverable or obtainable shall be admissible as evidence or subject to discovery.

 

(b) No person who serves as a mediator, nor any agent or employee of that person, shall be subpoenaed or otherwise compelled to disclose any matter disclosed in the process of setting up or conducting the mediation.

 

88.09. Parties not Represented by Counsel

 

 

Every party not represented by counsel who participates in a proceeding for dissolution of marriage, legal separation, parentage or the modification of a judgment in any such proceeding shall:

 

(a) Complete a litigant awareness program that includes an explanation of the risks and responsibilities of self-representation, unless waived by the circuit court. The awareness program shall be prepared by a committee designated by this Court, but each circuit may determine the manner and means by which the training shall be provided and the proof of compliance; and

 

(b) Unless such use is waived by the trial court, use the pleadings, forms, and proposed judgment prepared by a committee designated by this Court that have been approved by this Court. [FN1] These forms shall be accepted by the courts of this state, until disapproved or superseded by this Court.

 

(c) Nothing in this Rule 88.09 prevents a court from determining the legal sufficiency of any pleading nor prevents a court from entering judgment in a form different from the judgment form approved pursuant to Rule 88.09(b).

 

[FN1] See Access to Family Courts Forms under Civil Procedure Forms.

Rule 89. Ejectment

 

 

89.01. Procedure--Service of Process

 

 

The institution, prosecution, trial and determination of civil actions in ejectment shall conform in all respects to rules of procedure covering ordinary civil actions and service of process shall be had in the same manner as provided in Rule 54.

 

Rule 90. Garnishments and Sequestration

 

 

90.01. Definitions

 

 

In this Rule 90:

 

(a) a “garnishor” is a judgment creditor;

 

(b) a “debtor” is a judgment debtor;

 

(c) a “garnishee” is the person summoned as garnishee in the writ of garnishment or levy;

 

<Text of subd. (d) effective until July 1, 2010.>

 

(d) “property subject to garnishment” is all goods, personal property, money, credits, bonds, bills, notes, checks, choses in action, or other effects of debtor and all debts owed to debtor.

 

<Text of subd. (d) effective July 1, 2010.>

 

(d) “Property subject to garnishment” is all goods, personal property, money, credits, bonds, bills, notes, checks, choses in action, or other effects of debtor and all debts owed to debtor. “Property subject to garnishment” does not include funds of the debtor on deposit with a bank or other financial institution in an account in which all funds are:

 

(1) Deposited electronically on a recurring basis, and

 

(2) Reasonably identified as funds exempt from garnishment pursuant to section 513.430.1(10)(a), (b), or (c), RSMo.

 

90.02. Request for issuance of writ of garnishment

 

 

The clerk of the court that entered the judgment shall issue a writ of garnishment if the garnishor files a written request stating:

 

(a) That a judgment has been entered against the debtor and remains unsatisfied;

 

(b) The amount of the judgment and the amount remaining unpaid;

 

(c) That the garnishor knows or has good reason to believe that the garnishee is indebted to debtor, that the garnishee is obligated to make periodic payments to debtor, or that the garnishee has control or custody of property belonging to debtor; and

 

(d) The requested return date of the writ, which shall be either 30, 60, 90, 120, 150, or 180 days after the filing of the request for the writ.

 

If a garnishor so requests, the clerk shall issue a writ of garnishment and summons when an attachment or execution is issued.

 

90.03. Service on Garnishee--Return of Service--Return Date--Service of Subsequent Pleadings and Papers

 

 

(a) The garnishee shall be served with summons and the writ of garnishment. Service shall be as provided in Rule 54.13. In addition, service may be made upon an employee of the garnishee designated to receive service or upon the paying, disbursing or auditing officer of the garnishee. Return of service shall be made as provided in Rule 54.20. The return date of the writ of garnishment shall be set forth in the summons.

 

(b) All pleadings and papers subsequent to service of the summons and writ of garnishment shall be served as provided in Rule 43.01.

 

90.04. Effect of Service of Writ of Garnishment and Summons

 

 

The service of the writ of garnishment and summons attaches the property subject to garnishment in the garnishee's possession or charge or under the garnishee's control at the time the writ of garnishment and summons is served and continuing through the return date of the writ.

 

90.05. Request for Immediate Delivery of Property to Sheriff--Order of Delivery

 

 

(a) When the garnishor requests an order requiring immediate delivery to the sheriff of property subject to garnishment, the garnishor shall file an affidavit stating:

 

(1) the description of the property;

 

(2) facts showing the reason that immediate delivery to the sheriff should be made; and

 

(3) the garnishor is in danger of losing the property unless immediate delivery to the sheriff is made.

 

(b) If the court finds that the facts stated in the affidavit show that the property subject to garnishment should be delivered to the sheriff, the court shall make an order that the garnishee so deliver the property.

 

90.06. Delivery Bond of Garnishee--Form of--Effect of Filing--Insufficient Bond--Hearing

 

 

If the court enters an order requiring immediate delivery of property as provided in Rule 90.05:

 

(a) The garnishee may file, either before or after delivery of the property to the sheriff, a sufficient delivery bond to the garnishor, approved by the court and executed by the garnishee as principal and one or more sufficient sureties, to the effect that the property shall be forthcoming as the court may direct.

 

(b) If the court finds that a delivery bond is not sufficient, it may order the garnishee to furnish a new bond or to immediately deliver the property to the sheriff. Upon failure to furnish a new bond within the time fixed by the court, the court shall order that the property subject to garnishment be delivered to the sheriff.

 

(c) As an alternative to filing a delivery bond, the garnishee may file a written request for a hearing to determine whether the property should be immediately delivered to the sheriff. The hearing shall be held within ten days after the filing of the request.

 

90.07. Interrogatories to Garnishee--Answers to Interrogatories--Exceptions--Response

 

 

<Text of subd. (a) effective until July 1, 2010.>

 

(a) Interrogatories--Time for Filing--Service. Prior to the issuance of the summons and writ of garnishment, the garnishor shall file written interrogatories asking the garnishee to:

 

(1) list and describe the property subject to garnishment in the possession, charge or control of the garnishee, and

 

(2) state the name and last known address of any person, other than debtor, whom the garnishee knows claims or may claim an interest in or to the property subject to garnishment.

 

The interrogatories shall be served simultaneously with the summons and writ of garnishment.

 

<Text of subd. (a) effective July 1, 2010.>

 

(a) Interrogatories--Time for Filing--Service. Prior to the issuance of the summons and writ of garnishment, the garnishor shall file written interrogatories asking the garnishee to:

 

(1) List and describe the property subject to garnishment in the possession, charge, or control of the garnishee;

 

(2) State the name and last known address of any person, other than debtor, whom the garnishee knows claims or may claim an interest in or to the property subject to garnishment; and

 

(3) If the garnishee is a bank or other financial institution, state whether at the time the writ of garnishment was served or at any subsequent time did the debtor have funds on deposit in an account in which all funds are:

 

(A) Deposited electronically on a recurring basis, and

 

(B) Reasonably identified as being funds on deposit that are exempt from garnishment pursuant to section 513.430.1(10)(a), (b) or (c), RSMo;

 

and, if so, identify each account, state the reason for the believed exemption, and identify the entity electronically depositing those funds.

 

The interrogatories shall be served simultaneously with the summons and writ of garnishment.

 

(b) Answer to Interrogatories--Time for Filing. The garnishee shall file and serve verified answers to the interrogatories during the ten days immediately after the return date of the writ.

 

(c) Exceptions to Answers to Interrogatories--Time for Filing. The garnishor shall file any exceptions to the interrogatory answers asserting any objections to the answers and asserting all grounds upon which recovery is sought against the garnishee.

 

The exceptions shall be filed within the later of:

 

(A) Ten days after service of the answers, or

 

(B) 20 days after the return date of the writ.

 

The garnishee's answers to interrogatories are conclusively binding against the garnishor if the garnishor does not timely file exceptions to the interrogatory answers.

 

(d) Response to Exceptions--Time for Filing. Within ten days after service of the exceptions, the garnishee may file a response thereto.

 

90.08. Court Order to Answer Interrogatories

 

 

If the garnishee fails to answer or improperly answers interrogatories, the court shall, upon motion, order the garnishee to answer or properly answer the interrogatories. Failure of the garnishee to comply with such an order may, upon motion of the garnishor or the court, subject the garnishee to a finding that the garnishee is in default, and the garnishor may take judgment by default against the garnishee.

 

When a garnishee files interrogatory answers after having been so ordered by the court, the garnishor shall be allowed to file exceptions to such answers in the same manner as provided by Rule 90.07(c).

 

90.09. Claims of Third Parties--Notice--Intervention

 

 

(a) Notice to Third Parties. If the garnishee's answers to interrogatories disclose that any person other than the debtor and the garnishor claims an interest in all or part of the property subject to garnishment, then the garnishor shall attempt to notify such person of the pendency of the garnishment proceeding and of the right to intervene therein within the time allowed in Rule 90.09(b). Such notification shall be served by mailing the notice by registered or certified mail, requesting a return receipt signed by the addressee only, to the last known address, if any, of each such person disclosed in the garnishee's answers to interrogatories within ten days after service of the garnishee's answers to interrogatories.

 

(b) Intervention. Any person who claims an interest in the property subject to garnishment may intervene pursuant to Rule 52.12. Persons notified of the garnishment proceeding as provided in Rule 90.09(a) shall move to intervene within fifteen days after receiving the notice.

 

90.10. Discharge of Garnishee--Judgment in Garnishment

 

 

(a) If the garnishee admits in its answers to interrogatories that any property subject to garnishment is in the garnishee's possession, the garnishee, without further order of the court, shall pay or deliver such property into court no later than ten days after the return date of the writ of garnishment or levy. Timely payment or delivery of such property into court thereby discharges the garnishee from further liability on account of the property subject to garnishment so paid or delivered.

 

(b) If the garnishor files exceptions to the garnishee's answers to interrogatories or if a third party has intervened as provided by Rule 90.09, the court or jury shall determine all controverted issues raised by garnishor's exceptions to the garnishee's answers to interrogatories, the garnishee's response thereto, and any claim asserted by a third party who has intervened. The court shall enter judgment in accordance with the findings of the court or jury and shall order that any property not previously delivered to the officer or the court be delivered to the officer or paid into court within such time as the court shall direct. If the property is not delivered to the officer or paid into court within such time, the court may enter judgment against the garnishee for the value of the property.

 

90.11. Disbursement

 

 

When a trial of issues under Rule 90.10(b) is not required, property paid or delivered into court under Rule 90.10(a) shall be disbursed to the garnishor by the clerk, less costs, within ten days and without order of the court if the garnishee has not requested an allowance under Rule 90.12(a). If the garnishee has requested an allowance under Rule 90.12(a), the property paid or delivered into the court, less costs and allowances, shall be disbursed to the garnishor by the clerk within ten days after the court has determined the allowance to be awarded the garnishee.

 

The clerk shall not disburse property paid or delivered into court without order of the court when a trial is required by Rule 90.10(b).

 

90.12. Costs and Allowances

 

 

(a) Allowance to Garnishee if Interrogatory Answers are Not Excepted to or Denied. If by interrogatory answers, not excepted to or denied, it appears that the garnishee has property subject to garnishment, the court, upon motion by the garnishee, shall allow the garnishee a reasonable amount for the trouble and expense of answering, including attorney's fees, to be paid out of the property subject to garnishment. The garnishee shall file a motion for such an allowance on or before the date the garnishee pays or delivers the property subject to garnishment into court.

 

(b) Allowance to Garnishee if Garnishor Does Not Recover Judgment Against Garnishee. If the garnishor files exceptions to the garnishee's interrogatory answers but does not obtain a judgment against the garnishee, all of the costs attending such garnishment shall be taxed against the garnishor. The court in such a case shall render judgment in favor of the garnishee and against the garnishor for an amount sufficient to indemnify the garnishee for time and expenses, including attorney's fees.

 

(c) Allowance to Garnishee in Appellate Court. A garnishee claiming an allowance in an appellate court shall do so pursuant to Rule 84.21.

 

90.13. Execution Against Garnishee

 

 

When judgment is rendered against any garnishee, the execution shall be such as is allowed by law on a general judgment.

 

90.14. Garnishment of Wages in Aid of Attachment

 

 

(a) Personal Service on Defendant Required-Exception. No wages shall be garnished in aid of attachment before personal service is had or obtained upon the defendant unless the suit is brought:

 

(1) in the county where the defendant resides; or

 

(2) in the county where the debt is contracted and the cause of action arose or accrued; or

 

(3) in cities with over one hundred thousand inhabitants, in the city where the defendant resides or the debt is contracted and the cause of action arose or accrued.

 

(b) Contents of Petition and Writ. The petition or statement filed in the cause and the writ of attachment shall state the place where the defendant resides and the place where the debt is contracted and the cause of action arose or accrued.

 

(c) Wages Earned Out of State--When Exempt. Wages earned out of this state and payable out of this state are exempt from garnishment in aid of attachment in all cases where the cause of action arose or accrued out of this state, unless the defendant in the attachment suit is personally served with process.

 

90.15. Garnishment of Wages--Notice of Wage Exemption Statute Required

 

 

No notice, summons, writ of garnishment, or sequestration of wages issued or served under sections 525.010 to 525.310, RSMo, shall attach or purport to attach any wages in excess of the amounts prescribed in subsection 2 of section 525.030, and each such notice, summons, or writ shall have clearly and legibly reproduced thereon the provisions of subsections 2, 5 and 6 of section 525.030.

 

90.16. Compensation of State and Municipal Employees Subject to Writ of Sequestration

 

 

(a) Writ of Sequestration--Application for Issuance. When an execution is requested on a judgment rendered against an officer, appointee, or employee of the state of Missouri or any municipal corporation or other political subdivision of the state, the clerk shall issue a writ of execution, which shall constitute and serve as a writ of sequestration. The writ shall be directed to the sheriff or other officer authorized to execute writs in the county in which the paying, disbursing, or auditing officer may be found with instructions to the sheriff or executing officer to take into possession any and all moneys, checks, drafts, warrants, vouchers, or other evidence of indebtedness for salary, wages, fees, or earnings for services rendered by the judgment debtor then due and payable, and which shall thereafter become due and payable, from the date of the writ to the return day thereof. The sheriff or other officer to whom the writ is directed shall serve a true copy thereof upon the paying, disbursing, or auditing officer named therein, which shall have the effect of attaching in the sheriff's or officer's hands any and all moneys, checks, drafts, warrants, vouchers, or other evidences of indebtedness then due and payable, and which shall thereafter become due and payable, from the state or such municipal corporation or other political subdivision of the state to the judgment debtor from and after the date of the service of the writ to the return day thereof.

 

(b) Duties of Officers--Fees--Exemptions. The officer serving the writ shall endorse thereon the day and date the same was received, shall take into possession, as the same shall become due to the judgment debtor, such moneys, checks, drafts, warrants, vouchers, of other evidences of indebtedness, and shall issue a receipt to the paying, disbursing, or auditing officer therefor, and shall endorse, in the name of the judgment debtor, any and all such checks, drafts, warrants, vouchers, or other evidences of indebtedness delivered under the writ. The proceeds thereof less any amount exempt to the judgment debtor under the exemption statutes of this state, or so much thereof as shall be necessary therefor, shall be applied to the payment of the judgment debt, interest, and costs in the same manner as in the case of garnishment under execution.

 

The sheriff or other officer serving the writ shall make a return to the writ showing the manner of serving it. The sheriff or officer shall be allowed the same fees therefor as provided for levy of execution. The writ shall be returnable in the same manner as the execution issued out of the court in which the judgment was rendered.

 

Nothing herein shall deprive the judgment debtor of any exemptions permitted under the exemption laws of this state, and the exemptions may be claimed to the sheriff or other officer serving the writ at any time on or before the return date of the writ in the manner provided under the exemption laws of this state. It shall be the duty of the sheriff or other officer serving the writ, at the time of the service thereof, to apprise the judgment debtor of the debtor's exemption rights, either in person or by registered or certified mail directed to the judgment debtor at the last known address.

 

(c) Other Procedures in Rule 90 Applicable. The procedure in this Rule 90 for determining liability on garnishments shall be applicable in the determination of liability on sequestrations.

 

90.17 to 90.22. Repealed by order dated May 15, 1998, eff. Jan. 1, 1999

 

Rule 91. Habeas Corpus (Refs & Annos) 91.01. Habeas Corpus--General--Who May Petition for--Form of Action

(a) Proceedings in habeas corpus in a circuit court shall be as prescribed in this Rule 91 and in this Court or the court of appeals shall be as prescribed in Rule 84.22 to 84.26, inclusive, and this Rule 91. In all particulars not provided for by the foregoing provisions, proceedings in habeas corpus shall be governed by and conform to the rules of civil procedure and the existing rules of general law upon the subject. The court may, by order, direct the form of such further details of procedure as may be necessary to the orderly course of the action to give effect to the remedy.

 

(b) Any person restrained of liberty within this state may petition for a writ of habeas corpus to inquire into the cause of such restraint. Custody of a child may be the subject of a proceeding in habeas corpus.

 

(c) A habeas corpus proceeding shall be a civil action in which the person seeking relief is petitioner and the person against whom such relief is sought is respondent. If appropriate, there may be multiple petitioners or multiple respondents.

 

91.02. Petition to What Court First Made

 

 

(a) Except as provided in subdivision (b) of this Rule 91.02, when a person who is held in custody on a charge of crime seeks the benefit of this Rule 91, the petition in the first instance shall be to a circuit or associate circuit judge for the county in which the person is held in custody if at the time of the petition such judge is in the county, unless good cause is shown for filing the petition in a higher court. The petitioner shall give reasonable notice of the time and place of filing the petition to the prosecuting attorney for the county in which the petition is to be filed, if at the time thereof the attorney is in the county. Upon such notice, the attorney shall attend the hearing of the petition on behalf of the state.

 

(b) If a person is held in custody pursuant to a conviction for a capital crime and a sentence of death and this Court has affirmed the conviction and sentence, any petition seeking the benefit of this Rule 91 may be filed in this Court in the first instance. The petitioner shall give reasonable notice of the time and place of filing the petition to the attorney general of this state, who shall represent the state in the matter. Any such petition filed in a state court other than this Court shall be deemed to have been filed in this Court. Any clerk filing such a petition shall give notice for the filing of the petition to the clerk of this Court by telephone or by other expeditious means and shall forward the petition to this Court immediately.

 

91.03. Petition--By Whom Made

 

 

The petition for a writ of habeas corpus shall be signed by the person for whose relief it is intended or by some person acting in such person's behalf.

 

91.04. Petition--Contents--Attachments

 

 

(a) Contents. The petition shall state:

 

(1) The name or description of the person who is restraining the person's liberty;

 

(2) The place where the person is detained;

 

(3) Facts showing that the restraint is illegal or improper; and

 

(4) That no petition for the relief sought has been made to any higher court to the one to which the petition is presented or that the higher court denied the writ without prejudice to proceeding in a lower court.

 

(b) Attachment to Petition. If the restraint is by virtue of any warrant, order, or process, a copy thereof must accompany the petition, unless reasons are set forth in the petition constituting good cause for failure to do so.

 

91.05. Writ or Show Cause Order to be Granted Without Delay

 

 

A court to which a petition for a writ of habeas corpus is presented shall forthwith grant the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the petition that the person restrained is not entitled thereto.

 

91.06. Writ Shall Issue Without Petition--When

 

 

Whenever any court of record, or any judge thereof, shall have evidence from any judicial proceedings had before such court or judge that any person is illegally confined or restrained of liberty within the jurisdiction of such court or judge, it shall be the duty of the court or judge to issue a writ of habeas corpus for the person's relief, although no petition be presented for such writ.

 

91.07. Form of Writ or Order--To Whom Directed

 

 

Every writ shall be captioned with the style of the case, shall be entitled “Writ of Habeas Corpus,” and shall be issued in the name of the State of Missouri. All such writs or orders to show cause shall be issued under the seal of the court, unless issued by a judge out of court in which event the writ or order shall be signed by the judge. The writ or order shall be directed to the person having custody of the person restrained and shall designate a time for filing an answer to the petition, which shall not be later than three days after service. For good cause additional time may be allowed.

 

91.08. Service of Writ or Order

 

 

(a) By Delivery. The writ of habeas corpus or the order to show cause may be served by delivering the same to the person to whom it is directed or to any other person having custody of the person restrained.

 

(b) By Offer of Delivery and Refusal. When the person to be served refuses to receive service of the writ or order to show cause, the offer of the server to deliver the same and such refusal, when these facts are shown on the server's return, shall be service.

 

(c) By Posting. When service of the writ or order to show cause cannot be made pursuant to paragraph (a) or (b), service may be made by affixing the writ or order in a conspicuous place on the dwelling house of the person to be served or the place where the person is restrained.

 

91.09. Answer--Time For--Contents--Attachments

 

 

(a) Time. The person served shall file an answer at the time designated in the writ or order.

 

(b) Contents. The answer shall be directed to the petition and shall also contain:

 

(1) A statement whether the person who is allegedly restrained is being restrained by respondent and, if so, the circumstances and authority for such restraint;

 

(2) If the person filing the answer shall have had the person under restraint at any time before service of the writ or order and has transferred the person to another, a statement to whom, at what time, for what cause, and by what authority such transfer took place.

 

(c) Attachment to Answer. If the person is restrained by virtue of any writ, order, warrant, or other written authority, a copy shall be attached to the answer.

 

91.10. Pleadings--Amendments and Supplementation

 

 

Any pleading may be amended or supplemented as provided in Rule 55.33.

 

91.11. Person Restrained to be Produced With Answer to Petition--Exception--Custody Pending Judgment

 

 

If a person filing an answer has the custody of the person for whose benefit the writ was issued, he shall produce such person before the court according to the command of the writ unless the writ directs otherwise. Pending determination of the issues, the court may either commit the restrained person to the custody of the sheriff or make such other orders pertaining to the care or custody as circumstances may require. The person filing an answer may state facts showing that because of sickness or other infirmity the restrained person cannot be brought before the court. Upon making such finding the court may proceed in the absence of such person.

 

91.12. Reply to Answer

 

 

By written reply the petitioner or person restrained may deny any facts set forth in the answer and allege any other material facts.

 

91.13. Disobedience of Writ--Further Proceedings

 

 

The person served shall comply with the writ or order to show cause even though directed to him by the wrong name or description or to another person.

 

Unless a sufficient excuse is shown, failure to comply with the writ shall authorize the court to order the incarceration of the delinquent until he complies.

 

The court may make any other orders necessary to bring before the court the person for whose benefit the writ of habeas corpus is issued.

 

91.14. Condition of Release

 

 

If the person for whose relief a writ of habeas corpus has been issued is charged with a bailable offense, the court in which the answer is to be filed shall set conditions of release pursuant to Rule 33.

 

91.15. Time of Hearing

 

 

When the answer is filed, the court may proceed with the hearing not more than five days after the filing of the answer unless the person being restrained requests a longer time or for good cause additional time is allowed.

 

91.16. Production of Restrained Person at Hearing

 

 

The person upon whom the writ is served shall produce the restrained person at the hearing unless the court otherwise orders.

 

91.17. Duty of Court on Final Hearing

 

 

The court shall forthwith hear and determine the matter.

 

91.18. Order of Discharge

 

 

If no legal cause is shown for the restraint, the court shall forthwith order the person discharged.

 

91.19. Order of Discharge--How Enforced

 

 

Any order of discharge may be enforced by incarceration in the same manner as provided in Rule 91.13 or by contempt or by any other proper order of the court.

 

91.20. Order of Remand or Other Disposition

 

 

If legal cause is shown for the restraint, the person shall be returned to the restraint from which he was taken or committed to such other restraint as may be proper.

 

91.21. Warrant in Lieu of Writ

 

 

When the court finds that any person is illegally restrained of liberty and that there is good cause to believe that the person will be removed from the state or suffer some irreparable injury before the person can be relieved by a writ of habeas corpus, any court authorized to issue such writs may issue a warrant reciting the facts directed to any officer or other person commanding the officer or person to take the person so restrained and bring that person forthwith before the court to be dealt with according to law. A copy of the warrant shall be served on the restraining person together with an order directing the restraining person to file an answer as provided in Rule 91.09.

 

Proceedings thereafter shall be as if a writ of habeas corpus had been originally issued.

 

91.22. Second Writ not to Issue By Lower Court

 

 

When a petition for a writ of habeas corpus has been denied by a higher court, a lower court shall not issue the writ unless the order in the higher court denying the writ is without prejudice to proceeding in a lower court.

 

91.23. Certain Persons not Entitled to Discharge

 

 

No person shall be discharged under the provisions of this Rule 91 who is in custody or held by virtue of any legal engagement or enlistment in the armed services of the United States or who, being subject to the rules and articles of war, is confined by one legally acting under the authority thereof or who is held as a prisoner of war under the authority of the United States or who is in custody for any treason, felony or other high misdemeanor committed in any other state or territory of the United States and, by the Constitution and laws of the United States, ought to be delivered up to such state or territory.

 

91.24 to 91.61. Repealed eff. Jan. 1, 1983

 

 

91.24 to 91.61. Repealed eff. Jan. 1, 1983

 

 

Rule 92. Injunctions

 

 

92.01. Who May Grant

 

 

Injunctions may be granted by a circuit or associate circuit judge.

 

92.02. Temporary Restraining Order--Notice--Preliminary Injunction--Bond--Form and Scope

 

 

(a) Temporary Restraining Order--With Notice.

 

(1) When Issued. The court shall not grant a temporary restraining order unless the party seeking relief demonstrates that immediate and irreparable injury, loss, or damage will result in the absence of relief.

 

(2) Proof Required. A party seeking a temporary restraining order shall support that request with a verified petition or affidavit reciting the specific facts that support the showing required by Rule 92.02(a)(1).

 

(3) Required Notice. Except as provided in Rule 92.02(b), no temporary restraining order shall issue without reasonable notice at least twenty-four hours before the hearing on the motion to the party against whom relief is sought.

 

(4) Form. A temporary restraining order shall be endorsed with the date and hour of issuance, shall be filed forthwith in the clerk's office and entered of record, and shall set forth specific facts that support the showing required by Rule 92.02(a)(1).

 

(5) Duration. A temporary restraining order shall expire within such time after entry, not to exceed fifteen days, as the court fixes. The court may extend the order for additional periods, not to exceed fifteen days each, if the party seeking relief shows that the grounds specified in Rule 92.02(a)(1) continue to exist.

 

(b) Temporary Restraining Order--Without Notice.

 

(1) When Issued. A party seeking a temporary restraining order without notice shall make the showing required under Rule 92.02(a). The court shall not grant a temporary restraining order without prior notice to the party against whom relief is sought unless the party seeking relief establishes that notice cannot be given or notice would defeat the purpose of the order.

 

(2) Proof Required. A party seeking a temporary restraining order without notice shall file a verified petition or affidavit reciting the specific facts that support the showing required by Rule 92.02(b)(1).

 

(3) Form. A temporary restraining order granted without notice shall be endorsed with the date and hour of issuance, shall be filed forthwith in the clerk's office and entered of record, and shall set forth specific facts that support the showing required by Rule 92.02(b)(1). A temporary restraining order failing to set forth such specific facts is void ab initio.

 

(4) Duration. A temporary restraining order granted without notice shall expire within such time after entry, not to exceed ten days, as the court fixes. The court may extend the order for additional periods, not to exceed ten days each, after notice to the party against whom relief is sought. The court may dispense with such notice only if the party seeking relief establishes that notice cannot be given to the party against whom relief is sought or notice would defeat the purpose of the order.

 

(5) When Set Aside. On one day's notice to the party who obtained the temporary restraining order without notice, or on such shorter notice as the court may prescribe, the adverse party may appear and move to dissolve or modify the order. At the hearing, the burden shall be upon the party seeking the temporary restraining order to establish a right to relief.

 

(6) Sanction for Failure to Provide Required Notice. If the court finds that a party obtaining a temporary restraining order without notice did not have a reasonable basis to proceed without notice, the party shall be presumed to have acted in bad faith and to have violated Rule 55.03(c). The thirty-day provisions of Rule 55.03(d)(1)(A) shall not apply to proceedings under this Rule 92.02(b)(6).

 

(c) Preliminary Injunction.

 

(1) Notice. A preliminary injunction shall not issue unless the party against whom relief is sought is given prior notice and an opportunity to be heard.

 

(2) Time. If a temporary restraining order is in effect for more than thirty days without a hearing on an application for a preliminary injunction, the court shall schedule a hearing at the earliest possible date. The hearing shall take precedence over all other matters except older matters of the same character. The hearing on the application for a preliminary injunction may be delayed past these limits if all parties consent.

 

(3) Consolidation With Hearing on the Merits. At any time the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application for a preliminary injunction. Any evidence received upon an application for a preliminary injunction admissible at the trial on the merits becomes part of the trial record and need not be repeated at the trial. This Rule 92.02(c)(3) shall be so construed and applied to preserve any party's right to trial by jury.

 

(d) Bond. No injunction or temporary restraining order, unless on final hearing or judgment, shall issue in any case, except in suits instituted by the state in its own behalf, until the plaintiff, or some responsible person for the plaintiff, shall have executed a bond with sufficient surety or sureties to the other party, in such sum as the court shall deem sufficient to secure the amount or other matter to be enjoined, and all damages that may be occasioned by such injunction or temporary restraining order to the parties enjoined, or to any party interested in the subject matter of the controversy, conditioned that the plaintiff will abide by the decision that shall be made thereon and pay all sums of money, damages and costs that shall be adjudged if the injunction or temporary restraining order shall be dissolved. In lieu of the bond the plaintiff may deposit with the court such sum, in cash, as the court may require sufficient to secure such amount.

 

(e) Form and Scope of Injunction or Temporary Restraining Order. Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the petition or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

 

92.03. Injunction Pending Appeal

 

 

When an appeal is taken from a judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.

 

92.04. Power of Appellate Court Not Limited

 

 

The provisions of this Rule 92 do not limit any power of an appellate court or of a judge thereof to stay proceedings during the pendency of an appeal or to suspend, modify, restore, or grant an injunction during the pendency of an appeal or to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequently to be entered.

 

Rule 93. Land Titles 93.01. Procedure--Service of Process

The institution, prosecution, trial and determination of civil actions to establish evidence of and to perfect land titles shall conform in all respects to rules of procedure covering ordinary civil actions and service of process shall be had in the same manner as provided in Rule 54.

 

Rule 94. Mandamus (Refs & Annos)

 

 

94.01. Mandamus--General

 

 

Proceedings in mandamus in a circuit court shall be as prescribed in this Rule 94 and in this Court or the court of appeals shall be as prescribed in Rule 84.22 to Rule 84.26, inclusive, and this Rule 94. In all particulars not provided for by the foregoing provisions, proceedings in mandamus shall be governed by and conform to the rules of civil procedure and the existing rules of general law upon the subject and the court may, by order, direct the form of such further details of procedure as may be necessary to the orderly course of the action or to give effect to the remedy.

 

94.02. Forms of Action--Parties

 

 

Proceedings in mandamus shall be by a civil action in which the person seeking relief is relator and the person against whom such relief is sought is respondent. If appropriate, there may be multiple relators or multiple respondents.

 

94.03. Petition in Mandamus--Contents--Exhibits

 

 

Application for a writ of mandamus shall be made by filing a petition in mandamus in the appropriate court.

 

The petition in mandamus shall contain a statement of the facts, the relief sought, and a statement of the reasons why the writ should issue.

 

The petition in mandamus shall be accompanied by suggestions in support thereof.

 

A copy of any order, opinion, record or part thereof, document, or other item that may be essential to an understanding of the matters set forth in the petition in mandamus shall be attached as exhibits if not set forth therein. The pages of the exhibits shall be numbered consecutively.

 

An index of all exhibits also shall be attached. Exhibits shall be identified in the index by number or letter and page and, in addition, shall be described so that the court can distinguish the exhibits.

 

94.04. Grant of Preliminary Order

 

 

If the court is of the opinion that the preliminary order in mandamus should be granted, such order shall be issued.

 

94.05. Preliminary Order--Contents--Service

 

 

The preliminary order in mandamus shall issue in the name of the state and upon the relation of the relator. The preliminary order shall order the respondent to file an answer within the time fixed by the order. The clerk shall forthwith deliver a copy of the preliminary order, together with a copy of the petition, for service to the sheriff or other person specially appointed to serve it. Service may be made as provided in Rule 54.

 

94.06. Mandamus Against Judge of Court of Record

 

 

If the preliminary order in mandamus is directed to a judge of a court of record, the clerk shall cause a copy of the preliminary order, together with a copy of the petition and any exhibits thereto, to be served on all other parties below. Service may be made as provided in Rule 43.01 or Rule 54. Any of the parties below may, within the time fixed for the respondent to answer, file an answer to the petition in mandamus or may answer jointly with the respondent or with each other.

 

94.07. Answer--Motions

 

 

The answer shall be directed to the petition in mandamus. The answer may include or be accompanied by one or more motions.

 

Rule 95. Change of Name

 

 

95.01. Petition For Change of Name--Contents

 

 

The petition for change of name shall be verified and shall state:

 

(a) The present name of petitioner and the name desired;

 

(b) The reason for such desired change;

 

(c) That the petitioner is a resident of the county in which the change of name is sought;

 

(d) The date and place of birth of petitioner and petitioner's father's name and mother's maiden name;

 

(e)h If petitioner is married the name of petitioner's spouse and if petitioner has children the names and ages of each and their place of residence;

 

(f) If petitioner's name has previously been changed, when and where and by what court;

 

(g) Whether any judgment for money which has not been satisfied is pending against petitioner and, if so, the style of the case wherein the judgment was entered and the court in which the judgment was entered;

 

(h) Whether any action for money is pending against petitioner and, if so, the style of the case and the court in which it is pending; and

 

(i) That the change of name will not be detrimental to any other person.

 

95.02. Joint Petition for Family

 

 

Parents and minor children may join in a petition for change of name and the petition shall state the facts herein required of the parents and the name of the minor children may be changed at the discretion of the court.

 

95.03. Petition for Change of a Minor's Name--Notice to or Consent of Parents

 

 

When a minor files a petition for change of name the written consent of each known parent shall be filed. If the written consent of each known parent is not filed, a copy of the petition together with a notice stating the date of the hearing shall be served on each known parent not consenting not less than thirty days before the date of the hearing. The service shall be by registered or certified mail addressed to the last known address of the nonconsenting parent. Service shall be proved by the certificate of the clerk that he has mailed a copy of the petition and notice by registered or certified mail.

 

95.04. Order of Change of Name--When

 

 

The court shall order the desired change of name if it finds that the change would be proper and not detrimental to the interests of any other person.

 

95.05. Publication of Notice of Change of Name

 

 

When a change of name is granted notice of the change shall be published at least once each week for three consecutive weeks in a newspaper of general circulation published in the county where the change of name was granted. If there is no such newspaper, then the publication shall be in a newspaper designated by the court. Proof of the publication shall be filed with the clerk within ten days after the date of last publication.

 

Rule 96. Partition of Real and Personal Property

 

 

96.01. Right to Partition in General

 

 

Owners of interests in land in joint tenancy or tenancy in common, including estates in fee, for life, or for years, may bring an action for partition, if the same can be done without great prejudice to the parties in interest, and, if not, then for a sale of the property, and a division of the proceeds thereof.

 

96.02. Service of Process

 

 

In partition actions service of process may be made as provided by Rule 54.

 

96.03. Burdensome and Unprofitable Estates--Sale

 

 

Persons holding estates, or an interest in estates, in land for life or for years, carrying the right of immediate use and enjoyment therein may sue the owners of the remainder or reversion for sale of such land, or any of the same, upon the ground that the life or other estate of immediate enjoyment is burdensome and unprofitable because the cost of paying the taxes and assessments thereon and holding, maintaining, caring for and preserving the land from waste, or injury and deterioration, exceeds the reasonable value of the rents and profits thereof, and that a greater income can probably be had from proceeds of a sale thereof invested in bonds of the United States or of Missouri or of some municipality or school district thereof or first lien mortgage loans on land situated in this state. The sale of such land in partition shall be made in the same manner as other sales of land not susceptible of division in kind. From the proceeds of the sale there shall be first paid the costs and expenses of the action and sale of the real estate and the commuted value of any estate which is commutable and which is requested to be commuted by the owner or owners thereof. The balance of the proceeds of the sale shall be invested as authorized by this Rule and the income therefrom shall be distributed to the owners of such estate for life or for years.

 

96.04. Parties

 

 

All persons in being who are vested, and all persons in being who might or would have become vested with an estate in said land if the event, condition, contingency or lapse of time upon which the same may be limited to vest in such person had happened or occurred at or immediately prior to the commencement of such action, shall be made parties plaintiff or defendant. The rule of representation of persons not in being by the person or person of the same class in estate or related in estate in respect to the land shall apply and all persons not in being shall be bound in such cases by such rule and as to and against all such persons both those in being and those not in being such sale shall carry full title to said lands. If an interest or estate in the land might vest in a person not in being who is not represented by a person in being of the same class or related in estate, the court shall appoint counsel to represent the interest of the person not in being.

 

96.05. Petition--Contents

 

 

The petition shall contain the legal description of the land sought to be partitioned. It shall also set forth the names, rights and title of all persons interested therein. If a person, or the share or interest of a person is unknown, uncertain or contingent, or the ownership of the land depends upon an executory devise, or the remainder is contingent, it shall be stated in the petition.

 

96.06. Who Shall be Made Parties

 

 

Every person having an interest in the land, whether in possession or otherwise, shall be made a party to an action in partition.

 

96.07. Partition not be Made Contrary to Will

 

 

No partition or sale of land devised by any last will shall be made under this Rule 96, contrary to the intention of the testator, expressed in any such will.

 

96.08. Interests of Parties to be Determined

 

 

The court shall determine the interests of the parties and order partition in kind or the sale of the land.

 

96.09. Several Shares May be Set Off Together

 

 

The court may order that any number of shares be set off together in one parcel and that the residue be divided among the other parties, according to their several rights.

 

96.10. When Parties Claim Adversely--How Court Shall Proceed

 

 

When parties claim the same share adversely, the court may determine the adverse claims or direct that the share be allotted, subject to the adverse claims.

 

96.11. Court May Order Sale Without Appointment of Commissioners

 

 

If the court finds that partition in kind cannot be made without great prejudice to the owners an order of sale may be made without the appointment of commissioners.

 

96.12. Court Shall Appoint Commissioners--When

 

 

When a judgment of partition in kind is rendered, the court shall appoint three commissioners, residents of any county in which any of the land to be divided lies, to make the partition. In case of the death, resignation, inability or refusal to act of any commissioner the court may appoint a substitute. The court may authorize the commissioners to employ surveyors.

 

96.13. Compensation of Commissioners and Surveyors

 

 

The commissioners and surveyors shall receive compensation as fixed by the court, which sums shall be taxed as costs.

 

96.14. Commissioners to Make Affidavit and Give Notice to Parties

 

 

The commissioners, before proceeding to the execution of their duties, shall make affidavit, before some officer qualified to administer oaths, to honestly and impartially execute the trust reposed in them, which shall be filed with their report. They shall give at least ten days' notice to the parties of the time when they will perform their duties.

 

96.15. Commissioners' Report

 

 

The commissioners shall make a written report describing the land divided and the shares allotted to the parties, or that partition cannot be made without great prejudice to the owners, or that partition can be made only of a part of the land. The report shall also list the expenses incurred by the commissioners. It shall be proved or acknowledged in the same manner as deeds are required to be proved or acknowledged to entitle them to be recorded and shall be filed in the office of the clerk of the court.

 

96.16. Clerk to Give Notice of Filing of Report--Exceptions to Report, When Filed

 

 

Immediately after the filing of the report of the commissioners, the clerk shall notify the parties of such filing. The notice shall be given in the manner provided by Rule 43.01, or, if this is not possible, by posting the notice in the office of the clerk of the court. The clerk shall file a certificate showing the time and manner of serving all such notices. Any party may file written exceptions to the report of the commissioners within thirty days after the service or posting of the notice. The court may, for good cause, set aside the report and appoint new commissioners or may confirm the report and order judgment thereon. The court shall allow the commissioners reasonable compensation for their services which shall be taxed as costs.

 

96.17. Copy of Report and Judgment to be Recorded

 

 

The clerk of the court shall file and cause to be recorded a certified copy of the report and judgment of confirmation in each county in which any land is situated. The costs of certification and recording shall be taxed as costs.

 

Part III. Rules Relating to Special Actions Rule 96. Partition of Real and Personal Property 96.18. Court May Order Sale of Land--When

If the commissioners report to the court that partition of the land, or any portion thereof, cannot be made without great prejudice to the parties, an order of sale may be made.

 

96.19. Order of Sale

 

 

The order shall prescribe the terms, place and who shall conduct the sale; it shall not specify the date of sale. The clerk shall deliver a certified copy of the order of sale to the sheriff or commissioner who shall conduct the sale. The sheriff or commissioner shall advertise and sell the land.

 

96.20. Where Sale Shall be Held

 

 

If the land is located in only one county the sale of the land shall be held in that county. If the lands are located in more than one county but are contiguous, the sale of the land shall be held in any county where any part of the land is located. If the land is located in more than one county but in separate tracts, the sale or sales shall be held in the county or counties in which any of the land is located which the court designates.

 

96.21. Notice of Sale

 

 

Notice of a sale in partition shall be published in each county in which any of the land is to be sold is located. The sheriff or commissioner shall give thirty days notice of the time and place of sale and what land is to be sold and where situated by advertisement in some newspaper printed in the county if there be one regularly published, weekly or daily, which may be designated by the plaintiffs or their attorney. If there is no such newspaper then the publication shall be in a newspaper designated by the court.

 

96.22. Order of Sale Shall be Renewed--When

 

 

When an order of sale has been made and the sale has failed to take place for any cause, the court shall renew the order of sale. The clerk shall deliver a certified copy of such order to the sheriff or commissioner who shall give notice and sell the land.

 

96.23. Land May be Sold in Parcels--When

 

 

Unless the court otherwise orders, the land may be sold in separate tracts or as a whole.

 

96.24. Sheriff or Commissioner to Collect Purchase Money and Make Deed to Purchaser

 

 

The sheriff or commissioner shall collect and disburse the purchase money according to the order of the court and he shall execute and deliver the deed to the purchaser. The deed shall be acknowledged or proved in the same manner as conveyances made by the sheriff of land sold under execution. If the purchaser dies before the delivery of the deed therefor, the court shall, on proof of the fact of the purchaser's death, and the identity of the persons entitled to the property, order the sheriff to execute, acknowledge and deliver the deed to such persons.

 

96.25. Defective Deed to be Corrected--How

 

 

When the court finds that the sheriff or commissioner has executed and delivered to the purchaser an incorrect deed in partition and that since such defective conveyance no other person has obtained adverse and intervening rights which would be prejudiced, the court may enter an order transferring the title to the land sold to the original purchaser or to any person claiming by, through or under him.

 

96.26. Sheriff's Report--Contents

 

 

The sheriff shall report the sale to the court, with a description of the different parcels of the land sold, the names of the respective purchasers and the sale prices. He shall also file with the court a statement of all amounts received and all costs and expenses incurred in effecting the sale.

 

96.27. Proceeds of Sale--How Disbursed

 

 

The court shall direct the payment by the sheriff or commissioner of the costs and expenses of the proceedings and the remainder to the parties in interest.

 

96.28. Adverse Claim to Proceeds--Procedure

 

 

Funds derived from the sale of any share to which there are adverse claims shall be retained by the sheriff or commissioner subject to the order of the court.

 

96.29. Proceeds of Partition Sale Subject to Debts of Estate

 

 

Upon judgment of partition in proceedings commenced under this Rule 96, where the land or any portion thereof, sought to be divided as hereinbefore directed, shall have descended to any of the parties in interest, and the court shall not be satisfied either that the estate from which the same has descended has been finally settled, and all claims against the same fully discharged, or that the personal property, or other real property not already partitioned, belonging to such estate, is more than sufficient to pay all claims and demands against the same, the order of distribution shall not apply to nor take effect upon any land allotted or the share of the proceeds of any sale adjudged to the parties whose interests shall have so descended until such estate shall have been finally settled and all claims against the same fully discharged. Until such final settlement, the interest of all parties in such land or in the proceeds of sale in cases where sale has been ordered, shall remain and be subject to the claims against the same.

 

96.30. Court Shall Allow Fees, Costs and Expenses

 

 

The court shall allow a reasonable fee to the attorney instituting the action in partition and may allow a reasonable fee for any guardian ad litem appointed. The court shall also allow reasonable costs, expenses and compensation to the sheriff or commissioner. The fees, costs and expenses shall be taxed as costs.

 

96.31. Bond of Commissioner Appointed to Sell Land

 

 

Any commissioner appointed to sell land shall, before acting, file with the clerk a bond, payable to the state, with such sureties as may be approved by the court, in a sum sufficient to indemnify the parties, conditioned that the commissioner will faithfully discharge the duties of office and account for and pay over, according to the order of the court, to the parties entitled thereto all such sums of money as may come to the possession of the commissioner.

 

96.32. Partition of Personal Property

 

 

Owners of interests in personal property in joint tenancy or tenancy in common, including estates in fee, for life or for years, may bring an action for partition in kind or by sale and division of the proceeds thereof. The procedure shall be the same, as near as may be, to that provided in this Rule 96 for partition of land.

 

Rule 97. Prohibition (Refs & Annos)

 

 

97.01. Prohibition--General

 

 

Proceedings in prohibition in a circuit court shall be as prescribed in this Rule 97 and in this Court or the court of appeals shall be as prescribed in Rule 84.22 to Rule 84.26, inclusive, and this Rule 97. In all particulars not provided for by the foregoing provisions, proceedings in prohibition shall be governed by and conform to the rules of civil procedure and the existing rules of general law upon the subject and the court may, by order, direct the form of such further details of procedure as may be necessary to the orderly course of the action or to give effect to the remedy.

 

97.02. Form of Action--Parties

 

 

Proceedings in prohibition shall be by a civil action in which the person seeking relief is relator and the person against whom such relief is sought is respondent. If appropriate, there may be multiple relators or multiple respondents.

 

97.03. Petition in Prohibition--Contents--Exhibits

 

 

Application for a writ of prohibition shall be made by filing a petition in prohibition in the appropriate court.

 

The petition in prohibition shall contain a statement of the facts, the relief sought, and a statement of the reasons why the writ should issue.

 

The petition in prohibition shall be accompanied by suggestions in support thereof.

 

A copy of any order, opinion, record or part thereof, document, or other item that may be essential to an understanding of the matters set forth in the petition in prohibition shall be attached as exhibits if not set forth therein. The pages of the exhibits shall be numbered consecutively.

 

An index of all exhibits also shall be attached. Exhibits shall be identified in the index by number or letter and page and, in addition, shall be described so that the court can distinguish the exhibits.

 

97.04. Grant of Preliminary Order

 

 

If the court is of the opinion that the preliminary order in prohibition should be granted, such order shall be issued.

 

97.05. Preliminary Order--Contents--Service

 

 

The preliminary order in prohibition shall issue in the name of the state and upon the relation of the relator. The preliminary order shall order the respondent to file an answer within the time fixed by the order and may order the respondent to refrain from all action in the premises until further order. The clerk shall forthwith deliver a copy of the preliminary order, together with a copy of the petition, for service to the sheriff or other person specially appointed to serve it. Service may be made as provided in Rule 54.

 

97.06. Prohibition Against Judge of Court of Record

 

 

If the preliminary order in prohibition is directed to a judge of a court of record, the clerk shall cause a copy of the preliminary order, together with a copy of the petition and any exhibits thereto, to be served on all other parties below. Service may be made as provided in Rule 43.01 or Rule 54. Any of the parties below may, within the time fixed for the respondent to answer, file an answer to the petition in prohibition or may answer jointly with the respondent or with each other.

 

97.07. Answer--Motions

 

 

The answer shall be directed to the petition in prohibition. The answer may included or be accompanied by one or more motions.

 

Rule 98. Quo Warranto (Refs & Annos)

 

 

98.01. Quo Warranto--General

 

 

Proceedings in quo warranto in a circuit court shall be as prescribed in this Rule 98 and in this Court or the court of appeals shall be as prescribed in Rule 84.22 to Rule 84.26, inclusive, and this Rule 98. In all particulars not provided for by the foregoing provisions, proceedings in quo warranto shall be governed by and conform to the rules of civil procedure and the existing rules of general law upon the subject and the court may, by order, direct the form of such further details of procedure as may be necessary to the orderly course of the action or to give effect to the remedy.

 

98.02. Form of Action--Parties

 

 

(a) Proceedings in quo warranto shall be by a civil action in which the party seeking relief is relator and the person against whom such relief is sought is respondent, which action shall be brought in the name of the State of Missouri;

 

(b) Any of the following may be relators:

 

(1) The attorney general of this state, upon personal information (State of Missouri, ex inf. John Doe, Attorney General), or at the relation (State of Missouri, ex inf. John Doe, Attorney General, ex rel. Richard Roe, et al.) of any person who has a special interest in the subject matter of the action, or,

 

(2) The prosecuting attorney, upon personal information (State of Missouri, ex inf. John Doe, Prosecuting Attorney), or, at the relation (State of Missouri, ex inf. John Doe, Prosecuting Attorney, ex rel. Richard Roe, et al.) of any person who has a special interest in the subject matter of the action, the prosecuting attorney being limited to filing with respect to matters pertaining solely to the prosecuting attorney's county or circuit.

 

(c) The Attorney General or a prosecuting attorney, when action is brought upon information at the relation of another, may authorize the prosecution of the action to final conclusion in the name of the relator.

 

(d) If appropriate, there may be multiple relators or multiple respondents.

 

98.03. Petition in Quo Warranto--Contents--Exhibits

 

 

Application for a judgment in quo warranto shall be made by filing a petition in quo warranto in the appropriate court.

 

The petition in quo warranto shall contain a statement of the facts, the relief sought, and a statement of the reasons why a preliminary order in quo warranto should be issued.

 

The petition shall be accompanied by suggestions in support thereof.

 

A copy of any order, opinion, record or part thereof, document, or other item that may be essential to an understanding of the matters set forth in the petition in quo warranto shall be attached as exhibits if not set forth therein. The pages of the exhibits shall be numbered consecutively.

 

An index of all exhibits also shall be attached. Exhibits shall be identified in the index by number or letter and page and, in addition, shall be described so that the court can distinguish the exhibits.

 

98.04. Grant of Preliminary Order

 

 

If the relator is the attorney general or the prosecuting attorney, filing upon personal information, the court shall issue a preliminary order in quo warranto. When the petition is filed at the relation of another as described in Rule 98.02(b), if the court is of the opinion that the preliminary order in quo warranto should be granted, such order shall be issued.

 

98.05. Preliminary Order--Contents

 

 

The preliminary order in quo warranto shall require the respondent to file an answer within the time fixed by the order. The clerk shall forthwith deliver a copy of the preliminary order, together with a copy of the petition, for service to the sheriff or other person specially appointed to serve it. Service may be as provided in Rule 43.01 or Rule 54.

 

98.06. Answer--Motions

 

 

The answer shall be directed to the petition in quo warranto. The answer may include or be accompanied by one or more motions.

 

Rule 99. Replevin

 

 

99.01. Action in Replevin

 

 

A person claiming the right to possession of personal property may bring an action in replevin for possession of the property.

 

99.02. Service of Process

 

 

In replevin actions service of process may be made as provided by Rule 54.

 

Rule 99. Replevin 99.03. Affidavit to Obtain Immediate Possession of Property

When a party requests immediate possession of personal property an affidavit shall be filed stating:

 

(a) The description of the property;

 

(b) Facts showing the party is entitled to the possession of the property;

 

(c) The actual value of the property;

 

(d) The property has not been seized under any legal process;

 

(e) The party is in danger of losing the property unless immediate possession is obtained or the property is otherwise secured.

 

99.04. Order of Delivery

 

 

If the court finds that the facts stated in the affidavit show that the party has the right to immediate possession an order shall be issued directing the sheriff to take possession of the property and deliver it to the party upon compliance with Rule 99.06.

 

99.05. Prejudgment Seizure--Notice Required

 

 

When a prejudgment seizure of property is made, a written notice shall be served on the defendant advising the defendant of the right to file a delivery bond and of the right to request a hearing to determine the plaintiff's right to possession of the property.

 

99.06. Delivery Bond--Form of--Effect of Filing

 

 

The plaintiff shall file a sufficient bond, approved by the court, executed by the plaintiff as principal and one or more sufficient sureties to the effect that they are bound to the defendant in double the value of the property for the prosecution of the action with effect and without delay, for the return of the property to the defendant, if return thereof be adjudged, and, in default of such delivery for the payment of all damages for injuries to the property thereafter, for the payment of all damages for the taking and detention thereof, and for all costs.

 

99.07. Redelivery Bond--Form of

 

 

The defendant may file, either before or after delivery of the property to the plaintiff, a sufficient redelivery bond, approved by the court, executed by the defendant as principal and one or more sufficient sureties to the effect that they are bound to the plaintiff in double the value of the property for the delivery of the property to the plaintiff, if such delivery be adjudged, and in default of such delivery for the payment of the value of the property, for the payment of all damages for injury to the property thereafter, for the payment of all damages for the taking and detention thereof, and for all costs.

 

99.08. Redelivery Bond--Effect of Filing

 

 

If a redelivery bond is filed before delivery of the property to the plaintiff the defendant may retain the property. If a redelivery bond is filed after the property has been taken from the defendant an order shall be issued directing the sheriff to take possession of the property and deliver it to the defendant.

 

99.09. Hearing on Right to Possession--When--Time For

 

 

As an alternative to filing a redelivery bond the defendant may file a written request for a hearing to determine the plaintiff's right to possession of the property pending trial on the merits. The hearing shall be held within ten days after the filing of the request.

 

99.10. Qualifications of Sureties

 

 

Each surety on such bonds must be either a corporation licensed to do a surety business in Missouri or an owner of property within the state which the court finds to be sufficient surety for the amount for which the bond is given.

 

99.11. Insufficient Bond--Procedure

 

 

If the court finds that a delivery or redelivery bond is not sufficient it may order a party to furnish a new bond. Upon failure to furnish a new bond within the time fixed by the court, the court shall order that the property be returned to the party from whose possession it had been taken.

 

99.12. Party and Sureties, If Any--Findings and Judgment

 

 

When the court or jury finds that a party not in possession of the property is entitled to possession of the property, the value of the property shall be determined and damages for the taking, detention or injury may be assessed. The judgment shall be against the party and the party's sureties for the return of the property or the value of the property, at the election of the party entitled to possession, and for damages assessed for the taking, detention or injury.

 

99.13. Election of Prevailing Party--When and How Made

 

 

The prevailing party shall not be required to make an election between the return of the property or the payment of the value thereof assessed by the court or jury until the property is in the possession of the sheriff and notice thereof is given by the sheriff to the prevailing party. Service of the notice may be made as provided in Rule 43.01. The prevailing party shall have ten days after the service of the notice to make an election to receive the value of the property assessed by the court or jury. The election must be in writing and shall be filed with the clerk of the court.

 

99.14. Court to Allow Charges for Taking and Delivering Property

 

 

The court shall tax as costs the reasonable expenses and charges incurred by the sheriff or other officer incident to the taking and delivery of the property.

 

99.15. Execution for Delivery--How Issued and Governed

 

 

An execution sufficiently describing the property may issue to the sheriff of the county in which the property is located directing him to deliver the property to the party entitled thereto.

 

Rule 100. Judicial Review of Administrative Decisions (Refs & Annos)

 

 

100.01. Review in Circuit Court

 

 

The provisions of sections 536.100 through 536.150, RSMo, shall govern procedure in circuit courts for judicial review of actions of administrative agencies unless the statute governing a particular agency contains different provisions for such review.

 

100.02. Review in Appellate Courts

 

 

(a) Designation of Parties. The party filing the petition for review or notice of appeal shall be known as the appellant and the adverse party as the respondent.

 

(b) Docket Fee. A docket fee in the amount specified in Rule 81.04(d) 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.

 

(c) Petition for Review and Notice of Appeal--Contents. The petition for review or notice of appeal shall specify the party seeking review, the decision sought to be reviewed, and a concise statement of the grounds on which jurisdiction is invoked.

 

(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.

 

(e) Record--Contents.

 

(1) The record shall consist of:

 

(A) a transcript of the testimony;

 

(B) exhibits and relevant papers;

 

(C) rulings, orders, decisions, findings of fact and conclusions of law issued by the agency.

 

(2) The record shall be assembled, indexed and the pages numbered as provided in Rules 81.12(a), 81.14(b) and 81.18.

 

(f) Record--Certification. The transcript shall be certified by the agency reporter as true and accurate. The record shall be prepared and certified by the agency as being true, accurate and complete.

 

(g) Record--Filing. The appellant shall file the record with the appellate court within ninety days after the filing of the petition for review or notice of appeal. The appellate court, either on application or on its own motion, may enlarge or shorten the time for filing the record.

 

(h) Record--Service. At the time of filing the record the appellant shall give all parties notice of the filing and an index of the items filed.

 

(i) Briefs and Motions. The form, contents, filing and service of briefs and motions shall be as provided in Rule 84.

 

Rule 101. Mechanics' and Materialmen's Lien

 

 

101.01 to 101.21. Repealed by order dated June 10, 1980, effective January 1, 1981

 

 

101.01 to 101.21. Repealed by order dated June 10, 1980, effective January 1, 1981

 

 

Rule 102. Estates of Decedents, Incompetents and Minors--Will Contest

 

 

102.01. Repealed by order dated January 19, 1973, effective September 1, 1973

 

 

Rule 103. Electronic Filing

 

 

103.01. Electronic Filing

 

 

<Text of rule effective September 1, 2011.>

 

Rule 103 and Court Operating Rule 27 govern all matters subject to electronic filing.

 

103.02. Registration

 

 

<Text of rule effective September 1, 2011.>

 

Registration for electronic filing shall be made as required by Court Operating Rule 27.

 

103.03. Files of the Court

 

 

<Text of rule effective September 1, 2011.>

 

(a) When a court accepts an electronic document for filing, the electronic document is the official court record.

 

(b) If a court digitizes, records, scans, or otherwise reproduces a document that is filed in paper into an electronic record, document, or image, the electronic record, document, or image is the official court record. The court may then destroy the paper document unless that document is required to be preserved by law or court order.

 

103.04. Format of Electronically Filed Documents

 

 

<Text of rule effective September 1, 2011.>

 

(a) An electronic document shall be filed in the PDF format as defined in Court Operating Rule 27 and shall be formatted in accordance with the applicable rules governing formatting of paper documents, including page and word limits. Color coding of electronic documents is not required.

 

(b) Electronic documents that are part of the official court record shall be self-contained and shall not contain hyperlinks.

 

(c) For the convenience of the court, in addition to any electronic document filed as the official court record, a party or amicus curiae may submit to the court a copy of an electronic document on a read-only disc (CD-R or DVD-R). A copy of any such disc also shall be provided to all other counsel and all self-represented parties.

 

The electronic document shall be submitted in text searchable PDF that must be identical in content and format as the electronic document filed as the official court record, except that the document may also include hyperlinks to the complete text of any authorities cited therein and to any document or other material contained in the record on appeal. In order for the hyperlinks to function properly, the record (or the cited portions of the record) and authorities must be included on the same disc as the electronic document.

 

An adhesive label shall be affixed to each disc legibly identifying:

 

(1) The caption of the case;

 

(2) The party or amicus curiae filing the disk;

 

(3) The disc number (e.g., “Disc 1 of 2”).

 

The filing party shall certify that the disc has been scanned for viruses and that it is virus-free.

 

(d) An electronic document requiring a signature shall be signed by an original signature, stamped signature or an electronic graphic representation of a signature, or in the following manner: /s/ John or Jane Person.

 

103.05. Electronic Filing With the Court

 

 

<Text of rule effective September 1, 2011.>

 

(a) Any filing shall be made with the clerk of the court through the electronic filing system. Attachments, including exhibits, that are part of any filing shall be filed electronically at the same time.

 

(b) An attachment or exhibit that exceeds the technical standards for the electronic filing system or is unable to be electronically filed must be filed with the court on approved media as defined in Court Operating Rule 27. When an attachment or exhibit is filed on approved media, a notice of exhibit attachment shall be filed through the electronic filing system.

 

103.06. Electronic Filing Deadlines

 

 

<Text of rule effective September 1, 2011.>

 

(a) Electronic filing is permitted at all times when the electronic filing system is available. If the electronic filing system is unavailable at the time the user attempts to file a document, the registered user shall make reasonable efforts to file the document as soon as the unavailability ends.

 

(b) If a registered user believes the unavailability of the electronic filing system prevented a timely filing to the party's prejudice, the registered user may submit a motion to the court within ten days of the user's first unsuccessful attempt to file the document. The motion shall state the date and time of the first unsuccessful attempt to file the document electronically and why the delay was prejudicial.

 

(c) If the court determines that the unavailability of the electronic filing system prevented the court from receiving the filing, the court shall deem the document filed on the day that the user initially attempted to file the document.

 

(d) The filing deadline for any document filed electronically is 11:59:59 p.m. central time.

 

(e) A document is submitted for filing when the electronic filing system receives the document and sends a confirmation receipt to the filer. The electronic filing system will issue a confirmation receipt that includes the date and time.

 

(f) If the clerk accepts a document for filing, the date and time of filing entered in the case management system shall be the date and time the electronic filing system received the document. The electronic filing system will affix the date and time of filing on the document.

 

103.07. Verified Documents and Affidavits

 

 

<Text of rule effective September 1, 2011.>

 

A document required by law to be verified, to be signed under penalty of perjury, or to be signed by a notary public may be filed as an electronic document if the affiant, declarant, or notary public has signed a paper document. Until the entire case is finally disposed, the registered user shall be the custodian of the paper document.

 

103.08. Service

 

 

<Text of rule effective September 1, 2011.>

 

Service shall be made to registered users through the electronic filing system and to all others as provided in Rule 43.01(c). Service by the electronic filing system is complete upon transmission except that, for the purposes of calculating the time for filing a response, a transmission made on a Saturday, Sunday, or legal holiday, or after 5:00 p.m., shall be considered complete on the next day that is not a Saturday, Sunday, or legal holiday.

 

103.09. Notice of Entry of Orders and Judgments

 

 

<Text of rule effective September 1, 2011.>

 

Any notice to the parties required by Rule 74.03 shall be made to the registered users through the electronic filing system and to all others as provided in Rule 43.01.

 

103.10. Issuance of Summons

 

 

<Text of rule effective September 1, 2011.>

 

If the electronic filing system is used to file a document that must be served with a summons, the clerk shall transmit the summons electronically to the registered user.

 

103.11. Filing of Copies in This Court and Court of Appeals

 

 

<Text of rule effective September 1, 2011.>

 

If a document is filed electronically in this Court or the court of appeals, no paper copies are required to be filed except as provided by local court rule.

 

103.12. Appendix to Brief on Appeal

 

 

<Text of rule effective September 1, 2011.>

 

An appendix to a brief on appeal, regardless of the number of pages it contains, shall be filed as a separate document.