Motion Practice in Missouri Appellate Courts

Appellate Practice, 2000, Missouri Bar CLE

St. Louis, Missouri

March 17, 2000

Christine A. Gilsinan, Attorney at Law
cgilsinan@solaw.com
(314) 962-0760

Ms. Gilsinan received her B.A. in 1969 from Loyola University, Chicago (cum laude), and her J.D. from the University of Denver in 1975. She was a Denver Law Journal Associate Editor and a member of the Order of St. Ives Legal Honorary Fraternity. She has clerked for the Colorado Court of Appeals and the U.S. District Court, Eastern District of Missouri.

Ms. Gilsinan concentrates her practice in the areas of appellate and estate planning law. As appellate counsel and co-counsel she has researched, briefed and argued a wide range of cases, including medical products liability, automobile defective product design liability and deportation matters involving the I.N.S. She has taught Westlaw, Lexis, CD-ROM and Internet research at St. Louis area educational institutions and has trained judges and staff of the 8th U. S. Circuit Court of Appeals, U.S. District Court, Eastern District of Missouri and private law firms. She is licensed in Missouri and Colorado and is a member of the law firm of Russell, Tompkins, & Gilsinan, LLC., Webster Groves, Missouri.

Her articles on various legal issues have been published in the A.B.A. Appellate Practice Journal,the Journal of the Missouri Bar, the St. Louis Bar Journal, St. Louis University Law Journal, University of Denver Law Journal and Missouri Lawyers Weekly. She wrote Chapter Ten, "Drafting Business Purchase Agreements" for the Missouri Bar's Deskbook Series, Workbook for Missouri Estate Planners,

She is a member of Law Practice Management and Real Property, Probate and Trust Committees of the American Bar Association and is active in the TechPractice Committee of The Bar Association of Metropolitan St. Louis. Ms. Gilsinan is also a co-owner of Knowledge Management Seminars, a St. Louis company specializing in training legal professionals in online legal research and software.
  1. Introduction
    1. My approach to my assigned topic "Motion Practice in the Appellate Court" will be somewhat different than the other presenters in that it will focus on appellate resources available on the World Wide Web.
    2. Today, more and more legal resources are being posted to the Web at a fantastic pace, sometimes resulting in information overload.
    3. I hope that this Outline will expose you to some of those resources and perhaps peak your interest in exploring others.
    4. You can transform this outline to a link to resources (in the privacy of your own office) by following the directions below.
    5. This Presentation Outline (with links to the Web) is posted on he Web at http://www.solaw.com/motion.html.
    6. If you have Internet access (either at your desk, home, or local library), simply connect to the Internet, run the software program known as the Internet Browser (Microsoft Internet Explorer, Netscape Navigator, or the AOL browser) and type the URL (uniform resource locator) underlined above into the "location box." When you have linked to that location, follow the directions located there to "link" to this outline.
    7. The online version of this Presentation Outline will not have links to the Westlaw citations, because West on the Web requires a password, for which the company charges a fee.
    8. However, I hope that you will be pleasantly surprised at how much of the information I used to prepare this outline (and use to prepare appellate briefs and for oral arguments) is available to you at no charge.
  2. Some caveats:
    1. The Web means constant change. In a month or two, the links on this outline may have been discarded or have moved. If that is the case, become a web surfer, access the Missouri Judiciary's home page at http://www.osca.state.mo.us/ and follow the easy-to-use instructions.
    2. While full text versions of federal Supreme Court cases since the 1930's are on the Web (and printable, cut and paste-able), most state courts have posted their opinions only since the early 1990's.
    3. At the Missouri Court of Appeals location, cases are available since November, 1997 IN FULL TEXT.
    4. Many of the locations you "link" to (particularly Missouri cases) will post a notice that the Web version should not be cited or relied upon: ("This document is unofficial and should not be quoted or cited"). In the future, this could change, as more and more articles are appearing, urging the courts to adopt a uniform citation for web addresses. Currently, however, citations must be to the West unofficial reporter, as the Missouri Secretary of State no longer publishes an official version of Missouri's caselaw.
    5. The Web will not replace traditional resources like books and proprietary systems such as West's online services, however, it is a convenient supplement. Lawyers, like former President Reagan must "trust, but verify" (and update).
    6. I am indebted to the Honorable Laura D. Stith and Ms. Lisa Ann Ghan whose presentation materials have been used to prepare this Outline.
    7. I am also indebted to Judge Richard E. Standridge, Division 25, Circuit Court of Jackson County, Missouri who has made preparation of this outline much fun (and less work) by allowing me to "link" to his exhaustive collection of court rules at Court Rules Central at http://www.courtrules.org/index.htm.
  3. Procedural Motions During Pendency of Appeal
    1. Missouri Supreme Court Rule 84.01 in civil cases and Rule 30.10 in criminal cases govern routine motion practice in the Missouri appellate courts.
      1. A good source for Missouri (and Federal) rules on the World Wide Web ("the Web") portion of the Internet is located at "Court Rules Central" created and maintained by Judge Richard E. Standridge, Division 25, Circuit Court of Jackson County, Missouri. The Web address is: http://www.courtrules.org/index.htm
      2. Rule 84.01 is found on the Web at http://www.courtrules.org/r8401mot.htm
      3. Rule 30.10 is found on the Web at http://www.courtrules.org/rq3010mo.htm
      4. Remember also to check local rules of the relevant district; available on the Web at the Missouri Judiciary's Page at http://www.osca.state.mo.us/. The Eastern District's local rules are found at http://www.osca.state.mo.us/index.nsf/01cb0b59200bd0c386256735006f3aad/988212b336dcccb8862567630065e6d5?OpenDocument. The Western District's at http://www.osca.state.mo.us/index.nsf/3f01378ba1b73dbd862564a6004deb98/941a98520c20488f862564ce004c6820?OpenDocument. The Southern District's local rules are found at http://www.osca.state.mo.us/index.nsf/01cb0b59200bd0c386256735006f3aad/310ccc572257bfbb8625677500720cb1?OpenDocument. Note, for example, that the Southern District's Special Rule 1 requires action to get oral argument and states: "Failure of appellant to serve the notice within the time and manner required herein shall constitute a waiver on behalf of all parties to appear and orally argue the cause unless the court, for good cause shown, shall extend the time for serving the notice. . . If no such notice is served within the time herein required or as extended by order of the court, the court shall consider the cause as submitted upon the briefs of all parties."
    2. Motions for Extensions of Time
      1. For Record on Appeal
        1. Rule 81.20-appellate court may enlarge or shorten time for filing record on appeal.
          1. On the Web at http://www.courtrules.org/r8120rec.htm
          2. Extension denied: VonSande v.VonSande, 858 S.W.2d 233 (Mo. App. S.D. 1993).
        2. Southern District Special Rule 3 Requirements
          1. Motion must be verified
          2. State good cause for granting motion and
          3. If extension requested due to delay in preparation of transcript it must include:
            1. Copy of the written order for the transcript
            2. Affidavit of court reporter explaining the delay and expected completion date.
          4. See above for the location of the Southern District's home page, containing its local (special) rules.
      2. For filing Briefs
        1. Rule 84.05 (b): Court may shorten or lengthen time limits for filing.
        2. Rule 84.05 is on the Web at: http://www.courtrules.org/r8405bri.htm
        3. Special court policies also affect the Court's granting of extensions. For example, the Missouri Court of Appeals, Eastern District has established a policy in civil cases regarding requests for extensions greater than 15 days from the due date. The policy requires Appellant to file several statements, including one which waives the notice requirements of Rule 84.08 (Notices to Appellant before Involuntary Dismissal).
      3. Motions To Strike or Dismiss For Violation of Rules or Procedures.
        1. Failure to comply with Rules of appellate procedure
          1. Rule 84.08-failure to meet deadlines
            1. Rule 84.08 is on the Web at: http://www.courtrules.org/r8408inv.htm
              1. Pleadings are automatically reviewed by personnel for compliance with rule.
              2. Clerk monitors time deadlines and places on dismissal docket.
              3. See above; notices required by this rule may be waived by a request for extension of time in which to file appellant's brief.
          2. Deficiencies in legal file or brief
            1. Cain v. Richart , 781 S.W.2d 265 (Mo. App. 1989)
            2. See also: Faith Baptist Church of Berkeley, Inc. v. Oscar D. Heffner, 956 S.W.2d 425 (E.D. Mo. App.); available on the Web as Case Number 71654, 1/25/97, Mo. App. E.D. at http://www.osca.state.mo.us/courts/pubopinions.nsf/e46817e2b7273af98625649000763d50/4ebd4af4d29cf66b8625655900558008?OpenDocument
            3. The panel assigned to the case reviews all motions.
            4. Suggestions in Opposition may be filed within five days, pursuant to Rule 84.01.
      4. Other Motions
        1. Where there is no final, appealable order.
          1. Christopher A. MacMillan, Petitioner/Respondent, v. Darla A. MacMillan, Respondent/Appellant, Southern District, Case Number: 21538, Date: 01/08/98
          2. Available on the Web at http://www.osca.state.mo.us/courts/pubopinions.nsf/e46817e2b7273af98625649000763d50/1a893cc3323b4dcb8625658b00568b88?OpenDocument
        2. Where the appellate court lacks jurisdiction
          1. City of St. Peters v. Department of Natural Resources, 797 S.W.2d 514, 517 (Mo. App. 1990)
        3. Where the issue on appeal is Moot.
          1. State ex rel. Wilson v. Murray, 955 S.W.2d 811 (Mo. App. W.D. 1997)
          2. Also available on the Web at http://www.osca.state.mo.us/courts/pubopinions.nsf/ad16cfece33e8bee862564900075578b/67a5bce3f8dc8c808625655200765011?OpenDocument
        4. Where damages for a frivolous appeal are warranted.
          1. Rule 84.19 (on the Web at http://www.courtrules.org/r8419dam.htm)
          2. Drastic remedy, only exercised in extreme cases.
          3. Issues on appeal must be "fairly debatable to avoid damages for frivolous appeals.
          4. But see the Eastern District case of Yvette Gilleylen, v. Surety Foods, Inc.(Case Number 71548; 1/27/98) imposed sanctions.
            1. Web location is: http://www.osca.state.mo.us/pubopins.nsf/e46817e2b7273af98625649000763d50/d6acf799f229dba78625659500786b79?OpenDocument
    3. UNUSUAL POST-OPINION MOTIONS
      1. Motion to Vacate Opinion After Settlement.
      2. Motion to Modify.
      3. Motion to Recall Mandate.
        1. Frequently used in criminal cases, i.e. 18 out of 24 were criminal retrieved in a recent Westlaw search.
        2. Criminal : Shive v. State, 784 S.W.2d 326 (Mo.App. S.D., Jan 22, 1990)
        3. Civil: Enyeart v. Shelter Mut. Ins. Co., 784 S.W.2d 205 (Mo.App. W.D., Dec 12, 1989)
    4. MOTIONS FOR REHEARING
      1. Rule 84.17 (on the Web at http://www.courtrules.org/r8417mot.htm)
        1. Purpose:
          1. Call attention to material matters of law or fact which were overlooked or misinterpreted by the court
          2. Also used where there is a conflict of opinion
            1. Must cite the decisions with which opinion conflicts and show how and where the opinion is conflicting
          3. Can not simply reargue issues determined by the opinion.
            1. Paskon v. Salem Memorial Hospital, 806 S.W.2d 417 (Mo. App. 1991)
          4. Generally, if a point or argument is not assigned as error, cannot raise it for the first time in a motion for rehearing.
          5. Cannot raise constitutional issues for the first time in motion for rehearing.
        2. Rule 84.17 requirements
          1. Briefly and distinctly state the grounds upon which rehearing is sought.
          2. Motion must be filed within 15 days after the opinion is filed.
            1. This requirement is MANDATORY. If not filed within 15 days, motion will not be heard.
            2. Suggestions in support, if filed, must be served on adverse party/attorney within this 15 days.
          3. No Suggestions in Opposition unless requested by the Court. This is a requirement effective January 1, 1997-BUT MANY LAWYERS ARE UNAWARE OF THIS.
          4. No oral argument unless requested by the court (Rule 84.01)
            1. If motion for rehearing is granted, the opinion is a nullity and case proceeds as if appeal had never been heard.
            2. If motion for rehearing is overruled, the court will not hear any further motion for rehearing or a motion to set aside the order overruling the motion for rehearing.
        3. All judges read the opinions by the other judges; rehearing is seldom granted. The Court on its own motion may modify an order.
    5. MOTION (APPLICATION) FOR TRANSFER FROM COURT OF APPEALS TO SUPREME COURT
      1. Authority: Mo. Const. Art. V, section 10 and Rule 83.
        1. Constitution on the Web: http://www.moga.state.mo.us/const/A05010.HTM
        2. Rule 83 on the Web: http://www.courtrules.org/r83trans.htm
        3. Procedure:
          1. Rule 83.01 Transfer On Dissent Of Participating Judge; if the judge certifies that the opinion is contrary to any previous decision of any Missouri appellate court, transfer is mandatory.
          2. Rule 83.02 Transfer On Order Of Court Of Appeals
          3. Rule 83.03 Transfer By Supreme Court After Opinion By Court Of Appeals
            1. Application must be filed with the Supreme Court within 15 days of the date transfer denied by Court of Appeals.
          4. Rule 83.04 Application Form Contents
            1. Questions of general interest and importance
            2. Re-examine existing law
            3. Opinion contradicts previous decision of an appellate court.
          5. Rule 83.05 Suggestions Number Of Pages
          6. Rule 83.06 Transfer Upon Application Prior To Opinion
            1. Same grounds as set forth in (D) above OR for the purpose of equalizing the work load of appellate courts.
            2. Party must file motion with the Supreme Court within 10 days after the filing of the record on appeal in the Court of Appeals.
          7. Rule 83.07 Notice To Parties Counter-Suggestions
          8. Rule 83.08 Transcripts Briefs In Cases Transferred After Opinion
          9. Rule 83.09 Determination Of Cases Following Transfer
          10. Rule 83.10 Transfer To Supreme Court En Banc
      2. Keep In Mind the Goals of the Supreme Court in Granting Transfer.
        1. Distinguish Roles of Ct. of App and Supreme Court.
        2. Combine Policy, Sympathy, and Claims of Error.
      3. The Reasons for Transfer
        1. Transfer Due To Conflict With A Previous Appellate Decision of the State.
        2. Transfer Due to General Interest and Importance of Question Involved.
        3. Transfer for Reexamination of Existing Law.
        4. See, Missouri Lawyers Weekly article of October 14, 1996, (obtainable from Missouri Lawyers Weekly archives--subscription is free to print subscribers) for an analysis of "what works".
          1. If you subscribe to Missouri Lawyers Weekly, its database is searchable and downloading of articles is free.
      4. Motions for Leave to File Amicus Suggestions in Support of Transfer and Briefs on the Merits.
        1. Particularly helpful when making a policy argument in the Application for Transfer.
        2. Rule 84.05(f) refers to participation of amicus curiae. (On the Web at http://www.courtrules.org/r8405bri.htm)
        3. Used by the author with favorable results in:
          1. Rahman v. Matador Villa Associates, 821 S.W.2d 102 (Mo. banc. 1991)
          2. Connelly v. Iolab, 927 S.W.2d 848 (Mo. banc. 1996)
Web page by Christine A. Gilsinan (cgilsinan@solaw.com).
Copyright © 1998-2000 Christine A. Gilsinan
All Rights Reserved