In an order dated December 9, 1997, the Supreme Court of Missouri made the following changes regarding Rules 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 124, 125, 126 and 128.
(1) Repealed all subdivisions, source notes and comments of Supreme Court Rule 110, entitled "General Provisions," consisting of subdivisions 110.01 to 110.05, inclusive, and in lieu of adopted a new Supreme Court Rule 110, consisting of new subdivisions 110.01 to 110.05, inclusive, and comments thereto.
(2) Repealed all subdivisions, source notes and comments of Supreme Court Rule 111 (Custody and Detention), consisting of subdivisions 111.01 to 111.10, inclusive, and in lieu of adopted a new Supreme Court Rule 111, consisting of new subdivisions 111.01 to 111.15, inclusive, and comments thereto.
(3) Repealed subdivision 112.01, entitled "Preliminary Inquiry" of Supreme Court Rule 112 (Preliminary Inquiry), and the source notes and comments thereto, and in lieu thereof adopted a new subdivision 112.01 and a comment.
(4) Repealed subdivision 113.02 (Notice to Parties), subdivision 113.03, entitled "Informal Adjustment Conference," and subdivision 113.04, entitled, "Termination of Informal Adjustment," and the source notes and comments, of Supreme Court Rule 113 (Informal Adjustment) and in its place adopted a new subdivision 113.02, entitled "Notice to Parties," and a new subdivision 113.03, entitled "Informal Adjustment Conference," and a new subdivision 113.04, entitled "Termination of Informal Adjustment," and related comments.
(5) Repealed subdivision 114.01 (Style and Content of Petition), and the related source note and comment of Supreme Court Rule 114, entitled "Petition," and adopted in its place a new subdivision 114.01 (Style and Content of Petition) and a comment.
(6) Repealed subdivision 115.01 (Summons and Service of Petition), subdivision 115.04 (Service and Filing of Other Pleadings, Motions and Notices), subdivision 115.05 (Service Upon Juvenile Under Twelve Years of Age), subdivision 115.06 (Waiver of Service by Custodian) and subdivision 115.07 (Witness Subpoena) and replaced them with newly adopted subdivisions: 115.01 (Summons and Service of Petition), 115.04 (Service and Filing of Other Pleadings, Motion and Notices), 115.05 (Service Upon Juvenile Under Twelve Years of Age), 115.06 (Waiver of Service by Custodian), and 115.07 (Witness Subpoena) and comments thereto.
(7) Repealed all subdivisions, source notes and comments of Supreme Court Rule 116, entitled, "Representation by Counsel," consisting of subdivisions 116.01 and 116.02 and in its place adopted a new Supreme Court Rule 116, consisting of a new subdivision 116.01 and a new subdivision 116.02 and related comments.
(8) Repealed subdivision 117.01 (Presence and Exclusion of Parties), subdivision 117.02 (Admission to Hearings), subdivision 117.03 (Record of Proceedings) and subdivision 117.05 (Standard of Proof) and the source notes and comments of Supreme Court Rule 117, entitled "Rules Applicable to All Hearings," and in lieu of adopted a new subdivision 117.01 (Presence and Exclusion of Parties), a new subdivision 117.02 (Admission to Hearings) and a new subdivision 117.03 (Record of Proceedings) and comments.
(9) Repealed all subdivisions, source notes and comments of Supreme Court Rule 118, entitled "Dismissal to Allow Prosecution Under General Law," consisting of subdivisions 118.01 to 118.04, inclusive, and adopted in its place a new Supreme Court Rule 118, consisting of new subdivisions 118.01 to 118.04, inclusive, and comments.
(10) Repeal of subdivision 119.01, entitled "Scheduling the Hearing," subdivision 119.02, entitled "Order of Proceedings", subdivision 119.03 (Presentation of Evidence), subdivision 119.06 (Judgment), subdivision 119.07 (Amendment of Judgment), subdivision 119.08 (Post Dispositional Review) and the source notes and comments thereto and the comment to subdivision 119.09 (Modification of Judgment and Termination of Jurisdiction) of Supreme Court Rule 119, entitled "Hearing on Petition," and replaced them with newly adopted subdivisions: 119.01 (Scheduling the Hearing), 119.02 (Order of Proceedings), 119.03 (Presentation of Evidence), 119.06 (Judgment), 119.07 (Amendment of Judgment), 119.08 (Post Dispositional Review) and comments thereto and a new comment to subdivision 119.09 (Modification of Judgment and Termination of Jurisdiction).
(11) Repealed subdivision 120.01, entitled "Appeals," and the source note and comment thereto, of Supreme Court Rule 120 (Appeals) and replaced it with a newly adopted subdivision 120.01, entitled "Appeals.)
(12) Repealed subdivision 121.01 (Termination, When,) of Supreme Court Rule 121, entitled, "Termination of Parental Rights," and in lieu of adopted a new subdivision 121.01 (Termination, When).
(13) Repealed subdivision 122.02 (Juvenile Records to be Confidential), subdivision 122.03 (Law Enforcement Records of Juveniles to be Kept Separate), subdivision 122.05 (Notification of Rights) and the source notes and comments thereto, of Supreme Court Rule 122, entitled "Rights of Juveniles," and replaced them with newly adopted subdivisions: 122.02 (Juvenile Records to be Confidential), 122.03 (Law Enforcement Records of Juveniles to be Kept Separate), 122.05 (Notification of Rights) and comments.
(14) Repealed subdivision 124.01, entitled "Search Warrants," and the source note and comment thereto, of Supreme Court Rule 124 (Search Warrants) and in lieu thereof adopted a new subdivision 124.01, entitled, "Search Warrants."
(15) Repealed subdivision 125.01 (Transfer of Proceedings or Supervision) and the related source note and comment, of Supreme Court Rule 125, entitled "Transfer of Supervision," and adopted in its place a new subdivision 125.01 (Transfer of Proceedings or Supervision) and comment.
(16) Repealed subdivision 16.01, entitled "Change of Judge," and subdivision 126.02, entitled "Powers and Duties of Special Judge," and the related source notes and comments, of Supreme Court Rule 126 (Disqualification of Judge) and in lieu thereof adopted a new subdivision 126.01, entitled "Change of Judicial Officer," subdivision 126.02, entitled "Powers and Duties of Special Judicial Officer," and comments thereto, of Supreme Court Rule 126 (Disqualification of Judicial Officer).
(17) Repealed Supreme Court Rule 128, entitled "Forms," and in lieu thereof adopted a new Supreme Court Rule 128, entitled "Forms."
The order is effective January 1, 1999.
The complete text of the order may be found in Wests Missouri Cases, 955 S.W.2d No.3 (January 6, 1998), pp. XXXI-CVI.
In an order dated December 19, 1997, the Supreme Court of Missouri repealed subdivisions (8), (9), and (10) of subdivision 82.03(a), entitled "Duties," of Supreme Court 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), and in lieu of adopted new subdivisions (8) and (9) of subdivision 82.03(a), entitled "Duties."
In the same order the Supreme Court of Missouri repealed subdivision 88.01 entitled "Presumed Child Support Amount," of Supreme Court Rule 88, (Dissolution, Legal Separation and Child Support), and replaced it by adopting a new subdivision 88.01, entitled "Presumed Child Support Amount."
The order is effective July 1, 1998.
The complete text of the order may be found in Wests Missouri Cases, 955 S.W.2d No.4 (January 13, 1998), pp. XLIX-L.
In an order dated December 2, 1997, the Supreme Court of Missouri repealed subdivision 10.20, entitled "Compensation of Clerks," of Supreme Court Rule 10, entitled "Non-Partisan Judicial Commissions."
The order was effective January 1, 1998.
The complete text of the order may be found in Wests Missouri Cases, 955 S.W.2d No.5, 956 S.W.2d No.1 (January 20, 1998), p. XXVI.
In an order dated January 28, 1998, the Supreme Court of Missouri repealed a portion of subdivision (c) of subdivision 7.03, entitled "Board of Governors," of Supreme Court Rule 7 (Establishing and Providing for the Government of The Missouri Bar) and in lieu thereof adopted a new portion of subdivision (c) of subdivision 7.03, entitled "Board of Governors."
In the same order, subdivision 12.21, entitled "Confidentiality of Proceedings," of Supreme Court Rule 12 (Commission on Retirement, Removal and Discipline) was repealed and a new subdivision 12.21, entitled "Confidentiality of Proceedings" was adopted.
The order was effective January 28, 1998.
The complete text of the order may be found in Wests Missouri Cases, 957 S.W.2d No. 3 (February 17, 1998), pp. Ct.R-1 Ct.R-3.
The Supreme Court of Missouri repealed Supreme Court Rule 127 (Family Court Commissioners) consisting of subdivisions 127.01 to 127.09, inclusive, and the comments thereto and in lieu thereof adopted a new Supreme Court Rule 129 (Family Court Commissioners) consisting of subdivisions 129.01 to 129.13, inclusive, and comments thereto.
These changes, ordered on January 28, 1998, will become effective January 1, 1999.
The complete text of the order may be found in Wests Missouri Cases, 957 S.W.2d No. 3 (February 17, 1998), pp. Ct.R-4 Ct.R.-8.
In an order dated February 24, 1998, the Supreme Court of Missouri made the following revisions and additions to MAI-CIVIL.
3.08 [1994 New] Burden of Proof Paternity Actions
Committee Comment (1998 Revision)
(Approved February 24, 1998; Effective July 1, 1998)
The bracketed sentence submits the appropriate burden of proof in accordance with section 210.822.2, RSMo, in a case where the defendant submits evidence and an instruction to rebut the statutory presumption. It should be used only if the defendant submis MAI 31.20 to rebut a statutory presumption. The burden of proof to support the presumption or to otherwise support the plaintiffs claim remains on the plaintiff. Section 210.822.2, RSMo, does not shift the burden of proof, rather it places a separate and different burden on the defendant if he or she submits a rebuttal to the presumption.
MAI 3.098, MAI 31.18, MAI 31.19, MAI 31.20, and MAI 36.28 were drafted for civil paternity actions under sections 210.817 et seq., RSMo. Effective July 1, 1997, section 210.839.4 was amended to provide that no party in such a paternity action has a right to trial by jury. The Committee has chosen not to withdraw these instructions and the related verdict form in the event that they are instructive or perhaps useful in the future since the Supreme Court has held that the Parentage Act (sections 210.817 et seq.) is not the exclusive means to determine paternity. Matter of Nocita, 914 S.W.2d 358 (Mo. banc 1996).
31.18 [1994 New] Verdict Directing Paternity Actions No Statutory Presumption
Committee Comment (1998 Revision)
(Approved February 24, 1998; Effective July 1, 1998)
This paternity verdict directing instruction is not to be used to submit the statutory presumptions in section 210.822, RSMo.
The burden of proof is on the party seeking to establish paternity. See MAI 3.08. Use verdict form MAI 36.28.
For paternity actions in which a statutory presumption applies, see MAI 31.19 for the verdict directing instruction. If clear and convincing evidence rebutting the statutory presumption is presented, see MAI 31.20.
This instruction and MAI 31.19 (submitting a statutory presumption) may be submitted in the alternative in an appropriate case.
MAI 3.08, MAI 31.18, MAI 31.19, MAI 31.20, and MAI 36.28 were drafted for civil paternity actions under section 210.817 et seq., RSMo. Effective July 1, 1997, section 210.839.4 was amended to provide that no party in such a paternity action has a right to trial by jury. The Committee has chosen not to withdraw these instructions and the related verdict form in the event that they are instructive or perhaps useful in the future since the Supreme Court has held that the Parentage Act (sections 210.817 et seq.) is not the exclusive means to determine paternity. Matter of Nocita, 914 S.W.2d 358 (Mo. banc 1996).
31.19 [1994 New] Verdict Directing Paternity Actions Statutory Presumption
Committee Comment (1998 Revision)
(Approved February 24, 1998; Effective July 1, 1998)
This paternity verdict directing instruction is to be used to sumit any of the statutory presumptions in section 210.822, RSMo. See burden of proof instruction MAI 3.08 and MAI 36.28.
If clear and convincing evidence rebutting the statutory presumption is presented, see MAI 31.20. For paternity actions not relying on a statutory presumption, see MAI 31.18.
This instruction and a verdict directing instruction based on MAI 31.18 may be submitted in the alternative in an appropriate case.
MAI 3.08, MAI 31.18, MAI 31.19, MAI 31.20, and MAI 36.28 were drafted for civil paternity actions under sections 210.817 et seq., RSMo. Effective July 1, 1997, section 210.839.4 was amended to provide that no party in such a paternity action has a right to trial by jury. The Committee has chosen not to withdraw these instructions and the related verdict form in the event that they are instructive or perhaps useful in the future since the Supreme Court has held that the Parentage Act (sections 210.817 et seq.) is not the exclusive means to determine paternity. Matter of Nocita, 914 S.W.2d 358 (Mo. banc 1996).
31.20 [1994 New] Verdict Directing Paternity Actions Rebuttal of Statutory Presumption
Committee Comment (1998 New)
(Approved February 24, 1998; Effective July 1, 1998)
MAI 3.08, MAI 31.18, MAI 31.19, MAI 31.20, and MAI 36.28 were drafted for civil paternity actons under sections 210.817 et seq., RSMo. Effective July 1, 1997, section 210.839.4 was amended to provide that no party in such a paternity action has the right to trial by jury. The Committee has chosen not to withdraw these instructions and the related verdict form in the event that they are instructive or perhaps useful in the future since the Supreme Court has held that the Parentage Act (sections 210.817 et seq.) is not the exclusive means to determine paternity. Matter of Nocita, 914 S.W.2d 358 (Mo. banc 1996).
36.28 [1994 New] Form of Verdict Paternity Actions
Committee Comment (1998 Revision)
(Approved February 24, 1998; Effective July 1, 1998)
See Committee Comment to MAI 31.18.
MAI 3.08, MAI 31.18, MAI 31.19, MAI 31.20, and MAI 36.28 were drafted for civil paternity actions under sections 210.817 et seq., RSMo. Effective July 1, 1997, section 210.839.4 was amended to provide that no party in such a paternity action has a right to trial by jury. The Committee has chosen not to withdraw these instructions and the related verdict form in the event that they are instructive or perhaps useful in the future since the Supreme Court has held that the Parentage Act (sections 210.817 et seq.) is not the exclusive means to determine paternity. Matter of Nocita, 914 S.W.2d 358 (Mo. banc 1996).
32.11 [1998 Revision] Affirmative Defenses Battery Actions Self-Defense
(Approved February 24, 1998; Effective July 1, 1998)
Your verdict must be for defendant if you believe:
First, defendant has reasonable cause to apprehend and did apprehend [great bodily harm from plaintiff] [bodily harm from plaintiff] [offensive contact from plaintiff]1 (if to some other person such as defendants wife, insert "to defendants wife"), and
Second, defendant did not create the situation that caused [his] [her] apprehension, and
Third, the (describe act of defendant, such as "striking of plaintiff"), was in defense
against this apprehended [great bodily harm] [ bodily harm]
[offensive contact]1 and
Fourth, defendant used only such force as was reasonable and necessary.
35.20 [1998 New] Illustrations Medical Malpractice Minor Injured Derivative Claim No Comparative Fault
(Approved February 24, 1998; Effective July 1, 1998)
Megan Smith, a minor, sustained permanent injury during an operative procedure for which anesthetic was administered by Horace Jones, MD. It is alleged that defendant failed to adequately monitor vital signs and administered excessive anesthetic during surgery. In addition to the minors claim for personal injury, John and Julie Smith, her parents, have joined the action with their derivative parental claim but have allowed their daughter to recover past and future medical expense in her claim.
Instruction No. 1
(Same as MAI 2.01 (1997 Revision))
Instruction No. 2
(See MAI 2.03 (1980 New))
As you remember, the court gave you a general instruction before the presentation of any evidence in this case. The court will not repeat that instruction at this time. However, that instruction and the additional instructions, to be given to you now, constitute the law of this case and each such instruction is equally binding upon you. You should consider each instruction in light of and in harmony with the other instructions, and you should apply the instructions as a whole to the evidence. The order in which the instructions are given is no indication of their relatve importance. All of the instructions are in writing and will be available to you in the jury room.
Instruction Number 3
See MAI 3.01 (1998 Revision))
In these instructions, you are told that your verdict depends on whether or not you believe certain propositions of fact submitted to you. The burden is upon the party who relies upon any such proposition to cause you to believe that such proposition is more likely to be true than not true. In determining whether or not you believe any proposition, you must consider only the evidence and the reasonable inference derived from the evidence. If the evidence in the case does not cause you to believe a particular proposition submitted, then you cannot return a verdict requiring belief of that proposition.
Instruction Number 4
(See MAI 2.02 (1980 Revision))
In returning your verdict you will form beliefs as to the facts. The court does not mean to assume as true any fact referred to in these instructions but leaves it to you to determine what the facts are.
Instruction Number 5
(See MAI 2.04 (1981 Revision))
The verdict form included in these instructions contains directions for completion and will allow you to return the permissible verdict in this case. Nine or more of you must agree in order to return any verdict. A verdict must be signed by each juror who agrees to it.
Instruction Number 6
(See MAI 11.06 (1990 Revision))
The term "negligent" or "negligence" as used in these instructions means the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by the members of the defendants profession.
Instruction Number 7
(See MAI 21.01 (1988 Revision), MAI 19.01 (1986 Revision))
Your verdict must be for plaintiff Megan Smith and against defendant Jones if you believe:
First, defendant Horace Jones, MD, either:
Administered excessive anesthetic to Megan Smith during induction of anesthesia, or failed to adequately monitor the vital signs of Megan Smith during induction of anesthesia, and
Second, Defendant, in any one or more of the respects submitted in paragraph
First, was thereby negligent, and
Third, such negligence directly caused or directly contributed to cause damage
to Megan Smith.
Instruction Number 8
(Converse Omitted)
Instruction Number 9
(See MAI 31.04 (1991 Revision))
If you find in favor of plaintiff Megan Smith on her claim for personal injuries, and if you believe that plaintiffs John and Julie Smith sustained damage as a direct result of injury to their child, then in your verdict you must find that plaintiffs John and Julie Smith did sustain such damage.
Instruction Number 10
(Converse Omitted)
Instruction Number 11
(See MAI 21.03 (1988 new), MAI 21.07 (1991 New), MAI 4.18 (1991 New))
If you find in favor of plaintiff Megan Smith, then you must award her such sum as you believe will fairly and justly compensate her for any damages you believe she sustained and is reasonably certain to sustain in the future as a direct result of the occurrence mentioned in the evidence.
If you further findthat plaintiffs John and Julie Smith did sustain damage as a direct result of injury to their child, Megan Smith, you must award plaintiffs John and Julie Smith such sum as you believe will fairly and justly compensate them for any damages due to injury to their child which you believe they sustained and are reasonably certain to sustain in the future as a direct result of the occurrence mentioned in the evidence.
Any damages you award must be itemized by the categories set forth in the verdict form on each claim.
Instruction Number 12
(See MAI 21.05 (1988 New)
In these instructions, you are told to itemize any damages you award by the categories set forth in the verdict form.
The phrase "past economic damages" means those damages incurred in the past for pecuniary harm such as medical expenses for necessary drugs, therapy, and for medical, surgical, nursing, X-ray, dental, custodial, and other health and rehabilitative services and for past lost earnings and for past lost earnings capacity.
The phrase "past non-economic damages" means those damages incurred in the past from non-pecuniary harm such as pain, suffering, mental anguish, inconvenience, physical impairment, disfigurement, and loss of capacity to enjoy life.
The phrase "future medical damages" means those damages arising in the future for medical expenses such as necessary drugs, therapy, and medical, surgical, nursing, X-ray, dental, custodial, and other health and rehabilitative services.
The phrase "future economic damages" means those damages arising in the future from pecuniary harm such as lost earnings and lost earning capacity.
The phrase "future non-economic damages" means those damages arising in the future from non-pecuniary harms such as pain, suffering, mental anguish, inconvenience, physical impairment, disfigurement, and loss of capacity to enjoy life.
Verdict
(See MAI 36.20 (1988 New), MAI 36.23 (1991 New))
Note: Complete this form by writing in the names required by your verdict.
On the claim of plaintiff Megan Smith for personal injuries against defendant Horace Jones, MD, we, the undersigned jurors find favor of:
(Plaintiff Megan Smith) or (Defendant Horace Jones, MD)
Note: Complete the following only if the above finding is in favor of plaintiff Megan Smith. Complete by writing in the amount of damages, if any, for each of the following itemized categories. If you do not find that plaintiff has damages in a particular category, write "none" in that category.
The total damages must equal the total of the itemized damage amounts you have assessed.
We, the undersigned jurors, assess the damages of plaintiff Megan Smith as follows:
For past economic damages including past medical damages $______________________
For past non-economic damages $______________________
For future medical damages $______________________
For future economic damages excluding future medical damages $______________________
For future non-economic damages $______________________
TOTAL DAMAGES $______________________
Note: Complete the following paragraph by writing in the word(s) required by your verdict.
On the claim of plaintiffs John and Julie Smith for damages due to injury to their child, we, the undersigned jurors, find that plaintiffs John and Julie Smith __________________ sustain damages as a direct result of injury to their child.
("did" or "did not")
Note: Comlete the following paragraph only if the above finding is that plaintiffs John and Julie Smith "did" sustain such damage.
We, the undersigned jurors, assess the damages of plaintiffs John and Julie Smith due to injury to their child as follows:
For past economic damages excluding past medical damages $_______________________
For future economic damages excluding future medical damages $_______________________
TOTAL DAMAGES $_______________________
Note: All jurors who agree to the above findings must sign below.
_____________________________________ ____________________________________
_____________________________________ ____________________________________
_____________________________________ ____________________________________
_____________________________________ ____________________________________
_____________________________________ ____________________________________
_____________________________________ ____________________________________
Committee Comment (1998 New)
(Approved February 24, 1998; Effective July 1, 1998)
This Illustration 35.20 demonstrates an appropriate submission in an action against a health care provider where there is an injury claim along with a derivative claim but no claim of comparative fault. (For an illustration of a case with a claim for comparative fault, see Illustration 35.18). This Illustration demonstrates an appropriate method for combining the elements of a submission peculiar to a claim against a health care provider under sections 538.205 et seq., RSMo, (See MAI Chapter 21 and verdict forms, MAI 36.20 and MAI 36.21), with the appropriate method for submission of a derivative claim such as a parental claim (See MAI 21.03, 21.07 and 4.18.)
The verdict form in this Illustration has been tailored to the particular hypothetical fact situation described in this Illustration. The Notes on Use to MAI 21.05 allow appropriate modification of the elements of recoverable damages in one or more definitions; but, solely for the sake of simplicity, the Committee chose not to do so in this Illustration.
The Supreme Court of Missouri, in an order dated January 29, 1998, repealed Supreme Court Rule 2, entitled "Code of Judicial Conduct," and all parts, canons, and commentary thereto, and in lieu thereof adopted a new Supreme Court Rule 2, entitled "Code of Judicial Conduct."
This order becomes effective January 1, 1999.
The complete text of the order may be found in Wests Missouri Cases, 958 S.W.2d No.1, (February 24, 1998), pp. Ct.R-1 Ct.R-21.