The Civil Case


 

Jurisdiction

Commencement of Action  

Discovery  

Format of Trial  

Types of Lawsuits  

Appeals  

Domestic Relations Cases  

Adult Abuse and Child Protection  


Jurisdiction.  

A. Missouri circuit courts or federal district courts located in the state have jurisdiction over the vast majority of civil actions.

B. The types of cases heard and jurisdiction of the appellate and trial courts of Missouri and the federal courts may be found in this handbook in the section on the Court System in Missouri.

Commencement of Action.  

A. The client tells his lawyer the factual details of the situation. The lawyer must then investigate the factual basis for the claim and research the applicable law. The client filing the lawsuit is called the plaintiff.

B. The lawsuit is formally commenced by the filing of a written petition (or complaint) with the clerk of the court. The petition was usually filed in the county where the defendant resides - prior to August 2005, such venue would be proper. Following August 2005, tort reform took effect, changing the general venue rule to require a plaintiff in most cases to file suit in the county where he was first injured. See section 508.010, RSMo 2000 (as amended), for further information on where suits may be brought.

1. The petition contains statements of facts (allegations) that give rise to a cause of action and a prayer (a request for a judgment awarding the plaintiff that to which he claims he is entitled). For example, it may be for money damages for some injury, or to enforce or change a contract, or to collect an unpaid bill.

2. The petition, along with a summons, is served personally on the defendant or on each defendant, if there is more than one, by the sheriff or other officer. This is called "service of process." If personal service cannot be had, service by mail or publication may be made in certain instances.

3. The defendant(s) must file a written response to the petition with the court (generally within 30 days of service) admitting or denying the factual allegations made in the plaintiff's petition.

4. An the answer, the defendant also states any affirmative defense she will assert.

5. The defendant also may file a counterclaim, a cross-claim, or a third-party petition.

a. A counterclaim is a claim asserted against the plaintiff, seeking some sort of relief, the same as an original petition might.

b. A cross-claim is a claim filed by one defendant against another defendant, presenting claims related to the plaintiff's petition and seeking some sort of affirmative relief from the co-defendant.

c. A third-party petition is a "lawsuit within a lawsuit" because by it a defendant seeks to bring in another party (one not named in the plaintiff's petition) to seek some sort of affirmative relief (usually indemnification) on the issues raised in the plaintiff's petition.

d. A counterclaim and a cross-claim are served by mail on the other party's attorney. A third-party petition (with summons) must be served personally on the opposing party by the sheriff or other officer.

6. In the case of a counterclaim, the party against whom it is filed must file a "reply" that denies or admits the allegations. A cross-claim or third-party petition must be answered the same as the plaintiff's original petition.

7. These pleadings frame the issues in a lawsuit. Factual issues that are disputed are the ones to be tried.

Discovery.  

A. Discovery is the name given to several formal procedures designed to enable each party to fully learn the facts of the opposing party's case. The purposes are:

1. To prevent "surprise" at trial, where one party may produce evidence not anticipated by the other.

2. To make all parties aware of the evidence so that they may either settle their dispute or try the case on the merits and only on the contested issues.

3. To obtain evidence to be used at trial.

B. Supreme Court rules set out numerous discovery procedures:

1. Depositions: Sworn testimony of a witness other than in the courtroom (such as in an attorney's office) and transcribed by a reporter. Deposition testimony may be used at trial in the place of trial testimony when the witness is unavailable to testify at trial.

2. Interrogatories: Written questions that a party is required to answer in writing, under oath, about the facts of the case.

3. Request for production of documents: A request to allow a party to review and copy records, objects, documents, or photographs.

4. Request for admission of facts: A written request of another party to admit certain facts. It is designed to avoid the necessity of proving those facts at trial, so as to save time and money.

5. Physical and mental examinations: These may be ordered if the party's physical or mental health is an issue in the case.

6. Request for entry on land: A motion to inspect, survey, photograph, or test land, buildings, etc.

7. Discovery must be relevant to the issues in the lawsuit and reasonably calculated to lead to admissible evidence. If a party believes that the attempted discovery does not fall within these guidelines, he may file objections to the request. If a motion to enforce discovery is filed, the judge then decides what is to be permitted.

Format of Trial.  

A civil trial follows the same basic format as in criminal cases. For example, counsel make opening statements after jury has been selected and sworn. Then the evidence is presented by plaintiff, followed by defendant. Then the court instructs the jury from Missouri Approved Instructions (MAI) and, finally, counsel make arguments to the jury.

A. Major differences between civil and criminal trials in state court include the following:

1. Three-fourths of the members of the jury may decide the verdict for either party in a civil case. In a criminal case the verdict must be unanimous.

2. Only three peremptory challenges are allowed to each side in the jury selection in a civil case; the number varies in a criminal case.

3. The measure of proof required for a verdict in a civil case is a “preponderance of evidence.” The measure of proof in a criminal case, “beyond a reasonable doubt,” is greater.

4. The rules of evidence are less protective of a defendant in a civil setting than in a criminal setting.

Types of Lawsuits.

There are two basic types of lawsuits in the circuit courts:

A. Actions at law.

1. A suit seeking money damages.

2. Generally, there is a right to a trial by a jury. The parties may stipulate to waive a jury and try the case before the judge.

3. Examples of an action at law:

a. Automobile damage suits.

b. Personal injury actions.

c. Malpractice suits against doctors, lawyers or other professionals.

d. Product liability cases.

e. Breach of contract cases.

f. Employment cases.

B. Equity actions.

1. Cases that seek an order of the court determining the rights of the parties or ordering a party to perform or not perform certain actions.

2. Money damages are not necessarily involved.

3. There is no trial by jury; all factual and legal issues are decided by the court.

4. These include the "extraordinary remedies," such as injunctions, quo warranto, etc.

Appeals.

A. Appeals in civil cases are similar to those in criminal cases.

 

 

DOMESTIC RELATIONS CASES

 


Dissolution, formerly known as divorce  

Legal separation  

Separate maintenance  

Annulment  

Proceedings after judgment  

Cases involving domestic relations – dissolution of marriage, child custody and the like – make up a significant portion of the cases heard by circuit and associate judges in Missouri.

Types of Cases.

A. Dissolution, formerly known as divorce.

1. The husband and wife's marriage is terminated, their property divided and custody of unemancipated children under age 18 decided.

a. It is not necessary to find either party at "fault." The court requires only a finding that "there remains no reasonable likelihood that the marriage can be preserved and therefore the marriage is irretrievably broken."

b. The conduct of the parties during the marriage is a factor to be considered by the court in awarding marital property and maintenance.

2. Most dissolution cases are settled without trial. The parties may enter into an agreement dividing their property and advising the court of their wishes as to child custody and support and submit the agreement to the court for approval.

3. If the parties are unable to agree, the case is heard by the judge. There is no jury trial in domestic matters.

B. Legal separation.  

1. All elements and proof are the same as a dissolution case, except one party formally requests a legal separation. If the other party wants the marriage dissolved, he or she may apply to the court after 90 days to have the decree of legal separation converted to a decree of dissolution.

2. If the court grants a legal separation, the result is the same as in a dissolution - the parties are separated, property divided, maintenance (alimony) may be awarded, child custody ordered - except that the parties remain married.

C. Separate maintenance.

1. The wife may maintain such an action where the husband has abandoned her and has failed to support her. (There is no statute permitting husbands to file separate maintenance actions.)

2. The fundamental issue in a suit for separate maintenance is the right of the wife to support. The marital status of the parties is only incidentally involved.

3. Two things must be proved before the court can grant separate maintenance:

a. Desertion.

b. Failure to support.

D. Annulment.

1. An action for annulment is based on matters that existed before the marriage that prevented a valid marriage contract from being formed.

2. Examples:

a. Insanity, feeble-mindedness or senility that prevented one party from having the requisite mental state to enter into a marriage contract.

b. Fraud, such as a woman inducing a man to marry her because he is allegedly the father of her unborn child, when in fact he is not.

3. Annulments are rare in Missouri. If an annulment is granted it is as if the parties were never married. All children born of the marriage are considered legitimate for all legal purposes even if that marriage is formally annulled by a court decree.

E. Proceedings After Judgment.

1. Child custody. The court retains jurisdiction over the children and upon a showing of good cause may change custody of the children from one parent to another or to a third party.

2. The court also retains jurisdiction over the amount of child support to be paid and upon a finding of changed circumstances may change the amounts.

3. Visitation. The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child.

4. Maintenance. The provisions of any decree respecting maintenance or support may be modified only upon a showing of changed circumstances so substantial and continuing as to make the existing terms unreasonable.

5. Grandparent visitation. The grandparents have a right to intervene or file a motion to modify to seek visitation rights when such rights have been denied to them.

Adult Abuse and Child Protection Proceedings.

A. Under the provisions of Chapter 455, RSMo, adults or children who have been subjected to abuse by a present or former adult household member may seek relief by a protective order.

1. A temporary protective order to prevent abuse may be issued without a hearing if there is an immediate and present danger of abuse. Therefore, a temporary protective order may issue before the defendant has an opportunity to contest the petitioner’s allegations.

2. A hearing is held and if the allegation of abuse is proved, a full order of protection may be issued for up to one year. After notice and hearing, a second order may issue for up to an additional year.

B. Types of temporary relief obtainable include:

1. An order restraining the respondent (defendant) from abusing, threatening to abuse, molesting, or disturbing the peace of the petitioner.

2. Restraining the respondent from entering the petitioner's residence (even though it may be jointly owned, rented or occupied by the respondent).

3. A temporary order for custody of minor children where appropriate.

4. Restraining respondent from having any contact with the victim.

C. Types of permanent relief available include:

1. An order restraining the respondent (defendant) from abusing, threatening to abuse, molesting or disturbing the peace of the petitioner.

2. Restraining the respondent from entering the petitioner's residence (even though it may be jointly owned, rented or occupied by the respondent).

3. An order for custody and support of children and the abused spouse.

4. Restraining the respondent from having any contact with the victim.

5. Counseling for the parties.

6. Maintenance of the petitioner.

7. Possession and control of property.

D. Orders may be modified at any time upon showing a change in the circumstances sufficient to warrant the modification, and automatically terminates when a decree of dissolution or legal separation is entered.