Changes in Missouri Procedural Requirements for Preservation of Error on Appeal Have Potential Pitfalls

ABSTRACT: Having amended its rules on the preservation of error on appeal in 2012, the Missouri Supreme Court was apparently concerned that practitioners "didn't get the memo". The newly amended MAI contains a "malpractice warning", highlighting these changes to the law.

    All Missouri attorneys guiding a matter through trial are concerned with procedurally preserving the client’s claims and/or defenses. Fairly recent changes to the Missouri Rules of Civil Procedure significantly alter the requirements for making a challenge to the factual sufficiency of pleadings on appeal. Attorneys challenging the sufficiency of a pleading at the appeal must now properly challenge this issue at the trial court level to preserve the issue for appeal.

Change to Rule 84.13(a)

    Prior to the July 1, 2012 change, Rule 84.13(a) allowed an exception to the general rule that allegations of error not presented at trial were waived for subject matter jurisdiction and sufficiency of pleading questions:

“Rule 84.13 (2000) Allegations of Error Considered Reversible Error

(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 (emphasis added) or a legal defense to a claim, … (ellipsis added) 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.”

The 2012 amendment removes this exception for sufficiency of pleading questions:

“Rule 84.13 (2012) 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, … (ellipsis added) 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.”

Change to Rule 55.27(g)(2)

    Changes to Rule 55.27(g)(2) also affect the issue of properly timing a challenge to the sufficiency of pleadings to preserve the issue for appeal. Prior to a January 1, 2012 amendment, the Rule 55.27(g)(2) specifically allowed parties to raise the issue of improperly stating a claim or defense on appeal:

“Rule 55.27(g) (2009) Waiver or Preservation of Certain Defenses.

(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 (emphasis added).”

The rule was changed, effective January 1, 2012, effectively removing the option of raising these issues for the first time upon appeal:

“Rule 55.27(g) (2012) Waiver or Preservation of Certain Defenses.

 (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.”

The language allowing parties to raise the issue on appeal has been cut from the new rule.

Change to Rule 78.07(a)

Changes to Missouri Rule 78.07(a), paralleling the changes to Rule 55.27(g)(2) and Rule 84.13(a), also eliminate the ability to raise the issue of challenging the sufficiency of pleadings on appeal. Prior to January 1, 2012, challenges to the sufficiency of pleadings were excluded from the issues required to be raised in a motion for new trial to be preserved for appellate review:

“Rule 78.07 (2005) 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.”

The January 1, 2012 amendment to Rule 78.07(a), in relevant part, eliminates the language excluding challenges to the sufficiency of pleadings to state a claim or defense from those issues that must be raised in a post-trial motion for new trial to be preserved for appeal:

“78.07 (2012) 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 presented in motions for judgment under Rule 72.01(b); and

(3) Questions relating to motions for directed verdict that are granted at trial.”

Effectively, challenges to the sufficiency of a pleading to state a claim or defense MUST now be addressed in an appropriate post-trial motion for new trial to be preserved for appellate review. The combination of the changes to Rule 84.13(a), Rule 55.27(g)(2) and Rule 78.07(a) conclusively eliminates the option of raising this issue for the first time upon appeal.

            The import of the changes to these rules has gone unnoticed by some, resulting in some unfortunate circumstances. On June 11, 2013 the Western District of Missouri ruled on the matter of Stander v. Szabados, WD 75697 (Mo.App. WD 2013). At appeal, Stander asserted for the first time, pursuant to the pre-amendment reading of Rule 55.27(g)(2), that Szabados failed to state a claim for fraud, having failed to plead essential elements of the claim. The Court, noting the January 1, 2012 amendment to Rule 55.27(g)(2), ruled that the deletion of the key language allowing raising the defense upon appeal “indicates that the defense may no longer be raised for the first time on appeal.”   Id. at 8. Because the defense was not properly raised pursuant to the amendments to the rule, the Court ruled that the defense was waived. Id.

    Counsel for Stander may have been misguided by language in the Missouri Approved Jury Instructions, Seventh Edition which was out of conformity with the amendments to the rules. The Supreme Court of Missouri, on August 16, 2013 issued its Order making appropriate changes to page LXI of the Missouri Approved Jury Instructions, Seventh Edition. Prior to the change, the paragraph, contradicting the herein-discussed changes in the Missouri Rules, stated:

 “Don't forget!! Your failure to plead the ultimate facts necessary to state a claim may be raised defensively for the first time on appeal. Rule 55.27(g)(2).”

 The Supreme Court ordered this line deleted and replaced with a malpractice warning:

“CAUTION: MALPRACTICE ALERT. Amendments to Rules 55.27(g)(2) and 78.07(a) (both effective January 1, 2012) and Rule 84.13(a) (effective July 1, 2012), when read together, require that allegations of error (including sufficiency or deficiency of pleadings) be presented to and expressly decided by the trial court in order to preserve those issues for appellate review. Such issues may no longer be raised for the first time on appeal and must be raised in a post-trial motion (and possibly earlier if so required by the rules). THIS IS A MAJOR CHANGE IN THE MISSOURI PROCEDURAL REQUIREMENTS FOR PRESERVATION OF ERROR ON APPEAL.”

The text of this Order may be found here.

In the final analysis all Missouri practitioners should be aware that a challenge to the sufficiency of an opponent’s claims or defenses may no longer be raised for the first time on appeal. These challenges need to be appropriately raised at the trial court level and in any post-trial motion for new trial.