78.07(c)–A New Requirement for Appellate Preservation

Rule 78.07 was amended in June 2004, and the amendment became effective in January 2005.  Now, in all cases where there is an allegation of error relating to form or language, including the failure to make statutorily required findings, Rule 78.07(c) requires a motion to amend the judgment be filed within 30 days of judgment in order to preserve the issue for appeal.

 The consequences of this Rule change have only recently started to be explored by the Missouri Courts of Appeal.  This Rule has now been applied to preclude appeal in cases concerning: child support, termination of parental rights; award of child custody; injunctive relief in real estate disputes; contempt proceedings; and enforcement of a mechanic’s lien.  Based on these developments, it is now vitally important for trial counsel or a pro se litigant to properly file a Rule 78.07(c) motion in a bench-tried case.  In most cases, we would recommend conferring with appellate counsel.

Mike Belancio in our Appeals Department is at the forefront of two exciting appellate cases concerning issues of first impression concerning Rule 78.07(c).  First, we have argued and are awaiting a ruling on the consequence of whether actual preservation via a timely filed Rule 78.07(c) requires a reversal and remand.  Second, we have argued and are awaiting a ruling that Rule 78.07(c) also applies to criminal post-conviction relief proceedings, which are tried in Missouri’s civil courts.  We will be sure to keep you updated on the developments of this Rule as the Courts of Appeals issue their new rulings.

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