2011 ISBA S&SF Conference Course Materials

2011 ISBA S&SF Conference Presentation

2011 Civil Appeals Course Materials

2011 Civil Appeals Presentation

2010 S&SF Conference Materials

2010 S&SF Conference Presentation

2010 S&SF Conference Presentation Notes

I hope these materials will be of assistance.  Feel free to contact me if you have any questions.

2010 S&SF Conference Program Materials

2010 S&SF Conference Presentation

The 2010 Solo & Small Firm Conference was this past Thursday, Friday, and Saturday.  As always, it was a very good conference.  Joe Yeckel and I presented the program “Appeals: Practical Tips and Pitfalls” on Thursday morning.  Chris Wendelbo of the BW Law Group, LLC, Chris Stiegemeyer of The Bar Plan Mutual Insurance Company, and I presented the program “Working for Others While Working for Yourself:  How to Build a Successful Practice with Contract Work” on Saturday morning.  Copies of the course materials and presentations are attached to another blog post.  I learned a lot, both in the programs I helped present and the other programs that I attended.  If you are a solo or small firm attorney in Missouri, you should seriously consider attending this conference next year.

The same changes have been made to the rules for computing time in the Federal Rules of Appellate Procedure, the Federal Rules of Bankruptcy Procedure, and the Federal Rules of Criminal Procedure.  The new rules also include changes to the actual time periods under the rules.

But including weekends and holidays effectively shortens many existing periods of less than 11 days in appellate, civil, and criminal proceedings, and 8 days in bankruptcy proceedings. In a major undertaking, the Committee looked at every time period in all the rules and made adjustments to take this into account. Most short periods were extended to offset the shift in the time-computation rules and to ensure that each period is reasonable. “Five-day periods became 7-day periods and 10-day periods became 14-day periods, in effect maintaining the status quo,” said Rosenthal.

Periods shorter than 30 days were also revised to be multiples of 7 days, to reduce the likelihood of ending on weekends.

(Time Changes Coming to Federal Rules, The Third Branch, June 2009).  Examples of the changed time periods include:

• Fed. R. App. P. 5(b)(2):  Time for filing an answer in opposition changes from 7 to 10 days.
• Fed. R. App. P. 5(d)(1):  Time for paying fee changes from 10 days to 14 days.
• Fed. R. App. P. 15(b)(2):  Time for filing an answer to application changes from 20 days to 21 days.
• Fed. R. Civ. P. 12(a)(1)(A):  Time for filing an answer changes from 20 days to 21 days.
• Fed. R. Civ. P. 12(a)(4):  Time for filing responsive pleadings after motion granted or denied changes from 10 days to 14 days.

The changes in the new Rules include additional provisions to make computing time periods easier.

Other changes to the federal time-computation rules affect how to tell when the last day of a period ends, how to compute hourly time periods, how to calculate a time period when the clerk’s office is inaccessible, and how to compute backward-counted periods that end on a weekend or holiday.

(Time Changes Coming to Federal Rules, The Third Branch, June 2009).

A summary of the changes can be found here.  Additional information, including copies of all of the amended rules and statutes are available here.  Slide shows discussing the changes can be found here (no longer available).

The new time periods will probably cause confusion for a while.  However, in the long run, the simpler method for computing time periods should be beneficial for everyone that practices in the Federal courts.

Under the current system:

        Each lawyer shall complete at least three credit hours of accredited programs and activities devoted exclusively to professionalism, legal or judicial ethics, or malpractice prevention. . . .  Such programs and activities shall be completed on or before June 30, 1993, and at least every three years thereafter.

Mo. Ct. R. 15.05(f) [now Mo. Ct. R. 15.05(f)(1)].  In short, we are required to complete three credit hours of CLE programs devoted to professionalism, ethics, or malpractice prevention every three years.

Under the proposed changes to Rule 15:

        Except as provided in Rule 15.05(c), each lawyer shall complete and report at least two credit hours of accredited programs and activities devoted exclusively to professionalism, legal or judicial ethics, or malpractice prevention each reporting year beginning on or after July 1, 2009. A lawyer reporting more than two credit hours of accredited programs and activities devoted exclusively to professionalism, legal or judicial ethics or malpractice prevention during one reporting year may receive credit in the next succeeding reporting year for the excess hours to apply to the requirement of subdivision (f) of Rule 15.05.

Mo. Ct. R. 15.05(f) (Changes proposed June 18, 2009).  In other words, we would now be required to complete two credit hours of CLE programs devoted to professionalism, ethics, or malpractice prevention every year.  However, if we complete more than two hours in a given year, the excess hours would carryover to the following year.

You can provide your comments to the Missouri Bar here (no longer available), and you can read the comments that others have made here (no longer available).

I personally like the flexibility that we currently have as a result of the three year reporting period.  Granted, I usually cannot remember where in the reporting period we are, which can lead to moments of panic.  On the other hand, an annual reporting requirement is simpler for both attorneys and the Missouri Bar.  Unfortunately, the change is not just to the reporting period.  The proposed changes double the hours required.  I would think that simply changing the reporting period so that attorneys are required to complete one hour every year as opposed to three hours every three years would help keep these issues fresh in our minds.  If more hours are needed, I would think an annual requirement of one and a half hours of CLE programs devoted to professionalism, ethics, or malpractice prevention every year would be sufficient.

I am not sure that any change in the professionalism, ethics, or malpractice prevention CLE program requirements is needed.  However, I do not have an objection to changing to an annual reporting period.  If the reporting requirements are to be increased, I would suggest only increasing to one and a half hours per year rather than doubling the current requirement.

NOTE:  The Supreme Court amended Rule 15.05(f) by Order dated November 16, 2009. [Updated November 4, 2011.]

Prior to 1994, proper venue was a prerequisite for personal jurisdiction. In the case of State ex rel. DePaul Health Center v. Mummert, 870 S.W.2d 820 (Mo.banc 1994), the Supreme Court of Missouri formally severed the two concepts.

However, even after Mummert, case law indicated that a trial court where venue was improper had no authority to take any action after a motion to transfer for improper venue was filed except to grant the motion. A plaintiff could sometimes take actions to correct venue defects, but the situations were limited and the power of the trial court to do anything except rule on the motion to transfer was virtually nonexistent.

That brings us to the 2005 amendments to Missouri’s general venue statute, R.S.Mo. Section 508.010, and the adoption of R.S.Mo. Section 508.012. Section 508.012 provides for transfer anytime prior to trial when a plaintiff or defendant is added or removed “from a petition” and that change alters the determination of venue under section 508.010. Suddenly, venue is much more fluid. If a petition is amended a month before trial and the new petition drops a defendant, venue may have changed and, if requested by a party, the case “shall” be transferred.

That brings us to January of this year, when the Supreme Court of Missouri explained, in no uncertain terms, that jurisdiction in the circuit courts is limited to personal and subject matter jurisdiction. J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo.banc 2009).

Finally, we come to our case, which was filed by my friend, Mark Parrish, who was “Of Counsel” with Nash & Franciskato at that time.

The case arose out of an auto-train collision in Louisiana. In the original petition, the only defendant was the Kansas City Southern Railway Company, a Missouri corporation. The plaintiffs were all residents of Louisiana. Under section 508.010.5(1), venue was only proper in St. Louis County because the injury occurred outside the state of Missouri and the defendant’s registered agent was located in St. Louis County. The case was filed in Jackson County, Case No. 0816-CV18142.

The railroad filed a motion to transfer. Being the industrious attorneys that we are, we filed a motion to add another defendant, a railroad employee residing in Jackson County. We argued that the 2005 changes to the venue statutes now allowed amendment to correct venue defects. Amazingly, the trial court agreed, granted the motion for leave to amend, and denied the motion to transfer.

The railroad obtained a preliminary writ from the Supreme Court of Missouri.

After briefing and oral argument, the Supreme Court held that R.S.Mo. Section 476.410 and Rule 51.045, which require transfer, do not require it immediately or prohibit the court from taking any other actions before ruling on the motion to transfer. The Court found that limiting the court’s ability to allow amendments would be inconsistent with the new section 508.012.

The Court explained:

There are two reasons to allow a judge to grant leave to amend to add a party before acting on the motion to transfer. The first is that neither section 476.410, RSMo 2000, nor Rule 51.045 requires the circuit court to stop everything and transfer the case. [*9] In fact, the rule provides that an opposing party may file a response to the motion within thirty days. Neither the statute nor the rule precludes the opposing party from filing a motion to amend the petition — a motion to amend may well be the most appropriate response to a motion to transfer.

The second reason for allowing an amendment before ruling on the motion to transfer is practical. If the court immediately had ordered the case transferred to St. Louis County, as the railway urged, the plaintiffs could have dismissed the action without prejudice under Rule 67.02 and filed a new petition in Jackson County naming the railway and McIntosh as defendants. And, of course, venue would be proper. Time and money would be wasted in this process, and the ultimate effect would be nil.

The resulting amendment to the pleading — i.e., the addition of McIntosh as a defendant — rendered venue in Jackson County proper. This means that there are two correct venues in this case — Jackson County and St. Louis County. The trial court did not err in overruling the railway’s motion to transfer.

Conclusion

In this case, the circuit court had both personal and subject matter jurisdiction. It did not exceed its jurisdiction or its authority by allowing plaintiffs to cure the defect in venue by adding McIntosh as a defendant.

State ex rel. Kansas City Southern Railway Co. v. Nixon, 282 S.W.3d 363, 367 (Mo.banc 2009) (footnotes omitted).

As can be seen from this excerpt, the court did not focus on the 2005 changes to the language of section 508.010. While the court discussed section 508.012, that was not its focus either. As a result, the opinion does not appear to be tied to venue determined under section 508.010, but should apply to any venue statute. Further, the reasoning would appear to allow amendments in addition to adding a party that could affect venue. Finally, if section 476.410 and Rule 51.045 do not require the court to “stop everything”, presumably the trial court can rule on other motions prior to ruling on the motion to transfer venue. As a result, this opinion has potentially far reaching implications when dealing with motions to transfer for improper venue.

2007 S&SF Conference Course Materials

I hope these materials are useful.  Please let me know if you have any questions.

2004 S&SF Conference Course Materials

2004 S&SF Conference Presentation Notes

I hope these materials will be helpful.