Section 1.20 Orders Relating to New Trial Motions

• Library: App Ct Prac 2015 Supp

e. (§1.20) Orders Relating to New Trial Motions

The appellate process in Missouri essentially begins with the filing of a motion for new trial. Counsel should be aware that any decision regarding what issues should be raised in the new trial motion will have a significant impact on the way in which the appeal can be prosecuted. Counsel must be prepared to evaluate all potential issues for appeal within the 30-day time for filing the new trial motion because the failure to raise an issue in the new trial motion will generally bar the appellate court from considering it.

In jury tried cases in Missouri, any issue that is not included in a timely filed motion for new trial—except for subject matter jurisdiction, sufficiency of the petition to state a claim or defense, or a matter presented in a Rule 72.01 motion—is waived. Lockwood v. Jackson County, 951 S.W.2d 354, 356–57 (Mo. App. W.D. 1997); Rule 78.07. In addition, the allegation of error must be stated with sufficient specificity to allow the trial court to rule on the issue. The federal courts do not have a similar requirement. A motion for new trial does not need to be filed in federal court in order to preserve issues for appeal. Sherrill v. Royal Indus., Inc., 526 F.2d 507, 509 n.2 (8^th Cir. 1975).

In cases tried to the bench in Missouri, there is no requirement that a motion for new trial be filed. City of Mt. Vernon v. Garinger, 395 S.W.2d 214 (Mo. 1965). Nevertheless, the issues raised on appeal still must have been presented to the trial court because the appellate court will not consider issues raised for the first time on appeal. Singleton v. Wulff, 428 U.S. 106 (1976); Lincoln Credit Co. v. Peach, 636 S.W.2d 31 (Mo. banc 1982). If a new trial motion is filed after a bench trial, the appellant is not limited on appeal to the issues raised in the motion. Rowe v. Moss, 656 S.W.2d 318 (Mo. App. S.D. 1983).

Generally, a Missouri appellate court will be more liberal in upholding an order granting a new trial than an order denying one. McCormick v. St. Louis Univ., Inc., 14 S.W.3d 601, 606 (Mo. App. E.D. 1999). Even so, an order granting a new trial will be affirmed only if the appellate court is satisfied that there was error below that prejudiced the moving party. Randolph v. USF Cos., 626 S.W.2d 418 (Mo. App. S.D. 1981).

In Missouri, the standard of review applicable to a trial court’s order granting a motion for new trial depends largely on the grounds upon which the motion was based and in...