Section 4.23 Petition or Complaint

• Library: Civil Trial Practice 2015 Supp

B. (§4.23) Petition or Complaint

The beginning pleading for a civil action is the petition. Missouri is a fact-pleading state. Luethans v. Washington Univ., 894 S.W.2d 169 (Mo. banc 1995). The character of an action is determined from the facts stated in the petition and not by the prayer or name given to the action or the counts in the action. Memco, Inc. v. Chronister, 27 S.W.3d 871 (Mo. App. S.D. 2000). The plaintiff is not required in the petition to label the theory on which the plaintiff seeks a recovery as long as the petition invokes principles of substantive law that entitle the plaintiff to relief and inform the defendant of what the plaintiff will attempt to establish at trial. Empiregas, Inc. of Rolla v. Whitson, 902 S.W.2d 347 (Mo. App. S.D. 1995).

Rule 55 governs pleadings and motions. Rule 55.04 states that “[e]ach averment of a pleading shall be simple, concise and direct.” Rule 55.05 states that a pleading setting forth a claim for relief shall contain a short, plain statement of the facts showing that the pleader is entitled to relief and a demand for judgment. An open question is whether proper venue must be pled in the petition. See State ex rel. Etter, Inc. v. Neill, 70 S.W.3d 28, 31–32 (Mo. App. E.D. 2002); Wood v. Wood, 716 S.W.2d...