Corozzo v. Wal-Mart Stores, Inc.
| Decision Date | 25 July 2017 |
| Docket Number | WD 80121 |
| Citation | 531 S.W.3d 566 |
| Parties | Joshua COROZZO and Arthor Ruff, Appellants, v. WAL-MART STORES, INC., Respondent. |
| Court | Missouri Court of Appeals |
Jonathan Sternberg and Ashlyn Buck Lewis, Kansas City, MO, and C. Jason Brown and Jayson A. Watkins, Gower, MO, Attorneys for Appellants.
Matthew D. Turner, J. Kent Lowry, and Alex C. Barrett, Jefferson City, MO, Attorneys for Respondent.
Before Division IV: Mark D. Pfeiffer, Chief Judge, and Victor C. Howard and James Edward Welsh, Judges
Mr. Joshua Corozzo ("Corozzo") and Mr. Arthor Ruff ("Ruff") brought a class action against Wal-Mart Stores, Inc. ("Wal-Mart") for violations of the Fair Credit Reporting Act ("FCRA"). The Circuit Court of Cole County, Missouri ("trial court"), granted Wal-Mart's motion to dismiss and entered judgment dismissing the matter with prejudice. Corozzo and Ruff appeal, raising two points of error. We affirm.
Corozzo applied for work with Wal-Mart in 2014, and Ruff applied for work with Wal-Mart in 2015. Both were given a form titled "Background Check Disclosure and Authorization Form Fair Credit Reporting Act Authorization" ("Disclosure Form"). The seven-page Disclosure Form2 was used by Wal-Mart to obtain consumer reports3 on individuals, including Corozzo and Ruff, for employment purposes.
On July 21, 2015, Corozzo and Ruff filed a class action "Complaint" against Wal-Mart, alleging willful violations of the FCRA. Specifically they alleged that Wal-Mart's Disclosure Form contained extraneous information, inaccurate and misleading statements, and did not provide the putative class members with "a clear and conspicuous disclosure in writing in a document that consisted solely of the disclosure that a consumer report may be obtained for employment purposes." As relief, they sought "statutory damages, punitive damages, costs and attorneys fees, and all other relief available pursuant to the FCRA."
The circuit court docket sheet shows "Judge Assigned" the same day the case was filed. The docket sheet also shows an "Order" entered by Judge Jon Beetem on September 1, 2015, which order included a statement that Division 1 recused on its own motion and transferred the case file to the Presiding Judge for re-assignment. On October 2, 2015, the docket sheet shows the Presiding Judge entered an "Order for Change of Judge" assigning the case to Division 2.
Wal-Mart filed its answer on October 19, 2015, alleging as one of its affirmative defenses that
A docket sheet entry on October 20, 2015 shows "Judge Assigned[,] Motion to Stay[,]" and indicates that Wal-Mart's motion to stay discovery and suggestions in support were sent to the assigned judge for review.
On November 10, 2015, Corozzo and Ruff filed a motion for change of judge. The trial court conducted a hearing on the motion on November 18, 2015. After hearing the parties' arguments, the trial court denied the motion for change of judge4 and permitted the parties to argue Wal-Mart's motion to stay discovery, which the trial court sustained in part.
Thereafter, Wal-Mart moved to dismiss Corozzo and Ruff's petition for lack of standing on the grounds that they asserted only a "bare procedural violation"; they did not assert any "concrete harm" or injury; and therefore they failed to satisfy the "injury-in-fact requirement of standing." After a hearing on the motion, the trial court entered its judgment dismissing the case with prejudice.
Corozzo and Ruff timely appealed.
In Corozzo and Ruff's first point, they contend the trial court erred in denying their motion for change of judge because their request was timely made. The denial of a motion for change of judge without cause is an issue of law that the appellate court reviews de novo. Gordon ex rel. G.J.E. v. Epperly, 504 S.W.3d 836, 844 (Mo. App. W.D. 2016).
Under Rule 51.05(a), a party has the absolute right to disqualify a judge once without cause or any showing of prejudice. State ex rel. Manion v. Elliott, 305 S.W.3d 462, 464 (Mo. banc 2010). Rule 51.05(a). "Although a party's right to disqualify a judge for cause is a substantive right, the right to pursue a change of judge without cause is a procedural right." Atteberry v. Hannibal Reg'l Hosp., 926 S.W.2d 58, 60 (Mo. App. E.D. 1996). "Because the nature of the application for change of judge without cause is procedural, the requesting party must strictly comply with the procedures set forth in Rule 51.05." Id.
One procedural limitation on obtaining a change of judge under Rule 51.05 is that the application must be timely filed. Manion, 305 S.W.3d at 464. To be timely, "[t]he application must be filed within 60 days from service of process or 30 days from the designation of the trial judge, whichever time is longer."5 Rule 51.05(b). The "designation of the trial judge" occurs when the judicial transfer order is "filed" in the circuit court, Cover v. Robinson, 224 S.W.3d 36, 39 (Mo. App. W.D. 2007), not when the parties are notified of a change in judge, State ex rel. Nixon v. Farmer, 268 S.W.3d 402, 404-05 (Mo. App. W.D. 2008).
Here, a judge was assigned when the case was filed in the circuit court on July 21, 2015. On September 1, 2015, the original judge assigned to this case, Judge Beetem, recused himself sua sponte: "Division 1 recuses on it's [sic] own motion." Pursuant to Rule 51.07, if a judge in a civil action is recused for any reason, "the judge promptly shall transfer the case to the presiding judge of the circuit for reassignment in accordance with the procedures of Rule 51.05(e)." Judge Beetem's recusal order also directed: "File transferred to Presiding Judge for re-assignment."
Rule 51.05(e)(1) requires the presiding judge, if not disqualified in the case, to "assign a judge of the circuit who is not disqualified." On October 2, 2015, Presiding Judge Patricia Joyce issued an order: "Caseassigned [sic] to Division 2." The order was entered on the docket on October 2, 2015, as "Order for Change of Judge," with the text below it stating "Case assigned to Division 2," followed by the Presiding Judge's initials "PSJ" and the initials of the Presiding Judge's secretary ("rlo") who docketed the order.
The judge of the division to which the case is assigned is considered the designated trial judge. See State ex rel. Hagler v. Seay, 907 S.W.2d 786, 787 (Mo. banc 1995) ( thirty-day period for filing request for change of judge began to run when newly elected judge became judge of division to which case had been assigned). See also State v. Ford, 351 S.W.3d 236, 237, 238 n.4, 239 (Mo. App. E.D. 2011) ().
Accordingly, when Presiding Judge Joyce's transfer order assigning the case to Division 2 was filed on October 2, 2015, this constituted a "designation of the trial judge" for the purposes of Rule 51.05(b). See Cover, 224 S.W.3d at 39.
Corozzo and Ruff argue on appeal that the October 20, 2015 docket entry stating "Judge Assigned" was a new designation6 of the trial judge triggering the thirty-day period under Rule 51.05. Corozzo and Ruff mischaracterize the October 20 docket entry.
The full October 20 docket entry was "Judge Assigned[,] Motion to Stay[,]" with the text below it stating followed by the initials ("msh") of the person who docketed the entry. The docket entry further indicated that the motion was filed by counsel on behalf of Wal-Mart. On the same date, an additional docket entry was made: "Counsel Status Hearing Scheduled," with the text below it stating "Scheduled For: 11-Jan-2016; 1:30 PM; DANIEL RICHARD GREEN; Setting: 0; Cole Circuit." There is no indication that the October 20, 2015 docket entry was an order or that it was generated by the Presiding Judge; by its terms, it simply memorialized the defendant's motion for stay being sent to the assigned judge for review. The October 20, 2015 docket entry did not serve to designate the trial judge but, instead as evidenced by the subsequent docket entry on the same date, merely referenced the previously assigned "Division 2" by name (i.e., Judge Daniel Richard Green).
The record clearly reflects that on October 2, 2015, Presiding Judge Joyce issued a written order assigning the case to Division 2, which order was entered in the docket on that date. This constituted the relevant "designation of the trial judge" for the purposes of Rule 51.05(b). Pursuant to Rule 51.05, Corozzo and Ruff's motion for change of judge was due within thirty days of that designation. Because they did not file their motion until November 10, 2015, it was untimely, and they were not entitled to relief.
Point I is denied.
In Corozzo and Ruff's second point, they assert that the trial court erred in dismissing their lawsuit based on lack of standing. "Our review of a dismissal ... for lack of standing is de novo." McGaw v. McGaw, 468 S.W.3d 435,...
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