Helton Const. Co., Inc. v. Thrift

Decision Date16 November 1993
Docket NumberNo. 18547,18547
Citation865 S.W.2d 419
PartiesHELTON CONSTRUCTION COMPANY, INC., Plaintiff-Respondent, v. Richard THRIFT and Andrea Michelle McQuay, Defendants-Appellants.
CourtMissouri Court of Appeals

Richard E. Duggan, Sunrise Beach, for defendants-appellants.

Connie J. Clark, Osage Beach, for plaintiff-respondent.

FLANIGAN, Presiding Judge.

Plaintiff Helton Construction Company, Inc., brought this action against defendants Richard Thrift and Andrea McQuay. Count I of the petition sought $3,262.50 for nonpayment of a debt arising from an agreement entered into on August 9, 1985, in which defendants hired plaintiff to perform excavating services on certain land. Plaintiff later abandoned Count I because the debt had been paid.

In Count II, plaintiff sought damages, based on an incident which occurred on August 11, 1985, in which defendant Richard Thrift, without knowledge or consent of plaintiff, operated plaintiff's D7G Caterpillar dozer and damaged it. Count II alleged that Thrift was acting "as agent for, on behalf of, and with the full knowledge and consent of [defendant McQuay]" in the operation of the dozer.

Defendants' answer to Count II contained, in addition to a general denial, the following: "As an [affirmative defense] defendants rely upon the doctrine of accord and satisfaction in that after the dispute arose plaintiff endorsed and cashed a check with a restrictive endorsement, which fully satisfied the disputed claim."

On November 1, 1991, the case proceeded to trial before Judge James A. Franklin, Jr., sitting without a jury. After both sides rested, Judge Franklin declared a mistrial and disqualified himself. On November 4, 1992, the case was tried before Judge Mary Dickerson, sitting without a jury. Plaintiff abandoned Count I. At the conclusion of the evidence, Judge Dickerson entered a judgment, on Count II, of $11,599.43 in favor of plaintiff and against both defendants. Defendants appeal.

Defendants contend: (1) Judge Franklin erred in declaring a mistrial on his own motion; (2) the judgment entered by Judge Dickerson on Count II is not supported by the evidence; (3) defendants were entitled to judgment on Count II, based on accord and satisfaction; (4) the judgment against defendant Andrea McQuay on Count II is invalid because there was no evidence that defendant Thrift acted as her agent in operating plaintiff's dozer.

Defendants' first point is that Judge Franklin erred in declaring a mistrial on his own motion "because in ordering a mistrial and a new trial 1 he was acting as adversary (sic) for the plaintiff and plaintiff was given an unfair advantage over the defendants."

At the trial before Judge Franklin, plaintiff introduced the testimony of three witnesses, including Donald Potts, and both sides introduced exhibits during plaintiff's case in chief. Both sides rested and made arguments.

Judge Franklin then made the following statements:

"I can't decide the case; I'm ready to say, based on this evidence, that [defendant Thrift] caused damage which could have resulted in these repairs in this amount, but whether, in fact, he did that, based on the testimony that I've heard, I can't say that; I don't have any choice in this case but mistrial this case unless there's further evidence presented; I'm going to mistrial this case before a decision, do it before judgment; I don't have enough evidence before me to say what the amount of [the damage Thrift caused to the dozer] was at this time."

Defense counsel stated: "If that's your decision, I object to it,--make exception."

Judge Franklin then made a docket entry reciting "Mistrial declared; [Judge Franklin] recuses himself."

On November 12, 1991, the case received a trial setting of May 1, 1992, and the attorneys were notified. Later the case was reset for November 4, 1992, when it was tried before Judge Mary Dickerson. At the outset of that trial, the following occurred:

[DEFENSE COUNSEL]: [W]hen this case was originally tried by the court, and I believe it was on November 1 of 1991, the evidence was presented by the plaintiff. And the defense did not present any evidence. So at the close of the case, the court on its own motion declared a mistrial. And it's the defendants' position that the defendants was--the court was acting as an adversary (sic) for the court, for the plaintiff in that case, and declared a mistrial for the sole purpose of allowing the plaintiff to produce more evidence. We feel the court made an error. And that the decision in this case should be based upon the evidence which was presented at that time. And it is an error to continue with this case and allow the plaintiff to present more evidence. For that reason, the defense specifically wants to object to any further proceedings in this case, other than the rulings on the evidence as presented.

THE COURT: All right. That objection is overruled.

Plaintiffs produced the testimony of Lane Helton and Donald Potts. The sole defense witness was defendant Richard Thrift. At the conclusion of the evidence, Judge Dickerson awarded plaintiff judgment of $11,599.43 on Count II against both defendants.

In support of their first point, defendants argue that Judge Franklin abused his discretion in declaring a mistrial, that Judge Franklin "appeared to be an advocate of the plaintiff in that it was obvious that [he] wanted to find for the plaintiff but the plaintiff had not satisfied its burden of proving damages." Defendants further argue that Judge Franklin suggested to plaintiff what had to be proved and then gave plaintiff an opportunity to do so, "even if it meant that plaintiff's evidence would be drastically changed to conform with the trial court's comments and suggestions." Defendants also argue that they had won their case in the first trial because plaintiff had failed in its burden of proof and that plaintiff should not have been given another opportunity "to present an entirely different case."

Neither side cites any Missouri civil case 2 where a losing party, on appeal after a second trial, challenged the propriety of a declaration of mistrial in the first trial. The research of this court has uncovered no such case. There are, however, principles which govern the disposition of defendant's first point.

If no reason for disqualification exists, the trial judge is under a duty to hear the matter "however much he would personally like to remove himself from the case." Manis v. State, 659 S.W.2d 337, 339 (Mo.App.1983); State v. Singh, 586 S.W.2d 410, 420 (Mo.App.1979). A judge has an affirmative duty not to disqualify himself unnecessarily. Cain v. Hershewe, 760 S.W.2d 146, 148 (Mo.App.1988). After the trial begins, the trial judge should not disqualify himself in the absence of actual prejudice. State v. Vermillion, 486 S.W.2d 437, 441 (Mo.1972). A disqualified judge has no further power to act in a case except to transfer it to another judge. State v. Van Horn, 625 S.W.2d 874, 878 (Mo.1981). Self-disqualification requires no notice, and disqualification is effective upon the making of the docket entry. Byrd v. Brown, 613 S.W.2d 695, 699 (Mo.App.1981).

Section 512.020 3 enumerates the orders, including "any final judgment in the case," from which an aggrieved party may appeal. An order of self-disqualification is not an appealable order, and the same is true of an order declaring a mistrial.

In State ex rel. Stewart v. McGuire, 838 S.W.2d 516, 518[1, 2] (Mo.App.1992), this court said:

Mandamus will issue from this Court to a circuit court where the latter refuses to act in respect to a matter within its jurisdiction when it is its duty to act, that is, when its refusal is, in effect, a failure to perform a duty within its jurisdiction. State ex rel. Tate v. Sevier, 334 Mo. 771, 68 S.W.2d 50, 54-55 (banc 1934). Said another way, where a circuit court, having obtained jurisdiction, refuses to proceed in the exercise thereof to a determination on the merits, and there is no adequate remedy by appeal, it may be compelled to do so by mandamus. State ex rel. Townsend v. Holtcamp, 330 Mo. 1101, 55 S.W.2d 428, 429 (banc 1932).

In State ex rel. Metro. Transp. v. Meyers, 800 S.W.2d 474, 476 (Mo.App.1990), the court said:

Ordinarily, mandamus is inappropriate as a means of controlling or directing how the trial court's discretion shall be exercised. State ex rel. Peavey Co. v. Corcoran, 714 S.W.2d 943, 945 (Mo.App.1986). Mandamus will lie, however, where the trial court's discretion has been exercised arbitrarily or capriciously or in bad faith. Id. A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances then before the court and so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. State ex rel. Webster v. Lehndorff Geneva, Inc., 744 S.W.2d 801, 804 (Mo. banc 1988). Reversal by an appellate court requires a finding that the trial court abused its discretion. Id.

By their first point, defendants complain of Judge Franklin's declaration of a mistrial but make no mention of his subsequent self-disqualification. If it is assumed, arguendo, that Judge Franklin had an absolute duty to decide the case on the basis of the evidence presented, and to refrain from disqualifying himself, defendants made no effort to enforce such duties by seeking mandamus in an appellate court. Instead, at the commencement of the second trial a year later, defendants requested Judge Dickerson to decide the case based upon the evidence which was presented to Judge Franklin. That request was improper. "Absent stipulation of the parties, a successor judge is without power to render a judgment on testimony and evidence heard by his predecessor." Lansing v. Lansing, 736 S.W.2d 554, 558 (Mo.App.1987). To similar effect see Reinhold v. Fee Fee Trunk Sewer, Inc., 664 S.W.2d 599 602 (Mo.App.1984). There was no such stipulation here.

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