State ex rel. Cohen v. Riley, No. 81192

CourtUnited States State Supreme Court of Missouri
Writing for the CourtRONNIE L. WHITE; BENTON; WOLFF; PRICE; MICHAEL A. WOLFF; WILLIAM RAY PRICE, Jr.
Citation994 S.W.2d 546
PartiesSTATE ex rel. Daniel J. COHEN, et al., Relators, v. The Honorable John J. RILEY, Presiding Judge of Division 3 of the Missouri Circuit Court for the Twenty-Second Judicial Circuit, Respondent.
Docket NumberNo. 81192
Decision Date01 June 1999

Page 546

994 S.W.2d 546
STATE ex rel. Daniel J. COHEN, et al., Relators,
v.
The Honorable John J. RILEY, Presiding Judge of Division 3
of the Missouri Circuit Court for the
Twenty-Second Judicial Circuit, Respondent.
No. 81192.
Supreme Court of Missouri,
En Banc.
June 1, 1999.

Page 547

Charles W. Armbruster, Wood River, IL, Leonard W. Buckley, Jr., Marc S. Kramer, St. Louis, for Relators.

Lindsay A. Dibler, William F. James, St. Louis, for Respondent.

RONNIE L. WHITE, Judge.

Relators are three attorneys who are defendants in an action, pending before Respondent, that seeks to enjoin them from contacting current clients of plaintiff law firm, the former employer of Relator, Mr. Cohen. Following the issuance of a preliminary injunction, Relators moved for a change of judge under Rule 51.05, an application which was denied as untimely. Upon Relators' petition, this Court entered its alternative order in mandamus requiring Respondent to sustain that motion. Because we find that the preliminary injunction hearing held here was not a trial on the merits, the trial court was bound to sustain the motion, and the writ is made peremptory.

This litigation arises out of the June 1998 departure of attorney Daniel Cohen from the law firm of C. Marshall Friedman, P.C. (Plaintiff), where he was employed as an associate. Upon leaving, Mr. Cohen joined the law partnership Bauer & Baebler, again as an associate. On July 2, 1998, Plaintiff filed an action against Mr. Cohen and the partners of Bauer & Baebler. The petition alleged that Defendants were tortiously interfering with Plaintiff's contractual relations by contacting clients who had worked with Mr. Cohen and soliciting those clients to terminate their representation by Plaintiff. The suit sought an injunction preventing Defendants from contacting Plaintiff's clients as well as compensatory and punitive damages. Defendants counterclaimed, alleging defamation and tortious interference and filed similar third-party claims against individual lawyers of Plaintiff firm. The same day suit was filed, Respondent granted Plaintiff's request for a temporary restraining order prohibiting further client contacts initiated by Defendants and set a hearing on the preliminary injunction for July 9, one week later.

At that hearing, testimony of the various attorneys involved in the dispute was presented, as well as the testimony of a former client of Plaintiff. The following day, July 10, Respondent issued a preliminary injunction prohibiting Defendants from contacting any of Plaintiff's clients. On July 17, Relators applied for a change of judge pursuant to Rule 51.05. Following a hearing, these applications were overruled on August 17, 1998.

Rule 51.05(a) requires that "[a] change of judge shall be ordered in any civil action upon the timely filing of a written application therefor by any party." Upon the filing of a proper, timely application under the rule, the court has no jurisdiction to do anything other than to grant the application and transfer the cause. 1 In order to be timely, "[t]he application must be filed within sixty days from service of process or thirty days from the designation of the trial judge, whichever time is longer. If the designation of the trial judge occurs less than thirty days before trial, the application must be filed prior to any appearance before the trial judge." 2

Page 548

As noted above, the application in this case was filed well within the time limit specified in the first sentence of Rule 51.05(b). Thus, the question is whether the second sentence applies, that is, whether the trial judge in this matter was designated less that thirty days before trial.

Respondent contends that the preliminary injunction hearing constituted a "trial," and that the application was therefore untimely, since the application was filed after Defendants appeared to argue in that proceeding. Generally, a preliminary injunction hearing is not, for the purposes of this rule, considered a "trial," meaning a trial on the merits. 3 The trial court may, however, consolidate the hearing with the trial on the merits:

At any time the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application for a preliminary injunction. Any evidence received upon an application for a preliminary injunction admissible at the trial on the merits becomes part of the trial record and need not be repeated at the trial. 4

Respondent contends that, because the trial court took evidence at the preliminary injunction hearing, and because the court advised the parties that such evidence would not be revisited at trial, 5 the trial on the merits was effectively commenced by the preliminary injunction hearing. Although the rule provides for the preliminary hearing to become part of the trial record, it does not, thereby, merge the two proceedings. To the contrary, the fact that the rule contemplates that evidence received at the hearing may (if it is admissible at the trial on the merits) be received into the trial record indicates that the two proceedings remain separate. If the preliminary injunction hearing were automatically converted into a part of the trial on the merits merely because evidence was presented, then such a rule would be redundant.

Nor did the trial court's admonishment that evidence presented at the hearing would not be again presented later serve as an order consolidating the two proceedings. An order accelerating the trial on the merits and consolidating it with the preliminary injunction hearing must be clear and unambiguous. 6 In this case, no such clear and unambiguous order of consolidation was entered. Indeed, the language of the trial court's preliminary injunction order strongly implies the opposite, providing that the preliminary injunction shall continue "until a hearing is held on the merits or until further order of the Court."

Respondent contends that allowing a change of judge following a preliminary injunction hearing promotes forum shopping because it permits parties to seek a new trial judge following an adverse ruling by the trial court. We share this concern but have also recognized an important countervailing interest in the liberal allowance of one change of judge as of right:

[N]o system of justice can function at its best or maintain broad public confidence if a litigant can be compelled to submit his case in a court where the litigant sincerely believes the judge is incompetent or prejudiced. For this reason, we have liberally construed disqualification

Page 549

provisions in favor of the right to disqualify. 7

Our rules provide the mechanism for balancing these competing interests. Rule 92.02(c)(3) provides that the trial court may "at any time" consolidate the preliminary injunction hearing with the trial on the merits, as long as such a ruling is made explicitly. If, prior to hearing evidence, the trial judge here had announced a consolidation of the preliminary injunction matter with the trial on the merits, a party would have been required by rule 51.05(b) to take a change of judge before proceeding before Judge Riley.

But here no order of consolidation was made. Thus, no trial, within the meaning of Rule 51.05, was commenced prior to Relators' applications for a change of judge. Accordingly, the applications were timely, and the alternative writ of mandamus is made peremptory.

Because the preliminary injunction was granted prior to the application for a change of judge, it remains in force, and Relators also seek mandamus or prohibition on different grounds requiring the court to set aside the preliminary injunction. Although relators do not claim that the court lacked jurisdiction or abused its discretion in issuing the injunction, they nevertheless argue that extraordinary relief is warranted because the trial court erroneously declared the law in its preliminary injunction order. While it is true that prohibition lies where "there is an important question of law decided erroneously," a writ is no substitute for appeal, and the error must, therefore, be one "that would otherwise escape review by this Court, and [where] the aggrieved party may suffer considerable hardship and expense as a consequence of the erroneous decision." 8 In this case, the issues decided at the preliminary injunction stage will clearly be revisited at the trial on the merits, and, if the court persists in its allegedly erroneous interpretation of the law, Relators will be able to remedy such an error by appeal. Because the correction of legal errors of this type is not a proper subject for extraordinary relief, the alternative writ previously issued did not address these matters, and the remainder of Relators' petition must be and is, hereby, denied.

BENTON, C.J., LIMBAUGH, COVINGTON and HOLSTEIN, JJ., concur.

WOLFF, J., concurs in separate opinion filed.

PRICE, J., dissents in separate opinion filed.

MICHAEL A. WOLFF, Judge, concurring.

As the dissenting opinion points out, there is little to be said for a "peek and run" system that would allow a litigant to use a trial judge's time and then disqualify the judge after the party gets an unfavorable ruling. However, I believe that a trial judge has sufficient discretion and flexibility under our rules to avoid and deter "peek and run" maneuvers. Our rules accommodate both the need of the judicial system for economy and expedition as well as the desirability of allowing a free change of judge where application is timely made.

The rules of civil procedure govern varying modes of practice in both urban and rural areas, and in a wide variety of civil cases. The pertinent language of Rule 92.02(c)(3) is taken directly from Rule 65 of the Federal Rules of Civil Procedure, which is adapted to the customs of courts throughout the country.

When the trial judge in this case announced, off the record, that the evidence adduced at the...

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14 practice notes
  • Estate of Hutchison v. Massood, WD 78826
    • United States
    • Court of Appeal of Missouri (US)
    • June 28, 2016
    ...it with the preliminary injunction hearing must be clear and unambiguous.” Cook, 432 S.W.3d at 290 (quoting State ex rel. Cohen v. Riley, 994 S.W.2d 546, 548 (Mo. banc 1999) ). And the order “consolidat[ing] the preliminary injunction hearing with the trial on the merits must be given in su......
  • State v. the Honorable W. Stephen Nixon, WD59548
    • United States
    • Court of Appeal of Missouri (US)
    • September 11, 2001
    ...to deny a motion for change of judge that is timely. See State ex rel. Walters, 22 S.W.3d at 743. State ex rel. Cohen v. Riley, 994 S.W.2d 546, 547 (Mo. banc 1999); State ex rel. Kramer v. Walker, 926 S.W.2d 72, 76 (Mo. App. 1996); State ex rel. Anderson v. Frawley, 923 S.W.2d 960, 961 (Mo.......
  • Cook v. McElwain, No. WD 76288.
    • United States
    • Court of Appeal of Missouri (US)
    • June 3, 2014
    ...a preliminary injunction hearing is not ... considered a ‘trial,’ meaning a trial on the merits.” State ex rel. Cohen v. Riley, 994 S.W.2d 546, 548 (Mo. banc 1999). Although [Rule 92.02(c)(3) ] provides for the preliminary hearing to become part of the trial record, it does not, thereby, me......
  • Beckwith v. Giles, WD58185
    • United States
    • Court of Appeal of Missouri (US)
    • December 5, 2000
    ...no jurisdiction to do anything other than to grant the application and transfer the cause to another judge. State ex rel. Cohen v. Riley, 994 S.W.2d 546, 547 (Mo. banc 1999); Rule 51.05(e). But in order to be timely, "[t]he application must be filed within sixty days from service of process......
  • Request a trial to view additional results
14 cases
  • Estate of Hutchison v. Massood, WD 78826
    • United States
    • Court of Appeal of Missouri (US)
    • June 28, 2016
    ...it with the preliminary injunction hearing must be clear and unambiguous.” Cook, 432 S.W.3d at 290 (quoting State ex rel. Cohen v. Riley, 994 S.W.2d 546, 548 (Mo. banc 1999) ). And the order “consolidat[ing] the preliminary injunction hearing with the trial on the merits must be given in su......
  • State v. the Honorable W. Stephen Nixon, WD59548
    • United States
    • Court of Appeal of Missouri (US)
    • September 11, 2001
    ...to deny a motion for change of judge that is timely. See State ex rel. Walters, 22 S.W.3d at 743. State ex rel. Cohen v. Riley, 994 S.W.2d 546, 547 (Mo. banc 1999); State ex rel. Kramer v. Walker, 926 S.W.2d 72, 76 (Mo. App. 1996); State ex rel. Anderson v. Frawley, 923 S.W.2d 960, 961 (Mo.......
  • Cook v. McElwain, No. WD 76288.
    • United States
    • Court of Appeal of Missouri (US)
    • June 3, 2014
    ...a preliminary injunction hearing is not ... considered a ‘trial,’ meaning a trial on the merits.” State ex rel. Cohen v. Riley, 994 S.W.2d 546, 548 (Mo. banc 1999). Although [Rule 92.02(c)(3) ] provides for the preliminary hearing to become part of the trial record, it does not, thereby, me......
  • Beckwith v. Giles, WD58185
    • United States
    • Court of Appeal of Missouri (US)
    • December 5, 2000
    ...no jurisdiction to do anything other than to grant the application and transfer the cause to another judge. State ex rel. Cohen v. Riley, 994 S.W.2d 546, 547 (Mo. banc 1999); Rule 51.05(e). But in order to be timely, "[t]he application must be filed within sixty days from service of process......
  • Request a trial to view additional results

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