State ex rel. Nixon v. Farmer, No. WD 68322.

• Court: Missouri Court of Appeals
• Writing for the Court: Lisa White Hardwick
• Citation: 268 S.W.3d 402
• Parties: STATE of Missouri, ex rel., Jeremiah W. NIXON, Attorney General, State of Missouri, Respondent, v. Bernie FARMER, Appellant.
• Docket Number: No. WD 68322.
• Decision Date: 05 August 2008

268 S.W.3d 402 STATE of Missouri, ex rel., Jeremiah W. NIXON, Attorney General, State of Missouri, Respondent,
v.
Bernie FARMER, Appellant. No. WD 68322. Missouri Court of Appeals, Western District. August 5, 2008.

[268 S.W.3d 403]

Bernie Farmer, Appellant pro se, for appellant.

Paul Harper, esq., Jefferson City, MO, for respondent.

Before HOWARD, C.J., HARDWICK and WELSH, JJ.

LISA WHITE HARDWICK, Judge.

Bernie Farmer appeals from a summary judgment in favor of the State of Missouri on its Petition for Incarceration Reimbursement. For reasons explained herein, we reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

Farmer has been incarcerated in the Missouri Department of Corrections since 1988, serving sentences for forcible rape, first degree robbery, and armed criminal action. On October 5, 2006, the State filed a petition against Farmer seeking to recover costs for his incarceration under the Missouri Incarceration Reimbursement Act (MIRA), Sections 217.825-217.841 et seq.¹ The State alleged an estimated cost of $14,000 per year to care for Farmer. The petition also alleged there was "good cause" to believe that Farmer had sufficient assets from which the State could recover at least ten percent of the cost of his care for two years (i.e. $2,800).

The circuit court issued a Show Cause Order and Ex Parte Order appointing a receiver to secure funds in Farmer's inmate account. The State filed a Motion for Summary Judgment. Farmer filed timely responses to both the order and motion, challenging the State's allegation of good cause.

The court granted summary judgment in favor of the State, allowing recovery of $244,636.14 for the total cost of Farmer's custodial care since 1988. The court found that Farmer's inmate account had received deposits of $1,956.40, during May 2006 through November 2006, from sources other than wages and salary while incarcerated. The court ordered that 90% of the funds in Farmer's account be used to pay for his incarceration costs.

Farmer raises seven points on appeal. We will consider his jurisdictional challenge before addressing the propriety of summary judgment. Because his first point regarding the summary judgment is dispositive, we need not address the remaining points.

JURISDICTION

Farmer contends the circuit court lacked jurisdiction to grant summary judgment because it failed to rule on his motion for change of judge and change of venue. His argument is based on Rules 51.06(b) and 51.05(e),² which require the trial court to promptly sustain a request for change of judge upon timely filing.

268 S.W.3d 404

The facts underlying Farmer's motion are somewhat confusing. The docket sheet indicates the Petition for Incarceration Reimbursement was filed on October 5, 2006. The Show Cause Order and Ex Parte Order appointing a receiver were issued and mailed to Farmer on October 11, 2006. Those orders were issued by Judge Thomas Brown, whose judicial term was set to expire on December 31, 2006. Farmer was served with the Petition on October 16, 2006.

On October 23, 2006, the docket sheet reflects that a hearing was scheduled with Judge Richard Callahan for January 22, 2007. The docket sheet does not indicate whether a notice of hearing was sent to the parties.

On November 8, 2006, Farmer filed his response to the Petition and submitted interrogatories to the State. Later in November and December, Farmer sent a letter to the court inquiring about a hearing date. The court clerk responded by faxing a copy of the docket sheet to Farmer on January 2, 2007. According to Farmer, this was his first notification that Judge Callahan had been assigned as the trial judge. The next day, Farmer filed his "Joint Application Under Rule 51.06 for Change of Venue and Change of Judge."

The case proceeded with the State's Motion for Summary Judgment, Farmer's response thereto, and various discovery motions. Judge Callahan granted summary judgment on March 5, 2007. No ruling was made on Farmer's motion for change of judge and venue.

We note that Farmer filed responsive pleadings without challenging venue before his request for change of venue was filed. As such, he waived any right to challenge venue. Bizzell v. Kodner Dev. Corp., 700 S.W.2d 819, 822 (Mo. banc 1985). However, a party submitting a joint application for change of judge and change of venue may be entitled to a change of judge even if they are not entitled to a change of venue. Breazeale v. Kemna, 854 S.W.2d 631, 632 (Mo.App. 1993).

Rule 51.06 provides for the joint filing of change of judge and venue motions. The circuit court must grant the motion for change of judge if timely filed and no such application has been previously made by the party requesting relief. Rule 51.05(b) sets forth the deadlines for timely filing of a motion for change of judge when the motion is not for cause. It requires filing "within 60 days from service of process or 30 days from the designation of the trial judge, whichever time is longer." Rule 51.05(b). Based on this rule, Farmer contends his motion for change of judge was due within thirty days of January 2, 2007, the date when he first learned of Judge Callahan's assignment to his case.

Farmer's argument assumes that the filing requirement in Rule 51.05(b) is triggered by notice to the parties of a change in judge.³ Prior to 1997, a previous version

268 S.W.3d 405

of Rule 51.05(b) included a notice provision:

The application [for change of judge] must be filed within thirty days after the answer is due to be...