State v. the Honorable W. Stephen Nixon, WD59548

• Citation: 54 S.W.3d 219
• Decision Date: 11 September 2001
• Docket Number: WD59548
• Parties: State of Missouri ex rel. David Stickelber, d/b/a Hampton Place Apartments, and Hampton Place Apartments, Relator, v. The Honorable W. Stephen Nixon, Judge of the Circuit Ccourt of Jackson County, Missouri, Div. 5, at Independence, Respondent. WD59548 Missouri Court of Appeals Western District 0
• Court: Court of Appeal of Missouri (US)

State of Missouri ex rel. David Stickelber, d/b/a Hampton Place Apartments, and Hampton Place Apartments, Relator,

v.

The Honorable W. Stephen Nixon, Judge of the Circuit Ccourt of Jackson County, Missouri, Div. 5, at Independence, Respondent.

WD59548

Missouri Court of Appeals Western District

09/11/2001

Appeal From: Petition for Writ of Prohibition

Counsel for Appellant: Michael Shunk and Scott Long

Counsel for Respondent: Brian Niceswanger

Opinion Summary:

Relator Stickelber is the defendant in a wrongful death action that is presently pending in separate appeal before this court (WD57798 and WD57807). During the appeal of that case, the original trial judge retired and that judge's civil cases were administratively transferred by the presiding judge to the Respondent, Judge Nixon. The order announcing the transfer was entered on June 16, 1999, with an effective date of November 1, 1999. The transfer order was published in a local legal periodical, The Daily Record, beginning on June 19, 1999 and published periodically thereafter until December 1999. Stickelber also received notice of the transfer in a facsimile from the court clerk on November 19, 1999.

Stickelber filed a motion for change of judge as a matter of right under Rule 51.05(a). That motion was denied by Judge Nixon as untimely. After his request for reconsideration was denied, Stickelber then filed the present writ proceeding. He contends that the administrative order transferring the case to Judge Nixon was void as it was entered with an effective date less than six months later, in violation of Jackson County Circuit Court Local Rule 6.1. Alternatively, Stickelber argues that his motion for change of judge was timely, as it was filed less than thirty days after he received notice of the transfer.

Division holds: (1) While an appeal is pending, the circuit court lacks jurisdiction to take any action in the case other than acts specifically authorized by statute or rule, or acts of a ministerial or executive nature.

(2) The reassignment of the case to Judge Nixon while the case was on appeal was not a designation of a new "trial judge" under Rule 51.05. While an appeal is pending, the case may only be transferred to a new judge for administrative or housekeeping purposes. The designation of a new "trial judge" cannot occur unless or until the appellate court reverses the case on appeal and remands the case to the circuit court for further proceedings.

(3) Stickelber's motion for change of judge was premature. If the case is remanded to the trial court, Stickelber may refile his motion for change of judge within thirty days of the issuance of the appellate court's mandate.

Ellis and Smith, JJ., concur.

Ronald R. Holliger, Presiding Judge

PERMANENT ORDER IN PROHIBITION

The underlying case concerns a wrongful death action by the Plaintiff, Darcy Harris (hereinafter "Harris") against the Relator, David Stickelber d/b/a Hampton Place Apartments and Hampton Place Apartments (hereinafter "Stickelber"). The action was originally tried to a jury before Judge Moran in Jackson County. A verdict and judgment in favor of Stickelber issued in that matter, and Judge Moran granted Harris' motion for new trial on the basis of improperly excluded evidence. Stickelber timely appealed the grant of new trial. While the appeal was still pending, Judge Moran retired. In anticipation of that retirement, the Presiding Judge of Jackson County on June 16, 1999, issued an administrative order transferring cases among the various trial divisions. Included in that administrative order was a provision transferring all civil cases pending before Judge Moran (sitting in Div. 16) to Judge Nixon (sitting in Div. 5). The transfer was to be effective November 1, 1999, unless Judge Moran's replacement be appointed prior to November 1, in which case the transfer would occur upon the appointment of the new judge. This administrative order was published through The Daily Record, a local newspaper, on June 19, 1999, and periodically thereafter through December 6, 1999.

On November 19, 1999, Stickelber's counsel also received a notice by facsimile transmitted by the court administrator of the circuit court informing counsel of the transfer of this case. That notice stated: "Pursuant to Circuit Court Administrative Order, the above case has been transferred from Division 16 to Division 5. You are being notified as the attorney of record in this case."

Stickelber's counsel filed a motion for change of judge with the circuit court on December 6, 1999. This motion did not seek Judge Nixon's recusal for cause; instead it was premised upon the automatic disqualification provisions of Rule 51.05(a). Stickelber's motion was denied by Judge Nixon on December 15, 1999, on the grounds that the motion was untimely filed. Stickelber sought reconsideration by the trial court, but that request was denied on February 24, 2000. On January 25, 2001, Stickelber sought relief from this court, seeking the issuance of a writ of prohibition or, in the alternative, of mandamus. He contends that his motion for change of judge was timely filed, and that Rule 51.05 required Judge Nixon to immediately transfer the cause to the presiding judge for reassignment. During this time, the appeal of the underlying judgment was still pending in this court. An opinion was recently issued in the direct appeal on June 29, 2001, affirming the trial court's grant of new trial, but this Court's mandate has not yet issued. See Harris v. Stickelber, WD57798 & WD57807 (June 29, 2001).

Stickelber's writ petition seeks relief in the form of prohibition or, in the alternative, mandamus. To successfully seek prohibition or mandamus, the applicant must meet an exacting standard. To obtain a writ of prohibition, Stickelber must establish that the Respondent acted in excess of his jurisdiction, that action is necessary to prevent usurpation of judicial power, or that we must act to prevent an absolute and irreparable harm to a party. State ex rel. Dir. of Revenue v. Gaertner, 32 S.W.3d 564, 566 (Mo. banc 2000). Prohibition is appropriate where a judge has improperly denied a timely filed motion for change of judge. See generally, State ex rel. Walters v. Schaeperkoetter, 22 S.W.3d 740 (Mo. App. 2000). Similarly, to successfully petition for mandamus, the applicant must make an "unequivocal showing" that the Relator "failed to perform a ministerial duty" required by law. Bergman v. Mills, 988 S.W.2d 84, 88 (Mo. App. 1999).

Here, Stickelber's writ petition is based upon his claim that Judge Nixon acted outside of his jurisdiction in denying his motion for change of judge pursuant to Rule 51.05. That claim is premised upon two grounds. First, Stickelber takes the position that the administrative order transferring the case from Judge Moran to Judge Nixon was void as the effective date of that transfer was less than six months from the date of the administrative order, in violation of Jackson County Circuit Court Local Rule 6.1. Second, Stickelber contends that his motion for change of judge was timely, because it was filed within 30 days of the date his counsel received actual notice of the transfer.

Stickelber's second point contends that his motion for change of judge was timely. He correctly states that a trial judge does not have jurisdiction 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. App. 1996); State ex rel. King v. Huesemann, 776 S.W.2d 488, 491 (Mo. App. 1989); State ex rel. Raack v. Kohn, 720 S.W.2d 941, 943 (Mo. banc 1986). Respondent, in turn, contends that Stickelber's motion was untimely because it was filed more than thirty days after the transfer to Judge Nixon became effective under the administrative order, that is, more than 30 days after November 1, 1999.

Rule 51.05, which authorizes a party to seek a change of judge provides, in salient part:

51.05. Change of Judge--Procedure

(a) A change of judge shall be ordered in any civil action upon the timely filing of a written application therefor by any party. For purposes of this Rule 51, motions to modify child custody, child support, or spousal maintenance filed pursuant to chapter 452, RSMo, shall not be deemed to be an independent civil action unless the judge designated to rule on the motion is not the same judge that ruled on the previous independent civil action. The application need not allege or prove any cause for such change of judge and need not be verified.

(b) The 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.

* * *

(e) The judge promptly shall sustain a timely application for change of judge upon its presentation. The disqualified judge shall transfer the case to a judge stipulated to by the parties if the new judge agrees to take the case. If the case is not so transferred, the disqualified judge shall notify the presiding judge:

Rule 51.05 (emphasis added). The rule sets forth deadlines for timely filing a motion for change of judge where the motion is not for cause. The parties appear to agree that the applicable deadline here is that which requires that the motion for change of judge must be filed within thirty days of the designation of the trial judge. The parties also agree that if a motion for change of judge is timely filed, the trial judge has no discretion to deny the motion. See State ex rel. Walters, 22 S.W.3d at 742.

We need not resolve these claims that the administrative order was invalid or whether...