State v. the Honorable W. Stephen Nixon, WD59548

CourtCourt of Appeal of Missouri (US)
Writing for the CourtPER CURIAM
Citation54 S.W.3d 219
PartiesState 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
Docket NumberWD59548
Decision Date11 September 2001

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...

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4 practice notes
  • Foraker v. Foraker, No. WD 61190 (Mo. App. 1/30/2004), No. WD 61190
    • United States
    • Court of Appeal of Missouri (US)
    • March 30, 2004
    ...upon filing of a notice of appeal, a trial court loses almost all jurisdiction over a case." State ex rel. Stickelber v. Nixon, 54 S.W.3d 219, 223 (Mo. App. 2001). The trial court does retain some jurisdiction over the judgment, however. Id. For example, under rule 74.06(a), which codi......
  • Foraker v. Foraker, No. WD 61190.
    • United States
    • Missouri Court of Appeals
    • January 30, 2004
    ...upon filing of a notice of appeal, a trial court loses almost all jurisdiction over a case." State ex rel. Stickelber v. Nixon, 54 S.W.3d 219, 223 (Mo.App.2001). The trial court does retain some jurisdiction over the judgment, however. Id. For example, under rule 74.06(a), which codifi......
  • Reynolds v. Reynolds, No. WD 60665.
    • United States
    • Court of Appeal of Missouri (US)
    • July 15, 2003
    ...upon filing of a notice of appeal, a trial court loses almost all jurisdiction over a case." State ex rel. Stickelber v. Nixon, 54 S.W.3d 219, 223 (Mo.App.2001). The trial court does retain some jurisdiction over the judgment, however. Id. For example, under rule 74.06(a), the trial co......
  • State ex rel. Nixon v. Farmer, No. WD 68322.
    • United States
    • Missouri Court of Appeals
    • August 5, 2008
    ...judge triggers the thirty-day period for filing-but this court decided the case on different grounds. State ex rel. Stickelber v. Nixon, 54 S.W.3d 219 (Mo.App.2001)(trial court had no jurisdiction to rule on a change of judge motion while case was on appeal). The designation of a new judge ......
4 cases
  • Foraker v. Foraker, No. WD 61190 (Mo. App. 1/30/2004), No. WD 61190
    • United States
    • Court of Appeal of Missouri (US)
    • March 30, 2004
    ...matter, upon filing of a notice of appeal, a trial court loses almost all jurisdiction over a case." State ex rel. Stickelber v. Nixon, 54 S.W.3d 219, 223 (Mo. App. 2001). The trial court does retain some jurisdiction over the judgment, however. Id. For example, under rule 74.06(a), which c......
  • Foraker v. Foraker, No. WD 61190.
    • United States
    • Missouri Court of Appeals
    • January 30, 2004
    ...matter, upon filing of a notice of appeal, a trial court loses almost all jurisdiction over a case." State ex rel. Stickelber v. Nixon, 54 S.W.3d 219, 223 (Mo.App.2001). The trial court does retain some jurisdiction over the judgment, however. Id. For example, under rule 74.06(a), which cod......
  • Reynolds v. Reynolds, No. WD 60665.
    • United States
    • Court of Appeal of Missouri (US)
    • July 15, 2003
    ...matter, upon filing of a notice of appeal, a trial court loses almost all jurisdiction over a case." State ex rel. Stickelber v. Nixon, 54 S.W.3d 219, 223 (Mo.App.2001). The trial court does retain some jurisdiction over the judgment, however. Id. For example, under rule 74.06(a), the trial......
  • State ex rel. Nixon v. Farmer, No. WD 68322.
    • United States
    • Missouri Court of Appeals
    • August 5, 2008
    ...judge triggers the thirty-day period for filing-but this court decided the case on different grounds. State ex rel. Stickelber v. Nixon, 54 S.W.3d 219 (Mo.App.2001)(trial court had no jurisdiction to rule on a change of judge motion while case was on appeal). The designation of a new judge ......

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