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State ex rel Stickelber v. Nixon9/11/2001
Appeal From: Petition for Writ of Prohibition
Opinion Vote: WRIT MADE ABSOLUTE.
Ellis and Smith, JJ., concur.
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 successf
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