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08/17/93 STATE EX REL. SCHNUCK MARKETS v. HONORABLE

August 17, 1993

STATE EX REL. SCHNUCK MARKETS, INC., RELATOR,
v.
THE HONORABLE JACK L. KOEHR, JUDGE OF THE CIRCUIT COURT FOR THE CITY OF ST. LOUIS, ET AL., RESPONDENTS.



Limbaugh, Jr.

The opinion of the court was delivered by: Limbaugh

ORIGINAL PROCEEDING IN MANDAMUS

This is an original proceeding in mandamus in which relator, Schnuck Markets, Inc., seeks to compel respondents, Judge Jack L. Koehr of the Circuit Court of the City of St. Louis and Judge Kenneth M. Romines of the Circuit Court of St. Louis County, to transfer the case styled Perez v. Schnuck Markets, Inc., from the City of St. Louis to St. Louis County. The petition for writ of mandamus was originally filed in the Court of Appeals, Eastern District, where it was summarily denied. We then issued our preliminary writ, which we now make absolute.

At issue is whether a Judge, after ordering a change of venue for cause, may vacate that order when the party in opposition to the change files a written denial of cause after entry of the original order.

The underlying case was filed by plaintiff Margarita Orta Perez in the Circuit Court of the City of St. Louis. Perez sought compensation from defendant, Schnuck Markets, Inc., , for injuries she allegedly sustained as a result of a slip and fall on Schnuck premises.

Schnuck filed an application for change of venue on Tuesday, June 9, 1992. To establish cause for the change, as required under Rule 51.04(a), Schnuck's application stated that the inhabitants of the City of St. Louis were prejudiced against Schnuck and that Perez and her attorney had an undue influence over those inhabitants. The application was accompanied by a notice of a hearing to be held on June 22. Schnuck made service of the application and notice by mail.

On Wednesday, June 10, Perez' counsel telephoned Schnuck's counsel to request that the hearing date be changed to Thursday, June 18th, so that the motion for a change of venue could be consolidated for argument with other motions pending in the case. When Schnuck agreed, Perez noticed the new hearing date.

At the June 18 hearing, Judge Koehr sustained Schnuck's motion for change of venue and entered an order transferring the case to the Circuit Court of St. Louis County "upon payment of applicable fees." Later that same day, Perez filed a written denial of cause for change of venue and also filed a motion to reconsider the earlier ruling. The next day, June 19, Schnuck paid the applicable transfer fees and the case file was transferred to the county.

On July 7, with the case pending in the county, Judge Koehr sustained Perez' motion to reconsider and vacated his earlier order transferring venue to the county. In response, and upon Perez' motion, Judge Kenneth M. Romines of the Circuit Court of St. Louis County retransferred the case to the city where it is now pending.

Citing State ex rel. Peabody Coal Co. v. Powell, 574 S.W.2d 423 (Mo. banc 1978), Schnuck asserts that Judge Koehr had no authority to vacate his original order. In Peabody, the trial Judge sustained defendant's application for a change of venue for cause and entered an order transferring venue to St. Louis County. Defendant then appeared ex parte and requested that the case be retransferred to a different county. When the trial court rescinded its original order of transfer, plaintiff-relator petitioned for a writ of prohibition. The case turned on Rule 51.13, which states:

A court which has granted a change of venue shall have the power to annul the order, with consent of the parties, at any time before the papers or transcript are filed in the court to which the venue was changed.

This Court, in issuing the writ, held that the authorization to annul an order granting a change of venue "with consent of the parties" prohibited, by implication, the annulment of an order without the parties' consent.

As in Peabody, the parties in this case did not consent to the annulment. Nevertheless, respondents attempt to distinguish Peabody by suggesting that the time for filing a denial of cause under Rules 51.04(e), 44.01(a) and 44.01(e) had not expired when the original order of transfer was entered and that Judge Koehr therefore maintained jurisdiction to recall the case.

Rule 51.04(e) provides the method by which a party may challenge a motion for a change of ...


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