Court of Appeals of Missouri, Eastern District, Writ Division I
State of Missouri Ex Rel. Brandi Waack Relator,
The Honorable Matthew E.P. Thornhill, Respondent.
Prohibition St. Charles County Circuit Court Cause No.
Colleen Dolan, Presiding Judge
Waack ("Relator") seeks a writ of prohibition to
disqualify the Honorable Matthew P. Thornhill
("Respondent"), from taking any further action in
the above-styled cause with the exception of approving
Relator's timely-filed application for change of judge
under § 517.061. We issued a preliminary order in
prohibition. After considering Respondent's Suggestions
in Opposition, we dispense with further briefing in
accordance with Rule 84.24(i) and make the preliminary order
underlying action is a civil case in which Diamond Finance,
LLC ("Plaintiff") has filed a petition to recover
money owed on a contract.
is an extraordinary remedy and "is to be used with great
caution and forbearance and only in cases of extreme
necessity." State ex rel. Deutsch v. Thornhill,
340 S.W.3d 301, 302 (Mo. App. E.D. 2011) (quoting State
ex rel. Douglas Toyota v. Keeter, 804 S.W.2d 750, 752
(Mo. banc 1991)). "Prohibition is an independent
proceeding to correct or prevent judicial proceedings that
lack jurisdiction…A trial judge lacks jurisdiction and
prohibition lies if the judge fails to disqualify himself or
herself upon proper application for disqualification."
State ex rel. Couch v. Stovall-Reid, 144 S.W.3d 895,
897 (Mo. App. E.D. 2004). We will issue a writ to: (1)
prevent a usurpation of judicial power when the court lacks
authority or jurisdiction; (2) remedy an excess of authority
or jurisdiction where the court lacks the power to act as
intended; or (3) where a party may suffer irreparable harm if
relief is not granted. Thornhill, 340 S.W.3d at 302
(citing State ex rel. Houska v. Dickhaner, 323
S.W.3d 29, 32 (Mo. banc 2010)).
claims she was entitled to a change of judge because she
timely filed an application under § 517.061. As a matter
of right, Relator is entitled to one change of judge. Rule
51.05(d). "If the application was timely filed, the
trial judge had no choice but to sustain it, which would
leave the court without jurisdiction to take further action
in the case." Stovall-Reid, 144 S.W.3d at 897
(holding "[a] civil litigant has a virtually unfettered
right to disqualify a judge without cause on one
occasion"). Section 517.061 states:
Change of venue and change of judge shall be for the same
reasons and in the same manner as provided in the rules of
civil procedure except that the application shall be filed
not later than five days before the return date of the
summons. If the cause is not tried on the return date but
continued and if all parties are given fifteen days'
advance notice of a trial setting before the particular
judge, then any application for change of judge or change of
venue shall be made not later than five days before the date
set for trial.
filed its initial petition on February 16, 2016, seeking
recovery from Relator. Relator filed her answer and
counterclaims on April 29, 2016. The cause was not tried on
the return date, but was instead continued. On January 23,
2017, the case was set for trial on March 27, 2017. The order
setting the trial date was entered more than fifteen days
prior to the scheduled trial. On March 13, 2017, Relator
filed an application for change of judge, pursuant to §
517.061. The motion was filed more than five days prior to
the date scheduled for trial. The court denied the motion on
March 21, 2017.
argues that Rule 51.05 was applicable to the present case and
he denied the request because it was filed out of time
pursuant to Rule 51.05. Respondent rejected Relator's
argument that § 517.061 permits a party to file for a
change of judge so long as the request is five or more days
before trial. Respondent argues that § 517.061 must be
read in harmony with Rule 51.05(b), which permits a change of
judge when the application is filed within sixty days from
service of process or thirty days from the designation of the
trial judge, whichever time is longer. Respondent argued
"[i]f there is a conflict between the Supreme
Court's rules and a statute, the rule always prevails if
it addresses practice, procedure, or pleadings."
Gabriel v. Saint Joseph License, LLC, 425 S.W.3d
133, 139 (Mo. App. W.D. 2013). We have determined this issue
before, and held that under Rule 41.01(d) we defer "to
legislative enactments establishing specialized procedures
for actions before associate circuit divisions."
State ex rel. Cardinal Realty Servs. v. Schoeberl,
915 S.W.2d 340, 342 (Mo. App. E.D. 1996) (quoting
Exchange National Bank of Jefferson City v. Wolken,
819 S.W.2d 45, 48 (Mo. banc 1991)).
section 517.061, the legislature established a time different
than the one prescribed by Rule 51.05(b) to file an
application for a change of judge before associate circuit
judges." Stovall-Reid, 144 S.W.3d at 897. In
the present case, the case was filed and remained pending
before an associate circuit judge, therefore, § 517.061
should have been applied. Relator properly cited §
517.061 as the law applicable to her application for change
of judge in this case and Respondent was without authority to
deny it. See Thornhill, 340 S.W.3d at 302.
preliminary order in prohibition is made permanent.
Respondent is prohibited from taking any further action in
the above styled cause with the exception of approving
Relator's timely filed ...