Court of Appeals of Missouri, Eastern District, Writ Division I
State of Missouri Ex Rel. Acuity, A Mutual Insurance Company, Relator,
The Honorable Matthew E.P. Thornhill, Respondent.
Prohibition St. Charles County Circuit Court Cause No.
Colleen Dolan, Presiding Judge
("Relator"), a Mutual Insurance Company, and the
plaintiff in the underlying case, 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 and Respondent's Answer and 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 Relator obtained a
default judgment against Troop Brothers, Inc.
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). "A writ of prohibition is
available: 1) to prevent a usurpation of judicial power when
the trial court lacks authority or jurisdiction; 2) to remedy
an excess of authority [or] jurisdiction where the lower
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)). The second circumstance applies to this case, because
Respondent lacked the authority to deny Relator's change
of judge request pursuant to § 517.061.
claims it is entitled to a change of judge because Relator
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 December 16, 2015, seeking
recovery from Defendant. Defendant was served on March 9,
2016, through the Missouri Secretary of State and the initial
return date on the summons was April 18, 2016. On the return
date, no one appeared on behalf of Defendant and a default
judgment was entered in Relator's favor. Defendant filed
a motion to set aside the default judgment on July 11, 2016,
which the court granted on August 8, 2016. The case was not
set for trial, but the case was set for Defendant's
discovery motion hearing on January 9, 2017. On January 6,
2017, Relator filed a motion for change of judge pursuant to
§ 517.061, which the court denied on January 9, 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). However, there is no conflict
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…[a]s this case was
originally filed and remained pending before 'associate
circuit judges, ' all 'legislative enactments
establishing specialized procedures for actions before
associate circuit divisions should have been applied
here.'" State ex rel. Cardinal Realty Servs. v.
Schoeberl, 915 S.W.2d 340, 342 (Mo. App. E.D. 1996)
(citing 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. We understand that the short notice
to request a change of judge provided under this statute
leads to delay of cases being tried, docketing issues for the
court clerk, and inconvenience to opposing counsel and the
trial court. Nor do we countenance the action of Relator in
this case, waiting two and a half months to challenge the
denial of its application for change of judge and filing this
writ petition on the Friday evening before a Monday morning
motion hearing setting. Nonetheless, it is in excess of our
authority to change this statute. Charleston ex rel.
Brady v. McCutcheon, 227 S.W.2d 736, 739 (Mo. banc 1950)
(holding "[t]o so rewrite this statute would be ...