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State ex rel. Moore v. Ligons

Court of Appeals of Missouri, Southern District, First Division

October 27, 2017

STATE ex rel. GEORGE MOORE and CRYSTAL MOORE, Relators,
v.
HONORABLE MICHAEL JAMES LIGONS, Respondent.

         ORIGINAL PROCEEDING IN PROHIBITION

          OPINION

          GARY W. LYNCH, J.

         George and Crystal Moore (the "Moores") seek a writ of prohibition or mandamus commanding the Honorable Michael James Ligons ("the trial court") to set aside an order striking the Moores' answer as being untimely. We issued a preliminary writ of prohibition, and the East Butler County Sewer District ("the District"), the plaintiff in the underlying proceeding, filed an answer and brief on behalf of the trial court. For reasons stated below, we now quash the preliminary writ.

         Factual and Procedural Background

         On December 14, 2016, the District filed a petition ("the First Petition") against the Moores. The Moores were served with process on December 31, 2016. The First Petition generally alleged that, following notice to the Moores of the delinquency of their sewer account, the District "shut off and capped" sewer services to the Moores' residence ("the Property"); the Moores continued to use the District's sewer lines without compensation and in a manner endangering public health and safety; the District lacks an adequate remedy at law; and irreparable injury and harm will result absent an injunction compelling the Moores to cease violating the District's rules, regulations, and ordinances. The District prayed for relief in the form of an order "prohibiting, restraining and enjoining [the Moores] from continuing to reside in [the Property] until such time as the sewer lines and facilities located thereon are repaired and/or replaced[.]"

         The Moores filed no timely responsive pleading to the First Petition. They personally appeared, however, at a March 17, 2017 case review hearing. Darlene Stage, who claimed to be the owner of the Property, also attended that hearing.

         Four days later, on March 21, 2017, the District filed an amended petition ("the Second Petition"). The Second Petition added Darlene Stage and husband James Lee Stage (the "Stages") and alleged that they owned the Property. The Second Petition also added the following paragraph ("Paragraph 14"):

Defendants, Darlene Stage and James Lee Stage, should further be compelled to either have the sewer lines situate upon the real property repaired or replaced, or barring such reparative action, prohibited from allowing Defendants, George Moore and Crystal Moore, or any other person or persons, from residing within the residence situate upon the premises.

         Otherwise, the allegations in the Second Petition were substantially the same as in the First Petition, including the prayer for relief in the form of an order "prohibiting, restraining and enjoining [the Moores] from continuing to reside in [the Property] until such time as the sewer lines and facilities located thereon are repaired and/or replaced[.]"

         Thereafter, the Moores retained counsel and, on April 17, 2017, filed an answer to the Second Petition as well as a counterclaim alleging that they had suffered damage due to the District's failure to maintain its sewer line. The District, in separate motions, moved to strike the Moores' answer as untimely per Rule 55.25 and to dismiss the Moores' counterclaim as untimely per that same rule.[1] In their response, the Moores denied that the answer and counterclaim were untimely but, in the alternative, requested leave to file both out of time.

         The trial court ultimately granted the District's motion to strike the Moores' answer.[2]The Moores then filed this petition for a writ or prohibition or mandamus.

         Discussion

         As relevant here, a writ of prohibition will lie only to prevent an abuse of judicial discretion, to avoid irreparable harm to a party, or to prevent exercise of extra-judicial power. State ex rel. Linthicum v. Calvin, 57 S.W.3d 855, 857 (Mo. banc 2001). Mandamus is not a writ of right; it is a discretionary writ that will only lie when there is a clear, unequivocal, and specific right. State ex rel. Hewitt v. Kerr, 461 S.W.3d 798, 805 (Mo. banc 2015).

         Answer was ...


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