Sam Knef Apr. 18, 2017, 8:10pm


ST. LOUIS — A customer of a St. Charles finance company who sought to substitute a judge in a suit seeking recovery of funds owed on a contract has been granted a writ of prohibition by the Missouri Court of Appeals, Eastern District.

The appeals court held that Brandi Waack was entitled as a matter of right to a change of judge in a civil action being taken against her by Diamond Finance in St. Charles County Circuit Court, according to a ruling issued April 11.

Diamond Finance filed its initial petition against Waack on Feb. 16, 2016, which she answered a little more than two months later, according to court records. The case had been set to be tried but was instead continued.

The case was then set for trial on March 27, court documents state. On March 13, two weeks before trial was set to begin, Waack filed an application for change of judge on the basis of state statute 517.061, which in part allows a litigant to seek substitution no later than five days before the trial date.

St. Charles County Circuit Judge Matthew Thornhill, the trial judge who denied Waack's petition, responded that a court rule defining timeliness - 51.05 - was applicable to the case, and because Waack filed it out of time, he denied the request for substitution.

Thornhill further responded that if there is a conflict between Supreme Court rules and a state statute, "the rule always prevails," the appeals court ruling states.

"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,'" Judge Colleen Dolan wrote for the three judge appeals panel.

Judges Lisa Van Amburg and Sherri Sullivan concurred.

“In the present case, the case was filed and remained pending before an associate circuit judge, therefore, § 517.061 should have been applied,” Dolan wrote. “(Waack) 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.”

The ruling made permanent a preliminary order involving Thornhill's prohibition in hearing the case of Diamond Finance against Waack.

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