Transfer of Venue vs. Change of Venue: Southern District Clarifies Key Distinction Under Rule 51

The interface of Missouri’s Rules of Civil Procedure addressing venue and change of judge was at the forefront in a recent decision of the Southern District Court of Appeals. In a sharply reasoned opinion with significant procedural implications, the Southern District reversed a trial court’s denial of defendants’ application for change of judge under Rule 51.05 when it entered a permanent writ of prohibition in State ex rel. Tapia v. Hon. Derek Ankron (SD 38681). In its opinion, the Court clarified the distinction between a motion to transfer for improper venue under Rule 51.045 and a motion for change of venue under Rule 51.03—and explained how that difference could affect a party’s right to seek an automatic change of judge under Rule 51.05.

The case arose from claims of breach of contract and tortious interference filed by plaintiff in Miller County.  Citing § 508.010.4, defendants (Relators in the writ petition) contended plaintiff should have filed its petition in Greene County, the place where plaintiff claimed to have been first injured by defendants’ action. Defendants moved to transfer venue to the circuit court in Greene County under Rule 51.045 due to plaintiff’s improper filing. Although the plaintiff initially did not file a reply to the defendants’ application for transfer, the parties later jointly agreed in a letter to the Miller County circuit court that venue should be transferred from Miller County to Greene County. The Miller County circuit court then granted defendants’ motion and transferred the case to the circuit court in Greene County. After the case was transferred to Greene County and a trial judge designated, defendants timely filed an application for change of judge under Rule 51.05.

The Greene County circuit court denied defendants’ application for change of judge, reasoning that because defendants had already “requested and obtained” a change of venue, they were barred by Rule 51.02 and Rule 51.06 from later seeking a change of judge—absent good cause. Rule 51.05 allows any party to apply for a change of judge without cause.

The Southern District disagreed.

The Southern District first underscored the absolute right of a party to seek disqualification of a judge without cause or any showing the prejudice under Rule 51.05, noting the Missouri Supreme Court’s comments that Rule 51.05 provides Missouri litigants with a highly prized right to one change of judge–a right which is liberally granted and is virtually unfettered. The Court then reviewed the enactment of § 476.410 in 1989 and the subsequent adoption of Rule 51.045 by the Missouri Supreme Court which set forth the present-day requirements for a motion to transfer venue alleging improper venue. After the adoption of Rule 51.045, any question concerning improper venue had to be raised by a motion to transfer to a correct venue under Rule 51.045. The Court then addressed the Greene County circuit court’s reasoning under both Rule 51.02 and Rule 51.06 and its misapplication of those rules in relation to Rule 51.045.

Rule 51.02 

The Southern District agreed that Rule 51.02 precludes any change of judge except for cause following any stipulation agreeing to removal of a civil action to a designated court of competent jurisdiction. But the Court disagreed with the circuit court’s reasoning that venue was transferred to Greene County as a result of a stipulation between the parties. The Court noted that a transfer for improper venue required under Rule 51.045 is not the same as a discretionary change of venue under Rule 51.03. Here, venue was transferred as a matter of law, not by agreement or judicial discretion. Because plaintiff never responded to defendants’ motion to transfer, Rule 51.045(c) required the trial court to grant the transfer. The Southern District explained that any “consent” expressed by the parties’ joint letter confirming venue in Greene County as proper was irrelevant.  Because venue was improper in Miller County, the transfer to Greene County was mandatory. Accordingly, there was no stipulation or voluntary change of venue that would invoke the limitations of Rule 51.02 and preclude a change of judge under Rule 51.05.

Rule 51.06

The Southern District then turned to the circuit court’s reasoning under Rule 51.06(a), which reads “if a party requests and obtains a change either a change of venue or a change of judge, that party shall not be granted any additional change thereafter except for cause…. A party who desires both a change of venue and change of judge must join and present both in a single application provided the trial judge has been designated.”

The Southern District noted that the Supreme Court in State ex rel. Universal Credit Acceptance, Inc. v. Reno, 601 S.W.3d 546 (Mo. banc 2020), appeared not to distinguish between a motion to transfer under Rule 51.045 and a motion for change of venue under Rule 51.03 when applying the second sentence of Rule 51.06 which requires parties seeking both a change of venue and a change of judge to present both requests in a single application. Here, the defendants did not file an application for change of judge in Miller County but moved only for transfer of venue. Equally as important, when defendants filed their application for a change of judge under Rule 51.05, a trial judge had not yet been designated. Defendants’ application for change of judge came within 30 days of the trial judge’s designation—making it timely and proper under Rule 51.05. Accordingly, whether venue was transferred under Rule 51.045 or Rule 51.03, defendants’ application for change of judge should not have been denied under the joint application requirement of Rule 51.06(a).

The Southern District then turned its attention to the first sentence of Rule 51.06(a), which simply states that a party who has requested a change of venue or change of judge shall not be granted any additional change except for cause. While the Supreme Court in Universal Credit appeared to treat a motion to transfer venue under Rule 51.045 as the same as a motion for change of venue under Rule 51.03, the Southern District noted that the Supreme Court made no express ruling on that issue. The Southern District further observed that the Supreme Court’s ruling in Universal Credit did not focus upon which rule the motion for change of venue was predicated, but was based solely on the fact that the movant did not present the motions for change of venue and change of judge in the same application as required. The Supreme Court in Universal Credit did not address the first sentence of Rule 51.06(a).

When interpreting the first sentence of Rule 51.06 (a), the Southern District pointed to Rule 51.045(d), which expressly states that a request to transfer venue under Rule 51.045 shall not deprive a party of the right to seek a change a venue under Rule 51.03 if the civil action is transferred to a county having 75,000 or fewer inhabitants. The Southern District reasoned that the Supreme Court purposefully and carefully distinguished between a Rule 51.045 transfer due to improper venue and a discretionary Rule 51.03 change of venue when drafting the language of Rule 51.045(d). Because these two procedures are not the same, Rule 51.045(d) makes it clear that filing a motion for transfer of venue is not the same as a motion for change of venue under Rule 51.03. The express language of Rule 51.045(d) reinforced the Southern District’s holding that a Rule 51.045 transfer for venue does not automatically preclude a party from seeking a change of judge as a matter of right under Rule 51.05. In making its preliminary writ permanent, the Southern District prohibited the trial court from taking any further action in the case other than ordering the requested change of judge.

This case serves as a powerful reminder to litigators: the distinction between a motion to transfer for improper venue and motion for change of venue can matter, especially when procedural rights—like seeking a change of judge without cause—are at stake. Be aware of the particular facts presented and the procedural posture of any actions taken regarding venue.