State Ex Rel. Missouri Highway & Transportation Commission v. Anderson , 735 S.W.2d 350 ( 1987 )

WELLIVER, Judge.

Relator, the Missouri Highway and Transportation Commission seeks writs of prohibition and mandamus directed at prohibiting Greene County Circuit Judge Anderson from issuing two subpoenas duc-es tecum to relator’s two land appraisers.¹ The Court of Appeals, Southern District, issued preliminary writs which were quashed by opinion. We transferred the case to examine the existing law. Mo. Const, art. V, § 10. We make the alternative writ of mandamus peremptory and the preliminary writ of prohibition absolute. We have borrowed extensively from the dissenting opinion filed by Flanigan, J., in the Court of Appeals, Southern District.

I

This case stems from relator’s March 30, 1984, petition to condemn land owned by South Springfield Farm, Ronald K. Sten-ger, Neil K. Stenger, and Springfield Land Company. The land is sought by relator as a part of a highway project utilizing federal funds.

On May 4,1984, the owners filed motions to dismiss and for an evidentiary hearing on the jurisdictional phase of the condemnation. On February 27, 1985, the owners filed Notice to Take Depositions and a Motion to Compel, both of which relator moved to quash. On March 5, 1985, the circuit court sustained the Motion to Quash. The owners sought writs of prohibition and mandamus which the Court of Appeals, Southern District, and this Court denied.

On April 3, 1985, the circuit court, at the request of the owners, issued subpoenas duces tecum to two of relator’s appraisers, Mr. Les Sage and Mr. Jack Bennett. The subpoenas directed Sage and Bennett to produce all notes, memoranda, summaries, or written documents which they had used in making their precondemnation appraisals for the relator. On April 4, 1985, relator moved to quash the subpoenas. On April 5, respondent, Judge Anderson, overruled the Motion To Quash the subpoenas duces tecum.

Relator sought and obtained in the Court of Appeals, Southern District, the Alternative Writ of Mandamus and the Preliminary Writ of Prohibition, both later quashed by opinion. We transferred.

II

The landowners, through the respondent circuit judge, base their right to have the subpoenas duces tecum issued on two grounds: (1) that the owners of the condemned property are entitled to question and contest the court’s jurisdiction to proceed further in the underlying condemnation action by contesting whether relator has complied with the prerequisites imposed by State ex rel. Weatherby Advertising v. Conley, 527 S.W.2d 334 (Mo. banc 1975), and that the materials sought by the subpoenas are necessary for that purpose; and (2) that since State ex rel. State Highway Commission v. Jensen, 362 S.W.2d 568 (Mo. banc 1962), the work product privilege has been abrogated by Rule 56.-01(b)(3), and that Rule 56.01(b)(4)(b) did not change the status of the documents sought in this case from work product, but rather provided a method whereby, under some circumstances, they would be subject to discovery.

For the reasons which follow, we conclude that neither ground is valid. We shall discuss the second ground first.

A

Condemnation under Missouri law contemplates a two-step procedure described and set forth in Chapter 523, RSMo 1986,² and Rule 86. Both the statutes and our rule describe the procedure we have devised for balancing the right of government to appropriate private property for the use and benefit of the public against the right of every person to be fairly and fully compensated for the taking of the property for public use. Both the statutes and our rule contemplate a two-step process.

First, the court must determine whether the condemnation is authorized by law— i.e.: is there jurisdiction over the condemnation proceeding.... [H]as the condemning authority complied with the conditions precedent to bringing the action (State ex rel. Weatherby Advertising Co., Inc. v. Conley, 527 S.W.2d 334 (Mo. banc 1975))_

Secondly, the court must establish the landowner’s damages from the taking. At that stage, commissioners are appointed to assess the landowner’s damages and upon payment of the commissioners’ award the condemning authority acquires the property and may proceed to utilize it as prayed in its petition for condemnation. Either party may request a jury trial to establish the landowner’s damages and only after that trial has concluded is the case appealable.

State ex rel. Devanssay v. McGuire, 622 S.W.2d 323, 325 (Mo.App.1981).

This two-step process has an extremely important function. It guarantees to the public early commencement of the project while preserving to the individual landowners the right at a later date to extensively and thoroughly litigate all issues relating to damages for the taking. If the purpose of the condemnation is to build a road across Missouri from St. Louis to Kansas City, a single objecting landowner has no right to delay the commencement of the project for months or years by interrogatories, depositions, discovery or dilatory practices. The two-step process does not contemplate extensive litigation at the first stage which is prior to the order of condemnation. It is a hearing on the petition which Rule 86.04 requires to contain, among other things

a statement of the foundation of the plaintiff’s right to condemn the property involved in the condemnation proceedings; a general statement of the nature of the business, improvement or use for which the property is to be taken; a statement either that the condemner or owner can not agree on the proper compensation to be paid or that an owner is incapable of contracting, is unknown, can not be found or is a non-resident of the state; if any right of way be sought, the location and general route thereof shall be described and a copy of the construction plans required by Section 227.050 of the Revised Statutes of Missouri, 1949, shall be filed in the circuit clerk’s office and made a part of each condemnation petition by reference; ...

Rule 86.04.

We do not minimize the importance of the initial hearing, which is the one involved here. This hearing “is much more than a preliminary hearing on a pretrial motion.” Washington University Medical Center v. Komen, 637 S.W.2d 51, 54 (Mo.App.1982). It is “an evidentiary hearing in which the right or power of the condemner to condemn the property in question is finally adjudicated.” Washington University Medical Center v. Komen, 637 S.W.2d at 54. In State ex rel. State Highway Commission v. Dalton, 498 S.W.2d 801 (Mo. banc 1973), the trial court entered an order pertaining to discovery after the initial hearing had been held and before the issue of damages was tried to a jury. This Court recognized that “In the generally accepted sense, the trial of the basic action had not started at the time the challenged order was entered.” Dalton, 498 S.W.2d at 802.

As a practical matter, the precise extent of the landowners’ damage is the paramount issue only in the second stage. The damages are ascertained by determining the fair market value of the property “immediately before the taking.” MAI 9.01. “Under our statutes and our condemnation cases, the taking of the property occurs when the condemner pays the commissioners’ award into the registry of the court, or if it refuses to make such payment, as is true in this case, at the time of trial.” State ex rel. Washington University v. Gaertner, 626 S.W.2d 373, 375 (Mo. banc 1982). In the instant case the “taking” has not yet occurred. The value of the property “immediately before the taking” cannot yet be ascertained. With respect to making appraisals of the landowners’ property at the present time, the commission and the landowners are on equal footing. Each side is able to make its own appraisal without obtaining information from the other.

In State ex rel. Weatherby Advertising v. Conley, 527 S.W.2d 334, 336 (Mo. banc 1975), this Court said: “It is well established in Missouri that allegation and proof that the condemner and property owners have been unable to agree on compensation to be paid for the property being taken is jurisdictional.” Weatherby, 527 S.W.2d at 336. Section 523.010 authorizes the filing of condemnation proceedings only where the condemner and the owners cannot agree upon the proper compensation to be paid. Weatherby, 527 S.W.2d at 336. The petition should allege enough to show that bona fide negotiations have occurred but that the parties were unable to arrive at a settlement. Weatherby, 527 S.W.2d at 336-37.

In City of Blue Springs v. Central Development, 684 S.W.2d 44 (Mo.App.1984), the court spoke of the “jurisdictional requirement that the condemner and property owner have been unable to agree on the compensation to be paid for the property being taken.” 684 S.W.2d at 48. The court said,

[T]o satisfy the statutory requirements of § 523.010 RSMo the condemners’ evidence must show that a valid offer was made by one party, usually the condemner, and rejected by the other_ Missouri case law indicates the relationship between the offer and the market value of the property to be condemned is not significant in the determination of good faith. An offer need not be a particular amount — merely sufficient to create a binding contract. See Note, Preliminary Requirements for Condemnation in Missouri: Necessity, Public Use, and Good Faith Negotiations, 44 Mo.L. Rev. 503, 511 (1979).

City of Blue Springs, 684 S.W.2d at 48-49. The foregoing language, which we believe to be an accurate statement of the Missouri law, would indicate that the niceties of the manner in which an appraiser arrived at his appraisal, and perhaps even the appraisal itself, have no real significance at the initial hearing, which is the one involved here.

In School District of Clayton v. Kelsey, 196 S.W.2d 860 (Mo.1946), we held an offer of $15,000 to be in good faith, even though the jury returned a damage verdict of $34,-500. In Shelby County R-IV School District v. Herman, 392 S.W.2d 609 (Mo.1965), we held an offer which was only one-sixth of the landowner’s alleged damages to be in good faith. In State v. Cady, 400 S.W.2d 481 (Mo.App.1965), the court held an offer of no money to be in good faith in light of benefits that the landowner would receive, though the landowner claimed $2,800 in damages. Most recently, in City of Columbia v. Baurichter, 713 S.W.2d 263 (Mo. banc 1986), this Court held that all that is required for jurisdiction to attach is an uncontested allegation that good faith negotiations could not be had for the reason that the owners were unknown, could not be located, or could not be determined.

Clearly, the relationship between the market value of the property and the offer is not of material significance in determining the existence of the good faith negotiations required by § 523.010 and Rule 86.04.

Rule 56.01, which contains “General Provisions Concerning Discovery,” became effective on January 1, 1975. Prior to that date this Court, in three cases, State ex rel. State Highway Commission v. Dalton, 498 S.W.2d 801 (Mo. banc 1973); State ex rel. State Highway Commission v. Kali-vas, 484 S.W.2d 292 (Mo.1972); State v. Jensen, 362 S.W.2d 568 (Mo. banc 1962), and had occasion to consider the discovera-bility of the notes and memoranda of appraisers in condemnation actions. In all, this Court denied discovery.

In Jensen, between the initial hearing and the jury trial, the landowners sought to take the depositions of three appraisers who had been hired by the Highway Commission and who were expected to be called as witnesses in the trial. The appraisers had done their work before the condemnation action was filed. The landowners served notice to take the depositions and obtained an order of the trial court directing the appraisers to produce memoranda and notes of the type sought here. At that time the pertinent Rule provided:

The examining party may not inquire as to the contents or substance of statements, written or oral, obtained from prospective witnesses by or on behalf of another party. The production or inspection of any writing obtained or prepared by the adverse party or coparty, his attorney, surety, indemnitor, or agent, in anticipation of litigation or in preparation for trial, ... or of any writing that reflects an attorney’s mental impressions, conclusions, opinions, or legal theories, or, except as provided in Rule 60.01, the conclusions of an expert, shall not be required.

Rule 57.01.

This Court said:

Under the law, the relator State Highway Commission was not authorized to file a condemnation suit to appropriate the property in question unless an agreement could not be reached as to the compensation to be paid the owners. Relator would not be in a position to bargain with the owners until it had, through its agents, made an investigation as to the value of the property. In such a situation, the condemner, herein the State Highway Commission, was justified in anticipating that litigation might follow. In the circumstances, we rule that the work product in question is privileged as having been prepared by relator’s agent in anticipation of litigation.

Jensen, 362 S.W.2d at 569-70 (emphasis added).

This Court also held that it was of no moment that the memoranda were prepared before the condemnation action was filed and ten months before the commissioners filed their report.

In State ex rel. State Highway Commission v. Kalivas, 484 S.W.2d 292 (Mo.1972), the landowner in a condemnation case hired three appraisers, but at the jury trial used only two of them. On cross-examination of the landowner, the commission elicited the fact that the landowner had employed appraiser number three, and that fact was commented upon by the commission’s attorney in his final argument. The Court held that appraiser number three was available for the commission to call as its own witness and that “[appraisers in a condemnation action] are to be treated as any other so-called expert witness.” State Highway Commission v. Kalivas, 484 S.W.2d at 295.

The Court said:

However, we do not depart from our ruling in Jensen, supra, that, prior to trial, the opinion of an appraiser as to damages in a condemnation suit is to be considered work product and not subject to discovery. As discussed in Jensen, such an approach is mandatory if we are to allow the jurisdictional requirement for ‘negotiations’ before condemnation to continue to have any legitimate status or meaningful purpose in such proceedings.

Kalivas, 484 S.W.2d at 295 (emphasis added).

In State ex rel. State Highway Commission v. Dalton, 498 S.W.2d 801 (Mo. banc 1973), in which the Highway Commission was the condemner, an order of condemnation was entered at the initial hearing. Later the trial court entered an order that the commission’s expert witnesses “divulge their conclusions as reflected in appraisal reports which they prepared at the request of and for [the commission].” Dalton, 498 S.W.2d at 801.

Again this Court, quoting Jensen, held “that the work product in question is privileged as having been prepared by relator’s agent in anticipation of litigation.” Dalton, 498 S.W.2d at 802, quoting Jensen, 362 S.W.2d at 570. The trial court had based its ruling in part on its feeling that “the trial of this cause” had “begun and [was] in progress for the purpose of these rulings.” Dalton, 498 S.W.2d at 802.

The Court said:

“Although somewhat presumptuous, it is perhaps fair to say that the trial court’s reasoning was premised on prior appellate opinions which prohibited such inquiry for the reason, among other, that: ‘as discussed in Jensen, such an approach is mandatory if we are to allow the jurisdictional requirement for “negotiations” before condemnation to continue to have any legitimate status or meaningful purpose in such proceedings.’ State ex rel. State Highway Commission v. Kalivas, 484 S.W.2d 292, 295 (Mo.1972). However, there were and are other reasons for the conclusion reached in Jensen. For example, Rule 57.01(b), pertaining to discovery, specifically provides, in part, that: ‘The production or inspection of any writing obtained or prepared by the adverse party ... that reflects ... except as provided in Rule 60.01 [pertaining to physical and mental examinations] the conclusion of an expert, shall not be required.’ Interpretation of that portion of the rule has been consistent and recognized as such.”

Dalton, 498 S.W.2d at 802 (emphasis added).

The Court, in Jensen, held that the appraiser’s memoranda was work product and was privileged as having been prepared by the commission’s agent in anticipation of litigation. In Dalton, this Court held that the memoranda were not discoverable for the additional reason that they constituted conclusions of an expert. Did the adoption of Rule 56.01 in 1975 constitute a departure from these reason-ings?

Rule 56.01(a) enumerates six discovery methods, two of which are interrogatories and depositions.

Rule 56.01(b)(1) confines itself to the discovery of “any matter, not privileged.”³ (Emphasis added.) Rule 56.01(b)(3) deals with the discovery of documents and tangible things “otherwise discoverable under subdivision (b)(1) of this Rule.” If the matter sought is “privileged,” it is not discoverable under Rule 56.01(b)(3).

Rule 56.01(b)(4) deals with “discovery of facts known and opinions held by experts.” This rule is also subject to the limitation contained in Rule 56.01(b)(1) that the matter be “not privileged.”

Rule 56.01(b)(3) opens with the language, “Subject to the provisions of subdivision (b)(4) of this Rule.” Thus, if the matter sought to be discovered constitutes “facts known and opinions held by experts,” Rule 56.01(b)(3) does not come into play at all and the exclusive methods of discovery of that matter are set forth in and limited by Rule 56.01(b)(4). Those methods are interrogatories and depositions. They do not include the issuance of subpoenas duces tecum in connection with a hearing.

If, which we do not believe, witnesses Sage and Bennett are not experts, their memoranda and notes are protected from discovery either because they are “privileged,” as held in Jensen, Kalivas and Dalton, or because they are protected by the following language in Rule 56.01(b)(3): “[I]n ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or any other representative of a party concerning the litigation.” (Emphasis added.) The protection is afforded even if the landowners made the “required showing” of “substantial need” and “hardship,” although it is clear that no such showing was made here.

On the other hand, if Sage and Bennett are experts, as both sides at least tacitly concede, the exclusive methods for obtaining their opinions and the facts known to them are found in Rule 56.-01(b)(4). In order to be experts within Rule 56.01(b)(4), Sage and Bennett must be “person[s] whom the other party expects to call as an expert witness at trial.” Even if the initial hearing be considered a “trial,” contrary to the statement made in Dalton, 498 S.W.2d at 802, there is no showing by the landowners that the commission expects to call either of them at the initial hearing. Further, landowners are not seeking discovery by interrogatories or deposition. No portion of Rule 56.01 permits the landowners to discover the notes, memoranda, summaries or written documents used in making the appraisals for the relator.

We are unable to foresee or hypothesize circumstances where the pleadings or proof required by § 523.010 or Rule 86.04 would require discovery and its attendant delay at stage one of a condemnation proceeding.

B

The landowners’ contention that they must have the items sought in subpoenas duces tecum in order to contest relator’s compliance with Weatherby compels our examination of the effect of Weatherby. As a first step in examining the effect of Weatherby, a careful review of its facts may be helpful.

Weatherby Outdoor Sign owned sign structures on leased land adjacent to existing highways, which land was sought to be condemned by the Highway Commission for the building of new and wider highways. Weatherby indicates that a Boone County and a Callaway County case were consolidated therein. In the Boone County case, referred to in Weatherby, Weatherby had one sign on tract eight, owned by Rid-dick. Riddick terminated the sign lease and settled with the Highway Commission. “Thereafter Commission filed a petition in [the Boone County case] naming only relator [Weatherby] as a defendant as to parcel 8.”⁴ Weatherby, 527 S.W.2d at 335. In the Callaway County case, Weatherby owned two signs on tract fifteen owned by Sutterfield and one sign on parcel twenty-four owned by Bemac, Inc. Sutterfield refused an offer and Bemac, Inc. accepted an offer after terminating the sign lease. “No offer has been made to Relator [Weatherby] with reference to its signs on either tract.” Weatherby, 527 S.W.2d at 335. The opinion recites that Weatherby filed answers and counterclaims wherein it asserted the commission’s failure to make an offer as a prerequisite to condemnation under traditional condemnation law and also alleged failure to comply with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. §§ 4651-4655, enacted January 2, 1971.

The commission filed a Motion to Dismiss the counterclaims. The circuit court overruled the motion and entered the order of condemnation.

No ruling specifically dealing with the counterclaims was entered, but the parties appear to be in agreement that the trial court indicated that it believed the orders of condemnation had disposed of the counterclaims.

Weatherby, 527 S.W.2d at 335.⁵

Prohibition was denied by the Court of Appeals, Western District. This Court issued its preliminary writ of prohibition which was made absolute.

No allegations were made in the commission’s petitions filed against Weatherby that either appraisals or offers had been made, nor was any such proof offered at hearing. Prohibition, if justified based upon the so-called agreement about what the circuit court may have intended to do, would lie only to prohibit the appointment of appraisers and further proceedings. That right to prohibition having been conceded, the additional holding that the commission had to plead and prove the requirements of the Uniform Relocation Assist-anee and Real Property Acquisition Policies Act of 1970 would appear to be dictum totally unnecessary to the decision of the case.

No rights of discovery were either asserted in Weatherby or authorized by Weatherby. At most, it held that it was necessary to plead and prove compliance with the federal statutes.

The purported holding of Weatherby in effect mandated a judicial review of the Highway Commission’s compliance with federal laws entitling it to federal funds as a prerequisite to entry of the order of condemnation in every condemnation case involving federal funds.

Perhaps, when Weatherby was written in 1975, there may have been those who feared that federal contributions to highway funds might be lost by the Highway Commission’s noncompliance with federal requirements. Today such concern appears unnecessary. We are able to locate no case in these United States where a condemnee failed to collect a condemnation award by reason of withdrawal of federal funds.

The legislative history of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. § 4651-4655, enacted January 2, 1971, and the cases from other jurisdictions do not indicate that proof of state compliance with the act was intended by the Congress to be a condition precedent to condemnation in state courts.

Congress intended 42 U.S.C. § 4651-4655 to be a matter between the federal agencies handling funds, and the relator at the state level. See City of Mishawaka v. Sara, 396 N.E.2d 946 (Ind.Ct.App.1979) where the Indiana Court of Appeals held:

[T]he policies set forth in § 4651 ... are advisory only, United States v. 416.81 Acres of Land (7th Cir.1975) 525 F.2d 450, at 454; Paramount Farms, Inc. v. Morton, (7th Cir.1975) 527 F.2d 1301, 1305, and they create no right in the condemnee to judicial review of an agency’s property acquisition practices.

City of Mishawaka, 396 N.E.2d 946, 947 (citation omitted). In Barnhart v. Brinegar, 362 F.Supp. 464 (W.D.Mo.1973), the District Court held:

This completes our review of the history of the “no rights or liabilities” language of [42 U.S.C. § 4602(a)]. From this history, we believe one conclusion is irresistible — Congress intended Section [4602(a)] to preclude judicial review of federal and state agency actions under the real property acquisition practices of [42 U.S.C. § 4651].

Barnhart, 362 F.Supp. at 472 (footnotes omitted).

In Nall Motors v. Iowa City, Iowa, 533 F.2d 381 (8th Cir.1976), the Eighth Circuit reviewed the district court record, and affirmed in a memorandum opinion on the basis of the district court memorandum. The District Court for the Southern District of Iowa held, referring to the decision in Barnhart, 362 F.Supp. 464 (W.D.Mo. 1975) said:

In the courts opinion this view of § 4651 is the correct one. Plaintiffs are entitled to no relief for the claimed violations thereof. Section 4602(a) clearly and convincingly evinces an attempt to preclude judicial review of agency action under § 4651....

Nall Motors, Inc. v. Iowa City, Iowa, 410 F.Supp. 111, 115 (S.D. Iowa 1975).

As can be seen by the foregoing, 42 U.S.C. § 4651 does not grant the owners in this case any renewable rights. Therefore, it stands to reason that owners are not entitled to discovery on matters allegedly covered by 42 U.S.C. § 4651-4655 by subpoenas duces tecum or otherwise.

We do not believe that the Missouri General Assembly intended § 226.150, relied on by Weatherby, to change or alter our law of eminent domain as set forth in Chapter 523 and Rule 86.⁶ We do not believe that the legislature intended a judicial review of the Highway Commission’s compliance with federal funding laws in every condemnation proceeding where federal funds are utilized. To the extent that Weatherby and its progeny have so held, they may no longer be relied upon or followed.

The subpoenas duces tecum should be quashed and their reissuance prohibited.⁷

The alternative writ of mandamus is made peremptory and the preliminary writ of prohibition is made absolute.

BILLINGS, C.J., and BLACKMAR, DONNELLY, ROBERTSON and HIGGINS, JJ., concur. RENDLEN, J., dissents in separate opinion filed.

1 . In order for this proceeding to avoid getting into the nebulous area of "mandabition” or "prohidamus," we would point out that the circuit judge already has issued the subpoenas duc-es tecum and already has overruled the motions to quash the subpoenas. Granting relief to relator would, of necessity, require ordering and mandamusing that the subpoenas be quashed and prohibiting reissuance of the subpoenas in the future. Had the circuit judge notified relator that he intended to issue the subpoenas and that he would grant relator time within which to seek prohibition, then prohibition would have been the only writ required to raise all issues. Our discussion, we believe, should be in terms of the case being postured as prohibition.

2 . All references herein are to RSMo 1986, unless otherwise indicated.

3 . The language of Rule 56.01(b)(1) is contained in Rule 26(b)(1) of the Federal Rules of Civil Procedure. With regard to the latter rule a leading commentator has said: Rule 26(b) provides for discovery regarding matters ‘not privileged.’ The term ‘privileged,’ as used in Rule 26(b), corresponds with the concept of privilege as developed in the law of evidence. Therefore, the scope of privilege in discovery is neither broader nor narrower than that which would be applied at trial.... 4 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice § 26.60 (2d ed. 1985).

4 . We presume this to mean that the original petition in condemnation was amended as it related to Riddick, tract eight.

5 . If the counterclaims were “disposed of,” appeal would appear to be the appropriate remedy. If they were not disposed of, neither appeal nor prohibition was appropriate and the entire case is dictum, if anything.

6 . That part of § 226.150, quoted by the majority in Weatherby first appeared in the Missouri statutes as a part of the Centennial Road Law, adopted in 1921, to get Missouri out of the mud. Sec. 16, Laws of Mo.1921 (first extra session, p. 132 and 138). In those days right-of-way gifts were made by adjoining owners in return for hard surfaced roads. It is difficult to imagine that members of that General Assembly intended, or even dreamed that § 226.150 would in 1975 be used by this Court in connection with a 1971 congressional act to change the law of eminent domain of the state of Missouri.

7 . “Prohibition or a ‘writ of prohibition' is that process by which a superior court prevents inferior courts, tribunals, officers, or persons from usurping or exercising a jurisdiction with which they have not been vested by law.” 73 C.J.S. Prohibition § 2 (1983). See State ex rel. Eggers v. Enright, 609 S.W.2d 381 (Mo. banc 1980). A writ of prohibition lies to prevent a judge from acting outside his jurisdiction in discovery matters. State ex rel. Albert v. Adams, 540 S.W.2d 26 (Mo. banc 1976).