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McCormack v. Capital Electric Construction Co.12/21/2004
ouri Constitution, the Supreme Court has exclusive jurisdiction in all cases involving the constitutional validity of a state statute. However, the mere assertion that a statute is unconstitutional does not deprive the court of appeals of jurisdiction. Wright v. Mo. Dep't. of Soc. Servs., 25 S.W.3d 525, 528 (Mo.App. 2000) . The constitutional issue must be real and substantial, not merely colorable. Id.
In determining whether a constitutional claim is real and substantial, we make a preliminary inquiry as to whether it presents a contested matter of right that involves fair doubt and reasonable room for disagreement. Id. If the initial inquiry discloses the claim is so legally or factually insubstantial as to be plainly without merit, the claim may be deemed merely colorable. Id. We conclude, for reasons set forth herein, that Capital's constitutional challenge is merely colorable and does not invoke the Supreme Court's exclusive jurisdiction.
The McCormacks notified Capital of their intent to seek prejudgment interest in the settlement offer of December 19, 1997. The letter from their counsel states: "This offer is made pursuant to Section 408.040 Revised Statutes of Missouri and will remain open for sixty (60) days from the date received unless rejected earlier." Capital rejected the offer on December 24, 1997, and declined to make a counter offer. On September 30, 1998, the McCormacks filed a First Amended Petition that specifically prayed for prejudgment interest and referenced Section 408.040. Capital filed a responsive pleading that did not mention prejudgment interest, nor challenge the constitutionality of Section 408.040.
Capital concedes it did not assert a constitutional challenge to prejudgment interest until after the second trial, when it filed a Motion to Amend the Judgment. "An attack on the constitutionality of a statute is of such dignity and importance that the record touching such issues should be fully developed and not raised as an afterthought in a post-trial motion or on appeal." Land Clearance for Redevelopment Auth. v. Ks. Univ. Endowment Ass'n, 805 S.W.2d 173, 176 (Mo. banc 1991). "Constitutional issues are waived unless raised at the earliest opportunity, consistent with orderly procedure." Hollis v. Blevins, 926 S.W.2d 683, 683 (Mo. banc 1996).
Capital had ample notice that the McCormacks intended to seek prejudgment interest, and yet it failed to raise any constitutional challenge to the statute at an earlier stage that would have allowed the trial court a full opportunity to identify and rule on the issue prior to the entry of judgment. Given the waiver, the trial court properly declined to consider the issue in ruling on the motion to amend judgment. By waiting until the post-trial motion, Capital also failed to preserve the constitutional challenge for consideration on appeal. Land Clearance, 805 S.W.2d at 176.
CONCLUSION
The trial court's denial of prejudgment interest on Mr. McCormack's award of $7.7 million is reversed. Pursuant to Rule 84.14, judgment is entered for prejudgment interest in the amount of $3,789,665. In all other respects, the judgment is affirmed.
All concur.
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