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Smith v. Shaw4/12/2005
h that statute, this offer to settle is open for sixty (60) days from the date of this letter." Motorist alleges that Geico did not have 60 days to evaluate Passenger's offer because the letter was received seven days after the offer to settle was mailed. He argues that the offer was thereby left open for only 53 days, failing to satisfy the section 408.040.2 60-day requirement and preventing Passenger from collecting prejudgment interest. Passenger responds, however, that Motorist has waived this issue and cannot raise it on appeal because he failed to present any arguments to the trial court suggesting that the offer was not kept open for 60 days. An issue that was never presented to or decided by the trial court is not preserved for appellate review.
State ex rel. Nixon v. American Tobacco Co., Inc. , 34 S.W.3d 122, 129 (Mo. banc 2000).
The trial court found in its judgment that Passenger complied with section 408.040.2, thereby invoking the court's authority to award prejudgment interest. Motorist filed a motion to amend the judgment by eliminating the award of prejudgment interest for reasons stated in suggestions filed contemporaneously with his motion. His motion to amend did not raise the issue that the settlement offer did not remain open for 60 days. Instead, his suggestions filed in support of his motion to amend stated: "[Passenger] left his offer open for sixty (60) days as set forth in section 408.040.2." Motorist's acknowledgment in his suggestions that Passenger's offer remained open for 60 days waived any claim Motorist now raises as to this issue.
Motorist further argues, however, that even if he is raising the 60-day issue for the first time, this Court should afford this issue plain error review. This Court will generally not convict a lower court of error on an issue that was not put before it to decide. Lincoln Credit Co. v. Peach , 636 S.W.2d 31, 36 (Mo. banc 1982). The requisite showing to support plain error review is not demonstrated in this case. See Rule 84.13(c).
C. Did the application of section 408.040.2 violate Motorist's due process rights?
Motorist finally argues that the trial court erred in overruling his motion to amend the judgment because the trial court's application of section 408.040.2 to award Passenger prejudgment interest violated Motorist's due process rights. Motorist argues his due process rights were violated in that he was given neither a hearing nor an opportunity to contest Passenger's delay in filing his action against Motorist.
This Court noted in Lester that section 408.040.2 does not provide for a hearing or other means for contesting a plaintiff's delay in bringing his action. Lester , 850 S.W.2d at 873. The issue of the statute's failure to provide a hearing was not addressed in Lester , however, because the defendant in that case had not alleged delay. Id. Similarly, this Court need not address Motorist's constitutional arguments in that at no time before Motorist filed his motion to amend the judgment did he assert that section 408.040.2 was unconstitutional for its failure to provide him a hearing or other means to contest Passenger's delay in bringing this action.
"Constitutional issues are waived unless raised at the earliest possible opportunity consistent with orderly procedure." Hollis v. Blevins , 926 S.W.2d 683, 683 (Mo. banc 1996). The record reveals that Motorist did not timely raise this issue before the trial court entered judgment. As such, this argument was waived.
Motorist has failed to show that prejudgment interest should not have been awarded in this case. The trial court did not err in overruling Motorist's motion to amend the judgment
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