Rodney Glass and Diane Glass, Plaintiff/Respondent v. First National Bank of St. Louis, N.A., Defendant/Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Rodney Glass and Diane Glass, Plaintiff/Respondent v. First National Bank of St. Louis, N.A., Defendant/Appellant. Case Number: ED84118 Handdown Date: 11/02/2004 Appeal From: Circuit Court of St. Louis County, Hon. Larry L. Kendrick Counsel for Appellant: Donald Okeefe, Jr. Counsel for Respondent: Bernard A. Reinert and Jennie Bartlett Opinion Summary: First National Bank of St. Louis, N.A., appeals from the court's grant of summary judgment in favor of Rodney and Diane Glass in their action for 10 percent of the face amount of their deed of trust with the bank as provided for under section 443.130, RSMo 2000. CASE TRANSFERRED TO THE SUPREME COURT OF MISSOURI. Division Three holds: The Supreme Court of Missouri has exclusive jurisdiction to pass on the bank's constitutional challenges to sections 443.130 and 443.060. Citation: Opinion Author: William H. Crandall, Jr., Presiding Judge Opinion Vote: TRANSFERRED TO THE SUPREME COURT OF MISSOURI. Dowd, Jr., and Cohen, J.J., concur. Opinion: Defendant, First National Bank of St. Louis, N.A., appeals from the trial court's grant of summary judgment in favor of plaintiffs, Rodney and Diane Glass, in their action for ten percent of the face amount of their deed of trust with Bank as provided for under section 443.130 RSMo 2000. We transfer the case to the Supreme Court of Missouri. In December 1999, plaintiffs executed a deed of trust in favor of Bank in the amount of $525,000.00. The deed of

trust secured a mortgage loan extended to plaintiffs by Bank for the purchase of real property located in Des Peres, Missouri. In June 2001, plaintiffs paid off the loan and deed of trust. In July 2001, Bank sent plaintiffs documentation acknowledging that the loan was paid in full. In August 2001, plaintiffs sent Bank a demand letter requesting a deed of release for the mortgage loan secured by the deed of trust on their home and enclosed a check of $24.00 to cover the costs associated with recording of the deed of release. Bank did not give plaintiffs a deed of release until November 2001. Plaintiffs then brought the present action, seeking among other things the forfeiture amount of ten percent of the value of their deed of trust and other damages as provided for in section 443.130 for Bank's violating the statute by not providing them with the deed of release within 15 business days of their request. Plaintiffs filed a motion for partial summary judgment for the amounts due under section 443.130. The trial court granted partial summary judgment in favor of plaintiffs on their claim in the amount of $52,500.00 and granted summary judgment in favor of Bank on plaintiffs' remaining claims. Bank appeals from the trial court's grant of partial summary judgment in favor of plaintiffs. The threshold issue is the constitutionality of sections 443.130 and 443.060. Bank raised the constitutionality of these statutes both in its motion to transfer this case to the Supreme Court of Missouri and in its fifth point on appeal. The Supreme Court of Missouri is vested with exclusive jurisdiction of all cases regarding the validity of a statute. Mo. Const. Art.V, Sec. 3. The mere assertion, however, that a statute is unconstitutional does not deprive this court of jurisdiction. Wright v. Missouri Dept. of Social Services, 25 S.W.3d 525, 528 (Mo. App. W.D. 2000). The first question is whether the constitutional challenge is preserved for our review. If the constitutional challenge is not preserved properly for appellate review, jurisdiction remains with this court. State v. Bowens, 964 S.W.2d 232, 236 (Mo. App. E.D. 1998). A constitutional challenge is waived if it is not raised at the earliest opportunity. Id. In this case, Bank raised the constitutional issues as affirmative defenses in its Second Amended Answer and again in its Supplemental Response to Plaintiffs' Motion for Summary Judgment. Bank thus properly preserved its constitutional claims. When the trial court granted partial summary judgment in plaintiffs' favor under section 443.130, it implicitly held that the statute was constitutional. Champlin Petroleum Co. v. Brashears, 592 S.W.2d 545, 547 (Mo. App. 1979) (in sustaining motion to dismiss, court implicitly ruled that the challenged statute was constitutional). The second question is whether Bank's constitutional challenges to sections 443.130 and 443.060 are real and substantial. To vest jurisdiction in the supreme court, the constitutional challenge must be real and substantial. Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 51 (Mo. banc 1999). If the constitutional challenge is merely colorable, this court retains jurisdiction. Id. Section 443.060.1 provides in relevant part, "If any mortgagee . . . receive full satisfaction of any security instrument,

he shall, at the request and cost of the person making the same, deliver to such person a sufficient deed of release of the security instrument . . . ." Section 443.130 reads in pertinent part: If any such person, thus receiving satisfaction, does not, within fifteen business days after the request and tender of costs, deliver to the person making satisfaction a sufficient deed of release, such person shall forfeit to the party aggrieved ten percent upon the amount of the security instrument, absolutely, and any other damages such person may be able to prove such person has sustained . . . . Bank's first challenge to the statutes is that they are unconstitutional under the Due Process Clause of the Fourteenth Amendment of the United States Constitution and under Article I, section 10 of the Missouri Constitution, for the reason that the terms "party aggrieved," "person making satisfaction," and "sufficient deed of release" are vague. Bank's second ground is that both statutes violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and Article I, section 2 of the Missouri Constitution, because they subject a class of persons to the ten percent penalty to which other persons similarly situated are not subjected and without reference to the damages actually inflicted. Bank's third basis is that section 443.130 is unconstitutional under the Takings Clause of the Fifth Amendment of the United States Constitution and under Article I, section 28 of the Missouri Constitution because the ten percent penalty results in a taking of private property without just compensation. Finally, Bank contends that the ten percent penalty authorized by section 443.130 is an excessive fine under the Eighth Am endment to the United States Constitution and under Article I, section 21 of the Missouri Constitution. These challenges to the constitutionality of sections 443.130 and 443.060 are real and substantial, and not merely colorable. The Supreme Court of Missouri has exclusive jurisdiction to pass on the constitutional questions raised by Bank. Thus, we lack jurisdiction. Bank posits that because its first four points do not challenge the constitutionality of the statute, this court has jurisdiction to address those points on appeal and then transfer the case to the supreme court for consideration of its fifth point which does challenge the constitutionality of the statute. We disagree. The first four points address the propriety of the trial court's grant of summary judgment. We cannot consider the merits of Bank's claims of error raised in these points. Any opinion expressed by this court regarding the first four points on appeal would be advisory only. Appellate courts do not render advisory opinions. Reeves v. Snider, 115 S.W.3d 375, 380 (Mo. App. S.D. 2003). Because this court lacks jurisdiction, the case is transferred to the Supreme Court of Missouri.

Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.