Rodney Glass and Diane Glass, Respondents v. First National Bank of St. Louis, N.A., Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion

Case Style: Rodney Glass and Diane Glass, Respondents v. First National Bank of St. Louis, N.A., Appellant. Case Number: SC86408 Handdown Date: 04/05/2005 Appeal From: Circuit Court of St. Louis County, Hon. Larry L. Kendrick Counsel for Appellant: Donald L. O'Keefe and Ann E. Ahrens Counsel for Respondent: Jennie I. Bartlett, John W. Rourke and Bernard A. Reinert Opinion Summary: Rodney and Diane Glass sued First National Bank of St. Louis, N.A., for 10 percent of the face value of their deed of trust under section 443.130, RSMo. The court granted summary judgment in favor of the Glasses. First National appeals. CAUSE RETRANSFERRED. Court en banc holds: First National's arguments that the statute is vague, violates equal protection, constitutes a taking of private property without just compensation and is vague are not real and substantial. Accordingly, this Court does not have jurisdiction over this case. Jurisdiction is proper in the court of appeals. Citation: Opinion Author: Richard B. Teitelman, Judge Opinion Vote: CAUSE RETRANSFERRED. White, C.J., Wolff, Stith and Price, JJ., and Brown, Sp.J., concur. Limbaugh and Russell, JJ., not participating. Opinion: The circuit court granted summary judgment in favor of Rodney and Diane Glass in their action under section 443.130 for ten percent of the face value of their deed of trust with First National Band of St. Louis, N.A. On appeal, First National

argues both that the Glass' demand letter was insufficient and that section 443.130 is unconstitutional. First National's constitutional arguments are that section 443.130 is vague, violates equal protection, constitutes a taking of private property without just compensation and is an excessive fine. Pursuant to article V, section 3 of the Missouri Constitution, this Court has exclusive jurisdiction in all cases involving the validity of a statute. However, a mere assertion that a statute is unconstitutional does not deprive the court of appeals of jurisdiction. Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 51 (Mo. banc 1999); Wright v. Mo. Dept. of Social Services, 25 S.W.3d 525, 528 (Mo. App. 2000). The constitutional issue must be real and substantial, not merely colorable. Id. The constitutional arguments raised by First National are not real and substantial. Accordingly, this Court does not have exclusive appellate jurisdictions over this case. This appeal is, therefore, transferred to the Eastern District Court of Appeals pursuant to article V, section 11 of the Missouri Constitution, which provides that: In all proceedings reviewable on appeal by the supreme court or the court of appeals, appeals shall go directly to the court or district having jurisdiction, but want of jurisdiction shall not be ground for dismissal, and the proceeding shall be transferred to the appellate court having jurisdiction. An original action filed in a court lacking jurisdiction or venue shall be transferred to the appropriate court.

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