Opinion
No. ED 87304
June 27, 2006
Appeal from the Circuit Court of the City of St. Louis, Honorable Steven R. Ohmer.
James E. Parrot, St. Louis, MO, for appellant.
Thomas J. Noonan, St. Louis, MO, for respondent.
Before Kathianne Knaup Crane, P.J., Lawrence E. Mooney, J., Booker T. Shaw, J.
The plaintiff, Elois Snodgras, appeals the judgment dismissing her petition against the defendant, Martin Bayley, Inc., d/b/a Huck's Convenience Food Store, for failure to state a claim upon which relief may be granted and holding the dram-shop law, section 537.053 RSMo. (Supp. 2005), constitutional. The plaintiff sought damages from the defendant for her minor son's personal injuries and wrongful death pursuant to the dram-shop law; the plaintiff also sought a declaratory judgment that the dram-shop law, if construed to deny recovery against a seller of packaged liquor, is unconstitutional. We do not reach the merits of the plaintiff's appeal. The plaintiff challenges the validity of a Missouri statute, and therefore the Supreme Court has exclusive appellate jurisdiction. Mo. Const. art. V, section 3. Accordingly, we transfer the entire case to the Missouri Supreme Court.
All statutory references are to RSMo. (Supp. 2005).
The plaintiff's minor son, Terry Keown, died in a one-car motor-vehicle accident after drinking a twelve-pack of beer he purchased from a Huck's Convenience Food Store, which the defendant owned and operated in St. Peters, Missouri. The plaintiff alleges that the defendant's employee failed to check Terry's identification for proof of his age before selling him the beer. The plaintiff claims Terry became intoxicated after drinking the beer illegally sold to him, lost control of his car due to his intoxication, and died when his car left the road and struck a tree.
The plaintiff, for herself and her deceased minor son, sued the defendant for negligent sale of liquor to a minor and negligent retention of an incompetent employee. The plaintiff sought actual and punitive damages under the dram-shop law for Terry's personal injuries and wrongful death. If the court were to find she had no dram-shop liability claim, the plaintiff also sought the court's declaration that the dram-shop law is unconstitutional as violative of Missouri Constitution Article I, section 14, the Open Courts clause, and Article I, section 2, the Equal Protection clause by virtue of the statute's attempt to allow recovery against one who illegally sells alcohol by the drink to a minor for consumption on the seller's premises, but to deny recovery against one who illegally sells packaged liquor to a minor. The defendant moved to dismiss the plaintiff's petition for failure to state a claim. The circuit court rejected the constitutional claims, granted the defendant's motion, and dismissed the petition, holding that the dram-shop law provides no cause of action against a seller of packaged liquor for injuries inflicted by an intoxicated person.
Section 537.053 provides in relevant part:
1. Since the repeal of the Missouri Dram Shop Act in 1934 (Laws of 1933-34, extra session, page 77), it has been and continues to be the policy of this state to follow the common law of England, as declared in section 1.010 RSMo, to prohibit dram shop liability and to follow the common law rule that furnishing alcoholic beverages is not the proximate cause of injuries inflicted by intoxicated persons.
2. Notwithstanding subsection 1 of this section, a cause of action may be brought by or on behalf of any person who has suffered personal injury or death against any person licensed to sell intoxicating liquor by the drink for consumption on the premises when it is proven by clear and convincing evidence that the seller knew or should have known that intoxicating liquor was served to a person under the age of twenty-one years or knowingly served intoxicating liquor to a visibly intoxicated person.
Article I, section 14 of the Missouri Constitution provides:
That the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice shall be administered without sale, denial or delay.
Article I, section 2 of the Missouri Constitution provides:
That all constitutional government is intended to promote the general welfare of the people; that all persons have a natural right to life, liberty, the pursuit of happiness and the enjoyment of the gains of their own industry; that all persons are created equal and are entitled to equal rights and opportunity under the law; that to give security to these things is the principal office of government, and that when government does not confer this security, it fails in its chief design.
In three points on appeal, the plaintiff contends that the court erred in dismissing her petition because the dram-shop law violates the Open Courts clause and the Equal Protection clause of the Missouri Constitution and that the statute can be reasonably construed to permit a civil claim against one who sells packaged alcohol to a minor. The defendant counters that the dram-shop law violates neither the Open Courts clause nor the Equal Protection clause of the Missouri Constitution. The defendant also contends that the plaintiff failed to preserve for appeal her request that the Court rewrite the dram-shop law to allow her claim, and alternatively, the statute need not be rewritten as it is already unambiguous, gives effect to the legislature's intent, and does not lead to an absurd or illogical result.
This Court has the duty to examine our jurisdiction in every case. Sharp v. Curators of the University of Missouri, 138 S.W.3d 735, 737 (Mo.App.E.D. 2003). In examining our jurisdiction, we look first to the jurisdiction granted by the Missouri Constitution. Article V, section 3 of the Missouri Constitution provides that the Court of Appeals has general appellate jurisdiction in all cases except those within the exclusive jurisdiction of the Supreme Court. Among the cases within the Supreme Court's exclusive appellate jurisdiction are those involving the validity of a Missouri statute. Mo. Const. art. V, section 3.
In her first point on appeal, the plaintiff challenges the validity of Missouri's dram-shop law. The plaintiff contends that the statute violates the Open Courts clause of the Missouri Constitution in that it is arbitrary, unreasonable, and irrational to deny a wrongful-death cause of action arising from the illegal sale of packaged alcohol to a minor, while allowing a wrongful-death cause of action arising from the illegal sale of alcohol by the drink to a minor for consumption on the premises. She also advances other arguments: that the defendant's illegal sale of alcohol provides a basis for civil liability under the negligence per se doctrine, that Missouri has recognized civil claims for dram-shop injuries against illegal sellers of packaged alcohol, and that Missouri cases to the contrary are distinguishable. In her second point on appeal, the plaintiff contends that the statute violates the Equal Protection clause of the Missouri Constitution. She claims the statute is arbitrary, unreasonable, without a rational basis, and impermissibly overbroad in establishing liability of one who illegally sells alcohol by the drink to a minor for consumption on the seller's premises, yet shielding from liability one who illegally sells packaged alcohol to a minor.
In her third point on appeal, the plaintiff argues that the dram-shop law can be construed to permit a civil claim against a seller of packaged alcohol to a minor in order to make the statute reasonable and non-arbitrary and to fulfill the purposes of the alcohol-control laws. However, we need not reach the plaintiff's third point because her first two points require that we transfer the entire appeal to the Supreme Court.
On its face, the plaintiff's challenges to the constitutional validity of Missouri's dram-shop law fall within the Supreme Court's exclusive appellate jurisdiction. The mere assertion, however, that a statute is unconstitutional does not, in itself, deprive this Court of jurisdiction. Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 51 (Mo. banc 1999); Sharp, 138 S.W.3d at 737. This Court retains jurisdiction if the plaintiff's claim regarding the dram-shop law's constitutionality has not been preserved for appellate review or if her claim is not real and substantial. Id. at 738.
To preserve a constitutional issue for appellate review, the appellant must have raised the issue at the earliest opportunity and preserved it at each step of the judicial process. Heidbrink v. Swope, 170 S.W.3d 13, 15-16 (Mo.App.E.D. 2005); Sharp, 138 S.W.3d at 738. Furthermore, to preserve for appellate review the issue of a statute's constitutionality, the trial court must have ruled on the issue, and the point raised on appeal must be based on the same theory advanced in the lower court. Id.
The record indicates the plaintiff properly raised and preserved for appellate review the issue of the validity of the dram-shop law. The plaintiff's petition challenged the validity of the dram-shop law based on the Missouri Constitution's Open Courts clause and Equal Protection clause, the same points she now asserts on appeal. The plaintiff also briefed and argued the constitutional issues in opposition to the defendant's motion to dismiss. The circuit court ruled on the constitutional issues when it specifically rejected the plaintiff's arguments and granted the defendant's motion to dismiss.
Next, we address whether the plaintiff's claim is real and substantial, such that the Supreme Court will consider the appeal. The Supreme Court will consider an appeal only where the claim presented is real and substantial, not merely colorable. Rodriguez, 996 S.W.2d at 51. If the claim is merely colorable, then jurisdiction remains with the Court of Appeals. In re Estate of Potashnick, 841 S.W.2d 714, 718 (Mo.App.E.D. 1992). "In the context of the 'not merely colorable' test, the word 'colorable' means feigned, fictitious or counterfeit, rather than plausible." Rodriguez, 996 S.W.2d at 52.
A claim is substantial when, upon preliminary inquiry, the contention discloses a contested matter of right, involving some fair doubt and reasonable room for controversy; but, if such preliminary inquiry discloses the contention is so obviously unsubstantial and insufficient, either in fact or law, as to be plainly without merit and a mere pretense, the claim may be deemed merely colorable.
Sharp, 138 S.W.3d at 738, quoting Potashnick, 841 S.W.2d at 718. "One clear indication that a constitutional challenge is real and substantial and made in good faith is that the challenge is one of first impression with this Court." Id., quoting Rodriguez, 996 S.W.2d at 52.
Here, no Missouri court has decided the plaintiff's contention that the dram-shop law violates the Open Courts clause and the Equal Protection clause of Missouri's Constitution in prohibiting a cause of action against a seller of packaged liquor to a minor. Further, we find the plaintiff's contentions involve "some fair doubt and reasonable room for controversy." We conclude the plaintiff's claim appears to be real and substantial, and not merely colorable.
This case challenges the validity of a Missouri statute. The issue has been properly raised and preserved for appellate review. And the plaintiff's claim appears to be real and substantial. Consequently, this case falls within the exclusive appellate jurisdiction of the Missouri Supreme Court. Where the Missouri Supreme Court has exclusive appellate jurisdiction over one of the issues in a case, its jurisdiction extends to all of the issues. State ex rel. Union Elec. Co. v. Public Service Comm'n, 687 S.W.2d 162, 165 (Mo. banc 1985); Sharp, 138 S.W.3d at 739; Potashnick, 841 S.W.2d at 718. Thus, this Court lacks jurisdiction, and we are without the power to reach any issue in the case. The case is ordered transferred to the Supreme Court of Missouri pursuant to Missouri Constitution, Article V, section 11.
In response to our order to brief the jurisdictional issue, the plaintiff conceded that the case must be transferred to the Supreme Court, while the defendant only acknowledged that the appeal "may need to be transferred."
KATHIANNE KNAUP CRANE, P.J., and BOOKER T. SHAW, J., concur.