Allright Grand, Inc. v. Kansas City

• Decision Date: 07 October 1974
• Docket Number: No. KCD,KCD
• Parties: ALLRIGHT GRAND, INC., a Missouri corporation, et al., Plaintiffs-Appellants, v. KANSAS CITY, Missouri, a Missouri corporation, Defendant-Respondent, and Delbert E. Karmeier, Defendant, Mutual Auto Parks, Inc., et al., Intervenors. 26775.
• Court: Missouri Court of Appeals

Page 890

515 S.W.2d 890

ALLRIGHT GRAND, INC., a Missouri corporation, et al., Plaintiffs-Appellants, v. KANSAS CITY, Missouri, a Missouri corporation, Defendant-Respondent, and Delbert E. Karmeier, Defendant, Mutual Auto Parks, Inc., et al., Intervenors.

No. KCD 26775.

Missouri Court of Appeals, Kansas City District.

Oct. 7, 1974.

Motion for Rehearing and/or Transfer Denied Nov. 4, 1974.

Application Denied Dec. 16, 1974.

Koenigsdorf, Kaplan, Kraft, Fox & Kusnetzky, William J. Koenigsdorf, Kansas City, for appellant, Allright Grand, Inc.

Aaron A. Wilson, City Counselor, Rex G. Bostwick, Asst. City Counselor, Kansas City, for defendant-respondent.

Before PRITCHARD, P.J., and SWOFFORD and SOMERVILLE, JJ.

SOMERVILLE, Judge.

Plaintiff-appellant, hereinafter referred to as 'Allright', sought relief by way of declaratory judgment and injunction concerning enforcement of a regulatory 'parking station' ordinance (Second Committee Substitute for Ordinance 37740) adopted by defendant-respondent, hereinafter referred to as 'City'.

Three additional 'parking station' operators were permitted to intervene as plaintiffs in the action brought by Allright.

The trial court entered judgment declaring the 'parking station' ordinance 'valid and constitutional' and denying injunctive relief. The intervenors acquiesced in the judgment entered by the trial court. Allright, however, filed a motion for a new trial (which was overruled) and then took an appeal to the Supreme Court of Missouri. On May 22, 1973, the Supreme Court of Missouri transferred the case to this court by entry of the following order: 'Now at this day the Court doth order, upon its own motion, that the above entitled cause be, and the same is hereby transferred to the Missouri Court of Appeals, Kansas City District, in which jurisdiction is vested.'

On appeal Allright levels four charges of error, each of which is predicated on specific constitutional grounds, both federal and state. The City's initial response to the charges of error is that Allright failed to properly raise or preserve any constitutional grounds and therefore no justiciable issues are presented to this court on appeal.

The saturating response made by the City, which is inextricably related to Allright's appeal, requires only a perfunctory review of the pleadings, overall evidence, judgment, after-trial motion and rulings coursing through the litigation at the trial level of this court tried case. The resulting overview is controlled by well fixed principles of procedural law concerning the raising and preservation of constitutional issues for appellate determination in court tried cases.

In the landmark case of City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372, 376 (Mo.banc 1949), procedural requirements, regarding the raising and preservation of constitutional issues in general, were collected and laid down as follows:

'It has long been the law that the question must be raised at the first available opportunity: Woodling v. Westoport Hotel Operating Co., 331 Mo. 812, 819(2), 55 S.W.2d 477. The sections of the Constitution claimed to have been violated must be specified: Robinson v. Nick, 345 Mo. 305, 309(5); 134 S.W.2d 112, 115(11). The point must be presented in the motion for new trial, if any: Red. School Dist. v. West Alton School Dist., Mo.Sup., Div. 2, 159 S.W.2d 676, 677(2). And it must be adequately covered in the briefs: McGuire v. Hutchison, 356 Mo. 203(4), 201 S.W.2d 322, 327(8).' (Emphases added.)

Since 1949, almost without exception, cases involving the viability of constitutional issues for appellate determination have cited part or all of the procedural requirements collected and laid down in City of St. Louis v. Butler, supra.

Bearing the above in mind, a look at Allright's petition reveals that the 'sections of the Constitution claimed to have been violated' were not 'specified'. Construed most favorably to Allright, its petition, at best, alleges nothing more than vague constitutional innuendos. In fact, no constitutional reference whatsoever is made until the prayer of the petition is reached and the following is found: 'That Second Committee Substitute for Ordinance 37740 be declared contrary to the statutes and constitutions of the State of Missouri and United States and therefore be deemed null and void.' (Emphases added.)

The three additional 'parking station' operators, who were permitted to intervene as plaintiffs, properly pleaded specific constitutional violations, evidence was introduced and heard thereon, and the findings of fact and conclusions of law entered by the trial court met head on all constitutional issues properly raised in the case. As previously noted the intervenors acquiesced in the judgment entered by the trial court since they filed no after-trial motions and took no appeals. On the other hand, Allright filed a motion for a new trial, and, upon being overruled, took a lone appeal. Allright's motion for new trial has been scanned and rescanned, and one inevitable conclusion reached. Nowhere therein does Allright so much as hint, much less directly or specifically allege, that the judgment entered by the trial court was erroneous because the subject ordinance violated state and federal constitutional provisions. One of the procedural requirements collected and laid down in City of St. Louis v. Butler Co., supra, is that constitutional questions 'must be presented in the motion for new trial, if any.' (Emphases added.)

Assuming, arguendo, that Allright, prior to judgment at the trial level, raised the constitutional grounds now lodged on appeal, there is no escape from the fact that the presently alleged constitutional infirmities of the ordinance were not presented to the trial court for redetermination and reevaluation by Allright's motion for a new trial. This court is not unmindful of Rule 73.01(d), V.A.M.R. and cases thereunder holding that a motion for new trial is not a prerequisite for the crystallization of issues within the purview of 73.01(d) in court tried cases for the purpose of appellate review. Like many doctrinaire statements, its application is sometimes governed by special circumstances. For example, a special circumstance governing its application has been carved in court tried cases involving constitutional questions wherein a motion for a new trial has been filed. In court tried cases if constitutional questions are not raised and presented in a motion for a new trial, if filed, they are deemed waived for purposes of appellate review. State ex rel. Williamson v. County Court of Barry County, 363 S.W.2d...