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Daniel v. Indiana Mills & Manufacturing3/19/2003
appellate review. Boatmen's Bank v. Foster, 878 S.W.2d 506, 508 (Mo.App. 1994). To undertake to review an issue not having been decided by the trial court would be akin to rendering an advisory opinion, something appellate courts are wont not to do. Trimble v. Pracna, 51 S.W.3d 481, 503 (Mo.App. 2001); Jantz v. Brewer, 30 S.W.3d 915, 920 (Mo.App. 2000).
The second affront to appellate procedure is defendant's undertaking to rely on a letter from the trial judge to the attorneys of record in this case regarding the subject of allocation of settlement proceeds. There appears in a supplemental legal file provided by defendant a copy of a letter dated September 5, 2001, that speaks of issues related to allocation of settlement proceeds. The letter is not an order or judgment. It does not reflect a date-file stamp denoting it as a part of the case file. The trial court docket sheet entries that are included in the legal file do not note the filing of the letter. The letter sought to be thrust upon this court as a basis for appellate review is dehors the record. "Matters dehors the record are not considered in the course of appellate review." Brawley & Flowers, Inc. v. Gunter, 934 S.W.2d 557, 561 (Mo.App. 1996). See also State v. Hightower, 951 S.W.2d 712, 717 (Mo.App. 1997); Cox v. Crider, 721 S.W.2d 220, 225 (Mo.App. 1986); Browning-Ferris Industries of Kansas City, Inc. v. Dance, 671 S.W.2d 801, 807 (Mo.App. 1984).
Defendant did include in its post-trial motion a request for the trial court "to amend and correct the . . . amended judgment " by setting off and reducing "the amount of any jury verdict by the full amount of consideration paid in settlement to plaintiffs ($1,000,000.00) or an amount significantly greater than the $550,000.00 allocation." This court's consideration of defendant's complaint that Mrs. Daniel's settlement should have been allocated to setoff or reduce the verdict rendered for plaintiff is limited to the trial court's failure to grant the request included in the post-trial motion.
Defendant's complaint with respect to the trial court's failure to allocate part or all of Mrs. Daniel's settlement against the verdict is based on the assertion that the amount paid to Mrs. Daniel for her claim was not made in good faith. There is no record of any proceeding before the trial court from which this court could find a demonstration of lack of good faith in arriving at the amount of settlement of Mrs. Daniel's claim. The obligation to make a record in the trial court concerning issues a party may wish to present on appeal is on that party. State v. Naucke, 829 S.W.2d 445, 460 (Mo. banc), cert. denied, 506 U.S. 960 (1992); Chilton v. Gorden , 952 S.W.2d 773, 777 (Mo.App. 1997). Point V is denied. The judgment is affirmed.
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