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Collins v. Hertenstein9/3/2002
n a plaintiff seeks punitive damages. The statute says:
1. All actions tried before a jury involving punitive damages shall be conducted in a bifurcated trial before the same jury if requested by any party.
2. In the first stage of a bifurcated trial, in which the issue of punitive damages is submissible, the jury shall determine liability for compensatory damages, the amount of compensatory damages, including nominal damages, and the liability of a defendant for punitive damages. Evidence of defendant's financial condition shall not be admissible in the first stage of such trial unless admissible for a proper purpose other than the amount of punitive damages.
3. If during the first stage of a bifurcated trial the jury determines that a defendant is liable for punitive damages, that jury shall determine, in a second stage of trial, the amount of punitive damages to be awarded against such defendant. Evidence of such defendant's net worth shall be admissible during the second stage of such trial.
Section 520.263.3 does not say that evidence of a defendant's net worth is the only evidence admissible when considering punitive damages. Barnett, 963 S.W.2d at 655. Indeed, net worth need not even be shown to recover punitive damages. Mullen v. Dayringer, 705 S.W.2d 531, 536 (Mo. App. 1985). Net worth is just one factor the jury may consider in assessing punitive damages. Moore v. Missouri-Nebraska Express, Inc., 892 S.W.2d 696, 714 (Mo. App. 1994). "When determining the amount of punitive damages to be awarded, the worth or financial condition of the tortfeasor is a relevant consideration." Green v. Miller, 851 S.W.2d 553, 555 (Mo. App. 1993); Bennett, 896 S.W.2d at 468. Any evidence of a defendant's financial status--not just his net worth--is relevant and admissible. Barnett, 963 S.W.2d at 655. Evidence of the officers' employment and income was relevant and should have been admitted during the second stage of the trial, particularly in light of the officers' testimony concerning negative net worth. The circuit court's refusal of Collins' evidence of the officers' employment and income improperly limited the jury's consideration of the financial condition of the officers, and, therefore, prejudiced Collins. We, therefore, remand to the circuit court for a new trial on the issue of damages for aggravating circumstances. See Burnett v. Griffith, 769 S.W.2d 780, 91 (Mo. banc 1989).
The Officers' Appeal
The officers first contend that the circuit court abused its discretion when it would not allow them to introduce evidence of the drugs and drug paraphernalia found on Wilson at the shooting scene. They contend that the evidence was relevant to why Wilson was evading the police and to the seriousness of Wilson's threat to the officers. The officers, however, did not preserve the issue for our review. They do not direct this court to where in the record they attempted to introduce the evidence of the drugs and drug paraphernalia. They merely assert that " ach and every time [they] attempted to introduce evidence of drugs and drug paraphernalia in the possession of Wilson, they were denied the opportunity to present that evidence." They do not provide citations to the record where the circuit court made its ruling, and, therefore, have not established that they preserved their challenge for appeal. "'It is not the function of the appellate court to serve as advocate for any party to an appeal.'" Shochet v. Allen, 987 S.W.2d 516, 518 (Mo. App. 1999) (quoting Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978)). "As such, we have no duty to search the transcript or record to discover the facts which substantiate a point on appeal." Wilson v. Carnahan,
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