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Cotter v. Miller9/4/2001
Appeal From: Circuit Court of Jackson County, Hon. Jon Reginald Gray
Opinion Vote: APPEAL DISMISSED AND RETURNED FOR RETRIAL ON PUNITIVE DAMAGES.
Smith and Howard, JJ., concur.
Opinion:
This is an appeal from a wrongful death action arising out an alcohol related automobile accident that occurred on August 10, 1997, in Kansas City. Appellants John and Renee Cotter are the parents of Josh Cotter, who died as a result of the accident. Respondent Ronald R. Miller, was the driver of the car; Josh Cotter was his passenger. The jury returned a verdict finding Defendant Miller 80% at fault and the plaintiffs' decedent 20% at fault. Subsequently, the trial court granted a motion for new trial or in the alternative for remittitur. The court ruled that a new trial would be granted unless plaintiffs agreed to a reduction of the punitive damages from $2,000,000 to $160,000. The trial court gave appellants fifteen days to decide whether to accept the reduced punitive award.
Plaintiffs Cotters filed no response to the trial court's ruling and instead filed a notice of appeal. Finding that the notice of appeal was not timely filed, we dismiss the appeal for lack of jurisdiction. The case will be returned to the trial court for a new trial on the issue of punitive damages.
Factual Background
On August 9, 1997, Josh Cotter (decedent) attended a wedding reception and visited a bar and grill with Respondent Miller and two others. When the bar closed, Miller, who was intoxicated, drove. Josh Cotter was a passenger in the car. Heading east on 119th Street, Miller drove in excess of 70 miles per hour where the posted speed limit was 25 miles per hour. After clipping another vehicle in the intersection of State Line Road and 119th Street, Miller lost control of his vehicle and hit a tree. The speed of the vehicle at impact was approximately 76 miles per hour. Josh Cotter was ejected from the rear of the vehicle and was killed.
In December 1999, the wrongful death action was tried before a jury. During closing argument in the punitive damages portion of the case, an issue arose as to the propriety of the argument of plaintiffs' attorney as to Miller's driving record. The trial court indicated that the case was "infected," but the court declined to grant a mistrial.
The jury returned its verdicts of $20,000 actual damages and $2,000,000 in punitive damages. A summary of the subsequent procedural history is as follows:
December 27, 1999: The trial court enters its Judgment
January 7, 2000: Motion for New Trial on the Issue of the Amount of Punitive Damages or Remitter filed by Miller
March 17, 2000: Order granting Motion for Remittitur, or in the Alternative for a New Trial on the Issue of Punitive Damages
April 19, 2000 Notice of Appeal filed.
The Cotters raise two points on appeal, arguing that the trial court erred in its order concerning the punitive damage award. The Cotters contend that the court erred by applying comparative fault to the punitive damages.
Second, they contend the court erred in concluding that counsel's argument improperly caused passion or prejudice. At the request of this court, the parties also addressed the issue of the timeliness of the notice of appeal in their briefs.
Timeliness of Appeal
The first duty of an appellate court is to determine its own jurisdiction, even if the court is required to raise the issue sua sponte if necessary. See Volume Services, Inc. v. C.F. Murphy & Assocs. Inc., 656 S.W.2d 785, 786 (Mo. App. 1983). "The timely filing of a notice of appeal
Page 1 2 3 Missouri Personal Injury Attorneys
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