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Collins v. Hertenstein11/15/2005
Opinion Vote: AFFIRMED IN PART, AND REVERSED AND REMANDED IN PART.
Howard, P.J., and Smart, J., concur.
Opinion:
This case involves a disagreement between a mother and father over the apportionment of monies under section 537.095 from the successful prosecution of a wrongful death action that arose from the shooting death of their 13-year-old son by Kansas City police officers in November 1998.
There were three separate apportionment hearings in the case. The first occurred in July 2000, two months before trial, and resulted in the interlocutory approval and apportionment of a $100,000 settlement between the parents and one of the defendants in the underlying action. The second occurred in May and June 2003 after the compensatory damages awarded by a jury had been affirmed by this court in Collins v. Hertenstein, 90 S.W.3d 87 (Mo. App. W.D. 2002). The result of the second hearing was an interlocutory apportionment of the $510,000 compensatory damages award. The third hearing occurred in November and December 2003 and addressed a settlement that was reached regarding the aggravating circumstances damages (punitive damages), which this court had remanded for a new trial. Id. at 110. The result of the third hearing was a final judgment as to this $700,000 settlement that also incorporated by reference the two earlier distributions.
Mr. Timothy L. Wilson, Sr., decedent's father, appealing from the circuit court's judgment denying his Motion for New Trial on Apportionment, challenges the procedure by which the settlements and recovery were apportioned, the proportionality of the shares awarded, the awards of attorney's fees and expenses, and the circuit court's failure to award interest on the punitive damages. Ms. Valerie Collins, decedent's mother, challenges the circuit court's decision that allowed Mr. Wilson to re-litigate the issue of his alleged loss as a result of their son's death during the third apportionment hearing. Because we find that there was error (i) in the apportionment procedure, and (ii) regarding interest as to the punitive damages, we reverse in part and remand.
Factual and Procedural Background
The facts involved in the wrongful death litigation have been fully set forth and will not be repeated here. Collins, 90 S.W.3d at 92-94. To better understand the attorney's fee issue, we will note that Mr. Wilson and Ms. Collins, who have never married, together hired a lawyer under a contingency fee agreement immediately after the tragic event that took their son's life. This attorney (father's lawyer) contracted with another law firm within the next month to assist in the case. Before the first apportionment hearing occurred a year-and-a-half later, there had already been a falling out among the parties and counsel regarding trial strategy and disposition of the $100,000 settlement. Ms. Collins terminated her contract with father's lawyer one month before the first apportionment hearing and signed an agreement with the firm (law firm) brought in to assist. As part of the agreement between Ms. Collins and Mr. Wilson over the $100,000 settlement, it was understood that Mr. Wilson would withdraw from the underlying litigation before trial. While the underlying case was pending on appeal before this court in 2002, and well over a year before the second and third apportionment hearings occurred, father's lawyer was suspended from the practice of law. Mr. Wilson was represented by different attorneys during the second and third hearings.
Fees and/or expenses were distributed to the attorneys as a result of each of the three apportionment hearings. The sum of $80,000 was set aside for already incurred a
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