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Collins v. Hertenstein11/15/2005
nd future litigation expenses out of the first $100,000 settlement. From what remained, Ms. Collins received $12,000, and Mr. Wilson received $8,000 in accordance with a 60/40 agreement they had entered. Ms. Collins's law firm waived its fees with respect to the distribution of this settlement, so that there would be sufficient funds to bring the case to trial. Mr. Wilson paid his lawyer $2,000, but this was not part of the settlement agreement or the court's apportionment. During the first hearing, Ms. Collins was present to testify as to the nature of her relationship with the decedent as well as the nature of Mr. Wilson's relationship with the decedent. Mr. Wilson, who was incarcerated at the time, did not appear, but his lawyer participated and made no objection to the distribution approved by the court. Nevertheless, Mr. Wilson argues that neither he nor his lawyer waived attorney's fees from this interlocutory approval of the $100,000 settlement.
Mr. Wilson, represented by new counsel, was present for and testified during the second apportionment hearing to distribute the compensatory damages recovery. Mr. Wilson's original lawyer also testified and was represented by counsel. There was vague, conflicting and confusing testimony about when or for how long Mr. Wilson was incarcerated over the course of his son's brief life. But the circuit court recognized that he had spent minimal time with his son and had provided him with minimal necessities and money. The court stated that it did not believe the testimony and evidence showed any kind of emotional bond between father and son. The circuit court did not first apportion the award to Mr. Wilson and Ms. Collins, but divided what was left after setting aside an amount for attorney's fees and expenses. The court awarded nearly $253,000 to Ms. Collins and $1,000 to Mr. Wilson. Attorney's fees of $5,900 were awarded to Mr. Wilson's lawyer who was then under suspension, about $246,000 in attorney's fees was awarded to Ms. Collins's law firm, and about $5,000 was awarded to the law firm for outstanding expenses. The court's intention was to provide father's lawyer with a total of $10,000 in fees, in light of testimony regarding his relatively limited participation in trial preparation and the fact that he had not participated in the trial due to Mr. Wilson no longer being a named plaintiff when it began. There had been testimony that father's lawyer had received $2,100 in fees in addition to the $2,000 Mr. Wilson paid him after the first apportionment hearing. The $2,100 was apparently part of a $5,000 payment for expenses that Ms. Collins's law firm advanced before entering the contract to assist with the litigation. Mr. Wilson did attempt to appeal from the circuit court's interlocutory order making this apportionment award, but his appeal was dismissed for lack of a final, appealable judgment.
On November 21, 2003, the circuit court approved the punitive damages settlement with the defendants in the underlying action, which settlement was paid into a court registry on or about December 15 while the third apportionment hearing was underway. During that hearing, Mr. Wilson was represented by his third attorney. He was allowed, over Ms. Collins's objection, to again present his and others' testimony about the nature of his relationship with the decedent. Mr. Wilson's original lawyer also testified and was represented by counsel. Of the $700,000 available for apportionment, the circuit court awarded Ms. Collins eighty-five percent and Mr. Wilson fifteen percent. Making a rough calculation from the bench, the circuit court estimated that the ultimate percentage awarded to Mr. Wilson from the aggregate of the settlements and recovery available for apportion
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