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Collins v. Hertenstein11/15/2005
ment was ten percent. From Ms. Collins's share, fifty percent, or about $297,000 was awarded to her law firm in attorney's fees, and she was required to pay eighty-five percent of the outstanding expenses, leaving her with about $292,700. Mr. Wilson's share was reduced by fifty percent for attorney's fees, which was split equally between his original lawyer and Ms. Collins's law firm, with each receiving $26,250. Mr. Wilson's share was further reduced by $840.61, which constituted fifteen percent of the outstanding expenses, leaving him with about $51,600. The awards were formalized in a written judgment dated December 17. The circuit court entered an order on the original defendants' Motion for Order Nunc Pro Tunc on February 26, 2004, to correct omissions in the court's November 2003 order approving the settlement.
In summary, of the $1,310,000 available for distribution, Ms. Collins received $555,822.09 net; Mr. Wilson received $60,659.39 net; the law firm received $569,835.57; father's lawyer received $36,250; and litigation expenses of $90,632.95 were paid.
In his first point, Mr. Wilson challenges his overall 8.7 percent share of the $1.3 million in settlements and recovery as grossly disproportionate, claiming that the circuit court violated section 537.095 by failing to (i) apportion the proceeds between the members of the primary class of statutory beneficiaries before awarding attorney's fees and expenses, (ii) enter a single final judgment that awarded the totality of legal fees and expenses, and (iii) consider the evidence presented during the third apportionment hearing in relation to the interlocutory decisions made after the first two hearings. Mr. Wilson also claims in his first point that section 537.095 requires one assessment of total damages and one apportionment followed by one award of attorney's fees and expenses, and that the court erred in making three attorney's fee awards based on three separate sets of evidence that, he claims, the court refused to consider cumulatively.
In his second point, Mr. Wilson focuses on the attorney's fees and expenses, repeating some of the facts that supported his first point, and concludes that he was required to pay a disproportionate share of the fees and expenses. He also challenges the circuit court's failure to differentiate between fees awarded to father's lawyer pursuant to Mr. Wilson's contract with him and Ms. Collins's contract with him, and pursuant to a quantum meruit theory for services to Ms. Collins after she terminated their attorney-client relationship. He further claims that he should not have paid any fees to Ms. Collins's law firm under section 537.095, because he was always represented by counsel. Regarding expenses, Mr. Wilson complains that the circuit court's failure to correctly apportion the first settlement resulted in his paying 36.23 percent of the total litigation expenses.
In his third point, Mr. Wilson claims circuit court error in failing to award interest on the $700,000 punitive damages settlement, because there was a delay in payment of the funds into the court's registry after defendants were ordered to do so. Mr. Wilson raises cumulative error in his fourth point, claiming that even if his individual points of error do not warrant a new trial, all identified errors, in the aggregate, do justify the grant of a new trial.
Ms. Collins replies only to Mr. Wilson's first point on appeal and challenges the circuit court's decision allowing Mr. Wilson to re-litigate the issue of his alleged loss during the third apportionment hearing and apportioning a different percentage to him than previously awarded. The defendants in the underlying litigation, Mr. William Hertenste
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