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Collins v. Hertenstein11/15/2005
uring the second apportionment hearing, the expenses, although set aside before the proceeds were apportioned between Mr. Wilson and Ms. Collins, effectively came out of Ms. Collins's share because the court had determined that Mr. Wilson was only going to receive $1,000, and approximately $5,000 in expenses remained to be paid then. The only source to pay the expenses was Ms. Collins's share. During the third apportionment hearing, the circuit court split the expenses between the parties in proportion to the share each was awarded from the punitive damages settlement. Under section 537.095.4(2), this was incorrect. Mr. Wilson should not have been ordered to pay $840.61 in expenses. These expenses are to be deducted by Ms. Collins from the total recovery without thereby affecting Mr. Wilson's award, and the circuit court is so directed on remand.
Re-litigating Father's Loss
Before we consider Mr. Wilson's claim that a fourth apportionment hearing should be conducted, we will address Ms. Collins's claim that the circuit court erred in allowing Mr. Wilson to re-litigate the issue of his loss during the third apportionment hearing. Ms. Collins relies on the res judicata/collateral estoppel doctrines to support her claim. Res judicata bars the reassertion of a cause of action previously adjudicated in a proceeding between the same parties or those in privity with them. Jordan v. Kansas City, 929 S.W.2d 882, 885 (Mo. App. W.D. 1996). Before the doctrine can apply, "a final judgment on the merits must have been rendered in the underlying action." Id. Similarly, collateral estoppel, or issue preclusion, bars a party from re-litigating any factual or legal issues that were decided by and necessary to a prior judgment. Galaxy Steel & Tube, Inc. v. Douglass Coal & Wrecking, Inc., 928 S.W.2d 420, 422 (Mo. App. S.D. 1996). Thus, a final decision on the merits is a prerequisite to the application of this doctrine as well.
The circuit court did not render a final decision when the proceeds of the $100,000 settlement and the $510,000 compensatory damages award were apportioned. Each decision was interlocutory and, as to Mr. Wilson and Ms. Collins and their attorneys, subject to a final accounting and apportionment under section 537.095. Thus, it was within the circuit court's discretion whether to admit additional evidence as to Mr. Wilson's purported loss. Clark v. Mo. & N. Ark. R.R. Co., 157 S.W.3d 665, 673 (Mo. App. W.D. 2004). Because that issue is not before us, we will deny Ms. Collins's cross appeal.
Regarding Mr. Wilson's request for a fourth apportionment hearing on remand, we have already alluded to the rather lengthy apportionment hearing transcripts in this appeal. As a simple matter of judicial economy, we see absolutely no need for any further evidentiary hearings. In addition, we have already determined on the basis of the hearings conducted to date that the circuit court did not abuse its discretion in apportioning most of the proceeds to Ms. Collins. Because the court's error pertains to the application of law, rather than to any evidentiary issues, it is only the apportionment that must be corrected on remand, and the circuit court can re-calculate that apportionment without considering any additional evidence. Section 512.160.3 (in disposing of appeal, "no new trial shall be ordered as to issues in which no error appears."); see also Gardner v. Mo. State Highway Patrol Superintendent, 901 S.W.2d 107, 117 (Mo. App. W.D. 1995) (purpose of remand is to rectify error that occurred in lower tribunal).
Punitive Damages Settlement Interest
Mr. Wilson claims in his third point relied on that section 408.040 requires the payment of int
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