Coon v. American Compressed Steel, Inc.

• Decision Date: 07 November 2006
• Docket Number: No. WD 65185.,WD 65185.
• Parties: Deric Lee COON, By and Through His Grandmother and Next Friend, Shirley Coon, Respondent, v. AMERICAN COMPRESSED STEEL, INC. and William C. Copeland, Appellants.
• Court: Missouri Court of Appeals

207 S.W.3d 629

Deric Lee COON, By and Through His Grandmother and Next Friend, Shirley Coon, Respondent, v. AMERICAN COMPRESSED STEEL, INC. and William C. Copeland, Appellants.

No. WD 65185.

Missouri Court of Appeals, Western District.

November 7, 2006.

Motion for Rehearing and/or Transfer to Supreme Court Denied December 19, 2006.

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Douglas N. Ghertner, Kansas City, MO, for appellant.

Anita P. Robb, Kansas City, MO, for respondent.

Before HOWARD, C.J., ELLIS and HARDWICK, JJ.

LISA WHITE HARDWICK, Judge.

American Compressed Steel, Inc. (ACS) and William Copeland appeal from a jury verdict finding them liable for the wrongful death of Patricia Walker (Walker). The jury awarded Walker's representatives $2,000,000 in compensatory damages against both defendants and $1,000,000 in damages against ACS for aggravated circumstances. For reasons explained herein, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

On August 20, 2001, Walker was driving along I-70 in Independence when she was struck and killed by a thirty-seven pound steel plate that flew through her windshield. It was later determined that the steel plate had fallen out of a truck carrying a load of scrap metal. The truck was owned by ACS and driven by its employee, William Copeland. Copeland was charged and pled guilty to the misdemeanor offense of failure to sufficiently secure his transported load, a violation of Section 307.010.¹

Walker's father, Stephen Walker, filed a wrongful death claim against ACS and Copeland in the Jackson County Circuit Court on November 13, 2001. While that matter was pending, seven-year old Deric Lee Coon (Deric),² through his next friend and father, Christopher Coon (Christopher), filed a petition for equitable adoption in the Family Court Division of the Jackson County Circuit Court. The petition alleged that the decedent, Walker, had lived with Christopher and Deric for four years, and that Walker died before she could carry out her plans to marry Christopher and adopt Deric as her son. The petition sought to have Deric posthumously adopted by Walker so he could participate in the wrongful death case.

At a hearing on the petition, Deric presented evidence that his father and three living grandparents had consented to the adoption. Christopher and his parents, Carlton and Shirley Coon, testified Walker had expressed her intent to adopt Deric. Following the evidentiary hearing, the family court entered a judgment declaring Deric as Walker's equitably adopted son. The court also entered a "Verified Order" allowing Deric to bring a wrongful death action relating to Walker's death.

ACS and Copeland filed a motion to intervene in the family court action in order to challenge the adoption judgment. Upon denial of the intervention motion, ACS and Copeland appealed. This court affirmed the denial, finding the movants had no right to intervene in the family court action because the equitable adoption decree was binding only upon the parties to that action and did not directly affect the potential liability of ACS and Copeland in the wrongful death case. Coon ex rel. Coon v. Am. Compressed Steel, 133 S.W.3d 75, 83-84 (Mo.App.2004).

Upon the family court's ruling in the adoption case, Stephen Walker filed a motion to amend the wrongful death petition to add Deric as a party plaintiff. The circuit court granted the motion after receiving the verified order of adoption. The circuit court then appointed Deric's grandmother, Shirley Coon, as his next friend, and an attorney, Molly Korth Williams, as Stephen Walker's next friend because he suffered from mental illness. Stephen Walker subsequently dismissed himself from the wrongful death case, allowing Deric to proceed as the representative plaintiff.

ACS and Copeland filed a motion to dismiss Deric as a party plaintiff, asserting that he failed to show by clear, cogent, and convincing evidence that he was the equitably adopted son of Walker. Following full briefing by both sides, including the submission of deposition testimony,³ the circuit court ruled that Deric was a proper party plaintiff and allowed the wrongful death claims to proceed to trial.

At trial, the court permitted the parties to present additional evidence on the issue of the equitable adoption. Outside the hearing of the jury, the court heard testimony from Deric and Shirley Coon about the nature of Walker's relationship with Deric. The court also admitted into evidence the transcript from the family court proceeding and the written consents to adoption by Deric's father and three grandparents. All of the parties presented evidence to the jury regarding the wrongful death claims. The court denied the defendants' motions for directed verdict.

After the close of evidence, the jury returned a verdict in favor of Deric and against ACS and Copeland on the wrongful death claims. The jury assessed compensatory damages of $2,000,000 against both defendants, and an additional $1,000,000 in damages against ACS for aggravated circumstances. At Deric's request, the court ultimately allocated 40% of the total damages to Stephen Walker and 60% to Deric.

ACS and Copeland filed a motion for judgment notwithstanding the verdict (JNOV). The circuit court denied the motion and entered judgment on the jury's verdict. ACS and Copeland appeal, contending the court should have granted the motions for directed verdict and JNOV because: (1) Deric failed to present clear, cogent, and convincing evidence that he was Walker's equitably adopted son and, therefore, a proper party in this wrongful death lawsuit; and (2) Deric failed to make a submissible case on the issue of aggravating circumstances.

STANDARD OF REVIEW

Upon review of the denial of a motion for directed verdict or JNOV, the primary question is whether the plaintiff made a submissible case. Mogley v. Fleming, 11 S.W.3d 740, 747 (Mo.App.1999). "To make a submissible case, substantial evidence is required for every fact essential to liability." Id. The issue of whether the evidence is substantial and the inferences drawn are reasonable presents a question of law. Id. In deciding this question, we must "view the evidence in the light most favorable to the plaintiff, presume the plaintiff's evidence is true, and give the plaintiff the benefit of all reasonable and favorable inferences to be drawn from the evidence." Id.

EQUITABLE ADOPTION

Missouri has recognized "equitable adoption" as a judicial remedy to grant a person the rights of an adopted child for purposes of inheritance. Coon, 133 S.W.3d at 81. The need for the doctrine arises when a proposed adoptive parent dies without having conducted a formal adoption. Id. Generally, the doctrine is invoked to allow the "supposed-to-have been adopted child" to take an intestate share. Id. However, it also has been applied to allow the prosecution of a wrongful death claim by the decedent's equitable adoptee. Holt v. Burlington N. R.R. Co., 685 S.W.2d 851 (Mo.App.1984).

To prove an equitable adoption, the plaintiff must show that a promise to adopt was made, but the adoption had not occurred prior to the promisor's death. Weidner v. Am. Family Mut. Ins. Co., 928 S.W.2d 401, 403 (Mo.App.1996). The existence of the equitable adoption must be shown with evidence so clear, cogent, and convincing as to leave no room for reasonable doubt. Id. Further, if the plaintiff relies solely on circumstantial evidence, that evidence must be "`consistent only with the existence of the equitable adoption and inconsistent with any other reasonable hypothesis leaving nothing to conjecture.'" Id. (quoting Niehaus v. Madden, 348 Mo. 770, 155 S.W.2d 141, 144 (1941)).

An equitable adoption differs from a legal adoption in that it is only valid and binding upon the parties involved in the equitable proceeding. Coon, 133 S.W.3d at 81. Thus, the prior order of equitable adoption from the family court case was not binding upon ACS and Coleman, who were not permitted to intervene as parties in that proceeding. In considering whether Deric was a proper party in the wrongful death action against ACS and Coleman, the circuit court was required to make an independent determination on the issue of the equitable adoption.

Consistent with that obligation, the circuit court allowed the parties to present evidence regarding Deric's status during both the pretrial and trial phases of the wrongful death case. In response to the defendant's motion to dismiss, Deric submitted deposition testimony from his father, Christopher Coon, and his grandparents, Shirley and Carlton Coon, regarding their knowledge of Walker's adoption plans. The evidence at trial included a transcript from the family court proceeding, at which the same three witnesses testified that Walker was engaged to Christopher and had made plans to adopt Deric once she was married. Also at trial, Shirley Coon testified (outside the hearing of the jury) that she had more than one conversation with Walker wherein Walker stated her intent to adopt Deric. The circuit court overruled hearsay objections and expressly relied on the testimony of Shirley Coon in determining that Deric had been equitably adopted by Walker.

In their first point on appeal, ACS and Coleman contend the evidence was insufficient to support the finding of equitable adoption. Specifically, they argue that Walker's out-of-court statements, as attested to by Shirley Coon, were inadmissible as violations of the hearsay rule and the Deadman's Statute.⁴ If the court had excluded or disregarded this improper evidence, Appellants assert Deric would have failed to meet his burden of proving the equitable adoption by clear, cogent, and convincing evidence.

Hearsay evidence is an out-of-court statement offered to prove the truth of the matter asserted. Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 59 (Mo. banc 1999). Under the hearsay rule, an out-of-court statement is only...