Henderson v. Fields

• Decision Date: 04 December 2001
• Docket Number: No. 58276.,No. 58277.,No. WD 58275.,WD 58275.,58276.,58277.
• Citation: 68 S.W.3d 455
• Parties: Idora HENDERSON, Vernon and Laverne Robinson, Sr., Respondents, v. Anthony L. FIELDS, Appellant.
• Court: Missouri Court of Appeals

68 S.W.3d 455

Idora HENDERSON, Vernon and Laverne Robinson, Sr., Respondents, v. Anthony L. FIELDS, Appellant.

No. WD 58275.

No. 58276.

No. 58277.

Missouri Court of Appeals, Western District.

December 4, 2001.

Motion for Rehearing and/or Transfer to Supreme Court Denied January 29, 2002.

Application for Transfer Denied March 19, 2002.

John G. Schultz, Kansas City, for Appellant.

Anita Porte Robb, Kansas City, for respondent.

Before ROBERT G. ULRICH, Presiding Judge, PATRICIA BRECKENRIDGE, Judge, and JOSEPH M. ELLIS, Judge.

JOSEPH M. ELLIS, Judge.

Appellant Anthony L. Fields appeals from a judgment entered against him in the Circuit Court of Jackson County in favor of Respondents Vernon Robinson, Laverne Robinson, and Idora Henderson for the wrongful deaths of Cecil C. Stowers, Jr., Tracy L. Stowers, and Sydney L. Stowers.

On December 25, 1998, at approximately 10:00 p.m., after having consumed approximately 12½ to 13 ounces of cognac, Appellant was driving northbound on I-435 in Jackson County, Missouri. Appellant was driving approximately 100 miles per hour, weaving in and out of lanes, and passing other vehicles. Ultimately, Appellant's vehicle veered through three lanes of traffic, crossed the grassy highway median, became airborne, and entered the path of the southbound traffic on the highway near the 83rd Street exit.

At that same time, Cecil C. Stowers was driving southbound on I-435 with his wife, Tracy Robinson Stowers, and their four-month-old daughter, Sydney L. Stowers. Appellant's vehicle collided with the Stowers' vehicle, fatally injuring the entire Stowers family.

Following the accident, Appellant got out of his vehicle and began walking away from the scene. However, an individual that had stopped at the accident site caught up to Appellant and insisted that he return to the scene, and Appellant complied. Police and medical personnel arrived shortly thereafter. Appellant's blood alcohol level was tested more than an hour after the accident. The test revealed that Appellant's blood had an alcohol concentration of .16 percent.

On May 24, 1999, Respondents Vernon and Laverne Robinson filed a wrongful death action against Appellant in the Circuit Court of Jackson County for the death of their daughter, Tracy Robinson Stowers. That same day, Idora Henderson filed a wrongful death action against Appellant for the death of her son, Cecil C. Stowers. In addition, Idora Henderson, the paternal grandmother, and Vernon Robinson and Laverne Robinson, the maternal grandparents, together filed a wrongful death action for the death of their granddaughter, Sydney L. Stowers. All three petitions asked for compensatory and punitive damages. The three cases were consolidated for trial.

Prior to trial, Appellant filed a motion to bifurcate the issue of punitive damages pursuant to § 510.263.1. The trial court granted that motion.

All three actions were tried together beginning on December 13, 1999. At the close of evidence, the parties made closing arguments related to the issues of liability, compensatory damages, and whether aggravating circumstances existed. On December 17, 1999, the jury returned their verdicts against Appellant in all three cases and awarded compensatory damages of $3.3 million on each claim. The jury also found that aggravating circumstances existed.

After the jury's finding regarding aggravating circumstances, counsel for the parties made further closing arguments on the issue of the amount of punitive damages. Subsequently, the jury returned its verdict awarding aggravating circumstances damages of $4.5 million on each claim. The trial court then entered its judgment in accordance with the jury verdicts.

On January 21, 2000, Appellant filed a Motion for Judgment Notwithstanding the Verdict alleging that Respondents were not the proper parties under § 537.080 to bring an action for the wrongful death of Sydney L. Stowers. Appellant also filed a Motion for New Trial and Motion for Remittitur. On February 4, 2000, Respondents filed their suggestions in opposition to those motions and a Motion for Nunc Pro Tunc Order Appointing Co Plaintiffs Ad Litem in the cause of action related to Sydney L. Stowers. On February 10, 2000, the trial court sustained Respondents' motion and appointed the three individual grandparents, Idora Henderson, Laverne Robinson, and Vernon Robinson, Sr., as Co Plaintiffs Ad Litem and stated that those appointments should relate back to the filing of the petition in that case. The court also denied all of Appellant's motions.

Appellant brings this appeal and presents nineteen points for our determination. We address all nineteen points, albeit giving some only the summary attention they deserve, and deny eighteen of them. One point, however, properly raises and presents for decision an important and meritorious claim. Therefore, we consider it first, and then discuss all other points in Appellant's numerically designated order.

In his ninth point, Appellant contends the trial court erred in failing to grant his various motions for directed verdict and his motion for judgment not withstanding the verdict because Respondents' petition related to the death of Sydney Stowers failed to state a cause of action for which Respondents could recover. Appellant claims that Respondents, as Sydney's grandparents, were not proper parties to bring that action under the wrongful death statute, § 537.080.

As stated in Sullivan v. Carlisle, 851 S.W.2d 510, 512-13 (Mo. banc 1993):

In relevant part, § 537.080.1 defines who may bring a wrongful death action as follows:

If there be no persons in class (1) [spouse, children or their lineal descendants, or parents] or (2) [siblings or their descendants] entitled to bring the action, then by a plaintiff ad litem. Such plaintiff ad litem shall be appointed by the court having jurisdiction over the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action. Such plaintiff ad litem shall be some suitable person competent to prosecute such action and whose appointment is requested on behalf of those persons entitled to share in the proceeds of such action....

The persons entitled to share in the proceeds recovered by the plaintiff ad litem are determined by § 537.095.2, which states:

When any settlement is made, or recovery had, by any plaintiff ad litem, the persons entitled to share in the proceeds thereof shall be determined according to the laws of descent, and any settlement or recovery by such plaintiff ad litem shall likewise be distributed according to the laws of descent unless special circumstances indicate that such a distribution would be inequitable, in which case the court shall apportion the settlement or recovery in proportion to the losses suffered by each person or party entitled to share in the proceeds....

(emphasis omitted).

Appellant claims that, as Sydney's grandparents, Respondents were not authorized under the statute to bring an action for her death and, therefore, lacked standing to sue. He contends that because the action was not brought by a properly appointed plaintiff ad litem the trial court should have entered judgment notwithstanding the verdict.

Respondents acknowledge that they were not entitled to bring a wrongful death action for Sydney's death in their individual capacities and could only bring the action under the plaintiff ad litem provisions. However, Respondents claim this was properly accomplished in this case.

Subsequent to trial and the entry of judgment, Respondents filed a motion for a Nunc Pro Tunc Order under Rule 74.06(a) asking the court to name them co-plaintiffs ad litem, to have that designation relate back to the filing of the petition, and to allow the pleadings and judgment to conform to that order. On February 10, 2000, the trial court granted Respondents' Motion for Nunc Pro Tunc Order and entered its order appointing Respondents co-plaintiffs ad litem and ordering that those appointments relate back to the filing of the petition on May 24, 1999. The court then denied Appellant's Motion for Judgment Notwithstanding the Verdict as moot.

Respondents claim that the trial court's appointment properly related back to the filing of the action and remedied any problems that existed with regard to their standing to bring the action. Respondents contend that nothing in the statute places a time limit on the trial court for the appointment of plaintiffs ad litem and that the court could properly amend the pleadings in accordance with Rule 55.33 and have them relate back to the filing of the petition.

We initially note that the trial court could not properly enter a nunc pro tunc order under Rule 74.06(a) appointing Respondents plaintiffs ad litem or have that appointment relate back to the filing of the petition under that rule. "Rule 74.06(a) authorizes a court to correct clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission at any time." Coon v. Dryden, 46 S.W.3d 81, 88 (Mo.App. W.D.2001). "A nunc pro tunc amendment is appropriate only to correct clerical omissions, mistakes, or misprisions to make the record accurately reflect the judgment actually rendered by the court but not faithfully recorded," and "does not lie to correct judicial errors, mistakes, or oversights, to create a new record, or to enter a judgment never made or one different from that actually rendered." Id. "The power to issue nunc pro tunc orders ... constitutes no more than the power to make the record conform to the judgment already rendered; it cannot change the judgment itself." Soskin v. Wolfson, 999 S.W.2d 261, 264 (Mo.App. E.D.1999). A nunc pro tunc order must do nothing more than correct a clerical error, and "the order cannot correct anything that resulted from the exercise of judicial discretion because any such change constitutes a change in the trial...