Keene v. Wilson Refuse, Inc., 56279

• Decision Date: 17 April 1990
• Docket Number: 56288,No. 56279,56279
• Parties: Sharon KEENE, et al., Plaintiffs-Appellants/Respondents, v. WILSON REFUSE, INC., Defendant, v. Aaron KEENE, Intervenor/Appellant/Respondent.
• Court: Missouri Court of Appeals

Page 324

788 S.W.2d 324

Sharon KEENE, et al., Plaintiffs-Appellants/Respondents, v. WILSON REFUSE, INC., Defendant, v. Aaron KEENE, Intervenor/Appellant/Respondent.

No. 56279, 56288.

Missouri Court of Appeals,

Eastern District,

Division Four.

April 17, 1990.

Motion for Rehearing and/or Transfer to Supreme Court

Denied May 30, 1990.

Application to Transfer Denied July 31, 1990.

Dallas W. Cox, Jr., St. Louis, for plaintiffs-appellants/respondents.

Alan G. Kimbrell, St. Louis.

Ronald Boggs, St. Louis, for intervenor/appellant/respondent.

CARL R. GAERTNER, Judge.

Plaintiff, Wesley Keene, appeals from the trial court's judgment apportioning the proceeds of a settlement in a wrongful death action. Plaintiff-Intervenor, Aaron Keene, appeals from the trial court'sjudgment ordering him to pay one-third of his award to Wesley's attorney as attorney's fees. We affirm the judgment apportioning the settlement, but reverse the trial court's order awarding attorney's fees from Aaron's recovery to Wesley's attorney.

On April 8, 1988, Edgar Dean Keene died as a result of a collision between his auto and a truck owned and operated by Wilson Refuse, Inc. Sharon Keene, Edgar's widow, retained the services of Dallas W. Cox, Jr., an attorney, to pursue a wrongful death action against Wilson Refuse. Sharon signed a 1/3 contingency fee contract with Cox on her own behalf and on the behalf of her son Wesley, and Edgar's parents, Ed and Norma Keene. On April 8, 1988, Cox filed a one count petition against Wilson Refuse naming, as plaintiffs, Sharon, Wesley, and Ed and Norma Keene. On that same day, Cox wrote a letter to Emily Keene, Edgar's first wife, and Aaron Keene, Edgar's son from the first marriage, to notify Aaron of his right to maintain a cause of action against Wilson Refuse because of his father's death.

Upon receipt of Cox's letter, Emily and Aaron retained the services of Ronald L. Boggs, an attorney, to represent Aaron in this action. Aaron and his mother signed a one-third contingency contract with Boggs. On May 6, 1988, Boggs filed a Motion to Intervene on behalf of Aaron Keene, requesting that Aaron be joined as a separate plaintiff in the wrongful death action. On May 16, 1988, Boggs filed a Petition for Appointment of Next Friend, whereby Emily Keene sought appointment as next friend for her then minor son, Aaron. On the day of the settlement hearing, the trial court heard and granted these motions. While Boggs filed motions, attended depositions, and made appearances as needed to represent Emily and Aaron, Cox alone was responsible for the development and preparation of the liability aspects of the case.

On January 3, 1989, Cox filed a Motion for Approval of Settlement Offer and for Order of Apportionment Under § 537.095 RSMo. On January 13, 1989, after a hearing on these motions, the trial court approved a structured settlement with the present value of $750,000. The trial court then apportioned a gross award of $450,000 to Sharon; $144,000 to Wesley; $12,000 to Ed and Norma; and $144,000 to Aaron. The trial court awarded $250,000 of the $750,000 settlement to Cox as attorney's fees, ordering each plaintiff to pay one-third of the amount allocated to him or her plus a proportionate share of litigation expenses totaling $6,565.36. Thus, the trial court ordered Aaron to pay $48,000--one-third his recovery--to Cox as attorney's fees and 19.2 percent of the litigation expenses, even though Aaron had not signed a contract with Cox. The trial court awarded no compensation to Boggs, Aaron's attorney. This appeal followed.

Wesley's only point on appeal addresses the trial court's apportionment of the settlement. Specifically, Wesley claims that an award of $144,000 for both Wesley and Aaron is unsupported by substantial evidence because Wesley's loss, as measured by the factors set forth in § 537.090 RSMo 1986 exceeded that of Aaron's. Essentially, Wesley maintains that he, at age ten, lost a close and continuing relationship upon his father's death and that Aaron, at age seventeen, suffered less of a loss because Aaron had limited contact with his father since his parents divorced in 1974. According to Wesley, his "actual losses" exceed those of Aaron's in both quality and duration; yet the equal monetary awards fail to reflect this fact. Thus, Wesley claims that the trial court erred in apportioning an equal award to both Wesley and Aaron.

When reviewing the decision of a trial court, we must affirm the decision unless the judgment is unsupported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). When reviewing a bench trial where no findings of fact or conclusions of law were requested, we view the evidence in the light most favorable to the prevailing party and disregard all contrary evidence. May Department Stores Co. v. Queen, 771 S.W.2d 835, 836 (Mo.App.1989). Here, we review the trial court's apportionment of a settlement in a wrongful death action by the same standard with which an appellate court reviews a trial court's determination of damages and will not interfere unless the verdict is grossly excessive or inadequate. Farr v. Schoeneman, 702 S.W.2d 512, 515 (Mo.App.1985).

Section 537.090 RSMo 1986 provides in part: "[T]he trier of the facts may give to the party or parties entitled thereto such damages as the trier of the facts may deem fair and just for the death and loss thus occasioned...." Section 537.095.3 RSMo 1986 authorizes the trial court then to "... enter a judgment as to such damages, apportioning them among those persons entitled thereto in proportion to the losses suffered by each as determined by the court." The legislature chose to place the duty and responsibility of apportionment of losses in a wrongful death case squarely within the determination of the trial court. Motley v. Colley, 769 S.W.2d 477, 479 (Mo.App.1989). We neither approve nor disapprove of the apportionment of a settlement. We only rule on whether the trial court was within the discretion granted by statute and whether the trial court's determination of losses is supported by substantial evidence. Farr v. Schoeneman, 702 S.W.2d 512, 515 (Mo.App.1985); Glasco v. Fire and Casualty Insurance Co., 709 S.W.2d 550, 555 (Mo.App.1986).

Here, the trial court determined after weighing all the evidence that the losses suffered by Wesley and Aaron merited awards of $144,000. While the losses suffered by each were concededly not the same, the trial court still could reasonably determine that their losses merited equal awards. Fixing a monetary value upon the loss suffered by a child deprived of future parental "companionship, comfort, instruction, guidance, counsel, training" of necessity involves resort to speculation and subjectivity. In...