Macke v. Patton

• Decision Date: 16 July 2019
• Docket Number: No. SC 97599,SC 97599
• Citation: 591 S.W.3d 865
• Parties: Loren MACKE, Respondent, Pamela Eden, Appellant, v. Austin PATTON, Defendant.
• Court: Missouri Supreme Court

591 S.W.3d 865

Loren MACKE, Respondent,Pamela Eden, Appellant,

v.Austin PATTON, Defendant.

No. SC 97599

Supreme Court of Missouri, en banc.

Opinion issued July 16, 2019

Eden was represented by Shaun M. Falvey and Christopher S. Saracino of Goldblatt & Singer in St. Louis, (314) 231-4100.

Macke was represented by Edward M. Roth, Anthony S. Bruning and Anthony S. Bruning Jr. of The Bruning Law Firm LLC in St. Louis, (314) 735-8100.

Patton was represented by David A. Boresi and John L. Mullen of Franke Schultz & Mullen PC in St. Louis, (314) 455-8300.

Zel M. Fischer, Judge

Pamela Eden appeals the circuit court's distribution of proceeds from Nicklaus Macke's wrongful death settlement, pursuant to §§ 537.080, 537.090, and 537.095.¹ The circuit court apportioned 98 percent of the settlement to Nicklaus' father, Loren Macke, and 2 percent to Eden, Nicklaus' mother. Eden's appeal argues the circuit court abused its discretion in overruling her oral motion for a second continuance and erred in apportioning only a small percent of the wrongful death settlement to her. The circuit court's judgment is affirmed.

Factual and Procedural History

Nicklaus Macke (hereinafter, "Nicklaus") was the son of Pamela Eden and Loren Macke (hereinafter, "Macke"). Nicklaus suffered fatal injuries in a motor vehicle collision with defendant Austin Patton in April 2017. At the time of his death, Nicklaus was 25 years old, unmarried and had no children. Macke negotiated a settlement with Patton's insurance company, and the insurance company offered to pay its $500,000 policy limit in satisfaction of Macke's wrongful death claim against Patton.

Macke accepted the offer and filed for approval and apportionment of the wrongful death settlement in the circuit court of the city of St. Louis. The circuit court scheduled a hearing on the petition for November 21, 2017. Eden, an Alabama resident, first received notice of the hearing date on October 26, 2017.

Mere hours before the first scheduled hearing began, Eden telephoned the circuit court requesting a continuance because she was not in Missouri and did not have an attorney. The circuit court granted a one-week continuance and reset the hearing for November 28, 2017. At the beginning of the hearing, Eden's attorney orally requested a second continuance, asserting the need for discovery and additional time to prepare for the hearing. The circuit court overruled the motion, stating:

[O]ff the record I denied the request for the continuance, and I'm going to stick with that ruling finding that Ms. Eden had notice and we were kind enough to put it off for a week last week, and I think eventually we just need to go forward with this and I think that needs to happen today, partially due to the issue of the other parties also having to travel into town.

During the hearing, the circuit court heard testimony from Macke, Eden, Macke's sister, Macke's wife and Eden's husband. The evidence supporting the judgment was that Macke and Eden divorced shortly after Nicklaus' birth and Macke was granted custody with supervised visitations for Eden. Macke and Nicklaus moved into Macke's mother's house in Marshall, Illinois, where Nicklaus was raised primarily by Macke and Macke's mother, whom Nicklaus called "Mom."

Though she lived in the area, Eden was absent from Nicklaus' childhood. On occasion, she would show up unannounced to events in Nicklaus' life, including one of his band's concerts, his prom night, and his high school graduation party. But she ultimately played little to no role in his childhood and upbringing.

When Nicklaus turned 18, he moved away from home. Macke stayed in touch with Nicklaus despite the increased distance between them. Eventually, Macke helped Nicklaus move into a St. Louis condominium. Even though Macke lived two and a half hours away from St. Louis, he and Nicklaus remained in touch and Macke visited him regularly.

After the hearing, the circuit court entered an order approving the $500,000 settlement and taking the issue of apportionment and distribution of the settlement amount under advisement. Neither party requested specific findings pursuant to Rule 73.01(c). Several weeks later, the circuit court entered a judgment apportioning $490,000 of the settlement to Macke and $10,000 to Eden. The circuit court's judgment included the following language relevant to this Court's review:

The court has considered the testimony of the witnesses, the documentary evidence that each submitted to the court, as well as the oral and written statements of counsel. The court, observed first-hand and evaluated the credibility of the witnesses and determined the weight to be accorded to the testimony and documentary evidence of each. This Court has apportioned the settlement proceeds as set forth in Exhibit A hereto, in proportion to the losses suffered by each party, as determined by the court based on the evidence and in keeping with the factors set forth in the Missouri Wrongful Death statute, RSMo. §§ 537.080, 537.090, 537.095.

Eden appealed the judgment, and the court of appeals reversed in part and remanded in a published opinion. This Court granted transfer. Mo. Const. art. V, sec. 10.

Analysis

Eden presented two separate points relied on in this appeal. The first argues the circuit court erred in overruling her motion for a second continuance. The second argues the circuit court’s apportionment of only 2 percent of settlement funds to Eden erroneously applied the law and was against the weight of the evidence.

Motion for Continuance

In her first point, Eden argues the circuit court erred in overruling her oral motion for continuance, made at the start of the November 28, 2017 hearing. She argues the circuit court abused its discretion in overruling the motion for continuance because she had just retained an attorney that morning and the attorney had no time to conduct discovery or prepare for the hearing.

The circuit court's decision to overrule a motion for continuance is reviewed for an abuse of discretion. State v. Blocker , 133 S.W.3d 502, 504 (Mo. banc 2004). The circuit court abuses its discretion "when the ruling is clearly against the logic of the circumstances and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates a lack of careful, deliberate consideration." Howard v. City of Kan. City , 332 S.W.3d 772, 785-86 (Mo. banc 2011).

A motion for continuance must be in writing unless the moving party obtains consent from the adverse party to submit an oral request for continuance. Rule 65.03. The motion must also be accompanied by an affidavit "setting forth the facts upon which the application is based[.]" Id.

The circuit court did not abuse its discretion in overruling Eden's motion for a second continuance. She orally submitted her motion the morning of the hearing – originally set for a week prior but continued for a week after Eden successfully moved for her first continuance over the telephone. The circuit court’s statement in overruling this second motion indicates careful consideration went into its decision. Regardless of when Eden had retained counsel, she had been on notice of the hearing for more than a month and had already been granted one continuance, even though her original motion for a continuance was not in compliance with Rule 65.03.

This second motion for continuance was orally asserted at the start of the hearing, and nothing in the record indicates Macke consented to an oral motion, as Rule 65.03 requires. Further, Macke and his witnesses had all traveled to testify at the hearing, and sustaining Eden's second motion for continuance would have caused further delay and expense. As demonstrated by the record, overruling the second motion for a continuance was not error and certainly not an abuse of discretion.

Apportionment of Wrongful Death Damages

Eden's second point relied on states as follows:

THE TRIAL COURT ERRED IN APPORTIONING ONLY A 2 PERCENT SHARE OF SETTLEMENT FUNDS TO APPELLANT INSOFAR AS THE EVIDENCE ESTABLISHED THAT APPELLANT SHOULD HAVE BEEN APPORTIONED A GREATER SHARE OF SETTLEMENT FUNDS.

This point relied on does not suggest an attempt to comply with this Court's requirements in Rule 84.04. Moreover, it does not indicate any consideration of the example point relied on, provided by the Court to ensure compliance with briefing rules:

The trial court erred in [identify the challenged ruling or action ], because [state the legal reasons for the claim of reversible error ], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error ].

Rule 84.04(d)(1).

As best as can be discerned from the argument section of her brief following the second point, Eden is combining arguments that the circuit court's finding is against the weight of the evidence and that the circuit court erroneously applied the law.²

Even if there had been an attempt to comply with Rule 84.04, this would be a multifarious point because it "groups together multiple, independent claims rather than a single claim of error[.]" Kirk v. State , 520 S.W.3d 443, 450 n.3 (Mo. banc 2017). "Multifarious points relied on are noncompliant with Rule 84.04(d) and preserve nothing for review." Bowers v. Bowers , 543 S.W.3d 608, 615 n.9 (Mo. banc 2018). A judgment can be against the weight of the evidence while not erroneously applying the law, and vice versa. See Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976). These claims are separate and distinct inquiries, each requiring its own discrete legal analysis. See Ivie v. Smith , 439 S.W.3d 189, 199 n.11 (Mo. banc 2014). Nevertheless, this Court exercises its discretion to address the merits of what it can best determine to be the claim of error, ex gratia.³ Peters v. Johns , 489 S.W.3d 262, 268 n.8 (Mo. banc 2016).

In reviewing the apportionment of wrongful death damages, "[a]n appellate court will reverse the trial court's judgment only if the ruling is not supported by substantial...