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    Valerie COLLINS, Appellant-Respondent, v. William HERTENSTEIN, et al; Defendants, Timothy L. Wilson, Sr., Respondent-Appellant.
    Nos. WD 63898, WD 63943.
    Missouri Court of Appeals, Western District.
    Nov. 15, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 20, 2005.
    Application for Transfer Denied Jan. 31, 2006.

      Walter R. Simpson, Michael R. Fletcher, Co-Counsel, Kansas City, MO, for appellant-respondent, Valerie Collins.
    Dennis J. Owens, Kansas City, MO, for defendant, Edward L. Pendelton.
    David T. Greis, Kansas City, MO, for respondent-appellant, Timothy Wilson.
    Lisa S. Morris, Kansas City, MO, for respondents, Hertenstein, Thomas and Keeney.
    Before VICTOR C. HOWARD, P.J., JAMES M. SMART and THOMAS H. NEWTON, JJ.
   THOMAS H. NEWTON, Judge.

This case involves a disagreement between a mother and father over the apportionment of monies under section 537.095 from the successful prosecution of a wrongful death action that arose from the shooting death of them 13-year-old son by Kansas City police officers in November 1998.

There were three separate apportionment hearings in the case. The first occurred in July 2000, two months before trial, and resulted in the interlocutory approval and apportionment of a $100,000 settlement between the parents and one of the defendants in the underlying action. The second occurred in May and June 2003 after the compensatory damages awarded by a jury had been affirmed by this court in Collins v. Hertenstein, 90 S.W.3d 87 (Mo.App. W.D.2002). The result of the second hearing was an interlocutory apportionment of the $510,000 compensatory damages award. The third hearing occurred in November and December 2003 and addressed a settlement that was reached regarding the aggravating circumstances damages (punitive damages), which this court had remanded for a new trial. Id. at 110. The result of the third hearing was a final judgment as to this $700,000 settlement that also incorporated by reference the two earlier distributions.

Mr. Timothy L. Wilson, Sr., decedent’s father, appealing from the circuit court’s judgment denying his Motion for New Trial on Apportionment, challenges the procedure by which the settlements and recovery were apportioned, the proportionality of the shares awarded, the awards of attorney’s fees and expenses, and the circuit court’s failure to award interest on the punitive damages. Ms. Valerie Collins, decedent’s mother, challenges the circuit court’s decision that allowed Mr. Wilson to re-litigate the issue of his alleged loss as a result of their son’s death during the third apportionment hearing. Because we find that there was error (i) in the apportionment procedure, and (ii) regarding interest as to the punitive damages, we reverse in part and remand.

Factual and Procedural Background

The facts involved in the wrongful death litigation have been fully set forth and will not be repeated here. Collins, 90 S.W.3d at 92-94. To better understand the attorney’s fee issue, we will note that Mr. Wilson and Ms. Collins, who have never married, together hired a lawyer under a contingency fee agreement immediately after the tragic event that took their son’s life. This attorney (father’s lawyer) contracted with another law firm within the next month to assist in the case. Before the first apportionment hearing occurred a year-and-a-half later, there had already been a falling out among the parties and counsel regarding trial strategy and disposition of the $100,000 settlement. Ms. Collins terminated her contract with father’s lawyer one month before the first apportionment hearing and signed an agreement with the firm (law firm) brought in to assist. As part of the agreement between Ms. Collins and Mr. Wilson over the $100,000 settlement, it was understood that Mr. Wilson would withdraw from the underlying litigation before trial. While the underlying case was pending on appeal before this court in 2002, and well over a year before the second and third apportionment hearings occurred, father’s lawyer was suspended from the practice of law. Mr. Wilson was represented by different attorneys during the second and third hearings.

Fees and/or expenses were distributed to the attorneys as a result of each of the three apportionment hearings. The sum of $80,000 was set aside for already incurred and future litigation expenses out of the first $100,000 settlement. From what remained, Ms. Collins received $12,000, and Mr. Wilson received $8,000 in accordance with a 60/40 agreement they had entered. Ms. Collins’s law firm waived its fees with respect to the distribution of this settlement, so that there would be sufficient funds to bring the case to trial. Mr. Wilson paid his lawyer $2,000, but this was not part of the settlement agreement or the court’s apportionment. During the first hearing, Ms. Collins was present to testify as to the nature of her relationship with the decedent as well as the nature of Mr. Wilson’s relationship with the decedent. Mr. Wilson, who was incarcerated at the time, did not appear, but his lawyer participated and made no objection to the distribution approved by the court. Nevertheless, Mr. Wilson argues that neither he nor his lawyer waived attorney’s fees from this interlocutory approval of the $100,000 settlement.

Mr. Wilson, represented by new counsel, was present for and testified during the second apportionment hearing to distribute the compensatory damages recovery. Mr. Wilson’s original lawyer also testified and was represented by counsel. There was vague, conflicting and confusing testimony about when or for how long Mr. Wilson was incarcerated over the course of his son’s brief life. But the circuit court recognized that he had spent minimal time with his son and had provided him with minimal necessities and money. The court stated that it did not believe the testimony and evidence showed any kind of emotional bond between father and son. The circuit court did not first apportion the award to Mr. Wilson and Ms. Collins, but divided what was left after setting aside an amount for attorney’s fees and expenses. The court awarded nearly $253,000 to Ms. Collins and $1,000 to Mr. Wilson. Attorney’s fees of $5,900 were awarded to Mr. Wilson’s lawyer who was then under suspension, about $246,000 in attorney’s fees was awarded to Ms. Collins’s law firm, and about $5,000 was awarded to the law firm for outstanding expenses. The court’s intention was to provide father’s lawyer with a total of $10,000 in fees, in light of testimony regarding his relatively limited participation in trial preparation and the fact that he had not participated in the trial due to Mr. Wilson no longer being a named plaintiff when it began. There had been testimony that father’s lawyer had received $2,100 in fees in addition to the $2,000 Mr. Wilson paid him after the first apportionment hearing. The $2,100 was apparently part of a $5,000 payment for expenses that Ms. Collins’s law firm advanced before entering the contract to assist with the litigation. Mr. Wilson did attempt to appeal from the circuit court’s interlocutory order making this apportionment award, but his appeal was dismissed for lack of a final, appealable judgment.

On November 21, 2003, the circuit court approved the punitive damages settlement with the defendants in the underlying action, which settlement was paid into a court registry on or about December 15 while the third apportionment hearing was underway. During that hearing, Mr. Wilson was represented by his third attorney. He was allowed, over Ms. Collins’s objection, to again present his and others’ testimony about the nature of his relationship with the decedent. Mr. Wilson’s original lawyer also testified and was represented by counsel. Of the $700,000 available for apportionment, the circuit court awarded Ms. Collins eighty-five percent and Mr. Wilson fifteen percent. Making a rough calculation from the bench, the circuit court estimated that the ultimate percentage awarded to Mr. Wilson from the aggregate of the settlements and recovery-available for apportionment was ten percent. From Ms. Collins’s share, fifty percent, or about $297,000 was awarded to her law firm in attorney’s fees, and she was required to pay eighty-five percent of the outstanding expenses, leaving her with about $292,700. Mr. Wilson’s share was reduced by fifty percent for attorney’s fees, which was split equally between his original lawyer and Ms. Collins’s law firm, with each receiving $26,250. Mr. Wilson’s share was further reduced by $840.61, which constituted fifteen percent of the outstanding expenses, leaving him with about $51,600. The awards were formalized in a written judgment dated December 17. The circuit court entered an order on the original defendants’ Motion for Order Nunc Pro Tunc on February 26, 2004, to correct omissions in the court’s November 2008 order approving the settlement.

In summary, of the $1,310,000 available for distribution, Ms. Collins received $555,822.09 net; Mr. Wilson received $60,059.39 net; the law firm received $569,835.57; father’s lawyer received $36,250; and litigation expenses of $90,632.95 were paid.

In his first point, Mr. Wilson challenges his overall 8.7 percent share of the $1.3 million in settlements and recovery as grossly disproportionate, claiming that the circuit court violated section 537.095 by failing to (i) apportion the proceeds between the members of the primary class of statutory beneficiaries before awarding attorney’s fees and expenses, (ii) enter a single final judgment that awarded the totality of legal fees and expenses, and (iii) consider the evidence presented during the third apportionment hearing in relation to the interlocutory decisions made after the first two hearings. Mr. Wilson also claims in his first point that section 537.095 requires one assessment of total damages and one apportionment followed by one award of attorney’s fees and expenses, and that the court erred in making three attorney’s fee awards based on three separate sets of evidence that, he claims, the court refused to consider cumulatively.

In his second point, Mr. Wilson focuses on the attorney’s fees and expenses, repeating some of the facts that supported his first point, and concludes that he was required to pay a disproportionate share of the fees and expenses. He also challenges the circuit court’s failure to differentiate between fees awarded to father’s lawyer pursuant to Mr. Wilson’s contract with him and Ms. Collins’s contract with him, and pursuant to a quantum meruit theory for services to Ms. Collins after she terminated their attorney-client relationship. He further claims that he should not have paid any fees to Ms. Collins’s law firm under section 537.095, because he was always represented by counsel. Regarding expenses, Mr. Wilson complains that the circuit court’s failure to correctly apportion the first settlement resulted in his paying 36.23 percent of the total litigation expenses.

In his third point, Mr. Wilson claims circuit court error in failing to award interest on the $700,000 punitive damages settlement, because there was a delay in payment of the funds into the court’s registry after defendants were ordered to do so. Mr. Wilson raises cumulative error in his fourth point, claiming that even if his individual points of error do not warrant a new trial, all identified errors, in the aggregate, do justify the grant of a new trial.

Ms. Collins replies only to Mr. Wilson’s first point on appeal and challenges the circuit court’s decision allowing Mr. Wilson to re-litigate the issue of his alleged loss during the third apportionment hearing and apportioning a different percentage to him than previously awarded. The defendants in the underlying litigation, Mr. William Hertenstein, Mr. Brian Keeney, and Mr. Troy Thomas, have filed a response to Mr. Wilson’s claim that interest is due on the $700,000 settlement.

Standard of Review

We review the denial of a motion for a new trial under an abuse of discretion standard. City of Pleasant Valley v. Baker, 991 S.W.2d 725, 727 (Mo.App. W.D.1999). In a wrongful death action, it is within the circuit court’s discretion to apportion the losses, and we reverse the judgment only where it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Parr v. Parr, 16 S.W.3d 332, 336 (Mo. banc 2000). We will not interfere unless the judgment is grossly excessive or inadequate. Kavanaugh v. Mid-Century Ins. Co., 937 S.W.2d 243, 246 (Mo.App. W.D.1996). Nor do we approve or disapprove the apportionment; rather, we rule on whether the circuit court acted within the discretion granted by section 537.095. Wright v. Cameron Mut. Ins. Co., 908 S.W.2d 867, 868-69 (Mo.App. S.D.1995).

Legal Analysis

Apportionment Procedure

Section 537.095 provides in relevant part:

3. In any action for damages under section 537.080, the trier of facts shall state the total damages found, or upon the approval of any settlement for which a petition or application for such approval has been filed, the court shall state the total settlement approved. The court shall then 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.

4. The court shall order the claimant:

(1) To collect and receipt for the payment of the judgment;
(2) To deduct and pay the expenses of recovery and collection of the judgment and the attorney’s fees as contracted, or if there is no contract, or if the party sharing in the proceeds has no attorney representing him before the rendition of any judgment or settlement, then the court may award the attorney who represents the original plaintiff such fee for his services, from such persons sharing in the proceeds, as the court deems fair and equitable under the circumstances;
(4) To distribute the net proceeds as ordered by the court; ...

In Parr the Missouri Supreme Court established the procedure that the courts must follow in apportioning wrongful death damages under this statute, noting that the apportionment, based on the parties’ respective losses, must occur before the expenses and fees, as contracted, are deducted. 16 S.W.3d at 338-39. Under the Parr method of apportionment, the court first establishes the total recovery amount and then divides it among those entitled to share in proportion to their losses. In that case, the parents and children of the decedent were each apportioned $10,000, and the decedent’s wife was apportioned $925,000. Then the decedent’s wife, as the claimant, was ordered to (i) “collect and receive said settlement amount ... receipt therefore, and ... stipulate for dismissal of this cause”; (ii) “[f]rom the settlement proceeds ... deduct and pay the expenses of recovery and collection of the judgment” to her law firm; (iii) from the “settlement proceeds apportioned” to her, deduct and pay to her law firm attorney’s fees as contracted; (iv) from the “settlement proceeds apportioned” to decedent’s mother, to deduct and pay attorney’s fees to decedent’s mother’s law firm as contracted; (v) acknowledge satisfaction for judgment and costs; and (vi) “distribute the net proceeds” in the amounts of $10,000 each to decedent’s father and children, and $7,500 to decedent’s mother. Id. at 339.

Of the written orders entered after each apportionment hearing in this case, only the final one came close to complying with this procedure, and it did not, on its face, appear to include the totals from the first two apportionment hearings in the calculations. In this respect, we agree with Mr. Wilson that the circuit court violated section 537.095. The circuit court in Parr also made a procedural error, but the supreme court, finding no error with the apportionment to the parties, affirmed its judgment, as modified to conform with the statute. Id. While we do not believe that the circuit court abused its discretion apportioning the proceeds to the parties, because we have additional issues involving the attorney’s fees and expenses and interest on the punitive damages settlement, however, we are unable to simply affirm and modify the judgment.

Apportionment Ratio

Before we address the attorney’s fees and other issues, we will address Mr. Wilson’s claim that the 91.3/8.7 apportionment was grossly disproportionate because the circuit court followed an incorrect legal standard in making its determination. After carefully reviewing 2,000 pages of apportionment-hearing transcripts, we do not believe that the circuit court applied the wrong standard or abused its discretion in deciding to approximate a 90/10 split between the parents. See Haynes v. Bohon, 878 S.W.2d 902, 904-05 (Mo.App. E.D.1994) (court affirms 90/10 split between parents of deceased 14r-year-old because child only saw father occasionally, and father’s sporadic gifts of money and clothing did not amount to regular support); Glasco v. Fire & Cas. Ins. Co., 709 S.W.2d 550, 555 (Mo.App. W.D.1986) (90/10 split between parents of deceased 12-year-old child upheld “since the evidence showed the father failed to support and maintained only minimum contacts with the child from 1972 until her death in 1984.”).

The circuit court, which is in the best position to make credibility determinations, considered the time each parent had spent with the decedent, and used that as an approximate measure of the loss each suffered due to the death of their young son under section 587.095. While Mr. Wilson argues that it is the quality of the time spent with the decedent that matters in making a wrongful death apportionment, the testimony reveals that the decedent filled his father’s shoes in his mother’s single parent household during most of his 13 years, and only spent a limited amount of time with his father during the transitory interludes when Mr. Wilson was not incarcerated. Ms. Collins provided all necessary support to the child, while Mr. Wilson only occasionally gave the child money or paid for some of his clothes or food or activities. Those chores the child did while spending time with Mr. Wilson inured more to the benefit of those relatives with whom Mr. Wilson stayed while out of prison than to Mr. Wilson in his own right. Because the apportionment was not grossly excessive or inadequate, Kavanaugh, 937 S.W.2d at 246, we conclude that the circuit court did not abuse its discretion and must affirm its apportionment decision. Wright, 908 S.W.2d at 868-69.

In this case, the total judgment was $1.31 million. In total, Mr. Wilson was awarded $114,000 before paying attorney’s fees and expenses. This amount is short of a ten percent award; if the circuit court, after reviewing the evidence in the case, confirms that Mr. Wilson should actually have received ten percent of the total, the award should be adjusted.

Attorney’s Fees

Mr. Wilson claims that the circuit court erred in making three separate apportion-ments of attorney’s fees and expenses and in not considering the cumulative effect of the evidence to reach a single apportionment and award of attorney’s fees and expenses, and that following this procedure affected the share he should have been awarded. Acknowledging that the lawyers involved are owed fees both under contract and in quantum meruit, he further claims that it is impossible to determine on what basis attorney’s fees were awarded. He also claims that any errors that affect the fees his lawyer should have received should benefit him rather than Ms. Collins or her law firm.

Ms. Collins fired father’s lawyer just before the $100,000 settlement agreement was approved by the court. In Risjord v. Lewis, 987 S.W.2d 408, 405 (Mo.App. W.D.1999), this court stated, “Once termination of the lawyer-client relationship has occurred before completion of a contingent fee contract, the lawyers’ only recovery could be in quantum meruit for the benefits conferred.” (citation and internal quotations omitted). This principle protects the client who has lost faith in her attorney and would be unable to pay both the discharged attorney at full contract price and someone hired to continue the attorney’s work. Id. at 406. According to testimony that supports the circuit court’s decision to award father’s lawyer $5,900 from Ms. Collins’s share, this lawyer did some preliminary investigation, served in a mostly consulting capacity, and engaged in considerable client counseling before Ms. Collins terminated his services. The law firm was providing the laboring oar drafting and filing the petition, conducting discovery, taking numerous depositions, handling media communications, and otherwise preparing the case for trial. While the circuit court did not label the $5,900 award a quantum meruit recovery on Ms. Collins’s terminated contract with father’s lawyer, under Risjord, this was a quantum meruit recovery and is all that Ms. Collins owed. Any objection to this determination was for father’s lawyer to pursue, and he has not appealed the circuit court’s decision.

As for Mr. Wilson’s obligation to his original lawyer, that contract, too, was terminated before completion. The Missouri Supreme Court has ruled that a lawyer’s suspension from the practice of law is “equivalent to a voluntary abandonment of his contract of employment,” and thus, he cannot recover, even in quantum meruit, for his services. Kimmie v. Terminal R.R. Ass’n of St. Louis, 344 Mo. 412, 126 S.W.2d 1197, 1201 (1939). The appeals court in Pollock v. Wetterau Food Distr. Group, 11 S.W.3d 754, 772-73 (Mo.App. E.D.1999), however, suggested that, at least where the suspended attorney is seeking to recover attorney’s fees from an adverse party and the misconduct is not associated with the case, the attorney should not be precluded from recovering for the reasonable value of his or her services under a quantum meruit theory. The Pollock court, although dealing with a distinguishable fact situation, thoughtfully reasoned, on the basis of persuasive case law from other jurisdictions, that a rule to the contrary would “have the unintended effect of retroactive monetary punishment.” Id. at 773. Such effect, said the court, would run counter to the purpose of disciplinary action, which is to protect the public and not to punish the attorney. Id.

Adopting the Pollock approach to attorney’s fees for disbarred or suspended attorneys even if recovery is not being sought from an adverse party, we believe that Mr. Wilson’s lawyer, suspended for misconduct not associated with the case, is owed at least the value of the services he rendered to Mr. Wilson from the date of engagement in November 1998 until the date he was suspended from the practice of law in January 2002. Mr. Wilson paid him $28,250. The circuit court, on remand, will have to decide, on the basis of testimony already presented, whether that sum represents the reasonable value of services rendered. Those services included initial investigation and trial-preparation consultation before trial, and client consultation throughout. Father’s lawyer did not represent a named plaintiff during trial, and there is no testimony that he participated in any meaningful way in the appeal that ultimately affirmed the compensatory damages or in the negotiations as to the remanded punitive damages that led to a $700,000 settlement.

As for the attorney’s fee that the circuit court ordered Mr. Wilson to pay to Ms. Collins’s law firm, this was not error. Mr. Wilson claims that section 537.095.4 only allows the court to order a non-represented person to pay attorney’s fees to the lawyer representing the named plaintiff in a •wrongful death action. Because he was represented throughout the proceeding, albeit by different lawyers, Mr. Wilson believes he should not have to pay anything to Ms. Collins’s law firm. Mr. Wilson forgets, however, that his lawyer had a contract with that law firm, and he was represented by it for about a year-and-a-half, before the contractual relationship between father’s lawyer and the law firm terminated several months before trial. Thus, the circuit court did not err in ordering Mr. Wilson to pay fees to the law firm from his share. There has been no contention that the amount ordered was unreasonable in quantum meruit; accordingly, this will not be at issue on remand.

Expenses

Mr. Wilson claims that he should not have been required to pay 36.28 percent of the litigation expenses, particularly as he was only awarded 8.7 percent of the total available for distribution. We have been unable to locate any case that requires litigation expenses to be split between the persons who can share the proceeds of a wrongful death action in proportion to the awards made for their loss. In fact, the statute requires that “the claimant” deduct and pay the expenses of recovery and the attorney’s fees before distributing the net proceeds to those persons entitled to share in the proportion ordered by the court. § 537.095.4(2) & (4). In this case, the claimant is Ms. Collins, and while the various contracts between the parties and their lawyers contemplated the satisfaction of expenses before attorney’s fees were to be deducted from the parties’ shares,- there is no agreement regarding how the parties would divide the expenses.

The expenses that were awarded during the first apportionment hearing came off the top of the settlement, and the remainder was apportioned between Ms. Collins and Mr. Wilson. Mr. Wilson claims that the settlement should have been apportioned first, and then the expenses deducted. While Mr. Wilson is technically correct, this was an interlocutory order that could be accounted for and adjusted in the final judgment. Nor did Mr. Wilson object in any way during the first apportionment hearing to the court’s approval of this settlement to which he was a signatory. At the time, the proceeds were needed to pay the considerable expenses that were accruing to prepare the case for trial. Mr. Wilson and Ms. Collins had an agreement stating that Ms. Collins would not object to Mr. Wilson receiving as much as.a forty percent share, but as stated above, such agreements cannot bind the court under the express provisions of section 537.095.3. Furthermore, had the circuit court complied with section 537.095.3, Mr. Wilson would not have received any of the settlement proceeds from the first apportionment hearing, because the evidence at that time did not support a finding that he had suffered any loss from the death of his son.

During 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 estop-pel 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. § 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 interest by the defendants on the $700,000 punitive damages settlement from the day the court signed an order approving the settlement until it was actually paid into the court’s registry. Mr. Wilson argues not only that $4,142.40 in interest is owing (representing 9% interest on $700,000 from November 21 to December 15, 2003), but that interest on the unpaid interest has been accruing while that matter has been on appeal and continues to accrue. His argument as to interest on the interest was not raised in his point relied on, however, so we will not consider it further. Mo. R. Civ. P. 84.13(a). Defendants in the underlying litigation contend that the order approving the settlement, because it did not constitute a final judgment, is not subject to the post judgment interest rule. They further argue that interest is not due because the court did not set a date certain for payment of the settlement proceeds into the court’s registry.

There do not appear to be any cases on point, but the statute itself applies to “all money due upon any judgment or order of any court.” § 408.040.1 (emphasis added). While the proceeds could not be paid to the parties until after the apportionment hearing, there was a court order requiring that the money be paid into the court’s registry. Under the plain meaning of the statute, interest is owed by the defendants from the date the court signed the order approving the settlement and requiring payment of the funds until the check was actually deposited. Mr. Wilson’s third point is granted. On remand, the interest will have to be added to the total available for apportionment.

Conclusion

The circuit court incorrectly applied section 537.095 in two respects: failing to make a final overall apportionment in the manner prescribed by the Parr court and requiring Mr. Wilson to pay expenses; thus, it abused its discretion in denying Mr. Wilson’s motion for new trial. City of Pleasant Valley, 991 S.W.2d at 727. The court did not, however, abuse its discretion in making an approximate overall 90/10 apportionment that reflected the testimony and evidence from three hearings as to Ms. Collins’s greater loss. Wright, 908 S.W.2d at 868-69. No new evidence is needed, and remand is limited for the court to enter orders consistent with this opinion. In summary, on remand, the circuit court must follow the requirements of section 537.095.4 as interpreted and applied by the supreme court in Parr and further (i) should adjust the amounts apportioned to Ms. Collins and Mr. Wilson, if it was the court’s intent to make an actual 90/10 split of the total recovery; (ii) determine, on the basis of testimony already adduced whether the amount Mr. Wilson paid to his lawyer was sufficient under quantum meruit; (iii) require Ms. Collins to deduct the $840.61 that Mr. Wilson paid in expenses from the total recovery without thereby reducing Mr. Wilson’s award; and (iv) order the payment of interest on the $700,000 punitive damages settlement. Affirmed in part, reversed in part and remanded.

VICTOR C. HOWARD, P.J., and JAMES M. SMART, J. concur.

      . All statutory references are to RSMo (2000), unless otherwise indicated.

      . The total amount available for apportionment at this hearing included the compensatory damages award with interest and the $20,000 in court costs that the Board of Police Commissioners agreed to pay.

      .This contract provides the lawyer with “Forty (40%) percent of net (after expenses) of any sum over Two Hundred Fifty Thousand ($250,000.00) Dollars and No/00."

      . This contract provides the law firm, after trial, with fifty percent of the total amount received. The contract does not provide for the payment of expenses, other than to state that the client "shall not be liable for actual expenses” if there is no recovery. Ms. Collins did testify during the first apportionment hearing that she understood the agreement to mean that attorney's fees would be calculated from the net of the judgment or settlement proceeds, with expenses being paid first. The agreement that the law firm reached with father's lawyer, who was representing both Ms. Collins and Mr. Wilson until just before the first settlement hearing, provided that "Any distribution of fees derived from the above matter shall be divided after all expenses and costs advanced by” the law firm were reimbursed.

      . As a fairly frequent resident of Kansas and Missouri correctional facilities, Mr. Wilson was considered a potential liability should he actively participate in the wrongful death action. His interests as a member of the class that could recover for the child’s death were protected, in any event, under section 537.095.1, RSMo (2000). Despite that protection, Mr. Wilson did file a motion to intervene before trial began, which motion was granted. His lawyer subsequently made an oral motion for Mr. Wilson to withdraw during a pre-trial conference, and that motion was granted. Because Mr. Wilson was no longer a named plaintiff, his lawyer participated mainly as an observer during trial.

      . The parties dispute whether this agreement was limited to the first apportionment hearing or was to apply throughout. Given that the court is vested with the discretion to apportion wrongful death damages in proportion to the losses suffered by each party entitled to take a share, any contractual agreements would not be binding on the court under section 537.095.3. The agreement embodies this principle and provides, in relevant part: the parties recognize “that the Court alone has the authority to apportion net proceeds of any recovery in this action, and make the following agreement: Valerie Collins will not object to Timothy Wilson, Sr. receiving forty percent of the net proceeds of any recovery (after deduction of attorney fees and expenses) in this action.” (emphasis in original). The parties further recognize "that if there is a recovery, the Court will hold an evidentiary hearing and the Court will make an independent decision pursuant to § 537.095 V.A.M.S. as to the allocation of net proceeds of recovery between Valerie Collins and Timothy Wilson, Sr.” Any claims, therefore, that Mr. Wilson bases on this agreement are not relevant to our determination in this proceeding.

      . In light of the testimony presented during this hearing, Mr. Wilson did not establish any loss suffered as a result of his son’s death.

      . The circuit court’s written order as to the compensatory damages recovery apportions Ms. Collins’s and Mr. Wilson’s shares after taking fees and expenses into account. But during the apportionment hearing which preceded this order, the court made virtually the same distribution by starting with the expenses and the apportionment to Ms. Collins and Mr. Wilson, and then, taking into account Ms. Collins’s fifty percent contingency fee agreement with her law firm, deducting all of the attorney’s fees from her share. Mr. Wilson refers to this distribution as a 509:1 ratio, apparently recognizing that the apportionment was made first, and then Ms. Collins’s share was reduced by payment of expenses and fees to both parties’ lawyers.

      . According to that contract, father’s lawyer and the law firm would split the fees 50/50 unless another lawyer was hired to assist, and then the split would be 40/40/20.

      . Before fees and expenses, Ms. Collins share was $1,108,000.

      . Before fees and expenses, Mr. Wilson share was $114,000.

      . During the second and third apportionment hearings, the circuit court indicated that the parties would not be allowed to revisit the earlier awards made. This does not mean, however, that the court did not consider all previous evidence and testimony in making the third apportionment. In fact, just before apportioning the $700,000 settlement, the court referred to the earlier testimony as a foundation for its decision.

      . Point one contains three subparts which are identical to three of the seven subparts of point two.

      . As fully discussed infra, father’s lawyer’s contract with Mr. Wilson and Ms. Collins was prematurely terminated as to both and, as such, he was only entitled to a fee award based in quantum meruit as to both.

      . We will not address this point, because we have found tin erroneous application of the law as to Mr. Wilson's first two points and are reversing in part.

      . Mr. Wilson’s reply takes issue with Ms. Collins’s failure to address his second and fourth points on appeal and urges this court to deem her action as a concession on attorney’s fees and litigation expenses. While issues not presented in an appellate brief are abandoned and will not be considered by an appellate court, this principle operates differently on appellants and respondents. Boyer v. Grandview Manor Care Cir., Inc., 793 S.W.2d 346, 347 (Mo. banc 1990). "The respondent’s duty is no broader than to support the judgment.” Id. Ordinarily, the respondent must respond to the points preserved, id., but we have been unable to locate a case, rule or statute that supports the drastic remedy Mr. Wilson recommends. We will consider all properly preserved issues on the merits and will assume that Ms. Collins opposes all points raised, noting that she decided not to address three of Mr. Wilson's points because two of them were "a mere rehashing of the arguments made in Point I,” and the third was not directed against her.

      . As we point out infra, the circuit court did adjust the percentage of each party’s share after the third hearing to account for the previous awards.

      . Mr. Wilson also argues, without citation to any legal authority, that punitive damages should be apportioned differently from compensatory damages in a wrongful death action, but because he does not raise the issue in his point relied on, we will not consider the matter further. Mo. R. Civ. P. 84.13(a).

      . We give great deference to a trial court’s resolution of conflicts in the evidence. Haynes v. Bohon, 878 S.W.2d 902, 904 (Mo.App. E.D.1994).

      . While we hesitate to predict the future, based on Mr. Wilson's conduct to date and his inability during his son’s life to stay out of prison, we do not believe that he would have been available to benefit from his son’s care and guidance for long, sustained and continuous periods of time during the remainder of Mr. Wilson’s life.

      . As noted above, the circuit court stated during the third apportionment hearing that Mr. Wilson, according to its rough calculation, would be receiving an overall ten percent share of the recovery.

      . Ms. Collins received no services from this attorney and owes him nothing in quantum meruit after June 2000, because (i) her law firm had sole responsibility for the litigation once Mr. Wilson was no longer a named party, i.e., conducting the trial, protecting the compensatory damages award on appeal, and negotiating the punitive damages settlement; and (ii) father’s lawyer was suspended from the practice of law and could do nothing after January 2002, before the second and third apportionment hearings.

      . While father’s lawyer testified that he had put more than 600 hours into the case before the first settlement hearing, he did not provide any documentation to support this estimate.

      . In practical effect, under Parr, 16 S.W.3d at 339, while the expenses are deducted by the claimant from the judgment, because those awards apportioned to other persons eligible to share the proceeds remain unaffected by this deduction, the expenses are actually being shouldered by the claimant. We are not entirely certain that this is what the legislature intended. In cases where the claimant is receiving the lion’s share of the award, it makes sense that the claimant should pay the expenses of litigation; but a more even split of the proceeds makes this procedure under Parr questionable. If the court were to make a percentage apportionment, the percentage could then be applied to the net proceeds after expenses have been deducted. Nevertheless, with Parr as controlling authority, the circuit court will be required to order Ms. Collins to deduct all of the expenses from the total recovery and set-dements on remand without disturbing Mr. Wilson's apportioned share.

      . Mr. Wilson is not correct in claiming that the court did not consider all the evidence and the previous awards in making the final apportionment. The court adjusted the apportionment ratio after the third hearing so that Mr. Wilson would receive an approximate overall ten percent share.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Marti FRUMHOFF, Appellant, v. MISSOURI DEVELOPMENT FINANCE BOARD, Missouri Department of Natural Resources, Missouri Department of Economic Development, St. Louis' U.S. Custom House and Old Post Office Building Associates, L.P., The DESCO Group, Inc., and DFC Group, Inc., Respondents.
    No. WD 65052.
    Missouri Court of Appeals, Western District.
    Nov. 15, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 20, 2005.
    Application for Transfer Denied Jan. 31, 2006.
    Matthew J. Ghio, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Ronald Molteni, Assistant Attorney General, Jefferson City, MO, for Respondents Missouri Department of Natural Resources and Missouri Department of Economic Development.
    Michael A. Garvin, St. Louis, MO, for Respondent Missouri Development Finance Board.
    Edward M. Goldenhersh and David P. Niemeier, St. Louis, MO, for Respondents St. Louis’ U.S. Custom House and Old Post Office Building Associates, L.P., The DESCO Group, Inc., and DFC Group, Inc.

      Before: SPINDEN, P.J., and HOWARD and HOLLIGER, JJ.
   Order

PER CURIAM.

Appellant, Marti Frumhoff (“Frum-hoff’), appeals from a judgment in the Circuit Court of Cole County dismissing her Petition for Declaratory Judgment against Respondents Missouri Development Finance Board, Missouri Department of Natural Resources, Missouri Department of Economic Development, St. Louis’ U.S. Custom House and Old Post Office Building Associates, L.P., The DESCO Group, Inc., and DFC Group, Inc. Frum-hoff argues two points on appeal. In Point I, Frumhoff argues the trial court erred in dismissing her petition because taxpayers have standing to ensure government officials abide by the law when spending public revenue. In Point II, Frumhoff argues the trial court erred in dismissing her petition, because her claims were ripe for adjudication in that the application for a certificate to receive Missouri State Historic tax credits for a rehabilitation project is of such immediacy that a justiciable controversy exists.

We have reviewed the parties’ briefs and the record on appeal. No error of law appears. A written opinion would serve no jurisprudential purpose. We have, however, prepared a memorandum for the use of the parties only, setting forth the reasons for our decision.

We affirm the judgment pursuant to Rule 84.16(b).


text:
    STATE of Missouri ex rel. CITY OF SPRINGFIELD, Missouri, a Municipal Corporation, Plaintiff-Relator, v. The Honorable Jason BROWN, Circuit Court of Greene County, Missouri, Associate Circuit Judge, Division 22, Defendant-Respondent.
    No. 27027.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 21, 2005.
    Motion for Rehearing and Transfer Denied Dec. 12, 2005.
    Application for Transfer Denied Jan. 31, 2006.

      Daniel R. Wichmer, Carl Yendes, Springfield, MO, for relator.
    Darrell L. Moore (no brief filed), Springfield, MO, for plaintiff State of Missouri.
    Anissa F. Whittle-Moore, Springfield, MO, for respondent.
    Before PREWITT, P.J., PARRISH, J., and RAHMEYER, J.
   PER CURIAM.

The City of Springfield (“the City”) sought a writ to prohibit the Honorable Jason Brown (“Respondent”) from entering a discovery order that the City provide to William Harris (“Defendant”):

ALL NON-ATTY/CLIENT STATEMENTS IN ITS POSSESSION BY THE SUBJECT OFFICERS, ONLY REGARDING THE SUBJECT INCIDENT, AND, TO PROVIDE COPIES OF ANY CITIZEN COMPLAINTS ALLEGING VIOLENCE OR EXCESSIVE FORCE BY SAID OFFICERS FROM 2/4/99 TO 2/4/04.

We entered a preliminary order but, finding that order was granted improvidently, we now hereby quash the order.

Defendant has been charged with three counts of third-degree assault on law enforcement officers Phillip Yarnell, Dale Sokolik and Dustin Donaldson. He claims that he did not assault the officers, but acted in self-defense when the officers attacked him at the site of an arrest. He subsequently filed a complaint against the officers and an internal affairs investigation was done by the City. Defendant was provided a copy of the results of the internal affairs investigation; however, he was not provided with the officers’ statements concerning the event nor provided with other citizen complaints about the three officers.

Although a writ of prohibition is the proper remedy for an abuse of discretion during discovery, State ex rel. Ford Motor Co. v. Nixon, 160 S.W.3d 379, 380 (Mo. banc 2005), a trial court rules on discovery requests in the first instance, and the appellate courts will prohibit a trial court from acting only in rare circumstances where the trial court abuses its discretion. State ex rel. Williams v. Lohmar, 162 S.W.3d 131, 133 (Mo.App. E.D.2005). Prohibition will lie to prevent the forced disclosure of information during discovery, particularly when the information is protected by a statute, rule or privilege. State ex rel. White v. Gray, 141 S.W.3d 460, 463 (Mo.App. W.D.2004). The purpose of a writ of mandamus is to execute a clear, unequivocal, and specific right, and not to adjudicate. State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 576 (Mo. banc 1994). A relator seeking a writ of prohibition has the burden of showing that the trial court’s ruling is beyond the bounds of judicial discretion. Williams, 162 S.W.3d at 133. The burden of persuasion lies with the relator. State ex rel. MacDonald v. Franklin, 149 S.W.3d 595, 597 (Mo.App. S.D.2004).

The City argues that:
[it] is entitled to an order prohibiting Respondent from ordering production of the internal affairs statements of Officers Phillip Yarnell, Dale Sokolik and Dustin Donaldson, as well as any citizen complaints on each of these officers alleging violence or excessive force from 1999 to 2004 because the documents are privileged under federal and state case law in that Defendant, who was charged with three counts of third[-]degree assault on a law enforcement officer cannot, as a matter of law, make any showing that the privileges attached to such information should be disregarded for any use in his defense against the underlying criminal charges, and, further during proceedings before Respondent, Defendant made no showing of either relevancy or materiality of the information nor did he state an articulable reason how such information would provide a defense to the underlying charges.

We read the City’s point and argument to be two-fold, (1) that the information sought by Harris is privileged and (2) that Harris made no showing of either relevancy or materiality. We reject both claims.

The City’s argument, contrary to its point relied on, focuses on prior discovery requests by Defendant, but does not explain why the actual order made by Respondent was an abuse of discretion. For instance, the City alludes to section 610.011 et seq. (the Sunshine Law) in the general sense of internal affairs investigations, but never explains how this specific order violates any provisions of the Sunshine Law other than to state “[t]he working files of the Internal Affairs division, are better categorized as closed records under § 610.021(3) ... and § 610.021(13)....” We note Respondent did not order all the working files of the internal affairs division to be released to Defendant; he ordered statements given by the officers, and citizen complaints.

Inexplicably, the City cites a case, Wolfskill v. Henderson, 823 S.W.2d 112, 114 (Mo.App. W.D.1991), for the proposition that “[t]he records sought by Defendant, which involve police officer conduct and fitness matters, are recognized as privileged from public disclosure and criminal prosecutions” without distinguishing a case from our Supreme Court which expressly overruled it. In Guyer v. City of Kirkwood, 38 S.W.3d 412 (Mo. banc 2001), the court analyzed various provisions of the Sunshine Law; we find the analysis to be instructive and binding on this Court. The court set forth section 610.100.2, which provides in relevant part:

Each law enforcement agency of this state, of any county, and of any municipality shall maintain records of all incidents reported to the agency, investigations and arrests made by such law enforcement agency. All incident reports and arrest reports shall be open records. Notwithstanding any other provision of law other than the provisions of subsections 4, 5 and 6 of this section or section 320.083, RSMo, investigative reports of all law enforcement agencies are closed records until the investigation becomes inactive.

Id. at 413. • The court noted that under this statute, “incident reports” are open records, and by implication, once the ensuing investigation becomes inactive, “investigative reports” become open records as well. Id. at 414.

In contrast, the court noted section 610.021 provides in pertinent part:

Except to the extent disclosure is otherwise required by law, a public governmental body is authorized to close meetings, records- and votes, to the extent they relate to the following:
(3) Hiring, firing, disciplining or promoting of particular employees by a public 'governmental body when personal information about the employee is discussed or recorded.... As used in this subdivision, the term “personal information” means information relating to the performance or merit of individual employees;
(13) Individually identifiable personnel records, performance ratings or records pertaining to employees or applicants for employment ...[.]

Id. The court then held:

[T]he permissive closure available in section 610.021 is qualified by its own térms, that is, récords may not be closed under that section “to the extent disclosure is otherwise required by law.” Where, as here, a specific statute requires disclosure of a specific type of public record, section 610.021 may not be relied on to maintain closure, although it would otherwise apply.

Id.

In analyzing whether more than one provision of Chapter 610 applies, the court reasoned:

[T]he decision to open or close the record must be informed by the express public policy stated in section 610.011.1, which is that all records of public governmental bodies are presumed to be open records and that the exceptions in sections 610.010 to 610.028, including those in section 610.021, are to be strictly construed to promote that policy. In effect, section 610.011.1 should be used as a tiebreaker in favor of disclosure when records fit equally well under two specific but opposite provisions of the Sunshine Law.

Id.

The court specifically noted the City of Kirkwood’s reliance on Wolfskill for the proposition that all records of internal investigations of police officers can be closed as personnel records to be misplaced. Id. The court also noted that Wolfskill was decided when a different version of section 610.100 was in effect; in fact, the version in effect at the time of Wolfskill did not refer to incident reports or investigative reports, concluding that to the extent that Wolfskill could be read to hold that records of internal investigations into criminal misconduct may be closed under section 610.021, the case was inconsistent with the current version of section 610.100 and was not to be followed. Id. We reject the City’s first contention that there is a privilege for the ordered documents.

The second prong of the City’s argument is that Defendant made no showing that the requests were relevant and material, in other words, subject to discovery. The City’s initial argument is that Defendant did not make an offer of proof as to why the requested documents are relevant and material. The City cites to a case for the general proposition that to preserve for an appeal a claim of error when an objection is made, the offer of proof must be definite, specific, and demonstrate why the evidence is relevant. See State v. Comte, 141 S.W.3d 89, 93 (Mo.App. S.D.2004) (holding that, when an objection to proffered evidence is sustained, an offer of proof to preserve a claim of error for appeal must be definite, specific and demonstrate why the evidence is relevant). The case has no relevance in this case when it is the City that is appealing the grant of a discovery request. Defendant had no obligation to present an offer of proof in his discovery request that was granted. The court heard extensive arguments by counsel and implicitly found the requested documents were relevant and material to the defendant’s case.

The court ordered two types of discovery, the statements of the officers and citizen complaints alleging excessive violence or excessive force. We first address the requested statements of the officers. Pursuant to criminal Rule 25.03, disclosure is required of all written and recorded statements of persons whom the state intends to call as witnesses at any hearing or trial. The officers are the claimed “victims” of the assault; by rule, then, Defendant certainly has a right to access the written and recorded statements of the primary witnesses against him at the trial. The decision regarding relevancy and materiality of such statements has been codified in a rule of criminal procedure and we need go no further; therefore, Respondent’s order regarding the non-attorney/client statements of the officers was certainly not an abuse of discretion on the claim of relevance and materiality.

Next, the City argues that the citizen complaints of excessive violence by the officers are irrelevant because no showing was made that Defendant was aware of the officers’ reputations for violence. A review of the misdemeanor information indicates that Defendant was charged with third-degree assault and is claiming that he was acting in self-defense because the officers were the initial aggressors. We find a recent pronouncement from our Supreme Court to be on point.

In State v. Gonzales, 153 S.W.3d 311 (Mo. banc 2005), the court, noting there was a jury instruction on the precise issue of the justification of use of force in self-defense, held the admission of the “victim’s” reputation was admissible on the question of who was the initial aggressor, regardless of whether the defendant in the criminal case had knowledge of that reputation. Id. at 314. The court noted that the defendant’s belief that the victim was the initial aggressor and the reasonableness of that belief do not bear on the determination of who actually “started it” because the inquiry is not that of a subjective belief but of an objective occurrence. Id. The court concluded the evidence of the victim’s reputation for violence, aggressiveness, and turbulence to prove who was the initial aggressor was relevant and highly probative on the issue in light of disputed accounts of the altercation and found an abuse of discretion in the exclusion of such evidence. Id.

The allegations of Defendant, who has been charged with assault on three victims, are that the officers were in fact the aggressors. .We find the City has failed to establish that the requested non-attorney/client “statements” of the officers in connection with this particular investigation and any citizen complaints alleging violence or excessive force involving these three officers from 1999-2004 are protected by any privilege. Likewise, the City has failed in its claim that the discovery requests are irrelevant and immaterial. The City has failed in its burden to show that Respondent’s ruling is beyond the bounds of judicial discretion. We hereby quash the preliminary order.

      . All references to statutes are to RSMo 2000, unless otherwise specified.

      . The City also contends that the court should have made a finding that the files contained information material to Defendant's guilt or impeachment or favorable to Defendant. The contention is not in the point relied on, nor is it supported by any cases, nor do we hold that the court had any obligation to make an express finding as to the contents of the requested documents being relevant.

      . All rule references are to Missouri Court Rules (2005), unless otherwise specified.

      . MAI-CR3d 306.06.


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    STATE of Missouri ex rel. Carla MANN, Individually and as Next Friend of Skylar Leigh Mann, et al., Plaintiffs-Relators, v. The Honorable J. Dan CONKLIN, Circuit Court of Greene County, Missouri, Circuit Judge, Division 3, Defendant-Respondent.
    No. 26879.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 21, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 8, 2005.
    Application for Transfer Denied Jan. 31, 2006.

      Steve B. Garner, Jeff Bauer, Springfield, MO, for Relators.
    Randall R. Cowherd, Lucas C. Smith, Ronald E. Mitchell, Joplin, MO, for Respondent.
   NANCY STEFFEN RAHMEYER, Judge.

Relators, the survivors of the decedent Robert Mann (“Mann”), have petitioned this Court to issue a writ of mandamus ordering the Honorable J. Dan Conklin (“Respondent”) to reverse his decision dismissing for lack of jurisdiction Robert Glenn (“Defendant”) from a lawsuit for damages for the wrongful death of Mann. Defendant is the owner of Robert Glenn Productions, a sole proprietorship, which provides sound, staging, and lighting equipment for area concerts. Robert Glenn Productions owns the sound and lighting equipment and generally transports it to the concert venues using box trucks rented from Ryder Truck Rental. Mann worked with Robert Glenn Productions as a part-time laborer for two years; his duties included loading, transporting, setting up and tearing down the equipment, and operating the trucks as part of his employment.

On May 10, 2003, Mann was driving one of the Ryder trucks loaded with lighting equipment west on 1-44; a co-employee, Justin Glenn, rode in the truck with Mann. Defendant drove the other Ryder truck loaded with sound equipment and he, too, had another employee in his cab. While the two vehicles were traveling along the interstate, a collision occurred and Mann was crushed to death in the cab of his Ryder truck. The parties agree that a claim was filed against Robert Glenn Productions with the Division of Workers’ Compensation (“the Division”) for the wrongful death of Mann and death benefits have been and are continuing to be paid.

Relators also brought a claim in the Circuit Court of Greene County, claiming negligence against Defendant and others for the death of Mann. In response, Defendant moved for summary judgment claiming he was entitled to have the claim dismissed as a co-employee of Mann; he argued the claim should be dismissed because Relators did not show “something more” needed to overcome the exclusive jurisdiction of the Workers’ Compensation Law and that he was an employer of Mann. The court granted Defendant’s motion for summary judgment and dismissed Defendant from the lawsuit. The dismissal order is not found in the record; however, the docket entry states that Respondent dismissed the cause against Defendant for lack of jurisdiction. Relators brought a petition for a writ and a preliminary order in mandamus was issued on April 15, 2005. We find our preliminary writ to have been improvidently granted and hereby quash our preliminary order.

Whenever it appears by suggestion of the parties or otherwise that the Workers’ Compensation Law is applicable, the court shall treat it as a motion to dismiss for lack of subject matter jurisdiction and shall dismiss the action. State ex rel. J.E. Jones Constr. Co. v. Sanders, 875 S.W.2d 154, 157(Mo.App. E.D.1994). Issuing a writ of mandamus falls within the sound discretion of this Court, and even if the trial court misinterpreted its jurisdiction, Relators are not necessarily entitled to its issuance. See State ex rel. Meyer v. Ravenhill, 20 S.W.3d 543, 545 (Mo.App. W.D.2000). The purpose of a writ of mandamus is to execute a clear, unequivocal, and specific right, and not to adjudicate. State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 576 (Mo. banc 1994).

Although both parties in this proceeding accept the premise that Defendant was a co-employee of Mann, and not his employer, we find evidence supporting a determination by the trial court that defendant was in fact Mann’s employer. The rights of the parties concerning Workers’ Compensation claims are controlled by such designations. The statutory definition of “employer” in Missouri’s Workers’ Compensation Law, under section 287.030.1(1), provides in pertinent part:

Every person, partnership, association, corporation, limited liability partnership or company, trustee, receiver, the legal representatives of a deceased employer, and every other person, including any person or corporation operating a railroad and any public service corporation, using the service of another for pay[.]

The statutory definition of “employee,” pursuant to section 287.020.1, prescribes that an employee is:

[E]very person in the service of any employer, as defined in this chapter, under any contract of hire, express or implied, oral or written, or under any appointment or election, including executive officers of corporations. Any reference to any employee who has been injured shall, when the employee is dead, also include his dependents, and other persons to whom compensation may be payable.

Missouri’s Workers’ Compensation Law clearly distinguishes the differences in rights, duties, scope of coverage, and exemptions between “employers” and “employees.” Bethel v. Sunlight Janitor Serv., 551 S.W.2d 616, 618(Mo. banc 1977). An “employer” does not fall within the definition of an “employee” as employee is defined in section 287.020.1. Id. at 619. An individual cannot be both an employer and an employee for purposes of the Workers’ Compensation Law. Id. The issue in Bethel was whether a sole proprietor of an unincorporated business — an employer — was eligible to receive workmen’s compensation benefits as an employee when he was injured in an accident while performing duties regularly performed by one of his employees. Id. at 617. The court held that the sole proprietor was not eligible to receive benefits because he was not an employee. Id.

The general assembly subsequently changed the law to allow partners or sole proprietors to individually elect to procure insurance policy protection for themselves against injuries sustained while in the pursuit of their vocation, profession or business, pursuant to the Workers’ Compensation Laws. Section 287.035.1. Nonetheless, in Harrison v. Harrison Turf Co., 908 S.W.2d 159, 161 (Mo.App. E.D.1995) the eastern district reasoned that the General Assembly did not abrogate the Bethel court’s ultimate conclusion that, under the compensation law, a sole proprietor cannot take on simultaneous employer/employee status. Id. at 162. A sole proprietor or a member of a partnership may elect to procure insurance policy protection for themselves, but that election does not create a dual capacity as both an employer and employee. Id.

Because Defendant could not be both the employer and a co-employee, the trial court could have properly found, and thus did not abuse its discretion, that the Division had exclusive and original jurisdiction to determine whether the injury fell within the Workers’ Compensation Law. That decision is supported by Defendant’s testimony that he was a sole proprietorship and by the record provided to the trial court. Although Relators rely upon an exhibit presented to the trial court from the Secretary of State’s office showing that Robert Glenn Productions was a dissolved corporation, but which faded to establish a precise date for the dissolution of the corporation, a mere speculation that Robert Glenn Productions may not have been dissolved at the time of the accident does not compel a conclusion that the trial court abused its discretion in dismissing the suit. In other words, Relators did not establish a clear, unequivocable, and specific right to a writ of mandamus on the basis that Robert Mann Productions may have been a valid corporation. Furthermore, Mann sought benefits under the Workers’ Compensation Law. It is for the Division to determine whether Mann was acting within the course and scope of his employment. State ex rel. Consumer Adjustment Co., Inc. v. Anderson, 815 S.W.2d 84, 86(Mo.App. E.D.1991). For the purposes of deciding whether to grant this writ, we assume the Division has done so.

Therefore, we find that the trial court properly perceived its jurisdiction and there were sufficient facts before the trial court to dismiss the negligence cause of action for lack of subject matter jurisdiction. The preliminary order in mandamus is quashed.

PREWITT, P.J., PARRISH, J., concur.

      . As set forth later in the opinion and for the sole purpose of deciding whether a writ of mandamus is appropriate, there was a sufficient basis for the trial court to determine it lacked jurisdiction on the basis that Robert Glenn Productions was a sole proprietorship.

      . Whether Mann transported the equipment or operated the trucks as a part of his employment are disputed facts; however, neither fact affects our analysis of whether a writ of mandamus should be issued.

      .Although the lack of subject matter jurisdiction may be raised in a motion for summary judgment, as Defendant did in this case, the motion will nevertheless be treated as a motion to dismiss under Rule 55.27. Romero v. Kansas City Station Corp., 98 S.W.3d 129, 135 (Mo.App. W.D.2003). As a motion to dismiss, the trial court in this case was permitted under Rule 55.28 to consider the facts in the record, as well as any affidavits, oral testimony, and depositions. Id. at 137.

      . All references to statutes are to RSMo 2000, unless otherwise specified.

      . If the Division found the death to be com-pensable, then the circuit court must dismiss the action for want of jurisdiction. If the Division found the death not to be compensa-ble, or if Relators dismiss their workers’ compensation claim, then the circuit court could proceed with the negligence action. See Hannah v. Mallinckrodt, Inc., 633 S.W.2d 723, 726-27 (Mo. banc 1982) (holding that the Division has exclusive and original jurisdiction to determine whether an injury falls within the Workers’ Compensation Law; this was the legislative intent in providing the Division with exclusive jurisdiction, and a circuit court cannot have concurrent jurisdiction on this issue).