Harland Hawley v. Edward D. Tseona

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
HARLAND HAWLEY, ET AL., )
)
Respondents, )
)
v. ) WD76358
)
EDWARD D. TSEONA, ) Opinion filed: November 25, 2014
)
Appellant. )
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI
The Honorable Michael W. Manners, Judge
Before Division Three: Gary D. Witt, Presiding, Judge,
Joseph M. Ellis, Judge and Anthony Rex Gabbert, Judge
Edward Tseona appeals from a judgment entered against him in the Circuit Court
of Jackson County in a wrongful death action brought by the family of Greg Hawley
("Decedent"). Specifically, Appellant challenges the trial court's award of prejudgment
interest and the amount of compensatory damages awarded to Respondents. For the
following reasons, the trial court's decision to award prejudgment interest is reversed; in
all other respects, the judgment is affirmed.
On the evening of January 10, 2009, Appellant was recklessly driving a vehicle
on I-70 in Kansas City, Missouri, racing another vehicle at speeds in excess of 90 miles
per hour, when he struck Decedent's truck, knocking it off the highway and causing a
rollover accident. Decedent suffered massive injuries.1 He was taken by ambulance to
Truman Medical Center, where he died approximately four hours later. Appellant
eventually pleaded guilty to vehicular manslaughter and reckless driving and was
sentenced to three years imprisonment.2
Respondents were all family members of Decedent. Karen Hawley was his wife;
Harland and Florence Hawley were his parents; and Derek Hawley, Megan Weist, and
Kristin Smith were his children.
On January 25, 2010, Respondents Karen Hawley, Derek Hawley, Megan Weist,
and Kristin Smith sent to Appellant's attorney a "Prejudgment Interest Affidavit" signed
by all of them, along with some supporting documents.3 Within that affidavit, they
offered to settle their wrongful death claims against Appellant for $1,000,000.00. A
separate affidavit with the same supporting documents was sent by Harland and
Florence Hawley. They similarly offered to settle their wrongful death claims against
Appellant for $1,000,000.00. That same day, Respondents collectively filed a wrongful
death action against Appellant in the Circuit Court of Jackson County. The settlement
offers were not accepted by Appellant.
By agreement of the parties, the case was tried to the court in a four-day trial
beginning on July 30, 2012. Liability for actual damages was conceded, and the issues
presented were (1) whether aggravated circumstances damages should be awarded
and (2) the amount of damages to be awarded.
1
Decedent sustained blunt force trauma to the head and neck; blunt force injuries to the chest and
abdomen; fractures of several vertebrae, the right clavicle, mid-sternum, and multiple ribs; an open
compound fracture of the left humerus; and multiple lacerations and abrasions.
2
Appellant served 120 days of shock incarceration and was placed on probation for the remainder of his
sentence.
3
The attached documents were a copy of the police report, a copy of the information against Appellant, a
copy of decedent's death certificate, a copy of the bill for funeral and burial costs, and a bill for the
ambulance service.
2
Following trial, Respondents filed a motion with the court requesting that pre-
judgment interest be awarded pursuant to § 408.040.2. Appellant opposed that motion,
contending that Respondents had failed to comply with the requirements of the statute
and were, therefore, not entitled to prejudgment interest.
Subsequently, on December 18, 2012, the trial court entered its judgment finding
Respondents had sustained $14,000,000.00 in actual damages4 and that $100,000.00
should be awarded due to aggravated circumstances.5 The overall award was reduced
by $1,000,000.00 based upon money already paid in a settlement with Appellant's
employer. The court found that Respondents made a proper demand for prejudgment
interest under § 408.040 and were entitled to prejudgment interest on both the actual
damages award and aggravating circumstances award. The court calculated the
prejudgment interest owed to be $946,465.20. The court further ordered post-judgment
interest to be paid at a rate of 5.13% per annum. Appellant brings two points on appeal.
In his first point, Appellant claims that the trial court erred in awarding
Respondents prejudgment interest. As a threshold matter, we must address
Respondents' contention that Appellant waived any challenge to the trial court's award
of pre-judgment interest by voluntarily making a payment of a portion of the overall
award to Respondents following the entry of the judgment but before Appellant's Motion
to Amend, Correct, Modify and Re-Open Judgment had been ruled upon. Respondents
contend that a portion of that partial payment should be viewed as applying to the award
of prejudgment interest and argue that such a partial payment of some of the
4
The court found the actual damages sustained by Respondents to be as follows: Karen Hawley
($5,000,000.00), Derek Hawley ($2,000,000.00), Kristin Smith ($2,000,000.00), Megan Weist
($2,000,000.00), Harland Hawley ($1,500,000.00), and Florence Hawley ($1,500,000.00).
5
The court apportioned that amount among the parties.
3
prejudgment interest constitutes an act impliedly recognizing the validity of the
prejudgment interest award. Respondents claim that Appellant should, therefore, be
considered to have waived his claim on appeal or to be otherwise procedurally
estopped from challenging the prejudgment interest award on appeal.
Certainly, cases have held that "a party may procedurally estop himself from
taking an appeal by performing acts after the rendition of the order or judgment which
are clearly inconsistent with the right of appeal, and the estoppel may consist of any
voluntary act which expressly or impliedly recognizes the validity of the judgment."
State ex rel. Royce-St. Louis Ltd. Partnership v. Kraiberg, 864 S.W.2d 409, 410
(Mo. App. E.D. 1993). "When an event occurs which makes a decision on appeal
unnecessary or which makes it impossible for the appellate court to grant effectual
relief, the appeal is moot, and we will not exercise jurisdiction over a moot cause." Id. at
411.
The cases relied upon by Respondent are inapposite, however, as they all
involved challenges on appeal to a court ordered transfer of specific property (a deed,
stock shares, and a liquor license) and the appellant had fully transferred that property
before the appeal was heard. See Id. at 410-11; Schulte v. Schulte, 949 S.W.2d 225,
226 (Mo. App. E.D. 1997); Southern Mo. Dist. Council of the Assemblies of God,
Inc. v. Kirk, 334 S.W.3d 599, 601 (Mo. App. S.D. 2011).
In this case, Respondents have presented no evidence that any of the partial
payment made by Appellant was intended as payment of prejudgment interest, and
Appellant has denied such, both at the trial court level and on appeal. Appellant has
maintained that the payment that was made was to cut off the accrual of post-judgment
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interest on the amount of the total judgment that was paid. Such payments to avoid
post-judgment interest are considered involuntary and do not render an appeal moot.
Two Pershing Square, L.P. v. Boley, 981 S.W.2d 635, 639 (Mo. App. W.D. 1998).
Furthermore, Respondents have not indicated, and the record does not reflect, how
much of the total judgment was paid by Appellant. On appeal, Appellant concedes that
the evidence supports an award of actual damages of at least $3,921,735.00. To the
extent that Appellant's voluntary payment did not exceed that amount, it certainly could
not be deemed to be contrary to any of Appellant's positions on appeal or to interfere in
any way with this Court's ability to grant the relief requested on appeal.
Appellant also contends that Respondents should be barred from challenging the
award of prejudgment interest because they did not object to the admission into
evidence of the demand offers. Allowing documents to be admitted as evidence of what
was sent to Appellant is not the same, however, as Appellant conceding that the
documents satisfied the requirements of § 408.040.2.
In short, the record simply does not establish that Appellant waived his claims
related to pre-judgment interest in this case. Accordingly, we must address the merits
of Appellant's claim.
Appellant argues that the trial court erred in awarding prejudgment interest
because Respondents' § 408.040 demand offer did not comply with the requirements of
that statute. He contends that the demands did not contain lists of the names and
addresses of medical providers that had treated the decedent for his injuries and did not
include written authorizations sufficient to allow him to obtain records from the
5
decedent's employers and medical care providers and, therefore, violated the express
terms of the amendments to § 408.040 in 2005.6
Section 408.040.2 "authorizes a court to grant prejudgment interest if a party
meets the requirements in the statute." Hayes v. Price, 313 S.W.3d 645, 653 (Mo.
banc 2010). "Determination of the right to pre-judgment interest is reviewed de novo
because it is primarily a question of statutory interpretation and its application to
undisputed facts." Good Hope Missionary Baptist Church v. St. Louis Alarm
Monitoring Co., 358 S.W.3d 528, 531 (Mo. App. E.D. 2012) (internal quotation omitted
and italics added).
Pursuant to § 408.040.2,7 "[i]n tort actions, if a claimant has made a demand for
payment of a claim or an offer of settlement of a claim, to the party, parties or their
representatives, and to such party's liability insurer if known to the claimant, and the
amount of the judgment or order exceeds the demand for payment or offer of
settlement, then prejudgment interest shall be awarded." Section 408.040.2 specifies,
however, that:
[i]n order to qualify as a demand or offer pursuant to this section, such
demand must:
(1) Be in writing and sent by certified mail return receipt requested; and
(2) Be accompanied by an affidavit of the claimant describing the nature
of the claim, the nature of any injuries claimed and a general computation
of any category of damages sought by the claimant with supporting
documentation, if any is reasonably available; and
6
In the argument portion of his brief, Appellant argues that Respondents also failed to comply with §
408.040.2 by failing to provide reasonably available bills from Truman Medical Center. "Our review is
limited, however, to those issues raised in an appellant's point relied on." Sparks v. Sparks, 417 S.W.3d
269, 291 n.21 (Mo. App. W.D. 2013) (citing Rule 84.04(e)). "Issues that are raised only in the argument
portion of the brief and are not contained in the point relied on are not preserved for appellate review."
Manzella v. Director of Revenue, 363 S.W.3d 393, 395 (Mo. App. E.D. 2012) (internal quotation
omitted).
7
All statutory references are to RSMo 2000 updated through the 2012 Cumulative Supplement.
6
(3) For wrongful death, personal injury, and bodily injury claims, be
accompanied by a list of the names and addresses of medical
providers who have provided treatment to the claimant or decedent
for such injuries, copies of all reasonably available medical bills, a list of
employers if the claimant is seeking damages for loss of wages or
earnings, and written authorizations sufficient to allow the party, its
representatives, and liability insurer if known to the claimant to
obtain records from all employers and medical care providers; and
(4) References this section and be left open for ninety days.
(emphasis added). These itemized requirements for a demand or offer were added
when the statute was amended in 2005. Good Hope Missionary Baptist Church, 358
S.W.3d at 531. "For a party to receive prejudgment interest, the settlement demand
must be proper." Hayes, 313 S.W.3d at 653. Indeed, the Missouri Supreme Court has
indicated that the requirements of § 408.040.2 must be satisfied regardless of whether
the defendant suffered any prejudice as a result. In Emery v. Wal-Mart Stores, Inc.,
976 S.W.2d 439, 448-49 (Mo. banc 1998), the court held that failure to comply with the
registered mail requirement of § 408.040.2 rendered the demand offer ineffective to
obtain prejudgment interest even though the defendant did not deny receipt of the offer
and evidence was introduced that he had actual notice of the offer.
Respondents acknowledge, and the record clearly reflects, that they did not
provide Appellant with written authorizations to allow Appellant to obtain any of the
decedent's medical or employment records. Respondents argue, however, that the
language of § 408.040.2 should be read only to apply to individual plaintiffs who have
the legal authority to personally execute such authorizations. They contend that any
plaintiff without such authority is meant to be exempt from this requirement.
Respondents note that Karen Hawley, as decedent's legal representative, was the only
7
party in this action that had the authority to execute authorizations for the medical and
employment records of the decedent and argue that all of the other plaintiffs should be
deemed to have fully complied with the statute. They further argue that Karen Hawley
should be deemed to have sufficiently complied with the statute under the specific facts
of this case because medical and employment records were not necessary for Appellant
to realize that Respondents damages were in excess of the amount demanded in
settlement.
"In interpreting statutes, this Court ascertains the intent of the legislature from the
plain and ordinary language used and, if possible, gives effect to that intent." Hayes,
313 S.W.3d at 654. "In determining legislative intent, statutory words and phrases are
taken in their ordinary and usual sense." Id. (internal quotation omitted). "'[W]hen
statutory language is clear, courts must give effect to the language as written' and 'are
without authority to read into a statute a legislative intent contrary to the intent made
evident by the plain language.'" English v. Empire Dist. Elec. Co., 220 S.W.3d 849,
857 (Mo. App. S.D. 2007) (quoting Emery, 976 S.W.2d at 448-49).
The plain language of § 408.040.2 requires that a demand offer in a wrongful
death case, to be effective, must be accompanied by certain documentation, including
"written authorizations sufficient to allow the party . . . to obtain records from all
employers and medical care providers." Indeed, the statute was amended by the
legislature in 2005 to specifically require that the listed documents be provided with the
demand. Such amendment reflects a legislative intent that defendants have the benefit
of the required documents and the ability to access and review medical and
employment records in assessing whether to accept the offer of settlement.
8
This Court need not determine whether there might be instances in which
impossibility or even significant difficulty in obtaining the required authorizations or other
documents could absolve a plaintiff of having to provide such documents and still allow
for an award of prejudgment interest. Section 408.040.2 clearly requires, at the very
least, that plaintiffs make a good faith, legitimate effort to provide the required
documents, and in the case at bar, there was no evidence, or even a bare assertion,
that any of the Respondents made any attempt to obtain the required authorizations or
that they had or would have had any difficulty obtaining such authorizations from fellow
plaintiff Karen Hawley.
Respondents also attempt to argue that their affidavits and the other documents
that were supplied contained enough information to allow Appellant to assess liability
and that the damages that would be awarded would exceed the amount of the offer of
settlement and that they, therefore, sufficiently satisfied the purpose of the statute. In
enacting § 408.040.2, the legislature clearly intended for defendants to have more than
the sworn assertions of the plaintiff or plaintiffs from which to assess liability and
damages. As noted supra, in Emery v. Wal-Mart Stores, Inc., 976 S.W.2d 439, 448-
49 (Mo. banc 1998), the Missouri Supreme Court effectively held that the requirements
of § 408.040.2 must be satisfied regardless of whether the defendant suffered any
prejudice as a result. Specifically, the Court held that failure to comply with the
registered mail requirement of § 408.040.2 rendered the demand offer ineffective to
obtain prejudgment interest even though the plaintiff did not deny receipt of the offer
and evidence was introduced that he had actual notice of the offer. Id. In so doing, the
Court emphasized that "when statutory language is clear, courts must give effect to the
9
language as written" and "are without authority to read into a statute a legislative intent
contrary to the intent made evident by the plain language." Id. We are required to
"regard the statute as meaning what it says." Id. at 449.
As Respondents failed to comply with the requirements for a demand offer under
§ 408.040.2 by neglecting to provide the requisite authorizations, they were not entitled
to prejudgment interest under that statute. The trial court erred in concluding
otherwise.8 Accordingly, the award of prejudgment interest is reversed.
In his remaining point, Appellant claims that the trial court erred in finding that
Respondents sustained a total of $14,000,000 in actual damages. Appellant argues
that this award substantially exceeds what is fair and reasonable for the injuries and
damages allowable under the wrongful death statute and is against the weight of the
evidence.
As this was a court-tried case, the trial court's judgment must be affirmed unless
it is not supported by substantial evidence, it is against the weight of the evidence, or it
erroneously declares or applies the law. Gateway Foam Insulators, Inc. v. Jokerst
Paving & Contr., Inc., 279 S.W.3d 179, 184 (Mo. banc 2009) (citing Murphy v.
Carron, 536 S.W.23d 30, 32 (Mo. banc 1976)). "The amount of damages to be
awarded in a personal injury case is left to the discretion of the trial court." Meier v.
Schrock, 405 S.W.3d 31, 35 (Mo. App. E.D. 2013). "Because the trial court, rather than
this Court, weighs the evidence, this Court's review of the damages awarded is limited
to a determination of whether the verdict reflects the substantial evidence presented."
Gateway Foam Insulators, 279 S.W.3d at 184.
8
Having reached this conclusion, we need not address the parties arguments related to the list of medical
care providers and whether what was provided was sufficient to satisfy that requirement.
0
10
"There is no precise formula for determining whether a verdict is excessive, and
each case must be considered on its own facts with the ultimate test being what fairly
and reasonably compensates plaintiffs for the injuries sustained." Lopez v. Three
Rivers Elec. Coop., 92 S.W.3d 165, 175 (Mo. App. E.D. 2002) (overruled in part on
unrelated grounds in Joy v. Morrison, 254 S.W.3d 885 (Mo. banc 2008)). In making
that determination, the evidence must be viewed in the light most favorable to
respondents, giving them the benefit of all reasonable inferences and disregarding
evidence and inferences to the contrary. Gateway Foam Insulators, 279 S.W.3d at
184. "We will not disturb the trial court's determination on the issue of damages unless
the award is manifestly unjust or the amount awarded is so shockingly and grossly
inadequate as to indicate passion or prejudice." Meier, 405 S.W.3d at 35.
With regard to damages in a wrongful death action, § 537.090 provides:
In every action brought under section 537.080, the 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,
having regard to the pecuniary losses suffered by reason of the death,
funeral expenses, and the reasonable value of the services, consortium,
companionship, comfort, instruction, guidance, counsel, training, and
support of which those on whose behalf suit may be brought have been
deprived by reason of such death . . .. In addition, the trier of the facts
may award such damages as the deceased may have suffered between
the time of injury and the time of death and for the recovery of which the
deceased might have maintained an action had death not ensued.
In the case at bar, medical and funeral bills totaling $28,853.73 were admitted
into evidence. Respondents also elicited testimony from their economics expert, Dr.
John Ward, regarding certain economic losses resulting from the decedent's death. Dr.
Ward estimated the loss of financial support resulting from Decedent's death, in light of
his life expectancy and average income, was $2,325,517. He estimated the economic
1
11
value of the loss in household services provided by Decedent to be $437,293 and the
loss of Decedent's property management services to be $658,926. These economic
losses total $3,421,735. While Appellant seeks to make much of the fact that the total
award is over four times larger than the economic losses reflected in the evidence,
"there is no bright-line rule that non-economic damages cannot exceed economic
damages by any certain multiplier." Delacroix v. Doncasters, Inc., 407 S.W.3d 13, 37
(Mo. App. E.D. 2013) (internal quotation omitted).
"Non-economical losses for wrongful death require this court to properly consider
the reasonable value of services, consortium, companionship, comfort, instruction,
guidance, counsel, training and support denied [Respondents] by reason of Decedent's
death." Evans v. FirstFleet, Inc., 345 S.W.3d 297, 304 (Mo. App. S.D. 2011) (internal
quotation omitted). "Section 537.090 'is clear that in determining damages, the fact
finder considers losses with references to the particular persons on whose behalf the
suit was brought and the relationship of the deceased with those particular persons.'"
Id. at 305 (quoting Call v. Heard, 925 S.W.2d 840, 851 (Mo. banc 1996)). "'In other
words, an element of the total damages is based upon the relationship between the
deceased and each individual party to the action.'" Id. (quoting Call, 925 S.W.2d at
851). "In computing the loss of consortium for the loss of a parent for a child, or the loss
of a child for a parent, factors such as the physical, emotional, and psychological
relationship between the parent and child must be considered." Lopez, 92 S.W.3d at
175.
In this case, the trial court had to assess the non-economic damages sustained
by six different people. At trial, extensive evidence was introduced regarding the loss of
2
12
consortium by Karen Hawley and the loss of companionship by all of plaintiffs. They
each testified about the extremely close and loving relationship they had with Decedent,
the significant contact he had with them, and the guidance and help that he regularly
provided to them.
Respondents were also entitled to recover for the pain and suffering sustained by
Decedent prior to death. Delacroix, 407 S.W.3d at 37. "The range between an
inadequate award and an excessive award for pain and suffering can be enormous." Id.
(internal quotation omitted).
As a result of the accident, Decedent sustained blunt force trauma to the head
and neck; blunt force injuries to the chest and abdomen; fractures of several vertebrae,
the right clavicle, mid-sternum, and multiple ribs; an open compound fracture of the left
humerus; and multiple lacerations and abrasions. Testimony was admitted reflecting
that Decedent was conscious and awake when he arrived at the emergency room and
that he did not die until over four hours after the accident. The trial court could
reasonably have concluded that Decedent experienced a significant amount of pain and
suffering as a result of the accident.
Viewed in the light most favorable to Respondents, the record contains
substantial evidence supporting the trial court's compensatory damages award. In light
of the evidence presented, the verdict was not grossly excessive. See Lopez, 92
S.W.3d at 176 (holding compensatory damages awards of $11,000,000 to four wrongful
death claimants of one decedent and $10,000,000 to four wrongful death claimants of
another decedent were not excessive even though the evidence of total economic loss
presented at trial related to each decedent was less than $1,500,000); Delacroix, 407
3
13
S.W.3d at 37 (holding an award of $20,000,000 in compensatory damages to five
wrongful death claimants was not excessive even though evidence of economic
damages was less than half of that); Martin v. Survivair Respirators, Inc., 298 S.W.3d
23, 35 (Mo. App. E.D. 2009) (holding not to be excessive an award of $12,000,000 in
compensatory damages to a decedent firefighter's wife, three children, and mother).
Point denied.
For the foregoing reasons, the trial court's award of prejudgment interest is
reversed. In all other respects, the judgment is affirmed.
________________________________
Joseph M. Ellis, Judge
All concur.
4
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