Opinion
No. 55713
September 21, 1999
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY The Honorable James D. Williamson, Jr., Judge
Douglas R. Horn, 4741 S. Arrowhead Dr., Suite B, Independence, MO 64055, Attorney for James K. Parr, William, C. Partin, 1310 Carondelet Drive, Suite 215, Kansas City, MO 64105, Attorney for Madeleine Carr, Attorneys for Appellant[s].
Robert A. Henderson, 120 West 12th Street, Kansas City, MO 64105, Attorney for Respondent[s].
Before Breckenridge, C.J., Ulrich and Smith, JJ.
Madeline Carr (Mother) and James Parr (Father) appeal the trial court's judgment apportioning settlement proceeds from a wrongful death claim. The decedent was their son, James G. Parr, Jr. Mother and Father argue that the trial court erred in apportioning the proceeds of the settlement because (1) the award to decedent's wife, Carolyn Parr (Wife), was grossly excessive and unsupported by the evidence, while the award to Mother and Father was grossly inadequate and unsupported by the evidence, and (2) in making its apportionment determination, the trial court improperly considered the amount of work performed by Wife's counsel in negotiating the settlement. Because this court finds that the trial court did not abuse its discretion in apportioning the proceeds, the judgment of the trial court is affirmed.
Factual and Procedural Background
James G. Parr, Jr. (Mr. Parr) was riding his motorcycle on Interstate 70 on March 22, 1997, his fifty-fifth birthday. When Mr. Parr began to experience mechanical problems, he pulled over onto the shoulder of the road and stopped to inspect the motorcycle. Another motorcyclist, Ann Bruemmer, was travelling along I-70 and noticed Mr. Parr stopped on the shoulder. She slowed her motorcycle and turned onto the shoulder to offer him assistance. As Ms. Bruemmer slowed down in the right lane, the traffic behind her suddenly slowed in response. While most of the traffic slowed, Ronald Blush, who was driving a loaded tractor trailer weighing in excess of 80,000 pounds and travelling around 80 miles per hour, was unable to slow down. As he quickly approached the slow-moving traffic in front of him, Mr. Blush was unable to control the truck. To avoid colliding with the automobiles in front of him, Mr. Blush veered onto the shoulder, striking and killing Mr. Parr.
Mr. Parr was survived by Mother and Father, Wife, their two children, Steven Parr and Shannon Chamberlain, and four grandchildren. All of the survivors, except the grandchildren, are within the class of individuals who can recover in a wrongful death action under § 537.080, RSMo 1994. On April 15, 1997, Wife commenced a wrongful death action against Mr. Blush, Mr. Blush's employer, Professional Transportation Services, Inc.; and Trans-Lease, Inc., the owner of the truck Mr. Blush was driving. The defendants filed a third-party petition against Ms. Bruemmer, alleging that she was contributorily negligent in Mr. Parr's death. Mother and Father did not intervene in the wrongful death lawsuit, at Wife's request. After negotiations, Wife settled the wrongful death suit for $965,000.00, $15,000.00 of which was designated to pay a portion of the litigation expenses incurred by Wife's attorneys.
All statutory references are to the Revised Statutes of Missouri 1994.
On February 19, 1998, Wife and the defendants, Mr. Blush, Professional Transportation Services, Trans-Lease and Ms. Bruemmer, filed a joint motion for approval of the settlement and entry of judgment pursuant to § 537.095. In the motion, Wife and the defendants asked the court to approve their proposed apportionment of the settlement proceeds. Pursuant to their proposal, Wife's attorneys would receive the $15,000.00 litigation expenses designated in the settlement agreement, plus an additional $8,973.88 for litigation expenses and 33 1/3% of the settlement proceeds for attorneys' fees. Wife and the defendants proposed that Mr. Parr's children receive $20,000.00 each, and that Wife receive the balance of the proceeds. In the motion, Wife and the defendants acknowledged that Mother and Father had not submitted a request for a share of the settlement, but they were represented by counsel. In Wife's trial brief in support of the motion for approval of the settlement, she indicated that she had no objection to the court allocating $10,000.00 each to Mother and Father, as they had not requested a specific amount.
Also on February 19, 1998, Mother's attorney entered his appearance on her behalf and filed "Suggestions of Madeline Carr (Mother of Decedent) Regarding Allocation of Wrongful Death Settlement Under Sec. 537.095 R.S.Mo." In Mother's motion, she argued that a parent's loss of a child, even an adult child, is substantial and that a parent is entitled to a fair percentage of a wrongful death settlement. Based upon the good relationship between herself and her son, she asserted that she was entitled to a 17% to 20% share of the settlement proceeds.
On February 20, 1998, the trial court heard evidence regarding the proposed settlement and apportionment. Due to extenuating circumstances, the court took only the testimony of Mr. Parr's children, Steven Parr and Shannon Chamberlain, on that day. Both children testified to having had a good relationship with their father. They believed that Wife should receive most, if not all, of the settlement proceeds. The children also testified, however, that Wife insisted that they request a portion of the proceeds to set up educational funds for Mr. Parr's grandchildren, so they each requested $20,000.00. Mother's and Father's attorneys questioned Ms. Chamberlain about the contact Mother and Father had with Mr. Parr prior to his death, but Ms. Chamberlain testified that she was not aware of the specific amount of contact Mr. Parr had with his parents. Following the testimony of Mr. Parr's children, the court continued the hearing to February 26, 1998.
During the February 26, 1998 hearing, Wife testified as to her perception of the relationship Mr. Parr shared with his parents. She stated that Mr. Parr and Father occasionally took motorcycle trips together, and that they had been on such an excursion the day before Mr. Parr's death. She remembered Mr. Parr helping Father repair rental properties. She described Mr. Parr's relationship with Father as a good relationship. With regard to Mr. Parr's relationship with Mother, Wife testified that Mother resided in Houston, Texas. Wife and Mr. Parr had never visited Mother in Houston, but on a couple of occasions Mother had visited Wife and Mr. Parr in Kansas City. Wife stated that Mr. Parr had periodic phone conversations with Mother, and that they had a good relationship.
Wife also testified as to her relationship with Mr. Parr. Wife testified that she and Mr. Parr had been married almost thirty-four years at the time of Mr. Parr's death. Wife explained that they had "grown up together" in their marriage and that near the end, they were constant companions. She testified that they shared a "wonderful marriage" and that the past ten years had been "really quite exceptional." For the last ten years of his life, Mr. Parr had worked from their home, operating his jukebox restoration business. Wife stated that she had not been involved in a dating relationship since Mr. Parr's death. She testified that since her husband's death, she has had trouble sleeping and eating, and she characterized her life without him as "very lonely."
In addition to testifying about her non-economic losses as a result of her husband's death, Wife also offered evidence of her economic losses. Wife testified that she paid all of Mr. Parr's funeral expenses, which totaled $7,957.24. Mr. Parr did not have life insurance. With regard to Mr. Parr's business, Wife testified that she believed the business was growing, as evidenced by the increased number of jukeboxes Mr. Parr had purchased and the increased number of phone calls to the business. Wife also testified to the range of prices Mr. Parr charged to rent his jukeboxes and other 1950's-era memorabilia. At the time of Mr. Parr's death, Wife worked at Dillard's, but she and Mr. Parr had discussed her quitting that job to become a full time employee of Mr. Parr's business. At Mother and Father's request, the court asked Wife to submit income tax returns so that it could consider those in making its apportionment decision. Wife complied with the court's request by submitting income tax returns for 1994, 1995, and 1996.
Along with her testimony, Wife offered a report prepared by economist L. Kenneth Hubbell, Ph.D. In his report, Dr. Hubbell calculated the present value of Mr. Parr's lost business income from his jukebox restoration business, "Daddy Cool's," and the present value of his lost household services. Dr. Hubbell determined that the present value of Mr. Parr's lost business income was $1,211,987.00, and the present value of his lost household services was $88,478.00. After making an adjustment to reflect self-consumption, Dr. Hubbell calculated that the total adjusted present value economic loss to Wife resulting from Mr. Parr's death was $1,112,607.00.
Mother and Father objected to the admission of the report, contesting the bases for Dr. Hubbell's conclusions. They argued that in making his calculations, Dr. Hubbell did not rely upon tax returns, journals or accounting records showing the revenues and expenses of the business. They alleged that the report was based entirely upon the statements of Wife and Ben Franse. Mr. Franse was a customer of Mr. Parr's who provided Dr. Hubbell with general information regarding the jukebox restoration business and estimates of the volume of Mr. Parr's business. Mr. Franse also assisted Dr. Hubbell in estimating the projected growth of Mr. Parr's business.
Mother and Father argued that the report was inadmissible because it was not supported by typical and customary data and the conclusions were unfounded and unsupported by evidence. In response, Wife told the court that defendants Professional Transportation Services, Inc., Trans-Lease, Inc., Mr. Blush and Ms. Bruemmer had filed a written stipulation in which they had agreed to the admission of Dr. Hubbell's report "for all purposes," and that the defendants agreed that Wife's economic loss due to the death of her husband was $1,112,607.00, as determined by Dr. Hubbell. Wife argued that Dr. Hubbell's report was relied upon during the settlement negotiations to establish the amount of the settlement, and that Mother and Father waived their objections to the report by failing to intervene and object to the report during settlement negotiations. The court overruled Mother and Father's objection to the report and admitted it, stating that the court would consider counsel's arguments in determining the weight to be given the report.
Wife also testified regarding her request for the allocation of the settlement proceeds. Pursuant to Wife's proposal, $20,000.00 would be allocated to each of her children and $10,000.00 each to Mother and Father, and after the deductions of attorneys' fees and expenses, she would receive approximately $587,000.00 as her share of the settlement.
Mother also testified at the February 26, 1998 hearing. Mother was seventy-six years old and, since 1985, had resided in Houston with her youngest daughter. Mother testified that she was the last person to talk to Mr. Parr before his death. She spoke with him on the phone to wish him a happy birthday immediately before he departed on his motorcycle. She stated that she spoke with him on the phone at least once a month. Mother testified that on two occasions early in Wife and Mr. Parr's marriage, the couple and their children had lived with her in her home. She remembered having frequent contact with her son's family before her move to Houston. After Mother moved, Mr. Parr frequently sent her photographs, and he would send her approximately $100.00 at Christmas. When asked how much of the settlement proceeds she was seeking, Mother testified that she did not know. She testified that she was seeking a portion of the settlement proceeds for her grief, bereavement and the loss of her son, but not for any other reason.
Father was hospitalized and unable to attend the February 26, 1998 hearing. Father's counsel offered Father's videotaped statement, and a letter from John O. Ward, Ph.D., an economic consultant, who had reviewed Dr. Hubbell's calculation of the present value of the economic loss resulting from Mr. Parr's death. In the letter, Dr. Ward criticized Dr. Hubbell's calculations, and opined that Dr. Hubbell's methodology was "not within the generally accepted practices of business valuation or economic loss calculation in the advent of wrongful death." Wife objected to the admission of Father's videotaped statement and Dr. Ward's letter on hearsay grounds. After discussion, the court stated that it would either admit all of the parties' hearsay evidence, which included Dr. Hubbell's report, Dr. Ward's letter, and Father's videotaped statement, or it would admit none of the hearsay evidence. The court left it to the parties to decide. The parties agreed to waive their hearsay objections to all of the hearsay evidence, and the court admitted Dr. Hubbell's report, Dr. Ward's letter, and Father's videotaped statement. The court stated that it would consider the hearsay nature of the evidence when considering the weight to accord it.
In his videotaped statement, Father described his relationship with his son. He stated that losing his son was the most devastating experience of his life and that they had shared a very loving father-son relationship. He stated that they enjoyed the same activities and enjoyed talking and discussing things. Prior to Mr. Parr's death, Father and Mr. Parr saw each other frequently. Mr. Parr helped Father repair his rental properties, and they would work on motorcycles together. Father stated that he felt like he could count on Mr. Parr, and that he had designated Mr. Parr as the executor of his will. Father stated that he did not believe Mr. Parr's business would have expanded beyond the level it was at the time of Mr. Parr's death. Father did not request a specific portion of the settlement proceeds.
Following the hearing, the trial court issued its judgment apportioning the proceeds as follows:
1. $ 10,000.00 to Steven M. Parr
2. $ 10,000.00 to Shannon Chamberlain
Mother's attorney asked that $2,500.00 be deducted from Mother's share and awarded directly to him as attorneys' fees.
4. $ 10,000.00 to [Father]
5. $ 8,973.88 Expenses
6. $313,672.23 Attorney fees to Shugart Thomson [Wife's attorneys]
7. $ 2,500.00 Attorney fees to Partin Partin [Mother's attorneys]
8. $587,353.89 to [Wife]
Mother and Father subsequently filed a timely appeal to this court.
Attorneys' Fees Were Paid From Settlement Fund Before Apportionment
At the outset, Mother and Father allege that the trial court awarded Wife $925,000.00 of the $965,000.00 settlement. Mother and Father determined that Wife was awarded $925,000 by subtracting the amount awarded to them and to Mr. Parr's children from the total settlement, and assigning the remainder to Wife. The trial court, however, did not make such a distribution in its judgment. The trial court ordered that $10,000.00 each be apportioned to Mother, Father, and Mr. Parr's two children, and that Wife receive $587,353.89. The trial court also ordered that Wife's attorneys be paid $313,672.23 for their fees and $8,973.88 toward litigation expenses, which was in addition to the $15,000.00 of litigation expenses directly set aside to them in the settlement agreement. Wife's expenses and her attorneys' fees, both those which were pursuant to contract and those which were set aside directly to her attorneys in the settlement agreement, were not an award to her.
Under § 537.095, the apportionment statute, the court was authorized to award Wife's attorneys their fee from the settlement fund and that award cannot be considered an award to Wife. Section 537.095.4 directs the court to order the claimant to manage the settlement as follows:
(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 attorneys' 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;
(3) To acknowledge satisfaction in whole or in part for the judgment and costs;
(4) To distribute the net proceeds as ordered by the court; and
(5) To report and account therefor to the court. In its discretion the court may require the claimant to give bond for the collection and distribution.
(emphasis added). Section 537.095.4 requires the claimant to pay the "expenses of recovery and collection of the judgment and the attorneys' fees as contracted" out of the settlement fund before apportioning the "net" proceeds to the decedent's survivors. Additionally, attorneys' fees are an expense incurred in creating a settlement fund, and therefore, the deduction of attorneys' fees from the settlement fund prior to apportionment in this case was appropriate. Taylor v. Aspey , 567 S.W.2d 670, 671 (Mo.App. 1978). This court finds that Ms. Parr was awarded $587,353.89 of the settlement proceeds.
Sufficient Evidence Supports the Trial Court's Apportionment of the Settlement Proceeds
On appeal, Mother and Father argue that the award of $587,353.89 to Wife was grossly excessive and the award of $10,000.00 to each of them was grossly inadequate. Mother and Father claim that parents of a decedent are entitled to receive between 15% and 20% of the settlement, and that they each received only 1%. They further argue that the financial report prepared by Dr. Hubbell was inaccurate and was unreliable evidence of Wife's economic losses. Wife contends that she sustained economic losses in excess of one million dollars, as well as substantial non-economic losses, both of which support the trial court's award. She further responds that there is not a set percentage to which the parents are entitled and that Dr. Hubbell's report is probative and reliable evidence of her economic losses. Additionally, she stresses that the report was the basis of the pecuniary loss estimate used to fix the settlement amount. Therefore, she argues that Mother and Father should not benefit from the report creating a substantial settlement fund and then dispute its accuracy in the apportionment proceeding.
Section 537.095.3 provides that upon the settlement of a wrongful death claim, the trial court shall state the total settlement approved, and "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." A proceeding to apportion settlement funds is an equitable proceeding. Taylor , 567 S.W.2d at 671-72. The trial court has discretion to determine the amount to award each party authorized to take under the statute. Keene v. Wilson Refuse, Inc. , 788 S.W.2d 324, 326 (Mo.App. 1990). The trial court "is not required to award an equal portion of the settlement proceeds to each person included in the class of persons entitled to sue for wrongful death." Kavanaugh v. Mid-Century Ins. Co. , 937 S.W.2d 243, 246 (Mo.App. 1996). An appellate court will not disturb the trial court's apportionment unless it is grossly excessive or inadequate. Farr v. Schoeneman , 702 S.W.2d 512, 515 (Mo.App. 1985). This court's task is not to approve or disapprove the trial court's distribution of the settlement fund, but rather to determine "whether the trial court was within the discretion granted by statute and whether the trial court's determination of losses is supported by substantial evidence." Keene , 788 S.W.2d at 326. This court will reverse the trial court's judgment only if the ruling is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976).
The factors relevant to awarding damages in a wrongful death case are relevant to apportioning the settlement proceeds of a wrongful death claim. See Kavanaugh , 937 S.W.2d at 246; Farr , 702 S.W.2d at 515. Section 537.090 provides that the trier of fact can award such damages for a wrongful death claim as it "may deem fair and just." In making its award, the trier of facts is to consider the following:
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. . . .
Section 537.090. The trial court cannot award damages for grief and bereavement. Id.
Mother and Father claim that the award to Wife was grossly excessive and unsupported by the evidence and the court's award to them was grossly inadequate. At the apportionment hearing, Wife, Mother and Father all presented evidence of their non-economic losses. In addition, Wife presented evidence of her economic losses. She submitted Dr. Hubbell's report as one piece of evidence of her economic losses. She also briefly testified as to her economic losses and submitted her 1994, 1995 and 1996 tax returns to the court following the hearing.
Mother and Father contend that Dr. Hubbell's report was unreliable evidence of Wife's economic losses and, therefore, the trial court's apportionment is unsupported by competent evidence. At the hearing, Mother and Father objected to the admission of Dr. Hubbell's report because there was "simply no typical or customary data that support[ed] the conclusions" reached in the report. Later in the hearing, Mother and Father waived their hearsay objections and agreed to the admission of Dr. Hubbell's report, provided that the court also consider otherwise inadmissible evidence they offered in support of their case and provided that Wife submit tax returns for 1994, 1995 and 1996. Now, on appeal, Mother and Father argue that the report was not reliable evidence of Wife's economic losses and does not form a substantial basis for the trial court's award.
In attacking the factual basis for Dr. Hubbell's opinion, Mother and Father are attacking its admissibility. Washington by Washington v. Barnes Hosp. , 897 S.W.2d 611, 616 (Mo. banc 1995). Their argument is without merit because even if Dr. Hubbell's report was erroneously admitted, "in a court-tried case, it is practically impossible to predicate reversible error on the erroneous admission of evidence." Bolin v. Hanton , 924 S.W.2d 15, 16 (Mo.App. 1996). Courts are presumed capable of discerning between competent and incompetent evidence. Wilson v. Sullivan , 922 S.W.2d 835, 838 (Mo.App. 1996). An appellate court presumes the trial court relied only upon the former in reaching its decision. Id . When inadmissible evidence is received in a court-tried case, the trial court's decision will be reversed only if there is not sufficient evidence to support the decision without the disputed evidence. State ex rel. Hobbs v. Tuckness , 949 S.W.2d 651, 654 (Mo.App. 1997). The party alleging the decision was based upon inadmissible evidence bears the burden of demonstrating that the record lacks substantial competent evidence to support the ruling. Bolin , 924 S.W.2d at 16.
In its order, the trial court did not specifically state the evidence upon which it based its decision. However, in receiving Dr. Hubbell's report, the court stated, "[T]he objections that are made by counsel will be taken into account when I examine that report as far as how much weight I'm going to give to it. . . ." Later in the hearing, when the parties waived their hearsay objections and admitted Dr. Ward's letter and Father's videotaped statement, the court further explained, "I'm not going to consider information that is given to me that I consider to be irrelevant or immaterial to the decision I have to make. . . . I will give it such weight as it's worth or no weight if it's not, if it isn't worthy of weight." From these comments, this court finds that the court acted as presumed and did not consider inadmissible or incompetent evidence.
The trial court also considered other evidence besides Dr. Hubbell's report regarding Wife's economic losses. Wife submitted tax returns showing Mr. Parr's income, and she testified in general terms as to her knowledge of Mr. Parr's jukebox rental business, including his inventory, the volume of his business, and the prices he charged to rent the jukebox and other 1950's-era memorabilia. Wife also testified that she paid all of Mr. Parr's funeral expenses, and that Mr. Parr did not have any life insurance. This evidence supported the trial court's finding that Wife had sustained economic losses as a result of her husband's death.
Moreover, the court's apportionment to Wife was not based solely on her economic losses. In its judgment, the court stated that Wife had "by far and away the major loss in this case both on an economic and non-economic basis." Wife offered substantial evidence of her non-economic losses. Wife and Mr. Parr had been married for almost thirty-four years, and they shared a close and loving relationship. Wife testified regarding how the loss of her husband's companionship and comfort has affected her life. This evidence is sufficient to support the trial court's award of most of the settlement proceeds to Wife. A $587,353.89 award is not grossly excessive to compensate a widow for the economic and non-economic damages she suffered due to the wrongful death of her husband of thirty-four years.
Neither was the award of $10,000.00 each to Mr. Parr's parents grossly inadequate. Mother and Father assert that the parents of a decedent are entitled to a minimum of 15% to 20% of a wrongful death settlement. A review of Missouri cases apportioning the proceeds of a wrongful death damages fund indicates that there is no minimum amount which must be awarded to any of the parties designated as takers under § 537.095.4. See Wright v. Cameron Mut. Ins. Co. , 908 S.W.2d 867, 868 (Mo.App. 1995) (father of adult, married decedent awarded nothing from settlement fund of $62,500.00); Bragg v. Missouri Pacific R. Co. , 791 S.W.2d 776, 777 (Mo.App. 1990) (husband of decedent received 90% of settlement fund, while mother received 8% and father received 2%); Farr , 702 S.W.2d at 513 (widow of decedent awarded 97% of settlement and adult daughter of previous marriage was awarded just over two-thirds of remaining 3%). The trial court is not bound by a set percentage or minimum, but must exercise its discretion and, as instructed by the statute, distribute the proceeds "in proportion to the losses suffered by each as determined by the court." Wright , 908 S.W.2d at 869-70.
Although Mr. Parr and his parents enjoyed a good relationship, he was a fifty-five year old man. He had been married for thirty-four years, a factor limiting the recovery available to his parents. Bragg , 791 S.W.2d at 779. He provided few services to his parents, and they presented no evidence of economic loss. Furthermore, although in her suggestions regarding the allocation of the settlements proceeds Mother stated that a fair allocation to her would be 17% to 20% of the proceeds, neither parent offered any testimony or evidence as to how much of the settlement proceeds they were requesting.
No one discounts the tremendous impact Mr. Parr's death had on his parents. The amount of the trial court's award is not intended to value the relationship shared by the decedent and the survivors. It is intended to compensate the survivors, to the extent money can compensate for the death of a loved one, for their loss. The trial court found that a major portion of Mother and Father's damages was in the nature of grief and bereavement, which is not compensable under § 537.090. The record supports this finding. In light of the lack of evidence showing economic loss to the parents, and the substantial evidence of economic and non-economic losses suffered by Wife, the award to Mother and Father was not grossly inadequate. "The necessary result of an apportionment is that each party ends up with part of a finite amount; consequently, the more one party is awarded, the less the others receive." Id . The finite sum available was insufficient to compensate the survivors for the entirety of their loss. The trial court's apportionment is not a diminishment of the loss suffered by Mother and Father, but a recognition of the magnitude of the loss suffered by Wife.
In apportionment proceedings, the trial court is given broad discretion in dividing the settlement fund. Farr , 702 S.W.2d at 515. An appellate court will reverse only if it firmly believes that the ruling is wrong. Id . After a careful review of the evidence in this case, this court does not believe the trial court's judgment is wrong. Point I is denied.
The Trial Court's Apportionment Decision Was Not Based Upon Improper Evidence
In their second point, Mother and Father claim that the trial court erroneously declared and applied the law in making its apportionment decision because it improperly considered the amount of work performed by the parties' counsel in the settlement negotiations. Counsel for defendants Professional Transportation Services, Inc., and Trans-Lease, Inc., filed an affidavit on February 26, 1998, in which he stated that Wife's counsel was instrumental in obtaining the settlement with his clients, and that no other attorney or law firm performed any work on behalf of any member of the class entitled to bring a wrongful death action as a result of Mr. Parr's death. Counsel for defendants further stated that he believed that Wife should be awarded most, if not all, of the settlement proceeds. Mother and Father argue that the court considered this affidavit and improperly based its apportionment decision on the amount of work performed by the parties' counsel in the settlement negotiations.
Mother and Father's argument ignores the trial court's statements to the parties after Mother offered a letter from one of the insurance companies to contradict the affidavit of defendants' counsel. The court told counsel for all of the parties that it was not concerned with their fees or any other lawyer's opinion about the work done by the parties' counsel, but rather was "concerned with whether or not the beneficiaries under the statute are entitled to money." The court also told Mother's counsel that he could file the letter from the insurance company with the court, but that it was "not going to be something that's going to determine who is going to get how much money." The trial court's statements indicate that in making its apportionment decision, it did not consider the amount of work performed by any of the parties' counsel in the settlement negotiations.
Moreover, the fact that the affidavit from defendants' counsel was in the court's file does not mean that the court considered it in making its judgment. As this court has already stated, the appellate court presumes that the trial court relied upon only competent evidence in reaching its decision. Wilson , 922 S.W.2d at 838. When inadmissible or incompetent evidence is received in a court-tried case, the trial court's decision will be reversed only if there is not sufficient evidence to support the decision without the disputed evidence. Tuckness , 949 S.W.2d at 654. This court has already found that there was sufficient competent evidence to support the court's judgment in this case. Point II is denied.
The trial court's judgment apportioning the proceeds of the settlement fund is affirmed.