               SUPREME COURT OF MISSOURI
                                           en banc
LOREN MACKE,                                    )     Opinion issued July 16, 2019
                                                )
                        Respondent,             )
                                                )
PAMELA EDEN,                                    )
                                                )
                        Appellant,              )     No. SC97599
                                                )
v.                                              )
                                                )
AUSTIN PATTON,                                  )
                                                )
                        Defendant.              )

        APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS
                  The Honorable Jason M. Sengheiser, Judge

         Pamela Eden appeals the circuit court's distribution of proceeds from Nicklaus

Macke's wrongful death settlement, pursuant to §§ 537.080, 537.090, and 537.095. 1 The

circuit court apportioned 98 percent of the settlement to Nicklaus' father, Loren Macke,

and 2 percent to Eden, Nicklaus' mother. Eden's appeal argues the circuit court abused its

discretion in overruling her oral motion for a second continuance and erred in apportioning

only a small percent of the wrongful death settlement to her. The circuit court's judgment

is affirmed.


1
    All statutory references are to RSMo 2016, unless otherwise noted.
                            Factual and Procedural History

       Nicklaus Macke (hereinafter, "Nicklaus") was the son of Pamela Eden and Loren

Macke (hereinafter, "Macke"). Nicklaus suffered fatal injuries in a motor vehicle collision

with defendant Austin Patton in April 2017. At the time of his death, Nicklaus was 25

years old, unmarried and had no children. Macke negotiated a settlement with Patton's

insurance company, and the insurance company offered to pay its $500,000 policy limit in

satisfaction of Macke's wrongful death claim against Patton.

       Macke accepted the offer and filed for approval and apportionment of the wrongful

death settlement in the circuit court of the city of St. Louis. The circuit court scheduled a

hearing on the petition for November 21, 2017. Eden, an Alabama resident, first received

notice of the hearing date on October 26, 2017.

       Mere hours before the first scheduled hearing began, Eden telephoned the circuit

court requesting a continuance because she was not in Missouri and did not have an

attorney. The circuit court granted a one-week continuance and reset the hearing for

November 28, 2017. At the beginning of the hearing, Eden's attorney orally requested a

second continuance, asserting the need for discovery and additional time to prepare for the

hearing. The circuit court overruled the motion, stating:

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

       During the hearing, the circuit court heard testimony from Macke, Eden, Macke's

sister, Macke's wife and Eden's husband. The evidence supporting the judgment was that


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Macke and Eden divorced shortly after Nicklaus' birth and Macke was granted custody

with supervised visitations for Eden. Macke and Nicklaus moved into Macke's mother's

house in Marshall, Illinois, where Nicklaus was raised primarily by Macke and Macke's

mother, whom Nicklaus called "Mom."

       Though she lived in the area, Eden was absent from Nicklaus' childhood. On

occasion, she would show up unannounced to events in Nicklaus' life, including one of his

band's concerts, his prom night, and his high school graduation party. But she ultimately

played little to no role in his childhood and upbringing.

       When Nicklaus turned 18, he moved away from home. Macke stayed in touch with

Nicklaus despite the increased distance between them. Eventually, Macke helped Nicklaus

move into a St. Louis condominium. Even though Macke lived two and a half hours away

from St. Louis, he and Nicklaus remained in touch and Macke visited him regularly.

       After the hearing, the circuit court entered an order approving the $500,000

settlement and taking the issue of apportionment and distribution of the settlement amount

under advisement. Neither party requested specific findings pursuant to Rule 73.01(c).

Several weeks later, the circuit court entered a judgment apportioning $490,000 of the

settlement to Macke and $10,000 to Eden. The circuit court's judgment included the

following language relevant to this Court's review:

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


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       evidence and in keeping with the factors set forth in the Missouri Wrongful
       Death statute, RSMo. §§ 537.080, 537.090, 537.095.

Eden appealed the judgment, and the court of appeals reversed in part and remanded in a

published opinion. This Court granted transfer. Mo. Const. art. V, sec. 10.

                                          Analysis

       Eden presented two separate points relied on in this appeal. The first argues the

circuit court erred in overruling her motion for a second continuance. The second argues

the circuit court’s apportionment of only 2 percent of settlement funds to Eden erroneously

applied the law and was against the weight of the evidence.

                                 Motion for Continuance

       In her first point, Eden argues the circuit court erred in overruling her oral motion

for continuance, made at the start of the November 28, 2017 hearing. She argues the circuit

court abused its discretion in overruling the motion for continuance because she had just

retained an attorney that morning and the attorney had no time to conduct discovery or

prepare for the hearing.

       The circuit court's decision to overrule a motion for continuance is reviewed for an

abuse of discretion. State v. Blocker, 133 S.W.3d 502, 504 (Mo. banc 2004). The circuit

court abuses its discretion "when the ruling is clearly against the logic of the circumstances

and is so unreasonable and arbitrary that the ruling shocks the sense of justice and indicates

a lack of careful, deliberate consideration." Howard v. City of Kan. City, 332 S.W.3d 772,

785-86 (Mo. banc 2011).




                                              4
       A motion for continuance must be in writing unless the moving party obtains

consent from the adverse party to submit an oral request for continuance. Rule 65.03. The

motion must also be accompanied by an affidavit "setting forth the facts upon which the

application is based[.]" Id.

       The circuit court did not abuse its discretion in overruling Eden's motion for a

second continuance. She orally submitted her motion the morning of the hearing –

originally set for a week prior but continued for a week after Eden successfully moved for

her first continuance over the telephone. The circuit court’s statement in overruling this

second motion indicates careful consideration went into its decision. Regardless of when

Eden had retained counsel, she had been on notice of the hearing for more than a month

and had already been granted one continuance, even though her original motion for a

continuance was not in compliance with Rule 65.03.

       This second motion for continuance was orally asserted at the start of the hearing,

and nothing in the record indicates Macke consented to an oral motion, as Rule 65.03

requires. Further, Macke and his witnesses had all traveled to testify at the hearing, and

sustaining Eden's second motion for continuance would have caused further delay and

expense. As demonstrated by the record, overruling the second motion for a continuance

was not error and certainly not an abuse of discretion.




                                             5
                       Apportionment of Wrongful Death Damages

       Eden's second point relied on states as follows:

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

This point relied on does not suggest an attempt to comply with this Court's requirements

in Rule 84.04. Moreover, it does not indicate any consideration of the example point relied

on, provided by the Court to ensure compliance with briefing rules:

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

Rule 84.04(d)(1).

       As best as can be discerned from the argument section of her brief following the

second point, Eden is combining arguments that the circuit court's finding is against the

weight of the evidence and that the circuit court erroneously applied the law. 2

       Even if there had been an attempt to comply with Rule 84.04, this would be a

multifarious point because it "groups together multiple, independent claims rather than a

single claim of error[.]" Kirk v. State, 520 S.W.3d 443, 450 n.3 (Mo. banc 2017).

"Multifarious points relied on are noncompliant with Rule 84.04(d) and preserve nothing

for review." Bowers v. Bowers, 543 S.W.3d 608, 615 n.9 (Mo. banc 2018). A judgment



2
  In response to a question at oral argument seeking to clarify whether Eden's second point relied
on was arguing the circuit court erred in weighing the evidence or that the circuit court misapplied
the law, her attorney answered that the point relied on was arguing both.

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can be against the weight of the evidence while not erroneously applying the law, and vice

versa. See Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). These claims are

separate and distinct inquiries, each requiring its own discrete legal analysis. See Ivie v.

Smith, 439 S.W.3d 189, 199 n.11 (Mo. banc 2014). Nevertheless, this Court exercises its

discretion to address the merits of what it can best determine to be the claim of error, ex

gratia. 3 Peters v. Johns, 489 S.W.3d 262, 268 n.8 (Mo. banc 2016).

       In reviewing the apportionment of wrongful death damages, "[a]n appellate court

will reverse the trial court's judgment only if the ruling is not supported by substantial

evidence, is against the weight of the evidence, or erroneously declares or applies the

law[.]" Parr v. Parr, 16 S.W.3d 332, 336 (Mo. banc 2000). 4



3
  This Court is exercising its discretionary review ex gratia because appellate decisions have
strayed from applying the appropriate appellate standard of review for wrongful death settlement
apportionment determinations. See infra, note 4.
4
  Parr is the only opinion of this Court to have added an additional clause to the Murphy standard
of review: that appellate courts will not interfere with an apportionment unless "it is grossly
excessive or inadequate." 16 S.W.3d at 336. This additional text added to the settled standard of
review for court-tried cases was borrowed from a short line of court of appeals cases. See
Kavanaugh v. Mid-Century Ins. Co., 937 S.W.2d 243, 246 (Mo. App. 1996); Keene v. Wilson
Refuse, Inc., 788 S.W.2d 324, 326 (Mo. App. 1990). This unnecessary and unwarranted addition
to the Murphy court-tried cases standard of review traces back to Farr v. Schoeneman, 702 S.W.2d
512, 515 (Mo. App. 1985), which cited this Court's opinion in Dodd v. Missouri-Kansas-Texas
Railroad, 193 S.W.2d 905 (Mo. 1946).
        In Dodd, this Court was reviewing a circuit court's sustaining of a motion for new trial
upon the plaintiff's refusal to accept remittitur ordered by the circuit court. Id. at 906. The direct
quote from Dodd, cited by Farr, is: "The question of the amount of damages in cases of this nature
is primarily for a jury. Courts should not interfere unless a verdict is grossly excessive or
inadequate." Id. at 907. While this quote makes sense in the context of remittitur — because a
primary issue for review is whether the jury verdict was "grossly excessive" so as to have justified
the circuit court fixing a lower figure for plaintiff to accept in lieu of ordering a new trial — it has
no precedential value in apportioning wrongful death damages, which, by nature, include no
challenges to the amount of damages but rather determines how those damages should be
apportioned among those entitled to the damages. Nonetheless, in Farr, the court of appeals took
this remittitur-specific language and incorrectly applied it to wrongful death apportionment

                                                   7
       After approving the total settlement of a wrongful death action, § 537.095.3 requires

the circuit court to apportion settlement proceeds "in proportion to the losses suffered by

each as determined by the court."          (emphasis added).       The class members are not

guaranteed a certain amount by virtue of their statutory qualification, nor is the circuit court

bound "by a set percentage or a minimum" when distributing settlement proceeds "in

proportion to the losses suffered by each." Parr, 16 S.W.3d at 337. "[T]he trier of the facts

may give to the party or parties entitled thereto such damages as the trier of the facts may

deem fair and just for the death and loss thus occasioned[.]" § 537.090.

       When apportioning wrongful death settlement proceeds, the trier of facts is directed

to specifically consider:

       [P]ecuniary 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 and
       without limiting such damages to those which would be sustained prior to


proceedings under § 537.095.3 without any legal justification or citation to appropriate legal
authority. 702 S.W.2d at 515.
        Apportionment of wrongful death damages among those entitled, like any other court-tried
civil case, historically has been and can be adequately reviewed by applying the facts as found to
the applicable law under the Murphy standard of review. 536 S.W.2d at 32. To the extent Parr
and intermediate appellate opinions suggest appellate courts should interfere with an
apportionment judgment if it is "grossly excessive or inadequate[,]" those opinions should no
longer be followed. The unnecessary and unwarranted addition of this phrase, "grossly excessive
or inadequate" in Farr also contributed to some appellate court opinions reviewing wrongful death
apportionment proceedings under the abuse of discretion standard of review. See e.g., Wood v.
Smith, 359 S.W.3d 526, 528 (Mo. App. 2012); Collins v. Hertenstein, 181 S.W.3d 204, 213 (Mo.
App. 2005); Keene, 788 S.W.2d at 326 (Mo. App. 1990); Glasco v. Fire & Cas. Ins. Co., 709
S.W.2d 550, 555 (Mo. App. 1986). Parr and these court of appeals opinions suggesting a circuit
court's apportionment determination is merely reviewed for an abuse of discretion or reviewed for
abuse of discretion in addition to the Murphy standard of review for court-tried cases should no
longer be followed. If it is argued that the manner in which the circuit court apportioned the
settlement proceeds is against the weight of the evidence, this Court and the intermediate appellate
courts are well-versed in how to apply that standard of review.

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       attaining the age of majority by the deceased or by the person suffering any
       such loss. 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. The mitigating or aggravating circumstances attending
       the death may be considered by the trier of the facts, but damages for grief
       and bereavement by reason of the death shall not be recoverable.

§ 537.090.

       Neither party requested specific findings of the circuit court; therefore, all factual

findings "shall be considered as having been found in accordance with the result reached."

Rule 73.01(c).

       A.       The circuit court did not erroneously apply the law

       Eden argues the circuit court erroneously considered factors not enumerated in

§ 537.090 in making its apportionment judgment. As support for this argument, she

highlights a single passage in the circuit court's judgment pertaining to the pending

settlement's extinguishment of any future wrongful death claims arising from Nicklaus'

death and not the apportionment determination.

       The argument that the circuit court considered non-statutory factors in

apportionment of the settlement proceeds is clearly refuted by the circuit court's judgment,

specifically:

       This Court has apportioned the settlement proceeds … in proportion to the losses
       suffered by each party, as determined by the court based on the evidence and in
       keeping with the factors set forth in the Missouri Wrongful Death statute, R.S.Mo.
       §§ 537.080, 537.090, 537.095.

(Emphasis added).       While the circuit court's judgment contained minimal legal

conclusions, it expressly kept its consideration of the evidence of apportionment of



                                             9
damages to the factors set out in § 537.090 and ordered distribution of the settlement

proceeds in proportion to the losses it determined each party suffered.

       B.    The circuit court's apportionment was not against the weight of the
       evidence

       "'[W]eight of the evidence' denotes an appellate test of how much persuasive value

evidence has, not just whether sufficient evidence exists that tends to prove a necessary

fact." Ivie, 439 S.W.3d at 206. This Court exercises great caution in setting aside a

judgment on the grounds it is against the weight of the evidence and "will reverse only in

rare cases, when it has a firm belief that the decree or judgment is wrong." Id. Under this

test, "[t]his Court defers to the trial court's assessment of the evidence if any facts relevant

to an issue are contested." Arbors at Sugar Creek Homeowners Ass'n. v. Jefferson Bank &

Trust Co., 464 S.W.3d 177, 187 (Mo. banc 2015) (internal quotation omitted). The Court's

"role is not to reevaluate testimony through its own perspective." Pearson v. Koster, 367

S.W.3d 36, 44 (Mo. banc 2012).

       Eden argues she is entitled to more than a 2-percent share of the settlement proceeds

because she "presented credible evidence of a strong and reunited relationship with

Nicklaus" and "[p]recedent suggests that a [2-percent] award to a surviving parent would

be appropriate only in situations where the decedent is also survived by a dependent child

or spouse."

       Macke raised Nicklaus and remained in close contact with him through the end of

his life. The two spent time together weekly and enjoyed a strong father-son relationship

that would have continued, but for Nicklaus' death. Meanwhile, Eden's entire case for her



                                              10
alleged future loss rests primarily on her status as birth mother, one chance encounter with

Nicklaus in 2016, and the communication through social media that followed this

encounter. In the context of the § 537.090 factors, the evidence before the circuit court

indicates Macke shouldered a significant portion of the loss suffered as a result of Nicklaus'

death, and the circuit court's determination reflects that indication.

       As the trier of fact, the circuit court "considered the testimony of the witnesses, the

documentary evidence[,] … as well as the oral and written statements of counsel." Further,

it "evaluated the credibility of the witnesses and determined the weight to be accorded to

the testimony and documentary evidence of each." After deferring to its credibility

determinations, and then considering the facts as found in accordance with the result

reached, the circuit court's judgment was not against the weight of the evidence presented.

                                         Conclusion

       The circuit court did not err nor abuse its discretion when it overruled Eden's motion

for a second continuance. Further, the circuit court's apportionment was not an erroneous

application of law nor was it against the weight of the evidence. The circuit court's

judgment is affirmed.



                                                   ___________________________
                                                   Zel M. Fischer, Judge


All concur.




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