Karen E. Spalding, Deborah K. Thelen, and Cynthia M. Parazak, Appellants, v. Kimberly Agnes Martin and Gary Thomas Martin, Respondent.

KAREN E. SPALDING, DEBORAH K. THELEN, AND CYNTHIA M. PARAZAK,

Appellants,

v.

KIMBERLY AGNES MARTIN, AND GARY THOMAS MARTIN,

Respondents. ) ) ) ) ) ) ) ) ) ) ) ) No. ED113426

Appeal from the Circuit Court of St. Louis County The Honorable Virginia W. Lay, Judge Karen Spalding (Spalding), Cynthia Parazak, and Deborah Thelen (collectively Plaintiffs) appeal from the trial court's judgment granting Kimberly (Martin) and Gary Martin's (collectively Defendants) motion to enforce settlement and dismissing their suit against Defendants. We affirm.

2 B ACKGROUND Plaintiffs and Kimberly Martin are sisters. Following the death of their father in April 2018, 1 Plaintiffs raised issues regarding Martin's use of funds from the trust (the Trust) established by their parents which designated both Spalding and Martin as Trustees and all four sisters as beneficiaries. In an email on February 8, 2023, Martin admitted she improperly took funds from the Trust and proposed reimbursement in the amount of $64,059.81. After approximately a year and a half of exchanging emails disputing the amount, on July 31, 2023, Martin again proposed the amount she owed Plaintiffs was $64,059.81 and this time, on August 2, 2023, Spalding replied stating, "We would each prefer three cashiers [sic] checks each in the amount of $21,353.27 made payable to: Deborah Thelen, Cynthia Parazak and Karen Spalding. We can meet you on Thursday August 3 rd

at the bank parking lot or if you prefer you can drop them in my mailbox and contact me when you do. Our times we are available are 8:30-9:00 or 1:00-3:30." On August 3, 2023, Martin left three cashier's checks in Spalding's mailbox, made payable to each Plaintiff in the amount of $21,353.27. The checks also contained a note to each Plaintiff which stated, "By receiving this Cashier Check in the amount of $21,353.27, it is agreed that there will be no further claims against Kimberly A. Martin and/or Gary T. Martin. This will settle the Estate of Robert C. and Dorothy J. Nesbit." The checks also contained a hand-written notation saying, "FINAL SETTLEMENT-

1 Their mother died in 2013.

3 FULL RELEASE NESBIT TRUST (NOTE ATTACHED)." Martin emailed Spalding to inform her the checks were delivered to her mailbox at 9:55 a.m. on August 3. Plaintiffs did not reject or attempt to return the funds, nor did they deposit the funds. On September 14, 2023, Plaintiffs filed suit against Defendants alleging conversion, breach of fiduciary duty, and punitive damages. 2 On February 15, 2024, Defendants filed a motion to enforce settlement, arguing the claims in Plaintiffs' petition were voluntarily settled by Plaintiffs on terms they proposed with assistance of their attorney and Plaintiffs filed a memo in opposition. An evidentiary hearing was set on November 13, 2024, but Plaintiffs did not appear. While Defendants did appear in person, the case was submitted on the affidavits of both parties. Following the hearing the trial court granted the motion and dismissed Plaintiffs' claims with prejudice. 3 This appeal follows. D ISCUSSION Plaintiffs assert one point on appeal. They contend the trial court erred in granting Defendants' motion to enforce settlement because it was not supported by substantial evidence that was clear, convincing, and satisfactory because the written record relied upon by Defendants is afforded no deference. Plaintiffs claim the record merely

2 The claim for punitive damages was dismissed in January 2024. 3 Plaintiffs filed a motion for new trial, which was deemed denied pursuant to Rule 78.06 on March 13, 2025.

4 demonstrated the continued dispute between the parties and Plaintiffs' rejection of Defendants' final offer by filing suit. 4

S TANDARD OF REVIEW The trial court held a hearing on the motion to enforce settlement, and therefore, our standard of review in this appeal is that of a court-tried case. Grant v. Sears, 379 S.W.3d 905, 914 (Mo. App. W.D. 2012). We will affirm the trial court's judgment if it is supported by substantial evidence, it is not against the weight of the evidence, or it does not erroneously declare or apply the law. Id. (internal quotation omitted). When reviewing a challenge to the court's judgment as not supported by substantial evidence, as Plaintiffs argue here, we view the evidence in the light most favorable to the judgment. Ivie v. Smith, 439 S.W.3d 189, 200 (Mo. banc 2014). We accept the evidence and inferences favorable to the judgment as true and disregard all contrary evidence. Id. In addition, the Missouri Supreme Court has "made clear that no contrary evidence need be considered on a substantial-evidence challenge," regardless of the burden of proof. Id. ANALYSIS While Missouri does not have a specific process for enforcing a settlement agreement, it may be raised as an affirmative defense or in a motion to enforce the settlement. Eaton v. Mallinckrodt, Inc., 224 S.W.3d 596, 599 (Mo. banc 2007). The

4 In response, Defendants ask that we dismiss Plaintiffs' brief because it fails to preserve any allegation of error for review and they have also filed a motion for sanctions for frivolous appeal. Both motions are denied.

5 burden of proof is on the moving party to show the existence of an agreement by "clear, convincing and satisfactory evidence." Sw. Parts Supply, Inc. v. Winterer, 360 S.W.3d 349, 353 (Mo. App. E.D. 2012) (quoting Eaton, 224 S.W.3d at 599). Evidence is considered clear and convincing if it "instantly tilt[s] the scales in the affirmative" when weighed against evidence to the contrary, resulting in the fact finder's belief the evidence is true. Matthes v. Wynkoop, 435 S.W.3d 100, 106 (Mo. App. W.D. 2014) (internal quotations omitted). Settlement agreements are governed by contract law. Sw. Parts Supply, Inc., 360 S.W.3d at 354. To prove a settlement agreement exists, Defendants must show the essential elements of a contract: offer, acceptance, and consideration. Matthes, 435 S.W.3d at 107. "The creation of a valid settlement agreement requires a meeting of the minds and a mutual assent to the essential terms of the agreement." St. Louis Union Station Holdings, Inc. v. Discovery Channel Store, Inc., 301 S.W.3d 549, 552 (Mo. App. E.D. 2009) (citing Emerick v. Mut. Benefit Life Ins. Co., 756 S.W.2d 513, 518 (Mo. banc 1988)). The trial court looks to the objective expressions of the parties to determine whether a meeting of the minds occurred. Matthes, 435 S.W.3d at 107. "It is the actions, and not the intentions or suppositions of the parties, that determine whether or not there is a contract and the terms of the contract." Id. (quoting B-Mall Co. v. Williamson, 977 S.W.2d 74, 78 (Mo. App. W.D. 1998)). The affidavits submitted by Defendants in addition to the numerous email exchanges between the parties present sufficient evidence for the court to find by clear and convincing evidence there was valid settlement agreement. As concluded by the trial

6 court, initial negotiations established the parties disputed the amount owed. However, both parties clearly communicated their intent to settle the dispute. Plaintiffs admitted via affidavit the negotiations with Defendants were "to attempt to settle the matter" between them. In addition, Plaintiffs expressed their desire to "close this chapter of our lives" at the initial stages of discussion. Martin originally offered $64,059.81 in her February 8, 2023 email and specifically stated Defendants were "in a position to clear this matter" with that number. In an April 2023 email Plaintiffs also said they were "anxious to resolve this matter." Martin's July 21, 2023 email evidenced her original offer of $64,059.81 to Plaintiffs, and stated Defendants were prepared to disburse the amount "as you see fit." Spalding's August 2, 2023 email constituted an acceptance of that offer, and specifically set forth the terms of acceptance as requiring three separate cashier's checks made to each individual Plaintiff in equal amounts, totaling $64,059.81. 5 The August 2, 2023 email also asked for payment on August 3 either in the bank parking lot or in Spalding's mailbox between 8:30 and 9:00 or 1:00 to 1:30, and to contact Spalding if the checks were placed in her mailbox. The record reflects Martin sent an email to Spalding at 9:17 a.m. on August 3 stating, "We have your checks," and asking if Plaintiffs preferred they be delivered "now" or later in the afternoon. Spalding replied at 9:36 a.m.,

5 Plaintiffs do not dispute Spalding was authorized to act on their behalf collectively. In fact, the record shows Plaintiffs agreed email communications from Spalding or each of the Plaintiffs individually was on behalf of all of them.

7 "This morning is good. Drop them to mailbox and please let me know once you have delivered them." The record reflects copies of cashier's checks made to each of the Plaintiffs individually in the amounts requested and Martin emailed Plaintiffs letting them know the checks had been delivered to Spalding's mailbox on August 3, 2023, at 9:55 a.m. The email exchange and actions of the parties provide clear and convincing evidence of an offer by Defendants, acceptance by Plaintiffs, adherence to the terms of the acceptance set forth by Plaintiffs, and consideration. See Sw. Parts Supply, Inc., 360 S.W.3d at 354 (email acceptance assented to terms of offer, reflecting a valid settlement); St. Louis Union Station Holdings, Inc., 301 S.W.3d at 553 (email exchange constituted clear and convincing evidence of offer and acceptance). Thus, accepting the evidence and inferences favorable to the judgment and disregarding all contrary evidence, there was substantial evidence in the record to support the trial court's judgment granting the motion to enforce settlement and dismissing the lawsuit against Defendants. Ivie, 439 S.W.3d at 200. Plaintiffs' point on appeal is denied. CONCLUSION The judgment of the trial court is affirmed.

________________________________ Lisa P. Page, Judge

Robert M. Clayton III, Presiding Judge and Michael E. Gardner, Judge concur.