IN THE ESTATE OF GEORGE L. BRIGGS, )
DECEASED. )
)
JONA A. BRIGGS, PERSONAL )
REPRESENTATIVE OF THE ESTATE OF )
GEORGE L. BRIGGS, DECEASED, AND JONA )
A. BRIGGS, INDIVIDUALLY AND AS )
SUCCESSOR TRUSTEE OF THE GEORGE L. )
BRIGGS REVOCABLE TRUST AGREEMENT )
DATED JUNE 3, 2004, )
)
Petitioner/Respondent-Appellant, )
)
vs. ) No. SD32995
)
RENATE BARBER, ) Filed: November 12, 2014
)
Respondent/Petitioner-Respondent. )
APPEAL FROM THE CIRCUIT COURT OF STONE COUNTY
Honorable Mark A. Stephens, Associate Circuit Judge
AFFIRMED
Jona A. Briggs, individually, as personal representative, and as trustee (“Briggs”),
appeals from the trial court’s judgment finding that Briggs and Renate Barber (“Barber”)
reached a settlement agreement resolving three related lawsuits involving the division of
real property between them, and granting Barber specific performance of that settlement
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agreement. Briggs raises two points of error – (1) there was no substantial evidence to
determine the legal description of the real property involved, and (2) “there was no
substantial evidence to support the judgment or it misapplied the law” in finding that
Briggs and Barber reached a settlement agreement. We affirm the trial court’s judgment
because, viewing the evidence as we must view it in accordance with our standard of
review, there was substantial evidence to permit a competent surveyor to find and
identify the real property involved, and to support the trial court’s finding that Briggs and
Barber reached a settlement agreement.
Facts and Procedural History
Viewed in accordance with our standard of review, the evidence showed the
following. George L. Briggs, Jr. died on December 12, 2006. On February 9, 2007, Mr.
Briggs’ daughter, Jona A. Briggs, individually and as trustee of Mr. Briggs’ trust, filed a
petition to set aside two deeds executed by Mr. Briggs in favor of Renate Barber, Mr.
Briggs’ companion. Briggs subsequently filed an application for probate of a Will dated
June 3, 2004 and letters testamentary, and, on March 9, 2007, was appointed personal
representative of the estate of Mr. Briggs. On May 14, 2007, Barber filed a petition to
contest Mr. Briggs’ Will dated June 3, 2004 and establish a Will dated December 8, 2006
as Mr. Briggs’ true Will. The defendants in the will contest included Briggs individually,
as personal representative of the estate of Mr. Briggs, and as trustee of Mr. Briggs’ trust.
On June 12, 2007, Briggs, in her capacity as personal representative of the estate of Mr.
Briggs, filed a petition to discover assets against Barber in an adversary proceeding
within the estate of Mr. Briggs.
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On June 18, 2012, Briggs and Barber along with counsel participated in mediation
relating to these three lawsuits (i.e., petitions to set aside two deeds, contest a Will, and
discover assets) without arriving at a resolution of the lawsuits. Later that day, counsel
for Briggs extended to counsel for Barber by telephone an offer to resolve the lawsuits,
and counsel for Barber accepted the offer. A short time later on the same day, counsel
for Barber asked counsel for Briggs by email to “forward . . . a draft of the settlement
agreement for my review.” That evening, counsel for Briggs emailed to counsel for
Barber “the outline of the deal as I understand it” in ten numbered paragraphs.
After counsel for Barber inquired about “the status of the settlement agreement”
on July 9, 2012, counsel for Briggs emailed a draft settlement agreement to counsel for
Barber on July 13, 2012. Counsel for Barber replied by email on July 17, 2012, “I added
some basic provisions, but I agree with the substance of the agreement. If you approve of
my suggested changes, I will forward to my client for signature.” On August 6, 2012,
counsel for Briggs replied by email “[t]he changes are fine.”
Under the revised, written settlement agreement, seven parcels of real property in
Taney County and one parcel of real property in Stone County were to be divided as
follows: Barber was to transfer to Briggs as trustee Taney County parcels three through
seven and the Stone County parcel and all but the east 100 acres of Taney County parcel
two (the settlement agreement provided “unless . . . mutually agree[d] otherwise,” the
boundary line separating the two parts of Taney County parcel two “shall be a line
running due north and south”). Barber was to retain Taney County parcel one and the
east 100 acres of Taney County parcel two.
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Barber subsequently executed the settlement agreement on or about August 20,
2012 (the settlement agreement Barber executed was the same agreement as the
settlement agreement counsel for Briggs stated was “fine” on August 6, 2012 except that
the date of the agreement had been changed from July to August, and a typographical
error in one of the notary acknowledgment blocks had been corrected). Barber then paid
a surveyor $3,500 to prepare a survey that divided Taney County parcel two in
accordance with the settlement agreement.
On December 27, 2012, Barber filed a motion to enforce the settlement of the
three lawsuits between Barber and Briggs individually, as personal representative and as
trustee.
On January 30, 2013, by email, counsel for Briggs informed counsel for Barber
for the first time that Briggs (1) refused to execute the settlement agreement and (2)
offered to settle the three lawsuits on substantially different terms.
On July 9, 2013, the trial court conducted a hearing on Barber’s motion to enforce
settlement. When Barber offered into evidence the survey that divided Taney County
parcel two, Briggs objected and then withdrew her objection as follows:
[Counsel for Briggs]: The only problem I have with Exhibit D, I’d
object, I cannot tell when the survey was done. Do we have an invoice
that shows when it was done or maybe I need to get glasses, Judge.
[Counsel for Barber]: It’s dated October 18, 2012, on the survey.
[Counsel for Briggs]: 10/18/12, okay.
THE COURT: Are you withdrawing your objection?
[Counsel for Briggs]: Withdraw my objection, Judge.
The trial court then admitted the survey.1
1
The trial court also left the record open for thirty days for Briggs to identify any errors in the survey.
Briggs did not supplement the record during that time.
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In an amended judgment filed September 26, 2013, the trial court granted Barber
specific performance of a settlement agreement with Briggs, and found that:
on June 18, 2012, Briggs and Barber, through their respective counsel,
entered into a settlement agreement, supported by consideration to settle
the above-captioned litigation, under the terms set forth in an email from
[counsel] for Briggs[] to [counsel] for Barber, and that on August 6, 2012,
Briggs and Barber further memorialized the terms of the settlement as set
forth in the June 18, 2012, email, in a written Settlement Agreement
(“Settlement Agreement”) as counsel for Barber emailed the Settlement
Agreement to counsel for Briggs after agreed upon changes to the form of
the Settlement Agreement were made to the Settlement Agreement.
Standard of Review
In a court-tried case:
we must affirm the judgment of the trial court unless no substantial
evidence supports it, it is against the weight of the evidence, or it
erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d
30, 32 (Mo. banc 1976); Johnson v. Estate of McFarlin, 334 S.W.3d 469,
473 (Mo.App. S.D.2010).
A judgment is supported by substantial evidence when there is
evidence from which the trier of fact can reasonably find all facts
necessary to sustain the judgment. Houston v. Crider, 317 S.W.3d 178,
186 (Mo.App. S.D.2010). In determining whether there is substantial
evidence, we view the evidence and reasonable inferences from the
evidence in the light most favorable to the judgment, disregard all
evidence and inferences contrary to the judgment, and defer to the trial
court's credibility determinations. Id.
Consolidated Grain & Barge, Co. v. Hobbs, 397 S.W.3d 467, 474 (Mo.App. S.D. 2013).
A claim that the trial court erroneously declared or applied the law is reviewed de novo.
Smith v. Great American Assurance Co., 436 S.W.3d 700, 704 n.3 (Mo.App. S.D.
2014). Briggs has the burden to prove the trial court’s judgment should be reversed.
Grider v. Tingle, 325 S.W.3d 437, 440 (Mo.App. S.D. 2010).
Analysis
We address Briggs’ points in reverse order.
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Point II – No Settlement Agreement Was Reached Between the Parties
In Briggs’ second point, Briggs contends that the trial court erred “because there
was no substantial evidence to support the judgment or it misapplied the law in that the
evidence . . . [showed] a series of offers and counteroffers . . . but no unequivocal
agreement was reached between the parties.” Contrary to Briggs’ contention, substantial
evidence showed (1) an oral offer by Briggs’ counsel to Barber’s counsel on June 18,
2012 followed later that day by an email from Briggs’ counsel to Barber’s counsel
summarizing in writing Briggs’ oral offer, (2) a further offer on July 13, 2012 by Briggs’
counsel to Barber’s counsel in the form of a written settlement agreement, (3) a
counteroffer on July 17, 2012 by Barber’s counsel to Briggs’ counsel in the form of a
revised, written settlement agreement, and (4) an acceptance of the counteroffer on
August 6, 2012 by Briggs’ counsel when Briggs’ counsel emailed Barber’s counsel and
stated “[t]he changes are fine.”
The existence of a contract is a question of fact. Precision Investments, L.L.C. v.
Cornerstone Propane, L.P., 220 S.W.3d 301, 303 (Mo.banc 2007) (“Determination of
whether a settlement has occurred when the parties dispute a settlement requires proof of
factual issues.”); and Tinucci v. R.V. Evans Co., 989 S.W.2d 181, 184 (Mo.App. E.D.
1998) (“Where the evidence regarding a contract is conflicting or is capable of more than
one inference, the question raised is one of fact for the trier of fact to determine.”). For a
contract to exist:
there must be a definite offer and a mirror-image acceptance. Volker
Court, LLC v. Santa Fe Apartments, LLC, 130 S.W.3d 607, 611
(Mo.App.W.D.2004). As a general common law principle, in order for a
contract acceptance to be effective it must be positive and unambiguous.
Katz v. Anheuser–Busch, Inc., 347 S.W.3d 533, 545 (Mo.App.E.D.2011).
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Laughlin v. Moore, 434 S.W.3d 118, 120-21 (Mo.App. S.D. 2014). “Any acceptance
that includes new or variant terms from the offer presented amounts to a counter-offer
and a rejection of the original offer.” Pride v. Lewis, 179 S.W.3d 375, 379 (Mo.App.
W.D. 2005) (internal quotation and citations omitted).
Viewed as we must in the light most favorable to the judgment, Briggs’ counsel’s
statement that “[t]he changes are fine” was a positive and unambiguous, mirror-image
acceptance of Barber’s counsel’s counteroffer in the form of a revised, written settlement
agreement. The trial court did not misapply the law, and substantial evidence supported
the trial court’s finding there was a settlement agreement as of August 6, 2012.
Briggs’ second point is denied.
Point I – No Substantial Evidence to Determine Legal Description of Real Property
In Briggs first point, she argues that the trial court erred “because there was no
substantial evidence to determine the legal description . . . necessary to describe the land
to be divided by the parties.”
As the Western District stated in Land Improvement, Inc. v. Ferguson, 800
S.W.2d 460, 463 (Mo.App. W.D. 1990), in connection with the specific performance of a
land for services contract:
Land Improvement’s arguments as to specificity in the contract
and in the judgment are also without merit. For specific performance to be
granted in regard to property a technical, legal description is not a strict
necessity. The contract in question must either designate or describe the
land with accuracy and certainty or provide a way for the identification of
that land to be perfected by parol evidence. Williamson v. Burnett, 345
S.W.2d 80, 82 (Mo.1961). In Williamson the buyer and seller orally
agreed upon the sale of a one-acre square of land to be located within a
twelve-acre tract. This contract was for, “a tract square in shape,
beginning at a cherry tree located in the fence line on the east line of
seller’s 12–acre tract ... ‘going one acre south and from the fence back’
one acre west.” Id. at 82. The court upheld the contract as adequate,
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finding that the description was enough to enable a competent surveyor to
find and identify the land in question. Id. at 83. The description of the
land given at trial was certainly sufficient for contractual purposes. See
also Blankenship v. Porter, 479 S.W.2d 409, 412–13 (Mo.1972).
In this appeal, the evidence included the following. Taney County parcels one
through seven were identified in parcel assessments from Taney County that were
attached to the settlement agreement and showed book, page and date for the deed for
each parcel as well as other identifying information for the parcel in question; the
division of Taney County parcel two between Briggs and Barber was shown in a survey
that was based on the settlement agreement and was admitted into evidence without
objection after Briggs affirmatively withdrew her objection to the survey; and the Stone
County real property was identified in paragraph 3 of the settlement agreement by the
book and page for the beneficiary deed conveying that property. This evidence was
substantial evidence that would have permitted, and, in the case of the division of Taney
County parcel two, did permit, a competent surveyor to find and identify the real property
subject to the settlement agreement.2
Briggs’ first point is denied.
The trial court’s judgment is affirmed.
Barber’s Request for Costs and Attorney Fees on Appeal
In her brief, Barber requests us to award her costs and attorney fees on appeal as
“allowed” in the settlement agreement. Briggs has not objected to Barber’s request.
Paragraphs12, 13 and 18 of the settlement agreement appear to authorize costs and
2
If Briggs intended her first point also to assert that the trial court misapplied the law in entering a
judgment that did not include legal descriptions of the real property affected by the judgment, that claim
that the judgment did not include legal descriptions was not preserved under Rule 78.07(c), Missouri Court
Rules (2014), because the claimed error “relate[d] to the form or language of the judgment” and was not
raised in a motion to amend the judgment. As a result, we do not reach or further address this possible
claim.
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attorney fees to the prevailing party on appeal. We award Barber her costs on appeal, and
assess those costs against Briggs pursuant to Rule 84.18, Missouri Court Rules (2014).
However, we deny Barber’s request in her brief for attorney fees, because her request is
not supported by a pre-submission motion as required by Southern District Special Rule
14.
Nancy Steffen Rahmeyer, J. – Opinion Author
Gary W. Lynch, J. – Concurs
Mary W. Sheffield, P.J. – Concurs
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