# IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT

HANNAH STICKLER AND ) CORRECTED OPINION

MOLLY STICKLER, ) APRIL 13, 2022

)

Respondents, )

)

v. ) WD84618

)

AUSTIN MCGINNIS, ) Opinion filed: April 12, 2022

)

Appellant. )

APPEAL FROM THE CIRCUIT COURT OF ANDREW COUNTY, MISSOURI

THE HONORABLE KATE H. SCHAEFER

Special Division: W. Dougla s Thoms on, Presidi ng Judge,

Gary D. Witt, Judge and Zel F ischer, Special Judge

Austin McGinnis (“McGinnis”) appeals from the judgment of the Circuit Court

of Andr ew County denyi ng hi s moti on to enforc e settl ement agr eement against

Hannah and Molly Stickler (collectively, “the Sticklers”). In his sole point on appeal,

McGinnis contends that the trial court erred in denying his motion to enforce

settlement agreement because the parties had reached a settlement in that all of the

essential e lements of a contr act existed. Finding no error, we affirm.2 Factual and Procedural History

On June 21, 2020, Mark Stickler (“Decedent”) died as a result of a motor vehicle

collision involving McGinnis. The Sticklers are the only two children of Decedent. At

the time of the collision, McGinnis was insured by at least one liabi lity insurance

policy issued by State Farm Insurance Company (“State Farm”) which provided

bodily injury limits of $250,000.00 per person or $500,000.00 per accident.

On September 10, 2020, the Sticklers, through their attorney, sent a

settlement demand letter (“Stickler Offer”) to McGinnis’ insurer, State Farm,

pursuant to Section 537.058. 1 The Stickler Offer read, in relevant part:

Please be advised that I now have the authority of . . . my clients . . . to

submit the following time

- limited demand as and for settlement and full

unconditional release of your insured, . . . McGinnis, from all present

and future liability for causing the death of their father.

* * * * *

We

. . . will issue corresponding/appropriate releases from each party as

soon as you document and confirm any/all applicable policy coverage

limits as requested and confirm that you are agreeing to pay same. We

will also agree to indemnify and hold State Farm Insurance and . . .

McGinnis harmless from any/all li en s existent at the time of settlement.

As and for [the Sticklers’] statutory damages accruing from the wrongful

death of their father, [Decedent], we will accept a total sum

representing the aggregate combined total of limits of any/all

applicable policy coverages insuring . . . McGinnis personally. This

is an offer of unconditional release for defendant . . . McGinnis from all

present and future liability for the above

- referenced occurrence per

RSMo. § 537.060.

As such, this is a demand within each applicable and respective polic y’s

coverages in effect on the day of the subject occurrence, June 21, 2020.

Our only other express condition precedent before considering

anything less in pre

- litigation settlement is that I be allowed to

1 All references to Sections are to the Revised Statutes of Missouri (2018), unless otherwise

indicated.3

take a recorded phone interview with . . . McGinnis regarding

any/all possible policies of insurance he may have had covering

him on June 21, 2020. This is an essential, and reasonable, request as

this claim would normally result in a $2,000,000+ award at trial and I

need to verify such information from you re: purported limitations of

coverage.

Once I have been afforded the opportunity to verify any/all

possible policies of coverage we will accept said total amount

conditioned upon the following: (1) the delivery of certified copies of

each applicable policy, in its entirety, including declaration pages for

each with affidavits attesting that these are the only policies covering

the subject claims and in effect of the above

- referenced date; and (2) your

acceptance conveyed to us, in writing, by 5:00 p.m. on October 13, 2020.

(emphasis added). On September 22, 2020, prior to receiving a reply from State

Farm, the Sticklers followed up with the insurer, stating, in relevant part:

. . . . I have now had time to review the file and before I talk to you I

would ask that you provide “the certified policy documents and

Declaration Pages” of the “several househo ld policies” you promised to

send me on July 8, 2020, as soon as you obtained them. To date, I have

not received such documents.

Once I’ve had a chance to review those, I’ll be happy to talk with you

about whether all of our settlement terms have been met regarding

releasing .

. . McGinnis.

On September 23, 2020, State Farm responded to the Stickler Offer (“State

Farm’s Response”), stating:

I am writing in response to your time limited [Stickler Offer] dated

September 10, 2020, in which you have submitted a demand for the

policy limits of $250,000 for the daughters of [Decedent], [the]

Stickler[s]. Please accept this as our response to your demand.

This letter will confirm our acceptance of your demand for the policy

limits of $250,000 in full settlement of your client’s injury claim. This

settlement is inclusive of all damages, known and unknown, and any

liens, assignment or statutory rights of recovery.

In addition to the demand for the Policy limits, we acknowledge your

request for confirmation of any additional coverages for

. . . McGinnis by4

way of a recorded affidavit as well as a signed affidavit. We have

informed . . . McGinnis of this request and he will advise if he agrees to

this condition. Upon . . . McGinnis’ agreement to complete the recorded

and written affidavit, we ask that you provide us with a copy of the

affidavit for which he should sign and we ask for your preference on how

and when to obtain the recorded affidavit.

In the meantime, we previously provided you with the certified policy

documents for the insurance coverage for the 2013 GMC Sierra that was

involved in this accident. These documents were sent to your office on

July 16, 2020. We have confirmed that there were other automobiles in

. . . McGinnis’ househo ld that were also insured at the time of this loss,

however, the use and operation of the 2013 GMC Sierra would not be

covered under the household policies with State Farm and therefore

there would be no additional Bodily Injury coverages applicable. We will

provide you with the certified Declarations pages for the household

policies upon receipt. Please note that the policy book and endorsement

that were previously sent would apply also to the additional Declaration

pages that are sent. In the state of M issouri, State Farm lists only one

vehicle on a policy.

That same day, the Sticklers replied to State Farm’s Response, stating:

Thanks for your letter of today’s date. My demand wasn’t for $250,000;

it was for “the aggregate combined total limits of any/all applicable

policy coverages insuring

. . . McGinnis”.

And it was also only as to an unconditional release of . . . McGinnis and

no other parties, upon my review of all possible policies of coverage for

him, which you have now agreed to provide me the dec[laration] sheets

of and a recorded phone interview with him regarding such coverages, if

any.

I will await delivery of each of those dec[laration] sheets

. . . .

On November 12, 2020, after having interviewed McGinnis, the Sticklers sent

a letter to State Farm, which stated in part:

Thank you for the opportunity to telephonically interview your insured

tortfeasor, . . . McGinnis, regarding potential liability coverage(s) and

for providing a copy of the transcript.

* * * * *5

It is al so clear that [McGinnis] is a covered driver, both on his 2013 GMC

Denali pickup and also as a permissive/regular driver on the 2005 GMC

K1500 pickup owned by his mother, Rhonda McGinnis. That vehicle

appears to also have $250,000 per person liability coverage. Therefore,

demand for full settlement and release herein of . . . McGinnis is made

in the amount of FIVE HUNDRED THOUSAND DOLLARS

($500,000.00). Upon receipt of such amount we will fully release . . .

McGinnis and State Farm as to any/all coverag es for

. . . McGinnis.

After the parties exchanged several emails providing their stance on whether

an agreement had been made, McGinnis (through counsel) sent the Sticklers a letter

on December 11, 2020, confirming that a settlement had been reached as a result of

State Farm’s Response on September 23, 2020, which “accepted” the terms of the

September 10, 2020, Stickler Offer. Enclosed with the December 11, 2020, letter was

a proposed release for the claim against McGinnis for a settlement of $250,000. Th e

December 11, 2020, letter read, in relevant part:

. . . State Farm did not make an offer of $250,000.00, but in fact accepted

your offer to settle the wrongful death claim against . . . McGinnis for

the applicable $250,000.00 policy limit.

Regardless, I advised I would send you a proposed Release, which I am

enclosing.

* * * * *

Again, I am not coverage counsel for State Farm but represent only . . .

McGinnis. However, I have reviewed the policy regarding the 2005 GMC

K1500, and clearly that policy does not provide coverage to my client

regarding the accident at issue. Therefore, the only applicable policy is

the one insuring the 2013 GMC vehicle owned by my client, and involved

in the accident. Hence, State Farm did accept your offer to pay all

“applica ble limits”

– which again is the $250,000.00 policy limit on the

vehicle involved in the accident.

On January 5, 2021, the Sticklers filed a petition for damages against

McGinnis, who subsequently filed a motion to enforce settlement (“Motion”). On May6

13, 2021, an evidentiary hearing was held on McGinnis’ Motion. At the hearing, the

Sticklers argued “there was no mirror

- image acceptance by the defendant in this

case” and, as a result, State Farm’s Response on September 23, 2020, was a cou nter

offer which was rejected. Specifically, the Sticklers contended that State Farm’s

Response advising that the policy limits were $250,000 was, without further

information, a failure to provide mirror

- image acceptance.

On June 21, 2021, the trial court denied the Motion in its amended order and

judgment, finding that the “parties never entered into a valid and enforceable

settlement agreement” in that the “subsequent conduct of the parties and the

subsequent objective manifestations of the parties shown through the correspondence

of the parties . . . confirms these parties never had a meeting of the minds as to the

three basic requirements of a contract: offer, acceptance, and consideration.” T he

trial court certified the case as a partial final judgmen t pursuant to Rule 74.01(b).

McGinnis appeals.

Standard of Review

“In a court

- tried case, we will affirm the judgment of the trial court unless it is

unsupported by substantial evidence, it is against the weight of the evidence, or it

erroneously declares or applies the law.” Beck v. Shrum

, 18 S.W.3d 8, 10 (Mo. App.

E.D. 2000) (citing Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976)). “We are

concerned primarily with reaching a correct result, and thus we do not need to agree

with the reasoning of the trial court in order to affirm the result.” Id . (citing

McDermott v. Carnahan , 934 S.W.2d 285, 287 (Mo. banc 1996)).7 Analysis

In his sole point on appeal, McGinnis argues that the trial court erred in

denying his Motion because the pa rties had reached a settlement as to the Sticklers’

claim in that all essential elements of a contract existed. Specifically, McGinnis

contends that, in response to the Stickler Offer, State Farm’s Response constituted

an unequivocal, mirror

- image acceptan ce. We disagree.

“A motion to compel settlement adds to a pending action a collateral action for

specific performance of the settlement agreement.” Id . (citing McKean v. St. Louis

County , 964 S.W.2d 470, 471 (Mo. App. E.D. 1998)). “The party requesting specific

performance of a settlement agreement has the burden of proving, by clear,

convincing and satisfactory evidence, his or her claim for relief.” Id . (citing Payne v.

E&B Carpet Cleaning, Inc ., 896 S.W.2d 650, 651 (Mo. App. E.D. 1995)). “Evidence is

clear and convincing if it ‘instantly tilt [ s ] the scales in the affirmative when weighed

against the evidence in opposition, [ such that ] the fact finder’s mind is left with an

abiding conviction that the evidence is true.’” J.H. v. Brown , 331 S.W.3d 692, 6 99 (Mo.

App. W.D. 2011) (quoting In the Interest of T.S

., 9 2 5 S.W.2d 486, 488 (Mo. App.

E.D. 1996)). “The trial court is afforded much discretion in deciding whether to award

the equitable remedy of specific performance.” Beck v. Shrum

, 18 S.W.3d at 10 (citing

McBee v. Gustaaf Vandecnocke Revocable Trust , 986 S.W.2d 170, 173 (Mo. banc

1999)).

“Courts of this state have held that whether there was a meeting of the minds

is a question of fact for the trial court to decide.” Women’s Care Specialists, LLC v.8

Troupin , 408 S.W.3d 310, 316 (Mo. App. E.D. 2013) (quoting Don King Equip. Co. v.

Double D Tractor Parts, Inc. , 115 S.W.3d 363, 368 (Mo. App. S.D. 2003)). “We defer

to the findings of fact in a court

- tried case, but we make an independent evaluation

of the conclusions of law the trial court draws from its factual findings.” Id

.

“Contract law governs the question of whether the parties entered into an

enforceable settlement agreement.” St. Louis Union St atio n Holdings , Inc. v.

Discovery Cha nnel Store , Inc. , 301 S.W.3d 549, 552 (Mo. App. E.D. 2009) (citing

Emerick v. Mutual Benefit Life Ins. Co ., 756 S.W.2d 513, 518 (Mo. banc 1988)). “[T]o

establish a legal, valid settlement agreement, one must prove the essential elements

of a contract: offer, acceptance and consideration.” Id

. (citing Tinucci v. R.V. Evans

Co

., 989 S.W.2d 181, 184 (Mo. App. E.D. 1998)). More specifically, “[a] contract does

not exist without a definite offer and a ‘mirror

- image’ acceptance.’” Pride v. Lewis

, 179

S.W.3d 375, 379 (Mo. App. W.D. 2005) (quoting Volker Court, LLC v. Santa Fe

Apartments, LLC , 130 S.W.3d 607, 611 (Mo. App. W.D. 2004)). “Any acceptance that

includes new or variant terms from the offer presented amounts to a counter

- offer and

a rejection of the original offer.” Id . (citing Tirmenstein v. Cent. States Basement &

Found. Repair, Inc. , 148 S.W.3d 849, 8 5 1 (Mo. App. E.D. 2004)). “A determination of

whether an offer has been accepted depends upon what is actually said and done; it

does not depend on th e understanding or supposition of one of the parties.” Youngs v.

Conley

, 505 S.W.3d 305, 314 (Mo. App. W.D. 2016) (quoting Grant v. Sears

, 379

S.W.3d 905, 917 (Mo. App. W.D. 201 2 )).9

“A valid settlement agreement also requires ‘a meeting of the minds and a

mutual assent to the essential terms of the agreement.’” Id. at 313 (quoting Reppy

v. Winters , 351 S.W.3d 717, 720 (Mo. App. W.D. 2011)). “A meeting of the minds occurs

when there is a definite offer and an unequivocal acceptance .” Id. at 3 14 (quoting

Grant v. Sears , 379 S.W.3d at 916 ) (emphasis in original). “A mutual agreement is

reached when ‘the minds of the contracting parties [] meet upon and assent to the

same thing in the same sense at the same time.’” Youngs v. Conley , 505 S.W.3d

at 314. “A court determines a meeting of the minds ‘by looking to the intention of the

parties as expressed or manifested in their words or acts.’” Women’s Care Specialists,

LLC v. Troupin , 408 S.W.3d 310, 316 (Mo. App. E.D. 2013) (quoting J.H. v. Brown

,

331 S.W.3d at 702).

We note that neither party challenges the validity of the offer. Hence, the

question is simply whether there was a valid acceptance and a meeting of the minds.

Clearly, there were not.

The State Farm Response was not a mirror

- image acceptance of the Stickler

Offer’s terms. Rather, having received the Stickler Offer, State Farm seized the

opportunity to “accept” based upon its own determination that only a single policy of

insurance covered McGinnis. State Farm’s Response “confirmed t hat there were other

automobiles in . . . McGinnis’ household that were also insured at the time of this

loss,” but determined, on its own

, that the 2013 GMC Sierra would not be covered

under such policies. This is contrary to the Stickler Offer, which clearly made their

demand contingent upon investigating this fact themselves by both interviewing10

McGinnis and reviewing certified copies of the “any/all” potentially applicable

insurance policies. State Farm’s Response notified the Sticklers of its “acceptance of

your demand for the policy limits of $250,000 in full settlement of your client’s injury

claim,” which is itself a mischaracterization of the Stickler Offer. By making its own

determination of coverage and folding this determination into its “acceptance,” prior

to allowing the Sticklers an opportunity to review all policies of insurance and

interview McGinnis, State Farm’s Response varied the terms of the offer in

attempting to render an acceptance.

We acknowledge that State Farm later allowed the Sticklers to interview

McGinnis and later provided copies of the policies. However, McGinnis’ assertion is

that a settlement agreement was forged by the State Farm Response, before the

interview of McGinnis and receipt of the declaration sheets by the Sticklers. Notably,

the State Farm Response did not definitively agree to an interview of McGinnis, but

rather it stated they would confer with McGinnis about his willingness to do so. Here,

the crux of the issue is that at the time State Farm asserts that an agreement was

forged, the Sticklers still desired to determine what policies they believed afforded

coverage. Until the Sticklers were allowed to do so in the manner requested, the

parties did not have an offer and acceptance and were not in a position to forge an

agreement. At best, State Farm’s Response amounted to a counter

- offer because it

varied the terms of the offer by determining coverage for the Sticklers, rather than

allowi ng the Sticklers to do so themselves. Pride v. Lewis

, 179 S.W.3d at 379 (“Any11

acceptance that includes new or variant terms from the offer presented amounts to a

counter

- offer and a rejection of the original offer.”).

Our finding that the parties’ communications did not amount to a settlement

agreement is further demonstrated by the clear absence of a meeting of the minds.

Here, on September 23, 2020, the very same day the Sticklers received State Farm’s

Response, the Sticklers replied, stating: “Thank you for your letter of today’s date.

My demand wasn’t for $250,000; it was for ‘the aggregate combined total limits of

any/all applicable policy coverages insuring . . . McGinnis.’” The lack of a meeting of

the minds is further evidenced by the Sticklers later demand for the limits of coverage

under two policies of insurance and the continued insistence by McGinnis’ insurance

carrier that a settlement had previously been reached. “A court determines a meeting

of the minds ‘by looking to the intention of the parties as expressed or manifested in

their words or acts.’” Women’s Care Specialists, LLC v. Troupin

, 408 S.W.3d at 316

(quoting J.H. v. Brown

, 331 S.W.3d at 702). Here, the correspondence between the

parties made it clear they simply did not have an agreement. Further, “[a] mutual

agreement is reached when ‘the minds of the contracting parties [] meet upon and

assent to the same thing in the same sense at the same time.’” Youngs v. Conley , 505

S.W.3d at 314 (quoting Grant v. Sears , 379 S. W.3d at 916 )

. After our review of the

record, we cannot say that the parties ever had a meeting of the minds upon the same

terms in the same sense at the same time in this case. 2

2 McGinnis further argues that the Sticklers continued to proceed as if there was a settlement

following the Stickler Offer of September 23, 2020, thereby indicating there was indeed a settlement.12

The trial court did not err in finding “that these parties never entered into a

valid and enforceable settlement agreement.” McGinnis’ point on appeal is denied.

Conclusion

The trial court’s judgment is affirmed.

W. DOUGLAS THOMSON, JUDGE

All concur.

For instance, later, the Sticklers desired to see the proposed release drafted by McGinnis. McGinnis

also argues, as we mentioned, supra

, that he did ultimately comply with the terms of the Stickler Offer

by allowing the Sticklers to interview him and providing copies of insurance policies and declaration

sheets. These arguments are of no merit. Again, the settlement agreement into which McGinnis argues

the parties entered occurred at the time of the State Farm Response

. At that time

, however, the

conditions upon which the Sticklers’ offer was made had not been fulfilled.