CARL E. SMITH and MARGARITA SMITH, )

) Appellants, ) ) vs. ) No. SD32604 ) GREAT AMERICAN ASSURANCE ) FILED: June 3, 2014 COMPANY, GREGORY HERKERT, and ) THE STOLAR PARTNERSHIP, LLP, ) ) Respondents. )

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

Honorable Michael J. Cordonnier, Judge

AFFIRMED Carl and Margarita Smith owned motel property subje ct to a mortgage that Respondents purported to foreclose over the Smiths’ objection. The Smiths sued. The parties’ lawyers quickly explored settlement, reach ed agreement, and circulated

settlement documents which the Smiths refused to si gn. Respondents moved to enforce the settlement. After an evidentiary hearing, the court granted the motion and entered judgment accor dingly. The Smiths appeal, raising three points. We affirm

.2 Background 1 Paul Hasty represented the Smiths at all times; Rod Loomer facilitated negotiations on Respondents’ behalf. To quote the judgment, the settlement terms “are not in dispute,” but

a general understanding of those terms is important for further consideration of the issues. The settlement agreeme nt contemplated a “walk away” deal. The substance of the agreement was set forth in Attorney Hasty’s letter of August 22, 2012, address ed to Attorney Loomer, which proposed, inter alia, ... Great American can consider the loan paid and release the mortgage on the property thereby vesting title in t he Smiths free and clear of any interest of the bank or Great Amer ican. These terms were accepted by Defendants, as was com municated by Attorney Loomer in his letter dated August 24, 2012 , to Attorney Hasty. The settlement terms were again confirmed by Attorney Hasty’s letter to Attorney Loomer dated August 30, 2012, re ferencing recent telephone conversations. No money was going to be exchanged as part of the settlement. Hasty later testified that he had discussed settlem ent with Carl Smith, and the August 22 letter “was my understanding of my author ity from Mr. Smith.” 2 Hasty did not discuss settlement directly with Mrs. Smith, wh o from Ukraine, was not a native English speaker, and would direct Hasty to “talk to Carl” when Hasty would call her about the case. “So,” as Hasty explained, “rather than Mrs. Smith telling [Hasty] or

1 We summarize the background as we must view it on appeal, i.e ., most favorably to the trial court’s judgment, disregarding all contrary i nferences and evidence. Kenney v. Vansittert , 277 S.W.3d 713, 720 (Mo.App. 2008).

2 This letter actually was a counteroffer which bega n by rejecting Respondents’ initial offer. We quote the salutation and opening paragra ph: Dear Mr. Loomer: I’ve had the opportunity to talk to Mr. Smith about the offer that was extended, i.e. Great American would release any cla im on the property as long as the Smiths paid the $41,000.00 balance alleged b y Great American. That offer is declined.3

speaking with [Hasty] about the case, it was her di rection for [Hasty] to go to Carl

Smith.” Sometime in September, after Hasty had copied the S miths on the August 22 offer letter and his August 29 and 30 letters confi rming settlement, Mrs. Smith returned to Ukraine and stayed there until late October.

A week after Loomer circulated formal settlement do cuments for execution, Hasty reluctantly reported that his clients were “n o longer willing to settle the case on the terms previously agreed.” Seven weeks post-set tlement, after Respondents moved to enforce, Carl Smith suggested for the first time that his wife never agreed to settle and he “had no authority to speak for her on the issue. ” Hasty then sent Loomer two midOctober letters, reiterating that Hasty “thought a settlement agreement was reached” and “I’ve made it very clear to you that I thought we had the case settled,” but his clients were “taking the position that counsel did not have authority to enter the agreement that was entered. I certainly thought I did, but that w as based on an assumption that Mr. Smith was speaking for Margarita Smith.” Hasty, Loomer, and both Smiths testified at the Nov ember 19 enforcement hearing. That a settlement had been reached was “n ot in dispute,” to quote the Smiths’ post-hearing brief. Yet they denied being bound, a rguing that Mrs. Smith was not consulted and had not agreed to settle the case. S econdarily, they argued the statute of frauds, a non-pleaded defense first mentioned after all testimony and evidence had been admitted at the hearing. The court rejected both arguments. As indicated ab ove and not challenged on appeal, the court observed that the Smiths “squarel y admit that their attorney indeed reached an agreement to settle the dispute.” The c ourt then found that Hasty had4

authority to represent both of the Smiths and negot iate a binding settlement on their behalf. Finally, the court found that the statute of frauds did not bar enforcement. After entry of a final judgment, the Smiths brought this appeal.

Standard of Review / Points on Appeal As the Smiths repeatedly acknowledge, we can rever se this bench-tried judgment only if no substantial evidence supports it, or 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). It thus seems self-evident that t he Smiths should identify the specific Murphy claim they assert as to each of their points, pref erably within the point itself.

See Rule 84.04(d)(1)(A) & (B) (points shall identify the challenged actions and “the legal reasons for the appellant’s claim of reversible err or ...”). Why? Because each Murphy ground is a separate, distinct legal claim. That is, “an ‘against-the-weight-of-the-evidence’ analysis w hich is distinctly different than a claim that a judgment is not supported by substanti al evidence,” J.A.R. v. D.G.R. , No. SC93649, slip op. at 9 (Mo. banc Apr. 1, 2014), obv iously differs also from claims that the trial court erroneously declared or applied the law. In turn, this means each Murphy ground is proved differently from the others and is subject to different principles and procedures of appellate review. 3

3 For example, in “against the weight of evidence” c laims, we must “defer to the trial court’s credibility determinations, explicit or imp licit,” and can reverse “only when we firmly believe the judgment is wrong.” Mitchell v. Mitchell , 348 S.W.3d 816, 818 (Mo.App. 2011). “Where a misapplication of law is asserted, our review is de novo .” Jackson v. Mills , 142 S.W.3d 237, 240 (Mo.App. 2004). For differen ces in proof and review of “no substantial evidence” vs. “against th e weight” claims, see J.A.R. , slip op. at 9; Houston v. Crider , 317 S.W.3d 178, 186-89 (Mo.App. 2010). For furth er support that these are distinct legal claims, see J.A.R. , slip op. at 10 n.10 and cases cited therein.5

None of the Smiths’ points expressly identify a Murphy ground. This is no real problem as to Points II and III (plainly complaints that the trial court misapplied the law), but the Murphy claim is less obvious in Point I:

The trial court erred in finding that Plaintiffs’ a ttorney had either actual or apparent authority to negotiate a settlem ent of the claim on Plaintiffs’ behalf because Plaintiffs’ attorney did not have such authority in that Plaintiffs did not authorize thei r attorney to do so, nor did Plaintiffs themselves agree to the purported se ttlement. To reiterate, we can reverse only on a Murphy ground, each of which differs from the others both as to proof and appellate revi ew. Ultimately, we read Point I to assert that no substantial evidence supported the t rial court’s fact findings, necessary to the judgment, as to Hasty’s authority. Our interpr etation rescues the point so we can review it, 4 but the underlying complaint still fails for sever al independent reasons next

summarized. Point I – Authority The Smiths’ first and fundamental problem is their failure to effectively assert a “no substantial evidence” claim. See J.A.R. , slip op. at 12 & n.12; Houston , 317 S.W.3d at 186-88. 5 Instead, their “argument on this point ignores th e testimony and evidence favorable to the circuit court’s findings and conclusions and merely recites evidence and purported inferences favorable to [the ir] position.” J.A.R. , slip op. at 14.

4 Tipping the scales for us are assertions in the br ief’s Point I argument that “the only evidence is such that Mr. Hasty did not have expres s authority to bind Plaintiffs to the purported settlement agreement,” and “there is no e vidence that Mrs. Smith was consulted about or agreed to the settlement agreeme nt, precluding any conclusion that Mr. Hasty had apparent authority to do so. Therefo re, authority – both actual and apparent – was truly lacking here.” Having discern ed a Murphy complaint “from the argument portion of this point relied on, we shall address the issue raised.” Jones v. Jones , 285 S.W.3d 356, 359-60 n.5 (Mo.App. 2009).

5 Indeed, this point would fail even if we viewed it as an “against the weight” claim. See Houston , 317 S.W.3d at 187-89.6

“Not only does [this] argument ignore our standard of review, it ignores the law that the circuit court can believe all, part, or none of the testimony of any witness.” Id . at 12 (footnote omitted). “It seems obvious, from the fi ndings and conclusions contained in the judgment, that the circuit court put little or no stock in various factual assertions made by [the Smiths],” id . at 14 n.14, who now fail “to identify favorable e vidence in the record or explain why that evidence and its reasona ble inferences are such that the court could not reasonably decide that [Hasty had authori ty]. Without any of this analysis, [the] argument lacks any analytical or persuasive v alue.” Id . at 12 n.12. In summary, Point I initially fails because its arg ument “ignores the testimony and evidence favorable to the circuit court’s findi ngs and conclusions and merely recites evidence and purported inferences favorable to [its ] position,” disregards our standard of review, and is “of no analytical or persuasive v alue.” Id . at 14.

To support a favorable decision for [the Smiths] on this point would require this Court to devise and articulate its own demonstration of how the omitted favorable evidence, either by itsel f or considered along with the partial favorable evidence included by [th e Smiths] in their argument, is not substantial evidence .... Such acti on on our part would thrust us into becoming an advocate on [the S miths’] behalf; a role we are prohibited from assuming.

Houston , 317 S.W.3d at 189.

We often see the error addressed in J.A.R. and Houston and repeated here by the Smiths. It may aid future appellants if we try to restate certain principles in simplest

terms. We are one-sided when we check the record for suffi ciency of evidence. We ignore everything that could help the appellant, se eing only what might help the respondent. The resulting slant can be so severe t hat we rarely follow this particular rule (even when we cite it) strictly when we write our statement of facts. Outside7

readers require more context to understand a case, so our opinions often cite facts that we cannot consider in deciding if any evidence supp orts the judgment. Our tunnel vision is driven, not by credibility per se , but relevance. Consider a shopping analogy. If we need a red shirt, we ignor e other colors. Nothing is wrong with other shirts, but they do not fit our need. They a re not relevant to our search. Salespersons who show us other shirts, not apprecia ting our specific need, waste their

time and ours. Likewise, in seeing if any evidence supports a judgment, contrary proof is

irrelevant. And if evidence does support the judgment, no amount of counter-proof erases it. This is why a “no substantial evidence” argument focused on proof and inferences that favor the appellant, while minimizi ng those favorable to the judgment, disregards our standard of review and is “of no ana lytical or persuasive value.” J.A.R. , slip op. at 14. This is the first reason that the Smiths’ Point I argument fails. Even if we ignore that problem, Hasty was presumed to have settlement authority, the Smiths bore a “substantial burden” t o overcome that presumption, and the issue was one of fact. Eaton v. Mallinckrodt, Inc. , 224 S.W.3d 596, 597, 598, 599 (Mo. banc 2007). After an evidentiary hearing (“[b]y far the most desirable approach,” id . at 599), the trial court found this fact issue ag ainst the Smiths. Kenney is instructive. There, as here, the client’s atto rney of record filed pleadings and negotiated a resolution with opposing counsel. 277 S.W.3d at 721. Consistent with our supreme court’s Eaton observations, the Kenney court noted that “authority is presumed to be present in the client’ s attorney of record and where the attorney undertakes negotiations with the opposing party.” Id . “Thus, [counsel] had prima facie authority to settle the claims; [the client] conse quently bore a heavy burden8

to rebut this presumption.” Id

.

Our courts have only permitted parties to avoid set tlements concluded by their attorneys where the evidence has failed to raise this presumption of authority, or where the fact-finder is truly convinced authority is lacking .... The trial court is free to believe or disbelieve a client’s testimony about an attorney’s authority. The trial court’s order shows it was not convinced authority was lacking in [the client’s] attorney of record. [The client] failed to rebut t he presumption of [counsel’s] authority to settle his [claims]; we se e no basis to disturb the trial court’s findings.

Id . (citations omitted). The same can be said in thi s case. Finally, even if we further ignore the presumption , we cannot condemn the trial court’s finding of authority if we “view the eviden ce in the light most favorable to the trial court’s judgment and disregard all contrary i nferences and evidence,” id . at 720, and recall a trial judge’s right to “disbelieve a c lient’s testimony about an attorney’s authority.” Id . at 721. The argument that Mrs. Smith never authorized settl ement fares no better. “In the husband-wife context, one spouse cloaks the oth er with apparent authority to act on his or her behalf if the facts and circumstances su rrounding the transaction give rise to a reasonable and logical inference that the non-actin g spouse empowered the acting spouse to act for him or her.” Cohn v. Dwyer , 959 S.W.2d 839, 843 (Mo.App. 1997), quoted in Rosehill Gardens, Inc. v. Luttrell , 67 S.W.3d 641, 647 (Mo.App. 2002). See also Stoner v. Director of Revenue , 358 S.W.3d 514, 520 n.12 (Mo.App. 2011). Hasty, who represented and had dealt with both spou ses, clearly believed Mr. Smith also spoke for his wife in rejecting Responde nts’ first offer and authorizing the August 22 counteroffer that Hasty conveyed and Resp ondents promptly accepted. Such was “a reasonable and logical inference” from the r ecord as we must view it, including Hasty’s testimony and Mrs. Smith’s “talk to Carl” d irections when Hasty would call her9

about the case. Moreover, the trial court heard Mr s. Smith testify, knew English was not her first language, and could reasonably infer (lik e Hasty, apparently) why she might direct her lawyer to deal with Mr. Smith instead. We need not list all evidence or inferences support ing the court’s finding of authority. At least some evidence of record suppor ts it and the trial judge was in the best position to decide that issue. Parks v. MBNA Am. Bank , 204 S.W.3d 305, 313 (Mo.App. 2006). For each and all of these reasons, Point I fails.

Point II – Statute of Frauds Although Point II cites the statute of frauds, no s uch claim was preserved. See Norden v. Friedman , 756 S.W.2d 158, 162 (Mo. banc 1988) (failure to p lead statute of frauds or object to trial testimony regarding or al contract constitutes waiver); Stander v. Szabados , 407 S.W.3d 73, 80 (Mo.App. 2013). The Smiths did not plead or otherwise raise the sta tute of frauds prior to the enforcement hearing; even had they done so, “failur e to object to the testimony of the oral agreement would waive any protection of the st atute.” Crawford v. Detring , 965 S.W.2d 188, 192 (Mo.App. 1998); see also Owen v. Hankins , 289 S.W.3d 299, 304 n.7 (Mo.App. 2009); Sheinbein v. First Boston Corp. , 670 S.W.2d 872, 879 (Mo.App. 1984). That is what happened. All settlement test imony and evidence was admitted at the hearing without any statute of frauds objection , resulting in waiver. Whether the defense was waived, as we find, or fail ed on the merits as the trial court found, the outcome is the same. We are more concerned with a correct result than

the route taken to reach it. Missouri Soybean Ass’n v. Missouri Clean Water

Com m’n , 102 S.W.3d 10, 22 (Mo. banc 2003). We will affir m if a judgment “is correct10

on any ground supported by the record, regardless o f whether the trial court relied on that ground.” Id . Point denied. Point III – Mortgage Release Finally, the Smiths allege that Respondents have no t released their mortgage as the judgment requires, but fail to show why Rule 74 .07 does not offer an adequate remedy. 6 We deny Point III and affirm the judgment.

DANIEL E. SCOTT, J. – OPINION AUTHOR NANCY STEFFEN RAHMEYER, P.J. – CONCURS IN RESULT IN SEPARATE OPINION WILLIAM W. FRANCIS, JR., C.J. – CONCURS AND FILES S EPARATE CONCURRING OPINION

6 Quoting that rule in pertinent part: If a judgment directs a party to execute or deliver a deed or other document or to perform any other specific act and the party fai ls to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court, and the act when so done has like effect as if done by the party. On applic ation of the party entitled to performance, a writ of attachment or sequestration shall issue against the property of the disobedient party to compel obedien ce to the judgment. The court may also adjudge the party in contempt.1

CARL E. SMITH and MARGARITA ) SMITH, ) ) Plaintiffs-Appellants, ) ) vs. ) No. SD32604 ) GREAT AMERICAN ASSURANCE ) Filed: June 3, 2014 COMPANY, GREGORY HERKERT ) AND THE STOLAR PARTNERSHIP, LLP,) ) Defendants-Respondents. )

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Michael J. Cordonnier, Circuit Judge

CONCURRING IN RESULT As noted in the majority opinion, the Smiths, in their first point, challenge the judgment that found Hasty 1 had either actual or apparent authority to “negotiate a binding

settlement” of the claim on the Smiths’ behalf beca use the Smiths neither authorized their attorney to do so, nor agreed to the purported settlement . I commence my analysis with

1 Hasty represented the Smiths in this appeal but was a witness at the hearing to enforce the judgment.2

Rule 4-1.2(a), of the Missouri Court Rules. 2 Every attorney in Missouri is aware of this

rule: (a) A lawyer shall abide by a client’s decisions concer ning the objectives of representation, subject to Rule 4-1.2(c), (f) and (g), a nd shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client’s decision whether to accept an o ffer of settlement of a matter. Rule 4-1.2(a). It is without question that, in Missouri, an attorney mus t have express authority to bind his client to a settlement agreement and, conversely, there is no implied authority to settle a client’s claim by the mere fact of an attorn ey’s employment. Barton v. Snellson , 735 S.W.2d 160, 162 (Mo. App. E.D. 1987); Samland v. J. White Transp. Co., Inc. , 675 S.W.2d 92, 95-96 (Mo. App. W.D. 1984). “[A]n attorney’s implied aut hority is limited to procedural matters. It does not extend to the surrender of any of the client’s substantive rights.” Barton , 735 S.W.2d at 162. Settlement decisions have the potential both to benefit and harm the client. Rule 4–1.2(a) requires a client to be in control of the de cisions that have the capacity to affect the client profoundly, specifical ly referencing the decision whether to accept a settlement of the case, so an attorney may not execute a contract that gives the attorney the sole r ight to settle a case.

In re Coleman , 295 S.W.3d 857, 864 (Mo. banc 2009). At issue is whether Hasty had actual or apparent authorit y. To be sure, as stated in the majority opinion, there is case law supporting the proposition that Hasty was presumed to have settlement authority and that the Smiths bore a “substantial burden” to overcome that presumption. The problem is the majority opinion is based upon “the trial judge’s right to ‘disbelieve a client’s testimony about an attorney’s authority.’” The judgment must still be based upon evidence. The evidence bef ore the trial court was the

2 All rule references are to Missouri Court Rules (2014), unless otherwise specified.3

written correspondence between the attorneys and the t rial testimony by Loomer, Hasty,

and the Smiths. The judgment states: The substance of the agreement was set forth in Attorn ey Hasty’s letter of August 22, 2012, addressed to Attorney Loomer, which proposed, int er alia, “. . . Great American can consider the loan paid and re lease the mortgage on the property thereby vesting title in the Smi ths free and clear of any interest of the bank or Great American.” These terms were accepted by Defendants, as was communic ated by Attorney Loomer in his letter dated August 24, 2012, to Attorney Hasty. The settlement terms were again confirmed by Attorney Ha sty’s letter to Attorney Loomer dated August 30, 2012, referencing recent telep hone conversations. The problem with the court’s analysis is that the term s were not accepted by Loomer. A more complete portion of the letters indicates seve ral important facts. Defendants made an offer which was not provided to us and, o n August 22, 2012, Hasty

sent a letter to Loomer:

I’ve had the opportunity to talk to Mr. Smith about the offer that was extended, i.e. Great American would release any cla im on the property as long as the Smiths paid the $41,000.00 balance alleged by Great American. That offer is declined.

. . . . Our legal position, based on my evaluation, is really qui te simple. [Hasty set out the Smiths’ legal propositions, including a claim for punitive damages for the actions of Great American.] Mr. and Mrs. Smith will settle the claim at this point either one of two ways. Either the Smiths can be paid the difference between the $540,000.00 sale price and the amount Great American paid to purchase the loan (approximately $41,000.00) or Great American can consider the loan paid and release the mortgage on the property thereby vesting title i n the Smiths free and clear of any interest of the bank or Great Amer ican. (Emphasis added.)4 An analysis of this letter makes it clear, first, tha t Hasty felt obligated to speak to Mr. Smith, that he did speak to Mr. Smith, and that the initial offer was declined. Hasty made no reference to speaking with Mrs. Smith. He eith er inadvertently omitted her from

the letter or had no conversation with her or did not fee l it was necessary to converse with her. His letter, then, was a rejection of Defendant s’ offer and a proposed counter-offer. Loomer, on behalf of Defendants, responded to that coun ter-offer on August 24, 2012: This will acknowledge receipt of your letter of August 22, 2012. I have discussed the same with my clients as well as th e attorneys representing Great American. Great American is willi ng to consider the loan paid and will release the mortgage on the property t hereby vesting title in the Smiths free and clear of any interest of t he bank or Great American. Each party will be responsible for attorney’s fees and costs incurred, and the terms of the settlement will be confidential. I will circulate to you, Scott Kreamer, and Jeff Love those releases for r eview. (Emphasis added.) What is clear from this correspondence from Loomer is t hat the attorneys for

Defendants also felt the need to discuss the offer with their clients, that they did discuss the offer with their clients, and that they were wil ling to accept the second option that had been suggested, with the additional terms of each paying t heir own attorney’s fees and

costs and that it be a confidential settlement. 3 Although Loomer testified that he considered this letter as an acceptance of the Smiths’ o ffer and the court found it to be a contract acceptance, “[a] contract does not exist with out a definite offer and a mirrorimage acceptance.” Volker Court, LLC v. Santa Fe Apartments, LLC , 130 S.W.3d 607, 611 (Mo. App. W.D. 2004) (internal quotations omitted). “As a gene ral common law principle, 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) (internal

3 This letter comports with the testimony at trial tha t Loomer indeed discussed the settlement offer with his clients and with the attorney for Great American, James Kreamer.5

quotations omitted). Defendants’ letter of August 24th was a rejection of the offer and a proposed counter-offer. Furthermore, Loomer indicated he would circulate releases for review by all Defendants and Hasty. Clearly, then, the trial court’s legal conclusion that the offer was accepted on August 24, 2012, was a misapplication of the law. 4 Hasty testified that his August 22nd letter “was my understanding of my authority from Mr. S mith.” The other evidence relied upon by the trial court and the majority opinion wa s an email from Loomer dated August 27, 2012: Paul, Per our telephone discussion this morning and the email I sent to you last week, we have a settlement. We will get you the proposed settlement documents for you and Scott to review

. (Emphasis added.) The August 27, 2012 e-mail stated that, per a phone call, the parties had a settlement; however, the e-mail references a “pr oposed settlement document” for review. The additional terms suggested by Defendants were not addressed in the email. The court must look to the intention of parties as expre ssed or manifested in their words

or acts. Arndt v. Beardsley , 102 S.W.3d 572, 575 (Mo. App. S.D. 2003). Loomer

testified: [Co-counsel for Defendants Herkert and Stolar Parnershi p, LLP]: And that was the e-mail in which -- or the telephone discuss ion that you had with regard to transmittal and circulation of the sett lement documents? [Loomer]: Right. In my letter I added -- the original l etter that’s Exhibit No. 1 I had added that each pay their own attorney fees, c osts. That was not part of Paul’s original letter so I wanted to make sure that there was no issue with regard to, you know, some counteroffer. So, we communicated, we talked about it that morning. He said his clients were on board[.] . . . So I sent out the settlement documents for him and Scott Kreamer on behalf of America to review.

4 However, as noted by the majority opinion, the Smiths, by attorney Hasty, did not challenge that Hasty reached an agreement to settle the dispute.6 Loomer testified that he was told that Hasty’s clients were “on board,” however, Hasty and each of the Smiths testified there had been n o verbal communication between either of the Smiths and Hasty about the additional sett lement agreement terms after the

discussion of Defendants’ first offer and the Smiths’ c ounter-offer. Although Hasty testified he sent a “blind carbon copy” of all the lett ers that were exchanged to the address he had in Kansas for the Smiths, 5 there is nothing in the letters that would alert the Smiths that Hasty had resolved the issues of costs , attorney’s fees, and confidentiality. Furthermore, as noted in the correspondence from Loomer, the future settlement agreement was called a “proposed” settlement agreement. To determine whether attorney’s fees and costs were a si gnificant factor in the settlement negotiations, it is important to note that t he Smiths, prior to the foreclosure, vehemently protested the foreclosure sale, advising by let ter that they were the rightful owners and that there would be significant damages. Aft er the foreclosure sale, Hasty sent a letter to Defendants stating:

You are each hereby notified that claim is made against y ou. The actions you have taken, together, constitute a conspirac y resulting in conversion, trespass, invasion of privacy, defamation, l ibel, and probably other torts. Demand is hereby made that you immediately provide written confirmation that the proceeds of the Trustee’s Sale, i n their entirety, are being paid to Carl and Margarita Smith and counsel. This office does have an attorneys’ lien on this claim. The Smiths, through attorney Hasty, indicated that the y believed they had been the victims of several torts. Presumably, Hasty had a good faith basis to bring suit on each of these claims. Again, even if the court disregar ded the testimony of the Smiths

5 Mr. Smith testified he was in Branson and did not rece ive the correspondence until his return to Kansas; however, even if we accept the inference that he did re ceive the correspondence, there is nothing in the correspondence that indicates that the terms of costs, attorney’s fees, and confidentiality had been addressed.7

that attorney’s fees were an important term of the se ttlement, attorney’s fees were apparently important to Hasty. Hasty obtained both of the parties’ signatures on his “ contingent contract.” He sent notice of his contingency contract during preliminary negotiations with Loomer. After the Smiths notified Hasty that they did not acc ept the terms of the settlement agreement, Hasty again, by letter to Defendants, claime d to have a “contingent fee agreement” and claiming a lien on any recovery by Mr. and M rs. Smith “[t]hat includes recovery of the property.” Hasty testified that he re ceived a call from a “public adjuster” that had signed a contract with either Mr. Smith or Mr s. Smith or both of them. He did not know which but the adjuster was looking for a lawyer; he talked with Mr. Smith by phone and drafted the letter given by Mr. Smith to Mr. He rkert prior to the foreclosure.

He then met Mrs. Smith at the hotel where she worked w hen she signed the attorney’s

contract but never discussed the case with her. He ha d both parties sign the contract even though he did not meet Mr. Smith at all until the date that was scheduled for the Motion to Enforce the Settlement hearing. The representation contract was not admitted into

evidence at trial. The parties continued to negotiate regarding other terms in the proposed settlement agreement. In fact, in one letter, dated August 30, 2012, Hasty, after stating concerns about the way the document was drawn, stated, “H owever, all that being said, if Liberty Bank is willing to execute the document, I believe Mr. and Mrs. Smith will

agree .” (Emphasis added.) An analysis of the responses from Hasty to the “propo sed” settlement agreement indicates several complaints about the proposed agreeme nt. Most important, however, in8

the response of August 30, 2012, is the statement, “I believe Mr. and Mrs. Smith will agree.” As of August 30, 2012, it had to be clear to Defendant s that there was no apparent authority and that there was no settlement beca use the Smiths were not yet agreeing to it. Hasty was clear in his letter that he recognized that it was the Smiths who needed to agree to the settlement. 6 If you disregard the testimony by the Smiths that they n ever authorized a settlement based upon the terms that each party would pay its own attorney’s fees and

costs and that the settlement would be confidential and i f you disregard the testimony of Hasty that he never discussed anything with the clients ot her than the offer that was made on August 22nd, there must be some other evidence to base the decision that Hasty had actual or apparent authority to settle the case in the manner of the proposed settlement. The written correspondence shows none. In fact, all of the evidence is to the contrary. Throughout the correspondence, the settlement is referr ed to as a “proposed settlement.” Even after the letter from Loomer indicating there w as a settlement, there is correspondence from Hasty stating he “believed” his clie nts would agree. The only evidence the trial court could have relied on to draw the conclusion that the Smiths had agreed to the settlement is the testimo ny of Hasty AFTER he was notified by the Smiths that they did not agree to the settlement when they received the actual settlement documents. The statement as recited by Loome r is, “Well, my clients have backed out on the settlement. Will no longer settle the case upon the terms that we agreed. And I said, you know, Paul, we’ve got a settlement, and he said, I know it but they’re just -- they won’t sign the documents that we agreed upon.” Hasty’s September

6 Negotiations or preliminary steps towards the formation of a contract do not satisfy the requisite element of mutuality of agreement. Ketcherside v. McLane , 118 S.W.3d 631, 635 (Mo. App. S.D. 2003).9

18, 2012 letter to Loomer confirms Loomer’s testimony. Neit her party asked Hasty any specific questions about when the Smiths had agreed to pay th eir own attorney’s fees and costs. Further, there were no questions on behalf of M rs. Smith’s interest in the property separate from her husband’s. The only testimony is to the contrary: the Smiths and Hasty had not spoken after the August 22nd letter was sent t o Loomer. There was no discussion of attorney’s fees and costs. 7 Nevertheless, the Smiths lose in this appeal because of the actions of their attorney and the “presumed authority” of their attorney to settle the case. By his ambiguous letter to Loomer after the Smiths declined to sign the agreement, Hasty made possible the only inference by the trial court that perh aps the Smiths at some point had actually agreed on the issues of attorney’s fees and cos ts. It is clear from the correspondence that there was no apparent authority. T he situation is more complicated by the fact that Hasty then continued to represent the S miths though he had stated positions contrary to the Smiths’ position. He continued to assert throughout the hearing that he thought he had authority to settle the case. 8 Hasty continued to represent the Smiths through the first scheduled hearing and made further representations in writing against the Smiths ’ interests. At the hearing he

testified that his clients’ contention that Mrs. Smit h did not agree to the settlement was

7 See Rule 4-1.7(a)(1), Conflict of Interest (“[A] lawyer s hall not represent a client if the representation involves a concurrent conflict of interest. A concurr ent conflict of interest exists if: (1) the representat ion of one client will be directly adverse to another clien t[.]”).

8 “Because an agent cannot create his own authority, appar ent authority must arise from the acts of the principal, not from acts of the agent.” Parks v. MBNA America Bank , 204 S.W.3d 305, 313 (Mo. App. W.D. 2006). It is the conduct of the principal (the client ) which must cause a third person reasonably to believe that another (the attorney) has the authority to act for the principal. Id. “Apparent authority exists only concerning third parties that believe and have reas on to believe that the authority exists.” Id. “Apparent authority may be shown by evidence of the facts and circumstances attending the actions of the parties.” Id. (internal quotations omitted).10

the first time he even considered the issue of Mrs. Sm ith’s opinion. As noted, separate counsel representing both Smiths participated at the hear ing; however, Hasty then represented both Smiths in this appeal, where the issue of whether there was even a valid

settlement was not raised and the deficiencies in the br ief are noted in the majority and concurring opinions, which resulted in an impediment to a full resolution of all possible

issues. I return to Rule 4-1.2(a), which states the lawyer shall abide by a client’s decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued. It is only be cause of the deference to the trial court that an inference from the clients’ lawye r after the fact can be substantial evidence. Reluctantly, I must concur in the result.

Nancy Steffen Rahmeyer, P.J. – Concurring in Result Opini on Author1

CARL E. SMITH and MARGARITA SMITH, ) ) Appellants, ) ) vs. ) No. SD32604 ) GREAT AMERICAN ASSURANCE ) Filed: June 3, 2014 COMPANY, GREGORY HERKERT, ) and THE STOLAR PARTNERSHIP, LLP, ) ) Respondents. )

CONCURRING OPINION I concur in the principal opinion, but write separately in order to express my frustration with Appellants’ lack of compliance with the briefing re quirements in Rule 84.04, 1 and particularly with the lack of compliance with Rule 84.04(d) , which sets forth the briefing requirements for points relied on. As this writer str uggled to understand the points presented, it was necessary to utilize basic English principles that most learn in grammar school. Using those principles, Appellants’ Point I was broken down to its mo st basic form. This was the result

achieved:

1 All rule references are to Missouri Court Rules (2013).2

I did not have actual or apparent authority to negotiate a settlement of the claim on behalf my clients because I did not have the autho rity in that my clients did not authorize me to negotiate the settlement and my clients did not agree to the “purported” settlement. Further comment as to the absurdity of Appellants’ posit ion is unnecessary. I would dismiss the entire appeal for lack of compliance with Rule 84.04(d) and failure of Appellants to comply with it in any of their points.

WILLIAM W. FRANCIS, JR., C.J. - CONCURRING OPINION AUTHOR