# In the Missouri Court of Appeals **Eastern District**

DIVISION THREE SANSONE LAW, LLC, ) No. ED107525 ) Plaintiff/Respondent, ) Appeal from the Circuit Court ) of St. Louis County vs. ) ) J&M SECURITIES, LLC, ) Honorable Michael T. Jamison ) Defendant/Appellant. ) Filed: October 8, 2019 Introduction J&M Securities, LLC (Appellant) appeals from the trial court’s judgment granting the Motion to Enforce Settlement a nd For Sanctions filed by Sansone Law, LLC (Respondent) and dismissing all claims with prejud ice. We reverse and remand to the trial court to reinstate Appellant’s and Respondent’s claim s for further proceedings. Factual and Procedural Background Respondent filed a three-count peti tion against Appellant alle ging Respondent had represented Appellant and had, at Appellant’s request, provided legal services to Appellant. Respondent further alleged Appellantreceived the legal service s but failed to pay for them. The petition against Appellant allege d (1) quantum meruit, (2) frau dulent misrepresentation, and (3) slander/libel. Respondent reque sted relief in excess of $25,00 0 in compensatory damages, as well as attorney’s fees and costs.2 Appellant filed a partial answer , along with affirmative defen ses, and eleven counterclaims. In the countercl aims, Appellant alleged Respond ent (1) breached the legal services contract, (2) was unj ustly enriched, (3) committed leg al malpractice, (4) breached its fiduciary duty, (5) tortiously i nterfered with a business expec tancy, (6) illegally evicted Appellant, (7) abused process i n evicting Appellant, (8) failed to return Appellant’s security deposit, (9) committed conversion of Appellant’s office propert y, (10) was unjustly enriched by the office property, and (11) w as unjustly enriched by joint le gal services. Appellant also filed a motion to dismiss Respondent’s pra yer for attorney’s fees, alon g with Count II of Respondent’s petition, fraudulent misrepresent ation, for failing to state a claim upon which relief could be granted. Following Appellant’s answer, the trial court entered an order that stated: On application of the parties, p resented ex parte, by consent o f the attorneys, by Talmage Newton, the Clerk is instructed to withdr aw the partial answer, affirmative defenses a nd counterclaims filed by J&M Sec urities, LLC. Sansone Law has agreed not to defa ult J&M Securities pending fu rther discussions of the parties. A case management conference was held in January 2017. The tr ial court entered an order following the hearing tha t stated, “Discovery pending, pa rties discussing resolution of discovery issues. [Case managemen t conference] reset for March 31, 2017 @ 11 am.” On the day following the case management conference, Responden t filed a motion to compel Appellant to fully ans wer and respond to its interrogato ries and request for production. The motion to compel was set fo r hearing. Prior to the schedul ed hearing on the motion to compel, Appellant filed its revis ed partial answer, affirmative defenses, and counterclaims. Respondent filed a memorandum to cancel the hearing on the mot ion to compel, which the trial court judge signed.3 Following the cancellation of the motion to compel hearing, Re spondent filed a motion to dismiss Appellant’s counterclai ms. The trial court set both Ap pellant’s and Respondent’s motions to dismiss for heari ng. On the day of the hearing, the trial court entered an order that stated, “Both parties ordered t o amend claims within 30 days or each parties [sic] motion to dismiss is granted.” Appellant and Respondent did not am end their respective claims within 30 days, but instead jointly requested the t rial court extend the deadline f or filing amended pleadings for an additional 30 days. The trial cou rt granted the parties’ reque st. Thirty days later, Appellant a nd Respondent jointly requested a second extension of an additional seven days for filing the amended pleadings. Seven days later, Appellant f iled its amended partial answer, affirmative defenses, and counterclaims alleging: (1) legal malpractice (Hefley case), (2 ) legal malpractice (Scharafinski case), (3) legal malpractice ( case abandonment), (4) unjust enr ichment (case abandonment), (5) breach of fiduciary duty, (6) unjus t enrichment (joint legal se rvices), (7) breach of contract (illegal eviction), (8) abuse of process (illegal eviction), (9 ) unjust enrichment (security deposit), (10) conversion (office property) , and (11) unjust enrichment ( office property). Respondent did not file its ame nded petition, but rather filed a motion for extension, as well as its Motion to Enforce Se ttlement and For Sanctions. Re spondent’s motion for extension requested the trial court extend the deadline for filing its am ended petition until after the motion to enforce settlement was hear d. The request stated in part: The parties agreed to an ex tended deadline of 7.17.2017 to file amended petitions that had been previous ly ordered as settlement had be en reached. However, on July 17, 2017 counsel for D efendant abruptly claime d no settlement and offered only a dismissal without prejudice of all claims.4 Respondent’s Motion to Enforce Se ttlement and For Sanctions cla imed the parties previously agreed to settle all pending claims and counterclaim s by mutual release of all parties for all pending claims. The mo tion further requested attorney’ s fees be awarded to Respondent for the time spent on enf orcing the settlement. Respondent filed a notice of hear ing stating the motion to enf orce settlement would be called for hearing on Au gust 8, 2017. On July 26, 2017, Respon dent filed an amended notice of hearing stating the moti on would be heard on August 16, 2017. On August 16, 2017, the trial court entered an order stating, “ By consent, the parties pass h earing on plaintiff’s motion to compel/enforce settlement f rom today to 8-25-2017 @ 10:30 AM.” On August 24, 2017, Respondent filed a memorandum regarding th e hearing scheduled for the following day, which sta ted, “Plaintiff hereby passes i ts hearing on Plaintiff’s Motion to Enforce Settlement set for 8.25.2017 at 10:30 am.” On August 29, 2017, Appellant filed a motion for default judgm ent against Respondent. Appellant’s motion stated while it had agreed to stay the filin g deadline for Respondent for any responsive pleadings to the counterclaims until hearing on the motion to enforce settlement, it agreed to do so with the expecta tion that the motion would be h eard in a timely fashion as agreed to by the parties. Appellant’s motion went on to state Respond ent unilaterally cancelled the August 25, 2017 hearing, which had not b een rescheduled, and fu rther that Respond ent’s counsel had not responded to a request t o reset the pending motion. Respondent filed a motion to strike Appellant’s default judgme nt motion and for sanctions. Along with its moti on, Respondent filed an amended notice of hearing that set the motions to enforce settlement, s trike the default motion, and f or issuance of sanctions for hearing on September 12, 2017.5 On September 12, 2017, the court en tered an order that denied A ppellant’s motion for default judgment and reset t he hearing on Respondent’s motion t o enforce settlement to September 27, 2017. Motion to Enforce Settlement On September 27, 2017, the heari ng on Respondent’s Motion to En force Settlement and For Sanctions began with the following discussion: The Court: [I]n a previous disc ussion here, we decided that t he case will be presented as follows. I think the parties are in agreement that for the most part, this case is one where the evidence is based upon the exchange of emails. So the emails, I believe, will be submitted and offered as evidence in this case, and then we’ll hear the arguments of the respective parties. Then we’ll set a date for the fi ling of findings of fact, conclusion s of law and proposed order. So with that, I believe we are ready to proceed. So, M r. Pedroli. 1 Pedroli: Your Honor, if you don’t mind, I think it might be a g ood idea to memorialize, also, sort of what happened this morning. We came here intending for this to be an evide ntiary hearing where the lawye rs would all testify as to the emails, the telephone c onversations, and even some in -person discussions with regard to the se ttlement agreement. That’s wh at we thought we were doing. At the last minute, Mr. Newton 2 cited Ethical Rule 4.37 – or 4-37, saying that he feels as if he can’t , without an opinion, testify in th is case and act as counsel. Is that correct? Newton: That is correct, Your H onor. I believe that the Ethica l Rule 4-3.7 prohibits me in this proceeding from both being lead advo cate for Mr. Metzger and his companies as w ell as a key witne ss to the facts that are intended to be put on. The Court: Thank you. Pedroli: And although we disagree with that, we have agreed to proceed with the emails and the teleph one conversation as our primary evidence in the motion to enforce settlement. So at this point do you w ant to just -- Newton: Your Honor, for purposes of making the record complete on this point, I would note that plaintiff has been offered by defense counsel the opportunity, subject to the Court’s discretio n, to reschedule this matter if they

1 Mark Pedroli, co-counsel for Respondent. 2 Talmage Newton, co-counsel for Appellant.6 felt the need to do so, and have declined that opportunity and elected to proceed on the documentary record. The Court: Okay. Well, that be ing the case, bu t I understand – Mr. Sansone, Mr. Pedroli, correct m e if I’m wrong, but you are proc eeding because this matter has been schedule d any number of times, and I belie ve it’s your position that it’s time to have this matter heard and the Court to make some decisions. Pedroli: We are proceeding becau se my client’s opinion is that these last minute changes and conti nuances are vexatious, and it demo nstrates their inability to settle a case that they have already settled and a greed to before. We want to get it over with. We belie ve this case was settled a l ong time ago, and we believe the documentary evidence should be enough for Your Honor to make that decision that a settlement was agreed to. So that being the case, we are going to admit the emails and the telephone transcript at this time. The hearing proceeded, and both Appellant and Respondent submit ted exhibits into evidence and made legal argumen ts regarding whether a settlemen t was agreed to on June 9, 2017. The evidence admitted at th e hearing consisted of the fo llowing: June 9, 2017 – Voicemail On June 9, 2017, Appellant’s counse l, Newton, called Respondent ’s counsel, Ben Sansone (Sansone), and left a voi cemail. A transcription of th e voicemail was submitted into evidence by Respondent. The voice message stated: Bennett’s [sic] Talmage would you [ give] me a call when you a c hance it’s noon on Friday I think I have a proposal that’s going to g et this thing worked out So we may be able to get th is thing wrapped up give me a ca ll when you can obviously we’ve got a pending dead line so sooner the better. June 9, 2017 – Recorded Telephone Conversation Sansone returned the call to Newton on June 9, 2017, and withou t Newton’s knowledge, recorded the phone conversation. Respondent submitted a transc ript of that phone call into evidence at the hearing, which stated: Reception: Good morning NewtonBarth, this is Claire speaking, how may I assist you?7 Sansone: Hi, Ben Sansone calling for Talmage. Reception: Sure, Ben, give me one moment. Sansone: Thanks. Newton: Talmage. Sansone: Talmage, Ben, what’s going on? Newton: Okay. I think I have kind of gotten everybody to come around on our side. Here’s what I would propose doing. I would say that we continue out whatever deadline for whatever period you are convenient with to give me time to put together a written settlement agreement for your review. It would more or less be this. There would be no money changing hands on either side. It would be more or less a mutual walk-away, but it would have some things in there that I think you would not have a hard time agreeing to from our conversation at – at court last month, some of them just an agr eement that you are not going to provide people Shannon [Metzger]’s home address, a nd then the big one being more or less a, you know , an agreement resolving all of these disputes with the exception saying that if this judgment issue comes up, it’s more of [sic] less cut out of the settlement agreement , that in the event it ever is brought up, you two are going to have to deal with that. That means if you are sued you can bring him in, if he is sued he can bring you it. It’s the one cutout provision here.
Sansone: We will figure that out. But I mean, that’s not a dispute that’s between us, either one of our filings so I don’t know ho w – Newton: That is correct, yeah. Sansone: It wouldn’t be addres sed by just us resolving this an yway, so I don’t know why we have to sp ecifically drop that out, but I will keep an open mind. Newton: You know why. Just because it – Sansone: No, I mean if you are jus t – Actually, I think I know why. You know why because is Shannon is Shannon or is there a reasonfor – Newton: Yeah, that’s more [or] less. I still maintain that th is is in both your best interest which is w hy I am working so hard to ge t this done. But I want to have language in there that yo u are comfortable with, that he is, but I’ve got to craft it. Are you comfort able with that as far as the pending deadline. I will confirm that with you in writing, that I’m drafting a settlement agreement, we will push out this kind of artificial deadline th at we created, whatever period you are comfortable with.8 Sansone: No, that’s fine. I mean, listen, what I don’t want to have happen, and I don’t think it woul d be your fault, but it might be on your client. I do not want – If we are going to get this thing resolved, I jus t want to get it done. I do not want to – Newton: I couldn’t agree mo re. We need to get this done. Sansone: Exactly. I don’t want to be going back and forth for three months. Again, I know Shannon and I don’t want to belabor the point, but he likes to delay, delay, delay everything. I don’t want this to be a three-month process and then nothing happens. Newton: Understood.
Sansone: But, yeah, otherwise, I’d say, yeah, why don’t we file some sort of consent memo with the co urt extending for another, let’s say, 30 days on us filing our ammended [sic] petitions so we have some type of deadline. Newton: That’s fine. I will draft something over to you for y our approval. I will just mark your signature block by consent but I will have you approve it by e-mail. Sansone: That’s fine. Newton: And I will just call you after I sent it. And then I will get cracking on this draft and get it over to you hopefully within the next week. Sansone: Okay. And I will tell you my two cents is that the r elease is, simpler the better in this situation. Newton: I do not disagree. Sansone: Okay. All right. All right, very good, sir. I look forward to

– Newton: Talk to you soon. Sansone: All right. Email Exchange Later that day, Newton sent Sans one an email, and the two excha nged several more emails that afternoon. The email exchange was submitted into e vidence by both Appellant and Respondent at the motion to enfor ce settlement hearing. Newton ’s first email was sent at 12:349 p.m. on June 9, 2017. A document labeled “Motion to Continue” was attached to the email, although the attachment was not submitted into evidence. The e mail stated: Ben, This will confirm our conversation th is afternoon. I would like to extend the deadline for filing amended pleadings an additional 30-days to allow me to circulate a settlement proposal wh ich I hope resolves this litigation. I have attached a draft of that motion [to continue] hereto – ple ase review and approve. As the 05/12 filing was a court order, do you think I need to w alk through a copy of this motion today with t he duty judge, or are you com fortable just filing the motion? Talmage E. Newton IV At 1:35 p.m., Sansone replied to N ewton’s email and stated: Looks fine. Not worried about w alking it thru, that’s up to yo u. Newton sent Sansone an email back at 1:58 p.m. that said: Okay if I add ‘pass for settlement’ language? Maybe ask that it go on a 60-day dismissal docket? That should alleviate the need to walk through. Sansone replied at 2:00 p.m. and stated: No pass for settlement... terms ar e still too vague right now. Newton replied at 2:22 p.m. and stated: Fair enough. I will just add a request that the matter be rese t for status 30+ days out. Fine? At 4:22 p.m., Sansone replied: Yes. That’s fine. Respondent submitted an email into evidence that was sent by S ansone to Newton on July 13, 2017. The email largely d iscussed a particular client and a bankruptcy filing, which is of minimal relevance to whether a settlement agreement was reac hed. The email ended by stating:10 At this time I am not inclined t o agree to additional continuan ces on our current case as I believe it w ill be one issue after another th at your client will want to pile into this release. If we do not have this resolved i n a timely manner I will be fi ling my amended petition which includes adding Shannon personally as we ll as contemporaneously filing a mo tion to enforce settlement based upon our agreement of a mutual dismissal of all claims by all parties, n ot including Shannon personally as he was nota party to the case. I will keep discussions open with you until that time.

-- Ben Sansone Respondent also submitted emails i nto evidence that were sent between Sansone and Newton on July 17, 2017. At 10:42 a.m., Newton sent the follow ing email: Ben, My client has authorized me to offer a mutual dismissal of all claims, without prejudice. Each party to b ear their own costs. Please f ile your dismissal by close of business today. Once the Court has accepted and app roved the dismissal, a dismissal of the counter-claims will be filed. This email may be used in the unlikely event any motion to comp el settlement is required (which I do not anticipate). Talmage E. Newton IV It appears an email may be missing, as the next email submitted by Respondent at the motion hearing was another email from N ewton to Sansone, sent at 11:10 a.m. that day, stating: You [sic] counter-offer for a di smissal “with prejudice” is rej ected. I have been authorized to hold open my client’s offer of a dismissal w ithout prejudice open [sic] until 5pm today. Talmage E. Newton IV Respondent’s final email in this chain was Sansone’s response, sent to Newton at 11:42 a.m., stating:11 Your emails are incorrect and do not reflect the settlement agr eement we made many weeks ago. My suggesti on to dismiss with prejudice wa s not a counteroffer, but a suggestion in lieu of a release you are app arently having a hard time drafting. Our agreement was a dismissal of all claims by both parties and you were working on a draft release. We ha ve had several phone calls/ema ils over the last few weeks about overall terms n eeded in the release. I have not rejected any of your suggestions and agreed to 2 ext ensions of the current dism issal timeline to allow you time to draft the release. I have never received a dr aft release. You called Friday to discuss JM’ s wish to now tie collateral ma tters into the release, such as a Campbell garnishment matter. It is obvio us that this is the real reason JM is backing out of t he settlement agreement. I will offer a suggestion, I will add the collateral issue of a ll eFiling notices re JM cases received by m e being forwarded to an attorn ey of JM’s choosing. Otherwise Ill proceed as stated last week. JM has had motions to enforce settlement field [sic] against them before, in fact, ev en in front of Judge Jamieson. JM has often backed out of settlements in the past to try to get additional terms not agreed to.
Ben Sansone Lastly, Respondent submitted an email conversation into evidenc e from August 22-23, 2017. At 12:13 p.m. on August 22, 2017, Newton sent an email t o Pedroli, co-counsel for Respondent, that stated: Mark, Please confirm that NO additiona l notices of withdrawal will be filed until we agree on the appropriate language to be used. Once you confirm this I should be able to finish up my draft wi th the client today and send it over for your review. Thanks. Talmage E. Newton IV Pedroli responded on August 23, 20 17, at 10:42 a.m. and stated:12 Talmage, Didn’t hear from you yesterday. T his afternoon is good for me t o work on your draft with Ben. Tomorrow less so. Newton responded later that mo rning at 11:12 a.m. and stated: Mark, I am unable to propose settleme nt terms to you. We will need to proceed with the motion hearing on Friday. Talmage E. Newton IV After the trial court accepted the exhibits into evidence, both Appellant and Respondent argued their respective positions on whether a settlement agree ment had been reached. The trial court took the motion under subm ission following the hearing on September 27, 2017, and ordered both parties to submit proposed findings of fact and co nclusions of law. Initial Ruling of Trial Court On March 12, 2018, the trial court ruled on Respondent’s Motio n to Enforce Settlement and For Sanctions. The court found that although settlement wa s discussed during the June 9, 2017 phone call, The recording of the phone call ma kes it clear that the essenti al terms of a settlement were not settle d upon by the parties, and the phone call was instead part of an [sic] ongoing negotiations. The court denied Respondent’s M otion to Enforce Settlement and For Sanctions, and granted the oral motion for sanctions made by Appellant at the hearing. Motion to Reconsider On May 23, 2018, Respondent filed a motion to reconsider and o pposition to sanctions. On May 30, 2018, the court enter ed an order stating: Plaintiffs motion for reconsider ation of the a) Motion to enfor ce settlement and b) Motion for sanctions is taken under advisement. The Court will re-review the transcript and the record.13 Second Ruling of Trial Court On June 8, 2018, the court entered a n order titled “Order Nunc Pro Tunc Correcting March 12, 2018 Order Pertaing [sic] to the Plaintiff’s Motion t o Enforce Settlement.” The trial court began the order by stating: On March 12, 2018, The Court entere d an Order denying Plaintiff ’s Motion to Enforce Settlement and for Sanctions, however, the 3. 12.2018 order was entered as a clerical error or error arising from oversightand pursuant to Rule 74.06 may be corrected by the Court at any time of its own init iative. The Court intended to sign and enter an Ord er in favor of Plaintiff .... The trial court’s order went on t o find a valid, legally enforc eable settlement agreement between Appellant and Respondent, the oppos ite conclusion that the cour t arrived at in the order of March 12, 2018. 3 The trial court ordered the pa rties “to execute a release rel easing all named parties along with their agents and employees from all claims made in the Parties’ Petitions, answers, and counterclaims.” Lastly, the t rial court ordered Appellant to pay Respondent $6,000 for reasonable and necessary attorney’s fees. Initial Appeal Appellant appealed the trial c ourt’s order. Upon receiving th e notice of appeal, this Court issued an order directing Appe llant to show cause why the appea l should not be dismissed for lack of a final, appealable judgm ent. After receiving Appellan t’s answer, this Court held the trial

3 “The purpose of a nunc pro tunc amendment is to make the recor d conform to what was act ually done where there is a basis in the record for the amendment. The function of su ch an amendment is to correct clerical omissions, mistakes or misprisions to make the record speak the truth by e videncing an act done or a judgment actually rendered at a prior time but not carried into or properly recor ded in the record. They do not lie to correct judicial errors, mistakes or oversights, or to create a new record or to enter a judgment never made or one different from that actually rendered, albeit the judg ment rendered was not the jud gment the judge intended to make.” Around The World Importing, Inc. v. Mercantile Tr. Co., N.A. , 795 S.W.2d 8 5, 88 (Mo. App. E.D. 1990) (internal citations omitted). The order denying Respondent’s M otion to Enforce Settlement andFor Sanctions was an interlocutory order, and prior to final judgment, “a court may open, amend, r everse or vacate an interlocu tory order.” I d. Further, “Missouri does not follow the doctrine that a motion once ruledon cannot be reconsidered .” Id. Therefore, while the trial court erred in labeli ng the order a nunc pro tunc ame ndment, the error was harml ess. The tria l court still had jurisdiction over the case su ch that it was able to reconsi der the motion.14 court’s order granting the moti on to enforce settlement was an interlocutory order, and while the trial court’s decision resolved a ll of the issues in the collat eral equity action, t he trial court had not entered judgment on the underl ying suit. This Court dismis sed the appeal without prejudice. Appellant then filed a request for court order with the trial court, citing to this Court’s order dismissing the appeal for lack of a final judgment. Motion for Entry of Judgment The trial court held a heari ng on Appellant’s motion for entryof judgment and Respondent’s motion for sancti ons. Respondent filed a proposed judgment. Final Ruling of Trial Court On December 10, 2018, the trial cour t entered judgment by signi ng Plaintiffs’ Proposed Judgment, which stated in part: 11. After hearing all the eviden ce and arguments of counsel, Th e Court finds a clear offer to settle wa s made by the Defendant’s couns el on June 9, 2017. The defendant’s counsel verball y described and offered the nece ssary terms for settlement and the Plaintiffs’ counsel accepted. Therefore, th is Court finds there was a valid and enforceable settlement agreement on June 9, 201 7.

... 13. Defendant is liable for sanc tions under Rule 55.03(c) as th e actions above show it maintained a defense for an improper purpose .... The judgment became final on January 10, 2019, and Appellant t imely filed his notice of appeal. Points Relied On In its first point, Appellant a lleges the trial court erred byholding there was a valid and enforceable settlement agreement between the parties and in ent ering judgment in favor of Respondent because there was not sufficient evidence presented from which the trial court could determine that the parties ha d a meeting of the minds or had ot herwise agreed to settle their15 claims, in that the evidence befo re the trial court demonstrate d a continuing settlement negotiation and not the mutuality required to settle the case w ith finality. In its second point, Appellant all eges the trial court erred i n imposing sanctions against Appellant because there was no evidence Appellant defended agai nst the motion to enforce settlement for an improper pur pose as enumerated in Rule 55.03( c), 4 in that Appellant did not believe the parties had reached s ettlement of the matter and wa s justifiably defending that position to the court through proper means. Standard of Review When reviewing a trial court’s j udgment enforcing a settlement, we will affirm unless the judgment is against the weight of the evidence, there is no sub stantial evidence to support it, or the court erroneously applied or declared the law. Ste. Genevi eve Cty. Levee Dist. #2 v. Luhr Bros., Inc., 288 S.W.3d 779, 782 (M o. App. E.D. 2009); Murphy v . Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “In reviewing a particular issue that is cont ested, the nature of the appellate court’s review is directed by whe ther the matter contested is a question of fact or law.” White v. Dir. of Revenue, 321 S.W.3d 298, 308 (Mo. banc 2010). “In reviewing of ques tions of fact, the reviewing court will de fer to the trial court’s assessment of the evidence if any facts relevant to an issue ar e contested.” Pearson v. Koster, 367 S.W.3d 36, 44 (Mo. banc 2012), citing White, 321 S.W.3d at 308. When evidence is uncontested in a court-tried civ il case, the appellate court gi ves no deference to the trial court’s findings. White, 321 S.W.3d at 308. “Evidence is uncontested in a court-tried civil case when the issue before the trial cour t involves only stipulated facts and does not involve resolution by the trial court of contested tes timony; in that circumstance, t he only question before the appellate

4 All rule references are to Mo. R . Civ. P. 2018 unless otherwis e indicated.16 court is whether the trial court drew the proper legal conclusi ons from the facts stipulated. Id., citing Schroeder v. Horack, 592 S.W.2d 742, 744 (Mo. banc 1979)

. “We will affirm the trial court’ s decision regarding the impos ition of sanctions unless the court abused its discretion.” Enos v. Ryder Auto. Operations, 73 S.W.3d 784, 791 (Mo. App. E.D. 2002), citing Brown v. K irkham, 23 S.W.3d 880, 883 (Mo. Ap p. W.D. 2000). “An abuse of discretion occurs when the court’s order is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to sho ck the sense of justice and indicate a lack of careful consideration.” Brown, 23 S .W.3d at 882–83, citing Robin Farms , Inc. v. Beeler, 991 S.W.2d 182, 186 (Mo. App. W.D. 1999). Discussion Point I In its first point on appeal, Appe llant claims the trial court erred in holding there was a valid and enforceable settlement agreement between the parties because there was not sufficient evidence presented from which the trial court could conclude th e parties had a meeting of the minds or had agreed to settle their claims. “Contract law governs the question of whether the parties enter ed into an enforceable settlement agreement.” St. L ouis Union Stn. Holdings v. Discov ery Channel Store, 301 S.W.3d 549, 552 (Mo. App. E.D. 2009), citing Eme rick 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 conside ration.” Id., citing Tinucci v. R.V. Evans Co., 989 S.W.2d 181, 184 (Mo. App. E.D. 1998). “The crea tion of a valid settlement agreement requires a meeting of t he minds and a mutual assent t o the essential terms of the agreement.” Ste. Genevieve Cty. Levee Dist. #2, 288 S.W.3d at 783, citing Emerick, 756 S.W.2d at 518.17 Because Respondent was the part y seeking to enforce the purport ed settlement, it had the burden to prove the existence of a settlement by clear, convinc ing, and satisfactory evidence. J.H. v. Brown, 331 S.W.3d 692, 699 (Mo. App. W.D. 2011). “Evid ence is clear and convincing if it ‘instantly tilts the scale s in the affirmative when weigh ed against the evidence in opposition, such that the fact finder’s m ind is left with an abiding convic tion that the evidence is true.’” Id., quoting In the Interest of T.S., 925 S.W.2d 486, 488 (Mo. App. E.D. 1996). Before we begin our analysis of t he issue, we must determine wh at evidence was before the trial court when it ente red judgment. Respondent’s brief c ites to statements made by Sansone and Pedroli at the evidentiar y hearing as facts. Appellant add ressed this in its reply brief, taking issue with certain statements Respondent presented as proven fa cts and claiming the statements were instead counsel’s argument. At the oral argument before this Court, Respondent claimed there was testimonial evidence presented at the evidentiary hea ring by Sansone and Pedroli. The record refutes this claim. A t the evidentiary hearing, the trial court judge had a conversation with the parties on the record regarding whether t estimony would be presented. Respondent was given the option t o reset the hearing to a later date, if it so wished, to allow for testimonial evidence to be pres ented. Respondent chose not to, but rather stated: We believe this case was settled a long time ago, and we believ e the documentary evidence should be e nough for Your Honor to make th at decision that a settlement was agreed t o. So that being the case, we ar e going to admit the emails and the telephone transcript at this time. Additionally, “[u]nsworn statem ents of trial counsel do not pro ve themselves or constitute evidence.” Ezenwa v. Dir. of Revenue, State of Mo., 791 S.W.2d 854, 859 (Mo. App. W.D. 1990), citing Kettler v. Hampton, 365 S.W.2d 518, 523 (Mo. 1963). As no witnesses were called, and none of the attorneys p resent was sworn, there was no testimonial evidence before the trial court when it rendered judgment. The only evidence befor e the trial court in rendering18 judgment was the documentary evidence admitted by Appellant and Respondent, outlined above in the statement of facts. Because the only evidence before the trial court was the uncont ested documentary evidence, we need not defer to the trial court’s findings as th e question before this Court is whether the trial court drew the proper legal conclusions from the facts stipulated. Therefore, we will affirm the trial court’s decision to grant Respondent’s mo tion to enforce settlement if our review of the documentary eviden ce shows Respondent proved the existence of the settlement agreement by clear and convincing evidence. “The creation of a contract req uires a definite offer and an un equivocal acceptance.” Around The World Importing, Inc., 795 S.W.2d at 9 0, citing Hyken v. Travelers Ins. Co., 678 S.W.2d 454, 458 (Mo. App. E.D. 1984). “Negotiati ons or preliminary steps towards a contract do not constitute a contract.” J.H., 331 S. W.3d at 699, quoting Gateway Exteriors, Inc. v. Suntide Homes, Inc., 882 S.W.2d 275, 279 (Mo . App. E.D. 1994). “To constitute an offer sufficient to result in a contract, the off er must be definite in its terms that the promises and performances required by each party are reasonablycertain.” Tinucci, 989 S.W.2d at 184, citing In re Estate of Munzert, 887 S.W.2d 764, 768 (Mo . App. E.D. 1994). “A contract will be valid and enfor ceable even if some terms ma y be missing or left to be agreed upon as long as the essent ial terms are sufficiently def inite to enable the court to give them exact meaning.” Voyles v. Voyles, 388 S.W.3d 169, 173 (Mo . App. E.D. 2012), citing Vulgamott v. Perry, 154 S. W.3d 382, 390–91 (Mo. App. W.D. 2004) . “What is essential depends on the agreement and its c ontext.” Shellabarger v. She llabarger, 317 S.W.3d 77, 87 (Mo. App. E.D. 2010).19 Respondent offered the followi ng exchange in the June 9, 2017, conversation between Sansone and Newton as proof of offe r and acceptance such that there was a meeting of the minds: Newton: I think I have kind of gotten everybody to come around on our side. Here’s what I woul d propose doing. I would say thatwe continue out whatever deadline for whatever period you are convenient with t o give me time to put together a written settlement agreement for your review. I t would more or less be this. There would be no money changing hands on either side. It would be more or less a mutual walk-aw ay, but it would have some thin gs in there that I think you would not have a hard tim e agreeing to from our conve rsation at – at court last month, some of them just an agreement that you are n ot going to provide people Shannon’s home addr ess, and then the big one bei ng more or less a, you know, an agreement resolving all of these disputes with the exception saying that if this judgment i ssue comes up, it’s more of [sic] less cut out of the settlement agreement, that in the event it ever is brought up, you two are going to have to deal with that. That means if you are sued you can bri ng him in, if he is sued he can bring you it. It’s th e one cutout provision here.
Sansone: “ that’s fine [...] if we are going to get t his thing resolved, I just want to get it done. ”
Newton: “I couldn’t agree more. We need to get this done.” Sansone: Exactly. Newton: “I will get cracking on t his draft to get it over to y ou hopefully within the next week.” Sansone: “I will tell you my tw o cents is that the release is, simpler the better in this situation.” Newton: “I do not disagree.” Viewing the text in f ull, it is clear New ton proposed a continu ance on the deadline to file amended pleadings for additional time to put together a written settlement agreement for review. Newton indicated the agreement wo uld include several provisions , without detailing any of them. Here, neither party disputes ther e were terms left to be agreed upon later. Therefore, to determine whether there was an o ffer, we must first decide what the essential terms are, and determine if the terms were su fficiently definite to enable the court to give them exact meaning.20 Respondent states the essential te rms are 1) a mutual walk-away , no money changing hands; and 2) a cutout provision. Appellant does not dispute t hose being the essential terms, but rather claims the terms were too vague and had not yet been def ined with sufficient clarity or finality. We agree. The essential terms, a mutual walk-away and a cutout provision, are not sufficiently definite to allow a court t o give them exact meaning. Responde nt defined mutual walk-away as a dismissal of all claims w ith prejudice, with no money being e xchanged between the parties. However, it is unclear how Responde nt arrived at that definitio n. Here, the parties disagreed whether a mutual walk-away woul d be a dismissal with prejudice or without prejudice. The parties also disagreed about t he cutout provi sion. Appellant m ade it clear to Respondent during the June 9, 2017, telephone conversat ion that the cutout provis ion was important and a potential deciding factor in whether to set tle the lawsuit. Appellant al so stated there would need to be carefully worded language regard ing the cutout provision, and i t would take time for Newton to craft it. Despite this inform ation being communicated, Respond ent argued the cutout provision regarding future liab ility was not an esse ntial term, but rathe r a collateral issue. We agree with Appellant that the cutout provi sion was an essential term and adetermining factor in whether there would be a settlement agr eement; however, it was not suff iciently defined to enable the trial court to give it exact meaning. Respondent claims Sansone accepted the offer when Sansone state d “ that’s fine [...] if we are going to get this thing resolved, I just want to get it done. ” However, this remark by Sansone was not made in response to New ton’s comment that he believed the parties would be able to come to an agreement and he would draft a proposal. After Newton inquired about continuing the deadline and discuss ed some of the terms he would include in a proposed settlement agreement, Sansone said, “We w ill figure that out,” in reference21 to the exact terms. He further told Newton, “I will keep an op en mind,” when reviewing the proposal. Sansone did not tell Ne wton “that’s fine” regarding the purported offer. Rather, the conversation occurred as follows: Newton: Yeah, that’s more [or] less. I still maintain that th is is in both your best interest which is w hy I am working so hard to ge t this done. But I want to have language in there that yo u are comfortable with, that he is, but I’ve got to craft it. Are you comfort able with that as far as the pending deadline. I will confirm that with you in writing, that I’m drafting a settlement agreement, we will push out this kind of artificial deadline th at we created, whatever period you are comfortable with. Sansone: No, that’s fine. I mean, listen, what I don’t want to have happen, and I don’t think it woul d be your fault, but it might be on your client. I do not want – If we are going to get this thing resolved, I jus t want to get it done. I do not want to – Newton: I couldn’t agree mo re. We need to get this done. Sansone: Exactly. I don’t want to be going back and forth for three months. Again, I know Shannon and I don’t want to belabor the point, but he likes to delay, delay, delay everything. I don’t want this to be a three-month process and then nothing happens. The “acceptance” of Sansone by stating “that’s fine” was not a cceptance of a purported offer. Viewed in the proper cont ext, Sansone’s statement was r esponding to Newton asking Sansone if Sansone would consent to extending the pending deadl ine to allow Newton time to craft language that both Appe llant and Respondent would be comf ortable with. Additionally, in the email Newton sent later that day, Newton asked Sansone if h e should add “pass for settlement” language to the continuance memorandum and Sansone responded, “No pass for settlement... terms are still too vague right now.” The uncontested evidence reveal s Appellant did not make an offe r, but was engaging in negotiations with Respondent. Furth er, the evidence shows Resp ondent never accepted any offer from Appellant. Because the evidence is not clear and convinci ng that a definite offer and unequivocal acceptance were made, the trial court erroneously a pplied the law to the uncontested22 facts. As such, we reverse the decision of the trial court gra nting Respondent’s motion to enforce settlement. Point I is granted. Point II In Point II, Appellant claims th e trial court abused its discr etion in imposing sanctions pursuant to Rule 55.03 because there was no evidence Appellant’ s defense against the motion to enforce settlement was for any i mproper purpose in that Appella nt did not believe the parties had reached settlement. Rule 55.03 allows imposition of sanctions upon lawyers or parti es who have committed or are responsible for presenti ng and maintaining a defense for an improper purpose. Rule 55.03(c)-(d). Here, the trial court found sanctions were justi fied under Rule 55.03 because Appellant’s defense against Res pondent’s motion to enforce sett lement was for an improper purpose. The trial court found A ppellant agreed to settle with Respondent, and then reneged and forced Respondent to prosecute t he motion to enforce settlement

. Having determined in Point I, supra , Appellant and Respondent had not entered into a settlement agreement, it was pr oper for Appellant to maintain i ts position and defend against the motion to enforce settlement. Because Appellant’s defense agai nst the motion to enforce settlement was not maintained f or an improper purpose under Rul e 55.03(c), sanctions were not appropriate and the trial court e rred in imposing them. Point I I is granted. Conclusion The judgment of the trial court enforcing the settlement agree ment, dismissing all claims of the parties with prejudice, a nd imposing sanctions against A ppellant is reversed and the cause remanded for the trial court to reinstate Respondent’s petitionand Appellant’s counterclaims to allow the parties to continue with discovery and proceed to tri al.23 SHERRI B. SULLIVAN, J. Mary K. Hoff, P.J., and Angela T. Quigless, J., concur.