              IN THE MISSOURI COURT OF APPEALS
                      WESTERN DISTRICT

PAUL D. MATTHES,                                      )
                                                      )
                        Appellant-Respondent,         )
                                                      )
v.                                                    )     WD76668
                                                      )
                                                      )     OPINION FILED:
DAVID D. WYNKOOP and WALKER-                          )     June 30, 2014
WALKER FAMILY LIMITED                                 )
PARTNERSHIP,                                          )
                                                      )
                      Respondents-Appellants.         )


                   Appeal from the Circuit Court of Henry County, Missouri
                           The Honorable Robert M. Liston, Judge

                    Before Division One: Joseph M. Ellis, Presiding Judge, and
                      Karen King Mitchell and Anthony Rex Gabbert, Judges

        Paul D. Matthes appeals the trial court‟s judgment granting David D. Wynkoop and

Walker-Walker Family Limited Partnership‟s1 motion to dismiss Matthes‟s personal injury suit

and motion to enforce settlement. Matthes raises two points on appeal.2 Matthes claims the trial

court erred in granting both the motion to dismiss and the motion to enforce settlement because

Defendants failed to show by clear and convincing evidence that a settlement agreement was


        1
         For ease of reference, we refer to David D. Wynkoop and Walker-Walker Family Limited Partnership as
“Defendants.”
       2
         To avoid confusion, we address Matthes‟s points in reverse order.
reached during oral negotiations between Matthes and Defendants in that testimony from

Matthes‟s former counsel indicating that Defendants‟ insurer offered to settle Matthes‟s claims

for $17,000 was 1) confidential information admitted in violation of section 491.060;3 and 2)

erroneously admitted hearsay evidence. Matthes contends that, without this testimony, there was

insufficient evidence that Defendants offered to settle Matthes‟s claims for $17,000. Next

Matthes contends that the trial court erred in granting both the motion to dismiss and the motion

to enforce settlement because if Defendants did not offer to settle Matthes‟s claims for $17,000,

then his communication of willingness to settle for $17,000 constituted an offer (rather than

acceptance of a previous offer), and no settlement agreement was reached in that Defendants‟

response contained new terms, and therefore was not an acceptance, but a counteroffer.

        Defendants cross-appeal, contending that the trial court erred in assessing costs against

them because Matthes was not the “prevailing party” in the litigation.

        We affirm in part, reverse in part, and remand.

                                  Factual and Procedural Background4

        On January 4, 2010, Paul D. Matthes and David D. Wynkoop were involved in a motor

vehicle accident. Matthes alleges that Wynkoop rear-ended him while Wynkoop was driving a

tractor-trailer operated under the motor carrier authority of Walker-Walker Family Limited

Partnership. On February 14, 2010, Matthes entered into a contract with the law firm Beck and

Beck5 to represent him in his legal claim against Defendants. On November 9, 2010, Michael

Beck sent a demand letter for $50,000 to Defendants‟ insurer.


        3
            All statutory references are to Missouri Revised Statutes (2000), as updated through the 2013 Cumulative
Supplement.
          4
            “All evidence and permissible inferences favorable to the prevailing party are accepted as true; evidence
and inferences to the contrary are disregarded.” B-Mall Co. v. Williamson, 977 S.W.2d 74, 77 (Mo. App. W.D.
1998).
          5
            Michael Beck and his son John Beck are members of the firm. To avoid confusion, Michael Beck is
referred to by his full name, and John Beck is referred to as either John Beck or Beck.


                                                         2
        John Beck engaged in oral settlement negotiations with Defendants‟ insurer on Matthes‟s

behalf. During negotiations, Defendants‟ insurer offered to settle the claim for $17,000.6 Beck

communicated the terms of the offer to Matthes, and Matthes told Beck to accept the settlement

offer. Beck communicated Matthes‟s acceptance of the settlement offer to Defendants‟ insurer.

Beck then communicated to Matthes that the case was settled. On February 9, 2011, Defendants‟

insurer sent Beck a release, along with a letter that stated the release would “finalize our claim.”

Matthes did not sign the release.

        On June 17, 2011, through new counsel, Matthes brought a personal injury action against

David D. Wynkoop and Walker-Walker Family Limited Partnership, based on the January 4,

2010 motor vehicle accident. In Defendants‟ respective answers to Matthes‟s petition, they

raised the affirmative defense that Matthes‟s claims were barred because Matthes had previously

agreed to settle the claims alleged in his petition. On August 16, 2011, Defendants filed their

Motion to Enforce Settlement, contending that the parties had entered into a pre-litigation

settlement agreement that resolved Matthes‟s claims.

        On March 29, 2013, the court held an evidentiary hearing on the motion to enforce the

settlement. Beck, the sole witness at the hearing, testified regarding the settlement agreement

and release. Beck testified that he represented to Defendants‟ insurer that he was Matthes‟s

attorney; Beck negotiated with Defendants‟ insurer; there was an offer made by the insurer, and

the offer was communicated to Matthes; Beck had discussed with Matthes the settlement

amount, and that Plaintiff would net $10,000; Beck and the insurer came to an agreement with

respect to a settlement, and the settlement amount was $17,000; Beck told Matthes the terms of

        6
          We note that the Defendants‟ offer to settle for $17,000 could be considered a counteroffer in response to
Beck‟s November 9, 2010 demand letter. Whether Defendants‟ $17,000 offer is considered an offer or a
counteroffer is irrelevant to our analysis, as the issue is whether there was sufficient evidence of the
offer/counteroffer. Because the trial court characterized this as Defendants‟ offer to settle for $17,000, to avoid
confusion, we refer to it as an “offer.”


                                                         3
the settlement before he agreed to accept it from the insurer; Matthes advised Beck that he

wanted to accept a $17,000 settlement; Matthes agreed to accept the $10,000 net amount out of

the $17,000 offer; Beck settled the case on behalf of Matthes; Beck communicated to Matthes

that the case was settled; when Beck represented to the insurer “the amount of the demand and

that offer was made,” Beck assumed the case was settled; and Beck‟s impression was that the

case was settled prior to him receiving the release.

       In regard to the release, Beck testified as follows: he told Matthes that Matthes would

“receive X dollars in your pocket, and essentially the terms of this release are they‟ll pay you X

dollars in exchange for you agreeing to never sue anyone regarding this auto accident again,” and

Beck told Matthes to read the release and call Beck if he had any questions about it; the written

release sent by the insurer contained the essential terms of the settlement; the written release

fairly and accurately set out the negotiation Beck had with the representative of the insurer; there

was “an agreed-upon settlement,” and Beck did not consider the insurer‟s letter and release a

counteroffer, but rather “just a memorialization of a prior agreement”; Beck did not consider the

release terms addressing indemnity and confidentiality to be material terms of the settlement;

Beck‟s mental impression was that the February 9, 2011 letter from Defendants‟ insurer

confirmed the settlement he made with the insurer‟s representative on behalf of Matthes; Beck

did not remember Matthes ever objecting to any portion of the release; Beck never received a

signed copy of the release from Matthes; and Beck learned through third parties that the

settlement he had made was being rejected by Matthes. In addition, the February 9, 2011 letter

and release sent to Beck from Defendants‟ insurer was admitted at trial. The letter refers to the

“final release that will finalize our claim.” Matthes offered no evidence to contradict Beck‟s

testimony.




                                                 4
        On April 15, 2013, the trial court entered its Findings of Fact, Conclusions of Law and

Judgment on Defendants‟ Affirmative Defense,7 sustaining Defendants‟ Motion to Enforce the

Settlement. The court determined that Defendants made a settlement offer of $17,000, and

Matthes accepted the offer. However, the court rejected the release provided by Defendants‟

insurer, finding that it did not conform to the parties‟ agreement. Specifically, the court found

that provisions of the release pertaining to indemnification, release of physicians and the

Highway Department, a confidentiality agreement, and payment of liens to medical providers

were not part of the original settlement agreement, and that the release “overreached in terms of

what had been negotiated.” The court also determined that there was insufficient evidence to

establish that Matthes agreed to provide the Medicare Mandatory Insurer Reporting Law

Confirmation Form to the insurer. The court stated that upon presentation of a release in

conformity with the settlement agreement, it would dismiss the cause as barred by the settlement

reached.

        On May 28, 2013, Defendants filed an amended motion to dismiss and enforce judgment,

attaching a release purporting to conform to the terms of the settlement as found by the trial court

in its previous order, and requesting that the court order Matthes to sign the release and that the

court dismiss the case with prejudice.

        On June 14, 2013, the trial court entered its judgment. The judgment adopted the

findings of fact and conclusions of law set forth in the April 15, 2013 order. The court found

that Defendants filed a release that conformed to the terms of the settlement pursuant to the

court‟s April 15, 2013 order and that Matthes refused to sign the release. The court dismissed

Matthes‟s claims with prejudice and assessed costs against Defendants.


        7
          On May 15, 2013, on inquiry from the parties, the trial court clarified that this ruling was not a final
judgment and amended the ruling to denominate it as an “Order.”


                                                        5
        Matthes appeals, and Defendants cross-appeal.

                                                   Analysis

    I. Matthes’s Appeal

        Matthes raises two points on appeal. In order to succeed on his first point on appeal,

Matthes must succeed on his second point on appeal. Therefore, we address his points in reverse

order. Matthes contends that the trial court erred in granting both the motion to dismiss and the

motion to enforce settlement because Defendants failed to show by clear and convincing

evidence that the parties reached a settlement agreement during their oral negotiations in that

Defendants failed to prove that they made a $17,000 settlement offer. Specifically, Matthes

argues that the only evidence of a settlement offer by Defendants came from the testimony of

Matthes‟s previous counsel, Beck, and that his testimony was erroneously admitted in that 1) he

was allowed to testify about confidential information in violation of section 491.060; and 2) his

testimony was hearsay. (Point II). Based on his contention that there was insufficient evidence

that Defendants offered to settle Matthes‟s claims for $17,000, Matthes recasts his alleged

acceptance of Defendants‟ offer as an offer to settle for $17,0008 and recasts Defendants‟

insurer‟s letter of February 9, 2011 (including the proposed release) as a counteroffer. Based on

this characterization of the evidence, Matthes contends that the trial court erred in granting

Defendants‟ motions to dismiss and to enforce settlement because no settlement agreement was

reached in that Defendants‟ purported acceptance (the February 9, 2011 letter and release) of his

offer to settle for $17,000 contained new terms and therefore was not an acceptance, but a

counteroffer. (Point I). Because we find that there was sufficient evidence of an offer by




        8
            Apparently, Matthes concedes that there was evidence that he communicated a willingness to settle his
claims arising out of the January 4, 2010 accident for $17,000.


                                                       6
Defendants to settle for $17,000, we reject Matthes‟s Point II, and because his success on

Point II is a predicate to his claim in Point I, we reject Matthes‟s Point I as well.

       “„When reviewing a trial court‟s judgment enforcing a settlement, we will affirm unless

the judgment is against the weight of the evidence, there is no substantial evidence to support it,

or the court erroneously applied or declared the law.‟” Williams v. Kansas City Title Loan Co.,

Inc., 314 S.W.3d 868, 869 (Mo. App. W.D. 2010) (quoting Ste. Genevieve Cnty. Levee Dist. # 2

v. Luhr Bros., 288 S.W.3d 779, 782 (Mo. App. E.D. 2009)). “We view the evidence in the light

most favorable to the trial court‟s judgment, disregarding all contrary inferences and evidence.”

Ste. Genevieve Cnty. Levee Dist. # 2, 288 S.W.3d at 782. “We „defer[ ] to the trial court‟s

findings of fact, recognizing the superior ability of the trial court to judge the credibility of the

witnesses.‟” Id. at 782-83 (quoting Woods ex rel. Woods v. Cory, 192 S.W.3d 450, 458 (Mo.

App. S.D. 2006)). “Thus, we will set aside a judgment as against the weight of the evidence only

upon a firm belief that the trial court was wrong.” Id. at 783.

        “„A motion to enforce a settlement adds to the underlying case a collateral action seeking

specific performance of the agreement.‟” Paragon Lawns, Inc. v. Barefoot, Inc., 304 S.W.3d

298, 300 (Mo. App. W.D. 2010) (quoting Eaton v. Mallinckrodt, Inc., 224 S.W.3d 596, 599 (Mo.

banc 2007)). “The party moving for enforcement must prove the existence of the settlement

agreement „by clear, convincing and satisfactory evidence.‟” Id. (quoting Eaton, 224 S.W.3d at

599). “„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.‟” Grant v. Sears, 379 S.W.3d 905, 915 (Mo. App.

W.D. 2012) (quoting Reppy v. Winters, 351 S.W.3d 717, 721 (Mo. App. W.D. 2011)).




                                                   7
       “Settlement agreements are contracts and subject to contract law.”          Women’s Care

Specialists, LLC v. Troupin, 408 S.W.3d 310, 315 (Mo. App. E.D. 2013). “To show a legal,

valid settlement agreement, one must prove the essential elements of a contract:             offer,

acceptance and consideration.” Voyles v. Voyles, 388 S.W.3d 169, 172 (Mo. App. E.D. 2012).

“Because a settlement agreement is a species of contract and, therefore, subject to contract law, a

meeting of the minds is required.” B-Mall Co. v. Williamson, 977 S.W.2d 74, 77 (Mo. App.

W.D. 1998). This court looks at the objective manifestations of the parties in order to determine

whether a meeting of the minds has occurred. Id. at 78. “It is the actions, and not the intentions

or suppositions of the parties, that determine whether or not there is a contract and the terms of

the contract.” Id.

       A settlement agreement does not have to be in writing unless the subject matter is within

the statute of frauds. Id. at 77. “„A contract is the agreement . . . parties [make] and not the

writing which evidences the agreement.‟” Vulgamott v. Perry, 154 S.W.3d 382, 392 (Mo. App.

W.D. 2004) (quoting Bailey v. Jamestown Sch. Dist. No. 11, 77 S.W.2d 1017, 1020 (Mo. App.

1934)). Furthermore, a settlement agreement “may be considered valid and enforceable even if it

contemplates that a release will be signed at a later time.” B-Mall Co., 977 S.W.2d at 77; see

also Owen v. Hankins, 289 S.W.3d 299, 304 (Mo. App. S.D. 2009); Byrd v. Liesman, 825

S.W.2d 38, 39 (Mo. App. S.D. 1992). A settlement agreement “will be valid and enforceable

even if some terms may be missing or left to be agreed upon as long as the essential terms are

sufficiently definite to enable the court to give them exact meaning.” Vulgamott, 154 S.W.3d at

390; see also Olson v. Curators of Univ. of Mo., 381 S.W.3d 406, 411-12 (Mo. App. W.D. 2012)

(“A contract can be created even if all issues have not been resolved as long as the terms of the

agreement are present and reasonably certain.”). Which contractual terms are “essential depends




                                                8
on the agreement and its context and also on the subsequent conduct of the parties, including the

dispute which arises and the remedy sought.” Shellabarger v. Shellabarger, 317 S.W.3d 77, 82

(Mo. App. E.D. 2010); see also Bryant v. Bryan Cave, LLP, 400 S.W.3d 325, 342 (Mo. App.

E.D. 2013); Olson, 381 S.W.3d at 412. “In determining whether the terms of an agreement are

too uncertain to create an enforceable contract, „a court is guided by [general] principles of law

applied with common sense and in the light of experience.‟” Bldg. Erection Servs. Co. v. Plastic

Sales & Mfg. Co., 163 S.W.3d 472, 477 (Mo. App. W.D. 2005) (quoting Ketcherside v. McLane,

118 S.W.3d 631, 636 (Mo. App. S.D. 2003)) (internal quotation marks omitted). “A contract

should not be held void for uncertainty unless there is no possibility of giving meaning to the

agreement.” Id.

       Matthes argues that the Defendants failed to prove that the oral negotiations between

Beck and Defendants‟ insurer resulted in a valid settlement agreement because the trial court

erroneously admitted Beck‟s testimony that Defendants‟ insurer offered to settle Matthes‟s

claims for $17,000. In determining whether there was sufficient evidence for the trial court to

find that the parties had entered into a settlement agreement, we find it necessary to consider

what evidence the trial court could have properly relied upon in making its determination that

Defendants‟ insurer offered to settle Matthes‟s claims for $17,000. This requires us to address

Matthes‟s argument that Beck‟s testimony regarding Defendants‟ offer was inadmissible hearsay

and violated section 491.060(3).

       A.     The trial court did not improperly rely on hearsay evidence in making its
       determination that Defendants’ insurer offered to settle Matthes’s claims for
       $17,000.

       Matthes points to four specific responses in Beck‟s testimony that he contends constitute

inadmissible hearsay: 1) testimony that Beck participated in negotiations with Defendants‟




                                                9
insurer; 2) testimony that he and the insurance adjuster came to a resolution of the case; 3)

testimony that the settlement was $17,000, including $10,000 in-pocket recovery to Matthes; and

4) testimony that it was his impression that the insurance company had offered $17,000 to settle

this case. Matthes contends that Beck‟s testimony as to what the insurance adjuster said or did

contained an out-of-court statement offered to prove that there was an offer and acceptance in

this case. He claims that without the admission of such testimony, there was no substantial

evidence of a settlement “other than the testimony of John Beck who had a motive for the case to

be settled since he withdrew and did not file suit on behalf of Plaintiff.” Defendants counter that

the disputed testimony does not relate an out-of-court statement, and that even if it did, the

statements were offered, not for the truth of the matter asserted, but rather to establish that

Defendants‟ representative extended an offer to settle the case for $17,000. In other words, the

statements were offered to counter Matthes‟s contention that no such offer was ever made by

Defendants.

       “A hearsay statement is an out-of-court statement offered for the truth of the matter

asserted therein and „depends on the veracity of the statement for its value.‟” Saint Louis Univ.

v. Geary, 321 S.W.3d 282, 291 (Mo. banc 2009) (quoting State v. Johnson, 284 S.W.3d 561, 584

(Mo. banc 2009)). “Hearsay is inadmissible unless it fits into a recognized exception or it is used

for a nonhearsay purpose. A nonhearsay purpose includes offering the statement not for the truth

of the matter asserted, but for some other purpose.” Id. (Citations omitted.) For example,

“when . . . the testimony is offered only to show the statement was made without regard to the

truth or falsity of the statement itself, the testimony is not hearsay.” Henges Assocs., Inc. v.

Indus. Foam Prods., Inc., 787 S.W.2d 898, 900 (Mo. App. E.D. 1990); see also Coon v. Am.

Compressed Steel, Inc., 207 S.W.3d 629, 635 (Mo. App. W.D. 2006). “Evidence admitted for a




                                                10
limited purpose may . . . be considered for that purpose alone. However, judges are presumed

not to consider evidence for an improper purpose.” Teasdale & Assocs. v. Richmond Heights

Church of God in Christ, 373 S.W.3d 17, 25 (Mo. App. E.D. 2012) (citations omitted).

        Matthes alleges that the testimony at issue references statements made by Defendants‟

insurer in the course of negotiations and constitutes hearsay. However, we find that these

statements were admissible for the nonhearsay purpose of showing that the statements were

made, countering Matthes‟s contention that no such statements were made. This purpose does

not contemplate the truth or falsity of the statements themselves. Therefore, Beck‟s testimony

was not inadmissible hearsay, but rather evidence upon which the trial court could rely in

determining whether the parties reached a valid settlement agreement.

        B. The trial court did not err in admitting evidence allegedly protected by the
        attorney-client privilege.

        Matthes contends that the trial court, in violation of section 491.060(3), erroneously

allowed Beck to respond to the following questions: 1) “Is there a controversy with respect to

the actions you took on behalf of Mr. Matthes with respect to a potential defendant?”; 2) “And

what is that controversy?”; and 3) “Did you settle a case for Mr. Matthes?” Matthes does not set

forth Beck‟s responses to these questions or explain why such responses are subject to attorney-

client privilege.

        In regard to the first question, we note that Matthes‟s counsel objected to the question,

the objection was overruled, and counsel restated the question as follows: “To your knowledge,

has a controversy arisen with respect to your representation of Mr. Matthes with respect to

defendants or potential defendants?” Beck responded, “There has.” Concerning the second

question, Matthes‟s counsel objected, the objection was overruled, and Beck asked that the

question be restated. Instead, Defendants‟ counsel then asked the third question: “Did you settle



                                               11
a case for Mr. Matthes?” Matthes‟s counsel again objected and the objection was overruled.

Beck responded, “Yes.” As there was no response to the second question, we address only

whether the responses to the first and third questions are subject to the protection of the attorney-

client privilege.

        Section 491.060(3) provides that an attorney shall be incompetent to testify “concerning

any communication made to the attorney by such attorney‟s client in that relation, or such

attorney‟s advice thereon, without the consent of such client.” We find this court‟s opinion in

Sappington v. Miller, 821 S.W.2d 901 (Mo. App. W.D. 1992), dispositive of Matthes‟s claim

that the testimony at issue violated attorney-client privilege. In Sappington, two parties who had

filed claims against each other regarding a property dispute, Sappington and Miller, reached an

oral settlement. 821 S.W.2d at 903. Sappington‟s counsel prepared a document formalizing the

oral settlement agreement. Id. However, Miller never signed the document, and the actions

contemplated in the agreement never took place. Id. Sappington filed a petition for specific

performance of the oral settlement agreement. Id. Miller‟s former attorney was called as a

witness. Id. He testified that he had conducted settlement negotiations with Sappington‟s

attorney, that the two attorneys had reached an oral agreement settling the parties‟ claims, that

Miller had expressly given him the authority to enter into the settlement negotiations, that Miller

expressly agreed to the settlement reached by the attorneys, and that Miller later changed her

mind and refused to sign the document. Id. The trial court ordered both parties to carry out the

terms of the settlement agreement. Id.

        On appeal, Miller claimed the trial court erred in allowing her former attorney to testify

concerning his representation of her in the underlying action, claiming that such testimony was a

violation of attorney-client privilege. Id. at 904. This court held that Miller‟s attorney “could




                                                 12
testify about the nature and extent of his authority to enter into the settlement agreement . . .

without implicating the doctrine of attorney-client privilege.” Id. The court explained:

       [U]nder Missouri law, the attorney-client relationship is an agency relationship
       governed by the same rules which apply to other agencies. Generally, the fact or
       scope of agency cannot be established by extra judicial admissions, but, that rule
       does not extend to the sworn testimony of the alleged agent. An agent may testify
       both as to the fact and to the nature and extent of his authority, where it rests in
       parol.

       ...

       An attorney can testify as to his authority to settle, since such communication is
       not within the pale of protection of the privilege. The authority of the attorney,
       like that of any agent, may be established by the attorney and his testimony in that
       regard is admissible to prove the agency and the nature and scope of his authority
       to sign the agreement in question.

Id. (Citations omitted.) The court then determined that even if Miller‟s attorney‟s testimony

concerning the settlement agreement was covered by the attorney-client privilege, Miller placed

the subject matter of the privileged communication in issue by claiming that the two attorneys

“concocted” the settlement agreement without her consent or authorization; consequently, she

waived any attorney-client privilege, and the trial court did not err in allowing Miller‟s attorney

to testify concerning his representation. Id. at 904-05. The court stated that “„[n]o court should

countenance an announced settlement between counsel followed by escape therefrom, if one side

arbitrarily reneges and then seals his counsel‟s lips by invoking the attorney-client privilege.‟”

Id. at 905 (quoting Hamilton v. Hamilton Steel Corp., 409 So.2d 1111, 1114 (Fla. App. 1982)).

       We find Beck‟s testimony that, to his knowledge, a controversy had arisen regarding

Beck‟s representation of Matthes to fall within the scope of testimony regarding his

representation of Matthes during settlement negotiations, and under Sappington, such testimony

does not implicate the doctrine of attorney-client privilege. See Sappington, 821 S.W.2d at 904.

In addition, as Matthes‟s new counsel denied the existence of a settlement in his opening



                                                13
statement (and, in fact, by the very filing of Matthes‟s petition in this case), Matthes placed the

subject matter of the allegedly privileged communication in issue; consequently, he waived any

attorney-client privilege, and the trial court did not err in allowing Beck to testify concerning his

representation. See id. at 904-05.

         We also find Beck‟s testimony that he settled a case for Matthes to clearly fall within the

scope of testimony regarding an attorney‟s authority to negotiate a settlement, which we found in

Sappington does not violate attorney-client privilege. Also, as discussed, supra, Matthes‟s denial

of the existence of a settlement placed the subject matter of the cited communication at issue,

and therefore, Matthes waived any claim of attorney-client privilege as to the communication.9

         Point II is denied. Because Matthes‟s Point I is predicated on the assumption that the

trial court erred in finding that Defendants‟ insurer offered to settle Matthes‟s claims for

$17,000, and thus Matthes‟s expression of his willingness to settle for $17,000 was itself an

offer, rather than the acceptance of an offer, our denial of Point II also disposes of Point I.

    II. Defendants’ Cross-Appeal

         In their sole point on cross-appeal, Defendants contend that the trial court erred in

assessing costs against them because Matthes was not the “prevailing party” in the litigation. We

agree.

         “The award of costs is a matter within the trial court‟s sound discretion, and we will not

disturb the award absent a showing of an abuse of discretion.” Sasnett v. Jons, 400 S.W.3d 429,

441 (Mo. App. W.D. 2013). “To demonstrate an abuse of discretion, the appellant must show


         9
            Although the scope and details of the negotiations that took place between Beck and Defendants‟ insurer
are not clear from Beck‟s testimony or any other evidence admitted by the trial court, Matthes does not allege that
the evidence was insufficient to prove any essential element of the settlement agreement other than that an offer was
made by Defendants‟ insurer. And as to the essential element of offer, Matthes alleges only that the evidence was
insufficient in that Beck‟s testimony that such an offer occurred was inadmissible for the reasons discussed above.
Matthes does not allege that, even if Beck‟s testimony was properly admitted, there was insufficient evidence of a
valid settlement agreement.


                                                         14
that the circuit court‟s decision „was against the logic of the circumstances and so arbitrary and

unreasonable as to shock one‟s sense of justice.‟” Id. (quoting Russell v. Russell, 210 S.W.3d

191, 199 (Mo. banc 2007)).

       Section 514.060 provides that “[i]n all civil actions, or proceedings of any kind, the party

prevailing shall recover his costs against the other party, except in those cases in which a

different provision is made by law.” See also Rule 77.01.10 “Statutes allowing the taxation of

costs are strictly construed.” Gene Kauffman Scholarship Found., Inc. v. Payne, 183 S.W.3d

620, 627 (Mo. App. W.D. 2006). “Prevailing party” is not defined in the statute. “When a

statute fails to define a word, a dictionary may be consulted to verify the word‟s plain and

ordinary meaning.” Corley v. Corley, 128 S.W.3d 521, 526 (Mo. App. W.D. 2003). Black‟s

Law Dictionary, page 1232 (9th ed. 2009) defines “prevailing party” as “[a] party in whose favor

a judgment is rendered, regardless of the amount of damages awarded.”

       “Prevailing party” has been defined in various ways by Missouri courts. Consistent with

the Black‟s Law Dictionary definition, some courts have defined a “prevailing party” as “one

who obtains a judgment from the court, regardless of the amount of damages.” Brooke Drywall

of Columbia, Inc. v. Bldg. Constr. Enters., Inc., 361 S.W.3d 22, 27 (Mo. App. W.D. 2011); see

also Rental Co., LLC v. Carter Group, Inc., 399 S.W.3d 63, 67 (Mo. App. W.D. 2013) (both

opinions also noting that “[a] party need only obtain „some relief‟ from the court in order to be

deemed the „prevailing party‟”). In other instances, courts have found that “[a] prevailing party

is the party prevailing on the main issue in dispute, even though not necessarily to the extent of

its original contention.” Ken Cucchi Constr., Inc. v. O’Keefe, 973 S.W.2d 520, 528 (Mo. App.

E.D. 1998); see also State ex rel. Nixon v. Patriot Tobacco Co., 220 S.W.3d 889, 892 (Mo. App.

E.D. 2007); Corley, 128 S.W.3d at 526; Miller v. Gammon & Sons, Inc., 67 S.W.3d 613, 625
       10
            All rule references are to the Missouri Court Rules 2013, unless otherwise noted.


                                                         15
(Mo. App. W.D. 2001); Birdsong v. Bydalek, 953 S.W.2d 103, 124 (Mo. App. S.D. 1997) (citing

both the “main issue” definition and the “side with the most points at the end of the contest”

definition, discussed infra). “Prevailing party” has also been defined as “one who obtains

success on any significant issue in the litigation, achieving some of the benefit the party sought

in bringing suit.” Alhalabi v. Mo. Dep’t of Natural Res., 300 S.W.3d 518, 530 (Mo. App. E.D.

2009); see also DeWalt v. Davidson Service/Air, Inc., 398 S.W.3d 491, 506 (Mo. App. E.D.

2013); Holmes v. Kansas City Mo. Bd. of Police Comm’rs ex rel. Its Members, 364 S.W.3d 615,

631 (Mo. App. W.D. 2012). In other opinions, courts have found that

       [t]here can be but one prevailing party in an action at law for the recovery of a
       money judgment. It transpires frequently that in the verdict each party wins on
       some of the issues and as to such issues he prevails, but the party in whose favor
       the verdict compels a judgment is the prevailing party. Each side may score, but
       the one with the most points at the end of the contest is the winner[.]

Ozias v. Haley, 125 S.W. 556, 557 (Mo. App. 1910); see also Birdsong, 953 S.W.2d at 124

(citing both the “main issue” definition and the “side with the most points at the end of the

contest” definition). In addition, courts have found that “[t]he term „prevailing party‟ applies not

only to parties who obtain a favorable judgment on the merits, but also to those „. . . obtaining a

favorable decision on a single issue if the issue is one of significance to the underlying case.‟” In

re C.M.C., 173 S.W.3d 695, 700 (Mo. App. W.D. 2005) (quoting Greenbriar Hills Country Club

v. Dir. of Revenue, 47 S.W.3d 346, 353 (Mo. banc 2001)). We need not determine which

definition to employ in the present case, as we find that Matthes is not a “prevailing party” as

contemplated by any of the above-referenced definitions.

       The trial court gave two reasons for assessing costs against Defendants. First, it did so on

the basis that the release Defendants sought to enforce “was not in accordance with the

agreement, and the Court has had to modify that pursuant to the case law.” Second, the court




                                                 16
stated that “the statutes require [that costs] be taxed to the losing party,” and that the “losing

party” was Defendants, as they are “paying more money than [they] wanted to pay.”

       Defendants contend that Matthes does not qualify as a “prevailing party” because

Defendants prevailed on the sole issue they raised in the case, namely, enforcement of the

settlement agreement barring Matthes‟s claim and the resulting dismissal of Matthes‟s lawsuit

with prejudice. Defendants argue that the trial court‟s order to modify the release does not

transform Matthes into the prevailing party.11 To the contrary, Defendants contend, Matthes

never sought modification of the release; rather, Matthes‟s contention was that no settlement

agreement had been reached. Defendants also note that Matthes refused to execute the modified

release even after the trial court was satisfied that the release comported with the terms of the

settlement agreement. Because there is no issue in the trial court for which Matthes received the

benefit he had sought, Defendants contend, the trial court abused its discretion in assessing costs

against them. We agree.

       In Defendants‟ Motion to Enforce Settlement, the Defendants requested that the trial

court “order plaintiff to sign the release of all claims and dismiss this matter with prejudice.”

The release referred to in Defendants‟ motion was the release provided to Beck on February 9,

2011 (original release). In its April 15, 2013 Order, the court sustained Defendants‟ motion to

enforce settlement, finding that a settlement agreement was reached, but rejected the original

release, finding that it was “not in conformity to the agreement reached.” The court stated that

upon presentation of a release in conformity with the parties‟ agreement, the court would dismiss

Matthes‟s cause as barred by the settlement reached. While the Order states that it sustains

Defendants‟ motion to enforce settlement, it did not give Defendants the exact relief they

requested in that motion, i.e., ordering Matthes to sign the original release and dismissing with
       11
            Defendants also point out that they did not oppose the trial court‟s order to modify the release.


                                                           17
prejudice. Rather, the court ordered Defendants to draft and present a new release in conformity

with the Order. However, the court‟s order to modify the release did not transform Matthes into

the prevailing party, as he did not seek a modification of the release to conform to the settlement

agreement; rather, he contended that there was no settlement agreement reached.            Indeed,

Matthes refused to sign the new release even when it was modified to conform to the settlement

agreement, and consequently, his petition was dismissed with prejudice. Defendants‟ “loss” on

their request that the court order Matthes to sign the original release did not transform Matthes

into the prevailing party where Matthes received none of the relief he sought, his cause was

dismissed with prejudice, and he did not obtain a favorable decision on a single issue of

significance to the underlying case, i.e., his petition for damages.

       Defendants‟ cross-appeal is granted.

                                            Conclusion

       We affirm the trial court‟s judgment granting Defendants‟ motion to dismiss, reverse the

trial court‟s assessment of costs against Defendants, and remand for further proceedings on the

issue of the assessment of costs.



                                               Karen King Mitchell, Judge

Joseph M. Ellis, Presiding Judge, and
Anthony Rex Gabbert, Judge, concur.




                                                 18
