Introduction
Central States Basement and Foundation Repair, Inc., f/k/a Central States Waterproofing of Missouri, Inc., (“Central States”) appeals the judgment of the Cirсuit Court of St. Louis County granting Phyllis Tirmenstein’s (“Tirmenstein”) Motion to Enforce Settlement. On appeal, Central States argues that the trial court erred when it granted Tirmenstеin’s Motion to Enforce Settlement because: (1) Central States’ attorney did not have actual authority to accept Tirmenstein’s modified release agreement, and (2) Tirmen-stein and Central States never agreed to the language or terms of the release agreement. Because we сonclude that Tir-menstein and Central States did not reach an enforceable agreement, we reverse.
Background Facts
Tirmenstein and Central States agreed to a services contract and guarantee by which Central States would provide waterproofing services in Tirmenstein’s basement for a period of 20 years for $4,660.00. Central States agreed to install a system of pipes to provide waterproofing for Tir-menstein’s basement in a good and workmanlike manner. The guarantee stated that “Contractor agrees to service the seepage of water through the sub-soil masonry wall and floor for the areas specified herein for a period of 20 years from the date of this agreement, without additional charge to Owner for labor, materials аnd pump.” After Central States completed the work, Tirmenstein’s basement flooded twice. Following the second flooding, Central States performed additional work in an attempt to correct any problems.
Tirmenstein filed a Petition in the Circuit Court alleging that Central States’ work was not completed in a good and workmanlike manner, resulting in damage. Thereafter, Tirmenstein and Central States agreed to settle Tirmenstein’s claim for $1,800.00. Central States prepared a release and submitted it to Tirmenstein. This release was silent on the issue of whether Central States was relieved from responsibility set forth in the guarantee. Tirmenstein rejected the release prepared by Central States and submitted a modified release to Central States which specifiсally excluded the guarantee from the scope of the release. Central States rejected the terms of the modified release and rеfused to pay Tirmenstein $1,800.00 or execute the modified release.
Thereafter, Tirmenstein filed her Motion to Enforce Settlement contending that her рroposed release explicitly excluding the guarantee from the scope of the release, along with the agreement to pay her
Standard of Review
We sustain the trial court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law.
Murphy v. Carron,
Discussion
Central States argues thаt the trial court erred when it granted Tirmenstein’s Motion to Enforce Settlement because no settlement agreement had been reached between Tirmenstein and Central States. Central States argues that: (1) its attorney did not have actual authority to accept Tirmenstein’s modified release agreement, and (2) Tirmenstein and Central States never agreed to the language or terms of the release agreement. Because we find Central Stаtes’ second point is dispositive, we decline to address its first point.
In its second point, Central States argues that the trial court erred in granting Tirmenstein’s Motion to Enforce Settlement because Tirmenstein and Central States never agreed to the language or terms of the release. An agreement to settle is governed by contract law.
Payne,
It is clear from the facts of the case that no valid settlement agreement was reached between Tirmenstein and Central States. Tirmenstein and Central States agreed that Tirmenstein’s claim could be settled for $1,800.00 and upon Centrаl State’s preparation of a “full and complete” release. Central States’ original release, which was silent on the issue of whether Central States was relieved of responsibility under the guarantee, constituted an offer. Tirmenstein prepared a new release that added the language “Central States shall remain obligated to [Tir-menstein] to perform its obligations described in the Certificate of Guarantee dated November 10, 1994.... ” This constituted a counter-offer by Tirmenstein. Central States rejected Tirmenstein’s counter-offer when it refused to execute the modified release.
Our decision in
Custom Builders Corporation v. Chesebro, 825
S.W.2d 15, 17 (Mo.App. E.D.1992), is instructive. In
Custom Builders,
homeowners contracted with a builder for construction of a custom home. However, the homeowners refused to pay the balance due on thе contract, claiming the builder improperly installed the roof. Following settlement negotiations, the builder’s attorney sent the homeowners’ attorney а mutual release accompanied by
The builder’s proposed release included language releasing the builder from any guarantee on “material and workmanship.” The homeowners amended the builder’s mutual release by deleting the words “material and,” executed the release, and mailed coрies to the builder. Upon receipt of the modified release, the builder’s attorney re-inserted the language “material and.” The homeowners refusеd to execute the re-altered release. The builder responded by filing a petition to enforce the settlement agreement.
In that case, we affirmed the trial court’s judgment in favor of the homeowners, holding, among other things, that the original mutual release was an offer, that the homeowners’ amended mutual release was a counter-offer, and that the builder’s re-insertion of the words “material and” was a counter-offer that the homeowners never accepted. Accordingly, we found there was insufficient evidence to support a finding that the parties entered into a contract. Id.
As in Custom Builders, Central States’ proposed release constituted an offer, and Tirmenstein’s proposed modified release constituted a counter-offer. Because Central States did not accept Tirmenstein’s counter-offer, no valid settlement agreement was reached between the parties. Therefore, the judgment of the trial court is reversed.